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 292/09 DATED 30.10.2009<br /> ORDER<br /> <br /> Complainant Jayapalan <br /> S/o Diesel Assistant,<br /> No.8/E, Lokocolony Yadavagiri,<br /> Mysore.<br /> <br /> (By Sri. H.V.Sreenath, Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. President,<br /> 2. Secretary,<br /> South Western railway HBCS Ltd., Railway Offices, Irwin Road, <br /> 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 : 13.08.2009<br /> Date of appearance of O.P. : 01.09.2009<br /> Date of order : 30.10.2009<br /> Duration of Proceeding : 2 MONTHS <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 parties, seeking a direction to allot site No.427 at Sharada Nagar, Railway Colony (Bogadi), Mysore receiving balance amount.<br /> <br /> 2. In the complaint, it is alleged that, first opposite party is the President and second opposite party is the Secretary of the House Building Society. Now, complainant is retired from service. During his service, he had filed an application to the opposite parties to allot a site at Sharada Nagar, Railway Colony, Mysore. Considering the application, the society had allotted a site No.427, measuring 12+11.8/2. The complainant has paid a sum of Rs.37,931/-. Details of the payment are narrated in 3rd paragraph of the complaint. The complainant was due in a sum of Rs.3,890/-. On 05.01.2009, complainant tendered that amount to the society. The opposite parties refused to receive the amount. Complainant issued notice to the opposite parties calling upon to consider the requests of the complainant. Opposite parties sent untenable reply, stating that on 10.11.2008 meeting was held and the site allotted to the complainant has been cancelled. Said act of the opposite parties is uncalled for. The complainant is un aware of the said decision. There is deficiency in service on the part of opposite parties. Non-receiving of the balance amount and cancellation of the site that was already allotted, amounts to deficiency in service. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The opposite parties in their version, have admitted that site No.427 was allotted to the complainant. But, it is contend that complainant has not made payment of entire balance. Also, it is contended that, payment made by the complainant in a sum of Rs.2,000/- on 11.12.2006 is not towards cost of the site. Certain other allegations made in the complaint, are denied. It is contended that, since the complainant did not pay the balance amount in the meeting held, the society took action against defaulting member and cancelled the site allotted to the complainant, as well as four other persons. Also, it is contended that, after cancellation of the allotment of the site in question that has been allotted to one Sri R.Ramprasad and possession certificate has been given. On these grounds, it is prayed to dismiss the complaint.<br /> <br /> 4. In support of the allegations made in the complaint, the complainant has filed his affidavit and on the other hand, the second opposite party Secretary of the society has also filed her affidavit. Certain documents produced by both the parties. We have heard both the learned advocate for the complainant and opposite parties and perused the material on record.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved deficiency in service on the part of the opposite parties and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Affirmative on certain terms and conditions.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- From the records, it is fact that site No.427, which is the subject matter of the complaint was allotted by the opposite party society to the complainant. Certain payments were made by the complainant in respect of the said site. However, the society contend that, as the complainant did not pay the entire amount in respect of the price of the said site, the allotment came to be cancelled and later that has been allotted to another member. To substantiate this fact, the society has produced certain documents including copy of registered sale deed executed by the society in favour of the Sri R.Ramprasad dated 06.12.2008. Hence, the question would be, whether the said site again can be given to the complainant.<br /> <br /> 8. The opposite parties contend that, because the complainant did not pay the entire amount due, the society cancelled the allotment of the site to the complainant. In this regard, the opposite parties have produced certain documents said to have been sent to the complainant, calling upon to pay certain amounts. Further, the opposite parties have produced copy of the resolutions regarding cancellation of the site allotted to the complainant. Regarding said resolutions, it is the contention of the complainant that, the opposite parties have no authority to pass such a resolution for cancellation of the site, once allotted. In this regard, advocate for the opposite party pointed out certain by-laws. At this stage, we feel not necessary to go in detail to hold, whether the society has power or authority to cancel the site allotted to its members. It is suffice to consider the submission made by the learned advocate for the complainant that in similar matter, this Forum in CC 149/09 by the order dated 18.08.2009 has allowed the complaint. Copy of the said order is produced. It is relevant to quote paragraphs 14 and 15 of the said order of this Forum, so as to avoid again repeating or discussing said facts. Said paragraphs reads as under:-<br /> “It is the contention of the complainant that, the opposite party had no power at all the cancel the allotment. For the opposite party copy of the resolution, as well as the resolution book are produced. A meeting was held on 30.09.2007. On page 25 of the book the proceedings are commenced. The learned counsel for the complainant pointed out page No.32. He submitted that, at the end of first paragraph there is insertion regarding cancellation. The learned counsel pointed out all the pages in respect of the proceedings of said date and pointed out that, after each agenda and writing of the proceedings a line or sentence is left, where as on page 32, there is no blank sentence and in fact earlier a sentence was left blank but utilizing that blank sentence, addition has been made and thereby said resolution so for concerned to cancellation is fabricated. On keen observation, the submission appears to be true. Firstly, in the earlier pages as well as in the subsequent pages in between the each agenda and the writings, a line is left blank, where as only on page 32 there is no blank line. Secondly, we can find little difference in the ink of the said insertion and the remaining writings on the said page. Likewise, in between the letters or words comparing to other writings in the said page, one can find difference that, in the added or inserted portion, in between the letters or words, as usual there is no spacing. Considering this, we are of the opinion that, said sentence has been inserted or added subsequently.<br /> There is one more resolution book and that was also produced by the opposite party but latter keeping Xerox copy that has been taken back. Advocate for the complainant in respect of this resolution book also submitted that, few sheets in the book have been added or replaced. The relevant resolution is dated 10.11.2008. On page 136 disputed fact is pointed out. At serial No.7 there was some writing that, all members had paid entire cost of the site and had obtained possession etc., But that is scored and below it, seventh agenda or paragraph is again written. Here, it is mentioned that, the members name mentioned therein have not paid the amount and hence, allotment has been cancelled and the same should be allotted to other eligible members. Reading the said agenda or resolution, as written already there was cancellation of the allotment. Past tense is used. So also specifically it is mentioned, the sites in respect of which allotment has been cancelled, are to be distributed to eligible members. That was the agenda in the meeting. Thus as mentioned therein allotment was cancelled. Hence the question would arise when actually the allotment was cancelled, in the letter produced by the opposite party at serial No.31 dated 20.05.2006, it is stated as already informed allotment will be cancelled and the site would be given to eligible member if the amount shown therein is not paid. In the resolution dated 30.09.2007 on page 32 the inserted portion is to be held that, the members informed the meeting to cancel the allotment who have not got registered and that was agreed.” <br /> <br /> 9. It is true in this case, the original resolution books are not produced. However, Xerox copies are produced. But, said resolution cover the site in dispute in this case as well as in the said case. By the said resolution, the society cancelled allotment of sites of in all 5 persons including the complainant in the earlier case and the present complainant. Hence, under the circumstances, already this Forum has found that said resolutions particularly regarding cancellation of the allotment of the site has been concocted or manipulated. When that is so, as noted here before, further consideration, as to whether the opposite parties have right to cancel the site allotted to its member or otherwise, will not arise. Because, at the cost of repetition, the resolutions regarding cancellation of the sites are manipulated or created.<br /> <br /> 10. Consequently, cancellation of allotment of site to the complainant having found not inconformity with the law, the claim of the complainant that he has been allotted to the said site holds good. But, further question would arise that, now the society has allotted the same site to another person and has executed registered sale deed. Having found that cancellation of the allotment of the site in favour of the complainant is not legal, further, question would be, whether the society can allot the same to some other person. So also, if at all there is such an allotment, whether it is legal and valid. However, under the circumstances, we feel it just to direct the opposite parties to allot alternative site or else to refund the amount with interest.<br /> <br /> 11. It is relevant to note that, the complainant paid a sum of Rs.10,000/- for allotment of site 18 years back in the year 1991 and 17 years back, the complainant paid Rs.9,000/- in the year 1992 and also he paid Rs.7,000/- in the year 1993. Thereafter, the society had allotted the site and from time to time, the complainant has paid certain amounts in all Rs.37,931/-. Further, the complainant admits that, he was due in a sum of Rs.3,890/-. He claims that, he had been to society and tendered the said amount, but the office bearers refused to receive the amount. Here, the question would arise, whether the opposite parties before cancellation of the allotment of site had called upon the complainant to pay the balance amount. Even though, copy of certain letters are produced, same are not sufficient to conclude that the complainant acknowledged the same. Under the circumstances, when the complainant had paid the amount nearly 18 years back and opposite parties had allotted the site to the complainant in the year 1992 itself, the cancellation of the said allotment by the society in the year 2008 for the reasons that the complainant did not pay the balance amount, appears to be unjust, particularly, without service of the notice on the complainant, calling upon to pay the amount due. Even otherwise, as noted here before, the resolution passed by the opposite party regarding cancellation of the allotment of the site to the complainant is not legal. For all these reasons, to meet ends of justice and to protect the interest of the consumer, for which, the Act has been enacted, we are of the opinion that to direct the society to allot an alternative site, if the complainant is willing for the same or else to refund the amount with interest. Accordingly, we answer the point. <br /> <br /> 12. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> The Complaint is allowed in the following terms.<br /> 1. The opposite parties are hereby directed to allot an alternative site measuring 12+11.8/2 if available in Sharada Nagar, Railway Colony, Mysore and if in the said layout, no site is available, then in other layouts of the society, site of the said measurement shall be allotted for the said price, if the complainant is willing for the same, within a month from the date of this order.<br /> 2. If for any reasons, no site can be allotted to the complainant, the opposite parties shall refund the entire amount paid by the complainant with interest at the rate of 18% p.a. from the respective dates of the payment narrated below, within 2 months from the date of this order.<br /> Date Receipt No. Amount<br /> 02.04.1991 209 5,000/-<br /> 09.07.1991 639 5,000/-<br /> 12.08.1992 1219 6,000/-<br /> 29.09.1992 2248 3,000/-<br /> 28.07.1993 3125 7,000/-<br /> 29.10.1997 751 7,901/-<br /> 02.06.2003 2974 3,000/-<br /> 11.12.2006 208 2,000/-<br /> TOTAL 38,901/-<br /> <br /> 3. The complainant shall exercise option either for site or for refund, as noted above, within 15 days from the date of this order, intimating the same to the opposite parties and in case, opting for site, he shall pay the balance amount of Rs.3,890/- to the opposite parties and he shall bear the cost of the registration of the site.<br /> 4. There is no order as to costs.<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 30th October 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 /> <br /> <br /> <br />