BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
BENGALURU (ADDL. BENCH)
DATED THIS THE 11th DAY OF AUGUST 2023
PRESENT
MR. RAVISHANKAR : JUDICIAL MEMBER
MRS. SUNITA CHANNABASAPPA BAGEWADI : MEMBER
CONSUMER COMPLAINT NO. 75/2015
Sri V.N. Balaji, S/o Sri V.R. Narayan, Aged about 37 years, R/at No.520, Sham Centers, Gowdanapalya, Uttarahalli, Bangalore 560 061. (By Sri M. Ramesh) | …… Complainant/s |
V/s
1. | Sri N. Narayanaswamy, S/o Late K. Narasimhaiah, Aged about 51 years, | …. Opposite Party/s |
2. | Smt. N. Lakshmi, W/o N. Narayanaswamy, Aged about 41 years, | |
3. | Sri N. Naveen, S/o N. Narayanaswamy, Aged about 26 years, | |
4. | Sri N. Harish, S/o N. Narayanaswamy, Aged about 25 yeas, The Respondent Nos. 1 to 4 Commonly r/at Flat No.5, Block-2, KTM Building, 10th Main, 9th Cross, Maruthi Nagar, Bangaore 560 075. (Ops 1 to 4 placed exparte) | |
5. | The Manager, Dewan Housing Finance Corporation Limited, No.719/A, 53-2, 2nd Floor, 46th Cross, J.K. Towers, Samgam Circle, Jayanagar 8th Block, Bangalore 82. (By Sri K.V. Lokesh, Advocate). | |
ORDER
MR. RAVISHANKAR, JUDICIAL MEMBER
1. This is a complaint filed against the Opposite Party Nos. 1 to 4 alleging deficiency in service in not handing over the possession of the flat inspite of execution of the Sale Deed, hence, prayed to refund the amount of Rs.83,16,800/- with interest in the interest of justice and equity.
2. The facts leading to the complaint are as hereunder;
It is the case of the complainant that with an intention to buy a flat, the complainant entered into an agreement with the Opposite Party Nos. 1 to 4 for purchase of two flats and the total consideration amount of Rs.83,16,800/-. In order to pay the said amount, the complainant availed financial assistance from Opposite Party No.3 who had sanctioned loan to the tune of Rs.63,28,816/-. The entire loan was disbursed to the Opposite Parties 1 to 4 and the Sale Agreement was executed on 26.03.2014. Thereafter, the complainant has paid an amount of Rs.4,00,000/- by way of cash of Rs.10,60,200/- and Rs.8,39,800/- by way of RTGS from the complainant’s account maintained on HDFC Bank. After transferring the entire sale consideration amount, the Opposite Party Nos. 1 & 2 have executed the Sale Deed on 09.04.2014 and registered before the Sub-Registrar Office, Indiranagar, Bangalore as document No.333 of Book-I/2014-15. After executing the Sale Deed, the Opposite Parties have not completed the flats which are undertaken to give possession. Inspite of repeated requests also, the Opposite Parties failed to give possession of the said flats after completion. The complainant noticed that the construction was incomplete and when he made an attempt to call Opposite Party No.1, it was noticed that he was always switched-off his mobile phone and even he was not available in his residence. The Opposite Parties have intentionally evaded to handover the possession after completion. Inspite of repeated requests made by this complainant, the Opposite Parties have not delivered the said flats.
3. The complainant further alleged that Opposite Party Nos. 1 to 4 with an intention to cheat and to make wrongful gain had not given delivery of the flats. Having no other option, the complainant issued a legal notice to the Opposite Party Nos. 1 to 4 calling upon to refund the entire amount paid towards purchase of the said flats since he has to clear the loan obtained from the Opposite Party No.5. The Opposite Party No.5 after sanction of the loan has demanded for EMIs. Due to non-delivery of the flats, the complainant suffered financial loss, hence, Opposite Party Nos. 1 to 4 rendered deficiency in service in not delivering the possession of the flats and prayed for refund of the entire sale consideration amount in the interest of justice and equity.
4. After service of notice, the Opposite Party Nos. 1 to 4 not appeared before this Commission, hence, placed exparte. The Opposite Party No.5 appeared through counsel and filed version and contended that they have sanctioned the loan to the complainant for the purpose of purchase of two flats which was developed by the Opposite Party Nos. 1 to 4 and loan agreement was also executed by the complainant. The complainant has undertaken to pay the EMIs after obtaining the loan and he is under the liability to pay the EMIs after obtaining the loan. Any dispute arose between the complainant and the Opposite Party Nos. 1 to 4 is not concerned to this Opposite Party No.5. There is no deficiency in service on the part of this Opposite Party in claiming the EMIs repayment. The complainant has not alleged any specific deficiency in service on the part of this Opposite Party, hence, prayed for dismissal of the complaint against this Opposite Party No.5.
5. The complainant has filed their affidavit evidence, but, not marked any documents. The Opposite Party No.5 neither filed affidavit evidence nor marked any documents.
6. On perusal, the following points will arise for our consideration;
(i) Whether the complainant proves the alleged deficiency of service on the part of the OPs?
(ii) What order?
7. The findings to the above points are;
(i) Affirmative
(ii) As per final order
REASONS
8. On perusal of the pleadings, affidavit evidence and documents produced by the complainant, it is not in dispute that the complainant entered into an agreement for the purchase of two flats from the Opposite Party Nos. 1 to 4 which was proposed to be developed in Vinayaka Resideny and also paid an amount of Rs.83,16,800/-. It is also not in dispute that the complainant in order to pay the abovesaid amount towards the two flats had obtained loan of Rs.63,28,800/- from the Opposite Party No.5 and the loan amount also disbursed to the Opposite Party Nos. 1 to 4. After receipt of the entire sale consideration amount, it is not in dispute that the Opposite Party Nos. 1 to 4 have executed the absolute Sale Deed on 09.04.2014, the same is produced before this Commission, but, the complainant alleges that after execution of the Sale Deed, the Opposite Party Nos. 1 to 4 have not handed over the possession, hence, prayed for refund of the entire amount paid towards the purchase of the said flats. The claim made by the complainant is not acceptable, because this Commission has no jurisdiction to discuss the Sale Deed and directed the Opposite Party Nos. 1 to 4 to refund the entire amount by declaring the Sale Deed as void. The said claim is purely civil in nature.
9. We noticed that the complainant had alleged that the Opposite Party Nos. 1 to 4 have not completed the entire construction and handed over the possession. To that extent, we restrict the Opposite Party Nos. 1 to 4 have rendered deficiency in service in not handing over the possession of the two flats after completion. Therefore, we are of the opinion that the Opposite Parties are entered into an agreement for sale of the flats after completion, handover the possession have failed to do so. It is a clear case of deficiency in service. Hence, the Opposite Party Nos. 1 to 4 are liable to give possession of the two flats as per the Sale Deed and also liable to pay compensation of Rs.10 lakhs for not complying the Agreement and Sale Deed. Hence, the following;
ORDER
The complaint is hereby allowed with a cost of Rs.25,000/-.
The Opposite Party Nos.1 to 4 are directed to give possession of the two flats to the complainant as per the Agreement and Sale Deed.
The Opposite Party Nos.1 to 4 are further directed to pay a compensation of Rs.10,00,000/- to the complainant for not handed over the possession of the two flats as per the Agreement and Sale Deed.
The Opposite Parties are directed to comply the above said Order within 60 days from the date of this Order.
Forward free copies to both the parties.
Sd/- Sd/-
MEMBER JUDICIAL MEMBER
KCS*
