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

Consumer Complaint (C.C.)No. 1201/2016

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. S.Bhojaraju

S/o S.Ramalinga Raju

 # 335/1, 14^th cross,

 Sadashivangara

 Bangalore.

                                                         (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  and 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 representation of the opposite party, became a member of their society by paying a membership fee on Rs. 1020/- vide receipt no 63384, dated 28.02.2007 and his membership number is A-23180. The complainant submits that he has totally paid a sum of Rs. 6,16,000/- to the opposite party whenever they have demanded and further the site the complainant intended to purchase is measuring 50 fee X 80 feet in layout named as Athmananda 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 dully severed and represented by the counsel and filed version and affidavit in the complainant. In the version it is submitted that the complainant has paid only Rs. 6,16,000/- and he is due a remaining balance  of  Rs. 7,92,000/- towards the allotment of the site. In this context, it is made very clear that in the conditions of the opposite party society, the condition number 7 clearly says that membership of the society showing confirm the entitlement for allotment of the site.

5. It is also submitted that it has been made very clear that the seniority for the allotment of the site shall be made on the deposits made by the parties and the seniority of the membership will b counted on the basis of the last payment. Admittedly, the complainant is still due a sum of Rs. 7,92,000/- towards the total price of the site to be allotted and the said fact has already made clear to the complainant for their notice issued to the opposite party society on 06.04.2006 and the similar contentions has been taken out on the statement to objections to the main petition and also the evidence of the opposite party in the form of affidavit duly sworn by its secretary , which is taken on the record by this Hon’ble court on 07.11.2006. Hence , it is very clear that the complainant is still due  a sum of Rs. 7,92,000/- and as soon as the said amount has been received by the opposite party society, the opposite party will issue the allotment letter as well as the sale deed and the contention of the complainant for the opposite party society is simply dragging on the proceedings is not at all sustainable in the eye of law taken both in the statement of objections to the main petition as  well as supporting affidavit duly sworn by the secretary and filed before this Hon’ble court at the time of opposite parties evidence.

6. It is submitted that has already made clear, several sale deeds have already been registered and during the personal interest of the complainant with opposite party society, the other fact has been brought to the notice and it is also made clear that amongst 1426 sites formed in the above said layout, the sale deeds have been executed in favour of the members and total 1073 sale deeds have been executed to members on the basis of the seniority.

7. It is further submitted that the complainant has not made the last and third instalment and hence, his name has not been shown in the seniority list and there is no intention to delay the allotment. The opposite party society is ready to execute the sale deed and to issue the allotment letter is not received in the above said complainant account.

8. It is submitted that the further allegation that Rs. 4,00,000/- may kindly be ordered for executing in ordinate delay and also the further  sum of Rs. 5,00,000/- towards the cost of the proceedings and compensation for having caused mental trauma, tension and hardship and in convenience is not at all supported by any mysteries and the said allegation is only to get the unjust compensation by the opposite party in favour of the complainant.

9. It is again submitted that the opposite party has not at all caused any in ordinate delay and there is no lacuna and the complainant has miserably failed to establish any deficiency on behalf of the opposite party society. Hence, it is prayed that the complainant may kindly be dismissed with costs.

10. 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.

11. 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?

12. 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

13 . Point No.1:-  The complainant submitted that he become member of opposite party society on 28.02.2007 by paying membership fee of Rs. 1020/- and further totally he had paid a sum of Rs. 6,16,000/- to the opposite party to purchase site measuring 50 X 80 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 his only defence is 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 work, 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 this no other documents is placed by the opposite party. To show that they have completed formation of the said layout work, by looking at these documents we cannot come conclusion that whatever defence taken by the opposite party is supported by cogent and convincing evidence.

14. 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 complainant.

15. Further the opposite party did not produce 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 has not corroborated their defence and whatever defence taken by him is stands as not proved.

16. Further the opposite party has miserable failed to prove that the said layout was ready for allotment. The reason for non execution of sale deed is due to complainant failure to pay 3^rd installment of 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 opposite party.

17. 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.

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

19. 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 complaint 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 50 X 80 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           :   S.BHOJARAJU

List of Documents on Produced behalf of complainant:

1        :         Application for membership with the OP.No. 30724

2        :         Application for site no 30724 dated 14.03.2007 with OP

3        :         Receipt for having made payment of Rs 1020 dated

                   28.02.2007 towards membership

4:                Receipt for having made payment of Rs, 3,20,000/-dated

                   28.02.2007 towards the site

5        :         Receipt for having made payment of  Rs. 2,96,000/- dated                         02.06.2007 towards site.

6        :         Legal notice got issued by the complainant dated

                   06.04.2016 along with postal window coupon.

7        :         Reply dated 18.04.2016 tendered by opposite party.

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. Letter dated  13.10.2009
2. Letter dated 13.10.2009
3. Letter dated 04.03.2010
4. Reply to the Legal notice dated 18.04.2016         
5. Copy of application                 

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

          Member.                                                            President.