IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 399/09 DATED 18.12.2009<br /> ORDER<br /> <br /> Complainant Smt. A. Jayalakshmi S/o K. Jithendra, R/at No.540, North Park, Avenue (Near 7th ‘B’ Cross), 2nd cross, Roopanagar, Mysore.<br /> <br /> (By Sri. K.N.M. Advocate)<br /> <br /> Vs. <br /> Opposite Party 1. The President, Madhuvana House Building Co-operative Society Ltd., At No.3, 4, 5, 3rd cross, Manasara Road, Indiranagar, Mysore-570010.<br /> <br /> 2. The Secretary, Madhuvana House Building Co-operative Society Ltd., At No.3, 4, 5, 3rd cross, Manasara Road, Indiranagar, Mysore-570010.<br /> ( By Sri. Sridhar Chakke for O.P.2, O.P.1 is exparte.)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 30.10.2009<br /> Date of appearance of O.P. : 16.11.2009<br /> Date of order : 18.12.2009<br /> Duration of Proceeding : 1 Month 2 days<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint against the opposite parties, seeking a direction to allot a site measuring 40 X 60 feet in the layout formed by them at Sathagalli Village, Mysore Taluk, Mysore as per provisional allotment letter dated 20.09.1996 and to execute necessary Title Deeds.<br /> <br /> 2. In the complaint amongst other facts it alleged that, the opposite party is House Building Co-operative Society as per the letter dated 20.09.1996, made provisional allotment of site measuring 40 X 60 feet in the lay out formed by it at Sathagally village, Mysore Taluk, Mysore. The complainant paid site value of Rs.59,000/- to the society in the year 1996 itself. The society thereafter has not made regular allotment of the site. It is stated that, the complainant is ready to pay additional amount, if any the cost of the site. The opposite party society has been allotting site to it’s other members and executing Sale Deeds in their favour. In spite of vacant sites available in said allotment, the society has not allotted any site to the complainant. The complainant made requests to the society and even sent notice, but the request has not been considered and hence, there is deficiency in service on the part of the society. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The opposite parties in the version admitted provisional allotment to the complainant and payment of Rs.59,000/-. Certain allegations in the complaint has denied. Further, it is contended by the opposite parties that, the complainant miserably failed to come forward to make payment of the site value in time, in spite of the communications. It is stated that, no site at Sathagalli layout is now available for allotment to the complainant. Also it is contended, the complaint is barred by limitation. Hence, it is prayed to dismiss the complaint.<br /> 4. Complainant has filed her affidavit narrating the facts alleging in the complaint and she has produced certain documents. On the other hand, for the opposite parties one Shrenika has filed his affidavit narrating the facts stated in the version and produced certain documents. We have heard the arguments of the learned advocate for the complainant and the opposite parties and perused the records.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved that, there is deficiency in service on the part the opposite parties and that she is entitled to the reliefs sought?<br /> 2. What order?<br /> 6. Our findings are as under:-<br /> Point no.1 : Partly affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> 7. Point no. 1:- The fact that, in the year 1996, the opposite party society made provisional allotment of site measuring 40 X 60 feet to the complainant and in the said year, the complainant paid value of the site amounting to Rs.59,000/-, is admitted.<br /> <br /> 8. The main contention of the opposite party is that, the complainant did not pay the value of the site in time, despite the communications and hence, she is not entitled to the site. The communications are referred to in 3rd paragraph of the version, such as General Body Notice, public notices in news papers. But in law same cannot be held, as sufficient notice that the society had called upon particularly the complainant to pay any amount. At the cost of the repetition, it is definite and specific case of the complainant that, in the year 1996 itself, she paid the value of the site amounting to Rs.59,000/-. Under the circumstances, unless and until the opposite party society prove that, particular sum was due from the complainant and despite due service of notice of demand she failed to pay, cannot escape from the liability. For the opposite party, a Xerox copy of reminder is produced. Firstly, it is general reminder, may be to all the members and further, the second page is not clear and legible to be read and thirdly, as claimed there is no evidence to prove that, said notice was duly acknowledged by the complainant. Hence, the contention of the opposite party society that, in spite of communications the complainant did not make the payment of the value of the site in time, cannot be accept.<br /> <br /> 9. It is alleged by the complainant that, despite the fact that, sites are available in the said layout and the society is allotting and executing Registered Sale Deeds to other members, has not allotted any site to her. On the other hand, opposite parties in the version, have contended that, no sites are available for allotment to the complainant. Respective facts are stated by the respective parties in their affidavits. But, the opposite party has not produced any documents to show that, in fact all the sites, which were formed in the said layout, have been already allotted to others and no site is available. No reasons are assigned by the opposite party society as to why no documents are produced. Under the circumstances, the contention of the opposite party society cannot be accepted. However, in fact ultimately it is found that, no site is available for allotment to the complainant, as a precaution, an alternative order needs to be made.<br /> <br /> 10. The opposite parties have contended that, the complaint is barred by limitation, but considering the fact alleged in the complaint and the material on record, the complainant is in time. Considering the facts and the material on record, the complainant has established deficiency in service on the part of the opposite parties. Accordingly, our finding on the point is partly in affirmative.<br /> <br /> <br /> 11. Point No. 2:- From the discussion made above and conclusion arrived at, we pass the following order.<br /> <br /> ORDER <br /> 1. The complaint is partly allowed.<br /> 2. The opposite parties are hereby directed to allot a site measuring 40 X 60 feet to the complainant as per the provisional allotment letter dated 20.09.1996, within a month from the date of the order by collecting the amount, if any due from the complainant.<br /> 3. In the alternative further it is ordered that, if the opposite party society formed any other layout due and the complainant is ready to opt for a site of the said layout, the opposite party society shall allot a site to the complainant collecting the value of the site less the amount already paid with the interest their on at the rate of 18% p.a.<br /> 4. If a site is allotted as ordered above, the opposite party society shall also execute Registered Sale Deed in favour of the complainant in respect of the said site at the cost of the complainant.<br /> 5. In the further alternative, if for any reasons site cannot be allotted to the complainant the opposite parties are hereby directed to refund Rs.59,000/- to the complainant within two months from the date of the order with interest at the rate of 18% p.a. from 20.09.1996, till realization of the entire amount.<br /> 6. The opposite parties also shall pay a sum of Rs.2,000/- cost of the proceedings to the complainant.<br /> 7. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 18th December 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br />