Date of Filing:13.06.2007<br /> Date of Order: 19.08.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 19TH DAY OF AUGUST 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> <br /> <br /> <br /> COMPLAINT NO: 1173 OF 2007<br /> <br /> <br /> R. Laxman,<br /> S/o Late Ramachandrachari,<br /> Occ: Jeweller,<br /> R/at No. 115, 4th Main,<br /> Jayamahal Extension,<br /> Bangalore-46. Complainant<br /> <br /> <br /> V/S<br /> <br /> 1. M. Venugopal,<br /> S/o Late Muniappa Reddy,<br /> R/at Kodihalli village,<br /> Indira Nagar Post,<br /> Bangalore-560 008.<br /> <br /> 2. M/s The Prudential <br /> Partnership firm involved in<br /> the activities of land development,<br /> Builders and contractors having its <br /> Registered office at:<br /> No.30, Poorna Prasad Extention,<br /> Racecourse Road,<br /> Bangalore-560 001.<br /> <br /> 3. Sandeep S. Rao,<br /> S/o K.K. Suryanarayana Rao<br /> <br /> <br /> 4. Smt. Sandhya Ananth,<br /> Fathers name not known by the complainant.<br /> <br /> 5. Kumari Shubha Rao,<br /> Fathers name not known by the complainant.<br /> <br /> Respondent Nos. 3 to 5 residing at:<br /> <br /> “CARDIC HOUSE”, 367, 14th Cross,<br /> Sadhashivnagar, (Behind Ganapathy Temple)<br /> Bangalore-560 080. Opposite Parties<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under the provisions of Consumer Protection Act, 1986 to direct the opposite parties to complete the construction of flat No. 1008 and to execute the sale deed in favour of complainant and to grant compensation of Rs.7,00,000/-.<br /> The facts of the case are that, opposite party No.1 is owner of a residential composite property bearing HASB No.648/1 BC situated at Kodihalli village, Bangalore South Taluk. The opposite parties had agreed to construct a residential complex of flats named as PRUDENTIAL PAVAN. The opposite party No.1 executed GPA in favour of developer/opposite party No.2 authorizing to enter into agreements for sale of undivided interest in the composite property and also to construct apartment as per approved plan and sell the same to intended buyers. Complainant entered into agreement on 20/12/1996 executed between himself and opposite party No.2. Complainant has paid a sum of Rs.5,60,000/-. On the same day supplementary agreement executed. The flat agreed upon to be purchased by the complainant numbered as 1008. The consideration amount of Rs. 13.5 lakhs was paid. The entire cost of construction was paid as per the terms of payment schedule agreed with the developer. The entire sale consideration of Rs. 13.5 lakhs was paid between 20/12/1996 to 28/11/1997. According to the terms of construction opposite party No.2 should have completed construction of the flat and delivered the possession to the complainant. Opposite party No.2 failed to complete the construction and hand over the possession of schedule property. A meeting was arranged in the first week of June-2000. In the event of opposite party No.2 promised that construction and delivery of flat would be completed within 9 months from June-2000. In the event of opposite party No.2 fails to keep up his time schedule opposite party No.1 would terminate the development agreement and would take over the construction and complete the same and handover the flats to the respective flat owners. Supplementary agreement dated 7/6/2000 is entered. In the supplementary agreement dated 7/6/2000 executed between developer and opposite party No.1 the particulars of flat owners and the amount received by the developer from each flat owner and balance if any is mentioned. It is the case of the complainant that opposite party No.1 terminated the agreement with the developer and took over the entire project from the developer in 2001. The complainant was informed about the same and it was assured that project would be completed and flat would be handed over. Even after opposite party No.1 took over the project he failed to complete the construction and hand over the possession of the flat. One of the purchasers Sri. C.S.Muddappa approached the Hon’ble State Commission in Complaint No.128/2001 the Hon’ble State Commission by order dated 6/2/2004 was pleased to allow the complaint and direct the opposite party to handover the possession of the property and to pay damage in that case.<br /> <br /> 2. Notice was issued to opposite parties. They have put in appearance through advocates. Opposite party No.1 Mr. Venugopal has filed his version stating that complaint is not maintainable. It is submitted that opposite party No.1 and the developer M/s PRUDENTIAL had agreed to construct residential complex of flats named as Prudential Pavan. It is true that opposite party No.1 executed GPA in favour of the developer authorizing to enter into agreement for sale and construct apartments and to sell the same to intended buyers. It is submitted that this complainant has filed a complaint No.58/2005 before DCDRF at Bangalore. This opposite party has filed defence version in that complaint contending that document produced is concocted one. The DCDRF by its order dated 30/09/2005 dismissed the complaint. The complainant has not produced any evidence to show that Sandeep.S. Rao has been authorized to sign the document on behalf of other partners. Aggrieved by the dismissed order of the complaint, the complainant had preferred an appeal before the State Commission in Appeal No.1760/2005. On 20th March-1995 the opposite party No.1 had entered into agreement with M/s Prudential with certain conditions as per the agreement deed. As per the agreement this opposite party retained the right to sell and own and enjoyed and dispose off 43% of the super built up area and proportionate car parking area. As per the agreement the opposite party No.1 had delivered the possession of the land in favour of the M/s Prudential for developing and construction of the building. In spite of said agreement, the developer failed to construct the building and stopped the construction work. When the building became dilapidated condition the opposite party taken over the possession as per the terms of agreement and he had completed construction work by spending nearly 1 Crore 40 lakhs. The agreement said to have been executed by the opposite party in favour of M/s Prudential dated 07/06/2000 is a concocted one and it is not within the knowledge of this opposite party. If the complainant had paid any amount to M/s Prudential he has got every liberty to recover the same from M/s Prudential. Opposite party No.1 submitted that he is no way concerned with the transaction between the complainant and M/s Prudential. It is true that one Sri. C.S. Muddappa had also filed a complaint in Complaint No.128/2001 against the opposite party and the Hon’ble State Commission has allowed the complaint by its order dated 6/2/2004. Aggrieved by the said order this opposite party had preferred an appeal before the National Commission and the matter is still pending. For all these reasons stated above, the opposite party No.1 requested to dismiss the complaint. <br /> 3. Opposite party No.2 to 5 have submitted separate defence version stating that, opposite party No.2 being a partnership firm and opposite party No.3 to 5 are the partners. The said firm resolved after death of K.K. Suryanarayana. The firm had developed property by constructing flats. The complainant is one of the purchasers of the apartment in the residential complex named as Prudential Pavan. The apartment purchased is bearing No.1008 in the ground floor and first floor for total consideration of Rs.13,50,000/-. The opposite party No.3 herein has executed agreements on behalf of the opposite party No.1 in terms of GPA. The project work was entered into between the opposite party No.1 and other opposite parties. The opposite party No.2 to 5 submitted that they are not responsible for any default as they have already handed over the project work of the opposite party No.1. It is the responsibility of the opposite party No.1 to complete the work and hand over the flats to the respective purchasers. There is no relationship of consumer between the opposite party No.2 to 5 and the complainant. For the reasons the whole responsibility has been handed over to the opposite party No.1 immediately on execution of the supplementary agreement. The opposite party No.2 to 5 submitted that the entire amount in respect of the said project had already been paid to the opposite party No.1. It is the responsibility of the opposite party No.1 to complete the project and hand over the same to the complainant. Therefore, the opposite party No.2 to 5 submitted that complaint be dismissed against them.<br /> 4. The complainant Sri. R. Laxman has filed his affidavit evidence. Opposite party No.1 M.Venugopal has also filed his affidavit. Opposite party No.3 Sandeep has also filed his affidavit evidence. Affidavit of H.R. Suresh, Chartered Accountant has also been filed. Arguments are heard.<br /> 5. The points for consideration are:- <br /> a. Whether opposite party No.1 can be directed to execute the sale deed in favour of the complainant in respect of the flat No.1008 and to deliver the possession of the same?<br /> b. Whether the complainant is entitled for the damages?<br /> c. What order and relief? <br /> <br /> REASONS<br /> <br /> 6. This is a second round of litigation. The present complainant had filed a complaint No.258 of 2007 before the IV Additional District Consumer Disputes Redressal Forum, Bangalore against Venugopal opposite party No.1. His complaint came to be dismissed by order dated 30th September-2005. Aggrieved by the said order the complainant preferred an appeal before the Hon’ble State Consumer Disputes Redressal Commission in Appeal No.1760 of 2005. The impugned order of the District Forum was set aside and the complainant permitted to withdraw the complaint bearing No.258 of 2005 with liberty to the complainant to file fresh complaint impleading developer as a party to the proceeding. Thereafter, the complainant has filed the present complaint on 13/06/2007. The complainant had agreed to purchase one flat bearing No.1008(duplex) in ground and first floor measuring super built up area of about 1347 sq.ft.,. There is an agreement of sale executed between complainant and the developer M/s PRUDENTIAL on 20/12/1996. The complainant has paid entire sale consideration amount of Rs.13.5 lakhs on various dates from 1996 to 1997. The complainant has produced receipts for having paid the amount. The entire sale consideration amount was paid to the developer. As regards the payment of the amount there is no dispute. The opposite party No.2, the Prudential partnership firm never disputed the payment made by the complainant. Therefore, the averments of the complainant are that, he has paid entire sale consideration amount for the flat shall have to be accepted as true and correct. There was an agreement between the opposite party No.1 and 2 on 20th December-1996 called agreement to sell un-divided interest (Land Owner, Promoters and flat owner). There was another agreement entered on the same day between the complainant and the M/s Prudential, a partnership firm. Under the above 2 agreements the complainant has paid the entire sale consideration amount. The complainant is relying a supplementary agreement dated 07/06/2000 entered in to between the opposite party No.1 and 2. As per that agreement opposite party No.1 has taken over the entire project by terminating the earlier agreements entered with the developer. The details of the apartment already agreed to be sold by developer and the consideration amount received and balance amount has been mentioned in schedule “A” of the agreement. Against the name of present complainant Laxman flat No.1008 ground and first floor measuring 1347 sq.ft., and the consideration amount received is shown as Rs.13,50,000/- and in the column Balance Consideration Receivable is shown as nil. It is the case of the complainant that opposite party No.1 terminated the agreement with the developer and took over the entire project for himself from developer and same was informed to the complainant and it was established that the project would be completed and flat would be handed over to the complainant as early as possible. The complainant submitted that even after opposite party No.1 taking over the project had failed to complete the construction and handover the vacant possession of flat No.1008. The case of the complainant is that opposite party No.1 has however completed construction of some flats and handed over the possession to the respective owners. The complainant has produced 2 sale deeds executed by opposite party No.1 Venugopal in favour of the purchasers of flats. One sale deed was in favour of Hansa Ashoka dated 25/08/2004. This is in respect of flat No.1003 situated at ground and first floor. Certified copy of another sale deed executed by Venugopal opposite party No.1 in favour of Sri. Umesh and Kalpana Patel is produced by the complainant. This is dated 29/03/2005 and this sale deed is in respect of flat No.3008 in the second and third floor of the building known as Pavan Enclave. The complainant has produced a copy of Caveat Petition field by Venugopal against the Prudential partnership firm before Civil Judge Court, Bangalore. This Caveat is dated 22/08/2000. In the said Caveat Petition Venugopal clearly admitted execution of supplementary agreement dated 07/02/2000 between himself and the Prudential partnership firm. The opposite party No.1 Venugopal has clearly admitted and accepted that he has taken over the construction of entire project for himself from the Prudential. This fact is clearly mentioned in the 2 registered sale deeds executed by Mr. Venugopal in favour of the purchasers of the flats. The recitals made in the registered sale deed by Mr. Venugopal bind on him. Now he cannot deny the fact that there was a supplementary agreement between himself and developer and as per that agreement he has taken entire project for himself. The complainant has produced a copy of judgment of Hon’ble Karnataka State Consumer Disputes Redressal Commission in complaint No.128/2001 rendered on 6th February-2006. In the said complaint one Muddappa had filed a complaint against Prudential partnership firm and also Mr. Venugopal in respect of apartment No.3002. The complaint of Muddappa has been allowed by the Hon’ble Commission and opposite party No.1 and 2 are directed to handover the possession of the property and also to pay damages of Rs.1 ½ lakhs to the complainant. The facts of the present case are similar with the facts of the complaint filed by Muddappa. Both these 2 complaints are identical in nature. In the supplementary agreement against flat No.3002 name of Muddappa is shown as purchaser and the consideration amount received is shown as Rs.16,50,000/- and balance consideration amount receivable is Rs.1,40,000/-. These facts are mentioned in schedule “A” of the supplementary agreement entered into between the opposite party No.1 and 2. Therefore, the case of Muddappa and of the present complaint is being identical and one and the same and already the Hon’ble State Commission has allowed the complaint of Muddappa and directed the opposite parties to handover the possession of the flat and to pay compensation by considering all the facts and circumstances of the case and the documents. The present case is being identical in nature in all respect. This Forum shall have to accept and follow the judgment rendered by the State Commission and there is absolutely no scope whatsoever to differ or render a different finding. The judgment of State Commission is binding on this Forum. When the matter had been decided in an identical case by the higher authority that judgment has to be followed by the District Forums. The learned advocate for the opposite party No.1 argued that the judgment rendered by the State Commission in favour of Muddappa has been challenged before the Hon’le National Commission, New Delhi. Mere filing of appeal does not take away the legal effect and binding nature of the judgment rendered by the Hon’ble State Commission. Therefore, filing of appeal before the Hon’ble National Commission will not help in any way to opposite party No.1 to escape from the obligation and commitment to execute sale deed of flat No.1008 in favour of complainant. It is very unfortunate that the complainant with a hope of getting a flat for his residence was not able to get the possession of the flat for the last 10 years. The complainant has paid huge amount of Rs.13.86 lakhs on different dates during the year 1996-97. In spite of paying huge amount he was not been able to get possession of the flat as agreed upon. Consumer Protection Act is a social and benevolent legislation it intends to protect better interest of the consumers. In this case, on account of some dispute between the land owners and the developer the consumer had suffered lot. The consumer was not able to get the flat in spite of paying huge amount. Opposite party No.1 Venugopal executed 2 registered sale deed to the respective purchasers of flat. But he has failed to execute sale deed and deliver possession of the flat in favour of the complainant for one or other reasons. Therefore, the complainant has proved deficiency in service on the part of opposite party. The opposite party No.1 shall be directed to execute sale deed in respect of flat No.1008 and deliver possession of the flat after completion of construction. The complainant has also prayed loss of rent of Rs.5,40,000/- for 36 months in complaint. He has also claimed Rs.1,60,000/- towards mental agony, inconvenience and mental stress. As regards loss of rent which had been restricted to 36 months there is no proper evidence. On the facts and circumstances of the case, it is not a case to grant any amount towards loss of rent. As regards delay, mental agony, inconvenience, and harassment are concerned the Hon’ble State Commission has granted Rs.1,50,000/- as compensation in the case of Muddappa in complaint No.128/2001. Since the present facts of the case are identical with the case of Muddappa rendered by the State Commission, I also feel the ends of justice will be met in awarding damages of Rs. 1,50,000/- to the complainant for mental agony and harassment. Since the opposite party No.2 M/s Prudential partnership firm had handed over the entire project in favour of opposite party No.1 and the opposite party No.1 had taken over the project for himself being the land owner and he had executed sale deed to the respective purchasers. The Prudential partnership firm is remained only as a formal party to the present proceeding. Prudential partnership firm has not contested the present case. Even the defence version filed by the opposite party No.2 to 5 has not been signed by the respective parties. Defence version has been submitted with a signature of Advocate that means there is no legal and proper defence version. Such defence version cannot be considered as a defence at all. It appears that, M/s Prudential has not participated in the present proceeding because, it has lost its right and interest over the project since the entire project had been taken over by opposite party No.1. Taking into consideration of the facts and circumstances of the case and the arguments advanced by both the learned advocate for the parties, I am of the opinion that the complaint is liable to be allowed. In the result, I proceed to pass the following:-<br /> <br /> ORDER<br /> <br /> 7. The complaint is allowed. The opposite party No.1 Venugopal is directed to complete the construction and execute registered sale deed and deliver possession of flat No.1008 duplex consisting of ground and first floor measuring 1347 sq.ft., a residential complex named as Prudential Pavan located at H.A.S.B, No.684/1-BC, Kodihalli village, Varthur Hobli, Bangalore South Taluk. The complainant has to bear stamp duty and registration charges. <br /> 8. The opposite party No.1 is directed to pay Rs.1,50,000/- as compensation to the complainant for mental agony.<br /> 9. The complainant is entitled to Rs.3,000/- as costs of the present proceedings from the opposite party No.1. <br /> 10. Send the copy of this Order to both the parties free of costs immediately. <br /> <br /> 11. Pronounced in the Open Forum on this 19TH DAY OF AUGUST 2008. <br /> <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br /> Rhr.<br /> <br />