State Consumer Disputes Redressal Commission
P.P. Sharma vs M/S Megha City (Bengaluru) Developers & ... on 23 July, 2024
1 Appeal No.1011/2022
Date of Filing : 27.04.2022
Date of Disposal : 23.07.2024
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED THIS THE 23rd DAY OF JULY 2024
PRESENT
Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER
Mrs. M.DIVYASHREE : LADY MEMBER
APPEAL NO.1011/2022
P.P.Sharma
S/o Late Devaraj,
Aged about 81 Years,
R/at No.340, AMS Layout,
2nd Stage, 3rd Cross,
Vidyaranyapura,
Bengaluru-560097..... ..Appellant/s
(By Adv.Sri.N.Jayavelu)
Vs
1. Mega City (Bengaluru) Developers
& Builders Pvt. Ltd.
Mega Towers, No.120,
K.H. Road (Double Road)
Bengaluru-560027.
2. C.P.Yogeshwar,
Managing Director,
Mega City (Bangalore) Developers
and Builders Pvt. Ltd.,
Mega Towers, No.120,
K.H.Road (Double Road)
Bengaluru-27.
Also at: C.P.Yogeshwar
Managing Director
Mega City (Bangalore) Developers
and Builders Pvt., Ltd.,
H.No.247, 2nd block, 6th stage,
BDA layout, Banashankari,
2 Appeal No.1011/2022
Bengaluru.
3. Mahadevaiah
Director,
Mega City Bangalore Developers
and Builders Pvt. Ltd.,
Mega Towers, No.120,
K.H.Road (Double Road)
Bengaluru-27. ..Respondent/s
(By Adv.Sri.B.Shivakumar)
ORDER
BY Mr.K.B.SANGANNANAVAR : Pri.Dist & Session Judge (R) - JUDICIAL MEMBER.
1. This is an appeal filed U/s.41 of CPA 2019 by Complainant/Appellant aggrieved by the order dtd.13.01.2022 passed in CC/311/2021 on the file of District Commission, Bengaluru urban. (Parties to the appeal henceforth are referred to their rank assigned to them by the District Commission).
2. The Commission examined the grounds of appeal, impugned order, appeal papers and heard the learned counsels. Now the point that arise for consideration of this Commission would be:
Whether the impugned order dtd.13.01.2022 passed in CC/311/2021 does call for an interference of this Commission for the grounds set out in the appeal memo ?
3. The Complainant has filed consumer complaint against OPs.1 & 2 and sought directions to pay Rs.12 lakhs as compensation 3 Appeal No.1011/2022 along with interest at 17% p.a. and Rs.6 lakhs towards mental strain for rendering deficiency in service and unfair trade practice. In other words sought for direction against OPs.1 & 2 to pay Rs.18 lakhs on the ground that he intends to purchase a residential site formed by OPs under the name and style of Vajra Giri township on Bengaluru - Mysuru road. He has stated pursuant to inviting application from the prospective buyers intend to purchase a residential site in the said project, Complainant became member of the said project for purchasing the site measuring 2400sft and to that affect he had paid Rs.96,000/- on 06.09.1999 and he was given with membership no.2328. After receipt of Rs.96,000/- OPs have allotted site bearing no.776 in F-II block of Vajragiri and even issued possession certificate on 26.08.1999 measuring 60x40ft. However, OPs failed to execute the sale deed and after several follow ups, OPs have executed a sale deed in respect of a new property site bearing no.14 in A-1 block, Khatha no.120/14 in sy.no.77/1 & 77/83 measuring 40x60ft situated at Sheshagirihalli village, Bidadi hobli, Ramanagara taluk and district on 06.04.2009, without issuing formal allotment letter. According to the Complainant, he had paid Rs.2,40,000/-. Notwithstanding his payment made towards the site had paid 4 Appeal No.1011/2022 stamp duty on Rs.12 lakhs, since that was the guideline value as on the date of sale deed.
4. The grievance of the Complainant would be, as he is a retired HMT Manager and is a senior citizen aged about 79 years as on the date of raising consumer complaint before the District Commission. He alleged against OPs that an initial allotment of site bearing no.776 in F-II block was made and later on site bearing no.14 in A-1 block got registered in his name. He has stated this sale deed is nothing but a paper through which no rights are derived and he cannot establish his right over the said site, since he was not put in possession of the said site, since, the original owners of the land in which site bearing no.14 said to be situated are cultivating the land. He has also stated land owners got the land back through an order of the court. According to him the site in question is not inexistence. In such circumstances, he constrained to raise a consumer complaint seeking direction against OP to refund Rs.2,40,000/- paid by him along with additional amount paid towards development charges at Rs.50,000/-, Rs.12,340/- towards registration. According to complainant he has paid Rs.3,02,340/- and had calculated interest at 17% p.a. from the date of such payments and had evaluated his claim at Rs.12 lakhs + Rs.6 lakhs. This complaint was contested by OPs.1 & 2, 5 Appeal No.1011/2022 contending that the sale deed has been executed in favour of the Complainant on 06.04.2009 and possession was also handed over to him by issuing possession certificate and this complaint filed after lapse of 12 years and after executing of the sale deed dtd.06.04.2009 is barred by limitation. The OP denied receipt of consideration amount of Rs.2,40,000/-, development charges of Rs.50,000/- and registration charges of Rs.12,340/-. However admits the receipt of Rs.96,000/- only.
5. In view of rival contention of respective parties, the District Commission held „as there is a registered sale deed in favour of the Complainant in respect of site no.14, in such circumstances, Complainant without seeking cancellation of registered sale deed sought monetary reliefs against OPs which could not be granted by Consumer Commission.‟ Further opined „the validity of the sale deed and cancellation of the sale deed relief can be claimed before the regular civil court.‟ It is settled preposition of law that the complicated questions cannot be decided by the Consumer Commission. Accordingly dismissed the complaint without cost.‟
6. It is not in dispute that, OP.1 is a developer and builders, while OP.2 is Managing Director of OP.1. It is also not in dispute that, Complainant became the member of OPs with membership no.2328 has sought allotment of site measuring 40x60feet. It is also not in dispute that he was allotted with site no.776 in F-II 6 Appeal No.1011/2022 block, Phase 1 in Vajragiri township vide letter dtd.26.08.1999 as against payment made at Rs.96,000/- and balance is nil. In other words, at that point of time the price of the said site was fixed at Rs.96,000/- which was paid by the Complainant and the balance to be paid was nil. However this site was not registered for the reasons best known to OPs, but facts remain found from the enquiry, yet another site bearing no.14 in A-I block situated under khatha no.120/14 in sy.no.77/1 & 77/83 was allotted and the OPs have executed sale deed in respect of the said site with no possession, which could not be said OPs have discharged their obligations, since as per clause 5 of the sale deed OPs being vender has to take necessary steps to put Complainant in peaceful possession and enjoyment of the property. As per clause 6 OPs being vender are bound to indemnify and reimburse the purchaser against the losses and damages on account of any defect in the property was not at all examined by the District Commission, considering the peculiar facts put forth by the parties to the complaint. It has come in the enquiry, that the site, which was sold in favour of the Complainant belongs to schedule caste, which OPs never disclosed and they never gave details of the titles of the land allotted. Further we found the District Commission failed to examine the property rights of the OP. At this stage it would be 7 Appeal No.1011/2022 appropriate to go through Ex-C14, the order dtd.23.12.2009 passed by Asst. Commissioner, RamangaVra sub-division, Ramanagara Taluk and District. The parties to this PTCL case are Siddaramappa S/o Thimmaiah, Harijana colony, Sheshagirihalli, Bidadi hobli, Ramanagara taluk Vs. Venkataraju S/o Venkataratna Shetti, of No.14, 2nd Model House Street, Basavanagudi, Bengaluru. If we examine the sale deed dtd.06.04.2009, entered between the Complainant and OPs.1 & 2, we could see the schedule of the property described is "All the piece and parcel of converted residential bearing site no.14 in A-1 block, khatha no.120/14 in sy.nos.77/1 & 77/83, measuring east to west 40feet, north to south 60 feet, in all totally measuring 2400sft sitated at Sheshagirihalli village, Bidadi hobli, Ramanagaram taluk and district, together with all rights, appurtenances whatsoever, whether underneath or above the surface and bounded on east by site no.15, west by site no.13, north by site no.3 and south by 33feet road." Further it is also mentioned 'though the purchaser the Complainant herein had paid a sum of Rs.2,40,000/- as the sale consideration, notwithstanding the consideration paid by the purchaser the stamp duty is paid on Rs.12 lakhs which is the present value in respect of the schedule property.‟ In view of such recitals, in our view OPs cannot deny the payment of Rs.2,40,000/- either 8 Appeal No.1011/2022 under this document or earlier to the document. Further could be seen from this registered sale deed, Complainant had paid Rs.12,000/- towards registration charges, Rs.300/- towards scanning fees, Rs.40/- towards miscellaneous charges. Thus he had paid Rs.12,340/-, besides this payment, had also made payment of Rs.81,600/- towards stamp duty which OPs now cannot deny as they are also parties to the sale deed, as such it may not be difficult for us to hold that under this document/sale deed, complainant had paid Rs.3,33,940/-. In other words OPs cannot deny such payments made by Complainant as the document itself speaks of the payments made. As already stated this sale deed is dtd.06.04.2009, while Ex-C14 order passed by AC-Ramanagara is dtd.23.12.2009, wherein could see AC being the competent authority under PTCL laws resumed sy.no.77/1 (77/1 P1) measuring 3 acres to the government and had re-granted in favour of Siddaramappa S/o Thimmaiah the original land owner. Thus it is prima faice made out the sale deed dtd.06.04.2009 executed by Ops in favour of the complainant has no relevance or through which no rights of the site mentioned in the sale deed is passed in favour of the complainant, yet Ops being developers and builders for the reasons best known are denying their rendering deficiency of service. Even they go to the extent to deny the receipt of 9 Appeal No.1011/2022 Rs.2,40,000/- but made the Complainant to spend additional money on the pretext of developing the site by receiving Rs.50,000/-, which is nothing but rendering deficiency in service and it amounts to unfair trade practices, which was not at all examined by the District Commission. In our view from the materials placed on record, viewed from any angle it cannot be said that the dispute raised by the Complainant has to be decided by Civil Court and not by the Consumer Commissions.
7. It is true to accept that episode of allotment of sites and issuance of possession certificate, commenced during 1999 and even they go to the extent to execute a registered sale deed on 06.04.2009 without putting the purchases in possession. As already stated above the site bearing no.14 said to have been allotted and registered in the name of the Complainant under this sale deed is situated in sy.nos.77/1 measuring 3 acres and this land belongs to Siddaramappa S/o Thimmaiah, since it was resumed under an order passed by AC on 23.12.2009. The competent authority/Asst. Commissioner under the PTCL laws had passed order resuming the lands, suffice to hold that the sale deed in question become insignificant or redundant or has no relevance. In such circumstances, we are of the view no impediment for the commission to hold OPs still to redress the dispute, since they have withheld the hard earned money paid 10 Appeal No.1011/2022 by the Complainant seeking allotment of site with pond hope to build his dream house. In such circumstances, without redressing the dispute OPs cannot contend that the complaint is barred by time. In our view the District Commission had failed to appreciate not only the documents placed by the Complainant but the order dtd.23.12.2009 passed by the Competent Authority/Asst. Commissioner under PTCL laws in the case no.PTCL/41/2008-09.
8. In view of the above discussions, when the Ops did not discloses the fact that the site sold in favour of the complainant is situated in the land belongs to a schedule caste person and is not at all developed on the date of sale deed, not only amounts to rendering deficiency of service but amounts to unfair trade practices, was not at properly perceived by the District Commission. It has also come in the enquiry, from the contents of complaint coupled with affidavit evidence, when complainant went to see the site purchased by him, had found, owner of the said land is cultivating and only after he having been seen the situation of the site sold under sale deed from the service provider/Ops was constrained to issue a legal notice dtd.23.09.2020 calling upon the OPs to reimburse the property value of the site lost by him and this notice was served on the Ops and to prove this article tracking details is placed on record 11 Appeal No.1011/2022 during the course of enquiry, yet, Ops failed to reply for the reasons best known and in our view considering the evidence as a whole, the date as found in the legal notice has to be considered for the purpose of commencement of limitation, however it was not considered by the District Commission.
9. In so far as the contention of the learned counsel for OPs that Complainant has to approach competent civil court and seek validity of sale deed could not be acceptable in view of peculiar facts found from the enquiry held by the District Commission, since the sale deed is executed by the service provider pursuant to the promises made without completing the project and without establishing their rights on the land in which the site situated sold in favour of the complainant.
10. In so for as the contention of learned counsel for OPs that, Complainant in his complaint did not disclose the cause of action and the cause of action was arisen 12 years ago which cannot be raised after execution of sale deed for want of limitation is again could not be acceptable. In our view from the discussions made above from the materials placed on record, since the so called sale deed was executed by OPs with no rights which could be born out from the order of the AC who is the competent authority to resume the lands alienated had re- granted in favour of the original grantees and on the contrary 12 Appeal No.1011/2022 nothing is placed on record to rebut the said order, as such we are of the view, the so called sale deed said to have been executed by the Ops in so far as complainant is concerned has no relevance and in such view of the matter OPs have to be held, holding the money paid by the Complainant are liable to return the same to the complainant. From the enquiry, we did not find any materials on record to show that the Ops have made any efforts either to provide an alternate site as promised or refund the money received along with just compensation. In such view of the matter, we found satisfied Ops have sold a litigation site and not a site in favour of the complainant. It is therefore the reliance placed on the decision reported in I (2015) CPJ 105 (NC) in the case between Pappu Managaratanam vs. Sai Sha Finance and Chits & Anrs and another decision in I (2016) CPJ 190 (NC) in the case between Jansatta Sahkari Awas Samiti ltd., vs. Kone Elevators India Pvt., Ltd., & anr could not be come to their assistance to contend that the complaint is time barred.
11. In the above such conclusion, as Complainant has shown payment of Rs.96,000/- for allotment of site initially and had paid Rs.6,342/- towards development charges and under sale deed had paid Rs.2,40,000/- and again had paid Rs.50,000/- towards betterment charges, Rs.12,340/- towards registration 13 Appeal No.1011/2022 charges, Rs.81,600/- towards stamp duty. Thus together had paid Rs.4,86,282/- which OPs are bound to return to the Complainant along with just compensation for rendering deficiency in service and for their unfair trade practice in allotting site which in fact is not in existence to the Complainant and made him to suffer a lot at his fag end of life, since as on the date of submitting his arguments was aged about 81 years and being super senior citizen had undergone mental agony, stress and mental worry despite losing his hard earned money. Had he paid such money at that point of time in some other project would have allotted a site with such dimension free from all encumbrances and such site could have been fetch sky rocketing escalation in terms of money, as such we are of the view that the District Commission had committed grave error in dismissing the complaint only on the ground that complaint is barred by limitation and the Complainant has to approach competent civil court. In other words, findings recorded by the District Commission are contrary to the facts and law is liable to be set aside. Hence we proceed to allow the appeal. Consequently set aside the order dtd.13.01.2022 passed in CC/311/2021 on the file of District Commission, Bengaluru urban and as a result allowed CC/311/2021 in part and directed OPs.1 & 2 to pay Rs.4,86,282/- along with interest at 14 Appeal No.1011/2022 12% p.a. from the date of receipt till payment and do pay Rs.2 lakhs towards mental agony and physical inconvenience and Rs.25,000/- towards litigation costs within 60 days from the date of order, failing which, the amount so awarded shall carry interest at 9% p.a. from the date of such default till payment.
12. Notify copy of this Order to the District Commission and parties.
Lady Member Judicial Member *NS*