CC No.1409.2016

Filed on 18.10.2015

Disposed on.30.11.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 30^th DAY OF NOVEMBER 2017

CONSUMER COMPLAINT NO.1409/2016

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

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

                     MEMBER

                                         V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 18.10.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to execute register Sale deed in favour of the Complainant by receiving the balance sale consideration in terms of agreement of sale deed dt.05.02.2016 alternatively, to refund the earnest money with interest at 12% p.a. to pay compensation of Rs.2,00,000/- and other reliefs.
2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Opposite Party engaged in the business of acquiring lands in and around Bangalore for the purpose of forming residential layout consisting of sites and there upon to sell them to public. The Opposite Party Directors offered to sell sites in supra project launched in the name and style, in the month of January 2015.  The Complainant opted to purchased site bearing No.417 formed in Survey No.50, 51, 52, 56, 57, 58, 59, 60 & 62 situated at Darapura Village, Kasaba Hobli, Ramanagara Taluk measuring East to West 30 Ft and North to South 50 Ft for total sale consideration of Rs.15,50,000/-. The Complainant entire sale consideration of Rs.15,50,000/- by way of cash on 06.02.2015. In pursuance of the receipt of above mentioned sale consideration as per the procedure formulated by the Opposite Party, the Opposite Party executed an instrument styled as Preferential Allotment Agreement, dt.06.02.2015 in favour of Complainant, agreeing to sell the property to Complainant.  The Complainant was waiting for further instructions from Opposite Party regarding execution of registered sale deed in her favour in respect of property mention by receiving balance sale consideration and further as nothing happened from Opposite Party side after receiving the advance sale consideration except execution of preferential allotment for nearly 6 months, as Opposite Party utterly failed to execute registered sale deed despite several oral demands, Complainant having perceived inordinate delayed on Opposite Party was constrained to pay several personal visits to Opposite Party during which time Sri.K.R.Raja, the erstwhile director, Smt.Beena and Sri.Prabhakar both Manages of the Company informed Complainant that as certain works were still in progress and further they went on assuring to fully develop the area and then execute the sale deed at the earlies and even Complainant have interest with supra persons over phone, during all her personal visits and phone call Opposite Parties have been giving false assurance and kept on postponing execution of sale deed.   In the Month of November 2015 Opposite Party informed Complainant that since there is an escalation in the development cost, Opposite Party requested the Complainant for an additional sum of Rs.1,50,000/- towards the further sale consideration, which the Complainant agreed for and in furtherance of the same, the Opposite Party executed a fresh agreement of sale, dt.05.02.2016, thus fixing the total sale consideration at Rs.17,00,000/- and treating the sum of Rs.15,50,000/- paid by the Complainant as advance, agreeing to carry out the remaining development works and accept the balance sale consideration of Rs.1,50,000/- at the time of registration of sale deed.  Even so under the fresh agreement Opposite Party had assured that the Complainant that conveyance of the site would be done within reasonable time not exceeding 3 months form the date of said agreement.  Whenever Complainant had approached Opposite Party with the balance amount as agreed Opposite Party had refused to receive the same in one pretext or other and further Opposite Party had requested Complainant to come forward with balance sale consideration only when Opposite Party come forward to execute the sale deed in respect of said site.   In spite of Complainant’s persistence Opposite Party went on postponing receiving the balance sale consideration and also execution of the sale deed and it was learnt that one of the Director Sri.K.R.Raja who had entered in to the above said agreement on behalf of Opposite Party had committed suicide on 12.05.2016.  Subsequently, Complainant approached Sri.K.R.Kannan, M.D of M/s K.R.P. Properties Private Limited, requesting to take constructive steps for an execution of registered in her favour.  However, Opposite Party reassured to fulfill the promise under the agreement of sale dt.05.02.2016.  But, till date Opposite Party have not come forward to convey the site in favour of Complainant, all efforts made by the Complainant to get sale deed executed in her favour are in vain.  The Complainant specifically stats that, she was and is always ready and willing to pay the balance sale consideration of Rs.1,50,000/-to the Opposite Party and get the sale deed registered in her name at her cost, but the same is delayed solely due to Opposite Party delaying tactics.   The Complainant issued Legal Notice dt.10.08.2016 calling up the Opposite Party to redress the grievance of the Complainant in the manner as has been demanded in the said legal notice.  The said notice was duly served upon the Opposite Party on 10.08.2016.  But despite the service of said legal notice of Complainant, the Opposite Party has neither issued any reply to the said notice nor has complied with the demand.     Hence, this complaint.

3. In response to the notice, the Opposite Party put their appearance through their Counsel and filed their version.  In the version pleaded that this Forum has no jurisdiction to entertain the complaint.  The complaint is not at all maintainable since the agreement entered is undervalued and proper stamp duty is not paid on the agreement and the Director Sri.K.R.Raja has no power to enter into any agreement on behalf of the Company and the agreement between them is a private transaction and the executant of the agreement is no more.   The Sale agreement runs as “any disputes arising out of this agreement shall be referred to arbitration to be conducted by a sole arbitrator mutually agreed to by the parties and in the absence of agreement, by the High Court of Karnataka under the arbitration act 1996.  The Venue of Arbitration shall be Bangalore and subject to this clause the Courts at Bangalore alone will have jurisdiction in and with respect to this agreement”  when such being the clauses laid down in the sale agreement, this Forum has no jurisdiction to entertain the complaint at all and on this ground alone the Complainant may be dismissed.  Time is essence of the contract, whereas in the agreement there is no time fixed to conclude the sale transaction.  Hence, the complaint is premature and on this ground alone it may be dismissed.  The relationship of trader and consumer does not exist in the present complaint as narrated in the Consumer Protection Act, 1986.  Hence the complaint is not maintainable. The Complainant has got any grievances, Complainant has to file a suit for specific performance of the agreement or before the sole arbitrator as per the Clause 4 of the Sale Agreement for his grievances, but not before this Forum.  The complaint is filed by the Complainant has no legal sanctity and it is far from truth and ground reality and on this ground alone the complaint filed may be dismissed with costs.   Hence prays to dismiss the complaint.
4. The Complainant, Smt.Sumathi Mani filed her affidavit by way of evidence and closed her side.  On behalf of the Opposite Party, the affidavit of one Sri.K.R.Kannan has been filed.   Heard the arguments of both parties.

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:- It is the case of the Complainant, during the month of January 2015 the Complainant being induced by the Opposite Party opted to purchase site bearing No.417, measuring East to West 30 Ft and North to South 50 Ft for total sale consideration of Rs.15,50,000/-.  Since Opposite Party wherein dire need of funds for their business they requested the Complainant to pay the entire sale consideration in advance. The Complainant believing in the representation made by the Opposite Parties paid the entire sale consideration of Rs.15,50,000/- by way of cash on 06.02.2015. In pursuance of the receipt of above mentioned sale consideration as per the procedure formulated by the Opposite Parties, the Opposite Party executed an instrument styled as Preferential Allotment Agreement, dt.06.02.2015 in favour of Complainant, agreeing to sell the site bearing No.417.  To substantiate this fact, the Complainant in his sworn testimony, he has reiterated the same and produced Preferential Allotment Agreement.  As looking into this document, it is dt.06.02.2015, in this Preferential Allotment the Opposite Party agreed to sell site No.417 in “The Heritage” residential Layout for a total consideration of Rs.15,50,000/- and on that day they received full consideration amount of Rs.15,50,000/- and also produced the Agreement of Sale it is dt.05.02.2016.  The Opposite Party agreed to sell the site bearing No.417 in residential Layout “The Heritage” for a total consideration of Rs.17,00,000/- and also the Opposite Parties received advance of Rs.15,50,000/- and the Complainant agreed to pay the balance amount of Rs.1,50,000/- and also bear the registration expenses and maintenance expense.  This evidence of the Complainant has not been denied or disputed by the Opposite Party.  Therefore, it is proper to accept the contention of the Complainant that the Opposite Party agreed to sell the site No.417 in the Heritage Residential Layout formed by them for total consideration of Rs.17,50,000/- and they received full consideration amount of Rs.15,50,000/- on 06.02.2015 after one year the Opposite Party agreed to sell the site No.417 in the Heritage Residential Layout for a total consideration of Rs.17,50,000/- the Complainant has to pay the balance amount of Rs.1,50,000/-. 

8. It is further case of the Complainant, in the Month of November 2015 Opposite Party informed Complainant that since there is an escalation in the development cost, Opposite Party requested the Complainant for an additional sum of Rs.1,50,000/- towards the further sale consideration, which the Complainant agreed for and in furtherance of the same, the Opposite Party executed a fresh agreement of sale, dt.05.02.2016, thus the total sale consideration at Rs.17,00,000/- and treating the sum of Rs.15,50,000/- paid by the Complainant as advance, agreeing to carry out the remaining development works and accept the balance sale consideration of Rs.1,50,000/- at the time of registration of sale deed.   Even under the fresh agreement Opposite Party had assured that the Complainant that conveyance of the site would be done within reasonable time not exceeding 3 months form the date of said agreement.  Whenever Complainant had approached Opposite Party with the balance amount as agreed Opposite Party had refused to receive the same in one pretext or other and further Opposite Party had requested Complainant to come forward with balance sale consideration only when Opposite Party come forward to execute the sale deed in respect of said site.   In spite of Complainant’s persistence Opposite Party went on postponing receiving the balance sale consideration and also execution of the sale deed and it was learnt that one of the Director Sri.K.R.Raja who had entered into the above said agreement on behalf of Opposite Party had committed suicide on 12.05.2016. Subsequently, the Complainant approached Sri.K.R.Kannan, M.D of M/s K.R.P. Properties Private Limited, requesting to take constructive steps for an execution of registered in her favour.  However, Opposite Party reassured to fulfill the promise under the agreement of sale dt.05.02.2016.  But, till date Opposite Party have not come forward to convey the site in favour of Complainant.  Being aggrieve by the attitude of Opposite Party, the Complainant issued Legal Notice on 08.08.2016 through RPAD calling upon the Opposite Party to address the grievance of the Complainant in the manner as has been demanded in the said legal Notice.    The said Notice was duly served upon the Opposite Party on 10.08.2016.  But despite the service of said Legal Notice of Complainant, the Opposite Party has neither issued any reply to the said notice nor has complied with the demand.   To substantiate this fact, the Complainant in his sworn testimony, he has reiterated the same and produced the agreement of sale.  As looking into this Agreement of Sale, it is dt.05.02.2016 clearly reveals that by executing the agreement of sale the Opposite Party agreed to sell the site No.417 for a total consideration of Rs.17,00,000/- and also they accepted sum of Rs.15,50,000/- which was paid by the Complainant on 06.02.2015 at the time of executing the Provisional Allotment as advance and the Complainant agreed to pay the balance amount of Rs.1,50,000/-.  The Opposite Party have agreed to executing the absolute sale deed within 3 months from the date of agreement, but the Opposite Party fails to execute the absolute sale deed in favour of the Complainant by receiving balance consideration of Rs.1,50,000/-.  In spite of request and demand made by the Complainant for that reason the Complainant issued legal Notice dt.08.08.2016 calling upon the Opposite Party to execute the sale deed by receiving balance consideration of Rs.1,50,000/-.  Even though this Legal Notice was served on the Opposite Party, the Opposite Party fails to comply with the demand notice made by the Complainant and fails to issue any reply.  To disbelieve the evidence of the Complainant, there is no contra evidence, therefore, it is proper to accept the contention of the Complainant that the Opposite Party agreed to sell the site No.417 in the Heritage Residential Layout formed by them for total consideration of Rs.17,50,000/- and they have received full consideration amount of Rs.15,50,000/- on 06.02.2015 after one year the Opposite Party agreed to sell the site No.417 in the Heritage Residential Layout for a total consideration of Rs.17,50,000/- the Complainant has to pay the balance amount of Rs.1,50,000/-. 
9. The defence of the Opposite Party is that the Director Sri.K.R.Raja had no power to enter into any agreement on behalf of the Company and the agreement between them is a private transaction and the executant of the agreement is no more.  But in support of this defence, the Opposite Party have not placed any evidence, except the interested version of Sri.K.R.Kannan, Managing Director of Opposite Party.  No doubt the agreement of sale is executed by K.R.Raju, director of M/s K.R.P. Properties Private Limited, but Sri.K.R.Raju has not executed the sale deed as his individual capacity.  On the other hand, he has execute this agreement as a Director of Opposite Party i.e., M/s K.R.P.Properties Private Limited.  As stated earlier, there is no evidence to believe that the agreement executed by Sri.K.R.Raju is a Private transaction.  Therefore, it is not proper to accept the contention taken by the Opposite Party.
10. The other defence of the Opposite Party is that as per the Sale agreement runs as “any disputes arising out of this agreement shall be referred to arbitration to be conducted by a sole arbitrator mutually agreed to by the parties and in the absence of agreement, by the High Court of Karnataka under the arbitration act 1996.  The Venue of Arbitration shall be Bangalore and subject to this clause the Courts at Bangalore alone will have jurisdiction in and with respect to this agreement” when such being the clauses laid down in the sale agreement, this Forum has no jurisdiction to entertain the complaint.  No doubt as seen from the agreement of sale executed by the Opposite Party.  As per the Clause 4 of the Sale Agreement that any dispute arising out of this agreement shall be referred to arbitration.  But that it is not proper to sell this Forum has no jurisdiction.  Since till the date of filing of this complaint, there was no arbitration proceedings between the parties.  Thereby, as per Section 3 of the Act it is very clear that this Forum has got Jurisdiction to entertain the complaint. 
11. From the evidence placed by the Complainant, it is crystal clear that even though the Opposite Party had received huge sum of Rs.15,50,000/- from the Complainant but they fails to execute the sale deed in respect of the site No.417 of Heritage Layout formed by them within 3 months and after repeated requests and demands till this date they have not executed the sale deed, thereby, it amounts to adopting unfair trade practice by the Opposite Party as well as the deficiency of service.

12. The Opposite Party had making huge amount received from the Complainant for their benefits, thereby it causes loss to the Complainant.  Hence, the Complainant is entitled for compensation for causing loss and mental agony.  Hence, this point is held in the Affirmative. 

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

ORDER

The Complaint is allowed holding that there is deficiency of service by the Opposite Party.

The Opposite Party is directed to refund the advance amount of Rs.15,50,000/-.

The Opposite Party is further directed to pay compensation of Rs.3,00,000/- for causing mental agony.

The Opposite Party is also liable to pay a sum of Rs.5,000/- as cost. 

The Opposite Party is directed to pay the aforesaid amount within 45 days from the date of receipt of this Order.   Failing which the aforesaid amount will carry interest at 18% p.a. from the date of order, till the date of realization. 

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, 30^th day of November 2017)

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Smt.Sumathi Mani, who being the Complainant has filed her affidavit.

 List of documents filed by the Complainant:

1. Preferential Allotment Agreement dt.06.02.2015.
2. Agreement of Sale dt.05.02.2016.
3. Legal Notice dt.08.08.2016.
4. Postal Receipts.
5. Postal Acknowledgement.  
6. Brochure, Pertaining to “The Heritage”.
7. Company Maser Data.
8. Broachers and Layout Plan.

Witness examined on behalf of the Opposite Parties:

1. Sri.K.R.Kannan, Managing Director of the Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

1. Schedule of charges.

MEMBER                                                     PRESIDENT