COMPLAINTS FILED ON: 03.07.2010
DISPOSED ON: 28.12.2010
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
DATED THIS THE 28TH DECEMBER 2010
PRESENT:- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO.1509/2010
Complainant | Sri. M. Charles, S/o K. Manuel, Aged about 53 years, No.530, II Cross, M.V. Nagar, BEML Nagar Post, K.G.F. – 563 115. Advocate: Sri. H. Pavana Chandra Shetty V/s |
OPPOSITE PARTIES | 1. B.E.M.L. (SC/ST) Welfare Association, Bangalore Complex, New Thippasandra Post, Bangalore – 560 075. Rep: by its General Secretary 2. The President, B.E.M.L. (SC/ST) Welfare Association, Bangalore Complex, New Thippasandra Post, Bangalore – 560 075. Advocate: Sri. M.L. Prakash Kumar |
O R D E R
SRI. B.S.REDDY, PRESIDENT
The complainant filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Parties (herein after called as O.Ps) to execute the sale deed in respect of site No.365 situated at BEML Bhim Rao Nagar and to pay compensation of Rs.5,00,000/- with litigation costs on the allegations of deficiency in service on the part of the OPs.
2. The case of the complainant to be stated in brief is that:
OP is a registered association; it had introduced a housing scheme for providing house sites for the needy members of the association under the project “BEML BHIM RAO NAGAR” residential layout at Raghuvanahalli, Bangalore in the year 1995. The complainant enrolled his name with OP, OP entered into an agreement for allotment of site measuring 40 X 60 sq. ft. in the said layout for a total consideration of Rs.1,34,400/-. The complainant paid entire sale consideration to the OP and OP allotted the site bearing No.365 measuring 40 X 60 sq. ft. in the said layout. OPs issued letter in the year – 2000 intimating the complainant that the registration of the sites has been started and the place, date and time will be informed. Thereafter the OP kept silent in the matter. The complainant contacted OPs to allot a site and get it registered in his favour. OPs by giving one or the other evasive replies did not show any interest to allot the site and execute the sale deed. For the legal notice issued; OP has replied stating there is no site available in the layout. OPs after receiving the entire sale consideration failed to execute the sale deed, even after lapse of 15 years. The same amounts to deficiency in service on the part of OPs. Thus the complaint seeking necessary reliefs stated above.
3. On appearance, OPs filed the version contending that on 27.09.2005 itself the complainant had taken back the sital deposit of Rs.1,34,400/- in cash since he is not interested to have the site. Since the complainant had taken back all the sital deposit and filed this false complaint in order to enrich himself. There is no cause of action; hence it is prayed to dismiss the complaint with exemplary costs. OPs produced the copy of the letter containing the receipt issued by the complainant having received the amount of Rs.1,34,400/- deposited towards sital value.
4. In order to substantiate the complaint averments, the complainant filed affidavit evidence. The Assistant Secretary of OP filed affidavit evidence in support of the defence version. Arguments on both sides heard. Points for consideration are:
Point No.1:- Whether the complainant proved the
deficiency in service on the part of
the OPs?
Point No.2:- If so, whether the complainant is
entitled for the relief’s now claimed?
Point No.3:- To what Order?
5. We record our findings on the above points:
Point No.1:- Negative.
Point No.2:- Negative.
Point No.3:- As per final Order.
R E A S O N S
6. At the outset it is not at dispute that the complainant enrolled his name with OP society and deposited total amount of Rs.1,34,400/- towards the cost of a site measuring 40 X 60 ft. formed in the project “BEML BHIM RAO NAGAR” residential layout at Raghuvanahalli, Bangalore. OP society also allotted site bearing No.365. The pass book produced by the complainant reveals that the amount of Rs.1,34,400/- has been deposited from time to time from 07.11.1996 and the last installment deposited is on 30.08.1999. The provisional allotment of intermediary sites letter issued by OP goes to show that on 13.12.1998, the complainant participated in the Pick Your Site Draw and accepted the allotment of site bearing No.365 measuring 40 X 60 ft. OP society through its letter dated 11.08.1999 informed the complainant that the cost of the site will be revised from 01.09.1999 and the amount due is to be payable on or before 31.08.1999 to avoid paying new prices of the sites. As per the revised cost; for the site measuring 40 X 60 ft. an amount of Rs.1,51,200/- is to be deposited from 01.09.1999. Till 31.08.1999 the amount fixed for the site was Rs.1,34,400/-. The complainant has paid the last installment on 30.08.1999 as such the amount of Rs.1,34,400/- was paid towards the entire cost of the site.
7. The main defence of the OP is; the complainant has taken back the sital deposit of Rs.1,34,400/- in cash on 27.09.2005 and has issued the receipt cum discharge memo. The xerox copy of the said receipt is produced. The said receipt is handwritten on the request letter of the complainant. Where in the complainant has requested the OP to refund the entire amount without deducting any incidental expenditure. It is stated that due to financial difficulties the complainant is unable to mobilize to funds to meet the registration expenses and development charges. In the affidavit evidence the Assistant Secretary of OP has sworn to the facts of the complainant having taken back the deposit and issued the cash receipt. The complainant has not filed any counter affidavit denying the fact of having taken back the sital deposit and having issued the receipt cum discharge memo dated 27.09.2005. In case if the complainant has not taken back the sital deposit and has not issued the receipt cum discharge memo nothing prevented him to file counter affidavit denying all these allegations. We are unable to accept the arguments of the learned for the complainant that OP without paying any amount has created the receipt cum discharge memo. In the complaint no where the complainant has stated that OP obtained his signature on the cash receipt cum discharge memo without paying the amount. Even after producing the xerox copy of the cash receipt cum discharge memo by OP, the complainant has not whispered anything about the same. Under these circumstances we are of the view that the complainant has already taken back the sital deposit of Rs.1,34,400/- from OP. In view of the same the complainant is not entitled to seek the relief for executing the sale deed in respect of the said site. The complainant has not approached the Forum with clean hands. There is no any deficiency of service on the part of the OP. The complainant is not entitled for any of the releifs. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant is dismissed with exemplary costs. The complainant is directed to pay an amount of Rs.2,000/- to the OP towards exemplary costs.
Send the copy of this order to both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 28th day of December 2010.)
PRESIDENT
MEMBER MEMBER
Snm:
