Karnataka

Bangalore 4th Additional

CC/13/400

T. Amrithamma. W/o. P. Harinath, Aged about 60 Years, - Complainant(s)

Versus

Sri. Shastha Real Estate Agency(R) - Opp.Party(s)

B.S. Ravikiran

30 Dec 2017

ORDER

Complaint filed on: 15.02.2013

                                                      Disposed on: 30.12.2017

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.400/2013

DATED THIS THE 30^th DECEMBER OF 2017

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

T.Amrithamma

W/o P.harinath,

aged about 60 years,

R/at no.6,

Akshataposhaka

Sabha road, V.V.Puram, Bengaluru-04.

 

By Adv.B.S.Ravikiran     

 

V/s

Opposite party/s

Respondent/s:-

 

Sri Shastha Real Estate

Agency (R)

#24, 5^th cross,

Nanjappa layout,

Hosur main road,

Opposite police

quarters, Adugodi,

Bengaluru-30.

Rep by its Proprietors

Mr.Mohan and Krishna.B

 

• Ex-parte

 

MEMBER: SMT.ROOPA.N.R

 

 

            This complaint is filed by the Complainant against the Opposite party (herein after referred as Op) u/s 12 & 13 of CP Act 1986, praying to pass an order, directing the Op to execute the sale deed in respect of the alloted schedule site in favour of the Complainant or direct the Op to pay the prevailing price of the said site and direct the Op to pay a sum of Rs.75,000/- towards the mental agony and physical strain caused to the Complainant.

 

          2. The brief facts of the case of the Complainant are that the Op is a firm dealing with real estate agency started its benefit scheme for allotment of sites in the name and site of Sri Shasta sites benefits scheme. The said sites were formed in the land bearing sy.no.106 situated at Vittasandra village, Begur hobli, Bengaluru south taluq, Bengaluru. The Complainant with an intention to purchase a site become a member of the above said benefit scheme bearing card no.263 by paying prescribed fee for the membership. As per the terms & conditions of the benefit scheme a site will be alloted by the Op to the member measuring 40x30 for a sum of Rs.32,000/- and that the allotted shall have to remit monthly installment of Rs.1,000/- for a period of 32 months. The Complainant accordingly paid full instalments of Rs.32,000/- and the Op thereafter allotted site no.70 which is more fully described in the schedule here under sale agreement, General power of attorney and also an affidavit in favour of the Complainant.

 

          3. The Complainant further submits that the Complainant paid full installment amount to the Op and further on 02.12.1997 the Op executed a sale agreement in favour of the Complainant. The Op further on 11.04.1999 executed a general power of attorney and the affidavit in favour of the Complainant and in the affidavit and GPA stated that the schedule property is sold to Complainant for a sum of Rs.32,000/- and that he will hand over the possession of the property having received the entire sale price before the witnesses. But the Op failed to execute the sale deed till this date.

 

          4. The Complainant further submits that, the Complainant made several attempts and requested the Op to execute the sale deed of the schedule property, but the Op was in no mood to execute the sale deed for the reason best known to them. Even after several demands the Op failed to perform his part of duty. The Complainant has issued a legal notice dtd.17.01.13 for allotment of the above said site was duly served to the Op. The Op was not replied to the legal notice. Hence the present complaint is filed.

 

          5. Even though the notice was served on the Op, but he failed to put his appearance. Hence he was placed exparte. So as to prove the case, the Complainant has filed her affidavit by way of evidence and produced document alongwith complaint and got marked the documents as Ex-A1 to A8. She has also filed her written arguments. Heard the arguments.

            

6. The points that arise for our consideration are:

1. Whether the Complainant is a consumer as defined u/s 2(1)d of CP Act ?
2. Whether the Complainant proves that there is a deficiency of service by the Op ?
3. Whether the Complainant is entitled for the relief sought for ?  
4. What order ?

                   

           

 

7.  Our answers to the above points are as under:

 

Point no.1: In the Affirmative.  

Point no.2: In the Affirmative

Point no.3: The Complainant is entitled for the relief sought for

Point no.4: As per the final order for the following

 

REASONS

 

          8. Point no.1:  Before embarking on the facts of this case, we feel just and necessary to place reliance on the two matters which have been already disposed by this forum and in 3^rd Addl., DCDRF, Bengaluru. In CC.no.810/2009 on 28.10.2009, wherein the joint memo has been filed by the Complainant therein and also the Op herein for settling the matter amicably. In this context, the said joint memo was allowed and an order has been passed directing the Op therein who also the Op herein to execute the sale deed in favour of the Complainant therein, transferring the title of the allotted site within three months from the date of which the registration of the revenue sites starts.   

         

          9. So also another similar matter like that of the present case on hand has been adjudicated by the 3^rd Addl. Dist. Consumer forum, Bengaluru in CC.no.2410/2013. In the said case the Op therein and the Op herein are one and the same. The said matter has been contested by the Op therein i.e. Sri Shastha Real Estate Agency. On full pledged trial, the said forum passed an order in the following term:

The Complainant is allowed. It is held that there is deficiency in service by the Op. The Op is directed to execute the sale deed in favour of the Complainant, relating to the property described in the schedule of the complaint, within 60 days from the date of this order. If the Op fails to execute the sale deed within the stipulated time, the Op shall be liable to pay an amount equal to the guidance value, fixed by the State Government for the purpose of the registration of the site in that area, as on the date of default to execute the sale deed. In addition to it, the Op shall be liable to pay compensation of Rs.1 lakh and cost of Rs.5,000/-. The Op shall pay the said compensation amount within 60 days from the date of this order. In case a default to pay the compensation amount, the Op shall be liable to pay interest 12% p.a. on the compensation amount from the date of default, until actual payment.

 

          10. Now in the light of the order passed in the above said two cases, we would like to record our findings on point no.1. It is also made it clear that, though the decision taken in the two cases are not binding, but the facts of the present case on hand and also the facts of the two cases are similar in nature, hence reliance placed on the said two decisions.

 

11. It is the case of the Complainant that, the Op is a firm dealing with real estate agency started its benefit scheme for allotment of sites. The Complainant with an intention to purchase a site become a member of the above said benefit scheme bearing card no.263 by paying prescribed fee for the membership. As per the terms & conditions of the benefit scheme a site will be alloted by the Op to the member measuring 40x30 for a sum of Rs.32,000/- and that the allotted shall have to remit monthly installment of Rs.1,000/- for a period of 32 months. The Complainant accordingly paid full instalments of Rs.32,000/- and the Op thereafter allotted site no.70 which is more fully described in the schedule here under sale agreement, General power of attorney and also an affidavit in favour of the Complainant. This transaction clearly shows on seeing the documents produced by the Complainant marked as Ex-A1 to A6. As to know, the Op is service provider and the Complainant is a consumer, whether the Complainant comes within the definition u/s 2(1)d of CP Act is concerned, we come to the conclusion that certainly she comes within the purview of the consumer as defined u/s 2(1)d of CP Act. Accordingly we answered the point no.1 in the affirmative.

 

12. Point no.2: That on 02.12.1997 the Op executed a sale agreement in favour of the Complainant after receiving the 26 monthly instalments. In this agreement of sale and clearly says that, after paying of full instalments, the sale deed or GPA will be executed by the Op in favour of the Complainant. After that on 11.04.1999, the Op executed a GPA and affidavit in favour of the Complainant. In the said affidavit also Op admits receipt of the entire sale consideration. This is clearly shows that the entire sale price of the site was paid to the Op from the Complainant. It is clearly goes to show that the documents produced by the Complainant marked as Ex-A4 to A6. After that the Complainant made several attempts and requested the Op to execute the sale deed of the schedule property, but the Op was in no mood to execute the sale deed for the reason best known to them. Finally the Complainant has issued a legal notice dtd.17.01.13 for calling upon the Op to executing the sale deed of site in her favour, failing which an appropriate legal action will be taken in accordance with law, but the Op not replied to the said notice. It is clearly goes to show that the document produced by the Complainant marked as Ex-A7 in support of the claim of the Complainant. On careful scrutiny of the case of the Complainant on the background of oral and documentary evidence, it is vivid and clear that the Complainant who comes to forum seeking relief has proved with clean and tangible material evidence that the Op is negligent and there is deficiency of service on his part in not executing the sale deed of the site to the Complainant inspite of repeated requests. Hence we answered point no.2 in the affirmative.

 

          13. Point no.3: In view of our findings recorded on point no.1 & 2, we directed the Op to execute the sale deed of site in favour of the Complainant as described in schedule portion of the complaint. We also directed to the Op to pay Rs.75,000/- in the form of mental agony and physical strain caused by the Complainant. We also directed the Op to pay an amount of Rs.5,000/- towards cost of litigation.

 

14. Point no.4: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant u/s 12 & 13 of CP Act is allowed in Part.  

 

          2. The Op is hereby directed to execute the sale deed in favour of the Complainant, relating to the property described in the schedule of the complaint, within six weeks from the date of this order. If the Op fails to execute the sale deed within the stipulated time, the Op shall be liable to pay an amount equal to the guidance value, fixed by the State Government for the purpose of the registration of the site in that area, as on the date of default to execute the sale deed.

 

          3. We directed the Op to pay of Rs.75,000/- towards compensation and Rs.5,000/- towards cost of litigation to the Complainant.

 

          4. This order is to be complied by the Op within six weeks from the date of this order, failing which the Complainant is at liberty to have the redress as per law.

 

         

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer and pronounced in the Open Forum on 30^th December of 2017).

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Smt.Amruthamma, who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Broacher
Ex-A2	Card & the receipts
Ex-A3	Site holders list
Ex-A4	Sale agreement dtd.02.12.1997
Ex-A5	GPA
Ex-A6	Affidavit
Ex-A7	Legal notice dtd.17.01.13 with original postal receipt & postal acknowledgement
Ex-A8	Order dtd.28.10.2009

 

 

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT