BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 23^rd DAY OF MARCH 2021

                                                O R DE R

SRI.S.L.PATIL, PRESIDENT

The complainant filed this complaint under Section 12 of Consumer Protection Act, 1986 against Opposite Party (herein after referred as OP) with a prayer to direct the OP to execute the sale deed in favour of complainant with respect to the schedule property bearing site No.116, Paramanandha Sagara Mysore totally measuring 30 x 40 ft. in all measuring 1200 sq.ft. situated at Huyilalu Village, Ilawala Hobli, Mysuru Taluk, Mysuru District and to pass such other reliefs.   

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

 The complainant submits that OP is to provide credit and housing sites to their employees and other persons.  The OP society has formed layout known as Paramaanandha Sagara project at Mysuru.  The complainant is a member of the OP society bearing membership No.S.L.A/9721 and ranking No.424.  As on the date of booking the site, the OP has informed to him that a site measuring 30 x 40 ft. would be allotted at Paramaanandha Sagara Mysuru.  Further complainant submits that as per the information of the society, he has taking membership and paid the initial amount of membership charges of Rs.1,020/- vide receipt No.15201 dated 12.07.2006 and also paid Rs.60,000/- towards advance amount vide receipt No.15202 dated 12.07.2006 respectively.  Thereafter, OP has got issued notice dated 25.10.2006 demanding 1^st instalment of Rs.68,400/- and stated that they are vigorously taking action for completion of conversion of land use, approval plan by the concerned authority(MUDA) etc.,  Further complainant submits that he has paid the said amount of Rs.68,400/- vide receipt No.52176 dated 09.03.2007 and further on demand letter dated 16.03.2007, he has paid 2^nd instalment of Rs.68,400/- vide receipt No.61427 dated 05.06.2017. The complainant has paid total sum of Rs.1,96,800/-. 

The complainant further submits that OP has informed the layout status of word vide letter dated 22.12.2007 was approved and sanction plan obtained on 06.05.2009 and released 292 sites out of 482 sites.  The said particulars was informed by letter dated 30.09.2009 and informing regarding shifting of the office and releasing of sites.  Further OP informed that the entire layout work and internal works are completed and allotted to site to him at the said project within October, 2011 and extended request letter dated 27.12.2012, 02.01.2014 and letter dated 23.12.2014.  Further complainant submits that he has requested the OP several times through phone and also met in the OP office after several demand made by him, the OP had allotted a site bearing No.116 in phase No.5, measuring 108 sq.mtrs., situated at Huyilalu Village, Ilawala Hobli, Mysuru Taluk, Mysuru District and assured to registered the said site within July/August, 2018 as per the letter dated 11.12.2017.

Further complainant submits that even after receiving the entire total cost of the site by way of instalments, OP has delayed in allotment of site and registration.  In this regard, he has made number of periodical approaches and made a demand from time to time for completion of layout work and to hand over the possession for which OP has miserably failed to adhere to terms of the contract and thereby defaulted his part of obligation and OP went on postponing the same on one or the other pretext.  Therefore, complainant has issued legal notice to the OP on 09.09.2019 through RPAD but OP has neither replied nor came forward for execution of sale deed. The OP has neglected to discharge their obligation.  It is submitted that the complainant is always ready and willing to perform his part of contract and he was ready to get registered the sale deed, but the OP not come forward to discharge their obligation as assured.  The complainant further submits that OP is not only involved in unfair trade practice but has also committed deficiency in service.  Hence, OP is liable to pay damages to him towards delay in executing the sale deed and delivering the possession of schedule property to him. 

Further complainant submits that there is an inexplicable delay in executing the sale deed and to hand over the possession of the schedule property to him by the OP.  Hence, complainant herein being left with no other option file this complaint. The cause of action arose for this complaint on 12.07.2006 when the complainant paid the instalments to the OP i.e. legal notice issued on OP dated 09.01.2019 and correspondence letters demanding to execute the sale deed in favour of the complainant.

 3. After admitting the complaint, notice was ordered to issue to the OP duly served, OP did not appeared, hence placed exparte.

4. Complainant has tendered his evidence by way of affidavit.  He has also produced documents in support of his case and marked Ex.A.1 to A.18.   Heard the learned counsel for the complainant.

5. The points that arise for our consideration are:

1. Whether the Complainants prove the deficiency of service on the part of OP, if so, entitled for the relief sought for?
2. What order?

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

       Point No.1:  Partly in the Affirmative 

      Point No.2:-  As per the final order for the following

REASONS

7. Point No.1:  In this case, we have stated above OP did not appear to contest the claim of the Complainant by way of filing the version, hence placed exparte. Under such circumstances, non-appearance and non-filing of version can be drawn an adverse inference that, the OP has admitted the claim of the Complainant in the light of the decision reported in 2018 (1) CPR 314 (NC) in the case of M/s Singla Builders & Promoters Ltd., vs. Aman Kumar Garg, wherein it is held that,

“Non-filing of written version to complaint before the forum, amounts to admission of the allegations levelled against them in consumer complaint”.

8. According to the case of the complainant so far he has already paid an amount of Rs.1,96,800/- by way of instalment, OP is not in a position to get registered the regular sale deed.  Even on repeated requests that OP postponing the registration process by one or the other pretext.   According to the case of the complainant that itself amounts to deficiency of service much less the unfair trade practice.  Hence, he is entitled for the registration of the site in his favour.   To falsify all these facts, OP did not appeared, upon causing notice to him.    

9. Looking to the documents produced by the complainant, we deemed it just and proper to direct the OP to get registered the site measuring 30 x 40 ft. in its layout as promised and complainant has to bear the registration charges.  We have also kept another option to the complainant that in the event, OP failed to register the sale deed in his favour, he is at liberty to get refund an amount of Rs.1,96,800/- with interest at the rate of 10%p.a. by way of compensation from the date of periodical payment with litigation cost of Rs.5,000/- in the light of the decision reported in reported in EMAAR MGF Land Ltd., & Anr. V/s Amit Puri, II (2015) CPJ 568 (NC) wherein it was held that, after the promised date of delivery of possession, if the project is not completed, the discretion lies with the Complainant whether he wants to take delivery of possession or seeks refund of earnest money. Hence, we answer the point No.1 partly in the affirmative.

Point No.2:  In the result we proceed to pass the following:-

1. The complaint filed by the complainant is allowed in part.
2. OP is directed to execute the registered sale deed in respect of site 116, Paramanandha Sagara, Mysuru measuring 30 x 40 ft. situated at Huyilalu Village, Ilawala Hobli, Mysuru which has been allotted to complainant and put him in possession of the same in favour of the complainant by receiving balance amount if any.  It is the complainant to bear the registration charges. If the complainant is unable to pay the remaining amount if any to get execute the sale deed in respect of the said site allotted by the OP, he is at liberty to seek the refund of Rs.1,96,800/- with interest at 10% p.a. by way of compensation from the date of periodical payment till realization with litigation Cost of Rs. 5,000/-.
3. The OP shall comply the order of this Commission within a period of six weeks from the date of receipt of the order, failing which the complainant is at liberty to take steps as per Law.
4. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 23^rd day of March, 2021).

Document produced by the complainant are marked as Ex.A.1 to Ex.A.18 are as follows: