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

DATED 16^th DAY OF MARCH 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. The joint complaint has been filed under Section 35 of C.P.Act, 2019 (herein under referred as an Act) has filed the complaint for the following reliefs against the OPs:-

(a)Direct the OPs jointly and severally to pay/refund/return a sum of Rs.45,03,310/- along with interest at 18% p.a. from the date of complaint till the date of realization.

(b) Direct the OPs to pay Rs.4,00,000/- for damages.

(c) Cost of litigation.

(d) to grant such other order/reliefs.

2. The case set up by the complainants have entered into an agreement of sale dated 20.08.2018 with OPs to purchase Apartment No.001 for Rs.47,50,000/-.  The complainants raised housing loan of Rs.38,00,000/- from GIC Housing Finance Ltd.,  The sale deed came to be executed on 03.09.2018 in the office of Sub-Registrar, Jayanagar for consideration of Rs.47,50,000/- in respect of Apartment bearing No.001.  Even though, in the agreement of sale, apartment number is shown as 001/A.

3. It is further case of the complainant that the OPs have executed registered agreement of sale dated 09.03.2015 in favour of Ramanjaneya who has filed O.S.No.1428/2018 on the file of City Civil Court, Bengaluru.

4. Instead of taking immediate steps on absolute sale dated 03.09.2018, the police failed to take action against the OPs.  There is a deficiency of service and negligence on the part of OPs.  The complainants have filed PCR on the file of IX ACMM, Bengaluru against the OPs who have filed criminal petition No.6201/2020.  The action of the OPs has caused mental agony.  Hence, this complaint.

5. After receipt of notice, the OPs appear and file version.  They contend that complainants are not the consumers and there is no deficiency of service or negligence on the part of OPs. Accordingly, OPs contend that complaint is not maintainable.  They admit that they entered into agreement of sale dated 20.08.2018 with the complainants for apartment bearing No.001/A.  The complainants have applied for loan and they are party to the registered sale deed dated 03.09.2018.  There is no deficiency of service and negligence on the part of OPs.  The complainants have received Rs.10,51,000/- from the OPs raising the issue of Vaastu in respect of the apartment. They admit filing private complaint by the complainants and dismissal of Criminal Petition No.6201/2020.  They request to dismiss the complaint, in view of execution of registered sale deed as there is no cause of action to file this complaint. The complaint is also barred by limitation.

6. The complainants filed affidavit evidence of complainant No.1 and rely on certain documents.  The OPs filed affidavit evidence of OP No.2 and they rely on two documents.  Heard the arguments of both the sides and perused the records.   

7. The following points arise for our consideration:-

1. Whether the complainants prove deficiency of service on the part of OPs?
2. Whether the complainants are entitled to relief mentioned in the complaint?
3. What order?

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

       Point Nos.1 and 2:  In the negative.

      Point No.3: As per final orders

REASONS

9. Point Nos.1 and 2:  It is relevant to refer the admitted and proved fact before entering into controversy.  Ex.A.1 agreement of sale dated 20.08.2018 indicates that K.S.Murali who is representing OP No.1 as a GPA holder of Sri R.N.LOkesh Reddy executed agreement of sale and agreed to sell flat No.001/A super built-up area of 1252 sq.ft. with common area and other facilities for sale consideration of Rs.48,00,000/-.  The payment of Rs.10,00,000/- on the date of execution of sale deed and execution of agreement of sale is not in dispute.
10. It is proved from the case set up by the complainants and Ex.A.2 that the complainants got sanctioned loan of Rs.38,00,000/- from GIC Housing Finance Ltd., Electronic City.  The absolute sale deed as per Ex.A.3 came to be executed on 03.09.2018 by OP No.1 represented by R.N.Lokesh Reddy in favour of the complainants.  Even though, OP No.2 is a proprietor of OP No.1 and GPA holder of owner of the flat R.N.Lokesh Reddy has executed registered sale deed.  But, R.N.Lokesh Reddy is not made as party to this proceeding.  Sri R.N.Lokesh Reddy is necessary party to this proceeding.  This sale deed came to be executed and registered in respect of the residential apartment bearing No.001/A, Ground Floor, Super built up area of 1252 sq.ft.
11. It is also proved that OP No.2 being the GPA holder of own R.N.Lokesh Reddy executed an agreement of sell without possession dated 09.03.2015 in respect of apartment No.001.  It is also proved from the copy of the plaint produced by the OPs that K.N.Ramanjaneya has filed O.S.1428/2018 against OP No.1 and R.N.Lokesh Reddy for specific performance or alternatively for refund of money in respect of residential apartment bearing No.001.  The present OP No.1 is a first defendant filed written statement as per Ex.B.2 in O.S.1418/2018.
12. The registered sale deed executed in favour of the complainant is in the respect of residential apartment bearing No.001/A measuring 1252 sq.ft.  Whereas, agreement of sale dated 09.03.2015 is executed by OP No.1 and R.N.Lokesh Reddy in favour of K.N.Ramanjaneya is in respect of residential apartment bearing No.001.  The complainant set up a theory that the registered sale deed must be in respect of residential apartment bearing No.001/A.  But, complainants have not filed a civil suit for rectification of sale deed.
13. The complainant No.1 set the criminal law into motion by filing complaint dated 05.09.2020 as could be seen from Ex.A.5. and police issued an endorsement as per Ex.A.6.  Ex.A.7 is the copy of police complaint filed on the file of 9^th Additional CMM Court, Bengaluru.  This complaint is presided by the legal notice got issued by the complainants to the OPs on 19.10.2020 and complaint came to be served on both the parties as per Ex.A.8.  Ex.A.9 is the copy of the postal receipts.  Under legal notice dated 19.10.2020 the complainants called upon the OPs to refund of Rs.45,05,310/-.  But, complainants’ wants refund of above amount at the hands of this Commission, without seeking the relief of set aside the sale deed.  If the complainants are interested in residential apartment bearing No.001, they could have filed the suit for rectification of sale deed.
14. The deficiency or negligence on the part of OPs can be considered only if that complainants are able to prove that their complaint is maintainable before this Commission.  The complainants have raised complicated question before this Commission.  It is settled preposition of law that the complicated question can be decided only by the Civil Court.  The complainants seek refund of amount, compensation and cost of litigation without seeking either for rectification of sale deed or for cancellation of sale deed.  It is within the knowledge of the complainants that their complaint seeking relief of execution of sale deed or without seeking of relief of cancellation of sale deed.  This Commission has no power to cancel the registered sale deed.  Under such circumstances, the complainants are entitled to approach only Civil Court.
15. It is relevant to note that, owner of the residential apartment R.N.Lokesh Reddy executed sale deed dated 03.09.2018 in favour of the complainants through his GPA holder i.e. OP No.1 represented by OP No.2.  Sri R.N.Lokesh Reddy is not made as a party in the absence of R.N.Lokesh Reddy, the case cannot be decided.  The Clause in the absolute sale deed dated 03.09.2018 clearly indicates that purchasers i.e. complainants shall be entitled to hold, posses and knowledge of the schedule B and C property.  Thereby, without any force or disturbance by the 1^st party i.e. vendor and 2^nd party i.e. developer or any person claiming through or under them.  The legality or otherwise of the sale deed cannot be considered before this Commission.  Under such circumstances, there is no deficiency of service and negligence on the part of OPs.  When there is no deficiency and negligence on the part of OPs, the complainants are not entitled to any of the reliefs.  Accordingly, complaint is not maintainable before us.
16. Point No.3:- In view of the discussion referred above, the complaint requires to be dismissed as not maintainable. We proceed to pass the following 

  O R D E R

1. The complaint is dismissed as not maintainable.
2. The complainants can approach Civil Court for necessary reliefs.
3. Parties are directed to bear their own costs.
4. 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 16^th March, 2022)

Documents produced by the Complainant which are as follows:-

Documents produced by the OPs which are as follows:-