BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 21^st DAY OF JULY, 2022

CONSUMER COMPLAINT NOs.199/2019 C/w 200/2019

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

COMPLAINT NO.199/2019

S/o P.G.Rajagopal Setty,

Aged about 65 Years,

No.11/1, Rajathagiri,

Ranga Rao Road,

(Represented by Sri.V.B.Shivakumar, Adv).

COMPLAINT NO.200/2019

W/o Late Sujay Kumar T.K,

Aged about 35 Years,

Residing at No.1096,

BSK, 1^st Stage,

Bengaluru-560 050.……COMPLAINANT

(Represented by Sri.V.B.Shivakumar, Adv).

V/s

S/o Late B.Manikyam,

Aged about 55 years,

R/at No.905/5,

Behind Ayyappa Temple,

Bengaluru-560015. ..…OPPOSITE PARTY IN

                                              CC.199/2019 AND 200/2019

  (Opposite party Rep by Sri.M.Mukesh., Adv)

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complaint in CC.No.199/2019 is filed under Section-12 of Consumer Protection Act-1986 seeking for a direction to the opposite party Builder/Developer to convey the absolute registered Sale deed in favour of the complainant by accepting the balance payment of Rs.1,00,000/- and for such other reliefs. 

2. The complaint in CC.200/2019 is filed under Section-12 of Consumer Protection Act-1986 seeking for a direction to the opposite party Builder/Developer to convey the absolute registered Sale deed in favour of the complainant by accepting the balance payment of Rs.2,00,000/- and deliver physical possession of the apartment premises and for such other reliefs. 

3.  It is not in dispute in both cases that the permission sought by the opposite party to file version came to be dismissed by the order dt.11.11.2019 and opposite party was permitted to participate in the proceedings. 

4. It is the case of the complainant in CC.199/2019 that the opposite party offered to convey ‘B’ schedule property put-up in ‘A’ schedule property for a consideration of Rs.16,00,000/- and the opposite party entered into a sale agreement dt.28.02.2016 and the same was registered on 22.08.2016 and consideration was paid through cheque of Rs.16,00,000/-.  Further even though the complainant had issued notice on 12.04.2018 to the opposite party to execute the registered sale deed, the opposite party did not comply the same.  Hence, the complaint came to be filed. 

5. It is the case of the complainant in CC.No.200/2019 that the opposite party offered to convey ‘B’ schedule property put-up in favour of the complainant for a consideration of Rs.17,00,000/-.  Further, the opposite party had entered into an agreement of sale on 22.08.2016 and the said sale agreement was registered by accepting the amount of Rs.5,00,000/- by way of cheque and it was agreed that the balance amount of Rs.12,00,000/- shall be paid on the date of the execution of sale deed.  Further the complainant had paid an amount of Rs.10,00,000/- and in total the complainant had paid Rs.15,00,000/- and there was balance of Rs.2,00,000/-.  Even though the notice was issued on 12.04.2018 to the opposite party to execute the sale deed, the opposite party did not come forward to execute the sale deed.  Hence, the complaint came to be filed. 

6. To prove the case, in CC.199/2019 the complainant (PW1) has filed affidavit in the form of his evidence in chief and had produced documents.  In CC.200/2019 the complainant (PW1) has filed affidavit in the form of her evidence in chief and had produced documents. 

7. In both the cases, counsels for both the sides have filed written arguments.

8.  Heard the arguments in both the cases.

9. The points that would arise for consideration in CC.199/2019 are as under:

i) Whether there is deficiency of service from the side of the opposite party  ?

    ii) Whether the complainant is entitled for the  

         compensation as sought ?

     iii) What order ?

 10.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

11. The points that would arise for consideration in CC.200/2019 are as under:

i) Whether there is deficiency of service from the side of the opposite party  ?

    ii) Whether the complainant is entitled for the 

         compensation as sought ?

     iii) What order ?

 12.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

13. POINT NO.1 IN CC.199/2019 & 200/2019:- Since both the points are interlinked one another both are taken together for discussion.  PW1 in CC.199/2019 and in CC.200/2019 have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  In both the cases, the opposite party is one and the same person and the complainants are different. 

14. In support of the case of the complainant in CC.199/2019, apart from the oral evidence the complainant has produced sale agreement dt.22.08.2016.  In which it is stated that the purchaser had paid sale consideration of Rs.5,00,000/-and balance sale consideration of Rs.11,00,000/- shall be payable to the vendor at the time of registration of the sale deed before the Sub-Registrar. Hence, the total consideration was of Rs.16,00,000/-.  Further an additional agreement came to be executed on 23.08.2016, in which the vendor in the sale agreement dt.22.08.2016 is also the vendor in the agreement dt.22.08.2016 and the purchaser in the formal agreement is shown as first purchaser and one Smt.G.N.Lakshmi and G.N.Rajaharsha are shown as additional purchasers.  It appears in the said agreement that the first purchaser i.e., the complainant herein has agreed to purchase the schedule ‘B’ property for consideration of Rs.16,00,000/- and the vendor had conceded for having received a sum of Rs.15,00,000/- and balance amount of Rs.1,00,000/- due by the purchaser to the vendor shall be paid at the time of registration of the sale deed.  Further, the complainant has also produced a general power of attorney executed by the opposite party appointing one G.N.Rajaharsha to do all acts on behalf of M.Loganathan.

15. In support of the oral evidence, the complainant in CC.200/2019 has produced sale agreement dt.22.08.2016 executed by the opposite party in favour of the complainant herein, in which it is stated that the purchaser has paid the sale consideration to the vendor of Rs.5,00,000/- by way of cheque dt.22.08.2016 and it was undertaken by the purchaser that the balance sale price of Rs.12,00,000/- shall be payable at the time of registration of the sale deed before the sub Registrar.  The complainant has also produced additional agreement of sale dt.23.08.2016 executed in between the opposite party and the complainant herein.  In which it is stated that the vendor had acknowledged for having received a sum of Rs.15,00,000/- from the purchaser and the balance of Rs.2,00,000/- due by the purchaser to the vendor towards sale consideration, shall be payable by the purchaser to the vendor at the time of registration of sale deed.  Further the complainant has produced the general power of attorney said to have been executed by the opposite party one G.N.Raja Harsha, authorizing the power of attorney to do all aspects on behalf of opposite party herein. 

16. It is contended in the written argument filed by the complainants in both cases that as per Clause-6 of the agreement, sale deed shall be executed within 18 months from the date of the agreement after completion of the construction and the complainants had approached this Commission before the completion of 18 months, thereby the complaint is                       pre-matured.  On perusal of the agreement, it appears that “the Vendor shall sell the schedule ‘B’ property and complete the sale in all respects in terms of this agreement within 18 months from the date of agreement or within one month after furnishing all necessary documents in respect of title and for the completion of sale and completing the construction of the building whichever is later”.  The agreement was executed on 22.08.2016, 18 months completes on 18.02.2018 and this complaint was filed on 24.01.2019.  According to PW1, the opposite party repeatedly keeping the postponing of the execution of the sale deed for one or the other reason and the complainants had issued legal notice on 12.04.2018 calling upon the opposite party to receive the balance amount on executing the registered document infavour of the complainants.  Further nothing is stated in the written argument filed by the opposite party about the construction of the apartment and nothing is stated in the written argument filed by the complainants about the construction been completed.  Hence, we feel there is no merit in the contention of the learned counsel for the opposite party that the complaints were pre-matured one. 

17. Other than the above said defence in the written argument filed by the opposite party, no other point been raised.  It is the further contention taken in the written argument filed by the opposite party that the opposite party did not commit any act amounting to deficiency of service.  We feel even though the notice been issued, since the opposite party did not execute the sale deed in favour of the complainants as assured in the agreement of sale, it amounts to deficiency of service within the meaning of Section-2(1)(g)of C.P.Act, 1986 in both cases.  Further, in the agreement for sale the opposite party had assured that he would due the schedule ‘B’ property i.e., flat after constructing an apartment thereon.  Since, the opposite party failed to do so, we feel it is a false assurance given by the opposite party in order to promote sale in an unfair method and it amounts to unfair trade practice within the meaning of Section-2(1)(r) of C.P.Act, 1986.  Accordingly, we answer point No.1 in affirmative. 

18. POINT No.2 IN CC.199/2019 & 200/2019:- The complainants claimed a direction to the opposite party to execute the registered sale deed.  In support of the contention that this commission has also jurisdiction to issue such direction, the counsel for the complainants relies the judgement passed by the Hon’ble Karnataka State Commission in complaint No.112/2016, 113/2016, 114/2016, 115/2016 and 116/2016, dt.07.06.2022.  In the said case, the relief was sought for a direction to the opposite parties to execute absolute registered sale deed as a developer, builder and service provider.   Accordingly, Hon’ble State Commission had directed the opposite parties to execute the registered sale deed as a developer in favour of the complainant with 90 days.  In the case on hand also even though it was agreed and assured by the opposite party to execute the sale deed, in spite of receipt of notice, the opposite party did not execute the sale deed.  As per Clause-6 of sale agreement, the opposite party shall sell the schedule ‘B’ property and complete the sale in all respects in terms of this agreement within 18 months from the date of this agreement or within one month after furnishing all necessary documents in respect of title and for the completion of sale, and completing the construction of the building whichever is later. No doubt the complainants have stated that they were and are ready and willingness to perform their part of contract by paying the balance amount.  We feel since none of the parties have produced any document with regard to the construction of the apartment been completed and occupancy certificate has been issued, it cannot be directed to the opposite party to execute the sale deed in respect of the apartment shown in the respective schedule of the complaint.    Therefore, we feel even though the complainants in both the cases did not seek for return of the sale consideration paid by exercising the power U/s 39 of C.P.Act 2019, this commission can order for refund of the sale consideration since the activity of the opposite party attracts unfair trade practice.  Hence, the complainants in CC.199/2019 and CC.200/2019 are entitled for the refund of sale consideration paid of Rs.15,00,000/- each. 

19. Further the complainant in CC.199/2019 and in CC.200/2019 have sought for a direction to the opposite party to pay interest at the rate of 18% p.a. on the amount retained by them till the date of delivery of the apartment premises.  We feel the said rate of interest is highly an exorbitant one.  Therefore, the complainants are entitled for interest for the amount retained by the opposite party at the rate of 9% p.a. from the date of the actual payment made till realization.  We feel the condition imposed in clause-6 of the agreements that the vendor shall execute the sale deed after completing the construction of the building is an unilateral one and one sided.  Since, the date of completion has not been mentioned, the vendor cannot take advantage of the same.  Further it is not permitted to put such type of conditions in the agreement of sale of apartments as per law.  Therefore, within 18 months from the date of agreement i.e., 22.08.2016, the opposite party should have completed the construction and handed over physical possession in favour of the complainants. The said 18 months expires on 21.02.2018.   Hence, the complainants are entitled for the interest as stated above. 

20. Further the complainant claimed a sum of Rs.10,000/- p.m towards loss of rent from 22.02.2018 till delivery of possession in CC.199/2019 and the complainant claimed a sum of Rs.10,000/- p.a. towards loss of rent from 22.02.2011 till delivery of possession in CC.200/2019.  No material is produced by the complainants with regard to the fetching of rent on the proposed construction.  Hence, we feel since the complainants have failed to prove with regard to the completion of the building as per Clause-6 of agreement, the complainants are not entitled for the relief sought. 

21. It is further contended by the learned counsel for the complainants that since the opposite party did not perform the assurance given, the complainants have undergone mental trauma and they are entitled for compensation under this head also. We feel for the mental agony undergone each complainants are entitled for a sum of Rs.20,000/- and a sum of Rs.10,000/- towards litigation cost.  Accordingly, we answer this point partly in affirmative. 

22.  POINT NO.3:- In view of the discussion made above, we proceed to pass the following;

The complaint in CC.199/2019 and CC.200/2019 are allowed in part.

The opposite party in CC.199/2019 and CC.200/2019 shall refund an amount of Rs.15,00,000/- each to the complainant with interest at the rate of 9% p.a. from the date of actual payment till realization.

Further the opposite party is directed to pay a sum of Rs.20,000/- towards mental agony and Rs.10,000/- towards litigation cost to the complainant in each case.

The opposite party shall comply the order within 30 days from the date of order.  In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization in each case.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Keep the original order in CC.199/2019 and copy of the order in 200/2019.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 21^st day of July, 2022)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA, K)    
•  

//ANNEXURE//

Witness examined for the complainants side:

Sri.G.R.Nagaraj, the complainant has filed his affidavit in CC.199/2019.

Smt.G.N.Lavanya, the complainant has filed her affidavit in CC.200/2019.

Documents marked for the complainants side in CC.199/2019 and CC.200/2019:

1. Sale Agreement dt.22.08.2016.

2. Additional advance agreement for sale dt.23.08.2016.

3. General Power of attorney dt.23.08.2016.

4.Copy of the bank statement of the complainant in the year 2016.

Witness examined for the opposite party side: 

Documents marked for the Opposite Party side:

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA, K)    
•