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

DATED 11^th DAY OF APRIL 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. The complainants filed complaint under Section 12 of C.P.Act, 2019 (herein after referred as an Act) for the following reliefs against the OPs:-

(a) Direct the OPs to refund advance amount of Rs.2,45,000/- along with interest at 24% p.a. from the date of payment till the date of actual payment.

(b) Direct the Ops to pay Rs.1,00,000/- towards mental agony and physical strain and also towards cost of the proceedings and such other reliefs.

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

The father of the complainants Sreenivasulu Naidu died on 25.01.2016, who had entered into agreement of sale with OPs in respect of site No.151 for sale consideration of Rs.9,75,000/-.  Father of the complainants paid Rs.2,00,000/- on 08.04.2044 and Rs.45,000/- on 15.04.2004 in respect of the above site.  Even though, father of the complainants paid advance money, the OPs neither come forward to execute the sale deed by demanding balance amount nor refunded the amount.  On 17.09.2016, the complainants gave representation for refund of the amount.  But, OPs failed to refund the amount.  Thereby, OPs have committed deficiency in service.  Hence, this complaint.

3. In response to the notice, OP No.2 and 4 appeared and filed version.  Later on OP Nos.3 and 5 appeared and filed version.  But, version of the OP No.3 came to be rejected vide order dated 21.03.2018. 

4. The OP No.2 denies entire case of the complainant.  The validity of agreement dated 03.11.2004 closed on 3^rd November, 2004.  The complainants have no locustandy to file complaint against OP No.2.  OP No.2 denies execution of agreement and receipt of Rs.2,45,000/- part of the sale consideration from the father of the complainants.  There is no deficiency of service.  Op No.2 requests to dismiss the complaint.

5. OP No.4 contends that complaint is not maintainable either in law or on facts.  The complaint is barred by limitation.  OP No.4 neither party to the agreement dated 03.11.2004 nor recipient of any amount from the complainants. OP No.4 is not a party to the alleged agreement.  There is no deficiency of service on the part of OP No.4.  OP No.4 is not liable to pay any amount to the complainants.

6. The OP No.5 contends that there is no sale agreement between complainants and OP No.5.  The OP No.5 has not received any consideration amount from the father of the complainants.  There is no privity of contract.  The OP No.5 requests to dismiss the complaint.

7. The complainants have filed affidavit evidence of complainant No.1 and rely on certain documents. The affidavit evidence of OP No.5 has been filed.  Even OP No.3 has filed affidavit evidence, but his version came to be rejected.  Therefore, evidence of OP No.3 is not taken into consideration.

8. Heard the arguments and perused the records.     

9. The following points arise for our consideration:-

1. Whether the complainants prove deficiency of service on the part of OPs?
2. Whether the complainants are entitled to relief mentioned in the complaint?
3. What order?

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

       Point No.1:  In the affirmative.

      Point No.2:- Partly in the affirmative.

      Point No.3: As per final orders

REASONS

11. Point Nos.1 and 2:  These two points are co-related to each other.  Therefore, these two points have been taken for common discussion to avoid repetition of discussion.
12. At the first instance, we would like to rfer the admitted facts.  The complainants are daughters of late Sreenivasulu Naidu who died on 25.01.2016.  The Sreenivasulu Naidu being the father of complainants paid Rs.2,00,000/- on 08.04.2004 and Rs.45,000/- on 15.04.2004 under document Nos.1 and 2 to the OP Nos.1 and 2 in respect of part of sale consideration of Rs.9,75,000/- with an intention to purchase of site bearing No.151.
13. Despite repeated demands made by Sreenivasulu Naidu, the OPs neither allotted the site nor refunded the earnest money.  The complainants demanded refund of amount or execution of registered sale deed by giving representation dated 17.09.2016.  But, OPs neither executed sale deed nor refunded the earnest money.  This act of the OPs amounts to deficiency of service.  Hence, this complaint.
14. The averments made in the complaint are being spoken by one of the complainants.  The payment of Rs.2,00,000/- and Rs.45,000/- by Sreenivasulu Naidu to OP Nos.1 and 2 is proved through Ex.A.2 and Ex.A.3.  The OP No.2 being the Director Admin of OP No.1 has issued these two receipts and entered into an agreement dated 3^rd November, 2004 wherein he agreed to execute sale deed on payment of balance amount of Rs.7,30,000/- in three months from the date of agreement.  The OP Nos.1 and 2 being venders agreed to execute the registered sale deed on receipt of full consideration amount.  Sreenivasulu Naidu died before getting refund of amount. 
15. One of the contentions by the contesting OPs that complaint is barred by limitation.  The counsel for the complainant placing reliance on the following decisions vehemently argues that the complaint is not barred by limitation.

1. Laws (CAL) 2004-12-16 in the matter between Juliet V. Quadros Vs. Malti Kumar.
2. Laws (NCD) 1998-7-19 in the matter between Time properties and Promoters Etc., Vs. Rakesh Jain.
3. AIR 2000 Supreme Court 380 in the matter between Lata Construction and others Vs. Dr.Rameshchanddra Ramniklal Shah and another.

16. Whereas advocate for OP No.5 placing reliance on the following decisions vehemently argues that the complaint is barred by limitation.

1. (2009) 5 Supreme Court Cases 121 in the matter between State Bank of India Vs. B.S.Agriculture Industries (I).
2. D.Gopinathan Pilla Vs. State of Kerala and another dated 15.01.2007 in Civil Appeal No.220/2007.

17. It is relevant to note that OP Nos.3 to 5 neither the recipient of Rs.2,45,00/- nor signatory of agreement of sale. The death certificate of Sreenivasulu Naidu has been produced under Ex.A.4. Ex.A.5 indicates that Sreenivasulu Naidu died leaving beyond his wife P.Jayalakshmi and present complainants as legal heirs.  The complainants by issuing legal notice dated 17.09.2016 called upon the OPs to execute the registered sale deed by receiving balance consideration or Rs.2,45,000/- with interest at 24% p.a. and compensation of Rs.1,00,000/-.  Unfortunately this notice not served on the OPs.
18. It is also relevant to note that the OP Nos.1 and 2 being recipients of the amount and being executants of agreement of sale never called upon either Sreenivasulu Naidu or complainants expressing  that they were ready and willing to execute sale deed and demanding payment of balance amount of Rs.7,30,000/.  The silence of the OP Nos.1 and 2 without expressing their intention to execute the sale deed and without calling upon the complainants to pay balance amount of Rs.7,30,000/- clearly indicates that the complainants have continues cause of action.  The first decision relied by the counsel for the complainants clearly indicate that time is not essence of the asking in case of immovable property. 
19. In the second decision, the Hon’ble Supreme Court of India categorically ruled that the cause of action in regard to claim of compensation if continuing cause of action.  It is true that the complainants have not asking possession, but by issuing legal notice referred above, the complainants called upon the OPs to execute the registered sale deed by accepting the balance amount.  The complainants have continuous cause of action to admission of execution of sale deed or refund of amount.
20. We carefully perused the two decisions relied by the advocate for OP No.5.  These two decisions are not applicable to the present case on hand.  In the first decision, the appellant Bank intimated the complainant by letter dated 28.03.1995 that the bills and GRS were reported Branch Manager, Konar i.e. complainant Sales Manager on 10.05.1994.  But, complaint was not filed within two years from 10.05.1994.  Therefore, this decision is not applicable to the present case on hand, the simple reason that the OP Nos.1 and 2 never expressed their intention to execute the sale deed prior to filing this complaint and they never demanded payment of balance amount before execution of registered sale deed.
21. In the 2^nd decision, there was a delay of 3320 in filing the Arbitration proceedings.  But, in the present case, the complainants being the daughters for continues cause of action asking the OPs to either to execute the registered sale deed by accepting balance consideration or to refund Rs.2,45,000/-.  Therefore, these two decisions are not applicable to the present case on hand.
22. As intimated above, the OP Nos.3 to 5 neither the recipients of the amount nor executants of the receipts and agreement.  Therefore, there is no deficiency of service of the OP Nos.3 to 5.  It has been proved that the OP Nos.1 and 2 being the responsible persons for refund of Rs.2,45,000/- or executed agreement of sale.   But, OP Nos.1 and 2 neither ready to execute the registered sale deed nor ready to refund Rs.2,45,000/-.  Therefore, OP Nos.1 and 2 only liable to refund the amount.
23. We carefully perused the evidence of OP No.5 who categorically said that neither he received the amount nor party to the agreement of sale.  The same contention is also by OP No.4.  Even OP No.3 has filed affidavit evidence, but his version was rejected as time barred.
24. The complainants prove the deficiency of service on the part of OP Nos.1 and 2 only.  Therefore, complainants are entitled to an order against the OP Nos.1 and 2 who are liable to refund Rs.2,45,000/- to the complainants.  Non-addition of mother of complainants is not petal to the case of the complainants. The complainants claim interest at 18% p.a. and compensation of Rs.1,00,000/-, this claim is exorbitant.  Even though, complainants relies on the order of 2^nd Additional District Consumer Disputes Redressal Commission, Bengaluru in Complaint No.1149/2011 dated 10.02.2012.  But, recently the Hon’ble National Commission and Hon’ble Supreme Court of India were pleased to award interest at 9% p.a. only from the date of payment till realization as compensation and not additional amount granted as compensation.  Under such circumstances, the complainants are entitled to interest at 9% p.a. on Rs.2,00,000/- from 08.04.2004 and on Rs.45,000/- from 15.04.2004 till realization.  OP Nos.3 to 5 are not liable to pay any amount to the complainants.  
25. Point No.3:- Having regard to the discussion made above, the complaint requires to be allowed in part against OP Nos.1 and 2.  The complaint against OP Nos.3 to 5 requires to be dismissed.  The OP Nos.1 and 2 are liable to refund Rs.2,45,000/- to the complainants with interest at 9% p.a. on Rs.2,00,000/- from 08.04.2004 and on Rs.45,000/- from 15.04.2004 till realization.  The complainants are also entitled to Rs.5,000/- as cost of litigation.     We proceed to pass the following 

  O R D E R

1. The complaint is allowed in part against OP Nos.1 and 2 only.
2. The complaint against OP Nos.3 to 5 is dismissed.
3. The OP Nos.1 and 2 shall refund Rs.2,45,000/- with interest at 9% p.a. on Rs.2,00,000/- from 08.04.2004 and on Rs.45,000/- from 15.04.2004 to the complainants.
4. The OP Nos.1 and 2 shall pay Rs.5,000/- towards cost of litigation to the complainants.
5. The OP Nos.1 and 2 shall comply this order within 60 days from this date.    
6. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 11^th April, 2022)

Documents produced by the Complainant which are as follows:-