BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 29^TH DAY OF JULY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This  complaint has been  filed  against  04 opposite parties  seeking direction against  OPs to execute registered sale deed as the complainant is ready to pay balance amount towards registration.

2.The case of the complainant in brief is as under:

The complainant has purchased site in installments from OP-1 Mallige International Pvt. Ltd., by having paid Rs.1,16,000/- in installments. She has not paid balance amount of Rs.5,000/- as Thyagarajan  from the company fails to collect the same. The complainant could not make payment due to illheath of her mother and her brother.

It is further case of the complainant that even though she was ready for registration of the sale deed, but OP-1 refused to execute registration of the site. The Managing Director B.D.Sannakki i.e.OP-4 was ready and willing to execute registered sale deed, but OP-2 &3 refused  execute registered sale deed. It is further case of the complainant that she has sent a registered letter on 06.08.2011 along cheque for Rs.9,000/- towards balance amount and interest at the rate of 8% p.a., but OPs fails to execute registered sale deed. She has also ready to pay the balance amount towards registered sale deed. The cause of action of the OPs amounts to deficiency of service. The OPs made complainant suffer  mentally and physically. Hence, this complaint. 

2. In response to the  notice, OP-1 to 4   appears and filed separate  versions.

3. OP-1  contends that OP-1 was incorporated on 24.01.1997 and being the company has purchased converted land at Singarahalli village and executed registered sale deeds in favour of its members to the tune of 300  sites.

4. OP-1 contends that  the complaint is not maintainable  and same is barred by limitation, even the complainant has paid installments towards purchase of site to OP-1, the complainant stopped making payments. OP-2 is founder director and financial director of the company and also the owner of the land has executed registered agreement of sale in favour of the company. Subsequently, OP-2 has executed two General Power of Attorneys in favour of OP-3 & 4, who are the other directors to OP-1. Later on the OP-2 cancelled his GPA executed in favour of OP-3 & 4.

5. OP-3 had filed OS/110/2004 on the file of Civil Judge(Jr.Dvn.)  & JMFC, Devanahalli and same was contested by OP-2  & OP-4.  The OP-3 compromised OS/110/2004 and OP-3 & 4 have entered into settlement  as per separate Memorandum of Understanding. The complaint is not maintainable. It is further case of the  OP that the complainant has not produced any documents to show for having paid Rs.9,000/- under registered letter dt.06.08.2011. The OP-1 requests to dismiss the complaint.

6. The OPs contends that  the complaint is not maintainable either in law or on facts and barred by limitation. OP-2 executed  has executed release deed in favour of B.D.Sannakki and others. According to the complainant, the cause of action to file the complaint arose on 02.11.2012. The OP-2 executed release deed dt.20.02.2012 in favour of OP-3 & 4, who accepted their complete responsibilities. The OPs has resigned as Director of the company dt.06.09.2003 which has been accepted by OP-3 & 4 by submitting Form-32. OP-2 is only formal party. OP-2 is not liable to execute any registered sale deed.

7. OP-3 contends that the complainant has filed frivolous, vexatious  complaint and not maintainable either in law or on facts. This complaint filed in collusion with OP-2 Y.R.Janardhan Rao and OP-4 B.D.Sannakki, he has filed O.S.110/2004 before Civil Judge (Jr.Dvn.),  & JMFC, Devanahalli against OP-2 & 3 and is not receiptant in collecting amount from the complainant. He denies payment of Rs.9,000/- cheque through registered letter dt.06.08.2011. He also denies that he was liable to execute registered sale deed and other allegations made by the complainant, he requests to dismiss the complaint.

8. OP-4 contends that the complaint against him is frivolous, vexatious  and not maintainable  either in law or on facts. The complaint is barred by limitation. He admits that complainant has purchased site with OP-1 and transaction relates to year 2001-04. OP-4 being the director has invested amount of Rs.15,00,000/- with the company. The complainant admits that he called upon the complainant to get the sale deed register and even though he was ready, OP-2 & 3 were not ready. He was not the Managing Director of the company. He had cheque signing authority and this problem has been created by other directors. The allegations made against him are not true. Therefore, he requests to dismiss the complaint.

9. The complainant files affidavit evidence and relys on certain documents. The OP-2 files his affidavit evidence, additional affidavit  evidence and relys on certain documents. OP-3 has also files his affidavit evidence  and relys on certain documents. OP-4 has also files his affidavit evidence.

10.           Heard the arguments of parties. Perused records.

7. The following points arise for our consideration are as under:-

1. Whether the complaint is maintainable?
2. Whether the complainant proves deficiency in service on the part of the OPs?
3. Whether the complainant is entitled for the reliefs as mentioned in the complaint?
4. What order?

8. Our answer to the above points are as under:

       Point No.1:-Negative.

      Point no.2&3:- Does not survive for consideraion.

      Point No.4:-As per the final order.

REASONS

9. Point Nos.1 and 2:. Even though the complainant has purchased the site from the OPs by paying Rs.1,16,000/- in installments, but she asserts  that the OPs were fails to execute registered sale deed. The complainant seeks relief against OPs to direct the OPs to execute registered sale deed in respect of the site.

10. In view of these pleadings direction for execution of registered sale deed in respect of the site the question arises about maintainability of the complaint.  It is one of the contentions of the OPs that the complaint is barred by limitation requires common discussions.

11. According to the complainant, she started paying installments since 15.11.1996 and paid Rs.1,16,000/-. The payment of Rs.1,16,000/- to the OP-1 company is not in dispute. According to the complainant she could not paid balance amount of Rs.5,000/- due to domestic problem and illhealth of her mother and brother. She has specifically asserts that she has sent registered letter dt.06.08.2011 with cheque for Rs.9,000/- which includs balance amount of Rs.5,000/- and interest at the rate of 8% p.a. This  payment of Rs.9,000/- has not been proved. There is no evidence to show that OP-2 to 4 have received any amount in their individual capacity. It is not the case of the complainant that she has paid Rs.1,16,000/- to OP-2 to 4 in individual capacity. The copies of payment receipts indicates that OP-1 company received the amount in installments from the complainant  between 1996 to till  30……/2020….  The complainant has produced copy of the letter dt, 11.04.2000 in favour of OP-1 Mallige International Project Ltd., but complainant produced the letter dt.06.08.2011 and postal acknowledgement of Managing Director of OP-1 dt.09.08.2011 it can be easily held that OP-1 alone received entire amount from the complainant, but OP-1 company fails to execute registered sale deed.

12. It is relevant to note that the registered sale deed came to be executed between OPs represented by its Chairman OP-3 and Managing Director B.D.Sannkki OP-4 and OP-2 J.R.Janardhan Rao. The 1^st party Mallige International Pvt. Ltd may discloses that present OP-2 is not responsible and liable towards 1^st party. Clause(9) further indicates that 1^st party shall alone liable to conduct formation of the layout. Under such circumstances, OP-2 is not liable to the complaint.

13. It is also one of the contentions of the OP-2 that on 16.09.2003 he has submitted his resignation letter, which has been accepted. The copy of Form-32 indicates that registrar of companies may………….. that Y.R.Janardhan Rao i.e. OP-2 resigned and ceased to be director, but this fact is not controverted by the complainant. OP-2 has produced  the copy of the letter issued by Government of India, Ministry of Corporate Affairs dt. 18.11.2009 about receipt of Form-32 from Y.R.Janardhan Rao. It is not the case of the complainant that OP-2 Y.R.Janardhan Rao   official relationship with OP-1.

14. OP-2 has reiterated the facts pleaded in the version and in his affidavit evidence. He relys on six documents. Document no.1 copy of legal notice dt.19.11.2009 addressed to the OP-1, 3 & 4 indicates that he has not personally liable for the transaction. OP-3 & 4 have not disputed these facts. The document no.2 is the copy of cancelled registered power of attorney is indicates that the OP-2  get cancelled/ revocation of his power of attorney executed in favour of OP-1 company. Similarly on the same day another cancellation/revocation of the power of attorney  came to be executed by OP-2 cancelling his earlier registered power of attorney  dt.18.02.2002.  Document no.4 is the copy of order of Deputy Commissioner, Bengaluru Rural District in the matter between Pilleakkaiahmmai and Y.R.Janardhan Rao and others. The order of the Tahasildhar came to be set-aside and matter was remanded to the Tahasildar. Document no.5 indicates that OP-2 had filed Writ Petition No.45733/2011 before the Hon’ble High Court of Karnataka against the Revenue officials  and Pilla Akkayyamma, but outcome of these proceedings has not produced  and the order of Deputy Commissioner dt.26.03.2011 was challenged before the Hon’ble High Court of Karnataka.

15. OP-3 not only reiterated  the facts pleaded in the version and relys on 07 documents. Document no.1 is copy of sale deed dt.07.02.2001 executed by OP-2 in favour of Managing Director of OP-1 represented by B.D.Sannkki represent by OP-4.  Similarly, other  sale deed and document no.3 to 7 came to be executed by OP-2 Y.R.Janardhan Rao in favour of Mallige International Pvt. Ltd. OP-2 represented by OP-4. These documents donot indicates personal involvement of OP-3.

16. It is admitted and proved fact that  on 17.12.2008 case was registered at Crime no.44/2008 in Vishwanathapura Police Station against OP-3 and 4 representative of OP-1 for offence punishable under section 403,406,420,426 and 34 of IPC. OP-2 was not party to the proceedings. The police have seized certain documents  under mahazar. The OP-3 & 4 have not disputed these facts.

17. It is specific contentions of OPs that the complaint is barred by limitation. OPs have produced letter dt.28.11.2003 addressed to the complainant calling the complainant to pay 3% of total value of the site as penalty for completion of the registration of allotted site, but on 15.10.2001 the reminder was issued to the complainant admitting the payment of Rs.1,16,000/- and called upon the complainant to make the balance payment. Accordingly, the complainant has tendered balance amount only on 06.08.2011 i.e. after lapse of about 09 years. Even thought the complainant asserts that due to domestic problems  of illhealth of her mother and brother she could not make balance  payment, but she has not furnished details of nature  of illhealth of her mother and brother. The complainant  came to know that on 15.10.2001 she was supposed to pay balance amount at last. Even after receipt of this notice, the complainant remains silent. Subsequent payment on 06.08.2011  did not save  the limitation. Therefore, OPs saying that the complaint is barred by limitation.

18. OP-1 & 4 relys on decision of the Hon’ble Supreme court of India in Civil Appeal no.2067/2002 in the matter State Bank of India V/s B.S.Agriculture industries  and judgment in Civil Appeal no. 4962/2002 in the matter between Kandimal…..  v/s National Insurance Company. The decision of Hon’ble Supreme court in Francis B.Marthin and another V/s … ….dt.24.08.1999.

The order  of Haryana  State Commission in the matter between Amrith Singh V/s Huyndai  Motors India ltd dt.17.08.2017.

19. The complainant has suppressed the  letter on 2001 between calling her to pay the balance and obtain registered sale deed. The complainant neither paid balance amount within 02 years nor filed complaint within 02 years from 2001. More over application under section 24(A) of Consumer Protection Act, 1986 has been filed. The complaint is not only barred by limitation, but the complainant has not shown  any sufficient cause to condone the delay by filing application under section 24(A) of C.P.Act, 1986.

20. The OP-2 has produced copy of order of Hon’ble National Consumer Disputes Redressal Commission in CC/140/2009 in the matter  between………………..  Sahakari bank Ltd., in (I) 2008 CPJ 76. Order in Cri.RP/1004/2002 to 1013/2002 dt. 08.04.2009 in the matter between B.N.Koushik…. register of Companies. AIR (2002) Bombay 194 in the matter between Soumya Dilip…. V/s State of Maharastra.

21. As indicated in the proceedings paragraphs the OP-2 came and resigned to the Director of OP company, which has been accepted by Ministry of Corporate affairs. On the date of filing of this complaint, there was no relationship of OP-1 and OP-2. Therefore, on the date of filing complaint against OP-2 was not maintainable.

22. It is admitted that OP-1 company is a registered company. When during the pendency of these proceedings the name of the OP-1 company deleted in the order dt.12.10.2017. OP-1 to 4 have filed memo with copy of gazette notification dt.03.11.2017, which indicates that name of the Company at sy. no. 3863  U70102KA1997PTC021696 Mallige International Pvt. Ltd., came to be deleted. Since 05.11.2017 OP company is no more existence. OP-1 company not in existence, any person connected to say as director no more remains with  OP-1 in the companies official dealings. On these two  grounds the complaint requires to be dismissed. He also relevant to note that the complaint is filed to direct the OP to execute registered sale deed in respect of the site. It means the complainant is falls and  direction the transaction  in respect of site business does not fallen under section 2(1)(o) at definition of services of the Consumer Protection Act, 1986. The Hon’ble Supreme court has categorically ruled that in case falls transaction in respect of agriculture land and site business falls under purview of C.P.Act. This reasons is supported by following decisions.

1. Ganesh lal
2.  

In view of the above decisions, the complaint is not maintainable.

23. Point no.2&3:-. In view of the discussion in point no.1, the complainant is not entitled to reliefs mentioned in the complaint. When the complaint is not maintainable due to limited or other reasons stated in point no.1, the question of deficiency of service does not survive for consideration. Therefore, we answer the these points accordingly.

24. Point no.4: In view of the discussions referred above, the complaint is barred by limitation and not maintainable.  Accordingly, we proceed to pass the following 

O R D E R

1. The complaint is dismissed as barred by limitation and not maintainable.
2. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 29^th  day of July, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :