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

DATED 26^TH DAY OF JUNE 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP1 to 3 develop the site bearing No.133 as stated in the marketing agreement as well as sale agreement i.e., Sewage & water connection to individual plot, over head electric pols, black top roads, garden and park with kids play area, street light with electric supply.

Alternatively remedy

2. Direct the OP to refund the amount paid by the complainant of Rs.7,14,000/- along with interest @ 18% p.a., till the date of realization.
3. Direct the Ops to pay the compensation of Rs.5,00,000/-
4. Further direct the Ops to pay the litigation charges of this proceedings amount of Rs.50,000/-.
5. Such other relief as this Hon’ble Forum deems fit in the facts and circumstances.

2. The case set up by the complainant in brief is as under:-

The complainant is working in a private company and residing in a rented house since 12 years.  The complainant intended to purchase a site to construct a house for his shelter as he had some funds out of salary savings.  

3. The complainant after impressed by the broachers of the OP1 in the year 2016 which was published regarding sale of sites formed in proposed project in the name and style of UTC Oxygen City in converted Sy.No.3 situated at Varthur, Narasipura Village, Bangalore South Taluk, with all amenities as mentioned in the broachers.
4. The complainant approached OP1 and entered into an Agreement of sale and he has paid a sum of Rs.2,05,000/- towards booking amount and the OP1 has acknowledged the same and issued the receipts in respect of site No.133 measuring 1200 sq. feet at the project UTC oxygen.
5. It is further case of the complainant that the OP1 has entered into marketing agreement with OP2 and 3 who are the owners of the land of the said project.  As per the clause 5.1 of the marketing agreement the marketing associate having all the rights to receive the payment from the prospective buyers. The amount will be held in the name of UTC India Pvt. Ltd., and shall be treated as advance booking amount and the sale consideration amount received from prospective buyers.
6. The complainant agreed to purchase site No.133 has been allotted to him.  The OP accordingly entered into sale agreement with the complainant on 29.12.2014 and the OP has agreed to sell site No.133 in the proposed project in Sy.No.3, Varthur, Narasipura, which was duly converted for non-agricultural residential purpose vide order dated 04.06.1979 and 02.12.1981 and 05.04.1982.  all the orders were issued by the Deputy Commissioner Bangalore District, measuring 1200 sq. feet for total consideration amount of Rs.5,70,000/-, excluding documentation and miscellaneous charges.  The complainant has paid the entire sale consideration amount in part through cheques and by way of cash and by issuing DD.
7. The complainant at the time of entering into contract to purchase the site the OP1 to 3 have assured him that the layout will be fully developed with all the facilities as mentioned in the brochures. Believing the same complainant has purchased the schedule site under registered sale deed 28.04.2017 from the OPs.  The complainant has availed loan from OP4 by mortgaging the schedule property for the security of the loan by depositing the original title documents by executing memorandum of deposit of title deeds in favour of OP4 on 31.05.2017. The complainant is paying regular EMI of Rs.6,974/- for every month and total EMI is 120 towards the loan amount.  The OP1 to 3 have received additional amount of Rs.84,000/- towards the site and it was not mentioned in the registered sale deed whereas the total sale value of Rs.6,30,000/- as per the sale agreement has paid by the complainant to OP1 to 3.  The schedule site stands in the name of the complainant.
8. It is the specific grievance of the complainant that after completion of the sale transaction and necessary documents have been executed between the parties the OP1 fail to provide basic amenities as mentioned in the marketing and the sale agreement.  The OP1 did not take any steps to perform their part of the agreement and he has not allowed the complainant for inspection of site No.133 in the layout.  The OP1 to 3 colluding with each other with an intention to cheat the complainant and having malafide intention in order to escape from the liability.  For the said reason the complainant is suffering from mental agony for the loss of money and abstraction by the OP1 to 3.  
9. It is further grievance of the complainant that he has purchased the schedule site to construct a house to stay with his family members.  The OP1 to 3 with ulterior motive are not permitting him to construct the house and they have not provided the basic amenities as assured under the contract the OP1 to 3 are having the background of rowdy elements and support of financial and political back ground and they are not permitting the complainant to construct the house and they have fraudulently grab the money from the complainant. Hence the complainant without having any other option has filed this complaint.
10. In response to the notice, OPs appears and files version. It is the case of the OP1 that the complaint itself is not maintainable against this OP since it is only a marketing agency and has no responsibility to carry out any works as sought by the complainant.
11. It is further case of the OP1 that the complaint is barred by limitation and it is filed after lapse of two years. Hence the complaint is not maintainable.
12. It is further case of the OP1 that the relief sought by the complainant are in the nature of specific performance of contract.  Such disputes are not to be entertained by this Commission as provided under the provisions under the C.P.Act. The complainant is the absolute owner of site No.133 having purchased the same under the registered sale deed dated 28.04.2017.  In the said sale deed there is no such undertaking given by the Ops particularly this OP1. Hence the claim made by the complainant against the Ops are not tenable.  
13. It is the specific case of the OP1 that this OP is a marketing agency for OP2 and 3 as per the terms and conditions of marketing agreement.  The duty of this OP is to sell the sites to the Prospective and needy purchasers.  The complainant is one among them. Prior to execution of the sale deed this OP1 made the complainant to visit the site and location and after satisfying with the location and existence of the site and thereafter only the complainant purchased the site No.133 from OP2 and 3.  This OP1 has to act only as a facilitator to acquire the site by the complainant and except acting as a facilitator between the complainant and OP2 and 3 this OP has no other responsibilities.  
14. Further case of the OP1 that the land in which the site is formed is a converted land and as per the approved layout plan sites are formed.  Once the title deed is passed on there is no responsibility or terms and conditions to be performed by the vendors/Ops and they have not taken any steps responsibility after executing the sale deed in favour of the complainant.
15. The OP1 has denied all the other allegations made in the complaint except the facts admitted by this OP1.
16. It is further case of the OP1 that one DLF Limited has instituted a suit in OS No.389/2016 and 390/2016 by arraying vendor as one of the co-defendant before the Senior Civil Judge and KMFC, Magadi and the Hon’ble Court has granted an interim order on 07.12.2016 restraining the parties from alienation, encumbrance and in altering the nature of the suit property.  In view of the interim order the Ops are not in a position to develop the property. There is no deficiency of service on the part of the OP. There is no pleading with regard to fraud and deceiving of the complainant which is not scope of the summary procedure. There is no cause of action to file this complaint and it is hopelessly barred by limitation. Hence the complaint is liable to be dismissed. Therefore OP1 prayed for dismissal of the complaint.
17. The OP2 and 3 have filed their version denied all the allegations made in the complaint except the fact that they have purchased the Sy.NO.3 and other piece of converted lands under the registered sale deeds and the necessary documents were changed in their name.  the OP1 represented through his MD, B.P.Gangahanumaiah, being in real estate expertise in marketing field approached this OPs and entered into some agreement styled as marketing agreement on 01.02.2016.  The said document was in English language and this OP2 and 3 do not know the nature of the document and later they have cancelled the same vide deed of cancellation on 15.01.2017 which was also typed in English and the contents are not known to them.
18. On the assurance given by the MD of the OP1 this OP2 and 3 have entered into MOU in favour of the OP1, representing that the MD is in the field of real estate having knowledge to secure the buyers and undertaken to form residential layout, prepare layout plan, demarcate sites of various measurements and to obtain the approval from the concerned Grama Panchayath and to pay the assessment tax.  This OP2 and 3 and Chandrahasa in terms should sell 170 sites so formed in the said land @ Rs.250/- per sq. feet and in all for Rs.5,50,00,000/-.  Agreeing to receive the amount at the time of registration of the site in favour of the prospective purchasers of OP1, the OP1 is fully responsible and liable to form layout and get approval from the authority and invest money towards development and pay Rs.250/- per sq. feet to the land owners and OP1 receive over and above the said Rs.250/- per sq. feet towards the investment and improvements made by the OP1 from the purchasers.  As per the understanding this OP2 and 3 used to put their signatures in their sale deed when the OP1 called them by receiving the sale consideration @ 250/- per sq. feet the OP1 has received the over and above sale consideration and all the payments have been made through OP1. Apart from that this OP2 and 3 have not received any amount directly from the complainant.  This OP2 and 3 have not given any assurances to provide the sewerage and water connection to individual plot and overhead electrical poles, black tap roads, garden and park with kids play area, street light with electric supply.  The layout so formed by the OP1 is having intervening roads, water pipelines, sanitary and water drainage and storm water drainage as on the date of execution of the sale deed and those facilities are available and the complainant has purchased the site having satisfied with the limited facilities available in the layout.  Thus it is not open to the complainant to seek any relief much less the one sought in the prayer column against this OP2 and 3.
19. It is further case of the OP2 and 3 that they are not aware of the receipt of some of Rs.2,05,000/- towards booking amount in respect of schedule site and they have no knowledge of any sale agreement entered between the complainant and OP1 on 29.12.2014 and they have no knowledge of receipt of additional amount of Rs.84,000/- by the OP1 from the complainant and there is no mention of the said amount in the sale deed.  If there were to be any such payments between the complainant and OP1, they have to sort it out by themselves and these Ops are not at all responsible for the same as they have not received any amount from the complainant at any point of time.  The extent of the liability on this OP2 and 3 is only to an extent of Rs.250/- per sq. feet of the site.  
20. The complainant being in possession of site in question under the registered sale deed, he is at liberty to construct the building in accordance with law and these Ops never objected the complainant to do any construction work in the site in question. It is false to say that these Ops are not permitting the complainant to put up construction as they are having supporting of rowdy elements and having political influence and financial support.  The complainant has not made any allegations against this OP2 and 3 and there is a collusion between the complainant and OP1. These OP2 and 3 are only formal parties and hence these Ops are neither necessary nor proper parties. The complaint is barred by limitation. There is no cause of action. There is a delay of 1 year 11 months in filing the complaint. Hence the complaint is liable to be dismissed. Therefore the OP2 and 3 prayed for dismissal of the complaint.
21. The complainant has filed his affidavit evidence and relies on 06 documents.  Affidavit evidence of OP2 and 3 has been filed and relies on 02 documents.
22. Heard the arguments of advocate for the complainant.  Oral argument is advanced on behalf of both the parties.  Perused the written arguments along with citations filed by complainant and OP2 and 3.
23. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP1  to 3?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

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

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

25. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence and written arguments with citations filed by both the parties.
26. The complainant has purchased the schedule site No.133 measuring 1200 sq. feet under registered sale deed dated 24.07.2017 for a valuable consideration of Rs.5,70,000/-.  After obtaining the sale deed the complainant has also raised the loan for a sum of Rs.4,49,171/- by mortgaging the schedule site in favour of OP4 for security of the loan amount.  The OP1 to 3 have also received an additional amount of Rs.84,000/- towards the site and it is not mentioned in the sale deed and he has totally paid Rs.6,30,000/-, paid as total sale value.
27. After completion of the sale transactions necessary documentation have been executed between the parties.  The OP1 failed to provide basic amenities as mentioned in the marketing agreement  as per A2 dated 01.12.2016 entered between the OP1 and OP2 and OP3 and as well as the sale agreement document No.A3 dated 29.12.2014 entered between the OP1 and complainant.
28. It is the specific grievance of the complainant that the OP1 did not take any steps to perform his part of the obligations and OP1 to 3 colluded with each other have not allowed the complainant for inspection of schedule site as they have an intention to cheat the complainant having malafide intention in order to escape from liability.  The Ops 1 to 3 have not provided basic amenities as assured at the time of entering into contract. They are also having background of rowdy elements and they are having political influence and financial support are not permitting the complainant to construct a house in the said site.  The complainant has purchased the site with an intention to construct a house in order to live in the house with his family members.
29. In support of his contention the complainant has produced the receipt as Ex.A1 for having paid the amount to the OP1 and the amount was received by the OP1 as per the receipts Ex.A1. 
30. On the other hand, the contention taken by the OP1 is that he is only a marketing agency and he is in no way concerned to carry out any works as sought by the complainant.  In addition to it, the main objection raised by the OP is that the complaint is barred by limitation and the complainant has filed this complaint after lapse of two years as per sec 68 of the C.P.Act. Hence he is not entitle for any relief.
31. It is further objection raised by the OP is that the complainant has obtained the sale deed on 28.04.2017 and none of these OP1 to 3 have given any undertaking either in the sale deed or in the sale agreement that they will provide the amenities as prayed by the complainant to the schedule site. They are no way concerned with the alleged amenities and they are not liable to provide the said amenities. This OP1 is only acted as a facilitator to acquire the site and except this he has no other responsibility.
32. It is also case of the OP1 that one DLF Limited, insisted a suit in OS No.389/2016 and OS No.390/2016 by making the OP2 and 3 as defendants before the Senior Civil Judge & JMFC, Magadi, the Hon’ble Judge has also granted interim injunction order dated 07.12.2016 restraining the defendants including the OP2 and 3 to maintain status-co in respect of alienation, encumbrance, existence and nature of the suit property.  When there is an order by the Hon’ble Civil Court not to change the nature and characteristic of the property the complainant cannot allege that there is a breach or deficiency in service against the OP1 to 3.  When there is a restraint order passed by the Civil Court against these Ops not to carry out any work or not to change the nature of the land.  In that light developing the property is nothing but breaching out the interim order granted by the Civil Court which is improper. There is no cause of action to file this complaint against these Ops.
33. The OP1 has neither adduced any evidence nor submitted any arguments in support of his contention.  On the other hand, the OP2 and 3 have led their evidence by filing their affidavit and also produced Ex.R1 and R2.
34. The contention taken by the OP2 and 3 who are the land owners is that they have entered into Ex.R2 Memorandum of Understanding with OP1 to develop the land in Sy.No.3 situated at Varthur Narasapura Village, since the MD of the OP1 namely B.P.Gangahanumaiah, being in real estate field and expert in marketing field and he only convinced the OP2 and 3 to enter into the agreement styled as marketing agreement as per Ex.A2 in favour of OP1.  These OP2 and 3 without knowing the contents of the document have executed the document No.A2 the marketing agreement and later they came to know that several unfavourable conditions imposed on them and they have got the same cancelled by execution of deed of cancellation on 15.01.2017 as per Ex.R1. After that they have entered into Memorandum of Understanding as Ex.R2 on 20.02.2017 between them and also B.P.Gangahanumaiah the MD of OP1.  As per the understanding these OP2 and 3 have to receive the site value Rs.250/- per sq. feet and in all Rs.5,50,00,000/- in order to sell 170 sites which were formed by the OP1.  As per their Ex.R2 they have only received the site value of Rs.250/- per sq. feet and the over and above amount was received by the OP1. As per Ex.R2 the OP1 has to develop the layout and he only undertaken to get all the approvals from the authorities and pay the assessment tax and also to provide all the amenities to the layout.  These OP2 and 3 are in no way related with any of the reliefs sought by the complainant.  These Ops have not at all given any undertaking in the sale deed executed in favour of the complainant that they will provide the sewage and water connection to individual flat, overhead electrical poll, tap roads, garden and park with kids play area, street lights with electric supply. However the layout so formed by OP1 is having intervening roads, water pipelines, sanitary and storm water drainage as on the date of execution of sale deed.  The complainant has purchased the site having satisfied with the limited facilities available in the layout. Hence now it is not open to the complainant to seek any relief much less the one sought in the prayer column.
35. It is further case of the OP2 and 3 that their liability to the site is only restricted to Rs.250/- per sq. feet.  Hence there is no deficiency of service or they have not cheated the complainant by giving any assurances that they will provide the amenities sought by the complainant.
36. The complainant was also cross examined by OP2 and 3 counsel.  The OP2 was also cross examined by the complainant counsel.  The complainant has clearly stated in his cross examination that prior to the purchase of the schedule site he has gone near the site and he has seen the site. After looking to the condition of the site he has got the registered sale deed Ex.A5.  He has gone near the site 15 days prior to execution of the sale deed dated 28.07.2017 and he has noticed the existence of kacha road, open drainage and electrical pole.  He has also clearly denied in his cross examination that the OP2 and 3 have not at all given any assurance to provide the amenities sought in his relief. 
37. On the other hand, the OP3 has clearly stated in his cross examination that OP2 is his mother and he has given evidence on her behalf also on the basis of the authorization letter given by her he has denied in his cross examination the Ex.R1 and R2 are false documents.  He has clearly admitted that he has not disclosed about the cancellation of marketing agreement and existence of Memorandum of Understanding entered between them and OP1 at the time of the execution of the sale deed.  He has further denied that he and his mother have made any promise to the complainant that they will provide all amenities to the site.  He has further admitted that they have not mentioned anything about R1 and R2 and the earlier marketing agreement entered between them to the complainant.  He has clearly admitted that the DLF has filed a case against him and his mother before the Magadi court and it is still pending.
38. It is clear from all the oral and documentary evidence adduced by both the parties that the complainant has purchased the schedule site in the layout converted land in Sy.NO.3, situated at varthur, Narasapura Village, measuring 30X40 feet totally 1200 sq. feet, for a valuable consideration from the OP2 and 3.  The sale agreement was entered between the OP1 and the complainant in respect of the schedule property. The OP1 has executed the same on the basis of the Memorandum of Understanding entered between the OP2 and 3 in their favour as per Ex.R2.  The Ops themselves have entered into the marketing agreement prior to entering into the sale agreement in favour of the complainant.  Later the OP1 to 3 themselves have entered into cancellation agreement and they have cancelled the marketing agreement on their own as per Ex.R1.  The cancellation of this Ex.R1 and the execution of Ex.R2 are not within the knowledge of the complainant.  As per the Ex.A2 the Ops have agreed to develop the plots with all the basic amenities as per the annexure of the agreement.  They have further stated the owners are responsible for the development of the plots over the schedule property as per the norms and they will complete the project within six months and additional three months of grace period from the date of signing the agreement.
39. It is pertinent to note here that the main contention taken by the Ops is that the complaint is not maintainable as it is barred by limitation. On perusal of the order sheet of this Commission dated 09.03.2021 this Commission has allowed the limitation application after hearing the complainant.  The Ops even after appeared before this Commission through their counsel have not at all challenged the order passed by this Commission allowing the limitation application and the said order is not at all set aside by any authority.  Under these circumstances, this Commission cannot reconsider the order passed by this commission at the time of admission of this complaint. Hence the Ops have no right to raise the objection regarding the limitation point.
40. The complainant has sought for the relief to provide the basic amenities as mentioned in the marketing agreement the Document No.A2 i.e., sewage and water connection to individual plot overhead electric poll, black top roads, garden and park with kids play area, street light with electric supply.  When the Ops have formed the layout it is their duty to provide the basic amenities to each individual plot as per the rules and regulations under the Karnataka Town and Country Planning Act and Rules.  It is also clear from the very version filed by OP2 and 3 that they have not provided the amenities sought by the complainant at the time of execution of the sale deed in favour of the complainant.
41. It is pertinent to note here that the OP1 has clearly stated in their version that one DLF limited has instituted a suit in OS NO.389/2016 and 390/2016 by making the OP2 and 3 as defendants before the Magadi Senior Civil Judge Court and the court has also granted the interim order dated 07.12.2016 restraining the defendants i.e., OP2 and 3 from alienation, encumbrance and change of nature of characteristic of property and to maintain status-co order.  Even thought he OPs are very much aware of the suit filed by the DLF limited before the Magadi court and the interim order granted by the court on 07.12.2016 have executed the absolute sale deed in favour of the complainant on 28.04.2017 as document No.A4 by suppressing the pendency of the suit and also the interim order granted by the civil court, thereby they have played fraud on the complainant.  Even though the layout was not completely developed by providing basic amenities to each site they have executed the sale deed by receiving the entire consideration amount.  the OP1 being a marketing agency is very much aware of the Karnataka Town Planning Rules and Regulations and there only formed the layout and sold the plots without giving any basic amenities to the complainant and other purchasers and thereby they have committed deficiency of service and also practiced unfair trade practice and played fraud on the complainant and other purchasers.
42. The complainant has relied on two decisions of the Hon’ble NCDRC.  

i)    Unnayan Builders Pvt. Ltd., -vs- Sona Bera in Rev. Petition No.715/2018(NCDRC)

ii)    Unnayan Builders Pvt. Ltd., -vs- Nabhanil Mandol First Appeal No.617/2018(MANU/CF/0541/2018)

The Hon’ble NCDRC upheld the decision of the Hon’ble State Commission of West Bengal holding that the onus lies on the seller or developer to show that they had given adequate amenities.  In this complaint the Ops 1 to 3 who are the seller and the developer failed to establish that they have given the basic amenities. On the other hand, the decision cited by the OP2 and 3 are not applicable to the facts and circumstances to this case.

43. When there is no basic amenities provided by the OP1 to 3 the complainant cannot construct a house and reside in the said house.  The complainant invested his hard earned money by raising loan from the OP4 is not in a position to construct the house in view of the litigations faced by the OP2 and 3, the land owners before the Magadi Court.  The OP1 to 3 even though they are aware of the interim order granted by the court and they are very much aware that they cannot develop the property by giving all the facilities have sold the property without giving the basic amenities and thereby they have committed the deficiency of service and negligence.
44. The OP1 to 3 are also not at all interested in contesting the original suit pending before the Magadi Court after executing the sale deed and hence the complainant was made to purchase a litigation property which is hit by lis-pendency.  Even though the complainant has paid the entire sale consideration amount and obtained the registered sale deed he has to face the litigation and to wait for the outcome of the litigation in order to construct the building in the schedule property.
45. When the Ops1 to 3 are not in a position to develop the property by giving basic amenities as sought by the complainant it is their duty to refund the amount to the complainant subject to get the cancellation deed from the complainant. The complainant is entitled for the alternative relief for refund of the amount with compensation and litigation charges.
46. It is pertinent to note here that the complainant has not sought any relief against OP4 and it is only a formal party. Hence the complaint is liable to be dismissed against OP4.  The OP1 to 3 are jointly and severally liable to refund the amount in favour of the complainant. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
47. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part against OP1 to 3.
2. The complaint is dismissed against OP4.
3. Complainant is entitled to the alternative remedy subject to execution of Cancellation Deed of Sale Deed in favour of OP2 and 3. OP1 to 3 are jointly and severally liable to refund the amount. Hence OP1 to 3 are directed to refund an amount of Rs.7,14,000/- with interest at 12% p.a., from the date of respective payment till realization.
4. Ops further directed to pay a compensation of Rs.1,00,000/- with litigation charges of Rs.20,000/- to the complainant.
5. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 14% p.a. after expiry of 60 days on Rs.7,14,000/- till the realization.
6. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 26^th day of JUNE, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party2 and 3 – R.W.1;