BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.101/2013

DATED ON THIS THE 17^th November 2017

Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT  

    2) Smt. M.V.Bharathi                   

                                   B.Sc., LLB., -  MEMBER

    3) Sri. Devakumar.M.C.                

                                            B.E., LLB., PGDCLP,    - MEMBER

Sri M.C.DEVAKUMAR,

Member

1.     The complainant has filed the complaint under section 12 of the C.P.Act 1986 against the opposite parties, alleging deficiency in service and seeking a direction to issue letter of allotment of site in its layout at Mysore, at the price fixed on 11.03.2009 and in the application No.52158 and to direct opposite party No.2, to pay damages of Rs.2,00,000/- for not furnishing the details of realization of five demand drafts and to pay Rs.50,000/- compensation for the mental agony caused and Rs.5,000/- towards cost of the litigation with such other reliefs.
2.     The complainant intending to purchase a residential site from opposite party No.1, deposited a sum of Rs.5,32,200/- through demand drafts drawn on Canara Bank, in favour of opposite party No.1, along with the application No.52158.  The opposite party No.1 failed to allot a site, despite of receipt of entire sale consideration.  The opposite party No.2 failed to furnish the particulars of realization of the demand drafts, which is alleged as negligence.  Aggrieved for not allotting a residential site, complaint is filed seeking reliefs.
3.     The opposite party No.1 in its version submits, vide its letter dated 24.04.2014 intimated the PA holder of the complainant about the non-allotment of site and return of the demand drafts for a sum of Rs.5,32,200/- without realization along with the application form in the year 2009 itself. 
4.     Later, the opposite party No.2 i.e. Canara Bank, has deposited the said demand draft amount before the Forum.  Thereby, there is no relationship of consumer survive.  As such, allotment of site does not arise. Hence, prays for dismissal of the complaint.
5.     The opposite party No.2 admits the issue of 5 demand drafts in favour of the opposite party No.1 on 11.03.2009, total amounting to Rs.5,32,200/- and same were not presented for realization.  As such, no deficiency in service on their part and hence prays for dismissal of the complaint against them.
6.     The opposite party No.3 submits that, he never received any amount from the complainant and no contract with the complainant.  Hence, he is not a necessary party to the complaint, as such, prays for dismissal of the complaint with costs.
7.    The parties led evidence by filing affidavit and relied on several documents.  Written arguments filed by opposite party Nos.1 and 3.  Heard the oral submissions of complainant’s counsel only and on perusing the material, matter posted for orders.
8.     The points arose for our consideration are:-

1. Whether the complainant established the deficiency in service by the opposite parties, for not allotting a residential site in spite of receipt of consideration and for not providing necessary information pertaining to the demand drafts and thereby she is entitled for the reliefs sought?
2. To What order?

9.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the negative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

10.   Point No.1:- The complainant applied for allotment of a residential site measuring 40’ x 60’ from opposite party No.1 society.  A total sum of Rs.5,32,200/- had been deposited along with the application on 11.03.2009.   The said amount was paid through demand draft (5 Nos.) drawn on Canara Bank, in favour of the opposite party No.1.  The sital value was fixed at Rs.5,32,200/-.  The demand drafts were handed over to the office of the opposite party No.3.  Thereby, the contract exist between the complainant and the opposite parties concluded except allotment of the site and execution of registered sale deed in favour of the complainant.
11. It is alleged that, the D.D. were sent to the opposite party No.1 along with the application, who realised the amount.  The opposite party No.2 failed to furnish the particulars of realization of DD amount.  As such, alleged, negligence on the part of opposite party No.2.
12. Further alleged that, after realization of D.D. amount, neither opposite party No.1 nor opposite party NO.3, issued the receipt for having received the consideration or any letter of allotment of site.  The legal notice caused on 09.03.2012 to the opposite party No.1, was also not answered.
13. Later, the opposite party No.2 found that, the DD amount was unrealised and the same was deposited before the Forum and later complainant realised the amount from the Forum.  Hence, the complaint for the reliefs.
14. The opposite party No.1 contended that, they have already returned the application for allotment of site along with the unrealised demand drafts, at the request of the complainant and also cancelled the receipt dated 27.01.2009, issued acknowledging the receipt of demand drafts.  As such, there is no contractual relationship survive between each other and the question of allotment of site does not survive.  Hence, prayed for dismissal of the complaint with costs.
15. The opposite party No.2 contended that, on impleading them to the present proceedings, as party, it had deposited the entire amounts equivalent to the demand drafts, as the same was not realised by the opposite party No.1 society.  Thereby the contention of deficiency in service on their part is denied and prayed for dismissal of the complaint against them.
16. The opposite party No.3 contended that, he never received the application and the consideration at any point of time, on behalf of opposite party No.1.  As such, no relationship exists with the complainant.  The complaint against him is frivolous and baseless and hence, the complaint is liable to be dismissed with costs.
17. On perusal of the material on records, the complainant established that, he had submitted an application bearing No.52158, along with the consideration of Rs.5,32,200/- in the form of demand drafts (5 in Nos.) to the opposite party No.1, towards allotment of residential site measuring             60’ x 40’, at any of the layout at Mysuru city.  The said DDs were drawn on Canara Bank (i.e. opposite party No.2) in favour of opposite party No.1.
18. The opposite party No.1 established that, at the request of the complainant only, it had returned the application and all the demand drafts amounting to Rs.5,32,200/-, without allotment of a site, as desired by the complainant.  Therefore, the contractual obligation with the complainant does not survive.  The opposite party No.2 also established that, the amount of Rs.5,32,200/- was lying with them, as the same was unrealised by the opposite party No.1.  As such, deposited the same with this Forum to establish that there is no deficiency on their part.  The complainant failed to establish the allegation against opposite party No.3, as alleged.  The withdrawal of the amount deposited by opposite party No.2 with this Forum, by the complainant established that, there is no lapses on the part of opposite parties.  As such, we opine that, there is no deficiency in service and negligence on the part of opposite parties.  Hence, the complaint is liable to be dismissed as not maintainable.   Accordingly, point No.1 is answered in the negative.
19. Point No.2:- In view of the observations made in point No.1 above, we proceed to pass the following

:: O R D E R ::

1. The complaint is hereby dismissed as not maintainable.
2. 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 this the 17^th November 2017)