BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

   26^th DAY OF FEBRUARY 2021

O R D E R

SMT.PRATHIBHA. R.K., PRESIDENT

This complaint is filed by the complainant against the Opposite Party (hereinafter called as OP) under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OP to refund an amount of Rs.4,50,000/- paid towards sale consideration with interest @ 24% p.a, to pay Rs.2,00,000/- towards compensation for mental agony, harassment, inconvenience etc., suffered by complainant, to pay Rs.15,000/- towards costs of the legal notice and other expenses, to pay litigation expenses and to grant such other reliefs.

2.      The brief facts of complaint is as under:

Complainant submitted that he booked a residential plot measuring 1200 square feet at the rate of Rs.525/- per square feet on 21.03.2014 by paying an advance amount of Rs.50,000/-.  The total sale consideration of plot was Rs.6,30,000/-.  The complainant and OP has signed the booking form.  The complainant further submitted that the complainant entered into agreement to sell dated 23.04.2014 with the OP for the said consideration carved out of survey No.175, 998/3 and 178.  OP submitted that the said survey numbers are free from all encumbrances inclusive of all civic amenities, with clear and marketable title.  Hence the complainant agreed to purchase the said plot for a price of Rs.525/- per square feet.  The OP has given quarterly payment option for 12 months.  The OP for his own better comfort and convenience has further entered into two separate renewal of agreements dated 29.08.2017 and 31.07.2018 by keeping the original agreement to sell dated 23.04.2014 terms and conditions alive.  The details of the payment made by the complainant to OP are as under:

Complainant further submitted that the complainant paid the balance remaining amount through demand draft No.094428 dated 22.04.2019 for an amount of Rs.1,80,000/- drawn in favour of OP as a full and final settlement.  The said DD received by the OP and the same was returned back to the complainant on 09.05.2019.  The reason for returning the said DD best known to the OP.  The OP has not sent any covering letter to explain the reason for returning the said DD.  The complainant alleged that after obtaining the full and final settlement of the sale consideration the OP has to execute the sale deed in favour of the complainant in accordance with the aforesaid agreement to sell.  The OP has been keeping silent over the matter while the sites in the project are being briskly registered to the other similar purchasers.  Hence complainant issued legal notice on 17.05.2019 calling upon OP to execute the sale deed in favour of the complainant by accepting the balance amount.  Even after receipt of the notice, the OP has not come forward to execute the sale deed in favour of the complainant by accepting the balance amount.  Hence the complainant filed this complaint.

3. Despite service of notice, one Sri.Sachin P, who being working as Admin in OP firm, appeared on behalf of OP but he did not choose to file version.

4. In the course of enquiry into the complaint, the complainant filed his affidavit evidence reproducing what he has stated in the complaint.  The complainant has produced certain documents.  Complainant has submitted written arguments.  We have heard the arguments of the complainant side and we have gone through the oral and documentary evidence of the complainant scrupulously. 

5. Based on the above materials, the following points arise for our consideration;  

1. Whether the complainant has proved that there is deficiency in service on the part of the OP, if so, whether complainant is entitled for the relief sought for?

2. What order?

6. Our findings on the above points are as under:

Point No.1:  Affirmative in part

Point No.2:  As per the order below

REASONS

7. Point No.1:  The complainant in his affidavit evidence firmly stated that, he booked a residential plot measuring 1200 square feet at the rate of Rs.525/- per square feet on 21.03.2014.  The total sale consideration of the plot was Rs.6,30,000/-.  At the time of booking of the said residential plot the complainant paid an amount of Rs.50,000/- through cheque to the OP and signed the booking form.  On 23.04.2014 the complainant entered into an agreement to sell with OP.  Thereafter the OP has renewed the said agreement to sell twice dated 29.08.2017 and 31.07.2018.  For the said site/plot the complainant paid the total amount of Rs.4,50,000/- to the OP and the complainant also paid the balance amount of Rs.1,80,000/- on 22.04.2019 through DD.  The said DD has been returned to the complainant by OP on 10.05.2019.  Aggrieved by the conduct of OP, the complainant approached the OP to execute the sale deed by accepting the balance amount.  Till today OP has not executed the sale deed in favour of the complainant by receiving the balance payment.  To substantiate his contention the complainant produced booking form, agreement to sell and the renewal forms and the receipt for having paid the amount.

8. To rebuttal the evidence of the complainant, the Admin of OP appeared before this Commission but not filed version and affidavit evidence.  In the sense the OP either admits the averments of complainant in toto or he has nothing to say contrary to the complainant averments.  If the matter is viewed on this line, it proves that the OP has agreed the same impliedly.  In this regard, the decision reported in 2018(1) CPR 325 (NC) in the case of Kotak Mahindra Old Mutual Life Insurance Ltd., vs. Dr.Nishi Gupta, wherein it is held that, “non-filing of the written version amounts to admission of allegations made by the Complainant in the consumer complaint”. 

9. On perusal of the Ex-A1 it shows that the complainant had booked residential plot developed by OP at Vyasti Hallmark, Mysore – Bannur Road for a total sale consideration of Rs.6,30,000/-.  Thereafter the complainant entered into an agreement to sell with the OP on 23.04.2014 to purchase the residential plot for that the complainant paid total amount of Rs.4,50,000/- on different dates.  The details of the payment made by the complainant are as under.

10. As per the above said documents it is clear that the complainant paid the amount of Rs.4,50,000/- and also paid Rs.1,80,000/- through DD to the OP.  The said DD has been returned to the complainant by OP as per Ex-A9.  This shows the conduct of OP by not accepting the balance consideration amount and not executing the sale deed in favour of the complainant.  The complainant paid the amount as and when demanded by OP.  Even after acceptance of the full amount, the OP has not come forward to execute the sale deed by receiving balance consideration amount of Rs.1,80,000/- from the complainant.  Hence there is a deficiency in service on the part of OP.

11. The complainant has successfully proved that OP having collected huge advance amount of Rs.4,50,000/- from complainant but failed to register the plot and also failed to refund the advance amount.  The said conduct of OP certainly amounts to grave deficiency of service.  The said conduct of OP must have put the complainant to great hardship, inconvenience and mental agony.  Hence OP is directed to execute a registered sale deed in respect of site measuring 1200 at Vyasti Hallmark, Mysore – Bannur Road in favour of complainant by receiving balance amount of Rs.1,80,000/- within 45 days from the date of receipt of this order.  If for any legal and valid reasons OP is unable to execute and register a sale deed within the stipulated period they shall have to be directed to refund an amount of Rs.4,50,000/- to the complainant together with interest @ 10% p.a from the date of respective payment till the date of realization.  Further OP is directed to pay litigation cost of Rs.10,000/- to the complainant.

12. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:          

  O R D E R

1) The complaint filed by the complainant is allowed in part.

2) OP is directed to execute a registered sale deed in respect of site measuring 1200 at Vyasti Hallmark, Mysore – Bannur Road in favour of complainant by receiving balance amount of Rs.1,80,000/- within 45 days from the date of receipt of this order.  If for any legal and valid reasons OP is unable to execute and register a sale deed within the stipulated period they shall have to be directed to refund an amount of Rs.4,50,000/- (Four Lakhs Fifty Thousand only) to the complainant together with interest @ 10% p.a from the date of respective payment till the date of realization. 

3) Further OP is directed to pay litigation cost of Rs.10,000/- to the complainant.

4) Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Commission on this 26^th day of February 2021)

Witnesses examined on behalf of the complainant by way of affidavit:

Sri.B.V Chandru

Copies of documents produced on behalf of complainant:

Witnesses examined on behalf of the OP by way of affidavit – Nil

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