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

DATED 14^TH DAY OF SEPTEMBER 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This  complaint has been filed under section 35 of C.P.Act, 2019 (Herein after referred as “ACT”) for the  following reliefs

Direct the OP to pay sum of Rs.8,00,000/- and interest at the rate of 24% P.A. till the realization of the above said amount and restrain the OP from restricting or restraining the access and entry to the schedule ‘B’ property  by the complainant or his agents etc. and pass such other orders as this Hon’ble Court may  deems fit in the interest of justice.

2. The case of the complainant in brief is as under:

The complainant has purchased ‘B’ schedule property  under registered sale deed dt.05.05.2017 for consideration of Rs.65,00,000/- from A.Vivekananda who purchased the same under registered sale deed dt.22.07.2014 from B.R.Lokanatha and R.L.Manoj.

It is further case of the complainant that OP is the developer of ‘A’ schedule property, who entered into registered joint development agreement dt.07.02.2017(correct date of registered deed of agreement is 07.02.2007) with B.M.Ramanna and others. The complainant purchased ‘B’  & ‘C’ schedule property by  availing loan from Punjab National Bank.

It is further case of the complainant that in the last week of October 2020, the complainant visited ‘B’ schedule property and the representatives of OP did not allow the complainant to have the access to the ‘B’ schedule property.

It is further case of the complainant that since the date of purchase she has been deprived monthly income of Rs.25,000/- in respect of the ‘B’ & ‘C’ schedule property. Therefore, this complaint is filed seeking direction against the OP to pay sum of Rs.8,00,000/-  towards loss of monthly rent with interest at 24% P.A. and restrain the OP not to  cause restricting to the complainant entering into schedule ‘B’ property.

3. Inspite of service of notice, OP failed to appear before  this commission. Therefore, OP has been placed exparte.

4. Even though sufficient opportunity is granted to the complainant, the complainant failed to file affidavit evidence.

5. No arguments is advanced on behalf of the complainant. Perused documents.

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

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

7. Our answer to the above points are as under:

       Point No.1:- Negative

      Point no.2:- Negative

      Point No.3:-As per the final order.

REASONS

8. Point Nos.1 and 2: Even though allegations made in the complaint and documents produced by the complainant remain unchallenged by the OP either by appearance or by filing version. However, it is the duty of this commission to ascertain whether the complainant proves her claim against OP.

9. We carefully perused allegation made in the complaint and documents. As admitted by the complainant  that could be seen from the 1^st document copy of absolute sale deed dt. 05.05.2017 is executed by  A.Vivekanada in favour of the complainant that the complainant purchased schedule ‘B’  & ‘C’ property  for total consideration of Rs.65,00,000/- and complainant took the  possession of this property on 05.05.2017. The vendor of the complainant has purchased the same from previous owner B.R.Lokanath and R.L.Manoj under registered sale deed dt.22.07.2014 vide document no.2. Document no.3 is copy of registered joint development agreement bearing no.26417/2006-07 dt.07.02.2007 between  B.M.Ramanna, B.R.Anand Kumar and B.R.Lokanath as owners with OP M/s Alpine Housing Development Corporation Ltd.,  This joint development agreement indicates that the present OP, who is Managing Director of M/s Alpine Housing Development Corporation Ltd., agreed to develop the property of 03 persons  referred above. It is admitted by the complainant that the property purchased by her is carved out from the property involved in joint development agreement.

10. The document no.4, copy of gift deed dt.10.07.2008 indicates that B.M.Ramanna  has gifted certain properties to B.R.Lokanath and R.L.Manoj, who sold the property involved in this case to the vendor A.Vivekananda to the complainant. We carefully perused  page-3 of the gift deed. It clearly indicates that there was joint development agreement dt.07.02.2007 and donor B.M.Ramanna was entitled for 36% of the   super build up area along with proportionate undivided property of ‘A’ schedule property. It further indicates 99 apartment along with 36% proportionate  undivied share in the property bearing sy.no.209/3, 209/4, 209/6, 209/7, 209/8 was allotted to the donor B.M.Ramanna. It further indicates that schedule ‘C’ of the gift deed indicates 99 apartments including the present apartment involved in this case bearing No.1001  measuring super build up area 1290. Page-12 of this gift deed indicates donor B.M.Ramanna gifted 10 apartments  including apartment bearing no.1001 measuring super build up area 1290 of type-B in floor-10 gifted to B.R.Lokanath and R.L.Manoj.

11. By virtue of the understanding between the owners and present  OP, 99 apartments were fallen to the share of B.M.Ramanna’s family members. B.M.Ramanna gifted present apartment involved in the present case in favour of B.R.Lokanath and R.L.Manoj, who sold the same to A.Vivekananda, vendor of the present complaint. In view of these documents the complainant has no right to claim the right against the OP by virtue of the joint development agreement.

12. It is also pertinent to note that the complainant claims loss of rented income from 05.06.2017 even though the complainant issued legal notice dt.16.12.2020 to OP, but the complainant not filed any complaint claiming loss of rental income from 05.06.2017 till 05.06.2019. Therefore, the claim of the complainant  about loss of rental income from 05.06.2017 till 14.01.2019 is barred by limitation.  When the predecessor in title of the complainant have acquired the right over  the present property under gift deed and gifted the same to the vender’s of the complainant.  The complainant has no right in saying that the OP is liable to pay Rs.8,00,000/- as loss of rent.

13. The complainant also seeks restrain order against OP. There is no privity of contract between the complainant and OP. More ever the complainant has not paid any consideration either for the goods or service to the OP. In the absence of payment of consideration, the complainant cannot be construed as consumer of the OP. Under such circumstances, the complaint is not maintainable. More ever the  relief of injunctive order against strangers to whom neither privity of contract  nor consideration is paid for service. This commission cannot grant such a relief. Therefore, the complainant is not entitled to any of the reliefs. Even though OP is placed exparte as could not challenged till date and documents of the complainant, it does not mean that the complainant is entitled for reliefs. The complainant not proved as consumer under OP. The complaint requires to be dismissed.

14. Point no.3:-.  In view of the discussions on point no.1 & 2, complaint requires to be dismissed. Accordingly, we proceed to pass the following 

O R D E R

1. The complaint is dismissed without costs.
2. Furnish the copy of this order to both the parties, and return the spare pleadings and documents to the complainant.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 14^th  day of September, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 : Nil