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

Consumer Complaint (C.C.)No. 1332/2016

Complaint filed on 18.07.2016

Date of Judgement.20.12..2016

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

                                                   PRESIDENT

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

                                MEMBER

Complainant/s       :    1.        Sam Sri Prasad,

S/o Late H.L.Seetharamaiah,

R/at No. 44302,Acushnet   Terrace,

 Ashburn-Virginia-20147, USA,

 Represented by his GPA holder

 I.V. Gundappa,

S/o Late Venkataramaiah,

R/at No. 284m 8^th cross, 31^st main,

Sector-1, HSR , Layout,

Bengalooru-560102.

  (Sri C.M. Venkatesh., Advocate)

V/s

Opponent        /s             :       The Secretary,

Sri Kanaka Kaginele House Building

                                        Co-operative society Ltd., (R)

                                        No. 791, Pushpashree Complex,

                                        13^th main, 4^th stage,

                                        T.K. Layout , Mysore.

(Exparte)

SHRI RAMACHANDRA . M.S., PRESIDENT

JUDGEMENT

The complainant filed through GPA holder of complaint Under Section 12 of Consumer Protection Act, 1986 against the opposite party.

2. The brief facts of the complaint is that the complainant  being highly influenced by the promises made by the opposite party society, has become the member of opposite party society by paying necessary membership fee on 16.02.2009 and his membership number is 1746. Also the complainant is a share holder of the opposite party society under certificate no 1746 from 28.02.2009 in this regard the opposite party society has also issued identity card and pass book to the complainant. Herewith enclosed the membership fee paid receipt, share certificate, identity card and pass book for the kind perusal of this Hon’ble forum and the same are marked as document no .2 2 to 5 respectively.

3. The complainant has applied an application to the opposite party society for the allotment of a site measuring 50 feet by 80 feet, to be formed at Kalavadi and Udbooru village, Jaipura Hobli, Mysore Taluk. The opposite society  has fixed the approximate cost of the same as Rs. 11,00,000/- the complainant as per the notice issued by the opposite party society has paid a sum of Rs,6,00,000/- towards the same on 21.02.2009, under a cheque no 422694, drawn on ICICI Bank . In consideration of the same the opposite party society has issued a receipt bearing no 3870 of even dated to the complainant.

4. It is further submitted that the complainant again as per the notice issued by the opposite party society has paid another sum of Rs. 2,00,000/- to the opposite party society on 15.102009 under DD No. 030501, drawn on SBM. In consideration of the same the opposite party society has issued a receipt bearing No 4618 of even dated to the complainant.

5. Thus the complainant has paid a sum of Ts, 8,00,000/- to the opposite party society towards the site and he is due only in a sum of Rs. 3,00,000/- and he is ready and willing to pay the same as and when demanded by the opposite party.

6. At the time of admitting the complainant as a member of the opposite party society, had promised that the site will be allotted to him within one year. But now even after a lapse of seven long years the opposite party society has not allotted and issued possession letter and other documents and has not completed other formalities to put the complainant in possession and enjoyment of the  site as its absolute owner. It is further submitted that though it is mandatory for the opposite party society to conduct annual meetings, it is not conducting the same. The last meeting was conducted only on 21.09.2014 and thereafter has not conducted any meeting the opposite party society for the period 20.11.2012 and 2013-14.

7. Since the opposite party society has failed to keep up its promise, the complainant has issued a notice through his advocate to the opposite party society on 06.06.2016, calling it to allot a site measuring 50 feet by 80 feet, to issue necessary documents and to execute registered sale deed, with due intimation, within fifteen days from the date of receipt of the said notice. In spite of service of the same the opposite party society has neither complained the demand made in the notice nor has replied to the same. Thus the opposite party society has committed deficiency of service to the complainant As a result the complainant has suffered both mental agony and monetary loss. Hence left with no other alternative the complainant has come up with this complainant. The complainant is seeking relief of order directing the opposite party to issue allotment letter, possession letter and to execute registered sale deed and for award of compensation and other reliefs. As sought in the complainant.

8. The court notice to the opposite party has been duly served through RPAD as per postal acknowledgment produced here with. In spite of the receipt of court notice the opposite party neither appeared not filed the version and affidavit to defend the complaint. And he was placed exparte by order of this forum.

9. The complainant issued legal notice on 06.06.2016 to the opposite party after the receipt of the notice he has not chosen to reply to the notice nor came forward to execute the sale deed.

10. Hence this complaint filed for deficiency in service.

11. Chief examination affidavit of complainant is filed some original documents are produced in support of his claim, arguments heard the matter is posted of orders.

12. The points that arise for our consideration are;-

1. Whether the complainant establishes that there is a sale transaction between complainant and opposite party for allotment of site Kalavadi and Udbooru village, Jaipura Hobli, Msyuru Taluk, The opposite party failed to perform his part of contract thereby there is deficiency in service , as such the complainants is entitle for the reliefs sought?

2. What order?

13. 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

14. Point No.1:- This complaint is filed through GPA holder of complainant  for a direction to opposite party praying for the relief as per the complainant   become the member of opposite party society by paying necessary membership fee on 16.02.2009. and his member ship number is 1746. And complainant is a share holder of the opposite party society under certificate no 1746 from 28.02.2009. These facts is proved and supported by the complainant by way of cogent and convincing evidence.

15. The complaint and opposite party society entered  in to sale transaction of site situated at Kalavadi and Udbooru village, Jaipura Hobli, Msyuru Taluk, measuring 50 X 80 feet , for total sum of Rs. 11,00,000 . The complainant has paid a sum of Rs. 6,00,000/- towards the same on 21.02.2009 under cheque drawn on ICICI Bank. In consideration of the same the opposite party society has issued a receipt bearing no 3870 And further submitted that the complainant again as per the notice issued by the opposite party society has paid another sum of Rs. 2,00,000/- through DD No. 030201 drawn on SBM. In consideration of the same the opposite party society has issued a receipt bearing no 4618 dated 15.10.2009.

16.The complainant in support of his claim has produced Membership receipt,  share certificate, ID card, Pass book, and the invitation letter correspondence from the opposite party and two part payment receipts of sale consideration and the brochures , has established the claim of the complainant and also proved that there is a transaction between. Complainant and opposite party in respect of the purchase of site. These facts is proved by the complainant by way of production of all original documents in support of his complaint.

17. The complainant always ready and willing to perform his part of contract as per the terms and condition of allotment the opposite party failed to discharge his part of terms and conditions.

18. Since the opposite party has failed to keep up his promises to allot the site to the complainant within one year but even after lapse of seven long years opposite party has failed to allot a site and issue possession letter and utterly failed to execute the registered sale deed in favour of the complainant. The opposite party have also committed mistakes by not conducting the annual general body meeting regularly. The lost meeting was conducted on 29.09.2014 in this way the opposite party society is functioning against the rules and regulation of Karnataka co-operative society Act. The conduct of opposite party very clearly shows that they have failed to allot the site to their respective members  and complainant is one among them act of the opposite party, by  not allotting the site on registering the same in favour of the complainant. The opposite party is practising unfair trade practice.

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

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

21. 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 direct to receive the balance amount of Rs. 3,00,000/- from the complainant and to execute registered sale deed  and also issue allotment letter , possession letter , in favour of complainant. in respect of site (50 X 80 feet) situated at, Kalavadi and Udbooru village, Jaipura Hobli, Msyuru Taluk, in accordance with seniority list and availability of site within 60 days of this order.
3. The opposite party is direct to pay compensation of Rs. 25, 000/- and Rs. 3,000/- towards litigation expenses  and Rs. 5,000/-  towards mental agony has to be paid  to the complainant within 60 days of this order.

4. In default to comply, the opposite party shall pay interest at 15%

    p.a. on the said total sum of Rs. 33,000/- 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   20^th December 2016)  

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           :   Sam  Sri   PRASAD

Documents marked on behalf of complainant:

Annexure.1 :         General power of attorney dated 12.05.2016.

Annexure.2 :         Member ship fee paid receipt dated 16.02.2009

Annexure.3 :         Share certificate dated 28.02.2009

Annexure.4 :         Identity card

Annexure.5 :         Pass book

Annexure.6 :         Notices

 Annexure.7          :         1^st Annual meeting invitation period 2011-2012

                             2^nd Annual meeting invitation period 2013-2014

Annexure.8:                    Receipt No 3870 dated 21.02.2009

Annexure.9 :         Receipt No 4618 dated 16.02.2009

Annexure.10:        legal notice dated 06.06.2016

Annexure.11:        Postal acknowledgment

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

Exparte

Evidence by way of affidavit on behalf of OP :

Nil

Documents marked on behalf of OP :

Nil

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

          Member.                                                    President.