BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.12/2010 Order dated this the 18th day of June 2010 COMPLAINANT/S Sri.Mahadeva S/o Late Ningaiah, R/o Mangala Village, Kothathi Hobli, Mandya Taluk. (By Sri.K.M.Basavaraju (Kundur)., Advocate) -Vs- OPPOSITE PARTY/S The Commissioner, City Municipal Corporation, Mandya. (By Sri.M.B.Rajashekara., Advocate Date of complaint 22.01.2010 Date of service of notice to Opposite party 09.02.2010 Date of order 18.06.2010 Total Period 4 Months 9 Days Result The complaint is allowed partly, directing the Opposite party to get the execution of the lease agreement from the Complainant and furnish the same to the Complainant for registration at his cost and if the Complainant complies the same, to deliver possession of the shop premises and to claim the rent from the date of handing over the possession of the shop premises and Opposite party is directed to pay cost of Rs.1,000/- to the Complainant. The order shall be complied within 6 weeks. Sri.Siddegowda, President 1. The above complaint is filed by the Complainant under section 12 of the Consumer Protection Act, 1986, to direct the Opposite party to get execution of the lease agreement and deliver possession of the shop premises and thereafter to collect the rent and to cancel the demand notice of rent and to pay compensation of Rs.50,000/-. 2. The facts of the complaint are that the Opposite party advertised for public auction of shop premises constructed under I.D.S.M.T. scheme near Mahaveera Circle of Mandya City. The Complainant being an unemployed to earn his livelihood to start the business, participated in the public auction on 16.08.2006 and bid shop No.23 for Rs.50,500/- and the Complainant deposited the bid amount. The Opposite party did not get execution of the lease agreement and did not give the possession of the shop premises, since it was not to fit for use on account of damaged roof and want of door and platform and drainage and water supply and want of electricity supply. In spite of several requests, the Opposite party did not get the lease agreement and deliver possession. Even though, a petition was given to the Opposite party, but there was no reply. Finally on 29.05.2008, the Opposite party issued a notice demanding to deposit rent of Rs.23,500/- and in case of default, the bid amount of Rs.50,500/- would be forfeited. The said demand notice is illegal as possession of the shop premises was not at all given and it shows deficiency in service and negligence of the Opposite party. The Opposite party obtained profit from the bid amount deposited by the Complainant. The Complainant would have earned bank interest if deposited and in fact, the Complainant had borrowed loan to participate in the bid and therefore, he sustained loss. Without giving possession of the shop premises with basic amenities, the Opposite party has committed deficiency in service and hence, the present complaint for the above reliefs. 3. The Opposite party has filed version contending that the complaint is not maintainable. It is not admitted that the Complainant being an unemployed to earn his livelihood to start the business, participating the public auction and bid the shop No.23 on 16.08.2006 for Rs.50,500/-. It is admitted that in tender cum open auction, the Complainant bid the shop premises. He had to comply with the terms of the auction. As per the terms, after completion of the auction, the final bidder at the time of obtaining the possession shall execute agreement and get registration in the office of the Sub-Registrar. Since, the Complainant has not taken any action as per the condition, the complaint is not maintainable. It is disputed that the roof of the shop was in unfit condition and without facilities. Denying that the Complainant made several oral requests and give a petition, it is contended that since the public auction till the issue of notice dated 06.08.2008 claiming the rent, there was no complaint of unfit condition of the shop premises. The Complainant has not come forward to produce the lease agreement and get execution of the agreement. It is denied that the Opposite party has committed deficiency in service and negligence. The complaint is filed with false allegations. The Complainant has violated the terms of the public auction. The Opposite party is entitled to forfeit the bid amount and recover the rent amount. The Opposite party has sustained loss on account of non-payment of rent by the Complainant, since the date of auction. The Complainant is not entitled to any relief. Therefore, the complaint is to be dismissed with costs. 4. During trail, the Complainant is examined and produced the documents Ex.C.1 to C.5. On behalf of the Opposite party one witness is examined and has produced Ex.R.1. 5. We have heard both the sides. We have perused the records. 6. Now the points that arise for our considerations are:- 1) Whether the Complainant failed to get the possession of the shop premises by executing the lease agreement? 2) Whether the Opposite party has committed deficiency of service? 3) Whether the issue of notice claiming the rent is proper? 4) Whether the Complainant is entitled to the relief sought for? 7. Our findings and reasons are as here under:- 8. POINTS NO.1 to 4:- The undisputed facts are that the Opposite party has issued the notification announcing the public auction of shop premises constructed near Silver Jubilee Park, under I.D.S.M.T. scheme fixing the date on 16.08.2006 with terms and the Complainant bid the shop No.23 for Rs.55,000/- and the Complainant deposited the earnest money of Rs.12,500/- on the date of auction as per Ex.C.1 and then he has deposited Rs.33,000/- on 06.09.2006 as per Ex.C.2 and Rs.5,000/- on 11.09.2006 as per Ex.C.3. Of course, as per the terms of the auction as admitted by the Complainant, the bid amount should be deposited within 15 days. According to the evidence of the Complainant, as the Opposite party permitted to deposit the remaining amount in two installments, he has deposited on 06.09.2006 and 11.09.2006. Admittedly, on 16.08.2006 the auction was held, so within 31.08.2006 the amount should be deposited. But, the Opposite party has permitted the Complainant to deposit on 06.09.2006 and 11.09.2006 and it is not the case of the Opposite party that due to late deposit of the bid amount, the bid offered by the Complainant was cancelled. So, now it is not open to the Opposite party to contend that the Complainant has violated the terms of the auction in not depositing the bid amount within 15 days from the date of auction. 9. Even though, the notification announcing the auction of the shop premises by the Opposite party is not produced, the Complainant has produced the copy of the order passed by this Forum in C.C.69/2009 and CC.70/2009 and in that order, it is observed that Ex.C.1 is the notification and as per condition no.4 of the auction, the final bidder at the time of obtaining the possession, get registration before the Sub-Registrar Office and if the bid amount is deposited as per rules and after confirmation of the auction by I.D.S.M.T. committee, the bidder who has deposited the amount shall deposit the rent from that date. Admittedly, the Opposite party has accepted the bid amount deposited by the Complainant and admittedly the possession of the shop premises is not given to the Complainant. Though in the present case, the Opposite party witness incharge of this section has denied that the shop premises was in bad condition and without amenities, but in the previous case, it is admitted that shop premises even in 2008 were in bad condition due to rain water leaking to the shop premises and shop premises were locked and key is with the Opposite party. According to the Opposite party, the Complainant has failed to get execution of the agreement and get registration. But, according to the Complainant, in spite of several requests and petition on 25.04.2009 as per Ex.C.5 the Opposite party has failed to get execution of the agreement and to deliver possession of the shop premises. 10. As per condition of the auction notice, after confirmation of the committee of I.D.S.M.T., the bidder shall pay the rent from the date of acceptance by the committee. In the present case, there is no iota of material, whether the I.D.S.M.T. Committee of the Opposite party confirmed or accepted the bid made by the Complainant and on what date it was confirmed. According to the Opposite party, on 18.11.2006 a notice was issued to the Complainant to execute the lease deed in favour of the Opposite party and get registration and get the possession of the shop premises, otherwise the bid amount would be forfeited. According to the Opposite party, this notice was served on the Complainant. But, the Complainant has disputed the same. Now, if we peruse the signature on Ex.R.1 to that of the admitted signature of the Complainant in the affidavit, it is not at all possible that the signature in Ex.R.1 is that of the Complainant, because the signature is entirely different. So, when Ex.R.1 is not proved and when it is the evidence of the Complainant that he visited the Opposite party Office several times, requesting for deliver possession and execute the agreement, but they did not respond has to be accepted, because of the lethargy and burocracy attitude of the Opposite party. As it is admitted in note dated 18.08.2008 it is written that the roof of shop is rectified and the bidders have sought for execution of the lease agreement and the Opposite party has verified the same and again on 16.04.2009, the Chief Officer has made a note. It is seen that the case worker has not attended the file as per direction of the Chief Officer and a show cause notice was issued to him and further action was not taken (extracts are taken from the orders passed in C.C.69/2009 and C.C.70/2009). So, it is clearly proved that though the shop was bid, they were not in a position to occupy as roof was not fit and execution of the lease agreement was not complied. Though, it is contended that it is the duty of the Complainant to execute the agreement and get registration and get the possession, but the Opposite party has to furnish the format of the lease agreement to the bidders as per the terms after the confirmation of the bid. It is not proved that the notice to execute the agreement by sending the draft of the lease agreement was sent. The witness of the Opposite party admitted in C.C.118/08 in respect of the shop bid by one Mahesh in 1998, the agreement was executed in 2006. In fact, the Complainant has produced the copy of the said lease agreement for our perusal and further, the Complainant has produced the information given by the Opposite party under Right to Information Act, that Sri.S.N.Mahesh, who has bid the shop premises no.15 in 2001 has not deposited any rent from 03.03.2001 to 05.05.2006 (the extracts are taken from C.C.69/2009). For the first time, the Opposite party has issued notice dated 29.05.2008 calling of the Complainant to deposit the rent of Rs.23,500/- and get the lease agreement registration within 8 days, otherwise the bid amount would be forfeited. This notice was served on 06.08.2008 to one Sri.Puttaraju as per original notice produced by the Opposite party with a memo and Sri.Puttaraju has handed over the said notice Ex.C.4 to the Complainant. According to the evidence, after this notice, the Complainant visited the Opposite party Office on several times and even gave a petition on 25.04.2009 for the said purpose as per Ex.C.5 and the Opposite party Official did not respond at all. There is no reason to suspect the evidence of the Complainant and Ex.C.5. According to the Opposite party witness, to send the notice Ex.R.1 there is orders of the office, but Opposite party has not produced the order of the office nor produce the service of the said notice. It is admitted that so far the bid amount is not forfeited cancelling the bid confirmed in favour of the Complainant and there is no orders by the Opposite party cancelling the bid offered by the Complainant and forfeiting the bid amount. So, when the shop promises auctioned in 2001, the lease agreement was obtained in 2006 and no rent was collected from S.N.Mahesh, but Opposite party has executed the lease agreement on 21.04.2006, the Opposite party cannot apply the conditions differently from one bidder to another bidder and as the conditions are similar, the bidder should be treated alike and no different attitude shall be shown as they are bound by the rules. When it is proved that the shop premises were not in a position to occupy when the Opposite party locked and kept the key with him, it is proved that the Opposite party has failed to deliver the shop of the Complainant getting execution of the agreement by intimating the date of confirmation, since no such action is taken at all and therefore, the Complainant was not in a position to execute the lease agreement and get registration at his cost. If the Opposite party had furnished the format of lease agreement along with notice, then the blame could have been attributed against the Complainant. The claim of the rent issuing notice by the Opposite party is not supported by any material, because it is proved by the evidence of the case worker that Commissioner has not at all passed any order to issue notice to deposit the rent due and according to him, he prepared the notice and obtained the signature of the Commissioner and issued to the Complainant, but for any action to be taken the office orders should be put up and approved by the officer and then only question of issuing notice arise and case worker has taken the decision and prepared the notice and issued the notice obtaining the signature of the Opposite party. Therefore, the claim of the rent of Rs.23,000/- by the Opposite party from the Complainant without giving possession is unjustified and not supported by any reason. The question of payment of rent arise only when possession of shop premises is handed over by the Opposite party to bidder. Therefore, non-issue of notice to the Complainant intimating the date of confirmation of the bid and to deposit the rent and get execution of the agreement at his cost amounts to clearly deficiency in service and no negligence can be attributed against the Complainant. 11. The Complainant has sought for direction to the Opposite party to get the execution of the lease agreement and registration and deliver possession of the shop premises and to collect the rent after handing over possession and also cancel the rent notice and also sought for compensation of Rs.50,000/-. In view of our findings above, since the Complainant bid the shop premises to earn his livelihood, the Complainant is entitled to direction to the Opposite party to get execution of the lease agreement and deliver possession of the shop premises and to claim the rent after handing over possession of the shop premises. 12. The Complainant has sought for compensation of Rs.50,000/- for mental agony and loss due to deficiency in service. Since, the Opposite party has also lost the income of rent by the negligence of the official of the Opposite party, the Complainant is not entitled to the compensation. 13. In the result, we proceed to pass the following order; ORDER The complaint is allowed partly, directing the Opposite party to get the execution of the lease agreement from the Complainant and furnish the same to the Complainant for registration at his cost and if the Complainant complies the same, to deliver possession of the shop premises and to claim the rent from the date of handing over the possession of the shop premises and Opposite party is directed to pay cost of Rs.1,000/- to the Complainant. The order shall be complied within 6 weeks. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 18th day of June 2010). (PRESIDENT) (MEMBER)
