BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 15^th DAY OF OCTOBER 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) praying for an order directing the OPs to return the advance amount of Rs.4,00,000/- paid by her together with damages of Rs.4,00,000/- for deficiency in service together with costs.

2. The brief averments made in the complaint are as under:

The OPs-1 to 7 being the absolute owners of immovable property bearing B.B.M.P Katha No.20, out of survey No.79/2, measuring 8 guntas of Horamavu Agara village, K.R Puram Hobli, Bangalore South Taluk, entered into an Joint Development Agreement with OP-8 under a Joint Declaration Agreement dated 31.03.2011.  The OP offered to sell Flat No.404, 4^th Floor in the building called as “Shree Manjunatha Residency” developed by OPs with a super built up area measuring 1008 square feet together with 252.24 square feet undivided interest in the land entered into an agreement of sale under an undated agreement in the month of December 2013 for a sale consideration of Rs.26,00,000/- and received Rs.4,00,000/- as advance.  That the OPs agreed to supply all the relevant documents pertaining to the said property including title deeds, conversion letter, katha extract, katha certificate issued by BBMP latest tax paid receipts, approved sanctioned plan with permission to construct the 4^th Floor for the purpose of availing loan from the Banks.  The OP-8 as a power of attorney of the remained OPs furnished the copies of certain documents with the complaint which on verification found to be insufficient and incomplete with regard to Flat No.404, situated at in the IV floor, Banks and other financial institutions refused to advance any loan to the complainant.  As per the documents furnished by the OPs, the IV floor of the said residential complex is an unauthorized structure and there is no sanctioned plan and licence issued by the BBMP for putting up the IV Floor.

The complainant with a great desire for her own apartment agreed to purchase Flat No.404 in IV Floor in the residential complex being put up by the OPs and all her dreams of possessing her apartment have been dashed when she learnt that Flat No.404 of the IV Floor is an unauthorized structure.  Therefore, the complainant having lost interest in purchasing the apartment terminated the sale agreement and called upon the OP by way of legal notice dated 26.06.2014 to refund her the advance amount of Rs.4,00,000/- together with damages of Rs.4,00,000/-.  The OPs sent untenable reply to the said notice.  The OPs have committed deficiency in service and cheated the complainant offering to sell an unauthorized constructed Flat.

For the aforesaid reasons, the complainant prays for an order directing the OPs to return her the advance amount of Rs.4,00,000/- paid by her together with damages of Rs.4,00,000/- for the deficiency in service on their part and for mental agony, harassment suffered by her together with costs.

3. The OPs.1 to 7 despite service of notice failed to appear and were placed ex-parte.  The OP-8 though initially did not appear but later appeared through his advocate and filed his version denying the entire allegations made by the complainant in the complaint and further contended in brief, as under:

That the complainant had approached the OP-8 and represented that she is interested to purchase Flat No.404 in the IV Floor of apartment building known as “Shree Manjunatha Residency” developed by OP-8.  That the OP-8 furnished all the necessary documents pertaining to the said property to the complainant and after verifying the same the complainant entered into an agreement of sale in respect of Flat No.404 for a sale consideration of Rs.26,00,000/-.  The complainant represented the OP-8 that she would pay the entire sale consideration in cash and would not go for loan for purchase of the said Flat.  That the OP-8 completed the construction of Flat No.404 as per the agreement in the month of February 2014 without any delay and called upon the complainant to get the sale deed registered in her name by paying the balance consideration, however the complainant has been protracting the sale transaction by giving absurd reasons.  Most of the Flats in the said building have been sold and the purchasers have obtained loans from the reputed Banks and financial institutions on the strength of the documents furnished by the OPs.  That the OP executed the sale deed in favour of all the remaining purchasers and they are living happily there.  That the OP-8 was shocked and surprised to receive a legal notice from the complainant making false allegations.  The complainant never represented that she is raising loans from the Banks for purchasing the said Flat.  All the while she was represented that she would pay the entire sale consideration by way of cash.

That there is no any basis for the allegations of the complainant that the IV floor constructed by the OPs is an unauthorized construction.  There is no any deficiency of service on the part of the OPs.  The complainant herself has failed to perform her part of contract.  The OPs were all the while ready and willing to execute the sale deed in respect of the said apartment in terms of the agreement of the sale.  The complainant herself is at fault in not getting the sale deed registered in her name.  The OP-8 has suffered huge loss due to the failure of the complainant in getting the sale deed registered in her favour.  That when the complainant failed to reply to the notice sent by the OP, calling upon her to get the sale deed registered by paying balance amount as public notice was issued in newspapers Hindu and Udayavani dated 16.08.2014.  The complainant also failed to respond to the said public notice.  There is no any merit in the allegations made by the complainant.

For the aforesaid reasons, the OP-8 prays for dismissal of the complaint with a direction to compensate him the loss suffered.          

4. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

5. The complainant to substantiate the allegations made in the complaint filed her affidavit in lieu of oral evidence.  Similarly the OP-8 has also filed his affidavit evidence reiterating the averments made in the version.  Both the parties have submitted their written arguments.

6. Perused the allegations made in the complaint, averments made in the version, affidavit evidence submitted by both the parties and various documents relied upon by both the parties and other materials placed on record.

7. Our answer to the above said points are as under:

REASONS

8. Admittedly the OP-1 to 7 are the absolute owners of the property in question and they entered into a Joint Development Agreement with OP-8 for putting up the residential complex in the said property.  It is also not in dispute that the OP-8 is a proprietor of M/s. L.N.S Developers by virtue of the Joint Declaration Agreement dated 31.03.2011 and also power of attorney holder of the remaining OPs.  It is also not dispute that the OP-8 offered to sell Flat No.404 in the IV Floor of ‘Shree Manjunatha Residency’ being put up in the said property under agreement of sale in the month of December 2013 and for total consideration of Rs.26,00,000/- and received an advance amount of Rs.4,00,000/-.  The copy of the agreement of sale produced by the complainant also confirms the transaction between the complainant and the OP in respect of Flat No.404 and payment of Rs.4,00,000/- as advance.

9. The complainant who wanted to raise the loan for purchase of the said Flat approached some Nationalized Banks with the copies of the relevant documents furnished by OP-8 but the Banks refused to advance any loan on the ground that the IV floor is an unauthorized construction.  The complainant alleges that the OPs have no sanction to put up IV Floor in the said residential complex.  Therefore, Flat No.404 in the IV Floor is also an unauthorized construction.  She further alleges that the OPs cheated her by making her to believe that they have necessary sanction and permission from the competent authority to put up IV floor in the said residential complex.  The OP-8 in their version though denied the allegations made by the complainant but failed to contend specifically that they have necessary sanction from the BBMP to put up IV floor in the said ‘Shree Manjunatha Residency’.  Now it has to be seen as to whether the IV floor of the said residential complex put up by the OPs is an authorized construction or not.

10. The OP-8 has produced the copies of certain documents which includes the copy of the sanction letter dated 22.12.2011 issued by the BBMP and the copy of the legal opinion furnished by Sri.G.N Harish, Advocate in respect of the said residential complex.  The perusal of the sanction letter dated 22.12.2011 produced by the OP-8 discloses that the sanction has been accorded to the OPs to put Stilt + ground floor + 1^st floor + 2^nd floor + 3^rd floor and terrace floor consisting of 24 units.  Thus from the copy of the sanction letter produced by OP-8 itself makes it abundantly clear that the OPs especially OP-8 has not obtained the necessary permission/sanction for putting up 4^th floor in the said apartment building.

11. The OP-8 himself has produced the copy of the legal opinion furnished by Sri.G.N Harish, Advocate dated 22.10.2012 to the Area Manager, LIC Housing Finance Ltd., Indiranagar Branch, CMH Road, Bangalore.  In the said legal opinion, the learned advocate had referred to all the relevant documents pertaining to the property in question as furnished by the OPs including the sanction plan etc.  The relevant portion of the said opinion which is relevant for the purpose of this case is as under:

Mr.Munishamappa and others are the full and absolute owner/s of the land bearing Sy. No.79/2 of Horamavu Agrara Village, K.R Puram, Bangalore measuring 0-38 guntas.  Mr. Munishamappa having acquired with the intention of developing the same got converted the agricultural land measuring 0-08 guntas out of (0-38 guntas) into non-agricultural/residential purpose and entered into Joint Development Agreement and General Power of Attorney dated 31.03.2011 with M/s. LNS Developers to put up a construction of residential apartment known as “Sri Manjunatha Residency” and got sanctioned the construction plan from the office of the Assistant Director of Town Planning, BBMP, Bangalore vide L.P No.206/2011-12 dated 22/12/2011 comprising of Stilt, Ground, First, Second, Third and Terrace Floors consisting of 24 units/flats.  Further both owner/s/developer/s have entered into supplemental agreed in allotting their respective shares mentioned in supplemental agreement………..

12. The legal opinion extracted above also makes it abundantly clear that the OPs have obtained necessary sanction for the construction of the stilt, ground, 1^st, 2^nd, 3^rd and terrace floors only.  The OPs have not obtained the necessary sanctions for putting up of IV floor in the said residential complex as per their own documents produced before the Court.  Thus, it is crystal clear that the IV floor including the Flat No.404 put up by the OPs is an undoubtedly unauthorized construction.

13. The documents produced by the OP-8, referred to above itself demolishes the defence set up by the OP-8.  It is evident that the OPs have offered to sell Flat No.404 to the complainant concealing the fact that Flat No.404 in the IV floor of the said residential complex for which they have no necessary sanction from the BBMP.  Thus the OPs have offered to sell a Flat to the complainant which is an unauthorized structure.  In view of the fact that the IV floor itself is unauthorized structure, it is quite but natural that the Nationalized Banks and other financial institutions have refused to advance loan to complainant for purchase of such an unauthorized constructed Flat.  In fact the conduct of OPs in offering to sell an unauthorized constructed Flat to the complainant amounts to cheating punishable U/s.420 of Indian Penal Code also.  The OPs by making the complainant to believe that they have necessary sanction to put up 4^th floor in the said residential complex have lured her to enter into an agreement of sale and made her to part with a huge sum of Rs.4,00,000/-.  Thus the conduct of complainant apart from being criminal act also amounts to deficiency in service on their part.  Therefore, we are of the opinion that the OPs are liable to refund the advance amount of Rs.4,00,000/- received by them under the agreement of sale executed in favour of the complainant together with interest and adequate compensation.

14. Looking to the facts and circumstances of the case and brazen criminal act committed by the OPs, they have to be directed to pay a compensation of Rs.2,00,000/- apart from interest @ 18% p.a on Rs.4,00,000/- received as advance together with Rs.5,000/- towards litigation costs.  The order could not be passed within the stipulated time due to heavy pendency.

15. In the result, we proceed to pass the following:       

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs are jointly and severally directed to refund the advance amount of Rs.4,00,000/- to the complainant together with interest @ 18% p.a from the date of receipt till the date of realization.  Further the OPs are jointly and severally directed to pay compensation of Rs.2,00,000/- to the complainant for the hardship, inconvenience and mental agony undergone by her and for deficiency in service on their part, together with litigation cost of Rs.5,000/-.

The OPs shall comply the order passed by this Forum within six weeks from today.

          Send the copy of the order to both the parties free of costs.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 15^th day of October 2015)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainant dated 13.02.2015.

1. Mrs. Bernardiane Bilpana P

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party-8 dated 15.05.2015.

1. Sri.N.V Narayana  

      Document produced by the Opposite party-8:

MEMBER                            MEMBER                     PRESIDENT

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