Complaint filed on: 06-09-2011 Disposed on: 05-04-2013 BEFORE THE BANGALORE IV ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 C.C.No.1649/2011 DATED THIS THE 5th APRIL 2013 PRESENT SRI.J.N.HAVANUR, PRESIDENT SRI.H.M.SHIVALINGAPPA, MEMBER Complainant: - Mrs.Premilla.V.Kumar, W/o. Mr.S.Vijaya Kumar, Aged 44 years, R/at No.2, 1st floor, “N” street, Shanthinagar, Bangalore – 27 V/s Opposite parties: - 1. M/s. Happy Home Constructions Pvt. Ltd, A company incorporated under the provisions of the companies Act, 1956 and having its principal office at No.179/12-01, 312/3, 2nd cross road, Wilson garden, Lalbagh road-Hosur road, (Near Barbar Granite), Bangalore-27. Reptd herein by its Managing Director Mr.N.Manohar Reddy, 2. M/s. City Square Enterprises Pvt. Ltd, A company incorporated under the provisions of the companies Act, 1956 and having its corporate office at No.312, 3rd floor, Royal Corner, KH road, Banglore-27 Reptd herein by its Managing Director Mr.N.Manohar Reddy, ORDER SRI.J.N.HAVANUR, PRESIDENT This is a complaint filed by the complainant against the OPs no.1 and 2, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OPs no.1 and 2 to execute a registered sale deed in her favour with respect to residential plot allotted to her i.e. site no.220 measuring 200 sq. ft. in the project known as “Bricks and Boundaries” formed in Sy. No.38/2 (P) situated at Rachamanahalli village, Kasaba Hobli, Anekal taluk, Bangalore District or executes a registered sale deed in favour her with respect to any other alternate residential plot or repay a sum of Rs.3,60,000=00 alongwith interest at 18% p.a. from 12-5-2004 till the date of payment, and to pay compensation of Rs.15.00 lakhs. 2. The brief facts of the complaint can be stated as under. The OPs no.1 and 2 are registered companies having their principal offices at Bangalore and they are represented by their common Managing Director by name N.Manohar Reddy. In the year 2004, the complainant was introduced to a project by name Airport County Annexe at survey nos.75, 84/1 and 85 situated at Begur village, Jala hobli, Bangalore north taluk, Bangalore District which was being developed, promoted and sold by the OP no.1 to interested customers. The complainant being interested in purchasing a residential plot in the said project approached the OP no.1. The OP no.1 showed a sketch of the layout map and claimed that the same was approved by the concerned planning authority, BIAPP. Based on the assurance of the OP no.1, the complainant entered into an agreement of sale dated 19-3-2004 with the OP no.1 for the purchase of a residential plot bearing no.10, measuring 2400 sq. ft in the said project known as “Airport county Annexe” situated at Sy. No.75, 84/1 and 85 Begur village, Jala hobli, Bangalore North Taluk, Bangalore District for a sale consideration of Rs.3,60,000=00. At the time of entering into the said agreement of sale, the complainant paid a sum of Rs.1,40,000=00. The balance amount of Rs.2,20,000=00 was to be paid by the complainant to the OP no.1 at the time of registration of the sale deed. The payment also gave the complainant the privilege of getting a free membership in the Happy Home Resorts in 11 cities. The complainant thereafter rendered further payments towards the balance sale consideration payable by her to the OP no.1. Upon receiving the entire sale consideration of Rs.3,60,000=0, the OP no.1 executed a registered sale deed dated 12-5-2004 in favour of the complainant with respect to site no.10, formed out of Sy.No.75, 84/1, and 85 Begur village, Jala hobli, Bangalore north taluk. Upon acquiring right, title and interest in the said residential plot bearing site No.10, the complainant visited the site on several occasions. During one of her visits, in the year 2007, the complainant was shocked to see that a compound wall had been erected across her property. On making enquiries, the complainant was informed that the land had been acquired by the Bangalore International Airport Limited for the purpose of formation of the international Airport, much prior to the layout being formed and the said site having been sold to her. The complainant approached the OP no.1 and complained to them about the fact that a wall had been erected across her property, at that time; the OP no.1 bluntly informed her that they had already executed a sale deed in her favour, and they had completed their obligation and could not assist the complainant. Thereafter, the complainant approached the concerned planning Authority BIAPPA seeking clarification on the project formed by OP no.1. The complainant was informed that the project was approved by the planning authority; however, that site belonging to the complainant did not form part of the project, and was also informed that the layout plan shown to the complainant by the OP no.1 was not the actual sanctioned plan and approved by the authority. The complainant on getting to know this fact approached the OP no.1 and informed and that the complainant persisted the OP no.1 relented and informed the complainant that there had been a mistake that there existed no site no.10 and that the OP no.1 was willing to return the entire sale consideration paid by the complainant, the complainant informed the OP no.1 that she had invested her life savings into the purchase of the said plot, so the return of her money would not help her in buying a new site, and the complainant requested that an alternate site be provided for her instead, and after repeated calls and reminders the managing director of OP no.1 and 2, Mr.N.Manohar Reddy confirmed that they would allot to the complainant an alternative site in another project Bricks and Boundaries being developed by the OP no.2 a sister concern of OP no.1 in exchange for the non existent site already sold and registered in the name of the complainant. The complainant immediately agreed to the said proposal of the OP no.2 and requested that the registered sale deed be executed in her favour immediately with respect to the alternative site in the project Bricks and Boundaries. Despite the assurance of an alternate site, the complainant was once again made to wait for several months to get the alternative site allotted. After repeated reminders and requests, the OP no.2 informed the complainant that she would be allotted an alternative site bearing site no.220 in the approved layout bricks and boundaries measuring 2000 sq. ft. formed in Sy. No.38/2, Rachamanahalli Village, Anekal Taluk in exchange for the site bearing no.10, and this proposal was acceptable to the complainant and by a letter dated 25-8-2008 she informed the 2nd OP of the same and requested the 2nd OP to execute a sale deed in her favour with respect to the alternate site. After making several requests and reminders the OP no.2 executed a sale agreement dated 5-9-2008 in favour of the complainant with respect to site no.220 in the layout bricks and boundaries formed in Sy.No.38/2 (P) situated at Rachamanahalli village, Kasaba Hobli, Anekal Taluk, Bangalore District. As per the agreement of sale executed by the OP no.2, the OP no.2 was willing to register a sale deed in favour of the complainant with respect to site no.220 in the layout Bricks and boundaries in exchange for the site bearing no.10. The OP no.2 under took to execute the registered sale deed with respect to the alternate site within a period of 4 months from the date of execution of the agreement of sale, however till date the OP no.2 has failed to register the sale deed in favour of the complainant and has been instead making bald and evasive excuses. By first selling a non existent site to the complainant on receipt of the entire sale consideration, then failing to address her grievances for several months and making her to run from pillar to post, then thereafter agreeing to rectify the deficiency by registering an alternate site by virtue of an agreement of sale. After having waited in vain for the execution of the registered sale deed, the complainant has made several visits to the office of the OPs begging for what she is legally entitled to, thereafter, the complainant issued a letter dated 12-3-2011 calling upon the OP no.2 to execute the registered sale deed, the OP no.2 has received this letter. The OPs have till date failed to execute a registered sale deed in favour of the complainant in terms of the agreement of sale dated 5-9-2008. The OPs are guilty of deficiency of service in having collected valuable consideration for performing a specific service and thereafter failing to effectively complete the same as required by law. The complainant is therefore entitled for the execution of the registered sale deed in her favour or in the alternative site is not available for sale, then for the refund of the payment Rs.3,60,000=00 alongwith interest at the rate of 18% p.a. from the date of the first sale deed till the date of realization, and the complainant may kindly to be awarded damaged of Rs.15.00 lakhs. Hence, the present complaint is filed. 3. After service of the notice, the OP no.1 has appeared through its counsel, and the OP no.2 did not appear before this forum and this notice was served on him, called out absent and he has been placed exparte. Granting enough time, the OP no.1 has not filed version, and posted the case for filing affidavit of the complainant. 4. So as to prove the case, the complainant has filed her affidavit by way of evidence and produced seven copies of documents alongwith list dated 5-9-2011, and also produced documents alongwith memo dated 17-10-2011 which were given Sl.No.1 to 7 and 7 (a) to (c). We have heard the arguments of both parties, and we have gone through the oral and documentary evidence of both sides meticulously. 7. One Mrs.Premila V.Kumar, who being the complainant has filed her affidavit by way of evidence stating that, in the year 2004, she was introduced to a project by name Airport County Annexe at survey nos.75, 84/1 and 85 situated at Begur village, Jala hobli, Bangalore north taluk, Bangalore District which was being developed, promoted and sold by the OP no.1 to interested customers, and she being interested in purchasing a residential plot in the said project she approached the OP no.1. The OP no.1 showed a sketch of the layout map and claimed that the same was approved by the concerned planning authority, BIAPP, and accordingly she entered into an agreement of sale dated 19-3-2004 with the OP no.1 for the purchase of a residential plot bearing no.10, measuring 2400 sq. ft in the said project for a sale consideration of Rs.3,60,000=00. At the time of the agreement of sale an amount of Rs.1,40,000=00 was paid and the balance amount of Rs.2,20,000=00 was to be paid to the OP no.1, at the time of registration of the sale deed within 90 days from the date of execution of sale agreement, the said sale consideration was inclusive of membership fee. Thereafter she rendered further payments towards the balance sale consideration payable to the OP no.1. Upon receiving the entire sale consideration, the OP no.1 executed a registered sale deed dated 12-5-2004 in her favour with respect to site no.10 in the said project. After acquiring right, title and interest in the said site No.10, she visited the site on several occasions. During one of her visits, in the year 2007, she was shocked to see that a compound wall had been erected across her property. On making enquiries, she was informed that the land had been acquired by the Bangalore International Airport Limited for the purpose of formation of the international Airport, much prior to the layout was formed and the said site having been sold to her, and she approached the OP no.1 and complained to them about the fact that a wall had been erected across her property, the OP no.1 bluntly informed that they had already executed a sale deed in her favour, and they had completed their obligation and could not assist her and she pleaded with the OP no.1 to help her , however her pleadings fell on deaf ears. Then, she approached the concerned planning Authority BIAPPA seeking clarification on the project Airport county Annexe formed by OP no.1. She was informed that the project was approved by the planning authority; however, that site belonging to her site no.10 did not form part of the project Airport County Annexe, and she was also informed that the layout plan shown to her by the OP no.1 at the time execution of the sale agreement and registered sale deed was not the actual sanctioned plan and that her site no.10 was marked in the layout plant of the OP no.1 was not part of the layout plan sanctioned and approved by the authority. On getting to know this fact she approached the OP no.1 and informed them about the same and when she persisted the OP no.1 relented and informed her that there had been a mistake there existed no site no.10 and OP no.1 was willing to return the entire sale consideration paid by her, and she informed the OP no.1 that she had invested her life savings to purchase of the said plot, and return of her money would not help her in buying a new site for the benefit of her family, and she requested to give an alternate site instead. After repeated calls and reminders the managing director of OP no.1 and 2, by name Mr.N.Manohar Reddy confirmed that they will allot her an alternative site in another project Bricks and Boundaries declared by OP no.2 sister concern of OP no.1 in exchange for the non existent site already sold and registered in her name. She immediately agreed to the said proposal of the OP no.2 and requested to register sale deed in her favour immediately in respect of alternative site. After repeated reminders and requests, the OP no.2 informed her that she would be allotted an alternative site bearing site no.220 in the approved layout bricks and boundaries measuring 2000 sq. ft. formed in Sy. No.38/2, Rachamanahalli Village, Anekal Taluk in exchange for the site bearing no.10 of the layout Airport County Annexe formed in Sy.No.75, 84/1 and 85 of Begur village, Bangalore north taluk, and the said proposal was acceptable by her and by a letter dated 25-8-2008 she informed the 2nd OP of the same and requested the 2nd OP to execute a sale deed in her favour with respect to the alternate site on several occasions and she visited the OP no.2 office and also contacted them by phone and enquiry about the progress of development of layout bricks and boundaries and as to when the site in the said property could be transferred in her name, after much delay the OP no.2 executed a sale agreement dated 5-9-2008 in her favour with respect to site no.220 in the layout bricks and boundaries formed in Sy.No.38/2 (P). The OP no.2 under took to execute the registered sale deed with respect to the alternate site within a period of 4 months from the date of execution of the agreement of sale but to till date the OP no.2 has failed to execution of agreement of sale and he was making bald and evasive excuses. By first selling a non existent site to her on receipt of the entire sale consideration, and then failing to address her grievances for several months and thereafter agreeing to rectify the deficiency by registering an alternate site by virtue of an agreement of sale 5-9-2008 and thereafter they failed to register the sale deed in her favour after the lapse of four months from the date of the sale agreement. The OPs are jointly and severally liable for the deficiency of the service, thereby she issued a letter dated 12-3-2011 calling upon the OP no.2 to execute sale deed, but received no reply from the OPs. The OPs are negligent and they are guilty of deficiency of service as they did not execute registered sale deed in respect of alternative site as on this date, hence, present complaint is filed, so she prayed to pass an order as prayed in the complaint. 8. By a careful reading of the averment of complaint and evidence of the complainant as mentioned above, it is made manifest that, the complainant has tendered her evidence in conformity with the averments of the complaint. Let us have a look at the relevant documents of the complainant, so as to know whether the oral testimony of the complainant is supported by any documentary evidence or not. Document no.1 of the complainant list dated 5-9-2011 is the copy of layout map showing layout project “Airport County Project”, and the said map site stated to be approved by BIAPPA. Document no.2 of the said list is the copy of agreement to sell executed by OP no.1 in the name of the complainant dated 19-3-2004 in respect of plot bearing no.10 measuring 2400 sq. ft. in Airport County Annexe by accepting a sum of Rs.1,40,000=00 out of Rs.3,60,000=00, the OPs no.1 and 2 agreed to execute the registered sale deed within 90 days from the date of agreement. Document no.3 is the copy of registered sale deed dated 12-5-2004 executed by OP no.1 in the name of complainant by receiving the balance amount from the complainant. Document no.5 is the copy of letter of complainant dated 25-8-2008 addressed to the Chairman and Managing Director, city square enterprises Pvt. Ltd who being the OP no.2 informing that, the OP no.2 agreed to execute the registered sale deed in respect of schedule-B property being an alternative site by sharing registration charges of Rs.10,000=00 and RS.10,900=00 by the complainant and the OP no.2 respectively Document no.6 is the copy of sale agreement executed by OP no.2 in the name of complainant dated 5-9-2008 in respect of plot bearing no.220 formed in survey no.38/2 (P) in exchange of plot no.10. The complainant has produced original agreement to sell dated 19-3-2004 at sl.no.2 of memo dated 17-10-2011 executed by OPs in the name of the complainant in respect of plot no.10. Document no.3 of the said list is the original sale deed executed by OPs in the name of complainant dated 12-5-2004 in respect of site no.10. The original sale agreement dated 5-9-2008 is also produced by complainant at document no.6 and that document was executed by OP no.2 in the name of the complainant in respect of plot no.220 as an alternative site in exchange of plot no.10. 9. By a careful scrutiny of the oral and documentary evidence of the complainant as mentioned, it is made crystal clear that, the OP no.1 has executed agreement to sell dated 19-3-2004 in the name of complainant in respect of site no.10 measuring 2400 sq. ft. existing in survey no.75, 84/1 and 85 of Begur village, Jala hobli, Bangalore north taluk by receiving part consideration amount and executed registered sale deed also in the name of complainant by OP no.1 on 12-5-2004 by receiving the entire sale consideration amount Rs.3,60,000=00 from the complainant and after verification of records, it came to notice of the complainant that, sale deed executed by OP no.1 in respect of site no.10 is not in existence and that land has been acquired already by BIAPPA for formation of International Airport much prior to layout being formed, and when the complainant brought this fact to the notice of OP, they agreed to allot an alternative site bearing no.220 in the name of the complainant in the layout called bricks and boundaries in exchange of plot no.10 and accordingly the OP no.2 has executed sale agreement dated 5-9-2008 in the name of complainant in respect of site no.220 and in this regard, the complainant has produced the original agreement to sell dated 19-3-2004 registered sale deed dated 12-5-2004 in respect of site no.10 and original agreement dated 5-9-2008 in the name of the complainant in respect of site no.220. As on this date, the OPs have not executed registered sale deed in the name of complainant in respect of site no.220 in exchange of plot no.10, and made the complainant to run from pillar to post to get the registered sale deed executed. The act of the OPs in making sale of site by executing registered sale deed dated 12-5-2004 which is not existing after receiving the entire sale consideration amount from the complainant and execution of sale agreement dated 5-9-2008 in respect of site no.220 in exchange plot no.10, amounts to sheer negligence and deficiency of service on the part of the OPs. The oral evidence of complainant that, the OPs are negligent and there is deficiency of service on the part of the OPs in not executing registered sale deed in her favour in respect of site no.220 in exchange of site no.10 is fortified by agreement to sell, registered sale deed executed by OP no.1 in respect of site no.10 and sale agreement dated 5-9-2008 executed by OP no.2 in the name of complainant in respect of site no.220. The said evidence of complainant has remained uncontroverted, since the OPs no.1 and 2 have neither filed version nor denied the sworn testimony of the complainant. So, under the circumstances, we have no reasons to disbelieve the oral and documentary evidence of complainant. So from the oral and documentary evidence of complainant, we hold that, the OPs are totally negligent and there is deficiency of service on the part of the OPs no.1 and 2 in not executing registered sale deed in respect of alternative site as prayed in the complaint. So viewing the negligence and deficiency of service on the part of the OPs, we feel it proper to issue direction to OPs no.1 and 2 to execute registered sale deed in favour of the complainant in respect of site no.220 existing in project called bricks and boundaries formed in survey no.38/2 (P) situated at Rachamanahalli village, Kasaba hobli, Anekal Taluk, Bangalore district within 60 days from the date of receipt of this order, failing which, the OPs no.1 and 2 are jointly and severally liable to refund Rs.3,60,000=00 to the complainant alongwith 18% interest per annum on the said amount from 12-5-2004 to till the date of realization. The OPs no.1 and 2 are further directed to pay Rs.7,500=00 to the complainant towards cost of litigation. In the result, for the foregoing reasons, we proceed to pass the following order. ORDER The complaint of the complainant is allowed in part. The OPs no.1 and 2 are jointly and severally liable to execute registered sale deed in the name of the complainant in respect of site bearing no.220 at project called as “Bricks and Boundaries” formed in survey no.38/2 (P) situated at Rachamanahalli village, Kasaba hobli, Anekal Taluk, Bangalore district within 60 days from the receipt of this order, failing which, the OPs no.1 and 2 are jointly and severally liable to refund the total amount of Rs.3,60,000=00 to the complainant alongwith interest at 18% per annum on the said amount from 12-5-2004 to till the date of realization. The OPs no.1 and 2 are further directed to pay Rs.7,500=00 to the complainant towards cost of litigation. Supply free copy of this order to both parties. Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 5th day of April 2013. MEMBER PRESIDENT |
