By Jayasree Kallat, Member:<br /> <br /> The case was originally numbered C.D.R.F., Kannur as O.P.476/99. It was received here as a transfer case on 27-8-05 as numbered as O.P.282/05.<br /> <br /> The complaint is filed alleging negligence, deficiency in service and unfair trade practice against the opposite party and petitioner is seeking compensation from opposite party for the delay in disbursing the prized money of the chitty due to the complainant. The case of the complainant is that complainant was a subscriber to chitty No.8/97, Ticket No.27 conducted by second opposite party. First opposite party is the Head Office of the second opposite party. Above chitty ticket was prized on 15-11-97, immediately complainant approached the second opposite party for getting realized the amount. Opposite party No.2 assured that the amount will be paid within four days. Believing the words of second opposite party, complainant entered into a sale agreement on 10-12-97 for purchase of land from Murukumkuzhiyil Joseph in respect of 30 cents situated in R.S. No.34/5 in Payem Village for consideration of Rs.1,35,000/-. Out of that Rs.35000/- already paid as advance balance has to be paid on or before 10-2-98 for execution and registeration of sale deed in favour of complainant. After few days second opposite party asked this complainant to secure immovable property instead of personal guarantee. Accordingly complainant submitted the title deeds, rent receipt, possession certificate, Encumbrance certificate etc. on 19-12-97. It was requested by the complainant to pay the chitty amount before 5-2-98, the sale deed is to be registered on that date. As per the direction by the opposite party-2 complainant paid valuation fee of Rs.200/-. Legal opinion in respect of scrutiny of title deeds was received by second opposite party on 27-12-97. Valuation report received on 8-1-98. Afterwords second opposite party did not give any response inspite of repeated demands. Second opposite party paid the chitty amount on 21-4-98 after long delay. As the complainant could not pay the amount of consideration, sale agreement was repudiated on account of the breach of contract on the side of complainant. Accordingly the advance amount paid by the complainant was forfeited. This happened due to the irresponsible attitude and gross negligence on the part of the second opposite party. So the complainant seeking compensation of Rs.35000/- from the opposite party No.2 with cost of Rs.2000/-.<br /> <br /> The opposite party filed a version denying all the material averments in the petition other than the facts expressly admitted. Opposite party also had taken the view that the alleged dispute is not a consumer dispute. Opposite party admits the fact that complainant is a ticket holder having numbers 26 and 27 in chitty No.8/97 conducted by the second opposite party. For releasing the auctioned chitty amount the complainant had to submit sufficient security. The complainant opted for the security of equitable mortgage. He had submitted the documents required on 19-12-97. Valuation of the property was completed on 5-1-98. Legal opinion was obtained on 19-1-98 at that time it came to the notice of the company that the property proposed to be pledged are let out on rent and is not in possession of the title holder, the complainant. So the complainant was directed to produce no objection certificate from the tenant. He submitted the no objection certificate on 21-4-98. The amount was disbursed on 23-4-98 the opposite party has disbursed the amount as soon as they received the N.O.C. The complainant produced necessary documents for executing a valid equitable mortgage only on 21-4-98. The amount was disbursed on 23-4-98. If at all any delay has happened it was due to the negligence on the part of the complainant. Chitty No.26 in 8/97 was auctioned by the complainant on 16-7-08. Opposite party has paid the amount within 45 days of auctioning the chitty. The alleged loss claimed by the complainant that he could not complete the purchase of property from one Joy Joseph as he could not pay the full amount in time, and this has caused because of the delay in disbursing auctioned amount to the complainant is absolutely false. Opposite party also alleged that after receiving the amount the complainant failed to remit the monthly subscription and became a defaulty. It shows that the complainant has approached the Forum without clear hands. Hence the claim of the complainant alleging deficiency n service and unfair trade practice on the part of the opposite parties are totally baseless and the complaint is to be dismissed.<br /> <br /> The points for consideration is (1) whether the complainant is a consumer? (2) Whether there was any deficiency on the part of opposite party? (3) Whether the complainant is entitled to get any relief?<br /> <br /> PW1 was examined and Ext. P1 to P12 were marked on complainant’s side. Opposite party was examined as RW1 and Ext. B1 to B4 were marked on opposite party’s side.<br /> <br /> Point No.1:-<br /> <br /> The complainant was the subscriber of the chitty conducted by the second opposite party. The opposite party has taken the view that the complainant will not come under the purview of Consumer Protection Act. The opposite party is conducting the chitty receiving the subscription from the subscribers and opposite party running the chitty for monitory benefit. The money subscribed can be taken as consideration to opposite party and the subscribers availing the service of the opposite party. Hence the complainant will come under the purview of Consumer Protection Act. Accordingly point No.1 is proved.<br /> <br /> Point No.2:-<br /> <br /> The case of the complainant is that the complainant was a subscriber of chitty conducted by the opposite party. The chitty was prized on 15-11-97. The complainant had approached the second opposite party immediately with papers of personal guarantee and opposite party had promised to pay the amount within four days. Anticipating this amount the complainant had entered into a sale agreement on 10-12-97 for purchase of land from one Joseph. He had paid an amount of Rs.35000/- as advance. The sale deed was to be executed on or before 10-2-98. The complainant alleges that opposite party had delayed the chitty amount payment and hence the complainant could not execute the sale deed in connection with the sale agreement for buying the property. This delay has occurred due to the negligence and deficiency on the part of the opposite parties. In answer to this allegation made by the complainant, the opposite party contends that there was no delay in making payment to the complainant. For releasing the chitty amount the complainant had to submit sufficient security. The complainant had opted for the security of equitable mortgage by creating charge of the immovable property. He submitted documents required under law on 19-12-97. Valuation of the property was completed on 5-1-98. The legal opinion was obtained on 19-1-98. At that time it came to the notice of the opposite party that the property proposed to be pledged are let out on rent and is not in the possession of the complainant. So he was directed to produce NOC. On 21-4-98 Ext.B4NOC was produced by complainant. The amount was disbursed on 23-4-98. Opposit party contents that the document Ext.B4 is vital document which shows that complainant had submitted the NOC on 21-4-98 and the amount was disbursed on 23-4-98 which shows that there was no negligence, deficiency of service or delay on the part of the opposite party in disbursing the amount. If at all the delay had happened it was because of the negligence on the part of the complainant. The opposite party has paid the amount within 3 days of receiving proper security. Ext. B4 shows that the opposite parties were prompt in disbursing the amount on production of proper security. On a perusal of the original Ext.B4 documents Forum has been convinced that there was no deficiency or negligence on the part of the opposite party, opposite party had disbursed the amount without any delay as soon as complainant had submitted Ext.B4 NOC to opposite party. It shows that there was no deficiency on the part of the opposite party.<br /> <br /> Point No.3:-<br /> <br /> There was no deficiency or delay on the part of the opposite parties. Hence the complainant is not entitled to get any relief from opposite party.<br /> <br /> In the result the petition is dismissed.<br /> <br /> Pronounced in the open court this the 16th day of July 2008.<br /> <br /> Sd/- Sd/- Sd/-<br /> PRESIDENT MEMBER MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> APPENDIX<br /> <br /> Documents exhibited for the complainant<br /> <br /> P1. Photocopy of agreement dt. 10-12-97.<br /> P2. Photocopy of agreement dt. 23-10-80.<br /> P3. Photocopy of Pattaya.<br /> P4. Photocopy of Ownership certificate dt. 17-12-97.<br /> P5. Photocopy of Encumbrance certificate.<br /> P6. Photocopy of residential certificate dt. 17-12-97.<br /> P7. Photocopy of receipt dt. 19-12-97.<br /> P8. Photocopy of letter dt. 17-12-97.<br /> P9. Photocopy of Donation receipt.<br /> P10. Photocopy of order in O.A.172/71.<br /> P11. Photocopy of notice dt. 6-4-99.<br /> P12. Photocopy of Reply notice dt. 17-5-99.<br /> <br /> Documents exhibited for the opposite party.<br /> <br /> B1. Copy of variyola.<br /> B2 series. Photocopy of Default notices.<br /> B3. Photocopy of communication letter.<br /> B4. No Objection certificate.<br /> <br /> Witness examined for the complainant.<br /> PW1. Augusty Mathew (Complainant)<br /> <br /> Witness examined for the opposite party.<br /> RW1. Mathew Joseph, Asst. Manager of O.P.<br /> <br /> Sd/- President<br /> // True Copy //<br /> <br /> (Forwarded/By order)<br /> <br /> SENIOR SUPERINTENDENT.<br /> <br /> <br />