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Sathya Narayana Shetty v/s Fern Valley Resorts Pvt. Ltd., Bangalore, Represented by its Director Paul Fernandez & Another

    Complaint No. 53 of 2013

    Decided On, 23 July 2021

    At, Karnataka State Consumer Disputes Redressal Commission Bangalore

    By, THE HONOURABLE MR. JUSTICE RAVI SHANKAR
    By, JUDICIAL MEMBER & THE HONOURABLE MRS. SUNITA CHANNABASAPPA BAGEWADI
    By, MEMBER

    For the Complainant: D. Nagaraja Chetty, Advocate. For the Opposite Parties: M. Palaniappan, Advocate.



Judgment Text

Ravishankar, Judicial Member

1. This is a complaint filed by the complainant praying for a direction against the Opposite Parties to execute the sale deed in respect of the schedule property in favour of the complainant by receiving the balance sale consideration or give any other alternative apartment in the same building or to refund the advance amount of Rs.40 lakhs with interest at 24% p.a. along with Rs.1,00,000/- towards mental agony.

2. The averments in the complaint are as hereunder;

It is the case of the complainant that the Opposite Parties are engaged in procurement and construction of Multistoried Apartments and in real estate marketing in and around Kerala. The complainant attracted by the advertisement given by the Opposite Party has booked two flats bearing Flat No.C-101 and C-102 in the first floor measuring 1194 sq.ft in the project of the Opposite Party called “FERN KENSINGTON” in Sy.No.313, sitated at Maradu Village, Kanayannur Taluk, Ernakulam District, Kerala for a sale consideration of Rs.25 lakhs each totally to both flats in a sum of Rs.50 lakhs. The complainant has paid advance amount of Rs.20 lakhs each and totally Rs.40 lakhs to the Opposite Party in cash and entered into a separate Agreement to Sell and Construct dt.28.01.2010 between the complainant and the Opposite Parties and the same was acknowledged by the Opposite Parties. The complainant with an intention to acquire two flats one for his family and another for his parents and his parents are becomes beneficiary. The complainant approached the Opposite Party to execute the Sale Deed by receiving balance sale consideration. Inspite of several requests and demands, the Opposite Party failed to execute the Sale Deed by assigning one reason or the other and postpone the same. Hence, the complainant issued a legal notice and alternatively demanded for refund of the advance amount with cost and damage which was not served to the Opposite Parties. Hence, the complaint.

3. On service of notice, the Opposite Parties appeared through their counsel and filed their version. The Opposite Parties in their version contended that Opposite Party No.1 is a Company registered under Companies Act, 1956. The Opposite Party No.2 is the Managing Director of the Opposite Party No.1 Company. The Opposite Parties are denied the allegations made by the complainant and submits that they never entered into any Agreement to Sell and Construct dt.28.01.2010 with the complainant. Further contended that there is no such properties existing as described in the complaint and the complainant has produced the fabricated documents before this Commission. The Opposite Parties contended that they have never received any amount towards sale consideration that too in cash. The Opposite Parties further contended that they have not received any legal notice from the complainant. Even the complaint is not come within the jurisdiction of this Commission. All the averments made in the complaint are absolutely false and frivolous. Hence, there is no deficiency in service on the part of the Opposite Parties and prayed to dismiss the complaint with exemplary costs.

4. The complainant has filed their affidavit evidence, but not marked any documents. The Opposite Party has not filed their affidavit evidence and also not marked any documents. Inspite of sufficient opportunity provided, the complainant did not submit their arguments.

5. On perusal, the following points will arise for our consideration;

(i) Whether the complaint deserves to be allowed?

(ii) What order?

6. The findings to the above points are;

(i) Affirmative

(ii) As per final order

REASONS

7. On perusal of the affidavit evidence of the complainant and the documents produced before us, the complainant has reiterated the facts narrated in the complaint, therefore, it is not necessary to repeat the same. The complainant has produced Agreement of Sale and Construct of two flats, legal notice dt.22.08.2012 and postal receipts. The complainant with an intention to acquire two flats one for his family and another for his parents and his parents are becomes beneficiary. On perusal of the affidavit evidence and documents, it is evident on the face of the record that the Opposite Parties have received the advance amount of Rs.40 lakhs cash for the two flats by way of cash as per Clause-2 in the Agreement to Sell and Construct and inspite of receipt of amount from the complainant, the Opposite Parties have failed to execute the Sale Deed. Therefore, it amounts to deficiency of service. The defence taken by the Opposite Party that the complaint has no jurisdiction is not acceptable because the cause of action arose in Bangalore itself and there are no strong reasons to discredit the same. Accordingly, the Opposite Parties shall execute the Sale Deed in favour of the complainant by receiving the balance sale consideration and give possession of the flat within a stipulated time as agreed with all amenities or complainants are entitled for refund of amount paid in a sum of Rs.40 lakhs along with interest at the rate of 12% p.a. from the date of respective payments, till the date of actual realization. Apart from that the complainant is entitled to a sum of Rs.1,00,000/- as compensation for the mental agony caused by the Opposite Parties. Therefore, the claim of the complainants for recovery of the amount is supported by the affidavit evidence along with documents. Accordingly, the complaint requires to be allowed. Hence, the following;

ORDER

The complaint is hereby allowed with costs of Rs.25,000/-.

The Opposite Parties are hereby directed to execute the Sale Deed in favour of the c

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omplainants by receiving the balance sale consideration and give possession of the flat with all amenities. If fail to comply the said Order, the Opposite Parties are directed to refund amount paid in a sum of Rs. 40 lakhs along with interest at the rate of 12% p.a. from the date of Agreement to Sell and Construct, till the date of actual realization. The Opposite Parties are further directed to pay a sum of Rs. 1,00,000/- as compensation for the mental agony caused. The Opposite Parties are granted 45 days time to comply the same from the date of this Order. Forward free copies to both the parties.
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