BEFORE THE ADDITIONAL BENCH DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MYSURU.

Consumer Complaint (C.C.)No. 1227/2016

Complaint filed on 23.05.2016

Date of Judgement.20.01.2017

PRESENT                                : 1. Shri Ramachandra  M.S.,  B.A., LL.B.,

                                                           PRESIDENT

                                        2. Shri  Thammanna,Y.S., B.Sc., LL.B., 

                                             MEMBER

Complainant/s               :                     1. Mr.Elizabeth Mathew

    D/o Mathew .P. Ninan,

 # 80, 8^th main,  Vinayakanagara,

   Mysore.

   Rep by her PO A Holder

   Mr. Mathew P. Ninan.

                                                         (Sri Dinesh Solanki., Advocate)

V/s

Opponent        /s                     :       Karnataka Telecom Department

                                                         Employees Co-operative Society

                                                           LTD,

# 30/1, 2^nd Floor, Leeman’s 

Complex, Cunnigham Road,

Bengaluru-560052.

Represented by its Secretary.

     (Sri   S.R. Narayanappa. , Advocate)

SHRI RAMACHANDRA . M.S., PRESIDENT

JUDGEMENT

The complainant has filed the complaint under section 12 of the C.P.Act 1986. against the opposite party pray for the allotment of site  other reliefs.

2. The brief facts of complainant is that the opposite party had represented to complainant that they have acquired lands and would form it into residential sites of various dimensions with necessary sanctions and approvals from competent authorities. The complainant believing the gullible representations of the opposite party, became a member of their society on 23.04.2007 by paying a membership fee of Rs. 1020/- and his membership number is A-224348. The site the complainant intended to purchase is measuring 40 fee X 60 feet in layout named as “Athmananda Sagara. “ That upon becoming the member of the opposite party society, the complainant made the entire payment of Rs. 5,40,000/- to the opposite party as and when called upon without any delay or default. The complainant submits that at the time of receiving the said the instalments towards the sale consideration, the opposite party assured that the registration would be done soon and possession of the said site would be given. Trusting these words the complainant adheres to her words and commitments. However despite receipt of the entire amount the opposite party for reasons best known to them has not executed the sale deed in favour of the complainant.

3. The complainant previously has approached the opposite party lot many times requesting them to complete their part of obligations and has also made several personal visits to their office and in all such visits only dodging answers have been given. The Complainant again in the month of January 2016 visited the good office of the opposite party and enquired about the registration of the said site for which the opposite party assured to execute the sale deed by march 2016. However nothing was heard from the opposite party office. Recently it has come to the complainant’s knowledge that the opposite party is pick and choosing members for registration and thereby you have neglected the complainant and his seniority. The complainant is ready and willing to get the said deed of conveyance executed in his favour and under no circumstances he intends to postpone. The complainant left with no other option, got issued a legal notice dated 06.05.2016 to the opposite party calling upon them to execute necessary documents/deeds so as convey a title  to the complainant. The said notice was sent by RPAD and the same was duly served. Till the filing of this complainant no reply has been sent by the opposite party.

4. The complainant states that the opposite party is bound to develop the said housing layout and to execute the Registered sale deed in favour of the complainant. The non completion of the project by the opposite party amounts to deficiency in service. The opposite party is intentionally delaying the development of the said project for reasons best known to them. The delay is inordinate and the same is causing a burden to the complainant as day by day the cost of construction is rising which intern would penalize the complainant for no fault. This act amounts to deficiency in service on the part of the opposite party. It is submitted that due to the non –fulfilment of respective obligations from the side of the opposite party the complainant has to now bear the hike in construction expenses, market value of the sites have gone up. For all these aspects the opposite party shall be made liable and compensation needs to be awarded. Hence these complaint prays for allotment of site and seeking other reliefs.

5. The notice to the opposite party duly served and represented by the counsel and filed version and affidavit in the complainant. In the version it is submitted that the opposite party society has acquired land in and around Ilavala, around 300 Acres for formation of residential layout. After acquiring the said land, in the year 2009, the Government of Karnatka passed a notification stating that for formation of satellite town parallel to Mysore city, including Nagavala village, under comprehensive development plan by the Muda. The land acquired by the opposite party society comes under the said area. The concerned authorities have not permitted the opposite party society for conversion of the land and for approval of layout plan, because of the above said comprehensive development plan. It is submitted that there is no fault on behalf of the opposite society. The opposite party society has also filed the letter dated 30.12.2009 issued by the Chief Secretary to the Government has been annexed to the version filed by the opposite party society as Annexure A for kind perusal of this Hon’ble forum.

6. It is submitted that the opposite party society has already formed residential layout at Mysore  in the layout know as Atmananda sagara phase 1,2,3 and 4 and they have also allotted around 1638 sites of different dimensions  in the said layout to its members. Due to comprehensive development plan, the further layout work has been stopped.

7. It is submitted that in the year 2016 the Government of Karnataka has approved the comprehensive Development plan and it has been published in Gazette Notification on 04.02.2016, for development of the Area and included in Muda. The land acquired by the opposite party society, now will not come under the said comprehensive development plan, now the society has already obtained conversion of land use remaining extent of 154 acres. The notification dated 04.02.2016 has been produced before this Hon’ble court for kind perusal. The delay is not due to negligence of the opposite party society, because of the Government notification, dated 30.12.2009.

8. It is submitted that it has been clearly informed to the complainant vide reply to his notice issued by the opposite society Now, the work is in progress and we have already got obtained layout plan for further development. There is no intention to stop the development of the project.

9. It is submitted that each and every fact has been intimated by the opposite party society to its members each and every time and the said letter, dated 02.01.2014, 26.12.2015 has been produced for kind perusal of this Hon’ble forum. Therefore, there is no intention to delay the project of formation of the residential layout.

10. It is submitted that the complainant 100% will get the site from the said layout without further delay. The complainant has to pay the last payment of Rs. 1,20,000/- once receipt of the said amount by the opposite party society, immediately she will get the site without further delay.

11. It is submitted that there is no intention to delay the development work of the site because of the government policy in the year 2012, the layout work has been stopped up to first week  of February 2016. Therefore, there is no delay on the part of the opposite party society.

12. It is submitted that when there is no fault on behalf of the opposite party society, there is no question of paying alleged compensation of Rs. 4,00,000/- a sum of Rs. 5,00,000/- towards mental trauma, tension, etc., and a sum of Rs. 15,000/- towards the cost of the proceedings. The opposite party prays for dismissed of complaint.

13. To prove the facts, the complainant and opposite party lead their evidence by filing affidavit along with documents. On perusal of the documents placed on board, and on hearing oral arguments, perused written arguments ,matter posted for orders.

14. The points that arise for our consideration are;-

1. Whether the complainant proves that there is deficiency in service and unfair trade practice on the part of opposite party by not allotting the site to the complainant and thereby he is entitled for the reliefs sought?

2. What order?

15. Our answer to the above points is as follows;

1. Point No.1: Partly in the affirmative.

2. Point No.2: As per final order for the following;

REASONS

16 . Point No.1:-  The complainant submitted that he become member of opposite party society on 23.04.2007 by paying membership fee of Rs. 1020/- and further totally he had paid a sum of Rs. 5,40,000/- to the opposite party to purchase site measuring 40 X 60 feet in the layout name “Athmananda Sagara “  and there after the opposite party after receiving consideration amount assured to allot the site even after lapse of one year the site was not allotted to complainant as per the assurance given by opposite party. The complainant has made several approaches to the opposite party seeking for the allotment of site. In spite of these the opposite party failed to allot the site as agreed by him. All these facts is not at all a disputed by the opposite party he only take to defence that since the complainant has not made the 3^rd instalment well within time. For that reason the site was not allotted to complainant. Further opposite party contends that the entire layout worked has been completed  to prove these facts regarding the completion of layout work the opposite party did not file any documents to show the same. The only document which is produced by opposite party is a letter issued by Gramapanchayath regarding release of sites except these no other documents is placed by the opposite party. To show that they have completed formation of the said layout work by looking these documents we cannot come conclusion that whatever defence taken by the opposite party is supported by cogent and convincing evidence.

17. Further opposite party did not produce the completion report of the said layout and also failed to produced CD, List of the released sites which was formed by the opposite party. The production of letter issued by Gramapanchayath does not reveal the completion of layout work thereby the opposite party failed to prove whether entire layout work is completed and same is ready for allotment to the respective members of opposite party society.

18. Further the opposite party contends that the delay in formation of said layout is due to Government policy and for different notifications of Government and for sanction and other permission is delayed. For that reason the delay is caused to complete the layout work. The document produced by opposite party does not support his contention it is only a Government order and other notification, these orders will not come in the way of formation of layout. The opposite party is trying use it as shield to escape the liability to pay compensation to the complainant. These orders and notification of Government has nothing to do with the formation of layout the opposite party is only taking shelter of these orders in order to patch up his latches of delay in formation of layout .

19. Further the opposite party did not produce not even a single document to show that he has demanded balance sale consideration of sites to the complainant. If at all if the layout was ready for allotment of sites defiantly the opposite party would have issued demand notice for the payment of balance sale consideration to their member as well as to the complainant. Here the non production of such documents and notice by the opposite party clearly established that the opposite party society has not corroborated their defence and whatever defence taken by him in stands as not proved.

20. Further the opposite party has miserable failed to prove that the said layout was ready for allotments the reason for non execution of sale deed is due to complainant failure to pay 3^rd   and final instalment sale consideration. When opposite party has utterly failed to establish these facts we can draw an adverse inference in favour of complainant as against opposite party that there is deficiency in service on the part of opposite party by not allotting the above sites in favour complainant as agreed by him.

21. For the above reasons by looking at the facts and documents produced by complainants has proved his case beyond reasonable doubt and also complainant proved that there is a deficiency  of service on the part of opposite party by doing unfair trade practice.

22. According to this forum we answered Point no.1 in the partly affirmative and pass the following:

23. Point no.2:- For the above discussion we here by proceed to pass the following:

ORDERS

1. The complaint is hereby allowed in part.

2. The complainant is hereby directed to pay the balance sale consideration amount towards the sites to the opposite party within 60 days of this order.

3. The opposite party is hereby directed to execute sale deed  to the  complainant in accordance with  seniority   and site measuring 40 X 60 situated at Athmananda Sagara layout Mysuru.  within 60 day of this order.

4. The opposite party is directed to pay a sum of Rs 1,00,000/-    towards mentally agony and Rs. 5,000/- towards litigation   expenses and   also a sum of Rs. 5,000/- towards unfair  trade practice  has to be   paid to the complainant within 60 days of this order.

5. In default the opposite party shall pay interest at 12% p.a. on the

said total sum of Rs. 1,10,000/- from the date of this order till payment.

6. In case of default to comply this order, the opposite parties shall

undergo imprisonment and also liable for fine under section 27 of  the C.P. Act, 1986.

7. Give the copies of this order to the parties, as per Rules.

(Dictated to the stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on the 20^th   January 2017)  

Shri Thammanna Y.S.,                                 Shri Ramachandra M.S.,    

          Member.                                                           President.                                             

LIST OF WITNESSES EXAMINED AND DOCUMENTS PRODUCED ON BEHALF OF COMPLAINANT

Evidence by way of affidavit on behalf of complainant:

CW-1           :   MATHEW .P NINAN

List of Documents Produced on behalf of complainant:

1        :         GPA executed by the complainant in favour of her attorney

2        :         Application for associated membership with OP society bearing

                   No 6491.

3        :         Application for purchase of site bearing No 6991

4        :         Receipt for having made payment of Rs. 5,31,420

5        :         Letter dated 10.09.2017 issued by the OP.

6        :         Legal notice issued dated 06.05.2016.

LIST OF WITNESSES EXAMINED AND DOCUMENTS PRODUCED ON BEHALF OF OP.

Evidence by way of affidavit on behalf of OP :

RW-1 :         B.S. MANJUNATH

List of Documents  Produced on behalf of OP :

1        :         Government notification dated 30.12.2009 for formation of

                   satellite town and extension of are.

2        :         Release of sites dated 07.03.2009.

3        :         Release of sites dated 26.05.2009

4        :         Release of sites dated 13.10.2009

5        :         Letter issued by the OP to its members dated 02.01.14

6        :         Letter issued by the OP to its members dated 26.12.15

5        :         Gazette notification dated 04.02.2016.

6        :         Reply dated 23.05.16 to the legal notice dated 06.05.16

Shri Thammanna Y.S.,                                 Shri Ramachandra M.S.,    

          Member.                                                            President.