BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 31^st August 2015           

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.:  143/2015 

Complainant/s:       Smt.Manjula W/o.Shivaputrappa Pujar,

Age: 58 years, Occ: Housewife, R/o.S.T.Pujar, Plot No. B 17/2, Heggeri Colony, Hubli-24.

                                (By Sri.I.C.Patil, Adv.)

v/s

Respondent/s:         MRSS. Golden Homes Trading Corporation,       A proprietary concern by its Proprietor Sri.Mila M.Parika, having registered office at No.405, 4^th floor, Parvathi Plaza, Richmond Circle, Bangalore 560025 and Branch office, #18, Laxmi Narayan Zone,  Karwar Road, Hubli 580024.

(By Sri.B.S.Hoskeri, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to provide residential site with basic amenities by obtaining completion certificate from competent authority and to execute registed sale deed of the allotted plot and to deliver possession, to pay Rs.10 lakh towards cost of the escalation  cost of the construction due to delay, to pay Rs.50000/- as compensation for mental agony, to pay Rs.15000/- towards cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, the complainant in order to own their residential house approached the respondent and become registered member of respondent project and entered with an agreement on 30.12.2006 to allot plot site with basic amenities to construct house measuring 2400 sq.ft plot for a consideration of Rs.2 lakhs on monthly installment of Rs.3000 each in 60 monthly installment. Accordingly the respondent by acknowledging the receipt of the consideration executed the sale agreement and assured she will be given HDUDA approved basic amenities plot. In view of the agreement on 02.06.2009 the respondent also issued letter to the complainant assuring full swing development of the layout and deliver the plot by completion of all amenities work in the same year. On 24.10.2009 the respondent allotted plot no.11 in the layout by name Golden hill lock developed in Sy.no.70, 71, 72 and 17A in a plot total measuring 83 acres 5 guntas in Mauna village of chabbi hobli, Dharwad district. The allotted plot no.11 is not suitable for construction of residential house as it is situated beside nala and at the dead end of the plot as the respondent has not given proper way to pass nala water. The respondent received entire consideration as per the agreement. At the time of agreement the respondent had agreed to deliver fully developed plot in Karwar road within 4 years from the date of agreement but despite of 9 years lapsed the respondent did not keep up his promise and deliver the possession as per the assurance so far. The respondent did not handover the fully developed plot to HDMC and so far not obtained CC which amounts to violation of rules and regulations of HDUDA. The non execution of sale deed by receiving full consideration amounts to deficiency in service. At the instance of the respondent the complainant put to great hardship as she could not able to own her house as she wish for residential purpose for herself and for her family members. Since the respondent had delayed, the house construction cost has escalated as such the complainant subjected to hardship and mental harassment. The act of the respondent amounts to deficiency in service and unfair trade practice. Hence, the complainant filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondents taken contention that, the complainant is not a consumer and the complaint is devoid of merits and the averments made in the complaint are all false, and untenable . Further the respondent also taken contention that there is no cause of action and the complaint as brought is barred under limitation point even in the IA filed U/s.24 (A) the complainant has not specifically made out sufficient grounds to condone the delay. As such IA filed along with complaint to condone the delay is not sustainable instead prays for dismissal of the complaint itself in limine. While the respondent admits the payment of the consideration but denies those payment are made as scheduled intime as undertaken by the complainant in the agreement. Further taken contention that the final payment made only in the year 2009 and as such delay is not on the part of respondent. However the respondent by its letter dt.24.10.2009 has allotted plot no.11 as agreed as such question of committing deficiency in service by the respondent do not arise. Among such other admissions and denials the respondent pleaded the complainant is making inconsistence pleas on one hand the complainant is taking contention that the respondent not developed the plot as undertaken. On the other hand the complainant is pleading the allotted plot is not suitable and she requires alternative plot and further contended that the respondent as per the agreement has done all developmental work and provided all amenities except installation of electric line and connection it will be done in short. In the mean time, the complainant agitating her claim on different views and claims. Hence, the respondent could not able to register the plot in her name as she has not come forward to pay registration charges and get it in her name Hence, delay is caused at the instance of complainant herself & further pleaded there is no cause of action for the present complaint as the respondent has complied all the requisites as undertaken in the agreement. Further taken contention that complainant has not approached this Forum with clean hands by suppressing all the real facts making false allegation approached this Forum and prays for the relief for which she is not entitled & prays for dismissal of the complaint with cost.

4.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

  Both have admits sworn to evidence affidavit. The complainant relied on documents and citation. Heard. Perused the records.

Finding on points is as under.

1. Affirmatively 
2. Accordingly  
3. As per order

Reasons

Points 1 and 2

5.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, that the complainant had entered into agreement to own residential plot with respondent. Further it is also not disputed with regard to fact that complainant paid entire amount as agreed and undertaken.

6.     Now the question to be determined is, whether the allotted plot is feasible to construct a dwelling house on it, whether the respondent has provided all the amenities as undertaken by him and non registration and delivery of possession amounts to deficiency in service, if so, for what relief the complainant is entitled.

7.     Since the facts have been revealed in detail which requires no repetition.

8.     On perusal of Ex.C1 agreement dt.30.12.2010 entered in between complainant and respondent reveals the respondent had undertaken to develop the plot and to delivery the same for construction of the residential house. By the letter Ex.C2 it is evident that the complainant has been allotted with a plot no.11 as per Ex.C1 agreement. Ex.C3 reveals the respondent has received almost all the amount in consideration of the amount as per Ex.C1. Since the respondent has admits he has received the amount there is no dispute with regard to the fact passing of consideration to the respondent. Ex.C7 to 10 are the receipt for having received the consideration from complainant.

9.     The very contention of the respondent is that he has already allotted the site as per Ex.C2 and he complied and contended that there is no deficiency in service on the part of respondent.

10.   The very grievance of the complainant as already discussed the plot no.11 allotted is nearby the nala and the plot is not amenable to construct a dwelling house as it is in ditch & no provisions are made to pass water run all the way from the entire block towards the plot allotted to the complainant. Further grievance of the complainant that the respondent so far not obtained CC and handover the possession to the HDMC. In this regard the complainant draw the attention of Forum to Ex.C13 and submit that still the plot is in the revenue site is not transferred to HDMC so far. On perusal of Ex.C13 it reveals the land in Sy.No.71, 71, 72, 75A is converted to NA subject to the condition to satisfy 16 conditions by the applicant. The respondent did not produced any document to show that the land owner has complied the same and obtained permission from the HDMC.  So also the respondent did not produced any revenue paid to HDMC subsequent to 10.10.2008 to show that the same is admitted and handover to HDMC.

11.   The very purpose of the complainant to entering into agreement for grant of plot is to construct dwelling house. If the plot is not feasible for construction of dwelling house no useful purpose will be served. The respondent except contending that they have obtained approval and plots are approved as residential plots and the respondent has carried out UGD facilities the respondent did not produced the approved plan of both plots and UGD drainage formation plan carried out on the plot. At the time of argument the LC for respondent argued they have assured the complainant to deliver the plots but they have not assured the complainant to allot suitable plots as the name of project itself is Hill lock the complainant has to take delivery of plots in whatever the position it is and delivered. Hence, the claim of the complainant that the plot allotted is not suitable for construction of dwelling house is perverse and baseless  and made with lame intention. Further the respondent contended that the agreement is the year 2006, the plot is allotted in the year 2009 the present complaint filed by the complainant is not sustainable and is barred by the limitation as the complainant has not made specific grounds to the IA annexed to complaint to condonation of delay. Hence, in total complaint is to be dismissed.

12.   This contention and argument of the LC is not appelable when the members have applied for the allotment of the plots for construction of the house the plots should be feasible for construction of the house. The LC for respondent also argued the plots have been allotted for a megre amount which is suitable value for the plots allotted. Hence, the complainant cannot urge for more than for what she is eligible. This argument of the LC for complainant is not acceptable because whatever the value, it is the price fixed by the respondent not by the complainant. Under those circumstances the plots developed and delivered shall have served useful purpose otherwise what is the necessitity of developing and allotting plot which is not feasible by receiving amount from the applicants hard earned money.

13.   On going through the evidence it is evident that plot has been allotted on paper only is not feasible for construction at its present position. So also the respondent has not produced any certificate or approved plan of the UDG to show that the competent authority has approved the same or the UDG work carried out by the respondent will serve the purpose. As argued by the complainant and also by viewing the plot in person the plot is nothing but hill lock as per the title of the plot itself. In the absence of production of document by respondent to show that the competent authority has approved the plots developed by the respondent no document are available on records and even the respondent did not produced. So the contention of the respondent that there is no cause of action nor the complaint is barred by limitation is not acceptable for the reason when the respondent received the amount till delivery of feasible plot and get registering the same and deliver the same the limitation will continues. Hence, the present complaint is maintainable and also complainant is consumer and comes within definition consumer and respondent is service provider as defined under CP Act. In this regard the complainant relied on citation AIR 2007 Supreme Court 2198; AIR 2012 SC 2369 ; AIR 2012 SC 2372; 2012 SAR (CIVIL) 787 & submits complaint be allowed. On going through the citations relied & the evidence on records and document produced and relied the complainant with appulsive evidence established her case of deficiency in service. Hence, complainant is entitled for the relief.

14.   However as per the observation made if the Forum directs the respondent to make suit of the plot no.11 amenable to construct the dwelling house by providing amenities and to deliver the same by get registering the same within 6 months from the date of orders it will not cause any injustice to respondent or to the complainant on the background of the interest of the consumer/ complainant will suffice the purpose. Since the plot has been allotted prayer for compensation is denied.

15.  In view of the above discussions we have arrived and proceed to held issue.1 and 2 in affirmative and accordingly.

16.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

The complaint is partly allowed with cost. The respondent is directed to deliver the allotted plot to the complainant as observation made or otherwise to deliver other alternative suitable plot feasible for construction of dwelling house by affording all the amenities by obtaining CC from the competent authority within 6 months from the date of receipt of copy of this order. If the respondent fail to comply the same to return the amount received from the complainant with interest @6% P.A. from the date of allotment (24.09.2009) till the date of filing the complaint and with further interest @ 9% P.A. till next 6 months thereon @12% P.A. Rs.2000/- towards the cost of the proceedings till realization.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 31^st day of August 2015)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR