Complaint filed on: 27-05-2010 <br /> Disposed on: 16-09-2010<br /> <br /> BEFORE THE BANGALORE IV ADDITIONAL DISTRICT <br /> CONSUMER DISPUTES REDRESSAL FORUM,<br /> BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 <br /> <br /> C.C.No.1199/2010<br /> DATED THIS THE 16th SEPTEMBER 2010<br /> <br /> PRESENT<br /> <br /> SRI.D.KRISHNAPPA., PRESIDENT<br /> SRI.GANGANARASAIAH., MEMBER<br /> SMT. ANITA SHIVAKUMAR. K, MEMBER<br /> <br /> Complainant: - <br /> <br /> Sri.Ramadevaru s/o <br /> Marilingegouda,<br /> Aged about 53 years, <br /> R/o No.20, 6th cross,<br /> Saraswati pura,<br /> Opp. Deepak Sahakaari bank, <br /> Nandini layout, Bangalore-96<br /> <br /> V/s<br /> <br /> Opposite party: - <br /> <br /> Sri.K.G.Srinivasa, <br /> Managing Director, <br /> Saptagiri Apartments,<br /> Sapta Gruha, No.301,<br /> 16th cross, Opp. Akshaya <br /> Kuteera Apartments,<br /> Sampige road, Malleshwaram, <br /> Bangalore-10 <br /> <br /> <br /> O R D E R<br /> <br /> SRI. D.KRISHNAPPA., PRESIDENT., <br /> <br /> The grievance of the complainant against the opposite party [hereinafter called as OP for short) in brief is that, as per the advertisement issued by the OP, he became a member of the OP for purchase of a site and he was given membership number as 159 and 160. That on 16-7-1997 he has paid Rs.24,000-00 as a membership amount to the OP. That the OP advertised that, which ever members have paid monthly installments as per the memorandum of understanding between them, they conduct lottery every month and which ever member wins the lottery in the monthly draw that member would be given a site. That the OP when conducted the lottery during 3rd monthly draw on 12-9-1997, he with his membership No.159 became a successful winner. On the same day, the OP wrote him a letter declaring him as the lucky winner, that he need not to pay any further installments. That as per letter the dated 12-9-1997, he on several occasions requested the OP to allot a site in his favour as he is a lucky winner but the OP did not take any action. Thereafter he got issued a legal notice narrating all details, but the OP issued untenable reply and avoided allotment of a site intentionally and therefore has contended that the cause of action for the complainant arose on 20-2-2010 and has prayed for a direction to the OP to register a site in his favour and also to pay damages. <br /> <br /> 2. The OP has appeared through his advocate and filed version, admitting to have issued member ship Nos.159 and 160 to the complainant and also receipt of Rs.24,000/- as advance payment. That the complainant had booked a site measuring 60 X 40 ft under the scheme of lucky draw. Independent number was allotted for a site measuring 30 X 40 ft, admitting that the complainant was a lucky winner in his membership No.159 on 12-9-1997. That he was declare as lucky winner and also informed that he was required to pay further monthly installment towards his membership No.160 representing the other half portion of site booked by him in the same letter he was informed to pay developmental charges towards his membership No.159. But he has not paid developmental charges and also towards other membership number. Denying that the complainant made several requests, by further elaborating that allotment of a site being made to the members on payment of installments has contended, if a member opts to purchase a site measuring 60 X 40 ft then he will have two units, if one unit is priced then he need not have to pay any further installments for the said unit. However he has to pay remaining installments of the other unit along with the developmental charges for both the units and completion of payment of the installments registration of both the units would be done on the said member. But the complainant has not paid the installments regularly towards other unit. The complainant after going through the condition in this regard had become a member and paid Rs.24,000/-. As the complainant has not paid the installments with regard to the unit No.160 he could not get the site registered. That in spite of the irregular payment he addressed a letter to the complainant on 12-7-2003 to come forward with the details to registration of property in his name and to give details of payments made and due if any but did not respond. Despite receipt of that letter informing the scheme lunched on 18-7-1997 and ended on 12-4-2001 and inspite of repeated reminders the complainant did not make payment therefore what ever money he had paid was paid back to the complainant through cheque on 19-5-2005 for Rs.46,500/- to the complainant. Taking into consideration another payment of Rs.22,500/- paid by him during August 2008 has stated that the complaint is barred by limitation therefore has prayed for dismissal of the complaint. <br /> <br /> 3. In the course of enquiry into the complaint, the complainant and the OP have filed their affidavit evidence. The complainant alongwith the complaint has produced a copy of the receipt under which he had made payment, copies of letter sent by the OP to him under whom the OP had informed the complainant about his winning in the lottery towards membership No.159 and not to pay further installments in respect of that membership. The complainant has also produced copies of letters he had alleged by addressed to the OP with copy of a legal notice he got issued and reply sent by the OP through his advocate. The OP has produced affidavit of seven of his member to whom sites were allotted who had also win the lotteries. We have heard the counsel for both parties and perused the records.<br /> <br /> 4. On the above contentions following points for determination arise.<br /> 1. Whether the complainant proves that OP has <br /> caused deficiency in his service in not allotting a site in his favour by virtue he is being a winner in the lottery?<br /> 2. To what reliefs, the complainant is entitled to?<br /> <br /> 5. Our findings are as under:<br /> Point no.1: In the affirmative <br /> Point no.2: See the final Order<br /> <br /> <br /> REASONS<br /> 6. Answer on Point No.1: The OP has taken a contention that the complaint is barred by limitation as it is filed after lapse of 12 years. Admittedly the complainant become a member of OP on 16-7-1997 for purchase of a site measuring 60 X 40 ft. Even according to him, he was a lucky winner in the lottery conducted by the OP under which he was entitled for allotment of a site under membership no.159 and he was required to pay developmental charges and in this regard, relied upon letters of OP dated 29-9-1997 and 12-9-1997. The OP has also admitted that the complainant was a lucky winner and under the second letter the OP has categorically stated that the complainant was required to pay development costs. But the complainant after receipt of these letters found to have kept quite without paying development charges and did not demand for allotment of site. Then the complainant shown to have addressed two letters on 14-9-1997 and 20-11-1998 requesting the OP to allot a site No.159 and to register the document, thereafter he will pay the development charges. But he has not produced any documents to show whether the letters served on the OP or not. The complainant after addressing the alleged letter dated 20-11-1998 admittedly step over the issue thereafter he woke up and addressed another letter to the Op during 2009, from the year 1998 to 2009 the complainant admittedly has not made any correspondences in writing by complying the requirement of paying developmental charges. Thereafter again on 20-2-2010 the complainant shown to had sent another letter to the OP and got issued a legal notice on 16-4-2010 which was replied by the OP on 13-5-2010. The complainant therefore has not explained as how he kept quite from 1998 till 2009. Therefore the cause of action for filing the complaint which arose on 12-9-1997 started running and if the OP had not acted upon as per the lottery scheme the complainant ought to have filed complaint within two years from the year 1997 or 1998, but did not do so. The complainant without any correspondence from the year 1998 onwards took up the issue only during September 2009 by that time limitation for filing the complaint had expired and therefore the complaint now filed is barred by limitation. The complainant has also not filed any application for condoning the delay as such the complaint is liable to be dismissed as barred by limitation. <br /> <br /> 7. Coming to the merits of the case, the OP has stated that the complainant become a member was given two membership as 159 and 160 by making 60 X 40 ft site into two units as 30 X 40 ft and stated that the complainant was a lucky winner under membership No.159. It is indicated in the communication sent by the OP to the complainant informing that the complainant was a lucky winner of 30 X 40 ft site and he was required to pay installments for remaining 30 X 40 ft site to make a full site as 40 X 60 ft for allotting him as desired by him. The OP further stated that the complainant did not pay further installments in respect of membership No.160 for allotting that site in favour of the complainant and that the complainant also failed to pay the developmental charges. Thus the OP has contended the complaint when failed to follow the conditions he was not given the site and has further referred to the letter addressed to the complainant on 20-5-2005 and stated when the complainant did not respond to that letter they sent back what ever money the complainant had paid through a cheque dated 19-5-2005 and has stated that he has refunded Rs.46,500-00 to the complainant. The complainant has not at all denied this fact as narrated by the OP therefore it emerges that under the lottery scheme if the member had applied for a site measuring 40 X 60 ft he was given two membership by splitting 60 X 40 ft site into two measuring 30 X 40 ft as the complainant was a lucky winner of membership no.159 he got free site measuring 30 X 40 ft., but he was required to pay installments under other membership no.160 towards the other site measuring 30 X 40 ft which would come to 60 X 40 ft as desired by the complainant. The complainant without following it after winning a lucky dip kept quite by not paying installments towards other half site measuring 30 X 40 ft and when the complainant did not respond to the letter of the OP, the OP found to had refunded the complainant’s money. The complainant has not denied receipt of cheque for Rs.46,500/- nor its encashment. In the course of arguments, when a question was raised by this forum, the counsel for the OP submitted that the complainant has not encashed the cheque sent to him nor returned that cheque and thereby further stated that the amount of Rs.46,500/- is not realized by the complainant. Then the counsel for the complainant realized and submitted that the complainant had not encashed the cheque sent by the OP. Therefore the OP is liable to refund Rs.46,500/- to the complainant. Though the complainant has not encashed cheque but taking into consideration that money was still at the disposal of the OP and it was not parted, the OP in over view is liable to pay interest from the date of respective receipts of two payments made by the complainant. Here the complainant, in view of his own default is not entitled for allotment of site. However is entitled for refund of money. With the result, we answer point No.1 in the affirmative in part and pass the following order. <br /> <br /> ORDER<br /> <br /> Complaint is allowed. OP is directed to refund Rs.46,500/- with interest at 16% per annum from the date of receipt of payment till the date of the payment. OP shall pay that amount within 60 days from the date of this order.<br /> <br /> OP shall also pay cost of Rs.2000/- to the complainant. <br /> <br /> Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 16th September 2010.<br /> <br /> <br /> Member Member President<br /> <br /> <br />