Karnataka

Kolar

CC/55/2014

Dhanappa Gollagi, - Complainant(s)

Versus

Earth Movers Employees House Building Co-Operative Society Ltd., - Opp.Party(s)

D.M.Krishna

06 Dec 2016

ORDER

Date of Filing: 18/10/2014

Date of Order: 06/12/2016

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 06^th DAY OF DECEMBER 2016

PRESENT

SMT. PRATHIBHA.R.K., BAL LLM, PRESIDENT

SRI. R. CHOWDAPPA, B.A., LLB…..    MEMBER

SMT. A.C. LALITHA, BAL., LLB           ……  LADY MEMBER

CONSUMER COMPLAINT NO :: 55 OF 2014

Dhanappa Gollagi,

2^nd Type 233 BEML Nagar Post,

KGF-563 115.

Kolar District.

(Rep. by Sriyuth. D.M. Krishna, Advocate)                        ….  Complainant.

 

- V/s -

Earth Movers’ Employees

House Building Co-operative

Society Limited,

Old Tile Factory Extension,

Railway Station Road,

Kolar District,

Rep. by its Secretary.

(Rep. by Sriyuth. A.Lakshminarayana, Advocate)            …. Opposite Party.

-: ORDER:-

 

BY SMT. A.C. LALITHA, LADY MEMBER

01.   The complainant having submitted the complaint on hand as envisaged Under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred in short as “the Act”) has sought relief against OP for refund of a sum of Rs.4,33,000/- of deposit amount towards site together with interest at the rate of 24% per annum from the date of deposit till its realization and any other reliefs as the forum to deem fit.

 

02.   The facts in brief:-

(a)    It is contention of the complainant that, OP is the co-operative society.  And that the object of this OP is to purchase lands, and develop the sites to allot to its members to those who paid deposits for sites.  And thus he became a member of OP-society and paid a sum of Rs.4,33,000/- towards site but the OP had not issued provisional letter of allotment of site or not registered the site to him.

 

(b)    Further it is contended that, he had opted for a site measuring “30 x 40” and as per demand of OP he had made payments as mentioned below:-

DATE	RECEIPT NUMBER	AMOUNT
10.08.2002	001637	15,055=00
28.02.2004	001828	5000=00
14.10.2011	2615	1,72,000=00
07.10.2011	2566	10,000=00
26.11.2010	002402	2,32,000=00
TOTAL		4,33,000=00

 

(c)    Further it is contended that, being a senior most member of OP-Society, though making of full payment for site also, the OP had allotted the sites to its junior members and not allot the site to him, thus caused deficiency in service.

 

(d)    Further it is contended that, several approaches of him to OP in this regard, which was of no use.  So he had given complaint against OP-society to Assistant Registrar of Co-operative Societies, Kolar Sub-division on 23.03.2014 and 01.07.2014.  The Assistant Registrar of Co-operative Societies, Kolar sub-division, Kolar, had given endorsement on 14.07.2014 to him, with a direction to approach OP to allotment of site or recover the deposits paid towards site.  All efforts of him was of no use.  Hence he got issued legal notice through his counsel on 06.09.2014, which was duly served on OP and replied on 23.09.2014.  And OP in reply stated that, already site was allotted to him and same was registered to him in the Office of Sub-registrar, Kolar, on 29.05.2012.  The vendor of the site Sri.N.Gopalappa is the absolute owner of the site No.08 bearing V.P. Katha No.2828/08 of Petechamanahally, Doddahasala Gramapanchayath, Kasaba Hobli, Kolar Taluk, measuring east to west 32 feet north to south 39 + 28/2 in total measuring 1232 sq. fts.

 

(e)    Further it is contended that, the vendor has sold the said site to him in his individual capacity to clear his financial debts.  And that, in sale deed it is clearly mentioned that, it is free from all encumbrances and vendor was the absolute owner of the said site, OP has no right or interest over the said site.

 

(f)     Further it is contended that, he being a member of OP-society had deposited a sum of Rs.4,33,000/- towards site and the value of site he purchased individually from vendor is of Rs.3,70,000/-.  For non-allotment of site or non-refund of the amount and non-compliance of the order of Assistant Registrar Of Co-operative Societies, Kolar, the OP had committed deficiency in service.  Thus the complainant has come up with this complaint on hand seeking the above set-out reliefs.

 

(g)    The complainant has submitted the below mentioned documents and citations as hereunder:-

(i) Original receipts towards amount paid

(ii) Copy of legal notice dated: 06.09.2014

(iii) Copy of legal notice dated: 23.09.2014

(iv) Xerox of sale deed dated: 29.05.2012

(v) Affidavit in e-stamp paper dated: 19.06.2015

(vi) Xerox letter dated: 08.05.2014

(vii) Citation of 2005(1) KAR. L.J. 245}

(viii) Appeal No.1089/2012                } Emphasis supplied

(ix) Order dated: 10.03.2016            }

(x) Copy of C.P. Act 1986.                

 

03.   In response to the notices served, OP has put in its appearance through their said learned counsel and has submitted written version resisting the claim of the complainant in toto.

 

(a)    It is specifically contended that, as the complainant is a member of the society and this Forum has no jurisdiction to entertain this complaint as per Section 70 of Karnataka Co-operative Societies Act.

 

(b)    It is also contended that, by admitting payment towards site and submits that, the said site had been sold by him to Smt.J.N.Chaitra under a registered sale-deed dated: 01.02.2014.  And admits the endorsement issued by Assistant Registrar of Co-operative Societies in this regard.

 

(c)    It contends that, the co-operative society is prohibited to purchase of the agricultural lands under the Karnataka Land Reforms Act, 1961.  So OP-Society had taken a way of getting a registered power of attorney from the land owners by paying sale consideration amount and later secured the conversion of land in the names of land owners and later obtained the approved layout plan in the name of land owners and finally executed sale deeds in favour of members directly from the land owners and in such sale deeds the president and secretary of OP were the witnesses only intend to save the substantial amount with regard to payment of stamp duty, registration fee, paper work and other expenses.

 

(d)    It is specifically contends that, the lands described in the general power of attorney dated: 14.01.2008 was belonging to one Sri.N.Gopalappa, Son of Narayanappa, resident of Gajaladenne, Kolar Taluk.  The same was agreed to be purchased by the OP-society from him for the formation of the 2^nd stage layout.  In that connection he has executed the said irrevocable GPA in favour of the OP-society.

 

(e)    It is submitted that one Smt.Jayamma daughter of V.M. Ramaiah and others have filed a suit against one Sri.V.M.Ramaiah and Gopalappa in OS No.319/08 on the file of honourable 1^st Additional Civil Judge (Jr. Dvn.), Kolar, for the relief of Partition and separate possession pertaining to the lands purchased in the name of N.Gopalappa on behalf of OP-Society.  Another suit was filed by Muniyamma and others against one G.Shankarappa and others in OS No.283/08 on the file of Honourable 1^st Additional Civil Judge (Jr. Dvn.), Kolar for the relief of partition and separate possession.  In the said suit also N.Gopalappa arrived as Defendant No.6.  Another suit also filed by Smt.Prameelamma and others against Chikkanna and others in OS No.385/11 on the file of Hon’ble II Additional Civil Judge (Jr. Dvn.), Kolar for the relief of partition and separate possession, N.Gopalappa arrived as defendant No.5 in the said suit in all the above referred suits N.Gopalappa contested the mater by filing his written statements in all the suits.  In his written statement he contended that, he purchased the properties covered under the suit schedules and other properties in favour of OP-society.  Subsequent to purchase the said N.Gopalappa had executed irrevocable General Power of Attorney in favour of President/Secretary of the said society and the properties which are purchased in his name are belongs to opponent society. 

 

(f)     It is submitted that the entire consideration amount for purchase of landed properties was paid by the OP-society and the sale deed was registered in the name of N.Gopalappa for the purpose of converting the agricultural land in to non-agricultural purpose and also other purposes for applying permission before the concerned authorities.  Further he contended that, he stood as a mediator between the land lords (vendors) and the opposite party society and registered sale deeds as registered in the name of N.Gopalappa.  The said facts clearly clarifies that, N.Gopalappa had no any rights, interest, title over the opposite party society and he had not borrowed any amount from the opposite party society.

 

(g)    It is also contends that, on 28.01.2012, a resolution was passed by OP-society on request of members and Board of Directors of OP-society, as to execute the sale deed directly from the land owners to members.  Thus the land owner Sri.N.Gopalappa had executed the sale deeds to all members of Society, this complainant was/is also one among them.

 

(h)    Thus the OP-society had executed sale deed of site No.8 to the complainant on 29.05.2012 in the 2^nd stage layout.  And that the complainant had sold out the same to Smt. J.N.Chaitra, W/o. Sri.K.V.Muralidhar, sale deed dated: 01.04.2014.  Therefore OP-society had never rendered deficiency in its service.  So contending, dismissal of the complaint with costs has been sought.

 

04.   The OP has submitted the below mentioned Xerox copies of documents and citations:-

(i) Notary attested GPA dated: 14.01.2008.

(ii) Notary attested copy of letter dated: 25.03.2009.

(iii) Requisition Letter dated: 17.08.2009.

(iv) Requisition Letter dated: 19.09.2009.

(v) Letter dated: 29.12.2009

(vi) Letter dated: 03.08.2011

(vii) Letter dated: 03.01.2012

(viii) Layout plan

(ix) Copy of resolution dated: 28.04.2012

(x) Key plan of layout

(xi) Copy of order dated: 09.04.2012

(xii) Copy of sale-deed dated: 01.02.2014

(xiii) Copy of order dated: 04.03.2012

(xiv) Copy of order-sheet of Principal Civil Judge, Kolar.

(xv) Copy of plaint in O.S. No.187/2012

(xvi) Memo dated: 22.03.2012

(xvii) Copy of order-sheet of O.S. No.319/2008

(xviii) Copy of plaint of O.S. 319/2008

(xix) Copy of written statement of O.S. 385/2011

(xx) Copy of possession certificate Dated: 05.05.2012

(xxi) Copy of sale-deed dated: 20.04.2012

(xxii) Copy of possession certificate dated: 05.05.2012

(xxiii) Copy of sale-deed dated: 29.05.2012

(xxiv) Copy of possession certificate dated: 05.05.2012

(xxv) Copy of sale deed dated: 20.04.2012.

(xxvi) Copy of registered sale deed dated: 20.04.2012 in favour of Sri.D.V.Govindaswamy executed by Sri.N.Gopalappa.

(xxvii) Copy of Possession Certificate dated: 05.05.2012 in favour of Sri.N.S.Mohan

(xxviii) Copy of registered sale deed dated: 13.04.2012 in favour of Sri.N.S.Mohan executed by Sri.N.Gopalappa

(xxix) Copy of Possession Certificate dated: 05.05.2012 in favour of Sri.G.S.Gopalakrishna

(xxx) Copy of registered sale deed dated: 19.03.2012 in favour of Sri.G.S.Gopalakrishna executed by Sri.N.Gopalappa.

(xxxi) Notary attested copy of agreement for Development of Layout with Contractor dt: 25.08.2010.

(xxxii) Certified copy of letter dated: 22.05.2014 issued by Kolar Town Development Authority.

(xxxiii) Notary attested copy of Karnataka State Gazette Special Issue dt. 03.01.2012.

(xxxiv) Copy of letter dt. 20.04.2016 issued by OP in favour of Commissioner, Town Development Authority, Kolar.

(xxxv) Copy of Survey Sketch issued by Taluk Surveyor, Kolar.

(xxxvi) Copy of letter dt.24.01.2012 addressed to Assistant Executive Engineer, Minor Irrigation Department, Kolar Sub-Division, addressed by Commissioner.

(xxxvii) Copy of letter dt: 17.02.2016 addressed to Commissioner, City Municipality, Kolar by Panchayath Development Officer, Doddahasala Grma Panchayath.

(xxxviii) Copy of letter dt: 30.01.2016 addressed to Panchayath Development Officer, Doddahasala Grama Panchayath, by Commissioner, City Municipal Council, Kolar.

(xxxix) Notary attested copy of affidavit dt: 27.06.2015 on e-stamp of the value of Rs.20/- in OP favour.

(xxxx) Copy of cash book consisting of 36 pages.

(xxxxi) 2005(1) Kar. L.J. 245

(xxxxii) W.P. No.47523/14 (CS-EL/M)

(xxxxiii) ILR 1992 KAR 979.

 

05.   The complainant has submitted his affidavit evidence and also got himself examined as PW-1 and Exhibit-P.1 to P-6 came to be marked and also cross-examined by the learned counsel appeared for OP.

 

06.   On behalf of OP Sri.M.Venkategowda has submitted his affidavit evidence and also got himself examined as DW-1 and Exhibit-D.1 to D.45 came to be marked and cross-examined by the learned counsel appeared for complainant.

07.   Both counsel appearing for both parties submitted their written arguments.

 

08.   Heard the oral arguments as advanced by the learned counsel for both sides.

 

09.   Therefore the points that do arise for our consideration in this case are:-

(A) Whether this Forum has jurisdiction to entertain the complaint on hand?

(B) If so, whether the OP is guilty of deficiency in service?

(C) If so, to what relief the complainant is entitled to?

(D) What order?

10.   Findings of this District Forum on the above stated points are:-

POINT (A):-  In the Affirmative

POINT (B):   In the Negative

POINT (C):-  Does not survive for consideration

 

POINT (D):-  As per the final order

for the following:-

 

REASONS

POINT (A):-

11.   It is indisputable that the complainant was member of OP being a co-operative society.  It is also indisputable that, on the said dates the said sums came to be deposited by the complainant with this OP.

 

12.   Thus taking shelter Under Section 70 of the Karnataka Co-operative Societies Act, the learned counsel appearing for OP did maintain that, the nature of the dispute is not comes under the purview of Consumer Protection Act, 1986, this District Forum lacked jurisdiction to entertain the complaint as the complainant could never be termed as the consumer.      

(a)    According to principles enunciated in AIR 2004 SC 448 Secretary, Thirumurugan Co-operative Agriculture Credit Society V/s M.Lalitha (reliance on Section.3 of Consumer Protection Act, 1986 2015 Edition) maintained that, the provisions of Section 70 of the Karnataka Co-operative Societies Act will not come in to play and as the complainant though member of Co-operative Society run by the OP could also be a consumer and the complaint is maintainable.  Consequently, it is held that, the complainant is the consumer in spite of the fact that, he was member of the co-operative society run by OP.  Therefore the present complaint is tenable and this Forum has jurisdiction to entertain the case on hand.

 

POINT (B) & (C):-

13.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time. 

 

(a)    The said deposits on said dates on the part of the complainant towards site with this OP is indisputable.  The only defense resorted by OP is that, site No.8 in 2^nd stage layout was given to the complainant and the same he was sold out to Smt. Chaitra, contrary to this complainant specifically contends that, the said site No.8 he purchased individually by Sri.N.Gopalappa but not on behalf of OP-society. 

 

(b)    Let us first concentrate on the Exhibit-D.10 which is key plan of contended layout developed by OP-society, the said contended site No.8 is also one among it.  This key plan includes lands bearing Sy. Nos.82, 83, 84, 85, 86, 89, 91/1, 91/2, 91/3, 92, 93/1, 93/2, 94, 97/5 of Petechamanahalli Village, Kasaba Hobli, Kolar Taluk & District.

 

(c)    As per Exhibit-D.1 irrevocable general power of attorney dated: 14.01.2008 discloses that, the aforesaid lands purchased in the name of Sri.N.Gopalappa on behalf of OP-society to form II stage layout.  Thus this GPA was executed by Sri.N.Gopalappa to president/secretary to develop further developmental works in the said layout.

 

(d)    Exhibit-D.18, OS No.319/2008, Ex.D-15, OS No.187/2012, Ex.D.21 OS No.385/2011 Sri.N.Gopalappa being defendant No.4 on the file of Civil Judge (Jr. Dvn.) Kolar in his written statement says that, the said lands are purchased by OP-society his name. 

 

(e)    By the above said evidence it is crystal clear that, the said lands are purchased by the OP-society in the name of Sri.N.Gopalappa to develop 2^nd stage layout.  This N.Gopalappa does not have any individual rights over these particular lands of aforesaid survey numbers. 

 

(f)     Exhibits-D.4, D.5, D.6, D.7, D.8, D.36, D.37, D.38, D.39, D.40, D.41, D.43 are the documents which shows that, the President/Secretary of OP-Society were the persons who had attended and done the necessary amenities in different department to develop the 2^nd stage layout.

 

(g)    On 28.04.2012 (reliance on Ex.D.9) the members/share holders/depositors of OP-Society altogether decided to get execute sale deeds from Sri.N.Gopalappa itself in the contended layout.  The present complainant also one among them.

 

(h)    Accordingly, on 29.05.2012 (Ex.D.44) the site No.8 was executed by Sri.N.Gopalappa on behalf of OP-society to the complainant likewise Exhibit.D.23, D.25, D.26, D.37, D.29, D.30, D.31, D.32, D.33 are the sale deeds executed to other members.

 

(i)     Exhibit.D.46 letter dated: 19.09.2013 written by the complainant to OP-society with regard to change of kathaof the same.  And in his cross-examination the complainant admits his signature in it as Exhibit.D.46(a). 

 

(j)     Therefore it confirms that, the present complainant was in receipt of site No.8 from OP-society towards the said payment but not individually from Sri.N.Gopalappa.

 

(k)    On perusal of affidavit of Sri.N.Gopalappa (DW.2) dated: 09.08.2016 it is clear that he had executed site No.8 to the complainant on behalf of OP-society and he had not sold out individually as he has not original owner of the same, the OP-society was purchased the said lands in his name.

 

(l)     As per the proceedings noted in order-sheet the said N.Gopalappa was very much present before the Forum in different dates, the complainant had not cross-examined him.  This attitude of complainant is suspicious.  Hence we cannot believe the complainant version without any documentary evidence, and he failed to prove his case.

 

(m)   During oral arguments the learned counsel for complainant raised a contention as, maintainability of benami transaction in Co-operative society, through the said N.Gopalappa is illegal. 

 

(n)    Our observations in this regard is, it is very high time to take-up such contention, the same was not pleaded in complaint nor in affidavit of complainant.  Exhibit-D.9 dated: 28.04.2012  clearly reveals that, this complainant was agreed for this Benami transaction along with other members of OP-society, now raising such contention is very surprising and what prevented this complainant to oppose the same prior to get execution of sale-deed and why did he agreed and signed would be the question?  Hence this issue has no way concern to consider to the present case on hand, as it is not subject matter of the present case.  And we lack jurisdiction to probe in to it, this observation is made only in the academic interest. 

 

(o)    The citations relied by the learned counsel appeared for both parties, since not applicable to the facts of the case on hand, the same are not necessary for taking in to consideration.

 

(p)    Therefore paramount significance would be given to the affidavit evidence of Sri.N.Gopalappa (DW-2) dated: 09.08.2016 and documentary evidence placed by OP, we come to conclusion that, there was/is no deficiency of service on the part of the OP.

 

(q)    Hence we affirm/reaffirm that the site No.8 was allotted to complainant by OP-society and Sri.N.Gopalappa was executed sale deed on behalf of OP-society as agreed by complainant, but not individual transaction with anyone else.  Therefore we are of the definite opinion that, there was no deficiency in service on the part of the OP-society.

     

POINT (D):

14.   We proceed to pass the following:-

ORDER

01.   For foregoing reasons the present complaint stands Dismissed with a direction to both the parties to bear their own costs.

 

02.   Send a copy of this order to both parties free of cost

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 06^th DAY OF DECEMBER 2016)

 

 

 

LADY MEMBER                   MEMBER                            PRESIDENT