Sri B.NARAYANAPPA,

      President

1. The complainant No.1 Mrs. Rekha Cariappa resident of  Kodagu.  Complainant No.2 Mr. K.C. Cariappa resident of Kodagu have filed this complaint against opposite party No.1 M/s Premier Properties, Jayalakshmipuram, Mysuru.  Opposite party No.2 Mr. Keerthi K.V, V.V Mohalla, Mysuru praying to direct the opposite party No.1 to complete the agreed work immediately and hand over the possession of ‘B’ schedule property and obtain the occupancy certificate and to execute registered deed of absolute sale in favour of complainants by collecting balance amount and to grant compensation of Rs.10,00,000/-.

2. The brief facts are that:-

The opposite party No.1 is the proprietor of a proprietorship firm by name Premier Properties and is carrying on the business of developing multistoried residential Flat and one of his project is named as Premier Metropolis, situated at No.2270/1, 19/1, 19/2, 19/3, 19/4, 19/5, 19/6, 19/7, 19/8, Chittaranjan Mahal, Vinobha road, Jayalakshmipuram, Mysuru herein after referred to as the schedule ‘A’ property,The complainants were intended to settle downin Mysuru and decided to purchase one flatin a project by name“Premier Metropolis” developed by opposite party No.1.The complainants agreed to purchase flat No.703 in block ‘B’ the schedule flat is refered as schedule ‘B’ property.The terms of the sale were reduced into writing amongst the complainants and opposite party No.1 by way of executing agreement of sale dated 29.06.2011.The complainants have paid a total sum of Rs.49,00,000/- to opposite party No.1, out of which Rs.25,00,000/- by way of Bank transfer on 01.07.2011 and Rs.24,00,000/- by way of Bank transfer on 03.09.2011, total sale consideration of ‘B’ schedule property was fixed at Rs.56,00,000/- as per the terms of the agreement of sale, the opposite party No.1 was under an obligation to complete the construction of the apartment and register the flat in favour of the complainants and consecutively to handover the vacant possession tentatively by 30.12.2011.But the opposite party No.1 delayed construction even till today several works are pending like flat does not have occupancy certificate, no approvals have been taken from the Chief Inspector of Lifts, window panels have not been installed, bathroom fittings not installed, kitchen slab not installed.The complainants approached opposite party No.1 to complete his obligation and execute the registered sale deed, but opposite party No.1 dodging the matter citing one or the other reason.As time passed several persons were occupying their respective flats and this made the complainant’s grow suspicious about the opposite party No.1 and his words, assurances.Through reliable sources the complainants learnt that the opposite party No.1 had played fraud on several persons i.e., one flat was sold to two different persons.On 09.04.2019 the complainants approached the jurisdictional Sub-Registrar and checked the encumbrance of the schedule ‘B’ property and were shocked to see that the opposite party No.1 had entered into Registered Sale Agreement dated 30.12.2015 for selling the schedule ‘B’ property to one Mr. G. Venkatesh.And subsequently o 30.12.2018 the said agreement of sale was cancelled and on the very same day executed another Registered Agreement of Sale with opposite party No.2 by suppressing the fact that already an agreement with the complainants is in force, when questioned the same, opposite party No.1 gave evasive answer.The booking of flat by the complainants was never cancelled by opposite party No.1 and they have not committed any breach of terms and conditions.The act of opposite party No.1 in collusion with the opposite party No.2 grossly amount to deficiency in service and unfair trade practice and thereby the complainants were made to suffer lot by opposite party No.1.Therefore, this complaint.

3. After registration of this complaint, notices were ordered to be issued to opposite parties.  In response to notice they appeared, but opposite party No.1 has not filed version.  Opposite party No.2 has filed version contending that the complaint is not maintainable either in law or on facts, hence the same is liable to be dismissed and admits the averments made in para 4 of the complaint that the opposite party No.1 is the proprietor of  proprietorship firm by name Premier Properties and is carrying on the business of developing multistoried residential Flat and one of his project is named as Premier Metropolis, situated at Jayalakshmipuram, Mysuru and denied the allegation made in para 5, 6 and 7 that the complainant purchased flat No.703 in order to settle down at Mysore and execution of agreement of sale dated 29.06.2011 by opposite party No.1 in favour of the complainants  and also denied the averments made in para 8 and 9 of the complaint that the complainants have paid Rs.49,00,000/- and sale price was fixed at Rs.56,00,000/- for schedule ‘B’ property and denied the allegations made in para 10 to 13 as false and admitted the averments made in para 14 of the complaint that the opposite party No.1 had executed a Registered Agreement of Sale in favour of one Sri. G. Venkatesh on 30.12.2015 and subsequently same was cancelled on 30.12.2018 and subsequently executed agreement of sale in favour of opposite party No.2 as true and correct and further contended that the agreement of sale in between the opposite party Nos.1 and 2 dated 30.12.2018 is bonafide contract and right of the opposite party No.2 created through this agreement and the same binds on the complainants.  The complainants were supposed to have taken legal measures when the opposite party No.1 alleged to have failed to deliver the possession of the schedule property, but the complainants have not initiated any legal steps and have come with the present complaint after long gap of 7 years, hence the complaint is not maintainable.  For all these reasons prays to dismiss the complaint.

4. The complainant No.2 has filed his affidavit by way of examination chief same was taken as PW.1 and got marked documents Exhibit P.1 to 4.  On the other hand opposite party No.2 has filed his affidavit by way of examination in chief same is taken as RW.1.

5. We have heard the arguments of both sides.  Opposite party No.2 has also filed written arguments.

6. The points that would arise for our consideration are as under:-  

1. Whether the complainants proves the alleged deficiency in service and unfair trade practice on the part of opposite party No.1 and thereby they are entitled to the reliefs as sought for in the complaint?
2.  What order?

7.      Our findings on the aforesaid points are as follows:

       Point No.1 :- Partly in the affirmative;

       Point No.2 :- As per final order for the following

:: R E A S O N S ::

8.  Point No.1:-  It is pertinent to note that the opposite party No.1 has not filed version in spite of sufficient opportunities were given.  Therefore it is clear that opposite party No.1 has not placed any contrary material on record to discard or disbelieve the case of the complainants.  It is the specific contention of the complainant  that the complainants being the resident of Kodagu have decided to settle down in Mysore and to purchase flat No.703 in the multistoried residential flat developed by the opposite party No.1 namely Premier Metropolis situated at Jayalakshmipuram, Mysore and have entered into agreement of sale dated 29.06.2011 with opposite party No.1 and paid a total sum of Rs.49,00,000/- to opposite party No.1 by way of Bank transfer on 01.07.2011 of Rs.25,00,000/- and Rs.24,00,000/- on 03.09.2011.  In order to establish that  the complainant Nos.1 and 2 entered into an agreement of sale dated 29.06.2011 with opposite party No.1, have produced agreement for sale at Annexure-1  which clearly establish that opposite party No.1 executed agreement of sale dated 29.06.2011 in favour of complainant Nos.1 and 2 in respect of flat No.703 and the sale price was fixed at Rs.56,00,000/-.    The complainant have produced Annexure-2 the statement of bank account maintained in Canara Bank, Vivekananda Nagar, Mysore which reflects that on 01.07.2011 the complainants transferred an amount of Rs.25,00,000/- by way of NEFT  to opposite party No.1 and on 03.09.2011 they have transferred Rs.24,00,000/- by way of NEFT to opposite party No.1.  Therefore by producing Annexure-2 the statement of account the complainants have proved the payment of Rs.49,00,000/- to opposite party No.1 in order to purchase of flat No.703 in multistoried residential apartment and from Annexure-1 agreement for sale, it is crystal clear that sale price was fixed at Rs.56,00,000/-.  It is further specific contention of the complainants that the opposite party No.1 delayed the construction of apartment hence they approached the opposite party No.1 to execute sale deed in their name in respect of schedule flat by receiving balance consideration, but the opposite party No.1 turned his deaf ear and not responded properly.  Therefore the complainants doubted about the act of opposite party No.1 and learnt from reliable source that opposite party No.1 had played fraud on several persons one flat is sold to two different persons, therefore the complainants approached the jurisdictional Sub-Registrar and checked the encumbrance of schedule flat No.703 and to their shock and surprise they came to know that the opposite party No.1 executed agreement of sale dated 30.12.2015 in favour of one Sri. G.Venkatesh in respect of schedule ‘B’ property, flat No.703 by suppressing the earlier agreement of sale dated 29.06.2011 executed in their favour and also they came to know that subsequently on 30.12.2018 the opposite party No.1 had cancelled agreement dated 30.12.2015 executed in favour of Sri. G. Venkatesh and on 30.12.2015  the opposite party No.1 had executed agreement of sale in favour of opposite party No.2 in respect of flat No.703.  The complainants have produced certified copy deed of cancellation of agreement dated 30.01.2018  at Annexure-3 executed by opposite party No.1 in favour of Sri. G. Venkatesh and also produced certified copy of agreement for sale dated 30.01.2018  at Annexure-4 executed by opposite party No.1 in favour of opposite party No.2.  Therefore it is crystal clear that in order to cheat the complainant Nos.1 and 2 the opposite party No.1 subsequent to  execution of agreement of sale dated 29.06.2011 executed in the names of complainant Nos.1 and 2 executed agreement of sale dated 30.12.2015 in favour of Sri. G. Venkatesh and the same was cancelled on 30.01.2018 and executed agreement of sale in favour of opposite party No.2 on the very same day.  The act of opposite party No.1 in executing subsequent agreements dated 30.12.2015 and on 30.01.2018 appears that  only with an intention  not to  execute register sale deed in favour of complainants in respect of flat No.703 in terms of agreement dated 29.06.2011, executed  subsequent agreement of sale on 30.01.2018 in favour of opposite party No.1 to have wrongful gain which amounts to not only deficiency in service and  also unfair trade practice on the part of opposite party No.1.   The subsequent execution of sale dated 30.12.2015 executed in the name of Sri. G. Venkatesh and cancellation of the said agreement dated 30.01.2018 and subsequent execution of the agreement of sale on the very same day to opposite party No.2 in respect of flat No.703 have no evidentially value in the eye of law and the agreement of sale dated 30.12.2015 and 30.01.2018 executed by opposite party No.1 are subsequent to  execution of agreement of sale dated 29.06.2011 in the name of complainant Nos.1 and 2 in respect of flat No.703 has no value in the eye of law.  The first agreement of sale dated 29.06.2011 executed by opposite party No.1 in favour of complainant Nos.1 and 2 in respect of flat No.703 is in force and the same has not been cancelled.  In view of opposite party No.1 had executed agreement of sale dated 29.06.2011 in respect of flat No.703 in Premier Metropolis situated at Jayalakshmipuram, Mysore in the name of complainant Nos.1 and 2 by receiving an amount of Rs.49,00,000/-, it is the bounden duty of the opposite party No.1 to execute the sale deed in respect of schedule ‘B’ property by receiving balance consideration in favour of complainant Nos.1 and 2 and it is also the bounden duty of opposite party No.1 to complete the agreed work pending and to obtain occupancy certificate to make the subject flat habitable to complainant Nos.1 and 2 and to pay compensation towards mental agony caused to complainant Nos.1 and 2.  Therefore we are of the considered view that the complainants have proved the alleged deficiency in service and unfair trade practice committed by opposite party No.1 with an intention to defraud the complainants without execution of sale deed in respect of flat No.703 in favour of complainant Nos.1 and 2 as per the terms of agreement dated 29.06.2011 instead intended to execute sale deed in favour of opposite party No.2 in respect of flat No.703 i.e., schedule ‘B’ property.   Therefore,  we  answer point No.1 partly in the affirmative.

9.    Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

     The complaint of the complainant is allowed in part.

The opposite party No.1 is hereby directed to complete the pending works in respect of schedule ‘B’ property, flat No.703 in Premier Metropolis situated at Jayalakshmipuram, Mysore and hand over the possession of the same to complainant Nos.1 and 2 and to obtain occupancy certificate in respect of said flat and to execute registered sale deed in respect of schedule ‘B’ property, flat No.703 in favour of complainant Nos.1 and 2 by receiving balance consideration amount within 3 months from the date of this order and to pay compensation of Rs.2,00,000/- in favour of complainant Nos.1 and 2 with interest at 10% p.a. from 29.06.2011 within 3 months till payment.

And further the opposite party No.1is directed to pay Rs.5,000/- towards cost of the litigation to the complainants.

Furnish the copy of order to both the parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Commission on this the 1^st October, 2021)