Date of filing:14.06.2022

                                                                                                Date of Disposal:21.12.2023

BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED: 21^st DAY OF DECEMBER 2023

PRESENT

Mr. K B SANGANNANAVAR: JUDICIAL MEMBER

Mrs.M.DIVYASHREE : LADY MEMBER

APPEAL NO. 1221/2022

1. Fathima Nazriuddin Bagawan,

Aged about 53 years,

Occ: Household,

R/at Behind Hans Hotel,

Vidyanagar, Hubballi.

2. Rahees Ahmad,

Aged about 37 years,

Occ: Business,

R/o Behind Hans Hotel,

Vidyanagar,

Hubballi

(By Mr. J Prahsnath, Adv. for appellant)

-Versus-

1. Rajeshwari,

W/o Jaganath Ratan,

Aged about 53 years,

Occ:Household

R/at Umachagi Chal,

Daliban Peth,

Hubballi

Now Residing at No.A4G,

Niketan Tranquil Terrace,

Dollors Colony,

Gokul Road, Hubballi.

(By M/s Lawnex Associates, Adv. for R1)

2. M/s Golden Homes Shelters Pvt. Ltd.,

No.18, Bagwan Complex,

Karwar Road, Hubballi,

Rep. by its Director,

Sanjay M Parikh.

3. Sajay M Parikh,

Major in Age,

Occ: Business,

Director

No.18, Bagwan Complex,

Karwar Road,

Hubballi     …….. Respondents

ORDER

BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER:

1. This is an appeal filed by OP Nos.3 and 4 in CC/75/2021 on the file of District Consumer Disputes Redressal Commission, Dharwad, aggrieved by the order dated 28.10.2021. (The parties to this appeal will be referred as to their rank assigned to them by the Commission below).

2. The Commission examined grounds of appeal, impugned order, appeal papers and heard learned counsels.

3. The Brief facts of the case of the complainant before the Commission below would be:

OP1 is a Private Limited Company under the name and style of M/s Golden Homes Shelters Private Limited, Represented by Mr.Sanjay M Parikh who is none other its Director.Mr.Sanjay M Parikh is also arrayed as OP2 while OP Nos.3 and 4 are the land owners of the property bearing CTS No.4/B measuring about 8609.42 sq. mtrs., equivalent to 01 Acre 35 Guntas. 12 1/9 yards in CTS Ward No.5 covered under Survey No.10 and 11 situated in Karwar road, Hubballi.This property is described as Schedule-A while Schedule-B is residential unit bearing no.702 in block-H, situated on the 07^th Floor and measuring 1000 sq.ft., of super built up area.The complainant had purchased Schedule-B property for the total sale consideration of Rs.18,00,000/-.The complainant has raised a consumer complaint with a prayer to give direction to OP Nos.1 to 4 namely builder and land owners to execute the registered Sale Deed in her favour and to compensate at Rs.5,00,000/- for harassment and mental agony along with cost.The OP Nos.1 to 4 despite service of notice of the complaint failed to participate in the proceedings are declared exparte. In such circumstances, the Commission held an enquiry by receiving affidavit evidence along with evidence of complainant and Ex.C1 to C18, thereby recorded findings, OPs rendered deficiency in service and held are jointly and severally liable to execute the Sale Deed in respect of unit No.702, seventh floor in Block-H of Schedule-B property as shown in Agreement of Sale and they are jointly and severally liable to pay Rs.10,000/- as compensation and Rs.8,000/- towards cost.It is this order being assailed in this appeal by OP Nos.3 and 4 contending Commission below failed to appreciate materials on record and wrongly held OP Nos.3 and 4 land owners are also liable to execute the registered Sale Deed in respect of unit No.702 situated in 07^th Floor of Block-H described in Schedule-B which was sold by OP Nos.1 and 2. It is therefore, it would be appropriate to re-appreciate the materials on record and see whether grounds of appeal set out by OP Nos.3 and 4 do call for an interference in the impugned order in so far as OP Nos.3 and 4 are concerned.

4. Complainant placed Ex.C1 – is the Original Agreement of Sale dated 21.10.2010, while Ex.C2 is Letter of Provisional Allotment for residential unit dated 21.10.2010.  Ex.C3 to C16 are Payment receipts, while Ex.C17, 18, 18(a) to 18(d) are Copy of Legal Notice dated 19.06.2021 and un-served postal covers. All these documents   were placed before the Commission below during the course of enquiry have to be accepted as they are, since OP Nos.1 to 4 despite service of notice failed to appear before the Commission below to defend  their case either by filing version to the case of complainant or otherwise placing their own documents to rebut the documents produced by complainant.  However, OP Nos.3 and 4 to substantiate their contentions being land owners that they have not received Rs.18,00,000/- from complainant under Ex.C1 Agreement of Sale dated 21.10.2010, submits it was entered between complainant and OP Nos.1 and 2 to which they are not the parties. In this regard it is their submission as to  why Rs.18,00,000/- was not received by OP Nos.3 and 4 and as to  why Ex.C1 was executed by OP Nos.1 and 2 could be found from Joint Development Agreement (JDA) dated 30.06.2008 entered between OP Nos.3 and 4 and OP Nos.1 and 2. It is to be noted herein this JDA is a registered document, wherein could see owners and developers entered into JDA and it is binding inter-se in respect of Schedule-A property.  The next document would be the GPA dated 30.06.2008 is again  a registered document executed by OP Nos.3 and 4 who are none other wife and husband as Principal executed GPA in favour of OP Nos.1 and 2, their developer,  is again binding inter-se.  Thus these 02 documents in our view would play a vital importance to find some force in the contentions of the appellant had they been participated in the proceedings before the commission below and set up a defence on the basis of the vital documents findings recorded against them would have been different. We have to take notice of the fact from the enquiry papers, the land owners and the developers  have entered into JDA to share  77% of undivided share in the Schedule-B property by OP Nos.1 and 2 while 23% share by OP Nos.3 and 4.  In fact under Memorandum of Understanding (MOU) on 07.07.2019 OP Nos.3 and 4 as first party and OP Nos.1 and 2 as second party shared the property, accordingly, under registered MOU 48 flats shared in favour of OP Nos.3 and 4 as described as Schedule-B property while 82 flats in favour of OP Nos.1 and 2 to developers as described under Schedule-C.  Thus such share of flats built on land belonging to OP Nos.3 and 4 as found from these documents and subsequently on 05.11.2015, under registered Deed of Declaration the land owners and developers have shared Schedule-B and C flat units built on land. In such circumstances, in our view, the Commission below could have appreciated Ex.C1 to Ex.C16 and held OP Nos.1 to 4 are liable to execute the registered Sale Deed in respect of Unit No.702 in Block-H of Schedule-B property shown in Agreement of Sale and could have awarded some amount of compensation, but facts remained in this  appeal OP Nos.3 and 4 have placed copies of registered documents as stated above and are to be considered to decide a consumer complaint under consumer laws  instead to remand back the matter it would be appropriate to decide the complaint by this Commission itself  on the basis of the documents placed on record by the appellant to avoid further delay and to meet ends of justice to both parties in order to reach the dispute to its finality. We have to take judicial notice of the fact that the procedure to be followed by the consumer commission being summary by doing so no harm or prejudice would be caused to any of the parties.  At the cost of repeat ion as we could find under Ex.C1 Agreement of Sale dated 21.10.2010 complainant and OP Nos.1 and 2 entered into an Agreement of Sale and purchased unit No.702 in Block-H situated on the 07^th Floor of Schedule-B property was handed over in favour of complainant on 11.01.2018 under Possession Letter of Managing Director, who is none other OP Nos.1 and 2. Further in considering the facts found from MOU and Deed of Declaration, since property sold under Ex.C1 in favour of complainant was allotted to the share of OP Nos.1 and 2, who held as many as 82 flats including 06 units was shared, while 48 flats where shared by OP Nos.3 and 4.  In such circumstances and in such conclusion in our view impugned order required to be modified. Accordingly, proceed to allow the appeal in part.  Consequently, set aside the impugned order dated 28.10.2021 passed by District Consumer Disputes Redressal Commission, Dharwad in so far as against OP Nos.3 and 4/appellants are concerned in the following terms:

The OP Nos.1 and 2 are directed to execute the registered Sale Deed in favour of complainant in respect of Unit No.702, situated on 07^th Floor in Block-H described as Schedule-B property under Agreement of Sale dated 21.10.2010 and they are directed to pay Rs.10,000/- as compensation for rendering deficiency of service and Rs.8,000/- towards cost of litigation within 60 days from the date of receipt of the order.

The complaint as against OP Nos.3 and 4/appellanats stands dismissed with no order as to costs, however directed them to pay Rs. 5000/- to the Consumer Welfare Fund of State Commission since they failed to participate in the proceedings before the commission below.

5. The Amount if any in deposit is directed to be transfer to Commission below for needful.

6. Send a copy of this Order to the District Commission and parties to the appeal.

        Lady Member                                 Judicial Member               

*GGH*