BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

19^th DAY OF APRIL 2017

O R D E R

SMT. SHANTHA P.K, MEMBER

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to execute sale deed in favour of complainant in respect of plot No.325, measuring 30x40 in Phase II of Suradenapura village, Hesaraghatta Hobli, Bangalore North Taluk or in the event of failure to execute the sale deed in favour of the complainant within the specified period OPs shall refund advance amount of Rs.4,00,000/- together  with interest @ 18%p.a, to pay compensation of Rs.10,00,000/- towards mental agony, hardship and harassment caused by the complainant along with the litigation cost of Rs.50,000/-.

2. The brief averments made in the complaint are as under:

The OPs were marketing the residential plot/sites and the residential layout will be formed in the name and style “Max Medows Phase III”  at Suradenapura village, Hesaraghatta Hobli, Bangalore North Taluk, a residential layout with all facilities and amenities such as underground sewage line, underground water lines, rain water drains, sewage treatment plant, overhead water tank, electricity, street lights, park, compound wall, entrance gate, Arch, children play area, landscaped parks, jagging Track, round the clock of security, 24 hours water supply etc., and further assured to arrange the Bank loan for the purpose of property at the time of registration.

The OP allotted plot No.325 measuring about 1200 sqft in favour of the complainant.  The complainant has paid a sum of Rs.3,00,000/- by way of two cheques No.414733 dated 06.04.2013 for Rs.1,00,000/- and No.414736 dated 16.09.2013 for Rs.2,00,000/-.  Both cheques drawn on Canara Bank, Kodandaramapuram, Bangalore, to OP-1 towards the advance amount.  The total cost of the plot was Rs.10,80,000/-.  The OPs assured that they will execute the sale deed within 180 days from the date of obtaining approval from Bangalore International Airport Area Planning Authority (BIAPPA).  The OP except promise and assurances and time and again extended the agreement period but neither taken necessary sanctions and approval from the said competent authority nor developed the land.  The complainant believing the promise and assurances has paid the substantial sale consideration and OPs have acknowledged the receipt of payment made by the complainant.  The relatives of the complainant by name Mr. E Krishna Rao and Mr.E. Bhaskar Rao have paid a sum of Rs.50,000/- each totaling to Rs.1,00,000/- to the OP for allotment of plot in their favour.  As there was abnormal delay they have not shown interest to proceed and requested to refund the amount but the OP refused to refund the amount but obliged to adjust towards the complainant.  The OP by taking necessary letters from them have credited Rs.1,00,000/- by passing necessary journal entry vide No.404 dated 29.06.2016.  Thus in all the complainant has paid Rs.4,00,000/- to the OPs towards the allotment of plot No.325 at “Max Medows Phase III”.

     Though the OPs promised that BIAPPA sanction will be obtained and sale deed will be executed on or before December 2016, they failed to show the sanction letter, approved layout plan, loan from bank etc., and further failed to execute the necessary conveyance in favour of the complainant even after repeated requests and representations.  Also with one or other pretext that layout approval not obtained, awaiting release order from BIAPPA.  OPs deliberately neglected to execute registered sale deed in favour of the complainant.  Therefore complainant got issued legal notice dated 10.01.2017 calling upon OPs to refund the advance amount together with interest @ 18% p.a and also compensation of Rs.10,00,000/-.  OP failed to respond to the said notice and also failed to execute the registered sale deed.  Hence complainant felt deficiency of service and unfair trade practice on the part of OPs.  Therefore complainant having no other choice has approached the Forum for redressal.

3. Despite service of notice OPs failed to appear and were placed ex-parte.  Therefore the complainant was called upon to tender his evidence by way of affidavit.  Accordingly complainant filed his evidence by way of affidavit.  Complainant has produced copy of assignment agreement executed by the OPs and other documents.

4. Perused the assignment agreement executed by the OP in favour of complainant in respect of site in favour of complainant.  OPs have issued receipts in favour of complainant for having received Rs.4,00,000/- as advance amount for allotment of site.  OPs have further agreed to execute the registered sale deed in favour of complainant by receiving balance amount.  In the Assignment Agreement OPs have undertaken to execute the registered sale deed in favour of complainant by receiving balance amount within 180 days from the date of Assignment Agreement.  However, it is apparent that, OPs have failed to execute the registered sale deed in favour of complainant in respect of the plot/site booked by complainant by paying advance amount of Rs.4,00,000/-.  OPs for the reasons best known to them remained ex-parte and failed to contest the complaint.  We have no reason to disbelieve the averments made in the complaint coupled with the sworn testimony of the complainant.  An inference can be drawn from the willful absence of OPs that they admit the claim put forth by the complainant.  Therefore, it is necessary to direct the OPs to execute the registered sale deed in favour of complainant in respect of site agreed to be purchased by the complainant in terms of the Assignment Agreement.  We do not find any impediment to allow the complaint as prayed for.

5. Complainant has not produced any material to substantiate that the OPs have formed the layout as promised by them.  In the event the formation of the layout is not completed and cannot be completed in near future for any valid reasons, it is appropriate to direct the OPs to refund the advance amount received from the complainants together with interest @ 18% p.a.  The conduct of OP in failing to execute the registered sale deed in terms of the Assignment Agreement certainly amounts to grave deficiency of service which must have caused great inconvenience and mental agony to the complainant.  Therefore, we proposed to award compensation of Rs.1,00,000/- (one lakh) to the complainant to be paid by OPs together with litigation cost of Rs.3,000/-.

6. In the result, we proceed to pass the following:

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.

The OPs are directed to execute registered sale deed in favour of complainant in respect of site No.325 measuring 30x40 feet in terms of Assignment Agreement dated 29.09.2013 by receiving balance amount within three months from the date of communication of this order.  Further OPs shall pay compensation of Rs.1,00,000/- to the complainant towards deficiency of service resulting in hardship, inconvenience and mental agony to the complainant.  In the event OPs are unable to execute the registered sale deed in respect of site mentioned above in the limits of Suradhenapura Village, Hesaraghatta Hobli, Bangalore North Taluk, for any valid reasons, they shall refund the advance amount paid together with interest @ 18% p.a from the date of receipt till the date of realization together with above stated compensation of Rs.1,00,000/- (one lakh) to the complainant.  Further OPs shall pay litigation cost of Rs.3,000/- to the complainant.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 19^th day of April 2017)

MEMBER                            MEMBER                     PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 22.03.2017.

1. Sri.J.Ramachandra Rao.

          OPs -       Absent

MEMBER                           MEMBER                      PRESIDENT

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