BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU. (ADDL. BENCH)
DATED THIS THE 18th DAY OF JUNE, 2024
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, LADY MEMBER
COMPLAINT NO.482/2017
Riyaz Sohale,
S/o Syed Swaleha
Aged about 50 years, ….Complainant/s
R/at #B-3, BEML Officers,
Apartment, 6th Main,
Jayalakshmipuram,
Mysuru
(By Sri.Nitin AM & Associates, Advocate)
-Versus-
The Managing Director,
M/s. Pathak Constructions, … Opposite party/s
Mysuru-570 002,
(By Sri.V.R.Bhagath, Advocate)
O R D E R
BY SMT.SUNITA C.BAGEWADI, MEMBER
The complainant filed this complaint against the Opposite Party alleging deficiency in service and unfair Trade Practice and prays to direct the Opposite Party to execute the sale deed and handover the possession of schedule “B” property or in the alternative to direct the Opposite Party for refund of Rs.33,00,000/- along with interest @18% p.a. from the date of payment till realization and to pay damages of Rs.15,97,000/- along with litigation costs and grant such other relief as deemed fit, in the interest of justice and equity.
2. The brief facts of the complaint is that, the Opposite Party is a developer/builder under the name and style of M/s Pathak Developers Pvt. Ltd. The complainant approached the Opposite Party and attended the meeting held by them and entered into an agreement with the Opposite Party on 10.7.2010. The total consideration of Rs.30,00,000/- in respect of B-schedule property mentioned below and the complainant has paid Rs.5,00,000/- as list installment and later the complainant paid Rs.5,00,000/- as list installment and later the complainant paid periodical payment as agreed. The complainant paid total amount of Rs.28,50,000/-. Another 5% i.e. Rs.1,50,000/- to be paid as of the date of registration. The complainant has issued a post dated cheque for the same also. Inspite of such payments and repeated demands the Opposite Party has not handed over the possession of the property on the due date and the Opposite Party has postponed the handing over the schedule property without any tangible reason. Only in the month of Feb.2014, after the complainant and other purchasers pressured the Opposite Party to restart the work, at that time the Opposite Party demanded Rs.3,00,000/- towards the alleged Govt. Deposits in respect of Water, Electricity, Transformer and UG Drainage Pipeline Charges etc. and promised to deliver the property by May, 2014. Inspite of that, the Opposite Party did not keep his part of promise as mentioned in the minutes of meeting held in Feb.2014 and of the original sale agreement. The complainant has caused a legal notice on 31.7.2014 to the Opposite Party and the same was served to the Opposite Party on 1.8.2014, after the service of the Opposite Party reluctant to discharge his duty. Hence, with no other alternative the complainant approached before this Forum.
3. After service of notice, the Opposite Party has appeared through his counsel and filed version and contended that it is stoutly denied that the Opposite Party has taken Rs.3,00,000/- towards alleged government deposit in respect of Water, Electricity, Transformer and UG Drainage pipeline charges etc. On the other hand, it is submitted that the Opposite Party has kept ready the draft sale deed and at that point of time biological son of Mr.V.R.Babu Mudaliar claiming rival claim over the subject matter of the Joint Development Agreement and in view of the same and in view of the court injunction, the Opposite Party could not execute the absolute sale deed in favour of the complainant after receiving balance sale consideration. Due to the above said injunction granted by the Civil Court, the Opposite Party could not complete the ongoing project work and handover the possession of the flat to the complainant and also register the sale deed. The Opposite Party is ready and willing to discharge his duties under the agreement to sale, but in view of the title dispute between the landlord and so called his predecessor for title which is pending before the Civil Court has delivery of the possession thereof. Therefore, there is no deficiency of service or negligence on the part of the Opposite Party. The Opposite Party further submitted that immediately after conclusion of the suit, the Opposite Party is ready and willing to execute the sale deed and hand over the possession of the apartment. Therefore the complaint filed by the complainant may be dismissed with exemplary costs in the interest of justice. Hence prays to dismiss the complaint, in the interest of justice and equity.
4. Both parties filed their evidence affidavit and no documents marked.
5. Heard arguments from the complainant. Inspite of sufficient opportunities provided to the Opposite Party, he has not submitted his arguments hence, posted for orders.
6. On perusal, the following points will arise for our consideration;
(1) Whether the complainant has proved the deficiency of service on the part of the Opposite Party?
(2) Whether the complainant is entitled for the reliefs as sought?
(3) What order?
7. The findings to the above points are;
(1) In the affirmative
(2) In the partly affirmative
(3) As per the final order
R E A S O N S
8. Point Nos.1 and 2:- Perused the contents of the complaint, objection filed by the Opposite Party, evidence affidavit of both parties and documents produced by the complainant, we noticed that, the Opposite Party admitted that, the complainant has agreed to purchase for residential apartments bearing No.T-1, situated in 3rd floor of the building known as “PRATHAM SHILP”. Further the Opposite Party admitted that, both are entered into sale agreement on 10.7.2010 for total consideration amount of Rs.30,00,000/- in respect of Schedule-B property. However the Opposite Party denied the payment of Rs.3,00,000/- towards the alleged Government deposits in respect of Water, Electricity, Transformer and UG Drainage Pipeline Charges etc. and further contended that the Opposite Party has kept ready the draft sale deed and at that point of time biological son of Mr.V.R.Babu Mudaliar claiming rival claim over the subject matter of the joint development agreement and in view of the same and in view of the court injunction the Opposite Party could not execute the absolute sale deed in favour of the complainant after receiving the balance sale consideration.
9. Further contended that, the Opposite Party ready and willing to discharge its duties under the agreement to sale, but in view of the title dispute pending before the Civil Court has resulted in the execution of the sale deed in favour of the complainant and delivery of the possession. Therefore there is no deficiency of service or negligence on the part of the Opposite Party. Further submitted that immediately after the conclusion of the suit, the Opposite Party is ready and willing to execute the sale deed and hand over the possession of the apartment to the complainant.
10. Perused the documents produced by the complainant, the complainant has paid total of Rs.33,00,000/- to the Opposite Party by way of cash and by obtaining loan from the HDFC Bank, Mysuru. The complainant has also produced the receipts and details of payment made by him to the Opposite Party and also the HDFC Bank, Mysuru in 2017 issued reminder letter to the complainant to pay the EMI regular for the home loan taken by the complainant means the complainant has paid Rs.33,00,000/- out of that Rs.30,00,000/- the consideration amount of the flat and Rs.3,00,000/- towards Water, Electricity, Transformer and UG Drainage Pipeline Charges etc. The Opposite Party has disputed the payment of Rs.3,00,000/- made by the complainant, however the Opposite Party has not produced any documents to show that the complainant has not paid the amount of Rs.3,00,000/-to the Opposite Party. If the Opposite Party disputed the same he has to prove it, mere denial is not sufficient. Further the Opposite Party contended that, the Opposite Party has kept ready the draft sale deed on utter point of time biological son of Mr.V.R.Babu Mudaliar claimed over the subject matter of joint development agreement and in view of the same and court injunction the Opposite Party could not execute the sale deed after receiving the balance consideration amount and due to which the Opposite Party could not complete the ongoing project work. Further the Opposite Party contended that immediately after conclusion of the suit the Opposite Party is ready and willing to execute the sale deed and hand over the possession of the apartment. However the Opposite Party has not produced any documents to show that due to the litigation between the landlord and predecessor, he has not executed the sale deed and hand over the possession of the alleged flat to the complainant.
11. Perused the objection and evidence affidavit of Opposite Party, the Opposite Party has contended that after conclusion of the suit, the Opposite Party is ready and willing to execute the sale deed and hand over the possession of the apartment to the complainant. The complainant has produced one sale deed executed between Sri.Jayaram Pathak and Sri.C.Narase Gowda dated 17-1-2015 regarding three bed rooms flat bearing No.401, 3rd floor in the apartment named as “PRATHAM SHILP” with super built area of 1450 sq.ft. Means the Opposite Party has executed the sale deed in favour of other purchasers but not executed the sale deed in respect of the flat purchased by the complainant which is the deficiency of service on the part of the Opposite Party. It is settled legal position that inspite of receiving full consideration amount including other charges and the Opposite Party was not completed the apartment and hand over the possession and postponed with one or the other reasons saying that there was a civil dispute between the landlord and predecessor; we cannot believe the contention of the Opposite Party because the Opposite Party has not produced any single document to show that there is a dispute and when it will conclude.
12. The complainant has booked the flat in 2010 and paid the advance amount and periodically upto 2014 he has paid full consideration amount of the flat and other charges to the Opposite Party. However as per the sale agreement the Opposite Party has not completed the construction of the apartment and handover the possession of the flat, after several visits and requests of the complainant which amounts to deficiency in service on the part of the Opposite Party. Hence considering the facts and discussion made here, we are of the opinion that, the complainant has proved the deficiency of service on the part of the Opposite Party.
13. Point No.3: In view of above discussion, we proceed to pass the following:-
O R D E R
The complaint filed by the complainant is allowed in part with litigation cost of Rs.25,000/- to the complainant.
The Opposite Party is directed to execute the sale deed and hand over the possession of schedule “B” property within 45 days from the date of receipt of this order. If failed, the Opposite Party is directed to refund of Rs.33,00,000/- along with interest @12% per annum on the said amount from the last payment i.e. 04.04.2014.
Further, the Opposite Party is directed to pay compensation of Rs.2,00,000/- to the complainant for deficiency in service and mental agony.
Further, the Opposite Party is directed to comply the above order within 45 days from the date of receipt of this order. Failing which, the payable amount shall carry interest @6% p.a. from the date of default till realization.
Send a copy of this order to both parties.
MEMBER JUDICIAL MEMBER
