CC No.2124.2017

Filed on:21.07.2017

Disposed on:31.05.2018

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 31^st DAY OF MAY 2018

CONSUMER COMPLAINT NO.2124/2017

PRESENT:

 Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

         PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                       MEMBER

                                 V/S

ORDER

BY SMT.L.MAMATHA, MEMBER

1. This Complaint was filed by the Complainant on 21.07.2017 U/s 12 of the Consumer Protection Act, 1986 praying to pass an Order directing the Opposite Parties to refund the Rs.13,71,375/- by way of consideration for the  agreement of sale dt.05.12.2014 along with interest, as discretionary of forum mental agony and physical suffering of the Complainant assessed at Rs.50,000/- and further direct the Opposite Party to pay damages which is caused to the Complainant for amounting to Rs.3,00,000/- to order for deficiency of service. 

2. The brief facts of the complaint as under:

In the complaint, the Complainant submits that the Opposite Party had entered into Agreement of Sale, Construction Agreement dt.05.12.2014.According to the Agreement, the schedule mentioned as B property, bearing Flat No.214, 2 BHK, on the Second Floor, measuring 925 Sq.ft, in the apartment known as “Dreamz Siddhi” along with 264.28 sq.ft, is undivided share in the schedule ‘A’ property with the vitrified flooring.This property comes under Schedule A property, All that piece and parcel residentially converted property bearing Survey No.78/1, measuring to an extent of 025 guntas, situated at Beerasandra Village, Attibele-Hobli, Anekal Taluk, Bengaluru-Urban District.Duly converted vide official memorandum bearing No.ALN-(A) CR:63/2010-2011, dt.23.02.2010. On Sale Agreement dt.05.12.2014 Rs.23,00,000/- as full consideration, on that the Complainant has paid through Rs.13,71,375/-.The said amount paid as hereunder:-

1. Dt.21.04.2014 Receipt, 1089, Amount of Rs.50,000/- 1kCard No.2695, PNB Bank dt.21.04.2014.
2. Dt. 22.04.2014, Receipt No.1091, Amount of Rs.50,000/- Card No.9004, HDFC Bank dt.22.04.2014.
3. Dt. 22.04.2014 Receipt No.1093, Amount of Rs.2,00,000/- (1,80,000/- + Rs.20,000/-) Card No.9004 HDFC Bank, dt.22.04.2014.
4. Dt.22.04.2014 Receipt No.1093, Amount of Rs.40,000/- Card No.2695, PNB Bank dt.22.04.2014.
5. Dt.22.04.2014 Receipt No.1161, Amount of Rs.3,00,000/- Fund Transfer from SBI Acct 10324475917 to SBI Bank Acct-32445027724, dt.22.04.2014 Axis Bank.
6. Dt.30.04.2014 Receipt No.1320, Amount Rs.1,10,000/- Cheque No.248365, dt.30.04.2014 Axis Bank.
7. Dt.04.05.2014 Receipt No.1451, Amount Rs.1,10,000/- Cheque No.248366, 7^th May 2014, Axis Bank.
8. Dt.13.05.2014 Receipt No.1740, Amount Rs.1,50,000/- Cheque 248367, dt.14^th May 2014 Axis Bank.
9. Dt.17.05.2014 Receipt No.1830, Amount Rs.1,50,000/- Cheque No.248370, dt.20^th May 2014, Axis Bank.
10. Dt.20.10.2014 Receipt No.6764, Amount Rs.1,12,125/- Card No.9004, HDFC Bank dt.22.10.2014.
11. Dt.21.10.2014 Receipt No.6802, Amount Rs.1,09,250/- Card No.9004, HDFC Bank dt.21.10.2014.

Thus the Complainant has paid total amount of Rs.13,71,375/-.After receiving the amount the Opposite Party had entered into Agreement of Sale dt.05.12.2014 with the Complainant.As per the MOU signed between the Complainant and Opposite Party Company, 50% amount of the total consideration value of flat before its registration and rest of 50% loan or by any other mode on the day of registration.When the Complainant visited the Opposite Party Company, the Opposite Party has issued commitment letter dt.17.10.2016 stating that, “will give the possession of the said flat in the above project within December 2016.Now the Complainant will come to know that Mr.M.Mahesh registered on 03.03.2015 the same flat by the Opposite Party, the Opposite Party purposely has sold to third person. After that, within many times ask the officials in the Opposite Party Company Manager and representatives have always delayed the same on one or the other, Company had not given even a single reply to Complainant until 17^th October 2016.In the meanwhile the Opposite Party Company had without the knowledge and consent has sold to M.Mahesh on 03.03.2015.The Opposite Party No.1 has sold to Opposite Party No.2 by cheated to the Complainant.The Complainant send notice through his Counsel on 15.04.2017 to the Opposite Party No.1, but he did not to give reply and he is in judicial custody.The Opposite Party No.2 never asked to the Complainant that already it is sold by way of Agreement of Sale in favour of the Complainant. Hence, the Opposite Party No.1 had deliberately done deficiency in service, with regard to sale deed, and Opposite Party No.2 jointly played fraud and cheated to the Complainant.When the Complainant asked with regard to the sale, the Opposite Party No.2 gave evasive reply.Because of the deficiency of service of the Opposite Party No.1 this complaint arose.Hence, this complaint.

3. Even though, notice was served on the Opposite Parties, Opposite Parties fails to put their appearance, hence placed ex-parte. 

4.   In support of the complaint, the Complainant has filed his affidavit by way of evidence.  Heard the Arguments of the Complainant.

5.  The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties ?

2. If so, to what relief the Complainant is entitled ?

6. Our findings on the above points are:-

                POINT (1):- Affirmative

                POINT (2):- As per the final Order

REASONS

7. POINT NO.1:- On perusing the pleadings along with documents produced by the Complainant, it reveals that the 1^st Opposite Party is a developer and he has informed for developing land and township intend to develop the immovable property bearing Sy.No.78/1 of Veerasandra Village, Attibele Hobli, Anekal Taluk, Bangalore Urban District for forming private layout.  The Opposite Party NO.1 promised to the Complainant that they have absolute right, title and interest over the schedule ‘A’ property and further undertake the ‘A’ & ‘B’ schedule property are free from all encumbrances’ mortgage, lispendences, charges, court decrees, claims, including minor claims etc.  The Complainant agreed to purchase the flat in the Opposite Party No.1’s Project and booked the 2BHK apartment measuring 925 sq.ft in the project known as “Dreamz SIDHI” along with 264.28 sq.ft undivided share in schedule ‘A’ property bearing flat No.214 on 2^nd Floor for a total consideration of the apartment is Rs.23,00,000/- which is excluding tax, vat, Registration charges and stamp duty.  On 22.04.2014 Opposite Party executed MOU infavour of Complainant.  As per MOU, the Opposite Party has to complete the project within 20 months, in case of delay the Complainant has agreed to extend 3 months grace period.  On 05.12.2014 the Opposite Party executed agreement of sale and construction agreement infavour of Complainant. To substantiate this, the Complainant filed his affidavit, in his sworn testimony, he has reiterated the same and also in support of his testimony, he has produced copy of MOU, copy of agreement of sale, copy of construction agreement, copy of Encumbrance dt.17.12.2016, copy of payment receipts, copy of legal notice.  By looking into these documents, it clearly shows that Opposite Party No.1 and Complainant entered into MOU, sale agreement and construction agreement. The Complainant paid Rs.50,000/- by way of cheque bearing No.248363 dt.23.04.2014 drawn on Axis Bank Bangalore and Rs.50,000/- by way of card payment bearing No.2695 dt.21.04.2014 drawn on Yes Bank and Rs.2,00,000/- by way of card payment bearing No.9004 dt.22.04.2018 drawn on Yes Bank and Rs.40,000/- by way of card payment bearing No.2695 dt.22.04.2014 drawn on Axis Bank and Rs.3,00,000/- by way of cheque bearing No.248364 dt.28.04.2014 drawn on Axis Bank and paid Rs.1,10,000/- by way of cheque bearing No.248365 dt.30.04.2014 drawn on Axis Bank and Rs.1,00,000/- by way of cheque bearing No.248366 dt.07.05.2014 drawn on Axis Bank and       Rs.1,50,000/- by way of cheque bearing No.248367 dt.14.05.2014 drawn on Axis Bank and Rs.1,50,000/- by way of cheque bearing No.248370 dt.20.05.2014 drawn on Axis Bank Rs.1,12,125/- by way of card payment bearing No.9004 dt.20.10.2014 drawn on Yes Bank Rs.1,09,250/- by way of card payment bearing No.9004 dt.21.10.2014 drawn on Yes Bank.  The Opposite Party No.1 acknowledged the receipts for the said amount.  The Complainant paid total Rs.13,71,375/-out of 23,00,000/- to the Opposite Party No.1.  But the Opposite Party No.1 failed to complete the project and not handover the physical possession of the flat.  As per terms and conditions of MOU, sale agreement and construction agreement Opposite Party No.1 shall handover the physical possession of the flat within 20 months, in case any delay grace period extend upto 3 months.  But the Opposite Party No.1 failed to handover the physical possession of the flat within specified time.  Hence, Complainant decided to cancel the flat and approached Opposite Party No.1’s company.  But the Opposite Party No.1 assured that they will give possession of the said flat within December 2016.  But now Complainant came to know that Mr.Mahesh i.e., Opposite Party No.2 registered the said flat on 03.03.2015. The Opposite Party No.1 sold the said flat to Opposite Party No.2   The Opposite Party No.1 sold the said flat without knowledge of the Complainant.  Due to this, the Complainant sustained mental agony and financial loss.  The evidence of Complainant remains unchallenged.  Therefore, from the evidence available on record, it clearly goes to show that the Opposite Party no.1 has neither handover the physical possession of flat nor refunded the advance amount infavour of Complainant.  If at all Opposite Party No.1 has deliver the physical possession of the flat or refund the advance amount as per the terms and conditions of MOU and sale agreement, construction agreement, the Opposite Party No.1 ought to have produced relevant evidence.  But there is no such evidence.  Therefore, it is proper to accept the contention of the Complainant that the Opposite Party No.1 neither handover the physical possession of flat nor refund the advance amount infavour of the Complainant.  The Complainant issued legal notice through his counsel on 15.04.2017.  But the Opposite Party No.1 neither replied the legal notice nor fulfill the demand of the Complainant.  There is no specific allegations made against Opposite Party No.2.  Since the Opposite Party No.2 is being the one of the customer of Opposite Party No.1.  The Opposite Party No.2 is made as formal party.  Hence, the Complaint against Opposite Party no.2 is dismissed.    Inspite of repeated request the Opposite Party No.1 never bothered to fulfill the demand of the Complainant.  To disbelieve the version of Complainant nothing was on record.  Thereby, this clearly shows that there is deficiency in service on the part of the Opposite Party No.1. Hence, this point is held in affirmative. 

 8. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint against Opposite Party No.2 is dismissed.

The complaint is partly allowed holding that there is deficiency of service on the part of the Opposite Party No.1.

The Opposite Party No.1 is directed to refund a sum of Rs.13,71,375/- along with interest at 10% p.a., from the date of payment till the date of realization. 

The Opposite Party No.1 is further directed to pay Rs.5,000/- as cost of this litigation to the Complainant.

The Opposite Party No.1 is directed to pay aforesaid amount within 45 days from the date of this order.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 31^st day of May 2018)

        MEMBER                                             PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Anurag Singh Kushwah, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Memorandum of Understanding dt.22.04.2014.
2. Agreement of Sale dt.05.12.2014.
3. Construction Agreement dt.05.12.2014.
4. Encumbrance dt.17.12.2016.
5. Receipts in 11 No’s which has paid amount to Opposite Party.
6. Legal Notice dt.15.04.2017.
7. RPAD receipt 3 in No’s
8. Duly served acknowledgement dt.22.04.2017.

Witness examined on behalf of the Opposite Parties:

                             Nil

List of documents filed by the Respondent:

                             Nil

MEMBER                                                                  PRESIDENT