State Consumer Disputes Redressal Commission
Mr. Raghurama Y , vs Mr. Gopalakrishna Bhat, on 13 October, 2023
Cause Title/Judgement-Entry KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN, BANGALORE. Complaint Case No. CC/647/2015 ( Date of Filing : 07 Dec 2015 ) 1. Mr. Raghurama Y , Aged about 54 years, S/o. Late Sri. Y. Harihara Bhat, R/at Vinayadeep, Vidyanagar, Kasaragod-671121. Kasaragod District, Kerala District. ...........Complainant(s) Versus 1. Mr. Gopalakrishna Bhat, S/o. Late Narayana Bhat, R/at No. 3-33-2870, Pinto Lane Bejai Mangalore-575004.D.K. Karnataka State. 2. Smt. Lalitha Bhat, W/o. Gopalakrishna Bhat, R/at No. 3-33-2870, Pintos Lane, Bejai Mangalore-575004.D.K. Karnataka State. 3. Dr. G. Krishna Bhat, S/o. Late Thimmanna Bhat, Gangaramajalu House, Konaje Post, Asaigoli-574199. Mangalore TQ D.K. District. Karnataka State. 4. Mr. K. Seetharama Rai. S/o. Late, S. Narayana Rai, R/at Rashmi Nivas Savanoor, post: Savanur-574202. Puttur D.K. Karnataka State. ............Opp.Party(s) BEFORE: HON'BLE MR. Ravishankar PRESIDING MEMBER HON'BLE MRS. Smt.Sunita Channabasappa Bagewadi MEMBER PRESENT: Dated : 13 Oct 2023 Final Order / Judgement BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE (ADDL. BENCH)\ DATED THIS THE 13th DAY OF OCTOBER 2023 PRESENT MR.RAVISHANKAR: JUDICIAL MEMBER MRS.SUNITACHANNABASAPPABAGEWADI: MEMBER CONSUMER COMPLAINT NO.647/2015 Sri. Raghurama. Y, Aged about 54 years, S/o Late Sri. Y.S Harihara Bhat, Residing at Vinayadeep, Vidyanagar, Kasaragod - 671121, Kasaragod District, Kerala State. Complainant/s V/s 1. Mr.Gopalakrishna Bhat, S/o. Late Narayana Bhat, Residing at No.3-33-2870, Pinto's Lane, Bejai, Mangalore - 575 004, Dakshina Kannada District, Karnataka State. Opposite Party/s 2. Smt. Lalitha Bhat, W/o Gopalakrishna Bhat, Residing at No.3-33-2870, Pinto's Lane, Bejai, Mangalore - 575 004, Dakshina Kannada District, Karnataka State. 3. Dr.G.Krishna Bhat, S/o Late Thimmanna Bhat, Gangaramajalu House, Konaje, Post:Asaigoli - 574 199, Mangalore Taluk, Dakshina Kannada District, Karnataka State. 4. Mr.K. SeetharamaRai, S/o Late S.Narayana Rai, R/at:Rashmi Nivas, Savanoor, Post: Savanur - 574 202, Puttur, Dakshina Kannada District, Karnataka State. O R D E R
BY SMT. SUNITA.C.BAGEWADI, MEMBER The complainant filed this complaint against the Opposite Parties alleging deficiency in service and prayed to direct the Opposite Parties to pay a sum of Rs.9,50,000/- towards consideration to execute the sale deed as per the MUDA and handover the possession of the sale property. Further prayed to pay a sum of Rs.5,00,000/- towards compensation for deficiency of service and unfair trade practices and Rs.25,000/- towards litigation expenses.
2. The brief facts of the complaint are as :
The complainant submitted that the Opposite Party Nos.1 to 4 are engaged in the commercial business activities as Real Estate/Land Developers, formation of residential layouts comprising of sites, its sale buying and selling of sites, lands construction of Houses, Apartment/s, Villas, its sale etc. It is submitted that while offering the residential site to be formed in the aforesaid Larger Property for Sale, the Opposite Parties have represented, assured, promised and undertaken to the complainant that the property bearing Sy.No. 114/1A4 of Konaje Village of Manglore Taluk, Dakshina Kannada District situated immediately next to the eastern boundary of the Larger Property also is owned, possessed and belonging to them and that a 30ft wide road comprised in said property bearing Sy.No.114/1A5 of Konaje Village of Mangalore Taluk, Dakshina Kannada District that in turn connects the public/govt. road i.e. Tokkottu - Konaje main road, shall be provided as ingress and egress to the residential site in Sy.No.114/1A5 to be sold to him.
3. It is further submitted that by the aforesaid representations, assurances, promises and undertakings, the Opposite Parties have induced the Complainant to accept their offer aforementioned for sale of the residential site to be formed in the aforesaid Larger Property in his favour and induced the Complainant to accept their offer aforementioned for sale to the residential site to be formed in the aforesaid Larger Property in his favour and induced the Complainant to pay the advance sale consideration of Rs.8,00,000/- (Rupees Eight Lakhs only) to them and thereupon have executed an Agreement of Sale on 02.11.2012 at Mangalore in favour of the Complainant agreeing to sell, transfer and convey the northern portion of non-agricultural immovable property measuring 10 cents carved for non-agricultural immovable property measuring 30 cents in Sy.No.114/1A5 of Konaje Village of Mangalore Taluk, Dakshina Kannada District. It is submitted that as per the terms of the aforementioned Agreement. The Opposite Parties have agreed and bound to provide a)Adangal Registry, b) FMB Sketch, c) Saguvali chit in the name of Bhoja Kajava, d) Single Layout approval for residential purpose from Mangalore Urban Development Authority, e) Survey Sketch for registration, f)Encumbrance Certificate from 05.01.1982 up to date and g) Notary attested copy of title and other documents at their cost to the complainant before the date of registration and execute and register the absolute Sale Deed in respect of the Schedule Property in favour of the Complainant within a period of one month from the date of obtaining single layout approval in respect Larger Property for residential use from Mangalore Urban Development Authority.
4. Further, it is learnt later by the Complainant that the Opposite Parties having collected/received the advance sale consideration of Rs.8,00,000/- from the Complainant, have utilized/appropriated the said amounts for their needs and benefits, to give one instance, the Opposite Parties No.1 and 2 have performed the marriage of their daughter in the month of December 2012 utilizing the monies received from the Complainant. It is submitted that subsequent to the execution of the aforementioned Agreement, as the Complainant was/is always ready and willing to perform his part of the terms and conditions of the Agreement of Sale dated: 02.11.2012, on several occasions he had requested the Opposite Parties in person and through telephonic conversation to furnish all the aforementioned documents required for completion of the sale transaction contemplated under the aforementioned Agreement. In response to his said enquires and follow-up actions, the Opposite Parties have orally represented, assured, promised and undertaken to him that they have made necessary application to Mangalore Urban Development Authority for obtaining single layout approval in respect of Larger Property for residential use and register the absolute Sale Deed in respect of the Schedule Property in his favour on or before 31.12.2013.
5. It is submitted that the failure of the Opposite Parties to furnish documentary proof in regard to the alleged steps taken by them for approved lay out plan, constrained the Complainant to make an application dated 20.09.2013 through his brother Y.H.Ganesh Bhat to Mangalore Urban Development Authority under the Right to Information Act seeking necessary information and documents pertaining to the alleged application made by the Opposite Parties. In response thereto, a reply dated 06.10.2013 by Mangalore Urban Development Authority was issued intimating that no such application was/is made by the Opposite Parties for obtaining single layout approval in respect of Larger Property for residential use. Therefore, on receipt of the reply dated 06.10.2013 by Mangalore Urban Development Authority, the Complainant caused legal notice dated 28.10.2013 calling upon the Opposite Parties to forthwith perform all and every obligations on their part enumerated in the Agreement of Sale dated 02.11.2012 and to take steps to execute and register the absolute Sale Deed in his favour in respect of the Schedule Property on or before 31.12.2013 receiving the balance sale consideration from him and to put him in possession and enjoyment of the Schedule Property.
6. It is submitted that in response to the legal notice dated: 28.10.2013 of Complainant, the Opposite Parties have furnished the photocopies of the following documents:
a) Receipt bearing No.47429 issued by Mangalore Urban Development Authority for having received Rs.610/-.
b) Sketch in respect of property bearing Sy.No.114/1A10.
c) Letter bearing No.NUDA/TPS/5719:2012-13 dated 04.04.2013 issued Mangalore Urban Development Authority to the effect that property bearing Sy.No.114/1A10 is in residential zone.
d) Sanction Letter bearing No. MUDA/TPS/Plan/3789/2013-14 dated 13.03.2014 issued by Mangalore Urban Development Authority in respect of approving layout plan for formation of residential sites in property bearing Sy.No.114/1A10 measuring 30 cents. (3 sites and a plot for park and civic amenities each).
e) Sanctioned layout plan bearing No.MUDA/TPS/Plan/3789/2013-14 dated 13.03.2014 issued by Mangalore Urban Development Authority.
f) Form No.9 issued by the Rural Development and Panchayath Raj Department in respect of property bearing Sy.No.114/1A10 assigned with Property No.151100300500120023, with description of boundaries of said property.
g) Form No.9 issued by the Rural Development and Panchayath Raj Department in respect of property bearing Sy.No.114/1A10 assigned with Property No.151100300500120023, with description of boundaries of said property.
and demanded payment of balance sale consideration and to obtain Sale Deed in respect of the Site No.1 marked and shown in the said Layout Plan bearing No.MUDA/TPS/Plan/3789/2013-14 dated: 13.03.2014 issued by Mangalore Urban Development Authority.
7. Further, it is submitted that on careful perusal of the aforementioned documents, the Complainant had noticed, that the Site No.1 comprised in the aforesaid approved lay out plan sought to be sold by the Opposite Parties to him since its altogether different than the Schedule Property. The Complainant had caused another Legal Notice dated 30.04.2014 while pointed out the aforementioned facts noticed. It is submitted that subsequent to the said notice dated 30.04.2014, with prior notice and intimated to the Opposite Parties on 25.05.2014 the Complainant, his brother Y.H.Ganesh Bhat had visited the concerned property bearing Sy.No.114/1A5 of Konaje Village of Mangalore Taluk, Dakshina Kannada District shown earlier by the Opposite Parties to the Complainant, while they were at the said spot, Opposite Party No.1 along with the son of the Opposite Party No.3 had met them and for the first time had furnished (1) the endorsement dated 17.12.2012 of the surveyor of the survey department of Taluk Office, Mangalore along with sketch and Form No.10 showing that the property bearing Sy.No.114/1A5 of Konaje Village of Mangalore Taluk, Dakshina Kannada District is reassigned with Sy.No.114/1A10 and (2) registered Relinquishment Deed dated 05-03-2014 executed by them in favour of Mangalore Urban Development Authority. It is submitted that on careful inspection of the property and aforementioned documents, the Complainant, his brother and brother-in-law on 25.05.2014 for the first time have noticed the different site with different ingress and egress than the Schedule Property by demanding the balance sale consideration and also attempting to sell the Ste with no exiting road. The acts of commission and omissions on the part of the Opposite Parties in offering to sell the Schedule Property, collecting huge amounts, utilizing the same for their needs and thereafter offering to sell an all together different site which has no ingress n egress in the form of 30 ft wide road but showing Konaje Police Station/Government Lands as road, threatening the complainant with cancellation of the Agreement, not executing Sale Deed in respect of the Schedule Property in favour of the Complainant and not handing over possession of the Schedule Property. Amounts to gross deficiency of service and gross acts of unfair trade practices, but, also amounts to criminal offences of "Cheating, "Criminal breach of Trust", "Fraud", "Misappropriation" and other offences defined in the Indian Penal Code and in so far as the said criminal offences committed by the Opposite Parties. Hence, the complaint.
8. After service of notice, the Opposite Party No.1 appeared through counsel, but, not filed version. The Opposite Party Nos.2 and 4 placed ex-parte. The Opposite Party No.3 appeared through counsel and filed version. The OP No.3 contended that he is working as a Doctor and he is not a professional and developer. The Ops have not formed any other layout and they are not the real estate agents or land developers as contended. Apart from the formation of few sites in the land belonging to them and selling it they have not carried out any activity of real estate business. The few sites now formed in Konaje Village is in the private property of the Ops and they are not the service providers. Hence, the complaint is not maintainable. The OP No.3 submits that they had the intention of selling their land in Sy. No.114/1A5 of Konaje Village by dividing it as residential sites so that it is easy to sell small bits of land than selling the entire 30 cents together. The complainant came forward to purchase one such piece of land. The Ops have complied with the requirements of converting the land for residential purposes and to demarcate the sites and obtain necessary approval from MUDA etc., It is true that in the layout plan approved by MUDA 30 feet wide road is shown on the western side of the site. The conditions imposed in the sanctioned letters and the Ops have no control over the same and these conditions have no effect on the title or possession of the site in question. It is submitted that though in the agreement it is shown as a road approach will be provided on eastern side is situated much on the down side and there is a lot of height difference between the two properties. Therefore, it was felt that the formation of road on the eastern side is not safe. Subsequently this aspect was discussed with the complainant and it as mutually agreed between the parties that the road will be formed on the western side connecting the public road. All the three proposed buyers agreed for the same and accordingly the road approached was provided from the western side of the site. The other two agreement holders have purchased the sites and they have no grievance about the approach road provided. Hence, there is no merit in the contention of the complainant. It is denied that the western side of the property in question belongs to and owned by Konaje Police Station and Government of Karnataka and other private individuals.
9. The Opposite parties have not committed any deficiency of service as alleged by the complainant and they have not committed any unfair trade practice or any criminal offence of cheating etc.,. The complaint is virtually a suit for specific performance and its value cannot exceed than the value stated in the agreement. There is no cause of action to file the above complaint and this Hon'ble Commission has no pecuniary or territorial jurisdiction over the subject matter of the complaint.
10. The complainant filed affidavit evidence and marked documents at Ex.C1 to C95. The Opposite Party No.3 filed affidavit evidence, but, not marked any documents.
11. Heard advocate for complainant. Complainant filed written argument. The Opposite Party Nos. 1 & 2 filed written arguments. Inspite of sufficient opportunities have been granted, the Opposite Party No.3 has not submitted their arguments.
12. On perusal, the following points will arise for our consideration;
(i) Whether the complainant has proved the alleged deficiency of service on the part of the Opposite Parties?
(ii) Whether the complainant is entitled for the reliefs as sought? (iii) What is the order? 13. The findings to the above points are; (i) Affirmative (ii) Partly affirmative (ii) As per final order R E A S O N S
14. Perused the contents of the complaint objection filed by Opposite Party No.3, evidence affidavit of complainant and documents produced by the complainant we noticed that Opposite Party No.3 have admitted certain allegations of the complainant and denied all other allegations in its objections. Opposite Party No.3 admitted that the complainant had paid an amount of Rs.8,00,000/- as an advance amount for the site out of Rs.17,50,000/- the total consideration amount measuring 10cents out of 30cents in Sy.No.114/1A5 of Konaje village of Mangalore Taluk, Dakshina Kannada District. OP No.3 also admitted that agreement of sale was executed between both the parties on 02.11.2012. Further, the OP No.3 contended that OP No.3 is the Doctor by profession and he is not professional land developers. The OP/s have not formed any other layout and they are realistic agents or land developers as alleged by the complainant. The sites formed in Konaje Village is their private property and they are not service providers. In view of such going through the definition of consumer and service. The definition of the consumer reads as:
AS PER THE CONSUMER PROTECTION ACT, 2019 SEC. 2(7) "CONSUMER" means any person who -
buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person, but does not include a person who avails of such service for any commercial purpose.
(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) The expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing.
And the definition of service reads as:
SEC. 2 (42) OF CONSUMER PROTECTION ACT, 2019 "SERVICE" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
15. In the present case, the complainant has paid an advance amount for purchase of site for a consideration. Hence, as per Consumer Protection Act, the complainant is consumer and Opposite parties have intended to sold the site to the complainant for the consideration and the service in the matter of the immovable property i.e., site or plots in connection with housing construction falls under the definition of service as per the Consumer Protection Act. Hence, as per the Consumer Protection Act complainant is the consumer and Opposite parties are service providers and the matter comes within the purview of the Consumer Protection Act. The main allegation of the complainant is that the Opposite parties promised and undertakes to sell the residential site to be formed in larger property of 30cents sites and complainant had paid Rs.8,00,000/- to the Opposite Parties as an advance for the site of 10cents. Subsequently, agreement of the sale was executed on 02.11.2012 between both the parties agreeing to sale, transfer and convey the schedule property i.e., Northern portion of non-agricultural, immovable property measuring 10cents carved from non-agricultural, immovable property measuring 30 cents in Sy.No.114/1A5 of Konaje village, Mangalore Taluk, Dakshina Kannada District and bounded on the:
East by: S.D. Line and 30 ft Road, West by: S.D. Line, North by: S.D. Line and South by: Portion of same survey number, However, in response of legal notice issued by the complainant dated 28.10.2013. Opposite Parties have furnished photocopy of some documents and after perusal of the documents complainant noticed that site No.1 marked and shown in the layout plan bearing No.MUDA/TPS/Plan/3789/2013-14 dated 13.03.2014 is different site than the site offered by the Opposite Parties vide agreement to sell. Also location, is totally different, no ingress and egress by way of 30 feet vide road from eastern boundary. On the other hand, refers 9 meters road all around its western side. Also document referred the Sy.No.114/1A10 instead of 114/1A5. Moreover, when the complainant demanded to furnish the recognized documents regarding the formation and existence of 9 meter vide road shown in sketch attached to the agreement of sale. Opposite parties have failed to furnish the same which amounts to deficiency of service and unfair trade practice on the part of the Opposite parties. However, to this regard the Opposite Party No.3 contended that the layout plan approved by MUDA 30 feet vide road which shown on the western side of the site. The conditions imposed in the sanctioned letter are general condition which the MUDA imposes and OP/s have no control over the same and this condition has no effect on title/possession of the site in question. Moreover, two proposed buyers except the complainant agreed for the same and accordingly, the road approached was provided from western side of the site. The other two purchasers have no grievance about the approached of road provided. Hence there is no merit in the allegations of the complainant.
15. Perused the documents produced by the complainant it is true that as per the agreement dated 02.11.2012 the 30 feet road provided to the site on eastern site and layout approved by MUDA letter dated 13.03.2014 MUDA had sanctioned the layout plan 30 cents property bearing Sy.No.114/1A10 is ear marked and shown for residential, park and civic amenity area only and no space for road as ingress and egress as to the layout and sites formed in the property bearing No.114/1A5 are reassigned with Sy.No.114/1A10. Hence, the allegations of the complainant are true and believable because the Opposite Party No.3 has filed his objection to the allegation of the complainant. But, failed to produced the affidavit evidence and contested the matter and this Commission is taken the affidavit evidence of Opposite Party "as NIL" on 01.07.2022. Hence without affidavit evidence there is no weightage to the contention of the Opposite Party No.3.
16. Perused the order sheet, we noticed that after issuance of the notice of this Commission the notice was served on Opposite Parties. However, the Opposite Party Nos.2 and 4 remained absent. Hence, placed exparte. Opposite Party No.1 appeared through their counsel but not filed the version. The Opposite Party No.3 filed the version but not filed any contrary evidence by way of affidavit evidence. Hence, without evidence affidavit the contention of the OP has no weightage. Moreover, perused the order sheet we noticed that on 05.01.2023 on the request of Opposite Party No.1 that he is ready to settle the matter, the matter was referred to the Lokadalath held on 10.02.2023, 18.03.2023 and 18.04.2023. However, the matter was not settled which reveals that Opposite Parties are unnecessarily dragging the matter.
17. It is well settled legal position that, on the assurance of the Opposite Parties complainant has intended to purchase the site measuring 10cent from Opposite Parties and executed a sell agreement by paying an amount of Rs.8,00,000/- as an advance amount and there is a balance of Rs.9,50,000/-. However, the Opposite Parties are failed to adhere the terms and conditions of the agreements. The site intended to sell by the Opposite Parties as per agreement to sell is totally different than layout plan approved by the MUDA. Hence, there is a deficiency of service and unfair trade practice on the part of Opposite Parties and Opposite Parties are liable to pay compensation to the complainant.
18. Anyhow, in the course of the argument Opposite Party No.1 submitted that if the complainant is not ready to purchase the site by paying the balance amount as per MUDA layout plan they are ready to pay the market value of the site to the complainant. However, the complainant submitted that the complainant wants site only. As per the documents it is not possible to the Opposite parties to execute the sale deed of the site in favour of complainant as per the agreement to sale. Hence it is right to direct the Opposite Parties to execute the sale deed by receiving balance amount of Rs.9,50,000/- towards the schedule property as per MUDA sanctioned plan for equity and justice.
19. Hence, considering the facts and discussion made here, we are of the opinion that the complainant has proved the deficiency of service on the part of the Opposite Parties. Accordingly, we proceed to pass the following:
O R D E R The complaint is allowed.
The Opposite parties are directed to execute the sale deed as per the MUDA sanctioned plan by receiving the balance amount of Rs.9,50,000/- and hand over possession of the said property within 45days from the date of receipt of this order.
Further, the Opposite Parties are directed to pay an amount of Rs.2,00,000/- towards compensation for deficiency of service and unfair trade practice and Rs.25,000/- due litigation expenses to the complainant within 45 days from date of receipt of this order.
Failing which the payable amount shall carry interest at 8% from the date of default till realization.
Send a copy of this order to both parties.
(Sunita.C.Bagewadi) (Ravishankar) Member Judicial Member P* [HON'BLE MR. Ravishankar] PRESIDING MEMBER [HON'BLE MRS. Smt.Sunita Channabasappa Bagewadi] MEMBER