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

DATED 21^st DAY OF MARCH 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This complaint has been filed under Section 35 of C.P.Act, 20196 against the OP for the following reliefs:-

(a) Direct the OP to refund entire amount of Rs.3,60,000/- along with interest 18% p.a. from the date of payment i.e. 19.07.2013 till realization.

(b) Direct the OP to pay compensation of Rs.4,00,000/- for mental agony and litigation expenses etc.,

(c) To pass such other reliefs.

2. The case set up by the complainant in brief is as under:-

The complainant under the assessment agreement dated 12.08.2013 paid Rs.3,60,000/- by means of a cheque to the OP in respect of site measuring 30 x 40 ft.  But, OP neither ready for execution of sale deed nor ready to refund the advance amount.  The OP failed to comply the request made by the complainant.  Hence, this complaint.

3. The complainant also files application under Section 69 of C.P.Act, 2019 to condone the delay.  It is stated in the affidavit that even though he paid earnest money of Rs.3,60,000/- out of total consideration of Rs.11,40,000/- on 19.07.2013.  But, the OP has evaded to refund the amount despite repeated requests.  Ultimately, he called upon the OP through E-mail dated 14.03.2021 and 24.03.2021 to refund the money.  Therefore, he request for condonation of delay.

 4. After receipt of notice, the OP appears and files version.  The OP admits booking of site No.75 worth Rs.7,38,000/- and payment of Rs.3,60,000/- as an advance.  The OP is always ready and willing to execute absolute sale deed in favour of the complainant either in Max Maedows III or in the some other project.  But, complainant was not ready for the registration.  The complainant has violated the terms of agreement.  The compensation and interest claimed by the complainant is exorbitant.  The complaint is barred by limitation after seven years.  The OP requests to dismiss the complaint. 

5. The complainant has filed her affidavit evidence and relies  six documents.  No evidence is adduced by the OP. 

6. Heard the arguments of advocate for complainant only.  No oral arguments adduced on behalf of OP.

7. The following points arise for our consideration:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

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

       Point No.1:  Affirmative.

      Point No.2:- Affirmative in part.

      Point No.3: As per final orders

REASONS

9. Point Nos.1 and 2:  It is true that the assessment agreement is dated 12.08.2013 and complaint came to be filed on 29.09.2021.  As per the condition No.3 of the assessment agreement, the sale shall be completed within 180 days from the date of execution of assessment agreement and assigner shall get BIAAPA approval for the layout before registration of sale deed.  Clause No.4 point No.1 of the agreement indicates that the assigner shall cause of sale deed by the original land owners or shall get the land registration in his name before registration of sale deed.  The burden lies on the OP to comply these two conditions.  Till the compliance of these conditions, the OP was not in a position to execute registered sale deed.  Therefore, complaint filed in the year 2021 is not barred by limitation. It is admitted and proved fact that the complainant and OP have entered into assessment agreement dated 12.08.2013 in respect of site No.75 measuring 30 x 40 ft for Rs.11,40,000/-.  It is also proved that the OP having received Rs.3,60,000/- passed receipt dated 20.07.2013.  Ex.P.3 is the assessment agreement clearly indicates that the complainant shall pay balance sale consideration of Rs.7,80,000/- at the time of registration of absolute sale deed.
10. It is one of the contention of the OP that the OP was ready to execute the sale deed in favour of the complainant either in Max Maedows III project or in the some other project.  Even though, OP contends that the complaint is barred by limitation.  If really, OP was ready to execute absolute sale deed, but he remained silent without calling the complainant to pay balance sale consideration of Rs.7,80,000/- and get sale deed executed.  The OP also remained silent from the date of execution of assessment agreement dated 12.08.2013 till filing the version on 04.12.2021.
11. It is relevant to note that as per the condition No.3 of Ex.P.3 assessment agreement dated 12.08.2013, the sale shall  be completed within 180 days from the date of the assessment agree3ment and OP being the assigner shall get BIAAPA approval for layout before registration of the sale deed.  The OP neither pleaded the BIAAPA approval obtained nor such approval is placed before us.  Clause No.4 of this agreement also indicates that the OP being the assigner shall cause the execution of sale deed by the original land owners or shall get the land registered in his name before registration of sale deed and execute the registered sale deed in respect of schedule property in favour of assignee i.e. complainant.  The OP has not produced any document to show that either it has obtained sale deed from the original land owners or made any attempt to get the land registered in favour of the complainant.  By issuing E-mail and legal notice dated 02.08.2021, the complainant called upon the OP to refund the earnest money with 18% interest p.a.  Ex.P.6 indicates that notice came to be served on OP on 04.08.2021.  Despite service of legal notice, the OP never made any attempt calling upon the complainant to pay the balance amount and get the sale deed executed or refunded the amount. The in action on the part of the OP amounts to deficiency of service.  When the OP failed to comply the terms of agreement, he is not right in saying that complaint is barred by limitation.  The complainant is entitled to refund of Rs.3,60,000/- from the Op. 
12. The complainant claims interest at 18% p.a. from 19.07.2013 till realization and Rs.4,00,000/- towards compensation.  The complainant also remained silent for a long period of 8 years without asking the OP to refund the amount with interest and compensation.  The rate of interest claimed by the complainant and quantum compensation are exorbitant.  In case of compensation is awarded, the complainant is not entitled to interest.  The amount of the complainant is lying with the OP since 8 years.  Under such circumstances, it is proper to award compensation of Rs.1,00,000/- in the form of interest.   
13. Point No.3:- In view of the discussion made in point Nos.1 and 2, the complaint requires to be allowed in part.  The OP is liable to refund Rs.3,60,000/- with compensation of Rs.1,00,000/- and Rs.5,000/- towards cost of litigation.   We proceed to pass the following 

  O R D E R

1. The complaint is allowed in part. Delay condoned.
2. The OP shall refund Rs.3,60,000/- with compensation of Rs.1,00,000/- and Rs.10,000/- as a cost of litigation to the complainant, within 60 days from this date.  If the OP fails to comply this direction, OP is liable to pay interest at 10% p.a. on Rs.3,60,000/- after expiry of 60 days till realization.
3. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 21^st March, 2022)

Documents produced by the Complainant which are as follows:-