Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, against the Opposite party for refund of the bid amount of Rs.75,000/- with compensation and interest. 2. The case of the complainants is that, the Opposite party during 1998 conducted public auction of the shops constructed in the shopping complex at Silver Jubilee Park, M.C.Road, Mandya and the complainant to start the business participated in the public auction and he had bid shop No.21 for a sum of Rs.75,000/- and the bid was confirmed and the complainant deposited Rs.75,000/-. The Opposite party after receiving the bid amount was bound to execute the necessary lease agreement and deliver the possession of the shop premises. In spite of several visit to the office of Opposite party to execute the agreement and deliver the possession of the shop, the Opposite party did not heed to the requests, though 8 years have been elapsed. The complainant deposited the bid amount by borrowing loan on interest and is burdened with interest and he has become debtor on account of gross deficiency in service on the part of the Opposite party. The complainant got issued a legal notice dated 13.08.2008 for which there was no reply. Hence, the complaint is filed for refund of the bid amount of Rs.75,000/-, compensation of Rs.2,00,000/- and interest of Rs.1,75,000/-. 3. The Opposite party has filed version contending that though the complainant is the bidder of shop No.21 and the bid was confirmed and the complainant has deposited Rs.75,000/-, it is denied that the Opposite party was bound to execute the agreement and deliver possession and on several occasions, the complainant visited the Opposite party Office demanding to execute the agreement and deliver possession. In fact, inspite of letters written by the Opposite party, the complainant has not made any attempt to obtain the lease agreement from the Opposite party. The Opposite party has also published in the Newspaper on 03.03.2000 directing the complainant to obtain the lease agreement. Thus, there is gross negligence on the part of the complainant in obtaining the lease agreement. As per the conditions of the auction Notification, the complainant is expected to obtain the lease agreement within the stipulated period, otherwise, the bid amount will be forfeited. Accordingly, the bid amount is forfeited. Denying other allegations, it is pleaded that since 1998 to 2006, the said shop was kept vacant and actually the Opposite party incurred heavy loss and the complainant is liable to pay the rent. Issue of legal notice by the complainant does not arise at all, in view of the conditions. The complaint is barred by limitation, Opposite party has not committed any deficiency in service. Therefore, the complaint is liable to be dismissed with costs. 4. During trial, the complainant is examined as C.W.1 and got marked Ex.C.1 to C.12. On behalf of the Opposite party one Official is examined and Ex.R.1 to R.14 are produced. 5. We have heard both sides. 6. Now the points that arise for our considerations are:- 1. Whether the Opposite party has committed deficiency in service in not executing lease agreement and deliver possession? 2. Whether the complainant is entitled to refund of the bid amount? 3. Whether the complainant is entitled to compensation and interest? 7. Our findings and reasons are as here under:- 8. The undisputed facts are that as per the public auction notice dated 19.11.1998 as per Ex.R.4, the Opposite party auctioned the shop premises constructed near Silver Jubilee Part at Mandya City and the complainant is the highest bidder for shop No.21 and for participation in the auction he deposited Rs.5,000/- as per Ex.C.5 and after accepting the bid he deposited Rs.20,000/- as per Ex.C.6 on 17.12.1998 and after confirmation of the bid he deposited Rs.50,000/- on 15.04.2000 i.e., after notice from the Opposite party as per Ex.R.8, R.10 and R.11 dated 10.04.2000. 9. The grievance of the complainant is that the Opposite party is bound to execute the lease agreement and deliver the possession after depositing the amount and in spite of several approach and letters, the Opposite party did not execute the lease agreement and deliver the possession. But the contention of the Opposite party is that the complainant himself committed negligence in executing the lease agreement and obtaining the possession and therefore as per the condition, the bid amount has been forfeited and Opposite party has not committed any deficiency in service. As per Ex.R.1 dated 27.10.1999, the notice was sent to the complainant by registered post to deposit the balance of Rs.50,000/- and get the lease agreement registered and obtain the possession. Again Ex.R.8 dated 13.12.1999 was issued, Ex.R.2, R.3 are the postal acknowledgments. Then as per Ex.R.9 paper publication in Pouravani Paper dated 30.12.1999 was published to get the agreement executed and possession before 10.01.2000. Again as per Ex.R.10 dated 03.03.2000 notice was given to the complainant giving the last date as 20.03.2000 to deposit the balance of Rs.50,000/- and execute the agreement and obtain possession of the shop premises. Thereafter, as per Ex.R.11 dated 10.04.2000 by registered post, final notice was issued to the complainant giving the date up to 15.04.2000. Availing this opportunity, the complainant deposited Rs.50,000/- on 15.04.2000. Again the Opposite party has issued notice by RPAD on 08.06.2000 as per Ex.R.12 to execute the lease agreement and obtain possession before 24.06.2000, otherwise the rent would be deducted from the bid amount. Again as per Ex.R.13 dated 31.01.2001, the Opposite party has issued notice stating that the complainant has not obtained the lease agreement and possession, therefore, the Opposite party has sustained loss of rent and called upon to show cause as to why the rent should not be adjusted from the bid amount. So, it cannot be said that these documents are created, Ex.R.4 is the public auction notification, as per condition No.4, the bidder has to obtain the draft of lease agreement from the CMC and get it typed on the stamp paper and execute in favour of the Commissioner, CMC and registered before the Sub-Registrar, otherwise, the bidder is liable for any problems. As per condition No.20 from the date of registration of the agreement, the rent would be counted. 10. In the present case, admittedly the complainant has not executed the lease agreement and has not obtained possession. 11. The contention of the complainant is that he has given several letters as per Ex.C.7 dated 22.02.2004, Ex.C.8 dated 21.07.2005, Ex.C.11 dated 30.07.2007 and thereafter legal notice dated 13.08.2008 as per Ex.C.12. So, it reveals that till 2004 the complainant has not at all made any attempts and approached the Opposite party and execute the lease agreement in order to obtain the possession of the shop premises in spite of several notices from 1999-2001. In fact, a notice as per Ex.R.5 registered post dated 09.06.2006 was sent by RPAD and it was returned un-served as where about not known. 12. It is not the case that the complainant applied for draft agreement of lease and the Opposite party did not deliver the same in order to execute before the Sub-Registrar. Therefore, the complainant kept quiet without making any efforts and it is the fault of the complainant from 2000 till 2004 as per his application himself. 13. The complainant sought for refund of the bid amount with interest and compensation. In Ex.R.4 public auction proclamation there is no condition that in case of default to execute the lease agreement and get possession, the bid amount would be forfeited. Even though, as per Ex.R.13 dated 31.01.2001 a show cause notice has issued as to why the bid amount should not be adjusted towards the loss of rent, but no order has been passed by the Opposite party forfeiting the amount. When there is no execution of lease agreement, the question of payment of rent does not arise. In fact, as per Ex.R.14 dated 04.06.2006, the Opposite party has obtained the legal opinion wherein it is advised to give a final notice to the complainant and get registration of the lease agreement, otherwise to re-auction the shop premises. But, the Opposite party has not produced any documents to prove that final notice was issued to the complainant to execute the lease agreement and possession, otherwise the bid amount would be forfeited. Therefore, when the Opposite party has not forfeited the bid amount and no action is taken, Opposite party has committed deficiency in service. So, complainant is entitled to refund of the bid amount. 14. The complainant has sought for compensation of Rs.2,00,000/- and interest of Rs.1,75,000/- on the ground that he has suffered loss in not doing any business and burdened with interest. But there is also heavy negligence on the part of the complainant in executing the lease agreement as per the conditions of the public auction and obtain the possession. In fact, the Opposite party was put to loss of rent if the complainant had obtained possession in time. Therefore, the complainant is not entitled to any compensation or interest. Though, Opposite party has pleaded that complaint is barred by limitation, the letters between the parties give rise to continuation of cause of action and in fact there was no denial of claim by Opposite party at all. So complaint is not barred by limitation. 15. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed, directing the Opposite party to refund Rs.75,000/- to the complainant within 6 weeks. There is no order as to costs. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 16th day of January 2009). (PRESIDENT) (MEMBER) (MEMBER)
