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 345/09 DATED 19.11.2009<br /> ORDER<br /> <br /> Complainant T.Samundraiah, Station Manager, South Western Railway, Beeruru.<br /> <br /> (By Sri. K.L.Lakshmi Narayana, Advocate)<br /> <br /> Vs. <br /> Opposite Party The President, South Western Railway, Employees House Building Co-operative Society Ltd., Mysore North, Mysore.<br /> <br /> (By Sri. N.S.Basappa, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 11.09.2009<br /> Date of appearance of O.P. : 01.10.2009<br /> Date of order : 19.11.2009<br /> Duration of Proceeding : 1 MONTHS 19 DAYS<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. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint against the opposite party, seeking a direction to execute registered sale deed in respect of site No.100 measuring 40’ x 60’ situated at Chamundeshwari Railway Layout, Mysore, receiving the value of the site and also to pay compensation as well as cost of the proceedings.<br /> <br /> 2. In the complaint, it is alleged that, in the year 1998, the complainant became member of the opposite party society. He had applied for a site measuring 40’ x 60’. He paid the amount towards the site to the opposite party society from time to time. On 03.02..2002 in the lottery conducted by the opposite party, site No.100 measuring 40’ x 60’ was allotted to the complainant. It is learnt by the complainant that, some aggrieved members of the society had challenged the cancellation of the allotment of sites and for re-allotment. Thereafter, the complainant approached the opposite party to pay Rs.74,530/-, but demand was made for a sum of Rs.1,05,860/-, stating that value of the site has been increased. Thereafter, complainant was transferred to some other places. The complainant raised loan to pay the amount demanded by the opposite party and in the month of February 2008, he approached the opposite party with Rs.1,05,860/-. But, the opposite party refused to receive the said amount, stating that a sum of Rs.3,84,572/- has to be paid and since, there was election in the month of April 2008, the amount may be paid thereafter. Accordingly, in the month of April 2008, the complainant approached the opposite party with said amount and at that time also, the complainant was sent back. Thereafter, 10 to 12 times, the complainant had sent his representative to make payment, but the opposite party refused to receive the same. Thereafter, legal notice was issued, but there is no response from the opposite party. On these grounds, it is prayed to allow the complaint.<br /> 3. The opposite party in the version, has denied all most all the material allegations in the complaint, denying that the complainant from time to time paid the amount to the opposite party. It is stated that, the allotment was made provisionally subject to the terms and conditions. The proceedings before the Registrar of Co-operative Societies is narrated in detail. It is specifically denied that, the complainant approached the opposite party for payment of the amount and that the opposite party did not receive. It is stated that, the complainant had made part payment and as such, there was provisional allotment of the site. Then, it is contended that, thereafter, the opposite party called upon the complainant to pay the balance amount many times, but the complainant did not pay. Ultimately, the opposite party society cancelled the site allotted to the defaulting members including the complainant. Further, it is stated that, the MUDA has changed site No.100 as 96 and the same is not available for disposal. Also, it is contend that, complaint is barred by limitation and bad for non-joinder of society. On these grounds, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the facts alleged in the complaint, the complainant has filed his affidavit and produced certain documents. On the other hand, the opposite party has also filed his affidavit and produced certain documents. We have heard the learned advocates for the complainant and opposite party and perused the entire material on record.<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 he is entitled to the reliefs sought?<br /> 2. What order?<br /> 6. Our findings are as under:-<br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> REASONS<br /> <br /> 7. Point no. 1:- In the complaint, the complainant has alleged that, in the year 1998 he became member of the opposite party society, applying for a site measuring 40’ x 60’ and paid the amount from time to time. In second paragraph of the version, the opposite party has contended that said averment that the complainant paid the amount from time to time is most untrue and false. But, in fact, the opposite party in the affidavit in sixth paragraph has admitted the payment made by the complainant giving the particulars of date and the amount. In addition to the said admission, the complainant has produced Xerox copy of the receipts having made payment to the opposite party society.<br /> <br /> 8. The complainant claims that, on 03.03.2002 in the lottery conducted by the society site No.100 measuring 40’ x 60’ was allotted to him. This fact is admitted by the opposite party. However, further opposite party contend that, it was provisional allotment subject to the terms and conditions.<br /> <br /> 9. From the copy of the notice or letter of the opposite party society at Sr.No.12, complainant was called upon to pay third installment amounting to Rs.20,000/-. The letter is dated 31.07.1998. Copy of the letter at Sr.No.13 dated 19.02.1999, the society called upon the complainant to pay second and third installments amounting to Rs.20,000/-, stating that already a sum of Rs.40,000/- was paid. Then, by the letter dated 09.03.2000, copy of which is at Sr.No.15 the society called upon the complainant to pay fourth installment of Rs.20,000/-. By the letter dated 07.07.2001 at Sr.No.16, it is stated by the society that, most of the members have paid the installments and some members have not paid fourth installment and such members were requested to pay the amount. Then, by the letter dated 02.05.2001 at Sr.No.17 the society called upon the complainant to pay Rs.20,000/-. By the letter at Sr.No.18 dated 07.09.2001, complainant was called upon to pay fifth installment, stating that already Rs.60,000/- was paid and the amount to be paid Rs.50,000/-. Two other letters demanding said amount are at Sr.No.21 and 22. By the letter at Sr.No.24 dated 24.07.2002 complainant was called upon to pay sixth installment amounting to Rs.30,111/-. As noted above, admittedly in the lottery conducted by the society on 03.02.2002, the site No.100 was allotted to the complainant. Apart from the receipts that the complainant has produced, the opposite party in the affidavit at paragraph 6 has admitted and stated that up to 02.09.2002, the complainant had paid Rs.80,000/-. As per the letter dated 24.07.2002, the society had called upon the complainant to pay sixth installment on or before 30.08.2002. Hence, considering the admitted facts, except Rs.111/- before the said date, the complainant had paid the amount. Thereafter, on 19.08.2004, complainant has paid further Rs.10,000/-.<br /> <br /> 10. Learned advocate for the opposite party with reference to the documents, copy of which are produced, argued vehemently that number of notices were issued to the complainant, calling upon him to pay the amount, but he did not pay etc., But, as noted here before, in fact, from time to time, the complainant has paid the amount. Of course, thereafter, the opposite party called upon the complainant to pay further amount on the ground that the value has been increased etc., In this regard, it is submitted for the complainant that some members had challenged increase of the value of the site and that fact is admitted. Of course, ultimately said dispute entered in favour of the society.<br /> <br /> 11. It is the case of the complainant that, thereafter he approached the opposite party for payment of the remaining amount demanded by the society, but the society did not receive. That fact is denied by the opposite party. But, it is relevant to note that, when the complainant had admittedly paid nearly Rs.90,000/- in respect of the site allotted, the contention of the opposite party that complainant did not approach for payment of the balance, cannot be believed. Further more, as could be seen from the averments of the complaint and the submission made, the complainant is ready to pay the entire balance amount.<br /> <br /> 12. The opposite party has contended that, MUDA changed site No.100 as 96. Hence, it is contended that site No.96 is not available for allotment to the complainant. To substantiate this fact, no documents are produced by the opposite party. No reasons assigned. Under the circumstances, adverse inference shall have to be drawn against the society.<br /> <br /> 13. Another important contention taken by the opposite party is that, since the complainant did not pay balance amount in spite of the demands made, the site allotted came to be cancelled. In this regard, copy of the resolution is produced. For the complainant, it is submitted that, the society has no power to cancel the allotment of the site. In this regard, for the opposite party by-laws are pointed out, wherein it is stated that, the committee has power to review the position of the recovery from members and to initiate action against defaulting members. With reference to by-laws 44, it is stated that, managing committee shall have powers provided therein. In that by-law, the committee has power to distribute the sites to the members, but there is no specific provision for cancellation of the site. Of course, the committee has power to initiate action against defaulting member, but there is no specific by-law regarding cancellation of the site already allotted. It means, if the member fails to pay the balance amount in respect of the site allotted, the society may recover the amount due. Apart from this, most important point that needs to be noted in this regard is that, allotment of the site as well as cancellation if any shall be as per the norms approved by the Authorities under the Karnataka Co-operative Societies Act. In this regard, the opposite party has not produced any documents.<br /> 14. The opposite party also has contended that, the complaint is barred by limitation. But, taking into consideration of the facts alleged in the complaint and other material on record, the opposite party has not proved that, the complaint is time barred. Another contention taken by the opposite party is that, complaint is bad for non-joinder of society as party. It is true, the President of the society is made a party and not the society itself. Representing the society, President has appeared before the Forum and contested the matter and hence, said technical ground is ignored and the matter has been considered on merits.<br /> <br /> 15. Considering the facts and the material on record, we are of the opinion that though the complainant is ready to pay balance amount, the opposite party refused to receive the same and execute the sale deed in respect of the site that was allotted to the him. Hence, opposite party has committed deficiency in service. <br /> <br /> 16. Accordingly we answer the point partly in affirmative.<br /> <br /> 17. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite party is hereby directed to execute registered sale deed in respect of site No.100 measuring 40’ x 60’ which is the subject matter of the present case, at the cost of the complainant, within a month from the date of this order, receiving the balance amount of the site amounting to Rs.3,84,572/- at the time of registration of the sale deed.<br /> 3. If for any reason it become impossible to execute sale deed as ordered above, the opposite party shall refund the amount to the complainant along with interest at the rate of 18% p.a. from the respective dates of receipt of the amount.<br /> 4. In case, the amount is to be refunded to the complainant, the opposite party shall further pay a sum of Rs.10,000/- to the complainant as damages towards mental agony and inconvenience caused and a sum of Rs.2,000/- towards cost of the proceedings.<br /> 5. 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 19th November 2009)<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 /> <br /> <br /> <br />