Date of Filing : 05.02.2010
Date of Order : 30.11.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER
DISPUTES REDRESSAL FORUM,
SESHADRIPURAM, BANGALORE – 560 020
Dated 30th day of November 2011
PRESENT
Sri. H.V.RAMACHANDRA RAO …. President
Sri. BALAKRISHNA V. MASALI, B.A., LL.B.(SPL) …. Member
COMPLAINT NO. 253/2010
Sri.B.Thulasiraman,
S/o.late.B.K.balaswamy,
Aged about 53 years,
R/at No.FC-71,
HAL Quarters, Airport road,
Near TOTAL, Bangalore 560 017.
(By Advocate Sri.M.Ramesh) ……. Complainant
V/s.
The aircraft Employees Co-operative
Society Ltd., No.15, 1st cross,
CKC Garden, Opp. B.O.Hospital,
K.H.Road, Banglaore 560 027.
(By Advocate Sri.A.N.Krishna) ….Opposite Party
ORDER
(By the President Sri. H.V.RAMACHANDRA RAO)
The brief antecedents that led to be filing of the complaint under section 12 of the Consumer Protection Act seeking direction to the OP to get corner site bearing No.1516 of certain measurement by receiving the balance amount are necessary:
1. The complainant is a member of the OP which formed layout near Kudlu, Singasandra and Begur Villages and allotted sites to its members. One M.S.Upendra was a member of the OP, on 21.03.1997 requested the OP to transfer his amount to the account of the complainant. Accordingly Rs.64,500/- has been transferred by the OP to the account of the complainant by taking a transfer fee of Rs.1000/- on 31.03.1997. On 02.07.2001 the OP has written to the complainant stating the corner site No.1516 in A Block measuring 42+41/2 and 46+44/2 has been allotted and demanded a sum of Rs.1,41,464/-. On 4.7.2001 the complainant paid Rs.25,000/- at that time it was told that the entire balance is payable after completion of the entire process of the layout. But nothing happened. Hence complainant issued notice to the OP on 26.05.2007 and on 03.04.2009. The OP gave an untenable reply on 11.04.2009 and gave an option i.e., alternate site will be given in the newly formed layout subject to the availability and other condition. On enquiry they asked not to take further action. Hence the complaint.
2. In brief the version of the OP are:
This is a civil dispute. The membership of the complainant, transfer of amount from Sri. M.S.Upendra are admitted. Payment of Rs.25,000/- is admitted. The OP is not bothered to intimate the nature of work to its members. The complainant has not paid the entire sital value to the OP in time. The site in question is not at all available in the said layout. The complainant has paid in all Rs.89,500/- and he has not paid balance Rs.74,700/-. The complainant was liable to pay Rs.2,16,164/-. As the complainant has not paid the amount in time, the OP without any option allotted the site to the waiting members who have waiting for years. As the complainant defaulted, he lost the right of demanding the expedition of the sale deed. If at all the complainant is interested inallotment of a site it is clearly intimated to the complainant to approach the OP for allotment of a site in the newly formed layout in the Malur layout and Kammanahalli layout subject to the terms and conditions set by the OP.
3. To substantiate their respective cases the parties have filed their respective affidavits and also written arguments
4. The points that arise for our consideration are
A) Whether there is deficiency in service ?
B) What order ?
5. Our answers are:
A) Negative
B) As per the detailed order for the following
REASONS
6. Reading the pleadings in conjunction with the affidavits and documents on record it is an admitted fact that he complainant was a member of OP society he got Rs.64,500/- from M.S.Upendra another member to his credit and he paid another sum of Rs.25,000/- in all sum of Rs.89,000/- to the OP regarding allotment of site. In this regard on 02.07.2001 the OP has allotted one site No.1516 a corner site to the complainant and demanded 1,41,464/- . After receipt of the amount this notice the complainant has paid Rs.25000/- as stated above that is in all he has paid 89,500/- and not the whole amount. From 2001 to 2007 the complainant kept quite. If at all he had any right in that site he would have paid the entire amount and got it registered in his name but he has not done so.
7. Further it is seen that on 26.05.2007 the complainant wrote a letter to the OP. There was no response according to the complainant for this letter. If that were to be so the complainant would have file the complaint within two years there from regarding the particular site. But that has not been filed. Hence complaint in this regarding site in question is barred by time.
8. On 03.04.2009 the complainant has issued a notice to the OP and the OP replied stating that the site is not available and it has been sold to somebody else. If the complainant wanted the particular site he has to file a suit for specific performance, as that cannot be enforced in the consumer forum. It requires detailed pleading, evidence, cross examination. In the sense whether the time was the essence of the contract? to whom? to which member? It was allotted? when it was registered? etc., and whether the complainant has right over the said site as per the allotment letter etc., for that this order will not come in the way, if the complainant approach the Civil court in this regard. Anyway according to the OP the said site is not there and it has been allotted to somebody. There is no per contra material.
9. Anyway it is seen that the complainant has paid Rs.89,500/- to the OP. The OP has not returned it to the complainant and complainant never demanded the balance amount and registration charges from 2007 onwards. The OP has committed cheating and fraud as rightly contended. That has to be decided in the civil or criminal court. hence under these circumstances as the site is not there and it has been sold to others by the OP, if we direct the OP to pay Rs.89,500/- with certain heavy interest that will meet the ends of justice. This order will not come in the way of complainant seeking specific performance before the civil court or complainant seeking alternative site at other layout of the OP. Hence we hold the above points and pass the following.
ORDER
1. The complaint is allowed in part.
2. The OP is directed to pay Rs.89,500/- to the complainant with interest at 18% per annum from 02.07.2001 until payment within 30 days from the date of its order.
3. OP is also directed to pay Rs.2000/- as cost of the proceedings.
4. OP is directed to send the amount as ordered at No. 2 and 3 above to the complainant by DD through RPAD and submit to this Forum a compliance report within 45 days from the date of this Order.
5. Return the extra sets to the concerned parties as under regulation 20(3) of the consumer Protection Regulation 2005.
6. Send copy of this Order to both the parties free of cost immediately.
Pronounced in the Open Forum on this 30th day of November 2011.
MEMBER PRESIDENT
