COMPLAINT FILED: 28.01.2009<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 28th MARCH 2009<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO. 241/2009<br /> <br /> <br /> COMPLAINANT Smt. K.V. Vachana,<br /> W/o. Devanath,<br /> Residing at No. 421/G,<br /> 3rd Cross, Ist Main,<br /> Ist Stage, Indiranagar,<br /> Bangalore.<br /> <br /> Advocate (Janardhan Reddy)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTY The BEML Employees <br /> Co-Operative Socieity Ltd.,<br /> C/o Bharath East Movers Limited,<br /> Bangalore Complex,<br /> New Thippasandra,<br /> Bangalore – 560 075.<br /> Represented by its<br /> Secretary.<br /> <br /> Advocate (M. Sreekantaiah)<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to execute the sale deed with respect to site No.306 in favour of the complainant and pay a compensation of Rs.4,50,000/- and for such other reliefs on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant became the member of the OP co-operative society which is engaged in formation of residential layouts consisting of sites of various dimensions in and around Bangalore so as to allot it to the members. OP fixed the price of a site measuring 30 X 40 feet as Rs.90,000/-. After accepting the membership of the complainant OP allotted site No. 306. Complainant had paid Rs.90,000/- towards the cost of the said site including that of registration charges, but thereafter OP somehow failed to register the sale deed with respect to the said site in favour of the complainant inspite of the fact of receipt of the entire sital value by 10.02.2005. The repeated requests and demands made by the complainant to the OP, went in futile. On enquiry complainant came to know that OP has already sold and executed the sale deed with respect to the said site in favour of one C.P. Kantha for a sale consideration of Rs.4,50,000/- on 18.08.2007. Thus complainant felt the unfair trade practice and deficiency in service on the part of the OP. Then she got issued the legal notice 25.11.2008. Again there was no response. For no fault of her, she is made to suffer both mental agony and financial loss. Under the circumstances she is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant is not an employee of BEML, the father and the brother of the complainant are working as BEML employees, they applied for the site measuring 40 X 60, 30 X 40 respectively, they were allotted and are registered. As per the BDA rules with respect to allotment of site a member of a family can have only one site. Complainant is not the employee of BEML. Of course she paid the sital value, hence she is enrolled as associate member. There is a restriction to allot the sites in favour of the associate member also. Under such circumstances OP is not obliged to register or allot a site in favour of the complainant in view of KCS Act and Rules. Of course OP sold the said site in favour of the eligible member. At no point of time OP allotted the site No. 306 in favour of the complainant. The documents produced by the complainant are all concocted. OP is ready to accommodate the complainant in their next project at Vaderahalli, Dasanapura Hobli, even they are ready to refund the sital value whatever she has paid. The other allegations are baseless. There is no deficiency in service on the part of the OP. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced the documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. It is the contention of the complainant that she became the member of the OP society with a fond hope of purchasing a site. OP accepted her membership on 17.04.2002 and allotted her the site No.306 measuring 30 X 40 feet fixing the total cost of the site as Rs.90,000/-. According to the complainant she paid Rs.20,000/- on 17.04.2002 and remaining Rs.70,000/- on 10.02.2005 including that of the stamp duty and registration charges. Thereafter though she made the repeated requests and demands to OP to register and put her in possession, it went in vain. On the other hand OP arbitrarily without her consent and knowledge sold the said site No. 306 in favour of C.P. Kantha for Rs.4,50,000/- on 18.08.2007. Hence she felt the deficiency in service.<br /> <br /> 7. We have gone through the documents produced by the complainant, none of the documents show that OP promised to allot her the site No.306 and that total cost fixed for the said site measuring 30 X 40 feet is Rs.90,000/-. The copies of the receipts alleged to have been issued by the OP produced by the complainant discloses the said payment is made towards the site No.306, but the same copy produced by OP does not reflect the fact of mentioning site No.306. The original receipts are not produced by the complainant. Complainant wrote site No.306 with a ball pen on the xerox copy of the receipt. That means to say it is an after written one. So without going into the contention of the OP that the said receipts are forged or concocted, we restrict ourselves in saying that there is no proof that OP allotted site No.306 in favour of the complainant.<br /> <br /> 8. OP has contended that complainant is not an employee of BEML, hence she is not entitled for the site. Of course the fact that the complainant’s father and brother got the site in the said project floated by the OP is not at dispute. We have also taken note of the BDA rules pertaining to allotment of a site as well as the Co-operative Societies Act sec – 30-B complainant is enrolled as an associate member, some restriction is imposed on OP with regard to allotment of a site, that too some percentage. If OP is of the view because of all these legal hurdles and provisions of law noted above, they are unable to allot a site to the complainant, then why they received a huge amount of Rs.90,000/- in between the year 2002 and 2005 from complainant is not known. OP retained the said huge amount till toady without allotting and registering the site, thereby accrued the wrongful gain to self and caused the wrongful loss to the complainant. Here we find the deficiency in service.<br /> <br /> 9. OP has flatly admitted that it sold site No.306 to C.P. Kantha for Rs.4,50,000/- on 18.08.2007. As already observed by us, complainant has failed to prove that OP allotted her site No. 306. When that is so, she cannot seek for the resale of the said site to her or direction to the OP to pay her Rs.4,50,000/- the cost of the said site. Having considered the facts and circumstances of the case, due to the hostile attitude of the OP complainant is put to both mental agony and financial loss. Under such circumstances she deserves certain relief. Of course OP has come forward to allot her a site in their next project at Vaderahalli, Dasanapura Hobli. There is no promise made by the OP, it is contended that they will try to accommodate her. Complainant cannot be kept waiting indefinitely without there being a positive undertaking. OP has further stated that it is ready to refund the amount deposited by the complainant, but without interest. We do not find justification in this kind of defence raised by the OP.<br /> <br /> 10. In view of the discussions made by us and also bearing in mind the facts and circumstances of the case, the justice will be met by directing the OP to refund the said amount paid by the complainant towards the purchase of the site with interest, compensation and litigation cost. With these reasons we answer point nos.1 and 2 accordingly and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed. OP is directed to refund Rs.90,000/- together with interest at the rate of 12% p.a. from 10.02.2005 till realization and also pay a compensation of Rs.50,000/- and litigation cost of Rs.2,000/- to the complainant. This order is to be complied within 4 weeks from the date of its communication. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 28th day of March 2009.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> p.n.g. <br />