Date of Filing: 23/11/2011

        Date of Order: 19/01/2012

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  19^th DAY OF JANUARY 2012

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.Sc.,B.L., PRESIDENT

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

C.C. NO.2123 OF 2011

Miss Netra Kaikini,

C/o. Mr.Kishore Kaikini,

1610, 1^st Floor, 35^th Cross,

BSK IInd Stage,

Bangalore-560 070.

(Rep. by In person)                                                                  ….  Complainant.

V/s

(1) Mr.B.Bhavadeep Reddy,

Managing Director,

Access Developers (P) Ltd.,

# 84, 1^st Floor, R.V.Road,

Bangalore-04.

(2) O/O The Registrar,

Land Registration (Jigani),

1^st Floor, Shopping Complex,

Bannerghatta Road, Bangalore.

(Rep. by Sri.Muktar Ahmed Khan, Advocate)                   …. Opposite Parties.

BY SRI H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The complainant has made this complaint seeking the O/O the Registrar, Jigani may please be advised to proceed with Registering both the GPA and the Site covered by GPA, in may absence otherwise the site may be ordered to be registered favoring my Father my father with GPA, in my absence, if not feasible, order may be issued to the O/o the registrar to keep books open for DUE registration till my next visit to Bangalore for Registration ASAP.  In case, OP (1) attempts to cancel the GPA, it could be ordered as a FRAUD and the O/O the Registrar should be advised to refuse the cancellation, (in my or my POA holder’s absence before the Registrar), or ordered to REVERT the Ownership to me, as my right, not deemed as IRREVOCABLE by clandestine act of issue of GPA, vide my acquired right of ownership, in progress, of the Site as per GPA in view of the background of issue of GPA referred above.  Should the Owners of access Developers (P) Ltd. Have already cancelled the GPA, then, The MD may please be directed to pay @ Rs.500/- per SFT for Plot measuring 1627.5 SFT (developed but without Development of Simhapuri Township) amounting to Total Payment without interest till date of Order @ Rs.8,13,800/- alleging The MD, Access Developers, most likely, will resort to CANCELLATION of GPA (deemed irrevocable, not specified in the Right of acquired ownership) which shall be prohibited, by an order. The MD of Access Developers (P) Ltd. May please be ordered to correct the error, with all three owners signing, duly notarized, in the Total SFT figure appearing on Page (4) of GPA for further regularization of Registered Site in my favor, The Sub Registrar, Officer Mr. Puttaraju, refused to condone the typographical error, despite the GPA as well as Form 9 and 11, duly records the Periphery of my Site accurately with correct dimensions.  As I understand, Supreme Court has ordered that should record of Dimensions be Correct, the reference of aggregate need not be considered; that includes E & O.E. alleging:-

“I, Netra Kaikini, aged about 39 years, is presently residing at Dubai, employed with Abudhabi Bank.  I stay with my small Family, in Dubai for good.

I am the second daughter of Mr. Kishore Kaikini, who resides at address referred above.  During financial year 1997-98, I left India, for a Job, secured at Sana, Yemen, Middle-East.

My Father was then retained as Full Time Consultant, (Designated on Business Card, for Marketing Assignment, as VICE PRESIDENT), for the Company named and styled “Access Developers Private Limited”, functioning from Location address 236/23, 2^nd Floor, 9^th Main Road, 3^rd Block, Bangalore-560 011.

The Access Developers was managed by Full Time Managing Director, supported by his Uncles, (1) Mr. K. Viswanath Reddy, S/o. B.Kantalu Reddy and (2) Mr. V.Krishna Reddy S/o. Venkataswamy Reddy, who were attending Office, at will, intermittently, to oversee the Business operations on day to day basis.

The Access Developers had undertaken a huge Project at JIGANI TOWN  to develop the Central Plot of about 30 Acres, in to a Gated Community, Dwelling Sites, with option to Build Custom designed Houses.  This Township was Christened as “SIMHAPURI”.  The Project was blessed by LIONS CLUB of JIGANI, where the referred promoters of Access Developers (P) Ltd held high Reverence as VIPs among members of Lions Club.

Sequel to relinquishing the office of then the Chief Minister of Karnataka Government, Mr. H.Deve Gowda moved over to The Higher Office of his Political Party, in New Delhi, to be appointed later as The President of India.

Mr. H.Deve Gowda, had insinuated to promoting a PPP Scheme for Industrial Housing, adjoining 1200 ACRERS expanse of New Industrial Area being developed by KIDB, for Industrial Workers domicile needs.  This was the basic objective the Promoters of Access Developers were interested to en-cash, with no official backing from the Government.

That objective of predecessor, was not pursued by the then incoming Chief Minister of Karnataka and thus, Gated Residential Plan of Development, suffered a huge set-back.

In order to ensure Business, The MD, Access Developers, Mr. Bhavadeep Reddy, S/o. Mr. K.B. Reddy, inserted a Press AD inviting Agents for Promoting the Residential Sites in SIMHAPURI, ready launched and under active development activity, for Sale of Sites.

This was an opportunity for My Father, Mr. Kishore Kaikini, to offer his specialist services, not as AGENT, but Full Time Consultant, to promote over 300 Residential Sites of various individual dimensions, at special terms of Appointment, drawing only basic Rs.5,000/- per month as Remuneration, with additional productivity bonus at the Rate of 10% on the Net Value of Sites Sold by the Consultant.  This was also recorded with a Formal appointment Letter Signed by the MD, Mr.Bhavadeep Reddy.  My Father had an excellent relationship, from his previous office, with then a Senior Professional Mr. Nandan Nilekani, (now UID Chief) holding the Position of The Chief of Operations then at INFOSYS, based at Electronic City, off Hosur Road, Just around that time INFOSYS was in the process of consolidating International Operations of specialized SOFTWARE Development, with team of over a couple of Scores of strength in Thousand of Professionals employed then at INFOSYS, Bangalore Head Quarters.  With this contact in view, Mr. Kishore Kaikini with the support of The MD Access Developers held Presentations at Infosys Auditorium and managed a block Booking of over 70 plus, Individual choice, designated sites, Sold covering over 100,000 SFT At average Price Rs.150/- per SFT, aggregating total business of Rs.1.50 Crores approx.

In appreciation of this, the MD released a few cheques as official payments, as and how the Registration was completed, issuing Cheques in my Name, as beneficiary, since I was interested to invest in a couple of SITE worth Rs.15L, i.e. approx 10000 SFT as value due.

At that Time, My marriage was also fixed and we needed Funds by cheque/s and the funds received were deployed for my marriage.  Mr.Bhavadeep Reddy MD, was more than gracious to agree to GIFT a Site of Balance value payable, but instead Released a GPA, in my favor, Copy enclosed, allotting a much smaller, <1600 SFT approx, not even WORTH Rs.2.40L, for the allotted Site was in a REMOTE corner of the Township.  This GPA was a PRESENTED as Gift of NOTORISED SITE to me, Tax paid till that date, for my discretion to en-cash the Property.

Unfortunately, this Notarized GPA document was carried by me with my other Gifts received during the Marriage, to My Husband’s Location in Sana, Yemen.  I had no known that the Gift Deed MUST be regularized by formal REGISTRATION before or along with further process of Registration of the Site.

Later, I had moved out of Yemen with Husband’s Job transfer to Dubai,

A huge lapse of time went by, before I could realize my mistake of having held an Unregistered GPA [notarized], to be registered with The O/O The Registrar located at Bannerghatta Circle, for JIGANI.

I had come down with the Document of GPA, for registration, wherein I paid Rs.8000/- towards arrears of Tax Payment, on behalf of the then Owners of site on Records, to facilitate receiving of the FORM 9 and 11, eligible for Transfer of Ownership of the Site Gifted, [in lieu of my father’s receivable, issued by Mr.Bhavadeep Reddy, MD, Access Developers (P) Ltd, for Payment in kind] instead of Cash, due to my father, received by me personally, at the Wedding Hall on the day of my marriage, attended in person by Mr.Bhavadeep Reddy.

Important information covering the complaint

The O/O the Registrar found a typographical error in the numerically calculated Total of PLOT AREA in SFT referred as 1267 SFT, on GPA page(4), in place of actual dimensions of Plot Area [with E_W_N_S recorded in GPA on page (2)] measuring 1627.5 SFT and the SITE with appropriate two set of 2 DDs each issued by SBI/South End Br, made ready for Registration of Site and additional set of 2 DDs issued by SBI, Hulimau Branch, for Registration of GPA.

Since the closing hours were approaching, The sub-officer of Registrar’s Office, Mr.Puttaraju (Mobile No: 97415 96315) recommended me to get the Error corrected From the Same Notary, who had Notarized the GPA, as per record, in Absolute Sale Deed dated 02-09-2011.

This was an inoffensive suggestion.  Hence, I presumed that it could be done with a visit to the MD’s OFFICE Or the Notary’s location, within the next two days and then get rectified GPA and Site registered at Jigani, on the last day of my visit, as planned.

I had made my return journey passage to leave for Dubai, two days later, at midnight.  Thus, I was unable to get the Job done, as planned.  However, I had already issued a POA notarized, much earlier favoring my father to complete unfinished job to regularize my Site.  His earlier attempts were not legal and not productive in my absence.  So, it was by insistence, from my father, I had agreed to visit Bangalore.

To my horror, my father found that the elderly Notary had expired a few years ago, and the O/O The MD, Access Developers (P) Ltd was not found, despite desperate search of the current location of Access developers (P) Ltd.  At the end of two more days I had to leave Bangalore for returning to my home in Dubai, as scheduled.

We were unsuccessful despite, my best efforts for two days to get to meet The MD, Mr. Bhavadeep Reddy, who was said to be out of Bangalore then He was noted as operating from Indus Group on 3^rd Floor in the same building, with Residence-cum Office, for Access Developers (P) Ltd. At the address given under OP1 referred above.

My father later found that Mr.Bhavadeep Reddy continues to operate from his residence, for and on behalf of office of the MD of Access Developers (P) Ltd.

My father called on the MD, Mr.Bhavadeep, with a NOTARIDED Photo COPY of GPA, requested by the MD to get the signatures from 3 Directors on correction required, for registration of the said Site, as per GPA, dating back to 24.04.1998.

I was informed by my father that it is an almost sparsely functional, joint office of his Organization, with Indus Group.  Access Developers PVT LTD Co. was deemed in the phase of winding-up, with Registrar of Companies, pending many legal issues.”

2(a).  In brief the version of the opposite party No.1 are:-

          The complaint is barred by time.  This is a civil dispute.  Bad for non joinder of necessary parties.  As the company’s Managing Director the opposite party No.1 had formed a layout in Jigini called as “Simhapuri Township”.  The father of the complainant was employed on monthly consolidated salary basis.  Due to the personal reasons of the directors the complainant was appointed as a power of attorney holder.  The father of the complainant left the service and filed this case.  The power of attorney produced is incomplete documents.  It is not a gift.  Hence the complainant cannot get any right in the power of attorney.

2(b).  In brief the version of the opposite party No.2 are:-

          The complaint is barred by time.  No notice Under Section 80 CPC has been given.  The Government is not a party hence as Under Order XXVII Rule 5A of the CPC.  Registration is between the parties to the deed and if there is any dispute resort must be taken is Civil remedy.

3.       To substantiate their respective cases, the complainant and the opposite party No.2 has filed their affidavits.  The opposite party No.1 had filed the Memo stating that his version may be read as his evidence.  The arguments were heard.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether the complaint is barred by time?
2. Whether the complaint is bad for nonjoinder of necessary parties?
3. Whether the complaint as brought is not maintainable?
4. Whether the complaint is bad for non issue of notice Under Section 80 CPC?
5. What Order?

5.       Our findings are:-

Point (A) to (E):       As per the final Order

                             for the following:- 

-:REASONS:-

Point A to E:-

6.       Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that M/s. Access Developers Private Limited is having Bhavadeep Reddy as its Managing Director, Mr.Viswanath Reddy and Mr.V.Krishna Reddy as the directors.  The said company had executed a general power of attorney in favour of the complainant on 24.04.1998 with respect to the converted site No.380 in Sy No.38, at Simhapuri Township measuring East to West 35 feet and North to South (46+47)/2 feet situated at Bukkasagara Village, Jigani Hobli, Anekal Taluk, Bangalore City District, bounded East by Site No.378, West by Site No.381, North by Private Property, South by Road.  Accordingly the said property was to be in possession of the complainant.  The complainant had paid necessary taxes in this regard.  The complainant states that it is the gift of the property to her.  In any event the complainant has executed a power of attorney in favour of her father Sri. Kishore kaikini as she is residing elsewhere and a sale deed was prepared in her favour on 02.09.2011 and it was tendered for registration by paying necessary DD No.707701 dated: 02.09.2011  for Rs.16,610/-, DD No.707702 dated: 02.09.2011 for Rs.2,445/- for getting the site registered in her name.  The opposite party No.2 should have registered the sale deed, but the opposite party No.2 taking flimsy ground that in the power of attorney executed in favour of the father of the complainant by the complainant instead of 1627 Sq. Feet it is mentioned as 1267 square feet.  This has to be corrected and when it was taken to the notary the notary declined and it was taken to the 1^st opposite party who did not honour that.  Hence they have made this complaint. 

7.       The contention of the opposite parties is that the complaint is barred by time since the power of attorney has been executed by the 1^st opposite party and others on 24.04.1998 and this complaint is filed in 2011 hence it is barred by time.  This is an untenable contention, in the sense the complainant presented the sale deed to be registered in her favour on 02.09.2011 and in that regard it has not been registered the complainant has approached this forum.  The cause of action for filing this complaint arouse to the complainant on 02.09.2011 and this complaint is filed on 23.11.2011 well within time.  Hence this contention is considered to be rejected that’s all.  Hence the complaint is well within time.

8.       The other contention of the learned counsel for the 1^st opposite party is that other directors and the company should have made as a party to the proceeding.  Here the 1^st opposite party has been described as the managing director of Access Developers Private Limited which is functioning in that address.  Here Mr.Bhavadeep Reddy in his individual capacity has not been added as a party.  Writing the cause title there is some mistake, that cannot mean that Mr.Bhavadeep Reddy has been added as a party in his individual capacity and not, the company.  When the managing Director himself is a party the question of impleading other directors does not arise.  Even otherwise the 1^st opposite party contends that the said company is under the process of liquidation anyway that is the mater to be seen elsewhere.  There is no material for it.

9.       The other contention of the 2^nd opposite party is that as the 2^nd opposite party is a Government servant a public servant hence the State should have been made as a party to the proceedings and as the state has not made as a party this complaint is not maintainable.  Regulation 26(1) of the Consumer Protection Regulation 2005 clearly prohibits application of civil procedure code in general to the proceedings Under the Consumer Protection Act unless it is specifically made applicable.  In this case order XXVII Rule 5A CPC is not made applicable to the proceedings under the C.P. Act.  No such provision is brought to our notice.

10.     In any event Order XXVII Rule 5A CPC reads thus:-

“5A. Government to be joined as a party in a suit against a public officer:-

Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the government shall be joined as a party to the suit.

That means in any suit instituted against the public servant the Government shall be a party.  This is not a suit, this is a complaint under the consumer protection act.  Hence this provision is not applicable.  Hence the complaint is not bad for nonjoinder of necessary parties. 

11.     The other contention of the 2^nd opposite party is that it is a public servant hence notice under section 80 CPC should have been given to it as it has not been given the complaint is not maintainable.  For the reasons stated supra this section under 80 CPC is inapplicable to the facts and circumstances of this case.  Section 80 CPC reads thus:-

“80. Notice

(1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of –

(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;

(bb) in a case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorized by that Government in this behalf;

(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;

And, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the court, without serving any notice as required by sub-section (1); but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit;

            PROVIDED that the court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).

(3) No suit instituted against the government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely be reason of any error or defect in the notice referred to in sub-section (1), if in such notice-

(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.”

That means in any suit instituted the notice had to be given etc.,.  This is not a suit instituted against the opposite party No.2.  This is a complaint Under the Consumer Protection Act.  Even under Regulation 26(1) of the CP regulation CPC is not applicable when that is the case the question of issuing of notice Under Section 80 CPC does not arise at all.  Hence the complaint has broad without notice is maintainable.

12.     The other contention of the opposite parties is that it is a civil dispute or in the sense the complainant has to approach the civil court regarding registration of the documents.  Section 3 of the CP act reads thus:-

“3. Act not in derogation of any other law-The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

That is to say, the provisions of the CP Act is in addition to and not in derogation to any provisions of any other law.  Hence merely a suit is maintainable it does not mean the complainant is precluded from bringing action for the enforcement of the consumer right.  In this case the complainant has paid necessary charges to the opposite party No.2 to get the sale deed registered in her name.  Merely there is some discrepancies is there regarding the total measurement sought the measurement of the site is clearly mentioned in the document the opposite party No.2 should have get the sale deed registered it, as the consideration is paid, if any more consideration is required as per the stamp act or as per the registration rules the complainant has to pay for it.  As the opposite party No.2 declined to register the sale deed it is deficiency in service.

13.     Whether it was a gift it was a consideration, etc.,. is a matter to be seen elsewhere.  Anyway the opposite party No.1 had executed the general power of attorney in favour of the complainant wherein the Clause No.3 clearly permits her to dispose of the property in any manner under any instrument she likes that is the sale, mortgaged etc.,.  Hence under these circumstances as per the power of attorney she has presented that sale deed and it was incumbent on the part of the opposite party No.2 to register it and nothing else, opposite party No.2 cannot question anything.  Hence under these circumstances the complaint as brought is maintainable.  As it has not been done, it is deficiency in service.  Hence under these circumstances we hold the above points accordingly and proceed to pass the following:-

ORDER

1.       The complaint is Allowed-in-part.

2.       The opposite party No.2 is directed to register the sale deed dated: 02.09.2011 executed in the name of the complainant on collecting necessary stamp duty and registration charges within 60 days from the date of this order.

3.       The opposite parties are also directed to pay Rs.2,000/- towards costs of this litigation.

4.        The opposite parties are directed to comply to the above said order as ordered at Serial Nos. 2 & 3 and submit the compliance report to this Forum with necessary documents within 75 days from the date of this order.

5.       Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.

6.       Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 19^th Day of January 2012)

MEMBER                                                 PRESIDENT