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

Consumer Complaint (C.C.)No. 1129/2016

Complaint filed on 22.02.2016

Date of Judgement.27.02.2017

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

                                                      PRESIDENT

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

                                            MEMBER

Complainant/s               :                  1.Divya Chari

   D/o P.N. Chari

   C/o Rajalakshmi Chari,

   No 70 LIC Care Homes

                                                          Madanayakahalli

                                                         Tumkur Road,     

                                                    (Sri KMS Bhatt., Advocate)

                                                         V/s

Opponent        /s                     :       1. The President

    M/s Madhuvana House    

    Building, Co –Operative

                                                         Society Ltd.,

                                                         41, 42, V.V. Market Building,

                                                           Opposite Navgraha Temple,

                                                            K.R. Mohalla ,

                                                            Mysuru -570004.

   (Sri G.N.S. Srinivasamurthy., Advocate)

 SHRI RAMACHANDRA . M.S.,

 PRESIDENT

JUDGEMENT

The complainant has filed the complainant u/s 12 of CP Act against the opposite party seeking the relief of alternative site and for the payment of compensation and other relief.

2.The brief facts of the  complainant is that he became member (no 4646) of opposite party on 05.08.1995 to 21.01.2016 by paying 1,50,000/- the opposite party has allotted with a site no 65 measuring 30 X50 at DTS Rao Nagar, Satagalli Mysore on 06.10.2006 opposite party has executed register sale deed in favour of complaint. Further when complainant has approached for possession certificate opposite party did not responded for the same. For that complainant issued legal notice on 02.05.2014 for that there is no report from opposite party on 28.05.2015 a reply notice is sent by opposite party by stating  that allotment of site no 65 is cancelled because of MUDA mistake .Further opposite party offered alternative  site to the complainant and subsequently  there is  not response from opposite party the complainant was forced to file the complaint before fora seeking  relief of alterative and for the payment of compensation and other costs.

3. Notice to the opposite party duly served represented by counsel filed version and chief examination, affidavit, in the version they contends that the complainant is not maintainable in the absence of arraying the MUDA as a necessary party the complainant and further admits the membership, allotment of site no 65 and execution of register sale deed, deliver of possession in favour of complaint.

4. Further opposite party contends that on receiving legal notice dated 02.05.2014 they called complaint and apprised real contingency occurred and also visited complaint she has to wait for the formation of sites in new layout they are ready to give alternative site, in new layout if not they are even ready to refund the amount to complainant for which complainant refused to react.  Further opposite party has try to explained the various events that has happened between MUDA due to modification of layout plan by authority  the opposite party was force to cancel all the priors allotment of sites of members, these facts were also discussed in general body meeting of opposite party .

5. Further the opposite party states that the cancellation allotment of site no 65 to the complainant is due to the above said reason which is un avoidable   for that reason there is no deficiency in service on his part they are not liable to pay any compensation to complainant. At last the opposite party contends that even today they are ready and willing to allot the same dimension  site to the complainant immediately after the completion of the new layout to be formed in Yadahalli village, Mysore, Which is under process of development for the above reason opposite party prays for the dismissal of complainant.

6. The complainant and opposite party have filed chief examination affidavit and documents in support of their claim and defence heard arguments posted for orders.

7. Heard arguments of both.

8. The points that arise for our consideration are;

1. Whether the complainant proves that there is deficiency in service on the part of opposite party in not handing over the possession of the sites allotted to him and thereby proves that he is entitled for the reliefs sought?

2. What order?

9. 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

10 . Point No.1:- The complainant become a member of opposite party and purchase site no65, for consideration of Rs. 1,50,000 for which  opposite party issued allotment letter and executed registered sale deed on 06.10.2006 and also handed over possession , of site thereafter the opposite party has cancelled the allotment of above site for the reasons stated, Here all these events is a proved fact with all the material evidence in support of his averments and allegation at the same time opposite party clearly  and categorically  admitted all the above facts to be as true and correct the only defence  for cancellation of allotment and registered of site is due to unavoidable contingency between MUDA and opposite party that in particular due to modification of plan by authority  this act of MUDA has forced the opposite party to cancel the allotment of many sites among which  complainant site is included.

11. Further the opposite party in version para 5,6,20 has categorically admitted that they are ready and willing to provide alternative site of same measurement in the new layout which is to be formed by opposite party for which complainant has to wait for some time and further opposite party also expressed his ready and willing to refund the sale consideration amount of complainant. In view of this admission by way of defence in version, of opposite party has indirectly admitted the lawful claim of complainant. It is also observed  in view of admission of opposite party it is crystal clear that the complainant has proved his complainant beyond reasonable doubt and also proved the deficiency  in service  on the part of opposite party for which they are liable to  pay compensation to the complainant . The complainant during the course of arguments has prayed for the refund of amount.

12. The opposite party is bound to refund the entire amount received with interest from the date of respective deposit until payment made.

13. For the above reasons by looking at the facts and documents produced by complainant has proved his case beyond reasonable doubt and also proved that there is deficiency of service on the part of opposite party by doing unfair trade practice.

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

15. 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 opposite party is directed to refund the entire amount deposited Rs. (2.18,000/-) along with interest at rate of 12% p.a from the date of its respective deposit to till the date of payment of entire amount, to the complainant within 60 days of this order.
3. The opposite party shall pay Rs. 5,00,000/- towards  mental gony,  hardship caused and deficiency in service and Rs. 5,000/- towards cost of the proceedings to the complainant within 60 days of this order.
4. In default to comply, the opposite party shall pay interest at the

rate of 18%  p. a. on the said total sum of Rs. 5,05,000/- from the date of this  order till payment.

5. In case of default to comply this order, the opposite party shall

    undergo imprisonment and also liable for fine under section 27 of

    the CP Act, 1986.

6. 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 27^th   February 2017)  

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

          Member.                                                    President.                       

+++            

LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED ON BEHALF OF COMPLAINANT

Evidence by way of affidavit on behalf of complainant:

CW-1           :    DIVYA CHARI

Documents marked on behalf of complainant:

1        :         letter dated 08.05.2013 

2        :         legal notice dated 5.05.2014

3        :         allotment letter

4        :         rectification deed

5        :         Absolute sale deed

6        ;         Letters of co-operative society

7.       :         Letter of Muda

8.       :         Re-joinder

9        :         Legal notice 30.04.2015

10      :         application to Maduvan housing society

11      :         Letter of co operative society dated 28.06.2014

12      :         Area plan.

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

Evidence by way of affidavit on behalf of OP :

Rw1- :          M.V. SHRANIAKE

Documents marked on behalf of OP :

• NIL-

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

          Member.                                                               President.