BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 16^th DAY OF MARCH 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to execute a sale deed in his favour and handover the vacant possession of the site or pay him compensation as per the market value and compensation of Rs.1,00,000/- with costs of the proceedings.

2. The brief averments made in the complaint are as under:

The OP-1 is a Private Limited Company engaged in developing residential layout and sell the same to the members on scheme basis by collecting amount in instalments.  The complainant having attracted by the scheme of the OPs, approached the OPs in the month of October 1996 and became the member of the scheme by paying Rs.5,000/- as membership fee.  The complainant also agreed to pay the consideration amount in 50 monthly instalments of Rs.1,750/- per month without any default and development charges of Rs.2,000/- on 10^th, 20^th, 30^th 40^th and 50^th month respectively.  The complainant paid his membership fee on 26.11.1996 and was given membership number 1150.  The complainant was regular in paying the instalments.  The OPs introduced a lucky draw scheme among the members and were holding lucky draw on 12^th of every month at 6 P.M or on the next working day if it is holiday.  The winner in the monthly draw will be allotted a site immediately who need not pay further instalments and the amount paid till such time also treated as the cost of the site.

The complainant was the winner of the lucky draw held on 12.08.1997 in the 7^th monthly incentive draw and the same was intimated to him through a circular dated 25.08.1997.  The OPs have also issued award certificate to the complainant on the same day.  The OPs allotted a site to the complainant bearing No.190 in Omkar Nagar Layout measuring 30x40 feet and the same was intimated to him through a letter dated 30.10.2000.  Thereafter, the complainant approached the OPs for registration of the site which was allotted to him.  However, the OP postponed the registration on one or the other pretext.  Subsequently, the OPs issued a letter to the complainant intimating that sites measuring 30x40 are not available in the said layout and sites measuring 30x50 are ready for registration and asked the complainant to come over to their office and pay additional amount of Rs.25,000/-.  The complainant was always ready and willing to perform his part of contract but the OPs started avoiding the registration for one or the other reason.  The OPs failed to execute the registered sale deed in favour of complainant in respect of the site allotted to him despite sufficient time and opportunity given.

The complainant came to know that, the OPs are trying to sell the site allotted to him to some other for higher consideration.  Since, the OPs failed to execute registered sale deed in favour of the complainant, he got issued a legal notice dated 13.01.2011 calling upon them to execute the registered sale deed in his favour immediately.  Despite service of notice, the OPs have failed to comply the same.  Therefore, the complainant was compelled to approach the Forum for redressal.

For the aforesaid reasons, the complainant prays for an order directing the OPs to execute the sale deed in his favour and handover the vacant possession of the same or in the alternative to pay him compensation as per market value fixed by the Government together with compensation of Rs.1,00,000/- and costs of the proceedings.

3. In response to the notice issued, the OPs entered appearance through their advocate and filed their version.  The sum and substance of the version is as under:

The complainant who has paid instalments on 13.06.1998 has lost his claim both under the contract and under law as such he cannot make any claim after a period of 14 years from the date of payment.  The complaint is barred by limitation and is liable to be dismissed.  It is true that, the complainant is member of OP-1 and was winner in the 7^th monthly incentive draw and it is also true that, the complainant was issued with a certificate of award and was allotted site bearing No.190 measuring 30x40.  The complainant has failed to pay Rs.20,600/- in instalments and also has not paid additional development charges of Rs.20,000/-.  Though the complainant has paid further value of the site as per the scheme but failed to pay the additional amount as demanded by the OPs due to hike in the prices for development work, land cost and other additional expenditures.  Due to nonpayment of the amount as mentioned above, the OPs have suffered substantial loss.  The land owners have already filed cases against the OPs which are pending before the Anekal Court and other courts.  The entire lands are in dispute.  The OPs never made any attempts to sell any site to anybody for higher price as alleged in the complaint.  The OPs can execute the registered sale deed only after payment of full consideration as well as additional development charges.  The complainant who neglected to make the payment within the stipulated period has lost his claim and now after lapse of 14 years he cannot maintain the present complaint.  The complainant is also not entitled to any compensation as claimed in the complaint as he himself committed default in payment of development charges.

For the aforesaid reasons, the OPs pray for rejection of complaint.

4. After the version was filed by the OPs, the complainant was called upon to file his affidavit evidence.  Accordingly, he filed his affidavit evidence in lieu of oral evidence reiterating the allegations made in the complaint.  OPs.2 & 3 together filed their affidavit evidence in support of the averments made in the version.  Written arguments have been submitted on behalf of complainant.  Subsequent to filing of affidavit evidence, the OPs as well as their advocate remained absent continuously.

5. The points that arise for our determination in this case are as under:

        6. Perused the allegations made in the complaint, averments made in the version, sworn testimony of both parties, written arguments submitted on behalf of complainant and other materials placed on record.

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

REASONS

8. (Point No.1) The first and foremost objection that was raised by the OPs is that, the complaint is barred by limitation.  It is contended in the version that, the complainant paid his last instalment on 13.06.1998 and if at all he is aggrieved by the subsequent admitted events he ought to have approached this Forum as early as possible or at least within two years.  Therefore, it is contended that, the present complaint filed after more than 13 years from the date of payment of last instalments is barred by limitation.  Against this, learned advocate for the complainant submitted that, after the complainant was a winner in the 7^th monthly incentive draw, he went on requesting the OPs to execute registered sale deed of site No.190 measuring 30x40 allotted to him through a letter dated 30.10.2000 issued by OPs.

9. The material placed on record goes to show that, since after the receipt of letter dated 30.10.2000 complainant is continuously after the OPs requesting them to execute the registered sale deed of site bearing No.190 at Omkar Nagar Layout.  However, for one or the other reason, the OPs are postponing the registration.  It is not that, the complainant is keeping quite despite the fact that, the OPs were dodging him in execution of the sale deed.  The complainant is continuously after OPs for the execution of the sale deed in pursuance of their letter dated 30.10.2000.

10. The OPs contended that, when a registered sale deed was not executed in his favour the complainant ought to have insisted for refund of the consideration amount which he never did and therefore his prayer is barred by limitation.  It is pertinent to note here that, at no point of time, the OPs have expressed in writing, their inability to execute a registered sale deed of the site allotted in favour of the complainant.  Had the OPs intimated in writing about their inability to execute the registered sale deed the complainant would have got a cause of action to proceed against the OPs.  However, the OPs went on postponing the execution of the sale deed on one or the other ground and ultimately made the complainant to approach this Forum for redressal.  Therefore, it cannot be said that, the complaint filed is barred by limitation.  The OPs never offered to refund the consideration amount, knowing fully well that they were unable to execute the sale deed in favour of the complainant for various reasons including the suits filed against by the owners of the lands.  The complainant cannot be made to suffer for the deficiency in service on the part of OPs.  As admitted by the OPs themselves they failed to execute the registered sale deed in favour of the complainant in respect of site No.190 in Omkar Nagar layout, for certain reasons.  When they were unable to execute the registered sale deed it was the duty of the OPs to refund the cost of the site to the complainant, instead of making him to run post to pillar.  OPs did not produce any documentary evidence to substantiate that they were prevented from executing the registered sale deed in favour of the complainant for any valid reasons.  The complainant has successfully proved deficiency in service on the part of OPs.

11. During pendency of the case one Sri.Prashanth P.N, advocate representing official liquidator appointed by the Hon’ble High Court of Karnataka filed a memo together with copy of the order passed by the Hon’ble High Court of Karnataka in Company Petition No.192/2011 in the matter of M/s.Omkar Estates Private Limited.  Perusal of the copy of the said order discloses that, on 13^th day of September 2012 the Hon’ble High Court of Karnataka has allowed a petition filed by certain petitioners against the present OP seeking winding-up of OP-1.  The complainant did not dispute the said order and also did not take any steps to implead the official liquidator as one of the Opponents.

         12. The complainant has sought a direction to the OPs to execute a registered sale deed in his favour in respect of site bearing No.190.  However, the said prayer cannot be granted in view of the liquidation proceedings.  According to the brochure issued by the OPs, the copy of which is produced by the complainant, the then market value of site measuring 30x40 is shown to be Rs.1,00,000/-.  The OPs have also intimated through letter dated 30.10.2000 that the site bearing No.190 measuring 30x40 in Omkar Nagar Layout has been allotted to him.  Since, the OPs have failed to convey the above said sites in favour of the complainant since after 30.10.2000 they are liable to pay the cost of the said site together with interest @ 18% p.a.  Furthermore the complainant is also entitled to compensation of Rs.1,00,000/- for the hardship, inconvenience and mental agony suffered by him due to deficiency in service on the part of the OPs apart from litigation cost of Rs.5,000/-.

          13. The order could not be passed within the stipulated time due to heavy pendency.

14. In the result, we proceed to pass the following:

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs or Official Liquidator is directed to pay sum of Rs.1,00,000/- to the complainant together with interest @ 18% p.a from 30.10.2000 till the date of realization.  Further OPs or Official Liquidator is directed to pay a compensation of Rs.1,00,000/- to the complainant together with litigation cost of Rs.5,000/-.

The OPs or Official Liquidator shall comply the order passed by this Forum within six weeks from the date of communication.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 16^th day of March 2016)

MEMBER                           MEMBER                     PRESIDENT

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Witnesses examined on behalf of the complainant dated 26.09.2012.

1. Sri.Dadasaheb Nemgonda Chinchwade

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite parties dated 05.11.2012.

1. Sri.T.V Nagaraj.

Documents produced by the Opposite Party:

MEMBER                            MEMBER                    PRESIDENT

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