BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 30^TH DAY OF NOVEMBER 2022

ORDER

SMT.M.SHOBHA, PRESIDENT

1. This  complaint has been filed by the complainant

1. To direct the OP to register the sites bearing no.414 & 415 measuring 30X40 ft. situated at sy.no17 & 18 situated Maragondanahalli, Kundan hobli, Devanahalli Tq., Bengaluru Rural Dist.
2. Or further  direct the OP to pay sum of Rs.10,00,000/- towards compensation towards pain and mental trauma and for making her to suffer silently for 10 long years.
3. Further direct the OP to repay advance amount of Rs.3,50,000/- with 10% p.a. interest from the date of payment of advance amount till the date of repayment and
4. Grant  such other reliefs deemed fit and proper under the circumstances of the case in the interest of justice and equity.

2. The case of the complainant is that:

It is the case of the complainant that she has wrongly assuming the manipulation by theOPas the genuine sale offer, the complainant fell into the trap of the OP who lured the complainant for purchasing not one site, but two sites bearing no.414 & 415 situated at Maragondanahalli, Kundan hobli, Devanahalli Tq. Bengaluru Rural Dist. She has paid advance of Rs.3,50,000/-. It was agreed between the parties that total sale consideration including both sites for Rs.10,80,000/- only. It is represented by OP that sy.no.17 & 18 in the said village have been converted from agricultural to non-agricultural residential purpose vide conversion no.ALNSR(D)233/2005-06 dt.16.07.2005. On pursuant to thepayment, OP executed an assignment agreement dt.05.12.2010. The very purpose of two sites was to facilitate the complainant’s sons for their future education.

It is further grievance of the complainant that though OP promised that sale deed will be executed at the earliest, he did not do so. He went on postponing from time to time for registration of sites. OP sought time till 01.03.2014, though the complainant was ready and willing to register the sites, because of the request by the OP, she was compelled to affix hersignature on Annexure-B.

It is further case of the complainant that she repeatedly made visits to the office of the OP and requested to get the sites registered in her favour. However, it was of no avail. When the complainant was very particular about the registration and pressurized the OP, after the expiry of the date promised in annexure-B, once again OP intimated the complainant that the sites will be positively registered during the 1^st week of January 2016.

It is further grievance of the complainant that she has lost all the hopes of getting sites registered by the OP. She got issued legal notice to OP on 04.04.2018. Since, the complainant did not receive postal acknowledgementand the postal authorities have confirmed the said notice received by OP on 05.04.2018. In spite of that OP has not made any efforts or replied to the legal notice.

It is further grievance of the complainant that OP has committed deficiency by not registering the sites in her favour. When the OP has failed to fulfill his promise after repeated requests and issued legal notice by the complainant. The complainant has no other efficacious remedy except approaching this commission by filing the complaint. Hence, she has filed this complaint.

3. After filing of the complaint, notice was issued to the OP, OP appeared before this commission through his counsel and filed version.

It is case of the OP that the complaint itself is not maintainable and liable to be dismissed as not maintainable. The OP has denied all the other allegations made in the complaint except that the complainant has booked plot no.414 and 415 in Max Marvel by paying Rs.10,80,000/- as advance amount. It is the case of the OP that OP running Real Estate businessand registered under the companies Act.The OP having acquired goodwill amongst other Real Estate Companies all over India. The main object of the company is to purchase the lands and formation oflayouts, constructing plots and selling the same in the name and style of Marxworth Realty India Ltd.,and having its office at Bengaluru and other cities in Karnataka state.

It is the case of the OP that the complainant is not a consumer as per section 2(1)(d)(ii) of the Act. The complainant has booked aforesaid 02 sites for commercial purpose and not for her livelihood. One site is enough for livelihood as per law. Since, the complainant has also booked two sites in her name and both of them for commercial purpose.

It is further case of the OP that they are always ready and willing to execute the absolute sale deed in favour of the complainant either in Max Orchids project, which is fully developed by obtaining all government approvals, but the complainant was not ready to get register the sale deed. When the complainant has violated the terms and conditions of the booking form and conditions and she has not ready and willing to purchase the sites ready with full consideration to getabsolute sale deed, the question of unfair trade practice and deficiency of service on the part of the OP does not arise and hence OP is not liable to pay interest, compensation and litigation expenses.

The complainant has claimed exorbitant interest, compensation and litigation expenses. Hence, prays for dismissal of the complaint. OP also further stated that they are ready to get register absolute sale deed if the complainant paid balance sale consideration in the project of Max Orchids or Max Marvels, which are fully developed by obtaining all authorities approvals.

4. In support of their contention, the complainant has filed her affidavit evidence  and also filed additional affidavit evidence and relied on 04 documents i.e. exhibits P1 to P4. On the other hand OP has not adduced any evidence. After taking evidence of OP has nil,  case was posted for arguments.

5. After hearing arguments of the complainant’s counsel the case was posted for orders.

6. It is pertinent to note here that during the pendency of the complaint, complainant has amended the complaint restricting her claim only in respect of refund of the advance amount and she has not pressed the relief no.1, in which she has sought for direction to the OP to register the site no.414 and 415.

7.  The following points do arise for our consideration:-

1. Whether the complainant has proved the  deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs claimed in the complaint ?
3. What order?

8. Our answer to the above points are as under:

       Point No.1:- Affirmative

      Point no.2:- Affirmative in part

      Point No.3:-As per the final order.

REASONS

9. Point No.1 and 2: We have gone through the entire allegations made in the complaint, version and also documents relied on by the complainant and also OP.

10. It is undisputed fact that when the complainant entered into agreement, Ex.A1 assignment agreement on 05.12.2010 with the OP for purchase of sites no.414 and 415 in sy.no.17 and 18 of Maragondanahalli, Kundan hobli, DevanahalliTq., Bengaluru Rural Dist and she has paid advance amount of Rs.3,50,000/-. It is also undisputed fact that the complainant  has agreed to purchase sites for a total sale consideration including both sites for Rs.10,80,000/- only.

11. It is further grievance of the complainant that even though the OP has agreed to execute sale deed at the earliest, he has not come forward to execute sale deed after execution of the sale agreement till January 2016. After that she lost all the hopes to get sites registered in her favour by the OP and she also got issued legal notice. Inspite of service of notice, OP not turned up.

12. It is further grievance of the complainant that after investigation, she came to know that  some of the sites mired with controversy and litigations. Hence, she is  apprehensive to get the sites in her favour and  she request for refund of the advance amount paid to the OP as she has is interested in getting relief for directing the OP for allotment of sites.

13. On the other hand the contention taken by the OP that they are always willing to execute sale deed in favour of the complainant either in Max Orchids or in Max Marvel and the sites are fully developed and have obtained all government approvals, but the complainant herself not get ready to register the sale deed relating to the sites, she has violated the terms and conditions of the booking form and she has not ready and willing to purchase the sites by paying full sale consideration amount.

14. The complainant has relied on 04 documents A1 to A4. Ex. A1 is assignment agreement,  Ex.A2 is letter sent to the complainant by intimating to register the sites within 06 months ending January 2016. Ex.A3 is copy of legal notice issued to OP and Ex.A4 postal confirmation for having service of notice on OP.

15. The complainant has lost interest for purchase of sites in the layout formed by the OP, since the said property is mired with controversy and litigations. The complainant after came  to know that the property involved in litigation, if she allotted  litigation property she will not get valid title to the property. In addition to this  OP even though has executed Ex.A1 assignment agreement on 05.12.2010 itself and has not made any efforts to allot the sites  in favour of the complainant and fail to execute registered sale deed in her favour. The OP also given undertaking by way of Ex.A2 stating that he will execute the registered sale deed and ready to allot the sites within 06 months ending January 2016 vide letter dt.05.08.2015. The OP has failed to execute registered sale deed and allot the sites to the complainant. After investigation she came to know that the property involved in litigation and the OP  will not give valid title to this property. Under these circumstances, she filed this complaint restricting her claim only for refund of the amount from the OP. When the property involved in litigation and enormous delay in execution of registered sale deed and allotment of sites, the complainant is entitled for relief claimed in the complaint.  The complainant waited for more than 10 years to get sites registered in her favour. Under these circumstances, the complainant clearly establishes the unfair trade practice  and deficiency of service on the part of the OP. Hence, the complainant is entitled for refund of entire amount of Rs.3,50,000/- with interest at the rate of 10% per annum from the date of complaint.  The complainant is also entitled to compensation of Rs.2,00,000/- as she has sustained financial loss and she also suffered  mental pain and in view of delay caused by the OP. The complainant is also entitled to litigation expenses of Rs.10,000/-. The compensation amount of Rs.10,00,000/- claimed by the complainant is exorbitant. Hence, we award Rs.2,00,000/- as compensation to the complainant. The OP has directed to pay entire amount in favour of the complainant within 60 days from the date of this order.  Hence, we answer the Point No.1 in the affirmative and Point No.2 partly in the affirmative.

16. Point no.3:-.  Accordingly, we proceed to pass the following 

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to refund entire amount of Rs.3,50,000/- with interest at the rate of 10% p.a. from the date of complaint till realization.
3. The OP further directed to pay compensation of Rs.2,00,000/- as financial loss, mental suffering and deficiency of service.
4. The OP further directed to pay Rs.10,000/- towards litigation expenses.
5. If the OP failed to pay the amount within 60 days, the amount of  Rs.3,50,000/- will carry additional interest at 12% p.a. after expiry of 60 days .
6. Furnish the copy of this order to both the parties, and return the spare pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 30^th  day of November, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :  Nil