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

Consumer Complaint (C.C.)No. 1176/2016

Complaint filed on 05.04.2016

Date of Judgement.28.01.2017

PRESENT                                : 1. Shri Ramachandra  M.S.,  B.A., LL.B.,

                                                        PRESIDENT

                                      2. Shri  Thammanna,Y.S., B.Sc., LL.B., 

                                             MEMBER

Complainant/s               :                  1. Sri. K.B. Boregowda

    S/o D. Beregowda,

    # 380,Koorgalli,

    Bellavadi post,

    Mysuru.

                                                (Sri Sridhar Chakke ., Advocate)

                                                         V/s

Opponent        /s                     :       M/s Ananda House building

                                                         Co-operative Society Ltd.,  

                                                            LTD,

# No.101,6^th  cross, T.K. Layout 

Complex, Cunnigham Road,

Mysuru-570023. Rep by its

Secretary.

     (Sri . M.S. Panichethan, 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 execution of register sale deed of the schedule property along with other reliefs as prayed in complaint.

2. The brief facts of complainant is that the opposite party had approached and representation on behalf of M/s Ananda house building co-operative society Ltd., and intimated complainant about the formation residential sites out of the land bearing Sy.No. 227 situated at Sathagalli village, Mysuru.

3. It is submitted that, upon the representation made by opposite party, in a bonafide belief and hope of having his own shelter, complainant applied and got subscription of membership under membership no 1483 and applied for a site measuring 30X 40 feet.

4. It is submitted that, towards the allotment of a site measuring 30 X40 feet, complainant has made payments towards the allotment on several dates as follows:

1. 10.10.2005 Rs. 35,000/-
2. 20.11.2005 Rs. 10,000/-
3. 26.12.2005 Rs. 3,000/-
4. 20.12.2005 Rs. 12,000/-
5. 15.12.2005 Rs. 10,000/-
6. 30.12.2005 Rs. 5,000/-

5. The above said payments are duly acknowledged by way of issuing valid receipts. It is submitted that, appreciating the payments made by complainant time to time as per the demand made by opposite party, as on 31.12.2005 a site allotment letter was issued by opposite party in favour of complainant with respect to site bearing no.D-143 more fully described in the schedule hereunder. It is further stated complainant after the issuance of the site allotment letter, It was gathered by the complainant that the corner site bearing no.D-143 which was allotted in favour of the complainant has been sold by the society in favour of a third party, this act of the opposite party society is contrary to the society bylaw so also contrary to the interest of this complainant over the site that was allotted.

6. It is submitted that, as on 30.12.2005 complainant have made all the payment necessary for the allotment, on appreciating the said facts a allotment letter dated 30.12.2005 was confirmed and the site bearing no.D-143 more fully described in the schedule and allotment was confirmed in favour of complainant.

7. It is submitted that, even after lapse of a decade opposite party have not executed title deed in favour of complainant in spite of complainant repeated approaches, demands made, opposite party were assuring complainant about the execution of the sale deed but fail to do so. It is further stated by complainant that, whenever complainant has approached opposite party requesting for execution of title deed, opposite party are postponing under one or the other pretext which are untenable, towards the same a written requisition letter was also issued to opposite party dated, which also did not yield any reply.

8.It is submitted that, after allotting the site in favour of complainant, opposite arty have not executed a title deed in favour of complainant and is nothing short of an act of deficiency in service wherein the payments made by complainant amounting to Rs . 75,000/- within he stipulated time by opposite party is not appreciated and not executing a title deed in favour of complainant by camouflaging the legitimate right of complainant is untenable and is bad in law when the site was already allotted in favour of this complainant, which also goes against the society byelaws.

9.It is submitted that, the complainant has made physical representation several occasions which yielded no fruit. It is further submitted that even after several representations made by complainant, opposite party have failed to reply grievances of complainant but the complainant was left with no response by the opposite party.

10.It is submitted that, towards the grievance of this complainant no response was extended by the opposite party. On 22.02.16 the complainant caused a legal notice to the opposite party calling upon them to comply the legitimate demand but the opposite party has not chosen to reply to the same, this act the opposite party reflects the deficiency of service on the part of this opposite party.

11.It is submitted that, the complainant with a fond hope of having his own shelter with bonafide belief in the representations made by the opposite party, the complainant was impressed upon to apply and made all necessary payments as stated above, As on 30.12.2005 only the opposite party issuing the allotment letter, even after the lapse of several years have not executed the necessary title in favour of this complainant.

12.It is submitted that, as on 30.12.2005 the complainant by his savings, hard earned money and by the hand loans managed to make all the payments  which were periodically demanded but was not confirmed with the title. It is submitted that the complainant was subject mental agony wherein he was made run pillar to post.

13.It is submitted that, nearly reasonable time has elapsed the cost and expenditure of construction have been inflated by ten folds by which the complainant has put to great hardship and monetary damage due to the acts of the opposite party. Wherefore complainant prays for execution register sale deed in the schedule property along with other reliefs as prayed in complaint.

14.It is true that the opposite party is a registered co operative society with its office as is set out in cause title of the complainant. The opposite party in pursuance of its objective developed residential layout in Sathagalli gram after obtaining necessary permissions from the relevant government authorities.

15.The opposite party submits that it is false to allege that the opposite party had approached the complainant as is stated in 1.2 sub paragraph of the complaint. The opposite party submits that per contra is true it was the complainant who himself approached the opposite party seeking allotment of site measuring 30 X 40 feet.

16.It is true that the complainant is one of the members of the society and one of the aspirants for a site measured 30 X40 which is being developed by the opposite society the opposite party does not dispute the flow of consideration towards the allotment of the site by the complainant and admit the fact that the complainant has made a total payment of Rs. 75,000/- till date as is stated in paragraph no .2 of the complaint. It is also true that the opposite party has issued an allotment letter as is stated in para 2.3 of the complainant.

17.It is further true that the opposite party had issued an allotment letter on 31.12.2005 as is alleged by the complainant. However, the further allegations that the complainant was continuously visiting the  party . As a matter of fact the complainant had not visited the society at any point of time. As a matter of fact there has been no exchange of letter by the society or the complainant after issuance of allotment letter. The opposite party had clearly intimated the complainant that the price fixed by the society for allotment of site was tentative and subject to escalation.

18.The opposite party submits that the allegations made in the complaint that the complainant has been requesting several times to execute the sale deed are hereby palpably denied as false. As a matter of fact she being the member of the society the affairs and functioning of the society takes place in the knowledge of the member. As a matter of fact the initial plan was to develop sites out of nine acres of land. In pursuance of the same the society had entered into an agreement with the developer to develop residential layout in 9 acres. The copy of the said agreement shall be produced at the time of evidence. However, to the utter dismay disbelief and agony of the opposite party ring road cut across the planned residential layout thereby major portion of the land mass was eaten up by the ring road. Thus, only paltry 2 acres of land remained with the society out of the said 2 acres of land only 26 sites were available to the share of the opposite party society.

19. The opposite party submits that previously the society had developed Anandanagar in Bhogathi village, in the said layout the society had last major portion of land for the formation of ring road , and also storm water drain  as matter of fact  even compensation is awarded in favour of opposite party keeping,  in view the plaint of the members the society did not concede for payment of compensation instead of sought for release of more sites so that  same could be distributed  among its members. The opposite party had even filed writ petition before Hon’ble High court of Karnataka seeking direction as against   Muda for release of extra land. So the members to be accommodated at list in the said layout.. The said write petition came to be allowed with the direction to the Muda to release extra land in favour of society.

20. But to the utter dismay of the society when the process got scuttled down the society in order to protect the interest of its members has undertaken to develop a new project. It is very pertinent to note at this juncture that the society has already made a substantial payment of Rs. 10,00,000/- towards the development of new residential layout to Srishti constructions on 29.09.2014 the receipt of which is also acknowledged by Srishti constructions.

21.The complainant submits that the society was undergoing a darkest phase which even the complainant is well aware off. As a matter of fact there has been daylight fraud being committed by its erstwhile president late Shekar. The society has initiated proceedings before the Hon’ble ARCS in Surcharge No 02/2013-14, 3/2013-14 and 8/2013-14 against the legal heirs of the late Shekar an interim order of ABJ has also been obtained by the society in two cases i.e., in Surcharge No 02/2013-14 and Surcharge No 3/2013-14 on 31.10.2015 the board of directors is taking all necessary steps to rejuvenate the society and manage it in a foolproof way in the best interest of its members.

22. The opposite party submits that as of now there are not sites available at the disposal of the society. The society undertakes to allot a site in favour of the complainant in the layout to be developed by the society in near future.

23.The society being a co-operative society is taking all necessary steps in protecting the interest of its members and when the Board is taking all necessary steps to rejuvenate the society and efforts are being put in that direction at stretch of imagination the complainant can allege deficiency on part of the society at this juncture.

24.There is no cause of action to file this complaint. The complainant has not produced any documents to show that the opposite party has denied to allot him a site are that there are any irregularities in allotment of site. Wherefore prays for dismissal of complaint.

25. 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.

26. 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?

27. 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

28 . Point No.1:- It is an admitted fact that the opposite party had approached  and made representation  on behalf of M/s Ananda House building co-operative society limited  and intimated to the complainant about the formation of layout in the land bearing sy no. D-143 situated at Sathagalli village , Mysore .

29. Further upon the representation made by opposite party by believing the words the complainant applied and got membership of opposite party society in membership no1483 and also applied for a site measuring 30 X 40.

30. Further the complainant had made the payments of Rs. 75,000/- to the opposite party on different dates towards the consideration of the site which is to be allotted by the opposite party society.

31. Further it is stated that the opposite party on receiving the said payment on 30.12.2005 has issued a site allotment letter in favour of complainant with respect to site bearing no.D-143. The complainant in support of his contention has produced all the relevant documents i.e., allotment letter in his name. Cash payment receipts towards the sale consideration of said site bearing no.D-143.

32. Further even after lapse of decade the opposite party did not execute title deed in favour of complainant. In spite of complainant repeated demands and approaches the opposite party by giving assurance about the execution of sale deed. But fail to do the same.

33. Further that complainant has made several representations to the execute sale deed but opposite party failed to response to the grievances of complainant. Aggrieved by their attitude and response he was force to issue legal notice on 22.02.2016 to opposite party for which they have not to chosen reply the same. These fact is not admitted by opposite party only given evasive  reply and same reasons are given in support of his defence here opposite party has failed to support his defence with cogent  and convincing evidence. In such circumstances the defence taken by him will not sustain. For the lack of evidence to support their contention the defence will not survive, it has no evidentiary value in the eye of law.

34. Further it is stated that whatever contention taken by opposite party in his written version, when it is not supported by cogent and convincing evidence the statement remained as a mere denial of lawful claim of complainant. When opposite party failed to prove his contention with concrete evidence his arguments does not hold any water.

35. Further it is stated that the opposite party has assigned many reasons like government approval and acquisition of lands by government for public purpose and pending of writ petition before high court and the opposite party society is under crisis and they are making efforts to from the new layout in order to facilitate the members and to give sites, theses are reasons due to which to the opposite party was forced to delay formation of layout. Here the contention averred in the version by opposite party does not survive for the simple reason, that due to lack of strong proof it become stray statement to defend the claim of complainant. It is admitted that for the sake of arguments. If this contention is proved it has no effect on the claim of complainant. For that reason when once the complainant and opposite party has entered in to an agreement. It is bound and duty of both party to perform their part of duty. If anyone fails to discharge their part of duty it amounts to violation of agreement looking at all the facts and events it can be easily believed that the opposite party has miserably failed to prove his defence. On the other hand the complainant has proved his case beyond reasonable doubt and further complainant also proved the deficiency service on the part of opposite party

36. Further that the opposite party in his version in para 15 has clearly and categorically admitted that he under takes to allot a site to the complainant. Here this admission of opposite party goes to the root of the case. In view of this admission we draw an adverse inference as against opposite party, that the failing of opposite part to complete the layout formation work within the stipulated period is nothing but a deficiency in service on the part of opposite party for which they are liable to pay compensation. Along with other relief to the complainant and this act and omission of opposite party amounts to unfair trade practice.

37. Further that the opposite contends in para 16 of version stated that opposite party are taking necessary steps to protect the interest of it is members. Here it is pertinent to note   that the opposite party did not file a single document to show, that they are making efforts to protect the interest of its members. Further as per the documents produced by complainant in respect of site no D-143 it is evident even today it is available for disposal.

38.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.

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

40. Point no.2:- For the above discussion we here by proceed to pass the following:

ORDER

1. The complaint is hereby allowed in part.

2. The complainant 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 respect of site bearing no D-143 in sy.no 227  measuring 30 X 40 situated at Sathagalli village, Mysuru.  within 60 day of this order.

4. The opposite party is directed to pay a sum of Rs 50,000/-    towards mental agony and Rs. 5,000/- towards litigation   expenses and   also a sum of Rs. 10,000/- 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. 65,000/- 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 28^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           :  BOWRE GOWDA. K.B

List of Documents Produced on behalf of complainant:

1        :         Corner site allotment letter dated 31.12.2005

2        :         Provisional allotment letter 30.10.2005

3        :         Payment receipts with respect to the corner site 7 receipts

4        :         Legal notice dated 22.02.2016

5        :         Encumbrance certificate dt: 18.02.2016

LIST OF WITNESSES EXAMINED AND DOCUMENTS PRODUCED ON BEHALF OF OP.

Evidence by way of affidavit on behalf of OP :

RW-1 :         D. SINGRE GOWDA

List of Documents  Produced on behalf of OP :

Nil

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

          Member.                                                            President.