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

Consumer Complaint (C.C.)No. 1203/2016

Complaint filed on 27.04.2016

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. Mrs. K. Subramanyam

S/o Late.S. Krishnamurthy Rao,

# 79, 8^th   Main  Jayalakshmipuram,

Mysore.

                                                           (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 the complaint 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 representation of the opposite party, became a member of their society by paying a membership fee on Rs. 1020/- vide receipt no 54779, dated 28.03.2007 and her membership number is A -23263. The complainant submits that she has totally paid a sum of Rs. 5,47,200/- to the opposite party whenever they have demanded and further the site the complainant intended to purchase is measuring 40 fee X 60 feet in layout named as  “Kuberananda Sagara”. That at the time of receiving the said the sale consideration, the opposite party assured the complainant that the registration would be done soon and that they would given possession of the opposite party. 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. In this regard several personal visits have been made by the complainant, the fact of which the opposite party is well aware of. That in addition to the earlier visits again in the last week of January 2016, the complainant visited the good office of the opposite party and enquired about the registration of the said site for which the opposite party has assured to execute the sale deed by February 2016.Hence this complaint prays for allotment of site and seeking other reliefs.

4. 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 complainant has also made payment total amount of Rs.5,47,200/- to the opposite party society for getting the site.

5. It is submitted that in the year 2012, the opposite party society has allotted the site bearing No.33 measuring 40X60 feet, in the layout known as “Kuberananda Sagara “Mysore and informed the complainant to register the sale deed in his name.

6. It is submitted that the complainant had requested the opposite party society by giving letter, dated 28.03.2012 and he has admitted the allotment of the site in “Kuberananda Sagara”  and he has requested to change the layout known as “Brahmananda Sagara “ having new membership No A-23263. The opposite party has considered his request and transferred the application form “Kuberananda Sagara” to “Brahmananda Sagara layout and the payment made by the complainant has been adjusted to the said layout.

7. It is submitted that due to request of the complainant, the opposite party society has changed the layout  for allotting the site as per his request and there is no fault on behalf of the opposite party society. The opposite party society is ready to executed sale deed in the year 2012 itself in the earlier layout known as “Kuberananda Sagara” 

8. It is submitted that the layout work is in progress and once completed the layout and all civic amenities, the opposite party society will get release of sites from the authority, allot the same to the complainant on the basis of seniority. The registration of site has already been commenced and he will get in short time.

9. It is submitted that the opposite party society has given reply to his legal notice, dated 06.04.2016 and explained clearly. Now, this is the attitude of the member to cause unnecessary hardship to the opposite party society. The opposite party society has never delayed the layout work. The site value of the said layout is more than 2% over and above the deposited amount and the complainant is also benefitted.

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

11. 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, and prays for the dismissal of complaint.

12. 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.

13. 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?

14. 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

15 . Point No.1:-  The complainant submitted that he become member of opposite party society on 28.03.2007 by paying membership fee of Rs. 1020/- and further totally he had paid a sum of Rs. 5,47,200/- to the opposite party to purchase site measuring 40 X 60 feet in the layout name “Kuberananda 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 these facts regarding the completion of layout work the opposite party did not file any documents to show the same. The opposite party failed to produced any other documents. To show that they have completed formation of the said layout work, in the absence of any document in support of defence contentions,  we cannot come conclusion that whatever defence taken by the opposite party is supported by cogent and convincing evidence.

16. 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 they failed to prove whether entire layout work is completed and same is ready for allotment to the respective members of opposite party society as well as the complainant.

17. Further the opposite party has miserable failed to prove that the said layout was ready for allotment to the complainant. When opposite party has utterly failed to establish the reason for delay in formation of layout as contended in the version, When such being the case the defence taken by opposite party has to be rejected and 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.

18. 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.

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

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

ORDER

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 list  and site measuring 40 X 60 situated at Kuberananda 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           :   Mrs. K. Subramanyam

List Documents Prodced  on behalf of complainant:

1        :         Application for membership dated 28.03.2007 with the OP

2        :         Application for site dated 28.03.2007 with OP

3        :         Payment receipts

4        :         Letter issued by the OP dated 11.01.2013

5        :         Change in membership letter dated 28.03.12      

6        :         Receipts for the new site

7        :         Legal notice and postal win down coupon dated 07.04.16

8        :         Reply notice dated 18.04.2016.        

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 :

Nil

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

          Member.                                                                                         President.