IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> CC 317 to 319/08 DATED 24-12-2008<br /> <br /> COMMON ORDER<br /> <br /> Complainant in CC 317/08 D.S.Thrimurthy, S/o D.V.Sethurama Rao, <br /> Complainant in CC 318/08 D.S.Harish, S/o D.V.Sethurama Rao,<br /> Both complainants are R/at No.317, 10th Cross, Vijayanagar, Railway Layout, Mysore.<br /> Complainant in CC 319/08 K.T.Hemanna, S/o Thamme Gowda, No.789, Rathnagiri, Opp. To Bhupanna Choultry, Manchegowdana Koppal, Mysore.<br /> (By Sri.M.S.Venkatesh, Advocate)<br /> <br /> Vs. <br /> Opposite Party in CC 317 and 318/08 Kumar, Secretary, BKKP Society (R), <br /> Opposite party in CC 319/08 S.Radhakrishna, Chairman, Bharathiya Karmika Kshemabhyuday Prathishtan (R), All are O/o No.689, Upstairs, 2nd Main, B.B.Garden, Mysore-4.<br /> (By Sri.G.V.Ramamurthy, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaints : 17.10.2008<br /> Date of appearance of O.P. : 10.11.2008<br /> Date of order : 24.12.2008<br /> Duration of Proceeding : 1 MONTH 14 DAYS<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. These are the complaints filed by the respective complainants against the opposite parties, who are the sister concern with same set of facts and grievance are therefore taken for disposal together by a common order.<br /> 2. The opposite party in CC 319/08 is a trust called Bharathiya Karmika Kshebhayudaya Prathistan and the opposite party in the other two cases is the Society formed said to be as sister concern of the opposite party in the third complaint.<br /> 3. Brief facts of the complaints are, that these complainants became members of the respective trust and society. That the first complainant on 22.12.1996 paid a sum of Rs.28,100/-, that the second complainant also on the same day paid Rs.28,100/- and that the third complainant on 23.04.1993 paid Rs.57,955/- for allotment of sites in the proposed layout called Shivaramkaranth Nagar Welfare Group Housing Project at Kergahalli village, Mysore proposed to be formed by the opposite parties. In pursuance of the payment of the sital value, the opposite party in the first and second complaints issued allotment letters dated 28.01.1997 to those complainants and the opposite party in the third complaint issued allotment letter in favour of the third complainant on 18.12.1994 describing the site allotted. That the opposite parties have also entered into an agreement of sale on 18.01.1997 in the first 2 cases and on 07.01.1995 in the third complaint have also executed power of attorney and affidavits agreeing to make final allotments and to execute the sale deeds. That the opposite parties have also even executed declarations in their favour, but thereafter, the opposite parties have failed to take further steps in terms of the agreements executed in their favour to make final allotments and to execute sale deeds. Thereafter, even after several attempts made by them to get the further course done failed they got issued legal notice on 04.08.2008 in the first 2 complaints and on 23.07.2008 in the third complaint to the opposite parties. But, even thereafter they have failed to perform their part of duties and therefore have prayed for direction to the opposite parties for execution of registered sale deeds in their favour or in the alternative to refund their monies with interest at 21% p.a. and to award damages for deficiency in their service with costs.<br /> 4. The opposite parties have filed their version through their advocate, which is common in all these 3 complaints in brief is as under:- That the complaints are barred by limitation as contemplated under section 24(A) of the Consumer Protection Act and therefore stated that the complaints are liable to be dismissed on that ground alone. The opposite parties have admitted the membership of these complainants, have also admitted the receipt of the sital value as stated by the complainants and even issue of allotment letters, execution of agreement, and declaration, but denied that the complainants approached them repeatedly and they refused to execute the sale deeds. The opposite parties denying all other allegations have contended that there are no merits in the contention of the complainants that the original documents are with the opposite parties. It is further stated by them because of some reasons beyond their control they could not complete the project in time and despite informing the complainants for paying the balance sital value and get the documents done in their name, the complainants did not show any interest and therefore denying to have caused any deficiency in their service have prayed for dismissal of the complaints. They have further denied subsequently the execution of power of attorney.<br /> 5. In the course of enquiry into the complaints, the complainants and opposite parties have filed their affidavit evidence. The complainants have produced copies of provisional allotment letter, sale agreement, declaration and special power of attorney. The opposite parties have produced a copy of the communication sent by them to the counsel for the complainants on 07.08.2008. Heard the counsel for both the parties and perused the records.<br /> 6. On the above contentions, following points for determination arise.<br /> 1. Whether the opposite parties prove that the complaints are barred by limitation?<br /> 2. Whether the complainants prove that the opposite parties have caused deficiency in their service in not making final allotment of sites and execution of title deeds?<br /> 3. To what relief the complainants are entitled to?<br /> 7. Our findings are as under:-<br /> Point no.1 : In the Negative.<br /> Point no.2 : In the Affirmative.<br /> Point no.3 : See the final order.<br /> <br /> REASONS<br /> <br /> 8. Points no. 1 and 2:- undisputedly in these complaints, the opposite parties have issued provisional allotment letters and thereafter admitted to have executed agreement, a declaration, and special power of attorney in favour of the complainants in the same year. Therefore, the opposite parties taking these facts, and the documents into consideration have contended that the cause of action to the complainants has arisen within 2 years from 18.01.1997, but the complainants since have not approached this Forum with the complaints within 2 years from that date, the complaints are barred by limitation as provided under section 24(A) of the Act and therefore have submitted for dismissal of the complaints. But, the opposite parties have not denied execution of those documents specifically and in para 8 of their version have admitted that because of certain unavoidable policy reasons, they could not complete the project within the prescribed time. But, the opposite parties have not revealed what is that prescribed time is. Even till today, the opposite parties have not placed any materials before us as to when the project was to be completed and sites were made ready for final allotment and for execution of documents. Therefore, the complainants who had paid portion of sital value and obtained a necessary documents were made to wait compulsorily for these opposite parties to complete the layout and to allot sites finally and to execute the documents. The opposite parties have not placed any materials before us in they having had after completion of the layout having had issued any communication to the complainants calling upon them to pay the balance amount and to get the documents executed in their favour. The opposite parties have produced a copy of the communication sent by them to the counsel for the complainants on 07.08.2008 by offering to execute the title deeds on payment of the balance sital value. Except this letter, they have not placed any other materials, as such it is manifest and inevitable to infer that the opposite parties had delayed the completion of the layout and process of final allotment of sites. That being so, they cannot take a stand of limitation to throw out the complaints from this Forum. Therefore, it is evident that the delay has been on account of the opposite parties in not completing the project and the say of the complainant that they were waiting for final allotment cannot be disbelieved and as the result, the complainants can be held as are in time and we therefore hold point no.1 in the negative.<br /> 9. Coming to the merits of the case, the opposite party in para 4 and 5 while replying to the complaints grievances have admitted the payments, execution of documents and thereby have not denied execution of the documents relied upon by the complainants in the process of allotting sites. Even, on perusal of the payment receipts, provisional allotment letters, agreement and declaration, we find the signatures of the opposite party in the first and second complaint. These are not controverted by the opposite party. Similarly, in CC 319/08, the provisional allotment letter, sale agreement, affidavit and in the declaration form, we find the signature of opposite party who has himself described as a Chairman of BKKP. The affidavit evidence of the complainants and the documents they relied upon have remained unrebutted. Hence, on considering the entire materials placed before us in their totality they prove that the opposite parties who allotted sites in favour of the complainant provisionally executed the documents. In that regard, have failed to make final allotment and execute the title deeds, as such, it reflects the deficiency in their service. The counsel for the opposite parties by referring to their communication sent on 07.08.2008 to the counsel for the complainants submitted that even now the opposite parties are offering to make final allotment of the sites in favour of the complainants on their paying the balance sital value and further offer to execute title deeds in respect of those allotted sites and made such an offer to the complainants. But, the complainants declined the proposal and their counsel insisted upon for allowing the complaints by directing the opposite parties to refund their paid up money with interest. With this, we answer point no.2 in the affirmative and hold that the complaints are deserves to be allowed for grant of the alternative relief. Hence, we pass the following order:- <br /> COMMON ORDER<br /> <br /> 1. The Complaints are allowed.<br /> 2. The opposite party in CC 317 and 318/08 is directed to refund Rs.28,100/- to each of these complainants with interest at 18% p.a. from the date of the respective payments and shall pay that amount within 60 days from the date of this order, failing which he shall pay interest at that rate till the date of payment.<br /> 3. The opposite party in CC 319/08 shall repay Rs.57,955/- with interest at 18% p.a. from the date of the respective deposits and shall pay that amount within 60 days from the date of this order, failing which he shall continue to pay interest at the above rate till the date of payment.<br /> 4. The opposite parties shall also pay Rs.10,000/- each to each of the above complainants towards mental agony and uncertainty of having a site in Mysore City.<br /> 5. The opposite parties shall also pay Rs.1,000/- each to each of the complainants towards the cost of these complaints.<br /> 6. Keep a original copy of this order in CC 317/08 and Xerox copy of this order in CC 318 and 319/08.<br /> 7. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 24th December 2008)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />