IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 138 to 144/08 DATED 30-07-2008<br /> <br /> COMMON ORDER<br /> <br /> <br /> Complainant in 138/08 M.S.Bheemaiah, S/o Late Subbaiah, R/at Manchalli Village and Post, Kutta, S.Kodagu.<br /> Complainant in 139/08 A.A.Nanjunda, S/o Late A.C.Aiyanna, R/t Door No.247, Nyaya Marga, Siddartha Layout, Mysore-11.<br /> Complainant in 140/08 K.K.Kalappa, S/o Late Puttappa, R/at No.601, Gokulam, III Stage, 15th Cross, 1st Main, Mysore-02. <br /> Complainant in 141/08 A.C.Ganapathi, S/o Chengappa, R/at C/o C.K.Seethamma, D.No.18, LIG, III Stage, 15th Cross, Gokulam, Mysore.<br /> Complainant in 142/08 M.B.Karumbaiah, S/o Late Belliappa, Retired Teacher, R/at K.Badaga Village, Kutta Post, P.B.No.70, South Kodagu.<br /> Complainant in 143/08 C.N.Appachu, S/o Late Nanjappa, R/at No.18, LIG, III Stage, 15th Cross, Gokulam, Mysore.<br /> Complainant in 144/08 K.M.Muthappa, S/o Late Muddaiah, R/at Thaila Village, Kutta Post (Post Box No.171), S.Kodagu.<br /> (By Sri.B.H.Ganesh, Advocate)<br /> Vs. <br /> Opposite Parties in all cases are same (7 cases) 1. President,<br /> 2. Secretary,Mysore Taluk and City Primary School Teacher’s House Building Co-operative Society (Regd.), Mysore, Society Situated at No.24, “Vybhav”, III Cross, Gokulam III Stage, Mysore-570002.<br /> (By Sri. B.Kantharaju, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 19.05.2008<br /> Date of appearance of O.P. : 10.06.2008<br /> Date of order : 30.07.2008<br /> Duration of Proceeding : 1 MONTH 20 DAYS<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> MEMBER<br /> MEMBER<br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. These are the complaints presented by the complainants against the Opposite parties with similar grievance contending that they have been allotted residential sites in the layout formed by the Opposite parties at Kesare village, kasaba Hobli, Mysore in ‘D’ block, formed in survey No.477/3B and have further stated that the 1st complainant has been allotted site No.92, the 2nd complainant has been allotted site No.88, the 3rd complainant has been allotted site no.89, the 4th complainant is an allottee of site no.87, the 5th complainant is an allottee of site no.91, the 6th complainant is an allottee of site no.90 and the 7th complainant has been allotted site no.86 vide allotment letters issued to them dated 04.04.1985. It if further contended by them that they have all paid the sital value of Rs.1,400/- each and possession has also been delivered to them, but the Opposite parties thereafter failed to execute the regular sale deeds even after lifting the ban registration which was imposed earlier. Even then they got the khatha of their respective sites changed to their name from the concerned Mandal Panchayat, their names have been entered in the demand register and are paying tax to the said Panchayat, when the Opposite parties failed to execute regular sale deed, they got issued legal notice to them on 07.11.2007. But despite that, the Opposite parties have neither replied to that notice nor executed the sale deeds even after lapse of 23 years and thereby have prayed for a direction to the Opposite parties to execute the regular sale deeds in the alternative to pay them the current market value of the sites, and to award compensation of Rs.25,000/- with cost of these complaints.<br /> 2. The Opposite parties have filed their common version contending that the complaints are barred by limitation, denied the allegations made in para no.2 to 7 as all false, except that they have formed layout and formed residential sites at old Kesare village. Further contended that the allegations made in para 8 and 9 are not within their knowledge that they had formed site in the layout and allotted sites to all its members. As per the By-law only the teaching staff could be members unless some special resolution is passed to take the outsiders as members of the society. Denying that the complainants are the members of the society and have allotted the sites and stated that the documents produced by these complainants are all fabricated and are obtained illegally by colluding with some unauthorized person for making illegal gain and further denying all other allegations have prayed for dismissal of the complaints.<br /> 3. All these complaints since are filed with the similar grievance against the same Opposite parties are clubbed together for enquiry and are taken up for disposal by a common order. During the course of enquiry into the complaints, the complainants and the Secretary of the Opposite parties namely Renukadevi have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainants have produced their allotment letters, demand register extract, certain receipts to show the payment of tax and the complainants except C.C. No.138/08 and 142/08 have also produced receipts to prove in their having had paid Rs.1,400/- each towards as sital value. The Opposite parties have produced the relevant receipts books, share ledger, a booklet containing allotment letters allotting all the sites they had formed in that layout to its members on 04.04.1985, the sanctioned plan, stock book, membership register and resolution book. Heard the counsel for both the sides and perused the records.<br /> 4. On the above contentions, following points for determination arise:-<br /> (1) Whether the Opposite parties prove that these complaints are barred by limitation?<br /> (2) Whether the complainants prove, that the Opposite parties have after allotting sites to them issued the allotment letters relied upon by them and that the Opposite parties have caused deficiency in their service in not executing title deeds?<br /> (3) To what relief the complainants are entitled to?<br /> 5. Our findings are as under:-<br /> Point no.1 : In the affirmative.<br /> Point no.2 : In the negative.<br /> Point no.3 : See the final order.<br /> REASONS<br /> 6. Point no.1:- As could be found from the grievance of the complainants, they have no where in the complaints or in the affidavit evidence stated as to when they became members of the Opposite party’s society. They have also not given the date and year of payment of sital value to the Opposite parties. Of course Opposite parties have admitted to have received Rs.1,400/- each from each of the complainants, except complainants in CC 138/08 and 142/08. The complainants have claimed as if the Opposite parties had allotted them sites on 04.04.1985 and issued the deed of allotment of conditional sale, and delivered vacant possession. As contended by the complainants, the allotment letters, were issued on 04.04.1985, thereafter it is found that these complainants never bothered to approach the Opposite parties for getting the title deeds. But, contended to have got khatha of their respective sites changed in their names some where in the year 1988 and 1990 and have produced copies of demand extract also showing the payment of tax to the concerned Mandal Panchayat. On perusal of all the contentions of the complainants and also the documents they have produced, the complainants have nowhere stated in they having had approached the Opposite party parties demanding to execute title deeds. But for the first time by getting a legal notice issued to the Opposite parties on 07.11.2007 have come up with these complaints on 19.05.2008. In the course of arguments we questioned the counsel for the complainants in these complaints having had kept silent for all these years and further asked them whether they have any proof to prove that they were in touch with the Opposite parties demanding for execution of title deeds so as to find out whether these complaints are in time. But, the counsel for the complainants was not in a position to invite our attention to any of the correspondences or communications even demand made by these complainants with the Opposite parties demanding execution of title deeds except the legal notice issued on 07.11.2007. The learned counsel appearing for the complainants argued that these legal notice themselves give cause of action to the complainants and therefore the complaints are in time and are maintainable. But we fail to appreciate the argument of the counsel for the complainants, because as found that after alleged issue of allotment letter on 04.04.1985 there has not been any correspondences between the parties and some how they got their names entered in the demand register. These complainants were all sleeping for all these years till they woke up on 07.11.2007 to get a legal notice issued. The issue of legal notice on that day in our view do not tend to condone the delay of all these years. The complainants have also not filed applications for condonation of delay. Hence, we hold that these complaints are highly belated and are not filed within the period of limitation as provided under section 24 (A) of the Consumer Protection Act, therefore the complaints are liable to be dismissed on this ground. The learned counsel for the Opposite parties submitting that the complaints are hopelessly barred by limitation has relied on 2 decisions of the Hon’ble National Commission reported in II (2007) CPJ 144, and II (2002) CPJ page 83. In the first case of Hon’ble National Commission while dealing with the insurance claim has held that no material on record indicating action taken for 5 long years and held that the claim which was not made during that long 5 years has become barred by limitation. In the second case while deciding a case of deficiency attributed by the complainant against a builder has held that possession of the building was handed over to the landlord during 1995-96 and the complaint filed by the complainant in the year 2000 is barred by limitation. In the case on hand as we have narrated above, the complainants are filed after lapse of more than 23 years and therefore the notice they got issued do not get them a fresh cause of action to file these complaints, with the result we answer point no.1 in the affirmative.<br /> 7. Point no.2:- Coming to the merits of these cases, as already held by us, the complainants in CC 138/08 and CC 142/08 though stated to have paid the sital value of Rs.1,400/- each but admittedly they have not produced any documents in proof of it. The counsel for the complainant have subjected the Opposite party Secretary to cross-examination and of course elicitated admission so far as the payment of Rs.1,400/- by the other complainants. But, the suggestion that the complainants in CC 139/08 and CC 140/08 have also paid their share amount, however their names are not entered in the share register is denied by the witness by contending that she do not know, because she became the Secretary of the Opposite parties at later stage day. Though, the counsel for the complainants has got all the relevant documents of the Opposite parties summoned and they are placed before us, but the counsel for the complainants is not in a position to invite out attention to any of these documents to prove the payment of share amounts by these 2 complainants. Therefore, it is evident that these complainants in CC 139/08 and CC 140/08 are not even members and they have not even paid the share amounts.<br /> 8. The Opposite parties have denied to have allotted any sites to the complainants and they have further contended that these documents produced by the complainants are all fabricated and are obtained from some unauthorized persons. The Opposite parties have further contended that all the allotment letters issued by them bear the signature of the President also with signatures of some directors as witnesses, but the allotment letter of the complainants do not bear such signatures. The Opposite parties in support of their contentions have produced the allotment letters of all its members. It is on seeing these allotment letters relied upon by the complainants, it is evident that they do not bear the signature of the president and at the place of the signature of the President, we see the writing as signed with a noting as “Sabha Sakshi” which indicates as if the sites are allotted on the basis of resolution No.2/88-89. Even assuming that these allotments are made on the basis of resolution No.2/88-89, but we do not find any such resolution passed for allotment of these sites in favour of the complainanst. Even this resolution number and year of passing found to be false, because when allotments were made on 04.04.1985 itself, the question of passing a resolution for allotting the sites during the year 88-89 do not arise and seems to be farse. However, the complainants have failed to prove that these allotments were made by the Opposite parties and they are genuine by proving them through the person who alleged to have issued these allotment letters. <br /> 9. Coming to the payment of sital value is concerned in para 2 of these allotment letters, the sital value is fixed as Rs.1,000/- where in it is categorically stated that the said amount of Rs.1,000/- has been received by the Society on the date of the allotment itself, therefore it is not that payment of site value was deferred for a future date that means that the sital value of Rs.1,000/- was paid and received on the same day. Therefore, there was no reason for these complainants to pay that sital value subsequently. Some of the complainants have produced Xerox copies of the receipts for having paid Rs.1,400/- each on 13.06.1988. Therefore it is manifest that the sital value was not Rs.1,400/- but it was only Rs.1,000/-, as stated in the allotment letters if they had already paid Rs.1,000/- each on the date of allotment what was the necessity for these complainants to pay again Rs.1,400/- each is not explained. Even then it could be seen that all these payments are shown to have been made by only one person, namely Ganapathy that is the complainant in CC 141/08 as noted on the receipts. The Opposite parties have produced the sanctioned plan of the layout, and shown that they had only formed 85 sites in survey no.477/3B and all those sites were allotted long back to its members and have further contended that the sites claimed by these complainants in these complaints were not at all formed by them and they do not belonging to them. That being their stand it is for the complainants to prove that these sites were formed by the Opposite parties in survey No.477/3B and they were allotted to them by issuing these allotment letters. <br /> 10. The counsel for the complainants in the course of arguments submitted that the Opposite parties had got 2 plans prepared, but they have only produced one plan and with held the other plan with an intention to suppress the availability of the sites. But, the Opposite parties who had contended that the other plan was torn, therefore they have got a copy of it prepared and produced. During arguments brought the torn plan by jointing the pieces which tallies with the copy of the sanctioned plan already produced before this Forum and in this plan we do not find these sites claimed by the complainants. It is on perusal of these documents we find that these sites claimed by the complainants are not seen in the sanctioned plan produced by the Opposite parties. The Opposite parties have also produced the stock register which disclose the number of sites formed by them, number of sites allotted by them and further showing that no sites are left over for allotment. On perusal of all these documents and evidence adduced by both the parties we are convinced to hold that the complainants are not able to prove these sites are belonging to the Opposite parties and they had allotted sites to them on 04.04.1985. The entry in the demand register and payment of tax by them subsequently are not relevant to the issue in question as the complainants have basically failed to prove the allotments of these sites by the Opposite parties. The evidence of the Opposite parties and the documents they have produced disprove the case of the complainants and in the cross-examination of the Secretary of the Opposite parties we do not find any evidence elicitated to discredit her from what she has stated before this Forum through her affidavit evidence and through documentary evidence. Hence, on consideration of entire materials placed before us we hold that the complainants have failed to prove the allotment of sites and issue of allotments letters relied upon by them. Hence, we answer point no. 2 in the negative and hold that the complaints are liable to be dismissed, even on merits also and thus we pass the following order:- <br /> ORDER<br /> <br /> 1. The complaints are dismissed.<br /> 2. Keep a copy of this order in connected files. <br /> 3. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 30th July 2008)<br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> (Y.V.Uma Shenoi)<br /> Member<br /> (Shivakumar.J.)Member<br /> <br />