Bangalore Urban 3rd Addl. District Consumer Disputes Redressal Forum
No.8, 6th Floor, Sahakara Bhavan, Cunningham Road, Bangalore-560 052.
Complaint Case No. CC/10/659
1. Capt. S. Dinakar
S/o Srinivasulu Chetty, R/o No.91, Chamiers Road, (opp.to Adayar Boat Club Road, R.A.Puram, Chennai-600028
BEFORE:
HONORABLE T. Rajashekharaiah PRESIDENT
HONORABLE Dr. Subhashini Member
HONORABLE H.M.SHIVALINGAPPA Member
PRESENT:
ORDER
PRESENT:
Sri. T. Rajashekhariah B.A. LL.B.,
PRESIDENT
Smt. Dr. Subhashini, M.B.B.S.,
MEMBER
Sri. H.M.Shivalingappa, B.Sc., LL.B.,
MEMBER
COMPLAINANT
Capt.S.Dinakar,
S/o Srinivasulu Chetty,
R/o No.91, Chamiers Road,
(Opposite to Adayar Boat Club Road)
R.A.Puram, Chennai-600028.
V/S
OPPOSITE PARTY
M/s ITTINA PROPERTIES PVT. LTD.,
No.1054, III Block, 7th Main Road,
Koramangala, Bangalore-560 034.
Represented by its Director,
Mr.Mahabaleshwarappa,
S/o Siddaramappa,
Kaikondrahalli, Carlmelaram Post,
Bangalore-560 035.
ORDER
1. This Complaint is filed under section 12 of the Consumer Protection Act, 1986. The Complainant contends that the Opposite Party is a builder and developer and on 14.6.2006 one Ms.Latha Seetaram had entered into an agreement with the Opposite Party for purchase of a flat and had paid Rs.25,000/- as initial amount and has paid further sum of Rs.2,73,000/- as part consideration and the balance amount was agreed to be paid at the time of registration. Due to some unavoidable reasons, Ms.Latha Seetaram decided not to purchase that property and she offered to sell her right to the Complainant. Hence, another agreement dt.9.7.2007 was entered into between the Complainant and the Opposite Party and the Opposite Party obtained fresh booking form from the Complainant and agreed to execute the sale deed in favour of the Complainant by accepting the payments that were already made by Ms.Latha Seetaram as the payments made by the Complainant. Under that agreement dt.9.7.2007, the Opposite Party was required to deliver the possession of the flat to the Complainant by December 2007, but till the end of 2008, the Opposite Party did not complete the registration formalities and even though the Complainant continuously followed up the matters with the officials of the Opposite Party, they gave evasive answers to the queries of the Complainant. The Complainant started making enquiries and finally came to know that the flat that was agreed to be sold to the Complainant was already sold to one Mr.Umashankar Hegde for sale consideration for Rs.24,00,000/- by executing the sale deed in the month of December 2007 itself. It is stated that the Opposite Party taking advantage of the raise in the market value of the property, sold the above said property to third party for a higher consideration and in violation of the terms of the agreement dt.9.7.2007. Hence, the act of selling the flat to the third party, in violation of the terms of the agreements, amounts to deficiency in service. Hence, the Complainant issued legal notice on 26.6.2009 demanding to repay the amount with interest and compensation of Rs.5,00,000/- and the Opposite Party has not responded it. Hence, this Complaint is filed for a direction to the Opposite Party to refund Rs.2,98,000/- with interest at 18% p.a. from 14.6.2006, till realization and to award compensation of Rs.5,00,000/-.
2. The Opposite Party has filed version and has contended that there is delay in approaching this Forum because of it, the Complaint is liable to be dismissed. It is stated that the Complainant neither approached the Opposite Party for getting the sale deed, nor verified the status of the project. The Complainant, after entering into the sale agreement, never paid the remaining balance sale consideration to the Opposite Party. Finally after several demands made by the Opposite Party, the Opposite Party was compelled to issue a letter dt.12.4.2008 to the Complainant cancelling the agreement. The said letter returned with a postal shara as “not claimed” and the Complainant has purposefully avoided to receive the notice sent by the Opposite Party. Hence, it is clear that the Complainant was not at all interested in purchasing the flat and due to his default, in not paying the balance sale consideration, it is not open for him to allege the deficiency of service against the Opposite Party. Since the Complainant is a chronic defaulter in making the payment, the question of delivery of possession of the flat does not arise. The Complainant himself is not interested in purchasing the flat and because of it, he has only opted for refund of the amount. Hence, there is no deficiency in service and the Complaint may be dismissed.
3. The points that arise for our consideration are:
(i) Whether the Complainant has established deficiency in service by the Opposite Party?
(ii) If so, to what relief the Complainant is entitled?
4. Our findings to these points are as hereunder:
i) Affirmative
ii) As per the final order.
R E A S O N S
5. POINT NO.1: There is no dispute about entering into agreement to purchase a flat between the Ms.Latha Seetaram and the Opposite Party on 14.6.2006 and about paying Rs.2,98,000/- relating to it. There is no dispute that subsequently the Complainant stepped into the shoes of the Ms.Latha Seetaram and another agreement was entered into between the Complainant and the Opposite Party on 19.7.2007 and the amount paid by Ms.Latha Seetaram was agreed to be treated as consideration paid by the Complainant. The agreement is also produced and it states that the balance of Rs.16,60,000/- shall be paid at the time of execution of the sale deed and the Opposite Party undertakes to deliver the possession of the property to the Complainant on or before December 2007. Hence, it is clear that the Opposite Party was required to deliver possession of the property on or before the end of December 2007. Admittedly, the Opposite Party has not delivered possession or executed the sale deed. It is the contention of the Opposite Party that the Complainant was not interested and he did not verify the status of the project and he did not come forward to get the sale deed executed. On the other hand, it is the contention of the Complainant that until the end of 2008, he has approached the officials of the Opposite Party and they gave evasive reply and subsequently, he came to know that in the month of December 2007 itself, the Opposite Party has sold the flat to one Umashankar Hegde. Even though the Opposite Party has filed version, he has not denied these allegations made by the Complainant in his Complaint. Hence, the contention of the Complainant that the Opposite Party has sold the flat in the month of December 2007 is acceptable. Under the agreement, the Opposite Party was required to deliver possession of the flat to the Complainant on or before December 2007. Hence even before the expiry of that period, he cannot sell that flat to any other person. The fact that before that date, the Opposite Party has sold the flat to others goes to show that the Opposite Party has violated the agreement. Hence after executing that sale deed in favour of the third party, the Opposite Party could not transfer the same property to the Complainant. Hence, the Complainant has been deprived of that flat which was agreed to be sold to him by the Opposite Party. Hence, the Opposite Party has violated the agreement, between the parties, and that amounts to deficiency in service. There is no merit in the contention of the Opposite Party that on 12.4.2008, he has cancelled the agreement, because, by December 2007 itself the agreement has been violated by him, by selling the flat to the third party. Hence, he cannot exercise the option of cancelling the allotment of the flat. If he is permitted to do so, he will be taking advantage of his own wrong. Hence not receiving that letter of cancellation by the Complainant is of no consequence. On the facts and circumstances of the case, the contention of the Opposite Party that the Complainant never approached him for getting the sale deed is not acceptable. The Complainant has specifically pleaded that he repeatedly approached the officials of the Opposite Party to follow up the matter and they gave evasive answers. This allegation of the Complainant is not denied by the Opposite Party in his version. Hence, the contention of the Opposite Party is not acceptable. Hence, point No.1 is held in favour of the Complainant.
6. POINT NO.2: In view of our finding on Point No.1, the Complaint is liable to be allowed. Hence, we proceed to pass the following:
O R D E R
This Complaint is allowed. It is held that there is deficiency in service. The Opposite Party is directed to refund Rs.2,98,000/- (Rupees two lakh ninety-eight thousand) to the Complainant with interest at 18% p.a. from 14.6.2006, till realization. The Opposite Party shall pay Rs.3,00,000/-(Rupees three lakh) as compensation and Rs.10,000/-(Rupees ten thousand) as costs of this litigation. The Opposite Party shall be liable to pay interest at 12% p.a. on the said compensation of Rs.3,00,000/- from the date of Complaint i.e.26.3.2010 until actual payment. The Opposite Party is granted 30 days time from today to comply this Order.
This Order is pronounced on this the 28th day of March 2011.
H.M. SHIVALINGAPPA Dr. SUBHASHINI T. RAJASHEKHARIAH
MEMBER MEMBER PRESIDENT
[HONORABLE T. Rajashekharaiah]
PRESIDENT
[HONORABLE Dr. Subhashini]
Member
[HONORABLE H.M.SHIVALINGAPPA]
Member