Date of Filing: 11/08/2011
Date of Order: 17/12/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 17th DAY OF DECEMBER 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.Sc.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO.1500 OF 2011
Smt. Lata, W/o. Nandan Balwalli,
Aged About 53 years,
R/at: No.96, Shrinagar, Unkal,
Hubli.
(Rep. by Advocate Sri.Basavaraj.R.Bannur) …. Complainant.
V/s
1) Sri Sai Raghava Developers,
No.23, 1st Floor, 9th ‘A’ Cross,
Wilson Garden, Bangalore-27.
Rep. by its Managing Partner.
(Rep. by Advocate Sri.K.P.Chandrashekar Reddy)
2) N.Cheluvamurthy, Partner,
Sri Sai Raghava Developers,
C/o. Motimahal Hotel, Gandhinagar,
Bangalore.
(Rep. by Advocate Sri.K.L.Shreenevasa) …. Opposite Parties.
BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT
-: ORDER:-
The brief antecedents that led to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Parties to allot the site measuring 60 x 40 in Balajinagar, Attibele in favour of the complainant and execute the sale deed in favour of the complainant in pursuance of the said allotment, ALTERNATIVELY, to direct to allot the site measuring 60 x 40 in favour of the complainant in any other layout adjacent to the Balajinagar, in favour of the complainant and execute the sale deed in pursuance of the said allotment, in case there are no sites are available in Balajinagar layout, ALTERNATIVELY, to pay the sum of Rs.15,92,000/- jointly and severally towards the present market value of the site measuring 60 x 40 in Balajinagar, ALTERNATIVELY to pay Rs.83,000/- towards the full and final settlement of the plot measuring 60 x 40 with interest @ 21% pa i.e., 01.09.1993 till the date of realization, ALTERNATIVELY to pay Rs.3,00,000/- as compensation for mental agony, ALTERNATIVELY to pay Rs.25,000/- towards costs of the litigation charges, are necessary:-
The opposite party No.2 is one of the partner of opposite party No.1 who is the developer had introduced a ‘monthly lucky draw scheme’ in respect of the allotment of sites. Accordingly the complainant became the member of the opposite parties in the year 1993. As they have formed layouts called as “Balajinagar Layout” situated near Attibele, Bommasandra adjacent to N.H.7, the complainant opted for a site measuring 60 x 40 for the price Rs.85,000/-. Accordingly the complainant had to pay Rs.1,000/- per month for 83 months and in case in the lucky draw if she gets, she need not pay further amount. The complainant paid entire amount as per the schedule, but the opposite party made endeour not to include her name in the lucky draw. As on 05.02.1998 she has paid the entire amount. The opposite party went on promising of allotment of site, but till date they have not allotted the site. The opposite party is dragging the matter. Because of this irreparable loss is caused to the complainant. They are liable to pay Rs.3,00,000/- to the complainant towards mental agony. Hence the complaint.
2(a). The opposite party No.1 engaged the service of the advocate and filed its pleadings. The pleadings of the opposite party No.1 i.e., the version is not singed or verified by the opposite party No.1. Hence it is not summarized.
2(b). In brief the version of the opposite party No.2 are:-
The complaint is barred by time. Opposite party No.2 is never the partner of the opposite party No.1 nor is connected to opposite party No.1. Opposite party No.2 is the partner of Hotel Mothimahal, Gandhinagar, Bangalore, doing the said business since long time. All the allegations to the contrary are denied.
3. To substantiate their respective cases the complainant and opposite party No.1 had filed their affidavits. None addressed the arguments. Hence perused the records.
4. The points that arise for our consideration are:-
:- POINTS:-
- Whether there is deficiency in service?
- What Order?
5. Our findings are:-
Point (A) & (B) : As per the final Order
for the following:-
-:REASONS:-
Point A to B:-
6. Reading the pleadings in conjunction with the affidavits and documents on record, it is established that the opposite party No.1 is a developer which as a developer has developed Balajinagar Layout in the name and stile of Balajinagar, Attibele, Bommasandra adjacent to NH-7, issued broachers wherein the parties can become member and they have to pay Rs.1,000/- per month and there will be lucky draw and the person who wins in the lucky draw need not pay the further installments and after completion of the payment or winning the lucky draw they will allot a site in their layout. The opposite party No.1 had written several letters to the complainant in this regard. The copies of these letters clearly establish the same. The complainant had paid Rs.83,000/- in 83 installments up to 05.02.1998. The documents produced by the complainant clearly establishes it. There is nothing to disbelieve the said documents. The signatory of these documents has not filed any affidavit to deny the same. The opposite party No.1 has contended for want of records they are not admitting. How can they say so? The opposite party No.1 never stated that it had not formed any layout near Attibele by name Balajinagar Layout at Bommasandra, adjacent to NH-7, nor it has stated it has not offered a scheme of lucky draw and payment of the amount in installments. This clearly goes to show that the contention of the opposite party No.1 is an untenable one in this regard.
7. Complainant had paid Rs.83,000/- in all and it has not bee repaid to him nor the site has been formed nor the layout has been formed nor it is intimated to the complainant. The statements of the complainant that she was going to the opposite party No.1 several times in these years wherein the opposite party promised to allot the site but has not allotted the site, cannot be disbelieved. It is further seen the complainant had issued notice to the opposite parties as per the address given in the cause title given in the complaint. Those notice was returned with a Shara “No such firm in this address” and no such person in the said address. But the notice of this Forum was also sent to the opposite parties which returned with the same Shara several times and ultimately the notice was published in Udayavani daily newspaper on 20.10.2011. Only after that the opposite party No.1 engaged the service of the advocate and appeared and contested the matter. This clearly goes to show that the opposite party No.1 is avoiding the complainant on one pretext or the other.
8. Receiving money from the complainant agreeing to allot a site and not allotting is nothing but deficiency in service and unfair trade practice as rightly contended. Keeping others money utilizing it for personal use and not delivering the sites is noting but unfair trade practice and deficiency in service.
9. Further the opposite parties never stated that the complainant never approached them nor they said that they have denied the complainant in allotting a site at any part of time earlier to the notice by the complainant. Till the complainant is allotted the site or refused site till then the cause of auction for the complaint exists it never starts. As the notice were returned to the complainant, that means the cause of auction aroused to the complaint only in the year 2011 only when the notice was returned. The complaint filed is well within time.
10. In this case opposite party No.2 is clearly stated that he is not a partner and he has not connected to the opposite party No.1. There is nothing to disbelieve the same. In none of the letters produced by the complainant shows the name of the opposite party No.2 or signature of the opposite party No.2. The complainant has not taken any steps to obtain records from the Registrar to firm show that the opposite party No.2 is the partner of the opposite party No.1 and is liable to answer the claim against opposite party No.1. Hence the case against opposite party No.2 has to be dismissed does not survive.
11. In this case there is no proof to show that any layout has been formed by the opposite party No.1 nor any site is available at any place. Hence under these circumstances if we direct the opposite party No.1 to pay Rs.83,000/- with interest at the rate of 12% per annum from 05.02.1998 until payment we think that will meet the ends of justice. Hence we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Allowed-in-part.
2. The opposite party No.1 is directed to pay to the complainant the sum of Rs.83,000/- together with interest thereon at the rate of 12% per annum from 05.02.1998 until payment within 30 days from the date of this order.
3. The opposite party No.1 is also directed to pay Rs.2,000/- to the complainant towards costs of this litigation.
4. The opposite party No.1 is directed to send the amounts as ordered at Serial Nos. 2 & 3 above to the complainant through DD by registered post acknowledgment due and submit the compliance report to this Forum with necessary documents within 45 days from the date of this order.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both the parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 17th Day of December 2011)
MEMBER MEMBER PRESIDENT
