IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 4/10 DATED 26.02.2010<br /> ORDER<br /> <br /> Complainant Smt.V.Padma, <br /> W/o K.C.Kale Gowda,<br /> R/at Subbu Godown Road, Kyathanagere Layout, MAndya.<br /> <br /> (By Sri. Sudharshan.V., Advocate)<br /> <br /> Vs. <br /> Opposite Party President / Secretary,<br /> M/s Madhuvana House Building Co-operative Society Limited, Offict at No.3, 4 and 5, Manasara Road, Ittigegudu, Mysore.<br /> <br /> (By Sri. Sridhar Chakke, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 04.01.2010<br /> Date of appearance of O.P. : 19.01.2010<br /> Date of order : 26.02.2010<br /> Duration of Proceeding : 1 MONTHS 7 DAYS<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainant has filed the complaint Under Section 12 of the Consumer Protection Act, against the opposite party, seeking a direction to allot a site measuring 40’ x 60’ and compensation of Rs.30,000/- as well as cost of the proceedings.<br /> <br /> 2. In the complaint it is alleged that, the opposite party is a registered Co-operative Society constituted with an intention to form layout of residential sites and to allot to it’s members on seniority basis. Complainant became member bearing NO.4186 in the year 1993. In the year 1994, the opposite party proposed to form layout at Sathagalli, Mysore and invited applications from members. Complainant applied for site measuring 40’ x 60’. She made initial deposit of Rs.3,500/- on 07.10.1993, Rs.5,000/- on 29.11.1993, Rs.5,000/- on 31.05.1994, Rs.10,000/- on 14.11.1994, Rs.1,500/- on 14.11.1994 and Rs.1,000/- on 08.01.1996 in all Rs.27,000/- towards cost of the site. Complainant visited the office of the opposite party several times with a request for allotment of the site. A year back, complainant received passbook from the opposite party, wherein payments made by the complainant are acknowledged, but strangely it is mentioned therein that, complainant would be allotted a site measuring 30’ x 40’ in the layout formed at Sathagalli village. The complainant approached the opposite party to get clarification and appraised that, she has applied for site measuring 40’ x 60’ and she is willing to pay balance cost of the site. Though there was oral assurance from the opposite party, till this day same has not been put into action. Complainant sent notice to the opposite party, but the opposite party has remained silent. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The opposite party in the version admitted certain facts, but it is contended that complainant had applied for site measuring 30’ x 40’ and not 40’ x 60’. Further it is contended that, the opposite party called upon the members for making payment of the balance sital value. But, the complainant has not made payment. It is stated that, on the availability of site in due course of time, in the layout that can be formed by the opposite party, the complainant would be considered for allotment of site on such rate and cost as it prevails. Also, it is stated that, opposite party has acquired land at Srirampur village and the formalities have to be complied with. It is contended that, the complainant failed to pay the amount within the specified period and automatically she disqualified of her seniority. Certain other allegations are denied. <br /> <br /> 4. In support of her case, the complainant has filed her affidavit and produced certain documents. On the other hand, Assistant Secretary of the opposite party has filed his affidavit and produced certain documents. We have heard the arguments of both the learned advocates and perused the records.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that she is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- One of the grievances of the complainant is that, she has applied for site measuring 40’ x 60’, whereas in the passbook the opposite party has mentioned measurement of the site as 30’ x 40’. The original passbook is placed on record. Of course, on the first page, the date of issuance of the passbook is not mentioned. However, on the next page, the date is mentioned as 03.08.1993. In this passbook, measurement of the site is mentioned as 30’ x 40’. The payments made by the complainant are acknowledged in this passbook. It is specifically alleged by the complainant that, the said passbook was sent about a year back. In view of this allegation of the complainant, it cannot be made out, whether really the passbook was issued by the opposite party on the date mentioned in this passbook. However, apart from this passbook, admittedly the complainant has paid a sum of Rs.5,000/- under receipt NO.13940 dated 31.03.1994 and in this receipt, measurement of the site is mentioned as 30’ x 40’. This is the first receipt available on record other than the passbook. The complainant has also paid a sum of Rs.1,500/- and Rs.10,000/- on 14.11.1994. In these two receipts, measurement of site is noted as 40’ x 60’. Again, the complainant has paid Rs.1,000/- under receipt dated 08.01.1996 and in this receipt, it appears originally measurement of the site was written as 30’ x 40’ and the first 30 is over written as 60. As could be seen from the records available, the mode of writing measuring of the site is 30’ x 40’ or 40’ x 60’. If this practice is taken into consideration, the writing of the measurement in the receipt dated 08.01.1996 as 60’ x 40’ appears to be altered or overwritten. Otherwise, the measurement ought to be 40’ x 60’ but not 60’ x 40’. As noted above, though the complainant has alleged that the opposite party recently issued passbook mentioning measurement of the site as 30’ x 40’, but in the earliest or first receipt dated 31.03.1994 measurement of the site is 30’ x 40’. In respect of this receipt, the complainant has no grievance. Under the circumstances, in the absence of other cogent evidence, the claim of the complainant that she had applied for site measuring 40’ x 60’, cannot be accepted. However, the documents on record establish that she had applied for site measuring 30’ x 40’. <br /> <br /> 8. Regarding allegation of the complainant that, the opposite party did not allot the site, admittedly in the year 1994 itself major portion of the cost of the site has been paid by the complainant to the opposite party society. In spite of lapse of 7-8 years, site has not been allotted. The claim of the site of the complainant at Sathagally is acknowledged by the opposite party in the passbook itself. Hence, prima-facie, deficiency has been established by the complainant against the opposite party. However, opposite party has contended that, it called upon the members including the complainant to pay a balance amount of the value of the site, but the complainant did not make payment within the specified period of time, resulting disqualification of seniority etc., To substantiate this fact, the opposite party has not produced any documents. When in the year 1994 itself, the complainant has paid nearly Rs.27,000/-, if really the opposite party had called upon the complainant to pay any balance amount, in the normal course, the complainant could have paid it. In the absence of evidence, the contention of the opposite party that, it called upon the complainant to pay balance amount, but the complainant did not pay, cannot be believed and accepted.<br /> <br /> 9. As noted above, claim of the complainant of the site is at Sathagalli layout, but the opposite party has stated that, at Srirampura village certain land has been acquired and it had some problem and all required process is being done etc., But, at the cost of repetition, claim of the complainant is not at Srirampura layout, but at Sathagalli layout.<br /> <br /> 10. Considering the evidence and the discussion made here before, the complainant has proved deficiency in service on the part of the opposite party. <br /> <br /> 11. Accordingly we answer the point partly in affirmative.<br /> 12. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite party is hereby directed to allot a site measuring 30’ x 40’ in favour of the complainant in it’s Sathagalli layout and execute registered sale deed in favour of the compailnant, within a month from the date of this order.<br /> 3. The opposite party shall intimate the complainant within 15 days from the date of this order, the difference sital value if any. The complainant shall pay the difference sital value if any within a week from the receipt of the intimation from the opposite party and further, she shall bear the stamp duty and registration charges.<br /> 4. If for the reasons behind the control of opposite party, sale deed cannot be executed in favour of the complainant, then the opposite party shall refund the entire amount to the complainant with interest at the rate of 18% p.a. from the respective dates of receipt of the amount, till realization.<br /> 5. The opposite party shall pay a sum of Rs.2,000/- to the complainant towards cost of the proceedings.<br /> 6. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day February 2010)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />