BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC.81/11.
THIS THE 27th DAY OF FEBRUARY 2012.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER
*****
COMPLAINANT :- 1. Sri. Suryakanth Anpur S/o. Sharanappa Anpur,
Aged about 50 years, Occ: Driver in Health Department, R/o. H.No. 2-4-4/1, near Mallikarjuna Temple, Navaranga Darwaza Road, Raichur.
2. Sri. Sangamesh Anpur S/o. Sharanappa
Anpur, Aged about 50 years, Occ: Petty Business, R/o. H.No. 2-4-4/1, near Mallikarjuna Temple, Navaranga Darwaza Road, Raichur. .
//VERSUS//
OPPOSITE PARTY :- Sri. Brindavan Enterprises, Real Estate Developers,
Represented by its Propriteor S.K. Nagireddy, S/o. Krishan Reddy, Sri. Krishna Reddy Compound, Behind Chandrakanth Talkies, Maruthi Nagar, Gunj Road, Raichu.
CLAIM :- For to direct the opposite to execute registered sale deed and to hand over the possession of plot Nos. 66 & 67 situated in the lay out formed by it in Raichur and for to award an amount of Rs. 25,000/- towards damages.
Date of institution :- 16-11-11.
Notice served :- 17-11-11.
Date of disposal :- 27-02-12.
Complainant represented by Sri. G. Amaregouda, Advocate.
Opposite represented by Sri. Gururaj Joshi, Advocate.
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This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi, President:-
This is a complaint filed by the complainant Nos. 1 & 2 against opposite Brindavan Enterprises, Real Estate Developers Raichur U/sec. 12 of Consumer Protection Act for to direct the opposite to execute registered sale deed and to hand over the possession of plot Nos. 66 & 67 situated in the lay out formed by it in Raichur and for to award an amount of Rs. 25,000/- towards damages.
2. The brief facts of the complainants case are that, opposite Brindavan Enterprises, Real Estate Developers started developing land bearing Sy.Nos. 935/4, 935/5. 935/6 & 935/7 to the extent of 10 acres 16 guntas in Bolamandoddi Raichur. It started selling of plots by monthly lucky dip scheme. The complainant Nos. 1 & 2 are the members of the said scheme, paid monthly installments of Rs. 400/- from 22-08-96. The complainant No-1 paid dull 64 installments. Complainant No-2 paid 16 installments and he won a plot at 17th month, in the lucky dip draw by the opposite, thereafter both the complainants paid development charges, but opposite not registered plots in their names, they have requested several times and also issued legal notices, but opposite shown its negligence in executing registered sale deed in handing over the possession of the said plots to them. Hence, both of them have filed this single complaint for the reliefs as noted in it.
3. Opposite appeared in this case through its Advocate, filed its written version by admitting the fact, of developing the land and allotment of sites to its members. According to it, complainants have not paid developmental charges, in spite of several requests, other members paid as such, no action was taken in respect of allotment of plots to complainant Nos. 1 & 2, there was no negligence on its part either in registering the plots or in handing over plots to complainants. This complaint is not maintainable and this Forum has no jurisdiction to try this case, as the case of complainants is of civil in nature, there is no deficiency in its service and prayed for to dismiss the complaint among other grounds.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant Nos. 1 & 2 have proved the deficiency in service by the opposite in non execution of registered sale deed in respect of the plot bearing Nos. 66 & 67 respectively and in not handing over the possession of them, in the lay out formed by it.?
2. Whether complainant Nos. 1 & 2 are entitled for the reliefs as prayed in the complaint?
3. What order?
5. Our findings on the above points are as under:-
(1) In Negative.
(2) In Negative.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 & 2:-
6. To prove the facts involved in these two points, affidavit-evidence of complainant No-2 was filed, he was noted as PW-1. Totally (!0) documents produced and got marked as Ex.P-1 to Ex.P-10. On the other hand affidavit-evidence of Proprietor of opposite Brindivan Enterprises was filed, he was noted as RW-1. Documents Ex.R-1 to Ex.R-14 are marked. Written arguments filed.
7. In view of the pleadings of the parties, their respective affidavit-evidences and documents filed before us that, the points that arise for our consideration and determination are that, whether the complainant Nos. 1 & 2 are the consumers within the meaning and definition of consumer U/sec. 2(1)(d). Further, whether these complainants are entitled to file consumer complaint as defined U/sec. 2(1)(b) of the C.P. Act. Further, whether the complainants have established the alleged service required to be done by the opposite within the meaning and definition of section 2(1)(o) and whether non performing the alleged request of complainants is deficiency in service by it within the meaning and definition of section 2(1)(g) or whether it is unfair trade practice within the meaning and definition of 2(1)(R) of the said Act.
Before discussing the legal aspects of those matters, it is proper to us to go through the pleadings of the complainant shown at Para-4 & 5 of the complaint, if we appreciated the facts stated in Para-4 & 5 in the complaint, then it is easy for us to answer above questions.
As per the pleadings in Para- 4 & 5 of the complaint, it is very much clear that, opposite Brindavan Enterprises, Real Estate Developers have launched the scheme for to allot a plot to its members by name monthly lucky dip scheme. In the said scheme, monthly lucky dip is being drawn for to allot plot to the winner under the lucky dip scheme.
8. Para- 5 of the complaint is very much clear and specific that, complainant No-2 won a plot in the 17th month of lucky dip scheme. Para-4 also clear that, complainant No-1 paid entire scheme amount towards purchase of the plot under the said scheme. Keeping in view of these facts regarding the purchase of plots complainant Nos. 1 & 2, we have to see that, whether these complainant Nos. 1 & 2 are coming under the meaning and definition of consumer 2(1)(d). Admittedly the complainants not purchased those plots as claimed in their complaint on specific consideration from opposite. It is not a case of deferred consideration or part consideration and part deferred consideration. The alleged transaction in between the complainants and opposite is purely based on luck. Those, who have got luck in monthly lucky dip scheme, they are entitled for plots, it is not out and out sale between complainants and opposite. In view of such circumstances, the case of complainant Nos. 1 & 2 as pleaded by themselves are not showing or establishing that, they are the consumers as defined U/sec. 2(1)(d) of the said Act.
9. The alleged service required to be done by the opposite, is not at all coming under the meaning and definition of section 2(1)(o) of the C.P. Act. As such the alleged act of opposite is not attracting either section 2(1)(g) or section 2(1) (R) of the said Act. Mere payment of certain amount on lucky dip scheme by these complainants they cannot become a consumer to raise consumer dispute within the meaning and definition of section 2(1)(e) of the C.P.Act.
10. The learned advocate for complainant referred one ruling, Udaya Menikerikar V/s. Vasant J. Keridikar 2004(1) CPJ 99 and submitted before us that, the consumer forum have got jurisdiction to direct the opposite to execute a sale deed and to hand over the possession of those plots. On the other hand, the learned advocate for opposite submitted before us that, the facts of that ruling are different to the facts of this case and principles held in the said ruling are not applicable to the facts of this case and prayed for to dismiss the complaint. Keeping in view of the submissions made on both sides and in reference to the ruling relied upon by the complainants, we are of the view that, this consumer forum has got jurisdiction to direct the opposite to execute the sale deed and to hand over the possession only if, the sale transaction was an out an out sale transaction, and its negligence in performing its service, then only complainants are a consumers within the meaning and definition of section 2(1)(d) of the C.P. Act. In the present case, purchase of the plots by the complainants under lucky dip scheme is not a purchase for specific consideration. Entire said transaction depends on the luck of each complainant, as such they cannot be a consumer, they cannot raise consumer disputes and allegations made against the opposite are not said to be a deficiency in its service or unfair trade practice adopted by it. Accordingly the complaint is not maintainable before the consumer forum.
11. Another peculiar point noted by us is that, complainant No-2 contending that, he purchased plot No. 66 on full payment of Rs. 25,600/- by paying the installment from 22-08-96 till 02-11-03. Complainant No-2 is contending that, he paid only 16 installments from 22-08-96 to 18-03-98 total amount of Rs. 6400/- and he won the plot under lucky dip scheme on the 17th month. From the said pleadings it is quite clear that, the case of complainant is quite different to the case of complainant No-2. Cause of action arose to them are on different footings when such being the case of each of them, then how they can club their different cases in one case and how they filed a single complaint against opposite. In this regard also the single complaint filed by both of them against opposite is not maintainable.
12. By taking into consideration of above, legal aspects of this case, along other aspects urged before us by both the parties at the time of arguments, we answered Point No-1 in Negative.
13. In view of our finding on Point No- 1, the complainant Nos.1 & 2 are not entitled for any one of the relief’s as prayed in this complaint, accordingly it is also answered in Negative.
POINT NO.3:-
14. In view of our findings on Point Nos- 1 & 2, we proceed to pass the following order:
ORDER
This complaint filed by the complainant Nos. 1 & 2 against opposite is dismissed.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 27-02-12)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
