DATE OF FILING: 12.11.2015
DATE OF DISPOSAL: 25.09.2017
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he is an Advocate by profession and practicing Tax Law and was interested for a “Dream Home” in Berhampur Township for his residence. After thorough search for such residential house, the complainant came in contact with O.P.No.1 in the month of July 2011 and satisfied with the project placed by the O.P.No1. The O.P.No.1 is a business partner deals with Real Estate business within the Ganjam District. To this effect the O.Ps was entered with a Partnership Firm in the name and style of M/s Sun City Developers on 04.04.2009 wherein the O.P.No.2 is the Managing Partner and O.P. No.3 to 5 are Partners of the said O.P.No.1. The O.Ps, as per the aims and objectives of the Partnership Deed started a project under the name and style of “Binayak Residency” in Word No.20 under Berhampur Municipal Corporation in Subashpur Mouza of Berhampur Tahasil, bearing Khata No.264/821, Plot No.5/2249 measuring an area of Ac.0.127 dec. The complainant was interested to be the owner of a Flat in the above said “Binayak Residency” Project as per the cost and schedule fixed by the O.P.No.1. Thereafter on oral contract, the complainant made an initial deposit of Rs.5,000/- vide Money Receipt No.1601 dated 22.01.2010 and became a subscriber of the said project. After due acknowledgement of subscribership on payment of Rs.5,000/- the O.Ps prepared a Sale Deed on 6.4.2010 for an area of Ac.0.078/10 of undivided proportional, joint, impartial share of above stated residential house being approved by BDA in his Letter No.2903 dated 01.12.2009 in BPBA 403/2009. It is also mentioned in the complaint that he has paid a sum of Rs.2,50,000/- vide Book No.6 Sl. No.613 dated 7.4.2010, Rs.2,25,000/- vide Book No.6 SL No. 635 dated 15.9.2010, Rs.1,50,000/- vide Book No.6 SL No. 645 dated 27.1.2011 and Rs.1,00,000/- vide Book No.6 SL No. 652 dated 25.7.2011 respectively towards purchase of the said flat and has already paid a total amount of Rs.7,30,000/- (Rupees Seven Lakhs Thirty Thousand) to the O.P.No.1 against cost fixed by the O.Ps. After receipt of Rs.7,30,000/- by the O.Ps, they again prepared a draft copy of Sale Deed on 04.8.2012 for transfer of title, interest and possession of the flat to the complainant and handed over a copy of Sale Deed for verification by the complainant. But to the utter surprise, the O.Ps did not execute the Sale Deed in favour of the complainant with some pretext or others. Further it is stated that the O.Ps assured to the complainant to execute a construction agreement for construction of Flat No.102 with the O.P.No.1 on 04.02.2013. The said construction agreement witnesses to construct a Flat having a super built area of 862 sq ft. in Unit-2 in the ground floor and the cost of the house was fixed at Rs.14,05,060/- including the previously paid amount of Rs.7,30,000/- with the assurance to close the payment schedule within 24 months from the day of construction agreement and as per the Clause-6 of said agreement the last payment schedule is to be closed on 02.02.2015. After due execution of the construction agreement on 02.4.2013 the complainant made further payment of Rs.3,00,000/- vide SL. No.662 dated 2.4.2013 and Rs.50,000/- vide SL No. 686 dated 30.06.2014 respectively. Thus, in total, the complainant has deposited Rs.12,30,000/- against the agreed amount of Rs.14,05,060/- and it was promised to pay rest amount at the time of delivery and registration of the Flat. It is also alleged that after completion of the payment schedule, when the complainant asked for due registration of the Flat, the O.P.No.1 delivered the possession of the flat to the complainant and from that day the complainant is in physical possession of the Flat No.102 and the electricity was also supplied to the Flat by the SOUTHCO authority vide bearing Consumer A/c No.B-2-3259 and new Account No.341402490008. The O.Ps though delivered the possession to the complainant but did not come forward to execute the necessary Sale Deed in favour of the complainant even after several approaches. Hence, the complainant has filed this consumer complaint alleging deficiency in service on the part of the O.Ps and has prayed to direct the O.Ps to execute the Sale Deed in favour of the complainant in respect of the Flat No.102, Unit-2, Ground floor, Binayak Residency and has prayed to direct the O.Ps to pay Rs.50,000/- towards financial loss, litigation expenses and Rs.1,00,000/- for mental agony in the best interest of justice.
3. On notice duly served by this Forum, Mr. T.K.Reddy, Advocate and Associates appeared for O.P.No.2 and filed Vakalatnama. Mr Kailash Chandra Panigrahy, Advocate and Associates appeared for O.P. No.5 and filed Vakalatnama. Notices were duly served to O.P.No.1, 3 and 4 but returned back with postal remark “addressee always absent and not known”. Even after servicing of notices, the O.P.No.1, 3 &4 did not appear and not filed their written version. Hence, the complainant served the notice through Newspaper publication on 2.8.2016 in Pragativadi Odia daily for appearance O.P.No.1, 3 & 4 but all went in vain and the said O.Ps did not prefer to appear and file their version. Hence the O.Ps are declared ex-parte on dated 18.8.2016.
4. On the date of denov hearing of the consumer dispute, we heard ex-parte arguments from the learned counsel for the complainant. We perused the materials available on the case record and have gone through the file of the case record. During the course of hearing of the consumer complaint and as per the submissions of the learned counsel for the complainant, we find that it is not in dispute that the complainant joined as a subscriber of O.Ps for purchase of a Flat under Binayak Residency project started by O.Ps for an area of Ac.0.07, 8/10 Dce of undivided proportional, joint, impartial share or interest in the land out of total extent of Ac.0.127 dec. in Khatian No. 264/821 corresponding to Plot No. 5/2249 of Subashpur Mouza, Berhampur Tahasil in ward No. 20 of Berhampur Municipal Corporation being approved by BDA in his letter No. 2903 dated 01.12.2009 in BPBA 403/2009. On perusal of money receipts placed on the case record we find that the complainant has made payment of Rs.5,000/- vide money receipt No.1601 dated 22.1.2010, Rs.2,50,000/- vide Book No.6 Sl. No.613 dated 7.4.2010, Rs.2,25,000/- vide Book No.6 SL No. 635 dated 15.9.2010, Rs.1,45,000/- vide Book No.6 SL No. 645 dated 27.1.2011 and Rs.1,00,000/- vide Book No.6 SL No. 652 dated 25.7.2011 respectively. Thus, in total an amount of Rs.7,30,000/- (Rupees Seven Lakhs Thirty Thousand) was paid to the O.P.No.1 by the complainant against cost fixed by the O.Ps which is also not disputed by the O.Ps. As per the submissions of the learned counsel for the complainant and on a further perusal of materials placed on the case record, we find that the complainant after receipt of the subscribership on payment of Rs.5,000/- on 22.01.2010 the O.Ps after getting due approval from the BDA vide letter No.2903 dated 01.12.2009 prepared a sale deed on 06.04.2011 and after receipt of Rs.7,30,000/- by O.P.No.1, the O.Ps again drafted a Sale Deed on 04.8.2012. However, it is a matter of surprise that they did not execute the sale deed in favour of the complainant on some pretext though it was twice drafted by the O.Ps. He further contended that the O.Ps assured the complainant to execute a construction agreement with O.P.No.1 for construction of Flot No.102 on 04.02.2013. As per the said agreement, the O.Ps are to construct a Flat having a super built are of 862 Sq. Ft in Unit-2 of Ground Floor and the cost of Flat was fixed at Rs.14,05,060/- that includes previous payment amount of Rs.7,30,000/- with the assurance to close the payment schedule within 24 months and the last payment was scheduled to be closed on 02.02.2015. After execution of the construction agreement on 02.04.2013, the complainant further made payment of Rs.3,00,000/- vide receipt Sl.No.662 dated 02.04.2013 and Rs.50,000/- vide receipt Sl.No.686 dated 07.03.2013 respectively hence the complainant has already paid a total amount of Rs.12,30,000/- against the agreed amount of Rs.14,05,060/- with the promise to make payment of rest amounts by the complainant at the time of delivery of possession and registration of the Flat in dispute. It is also not in dispute as admitted by the complainant that the O.P.No.1 has delivered the possession of the aforesaid Flat to the complainant and he is at present in possession of the said Flat No.102 and has also got an electricity supply connection in his name vide Consumer Account No.B-23259 corresponding to new A/c No.341402490008. However, though the O.Ps delivered the possession of the said Flat but did not come forward to execute the necessary sale deed in favour of the complainant. In the foregoing context, the points in dispute to be adjudicated by this Forum – (i) Whether the O.Ps are deficient in service for non-execution of the Sale Deed in favour of the complainant? And (ii) whether the complainant is entitled for any compensation and cost of litigation in the fact and circumstance of the case?
5. To address and adjudicate the above points in dispute, we would like to state that as per the discussions held above, there is no dispute or doubt that the complainant is a subscriber of the housing project launched by O.Ps and as per the documentary evidence placed on the case record, he has paid a total amount of Rs.12,30,000/- to the O.Ps against agreed amount of Rs.14,05,060/- including subscribership charges in respect of Flat No.102 in Binayak Residency, Ward No.20, Berhampur Municipal Corporation. It is also a fact beyond doubt or dispute that the present complainant is in possession of the aforesaid Flat No.102 in Binayak Residency and he has got an electricity supply connection line in his name bearing consumer account number as discussed above. It is also a fact that the O.Ps on two occasions had contemplated to execute a sale deed in the name of the complainant on 06.04.2010 and 04.08.2012 respectively to transfer the title, interest and possession of the Flat but failed to do so the reasons best know to them. Under the foregoing context, in our considered view we would like to say that the O.Ps are not fair in their approach and dealing hence liable to execute the Sale Deed in favour of the complainant since the complainant has already paid an amount of Rs. 12,30,000/- towards cost of the said Flat out of agreed amount of Rs.14,05,060/-. A further perusal of the case record, we also find that it is also a fact that the complainant is yet to make payment of Rs.1,75,060/- to the O.Ps towards balance amount of the said Flat as agreed to pay as per the agreement. However, when the factual matrix of the present case as stated above, the O.P. No.1, 3&4, in spite of notice published in the Odia Daily Newspaper on 02.08.2016 did not prefer to appear and not controverted the contentions of the complainant. Similarly, the learned counsel for the O.P.No.2 though appeared but did not prefer to file his written argument and even remained absent during the proceedings of the case and even on the date of renov trial remained absent though several opportunities availed by him. The learned counsel for the O.P.No.5 also appeared but did not prefer to file his version to controvert the allegations of the complainant. Even after publication of notice through newspaper as discussed above, the O.Ps failed to file their version and controvert the contentions of the complainant. We are, therefore, constrained to accept the uncontroverted contentions of the complainant in absence of any version from the side of O.Ps. Such being the position, in our considered view we would like to state that the O.Ps have received the amount under a valid agreement/contract and have received the amounts with proper acknowledgement receipts. When the O.Ps received the amount under a valid contract/agreement and failed to execute the Sale Deed in favour of the complainant, it can be construed as unfair trade practice and deficiency in service on part of the O.Ps. In the light of above discussion and taking into account to the fact and circumstances of the case, we would, like to direct the O.Ps to execute the Sale Deed in favour of the complainant and simultaneously it will be also equitable to direct the complainant to make payment of Rs.1,75,060/- to the O.Ps towards balance amount of the sale consideration of the Flat as discussed above.
6. With regard to the second issue as framed above, we would like to state that in this case, the O.Ps despite notice from this Forum and even after publication of notice in daily newspaper failed to appear and contest their case. The O.Ps could have settled the issue on execution of the Sale Deed in favour of the complainant prior to filing of this consumer dispute in this Forum or else during the proceedings of this dispute but they did not do so and remained silent over the dispute. In this way they have forced the complainant to file this dispute with the help of an Advocate to assert his right and the complainant has incurred expenses due to the indifferent attitudes and unfair trade practice of the O.Ps. The most concerned aspect of the dispute is that though the present complainant is an Advocate but the O.Ps are not hesitate to deceive the complainant who is a person from legal profession. This shows their callous attitudes towards a bona fide consumer who has been suffered mentally and harassed due to the negligence of the O.Ps for non-execution of the Sale Deed. In the foregoing fact and circumstances, we feel that the complainant is entitled for some compensation and cost of litigation to be paid by the O.Ps jointly. In this case the complainant has prayed before this Forum to direct the O.Ps to pay Rs.50,000/- towards financial loss and Rs.1,00,000/- as compensation for mental agony and harassment. However, the complainant has failed to produce any cogent and convincing documentary evidence to that effect that he has incurred such huge financial loss due to the indifferent attitude and negligence of the O.Ps. We are, therefore, not inclined to award such huge amounts as compensation. On the contrary, we are convinced that the complainant might have suffered from mental agony and has been harassed by the O.Ps, since even after issuance of a legal notice to the O.Ps by the complainant; they did not turn to execute the Sale Deed in faour of the complainant. In view of above and considering the fact and circumstances of the case, we feel that an amount of Rs.10,000/- would be just and proper towards compensation to be paid by the O.Ps jointly to the complainant for mental agony, harassment and unfair trade practice. Similarly, we also convinced that the complainant has hired the services of a professional Advocate to file the consumer dispute in this Forum and have incurred expenses towards payment of court fees, professional charges of Advocate and incurred incidental expenses during filing of this dispute and expenses of advocate notice. In this regard, we feel that a sum of Rs.2,000/- would be just and proper to award towards cost of litigation to be paid by the O.Ps jointly to the complainant. In the light of the above discussions and considering the fact and circumstance of the case, we allowed the case of the complainant against all O.Ps who are jointly and severally liable to execute the Sale Deed in favour of the complainant within a reasonable period of two months. In the light of the foregoing discussion we allowed the case of complainant against all O.Ps.
7. Resultantly, the case of the complainant is allowed against all O.Ps who are jointly and severally liable to execute the Sale Deed in favour of the complainant. The O.Ps are also directed to pay an amount of Rs.10,000/- jointly to the complainant towards compensation for mental agony, harassment and unfair trade practice along with a sum of Rs.2,000/- to be jointly paid by the O.Ps to the complainant towards cost of litigation. Simultaneously, as discussed above, the complainant is also directed to pay Rs.1,75,060/- to the O.Ps towards balance amounts of sale consideration during the time of execution of the Sale Deed in the name of the complainant. The above orders shall be complied by the parties within two months from the date of receipt of this order and the case of the complainant is disposed of accordingly.
8. The order is pronounced on this day of 25th September 2017 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
