BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member. 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, COMMON ORDER Complaint No.MDF/C.C.No.89/2009 Order dated this the 24th day of November 2009 COMPLAINANT/S Sri T.Srinivas S/o Late V.Thimmaiah, R/o Vidyanagar, 2nd Cross, D.No.1591, Mandya. (By Sri.Yogananda., Advocate) -Vs- OPPOSITE PARTY/S The Commissioner, City Municipal Corporation, Mandya District, Mandya. (By Sri.M.B.Rajashekara., Advocate Date of complaint 23.07.2009 Date of service of notice to Opposite party 22.08.2009 Date of order 24.11.2009 Total Period 3 Months & 2 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 their cost and if the Complainant complies the same, to deliver possession of the shop no.7 to the Complainant 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. This complaint is filed under Section 12 of the Consumer Protection Act, 1986 against the Opposite party to direct the Opposite party to get execution of the lease agreement and deliver possession of the shop premises and also compensation of Rs.1,00,000/- and also to provide amenities of drainage, water and platform. 2. The case of the Complainant is that the Opposite party advertised for the auction of the shop premises constructed under I.D.S.M.T. scheme near Mahaveera Circle of Mandya City, and the Complainant participated the bid on 16.08.2006 and bid the shop No.7 for Rs.2,10,000/- and it was confirmed. The Complainant has deposited the bid amount. The Opposite party did not get the execution of the lease agreement and did not deliver the possession of the shop premises, since it was not fit for use on account of the damaged roof due to rain and there was no drainage, water and platform facility. The Complainant bid the shop premises to earn his livelihood. In spite of several requests, the Opposite party did not get the lease agreement and deliver possession. Even though, a petition was given, the Opposite party did not reply. Again on 20.01.2007, the Complainant gave a petition to register the agreement and deliver possession. But, the Opposite party did not take any action and neglected and thereby committed deficiency in service The Complainant sustained loss by depositing Rs.2,10,000/- without earning anything from the shop premises. Therefore, the present complaint is filed. 3. The Complainant has filed an application under section 24A of the Consumer Protection Act, to condone the delay in filing the complaint along with affidavit. 4. The Opposite party has filed version contending that the Complaint will not come under the provisions of section 12 of the Consumer Protection Act. Denying other allegations, it is contended that though the Complainant bid the shop premises and deposited Rs.2,10,000/-, but it was on different days. As per condition No.4 of the auction, the bidder shall execute an agreement by his personal cost for a period of 20 years and get registration. In spite of it, the Complainant did not take any action and false allegations are made. It is denied that the Complainant orally and in writing give a petition and on 20.01.2007 gave a petition to get registration and deliver possession and committed deficiency in service. The Opposite party is not responsible for the alleged loss of income. As he failed to get possession as per the terms, the Complainant is liable to pay the rental of the shop from the date of auction and he has caused loss without complying the terms of the auction and the Opposite party is entitled to forfeit the bid amount and also recover the rent. Therefore, the Complainant is not entitled to relief and the complaint is to be dismissed with costs. 5. During trail, the Complainant and one witness are examined and got marked Ex.C.1 to C.5 and on behalf of the Opposite party, one witness is examined. 6. We have heard the arguments of Complainant side and the Opposite party has filed written arguments. 7. 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 Complainant is entitled to the relief sought for? 8. Our findings and reasons are as here under:- 9. POINTS NO.1 & 2:- The undisputed facts are that the Opposite party has issued notification announcing the auction of shop premises constructed near Silver Jubilee Park, under the I.D.S.M.T. scheme fixing the date on 16.08.2006 with terms and the Complainant bid the shop No.7 for Rs.2,10,000/- and on the date of auction as per terms he deposited Rs.50,000/- and within 1 ½ month deposited Rs.1,60,000/- as per Ex.C.3 & C.4. 10. The grievance of the Complainant is that the Opposite party did not deliver of the shop premises in spite of oral requests and letters. But, the contention of the Opposite party is that it is the duty of the Complainant to execute the agreement and then obtained the deliver of possession as per the terms and also liable to pay rent and hence, the Opposite party has not committed any deficiency in service. 11. As per condition no.4, after closure of the auction, the final bidder at the time of obtaining the possession should execute agreement for 20 years and get registration before the Sub-Registrar. As per condition no.20 of the auction, the remaining amount of the bid amount of the bidders who have deposited 25% of the bid amount should be deposited within 15 days of bid, otherwise the said amount would be forfeited and another auction would be conducted. In case, 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. 12. Admittedly in the present case, the Complainant has deposited 25% of the bid amount on the date of auction and then he has deposited the balance and the Opposite party has accepted the same. Admittedly, the possession of the shop premises is not given to the Complainant. In C.C.69 & 70/2009, the Opposite party witness has admitted that the 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. It is true that as per condition no.4, the final bidder should execute the lease agreement for 20 years at the time of obtaining the possession and get registration before the Sub-Registrar and 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 oral requests and petition and final petition as per Ex.C.1, C.2 and another letter dated 20.01.2007, the Opposite party has failed to get execution of the agreement and deliver possession. 13. It is undisputed that under condition no.20 of the auction notice, after deposit of the entire bid amount and 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. Further, the Opposite party has not at all issued any notice to the Complainant informing the date of confirmation of the bid and to execute the lease agreement and to pay the rent. It is the evidence of the Complainant that he visited the Opposite party Office several time, requesting for deliver possession and execute the agreement, but they did not respond. It has to be accepted, because of the lethargy and burocracy attitude of the Opposite party, because in spite of the letters Ex.C.1 and C.2 dated 20.01.2007, 08.06.2009 and another petition dated 18.01.2007, the Opposite party did not reply at all. In fact, as per Ex.C.5 the Opposite party issued a letter to deposit the balance of bid amount and within time provided by the Opposite party, the Complainant deposited the entire bid amount. Naturally in order to get execution of the agreement, the Opposite party has to furnish format of the lease agreement to the bidders and as per the terms of the auction after confirmation of the bid, the bidders have to pay the rent after execution of the lease agreement and getting possession. It is admitted that no notice was issued to the Complainant about the acceptance of the bid and execute the lease agreement by furnishing the format of the lease agreement. The Complainant has produced the document i.e., the information obtained from the Opposite party Office where in case of one N.Suresh, from 03.03.2001 upto 05.05.2006, the bidder of shop no.15 has not paid any rent and the Opposite party witness has admitted that the agreement was executed in case of S.N.Mahesh for shop no.15 after 2006, though the shop was auctioned in 2001. So, for 5 years, the Opposite party has not collected any rent from S.N.Mahesh, but it has executed the lease agreement on 21.04.2006. So, 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. The question of payment of rent arise only when possession of shop premises is handed over by Opposite party to bidder. The failure of the Opposite party to issue the notice to the Complainant intimating the date of confirmation and to deposit the rent and get execution of the agreement at their cost amounts to clear deficiency in service and no negligence can be attributed against the Complainant. 14. POINT NO.3:- The Complainant has sought for direction to the Opposite party to get the execution of the lease agreement and deliver possession of the shop premises and also pay compensation of Rs.1,00,000/- for mental agony. In view of our findings above, the Complainant is entitled to a direction to the Opposite party to get execution of the lease agreement and deliver possession of the shop premises. Though the Complainant has sought for compensation of Rs.1,00,000/- for mental agony due to deficiency in service by the Opposite party, since the Opposite party has also lost the income of rent by the negligence of the officials of the Opposite party, the Complainant is not entitled to the compensation. 15. 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 their cost and if the Complainant complies the same, to deliver possession of the shop no.7 to the Complainant 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 24th day of November 2009). (PRESIDENT) (MEMBER) (MEMBER)
