BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member. 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, COMMON ORDER Complaint No.MDF/C.C.No.69 & 70/2009 Order dated this the 24th day of September 2009 COMPLAINANT/S IN CC.69/2009 Sri.N.Suresh S/o T.Narasimhaiah, R/o Chikkegowdana Doddi Layout, Mandya. (By Sri.Yogananda., Advocate) COMPLAINANT/S IN CC.70/2009 Sri.N.Somesh S/o B.Narasimhaiah, R/o Chikkegowdanadoddi Layout, Mandya. (By Sri.Yogananda., Advocate) -Vs- OPPOSITE PARTY/S The Commissioner, Municipal Corporation, Mandya District, Mandya. (By Sri.M.B.Rajashekara., Advocate Date of complaint in CC 60/09 Date of complaint in CC 70/09 04.06.2009 04.07.2009 Date of service of notice to Opposite party 20.06.2009 in CC 69/2009 20.06.2009 in CC 70/2009 Date of order 24.09.2009 Total Period in CC 69/09 Total Period in CC 70/09 3 Months & 4 Days 3 Months & 4 Days Result The complaints in C.C.69 & 70/2009 are allowed partly, directing the Opposite party to get the execution of the lease agreement from the Complainants and furnish the same to the Complainants for registration at their cost and if the Complainants complies the same, to deliver possession of the shop premises to the Complainants and to claim the rent from the date of handing over the possession of the shop premises and Opposite party is directed to pay cost of Rs.1,000/- in each case to the Complainants. The order shall be complied within 6 weeks. The copy of the order shall be kept in CC.70/2009. Sri.Siddegowda, President 1. As the facts and claim of the Complainants in both the complaints are similar, these complaints are disposed off by this common order. 2. The above two complaints are filed by the Complainants to direct the Opposite party to get execution of the lease agreement and deliver possession of the shop premises and thereafter to collect the rent and to cancel the demand notice of rent and to pay compensation of Rs.50,000/-. 3. The facts of the complaints are that the Opposite party advertised for the auction of the shop premises constructed under I.D.S.M.T. scheme near Mahaveera Circle of Mandya City. The Complainants participated the bid on 16.08.2006 and Complainant in C.C.69/09 bid shop No.26 for Rs.1,10,000/- and Complainant in C.C.70/09 bid shop No.11 for Rs.1,67,500/- and the Complainants deposited the bid amount. The Opposite party did not get the execution of the lease agreement and did not give the possession of the shop premises, since it was not fit for use on account of damaged roof due to rain and there were no facilities of water, platform and drainage. In spite of several requests, the Opposite party did not get the lease agreement and deliver possession. Even though, a petition was given to the Opposite party, but no reply was given. Finally on 13.08.2008, the Complainant gave a petition to handover the possession of the shop premises by getting execution of the agreement. But, the Opposite party issued a notice to deposit Rs.23,000/- in both the complaints and in case of default, the bid amount would be forfeited. The issue of notice without giving possession of the shop premises amounts to deficiency in service by the Opposite party. Even though, the issue of notice claiming the rent amount without giving any reply to the petition and oral requests amounts to deficiency in service. The Complainants to earn their livelihood, bid the shop premises for rent and without possession of the shop premises without doing any business, they are suffering and sustained loss. Therefore, the present complaint is filed. 4. In both the complaints, the Opposite party has filed version contending that the complaint is not maintainable under the Consumer Protection Act. It is denied that the Complainant for his livelihood to do business, he searching for shop premises. It is admitted that in the tender cum open auction, the Complainants bid the shop premises. It was the duty of the Complainants to comply with the terms of the auction as per the terms. After completion of the auction, the final bidder at the time of obtaining the possession shall execute agreement and get registration in the office of the Sub-Registrar. Since, the Complainants have not taken action as per the condition, the complaint is not maintainable. It is denied that the roof of the shops bid by the Complainants were not in fit for use and have no facilities. Denying that the Complainants made several oral requests and give a petition, it is contended that only on 14.08.2008, the Complainants gave a petition and in fact on 29.05.2008 a notice was given to the Complainants as per the terms of the auction. The allegation of deficiency in service is false. Since, the Complainants have violated the terms of the auction they are not entitled to the relief. The shops bid by the Complainants were kept vacant and the Complainants have not paid the rent so far and Opposite party has sustained monetary loss. The Opposite party is entitled to collect rent from the Complainants and Complainants are not entitled to any relief and therefore, the complaints are to be dismissed. 5. During trail in both the complaints, the Complainants and a witness are examined and Complainants produced Ex.C.1 to C.5 and C.1 to C.4 respectively and on behalf of the Opposite party one witness is examined. 6. We have heard both the sides. We have perused the records. 7. Now the points that arise for our considerations are:- 1) Whether the Complainants failed to get the possession of the shop premises by executing the lease agreement? 2) Whether the Opposite party has committed deficiency of service? 3) Whether the issue of notice claiming the rent is proper? 4) Whether the Complainants are entitled to the relief sought for? 8. Our findings and reasons are as here under:- 9. POINTS NO.1 to 4:- The undisputed facts are that in both the complaints, the Opposite party has issued the notification as per Ex.C.1 dated 04.08.2006 announcing the auction of the shop premises constructed near Silver Jubilee Park, under the I.D.S.M.T. scheme fixing the date of 16.08.2006 with terms and the Complainant in C.C.69/09 bid the shop premises No.26 for Rs.1,10,000/- and deposited the bid amount on 16.08.2006 as per Ex.C.5 and 31.08.2006 within 15 days as per the terms of the auction as per Ex.C.4 and the Complainant in C.C.70/09 bid the shop premises No.11 for Rs.1,67,500/- and deposited the bid amount under Ex.C.2 & C.3 within 15 days as per the condition of the auction. 10. As per condition no.4, after closure of the auction, the final bidder at the time of obtaining the possession should execute agreement for 20 years and get registration before the Sub-Registrar Office. As per condition no.20 of the auction, in Ex.C.1 the remaining amount of the bid amount by the bidders who have deposited ¼ of the bid amount should be deposited within 15 days of bid, otherwise the said amount would be forfeited and another auction would be conducted. In case, if the bid amount is deposited as per rules and after confirmation of the auction by I.D.S.M.T. Committee, the bidder who has deposited the amount shall deposit the rent from that date. 11. Admittedly, in the present case both the Complainants have deposited the bid amount within 15 days as per conditions. Admittedly, the possession of the shops premises is not given to the Complainants. It is admitted by the witness of the Opposite party that the shop premises even in 2008 were in bad condition due to rain water leaking to the shop premises and shop premises were locked and key is with the Opposite party. It is true that as per condition no.4 of the auction, the final bidder should execute the lease agreement for 20 years at the time of obtaining the possession and get registration before the Sub-Registrar Office and according to the Opposite party, the Complainant has failed to get the execution of the agreement and get registration. But according to the Complainant, in spite of several oral requests and petition and also final petition as per Ex.C.2 and C.4 respectively, the Opposite party has failed to get execution of the agreement and to deliver possession of the shop premises. 12. It is undisputed that under condition no.20 of the auction notice, after deposit of the entire bid amount within 15 days from the date of auction, after the confirmation of the committee of I.D.S.M.T., the bidder shall pay the rent from that of acceptance by the committee. In the present case, there is no iota of material, whether the I.D.S.M.T. Committee of the Opposite party confirmed or accepted the bid made by the Complainants and on what date it was confirmed. Further, the Opposite party has not at all issued any notice to the Complainants informing the date of acceptance or confirmation of the bid and to execute the lease agreement and to pay the rent. It is the evidence of the Complainants that they visited the Opposite party Office several times, requesting for deliver possession and execute the agreement, but they did not respond. It has to be accepted, because of the lethargy and burocracy attitude of the Opposite party. It is admitted by the Opposite party witness that in the Office file of the Opposite party dated 18.08.2008 it is written that the roof of the shops is rectified and the bidders have sought for execution of the lease agreement and the Opposite party has verified the same and again on 16.04.2009, the notes were continued in the office file and the Chief Officer of the Opposite party has made a note. The Complainant was able to get a Xerox copy of the office note and produced for our consideration. It is seen that R.W.1, the case worker has not attended the file as per the direction and a show cause notice was issued to him and further action was not taken. So, it is clearly proved that though the shops were bid on 16.08.2006, they were not in a position to occupy as the roof not fit and the execution of the lease agreement was not complied. Actually, the Opposite party has to furnish format of the lease agreement to the bidders and as per the terms after the confirmation of the bid, the bidders have to pay the rent and get execution of the lease agreement. It is admitted that no notice was issued to the Complainants about the acceptance of the bid and deposit the rent and execute the lease agreement by furnishing the format of the lease agreement. It is admitted by the witness of the Opposite party that in C.C.118/08 in respect of the shop bid by one Mahesh in 1998, the agreement was executed in 2006. In fact, the Complainants has produced the copy of the said lease agreement for our perusal and further, the Complainant has produced the information given by the Opposite party under Right to Information Act, that Sri.S.N.Mahesh, who has bid the shop premises no.15 in 2001 has not deposited any rent from 03.03.2001 to 05.05.2006. So, for 5 years, the Opposite party has not collected any rent from S.N.Mahesh, but it has executed the lease agreement on 21.04.2006 as per the undisputed document. So, the Opposite party cannot apply the conditions differently from one bidder to another bidder and as the conditions are similar, the bidders should be treated alike and no different attitude shall be shown as they are bound by the rules. When it is proved that the shop premises bid by these Complainants were not in a position to occupy when the Opposite party locked and kept the key with them, it is proved that the Opposite party has failed to deliver the shop premises to the Complainants getting execution of the agreement by intimating the date of confirmation, but no such action is taken at all and therefore, the Complainants were not in a position to execute the lease agreement and get registration at their cost. The claim of the rent by issuing notice by the Opposite party to the Complainants is not supported by any material, because, it is proved by the evidence of the witness of the Opposite party who is the Case Worker, the Commissioner has not at all passed any orders to issue notice to deposit the rent due, otherwise the bid amount would be forfeited. According to the Opposite party witness, he prepared the notice and obtained the signature of the Commissioner and issued to the Complainants, but for any action to be taken, the office orders should be put up and it should be approved by the officer and then only question of issuing notice arise, but the case worker has taken decision and prepared the notice and issued the notice obtaining the signature of the Opposite party. Therefore, the claim of the rent of Rs.23,000/- by the Opposite party from the Complainants is unjustified and not supported by any reason. The question of payment of rent arise only when possession of shop premises is handed over by Opposite party to bidder. Therefore, the failure of the Opposite party to issue the notice to the Complainants intimating the date of confirmation of the bid and to deposit the rent and get execution of the agreement at their cost amounts to clearly deficiency in service and no negligence can be attributed against the Complainants. 13. The Complainants have sought for direction to the Opposite party to get the execution of the lease agreement and registration and deliver the possession of the shop premises and to collect the rent after handing over possession and also cancel the rent notice and also sought for compensation of Rs.50,000/-. In view of the our findings above, both the complaints are entitled to a direction to the Opposite party to execution of the lease agreement and deliver possession of the respective shop premises and to claim the rent after giving possession of the shop premises. 14. The Complainants have sought for compensation of Rs.50,000/- for mental agony due to deficiency in service by the Opposite party. Since, the Opposite party has also lost the income of rent by the negligence of the officials of the Opposite party, the Complainants are not entitled to the compensation. 15. In the result, we proceed to pass the following order; ORDER The complaints in C.C.69 & 70/2009 are allowed partly, directing the Opposite party to get the execution of the lease agreement from the Complainants and furnish the same to the Complainants for registration at their cost and if the Complainants complies the same, to deliver possession of the shop premises to the Complainants and to claim the rent from the date of handing over the possession of the shop premises and Opposite party is directed to pay cost of Rs.1,000/- in each case to the Complainants. The order shall be complied within 6 weeks. The copy of the order shall be kept in CC.70/2009. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 24th day of September 2009). (PRESIDENT) (MEMBER) (MEMBER)
