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

DATED 29^th DAY OF SEPTEMBER 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. It is the complaint filed under section 12 of C.P.Act, 1986 (herein referred as “ACT”)

1. Issue a direction to the OPs to provide the amenities in the layout as assured to make the place to live in and failure of  which, refund Rs.3,80,000/- by adding 24% interest p.a. from 07.12.2016 till realization of the amount.
2. To award a compensation of Rs.75,000/- to the complainant by directing the OPs to compensate the complainant for the deficiency of service committed by the OPs which has caused loss, damage, mental agony, inconvenience
3. Direct the OPs to pay a sum of Rs.5,000/- towards the expenses for causing legal action.
4. Any other order which the Hon’ble Court deems fit.

2. The complaint in brief is as follows:

The complainant having booked  site measuring 30X40 ft. on 17.11.2014 paying Rs.5,000/- to the OPs in respect of site bearing no.443C as per instructions of the OPs, the complainant paid Rs.3,15,000/- on 29.11.2014 as the total sale consideration of site was Rs.3,20,000/-.

It is further case of the complainant that on 14.01.2015 OPs entered into agreement of Memorandum of Understanding with the complainant in respect of amenities  namely  Metaling road, Electricity, implementation of slab stones for flowing of rain water,  Borewell, Park, Club house, Swimming pool and other amenities. Even though OPs  has executed registered sale deed on 07.12.2016 after receipt of further amount, but failed to provide amenities. The OPs have collected Rs.3,80,000/-, but failed to provide amenities. Hence, this complaint for refund of Rs.3,80,000/- with interest, compensation of Rs.75,000/- and Rs.5,000/- towards costs.

3. In response to the notice, OPs appear and file version. OPs contend that the consumer Commission has no power to entertain with regard to transfer of property/transfer of title deeds. The complainant is not a consumer and deny  the claim mentioned in the complaint. OPs admit the payment of amount and Memorandum of Understanding dt.14.01.2015, payment of Rs.3,20,000/-. Complainant has not approached this commission with clean hands. OPs denied other averments made in the complaint and request to dismiss the complaint.  

4.  The complainant files her affidavit evidence  and relies on 11 documents. The affidavit evidence of authorized signatory of OPs came to be filed with 01 document.

5.  Heard arguments of both sides.  Perused records.

6. The points that would 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: Both the parties have filed affidavit evidence and documents in support of their case. We carefully perused the submission made in the complaint, version, affidavit evidence  and documents of both parties. The documents produced by the complainant are not in dispute. Ex.P1 and Ex.P2  payment receipts dt.07.11.2014 and 29.11.2014 in support of the case of the complainant that she has paid Rs.5,000/- and Rs.3,15,000/- to the OP-1 in respect of site measuring 30X40ft. in Kaveri Project. Ex.P3 execution of registered sale deed dt.07.12.2016 is also not in dispute. This sale deed in respect of site bearing no.386/34 totally measuring 139.29 sq.mts. i.e.1500 sq.ft. Ex.P4 is payment receipt dt. 16.11.2016 indicates that the OPs have collected Rs.55,000/- towards Water, Electricity, STP. After registration of sale deed the name of the complainant came to be mutated in the records. The E.C. issued as per Ex.P5. Ex.P6 also indicates that  on 17.05.2017 the OP has collected Rs.8,000/- towards khata change. Similarly under Ex.P7, OP has collected Rs.5,000/- towards balance amount on 17.05.2017.  Ex.P1, P2, P4,P6 & P7 are taken into consideration the total amount paid by the complainant to OPs is Rs.3,93,000/- inclusive of amount towards water, electricity, STP and Rs.8,000/- towards Khata change and Rs.5,000/- towards balance amount. An  amount of  Rs.3,25,000/- only collected towards cost of the site.

9.   Complainant by serving Ex.P8 legal notice, Ex.P9 & Ex.P10 postal acknowledgments calling upon the OPs either to provide necessary amenities or refund Rs.3,80,000/- with interest at 24% p.a.

10. OPs admit receipt of amount, but denies case of the complainant about providing these amenities after execution of the sale deed.

11. The complainant asserts in para-5 of the complaint and affidavit evidence  that on 14.01.2015 the OPs have entered into agreement of Memorandum of Understanding with the complainant with respect to the said site and agreed to provide facilities namely Metaling road, Electricity, implementation of slab stones for flowing of rain water,  Borewell, Park, Club house, Swimming pool and other amenities. The OPs admit  execution of Memorandum of Understanding dt.14.01.2015 and  payment of  Rs.3,20,000/- towards sale consideration. The initial burden lies on the complainant to prove the terms and conditions of the Memorandum of Understanding dt.14.01.2015. This Memorandum of understanding dt.14.01.2015 does not find the light of the day. Under such circumstances, in the absence of this Memorandum of Understanding we cannot accept the say of the complainant that OPs agreed to provide amenities. Even though OPs have received additional amount of Rs.55,000/- under Ex.P4 dt.11.02.2016 towards water, electricity, STP. According to the complainant she has paid in all Rs.3,80,000/-  for sale consideration in respect of the site. If Rs.55,000/- is taken into consideration along with Ex.P1, P2 and P5 the total amount paid was Rs.3,80,000/-.

12. Advocate for complainant  placed reliance of the decision of Hon’ble State Consumer Commission, New Delhi in the matter between Mukesh Kumar Garg V/s Parsvnath Developers Ltd., argued that this Commission empowers to give direction to OPs either to provide necessary amenities or refund Rs.3,80,000/- with interest at 24% p.a. from the date of payment till realization, compensation of Rs.75,000/-.

13. We carefully perused the facts and ratio involved in the above decision. In this decision the complainant having  deposited an amount of Rs.13,68,062.50/- entered into agreement dt.22.06.2017. But in the present case on hand of payment, the OPs executed Ex.P3 registered sale deed in respect of site  measuring 1500 sq.ft. on 07.12.2016. Even though complainant seeks refund of Rs.3,80,000/- with interest, compensation, but this Commission has no powers to grant such reliefs as complainant wants to retain registered sale deed.  Even though complainant wants to refund of Rs.3,80,000/- with interest  and compensation the complainant has to approach Civil court for cancellation of the sale deed and refund of amount.

14. The counsel for OPs vehemently argued that without cancellation of the sale deed, the complainant is not entitled for any reliefs. He also argued that legality of sale  deed cannot be questioned before this Commission. In support of the arguments he placed before this commission decision of Hon’ble Supreme Court of India in Civil Appeal no.4964/2021 in the matter between Estate Officer and another V/so Charnjit Kaur dt. 07.09.2021. We carefully perused the facts and ratio involved in above decision. In the reported decision, respondent Charnjit Kaur was allotted  a site under Chandigarh Milk Colony Allotment of site Rules, 1975. Hon’ble National Consumer Disputes Redressal Commission allowed the complaint, but Hon’ble Supreme Court of India set-aside the order of the Hon’ble National Consumer Disputes Redressal commission making distinction between the statutory service and contractual services. The Hon’ble Supreme Court of India categorically ruled that para-19 and 24 that the deficiency of service. However, does not include transfer of title in favour of the allottee, who was earlier granted rights and service defined under section 2(1)(o) of the C.P.Act, 1986 includes housing construction and not allotment of a site or a plot.  In this case also the dispute is with regard to providing   certain amenities to the sites. Thus, the consumer Fora under the act would not have jurisdiction to entertain the consumer complaints on the ground of deficiency of service for transfer of title of the immovable properties.

15. In the present case on the hand, the complainant seeks direction against OPs to provide amenities on the basis of sale deed without setting aside the sale deed. Under such circumstances, the complainant is not right for approaching this commission. Absolutely, there is  no deficiency of service and the complainant not entitled for any reliefs.

16.  Point no.3:- In view of the discussions referred above, the complaint requires to dismissed.  We proceed to pass the following 

O R D E R

1. The complaint is dismissed.
2. The complainant is at liberty to approach the Civil court, if she is  advised to do so.
3. Furnish the copy of this order to both the parties, and return extra pleadings and documents to the parties.  

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 29^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 :