Complaint filed on: 27-09-2022

                                                      Disposed on: 24-08-2023

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

DATED THIS THE 24^th DAY OF AUGUST 2023

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SRI.KUMARA.N, B.Sc. (Agri), LL.B., MBA., MEMBER

SMT.NIVEDITA RAVISH, B.A., LL.B.(Spl)., LADY MEMBER

Consumer Complaint No.143/2022 

Smt. M. Chayakumari W/o Anandamallappa,

Aged about 58 years, R/at No.8, HIG,

KHB Vasanthanagara, Sira Gate,

Tumkur Town.

………..Complainant    

(By Sri.Arun Kumar , Advocate)

V/s

1.       The Commissioner,

          Karnataka Housing Board,

          Kaveri Bhavan, Bangalore.

2.       The Assistant Executive Engineer,

          Karnataka Housing Board,

          District Planning Office,

          Aralimaradapalya, Tumkur.

………Opposite Party/s

(By Sri.Rajendrakumar .A, Advocate)

:O R D E R:

BY SMT.NIVEDITA RAVISH –  LADY MEMBER

This complaint is filed Under Section 35 of the Consumer Protection Act, 2019 to direct the Opposite Parties (hereinafter called as OPs) to pay a sum of Rs.17,38,912-00, sum of Rs.2,00,000-00 towards mental agony and Rs.2,00,000-00 as damages and other incidental relief’s together with interest at 10% p.a from the date of complaint to till the date of payment together with costs.

2.       The OP No.1 is Commissioner, KHB, Kaveri Bhavan, Bengaluru and OP No.2 is the Assistant Executive Engineer KHB, District planning officer, Tumkur. (hereinafter called as OPs). The OPs have published advertisement in daily newspaper for allotment of sites formed by them and according to the said advertisement the complainant had filed application on 19.06.2006 for allotment of site or house. Thereafter OPs have given allotment letter pertains to site/house property no.8, HIG, AM Palya, Sira Gate, Tumkur and the complainant has paid total amount of Rs.3,44,600-00 as fixed by OPs. Further OPs have assured the complainant to execute the registered sale deed in her favour. But till date the OPs have not executed any registered sale deed in favour of the complainant. In 2019, the complainant has approached this Hon’ble Commission with CC No.182/2019. After filing the objection, the OPs have assured the complainant that they have execute the registered sale deed in favour of the complainant if the complainant paid additional amount of Rs.13,82,762-00. As per assurance of the OPs the complainant withdrawn the CC No.182/2019 filed before this Commission. Though the complainant has paid Rs.13,82,762-00 through her husband’s account bearing cheque no.494627 dated 12-7-2021, the OPs have not executed any registered sale deed in favour of the complainant. After sending legal notice on 04-11-2021 the OPs have not executed registered sale deed of the allotted site/house to the complainant. Thus the OPs have committed the act of negligence and deficiency in service hence, this complaint.

3.       The OP No.1 and 2 were appeared before this Commission through their common counsel after the service of notice by this commission and filed their version. The OPs have denied the all allegations made by the complainant as false and submitted that, house no.8, HIG, AM Palya, Tumkur was allotted as per temporary allotment letter dated 27-11-1991, and notice of allotment dated 23-7-1992 for temporary allotment for Rs.1,80,000-00 and final allotment for Rs.3,54,600-00, to Shri Anandamallappa who has the husband of the complainant. Further the OP has submitted that, the lease cum sale agreement registered on 10-2-1995 and Rectification deed of lease cum sale agreement registered on 25-03-1996 to Shri Anandamallappa and Shri.Anandamallappa paid totally Rs.1,36,000-00. Further, OP has submitted that, Shri. Anadmallappa did not paid yearly installment (ªÁ¶ðPÀ PÀAvÀÄ) amount of allotted house and for the same, the OPs have cancelled the allotment of Shri.Anandamallappa on 21.03.2000 and Shri.Anandamallappa filed original suit in the 1^st Additional Civil Judge (Sr.Dn) Tumkur. But Shri.Anandamallappa wrote letter on 6-5-2006 and requested to allot the house no.8. HIG A.M Palya, Tumkur (which was allotted earlier to Shri.Anandamallappa) in the name of the complainant. As per the request of Shri.Anandamallappa, the house no.8, KHB colony, AM Palya, Tumkur was re-allotted to the complainant in the O R S scheme on 21-6-2006 for final amount of Rs.3,54,000-00 on the basis of “As is where is basis” but the lease cum sale agreement was not cancelled, it is remained in the name of Shri.Anandamallappa. Further OPs have admitted that, the complainant has paid Rs.11,550-00 and Rs.3,44,600-00 totally paid Rs.3,56,150-00 and OPs have determined the marginal land of the allotted house to the complainant for Rs.5,06,338-00. The said amount reached as Rs.12,63,093-00 with interest from 23-10-2007 to 30-09-2019 and with penalty. Shri.Anandamallappa, husband of the complainant paid Rs.7,65,462-00 to the bank account of the OPs on 8-7-2020.  Further OPs have submitted that, they have registered the sale deed on 9-8-2021 in the name of Shri.Anandamallappa who is the husband of the complainant on the request made by the complainant and Shri.Anandamallappa by way of joint affidavit dated 02-8-2021 and allotment of house No.8 HIG AM Palya, Tumkur cancelled which was allotted to the complainant. Hence the OPs have submitted that, they have resolve the problems of the complainant and her husband as per the notice and order of the OP No.1 and prayed for dismissal of the complainant with cost.

4.       The counsel for complainant filed evidence of the complainant by way of affidavit and submitted at the time of filing the affidavit that he is going to mark 28 documents, but the complainant marked only 22 documents, which are marked as Ex.P1 to P22(But in the order sheet it is written as Ex.P1 to P28)  and one Shri.Haleshappa. S.L, Assistant Executive Engineer, Karnataka Housing Board, Tumkur has filed his affidavit evidence on behalf of both OPs with 2 documents which are marked as Ex.R1 and Ex.R2. Further OPs have produced some documents/annexure with memo for perusal.  

5.       Heard arguments on both sides on main and perused the written arguments, complainant, version, affidavit of both sides and documents filed by the both sides and the points that would arise for determination are;

1. Whether complainant proves the deficiency of service on the part of OPs?

2. Is complainant entitled to the relief sought for?
6.        Our findings on the aforesaid points are as under:

Point No.1: In the Negative

Point No.2: Negative as per the final order

                   for the following;

:REASONS:

Point Nos.(1) & (2):-

7.       Counsel for the complainant has argued that, OPs have published advertisement in daily newspaper for allotment of sites formed by them. To prove the same the complainant has produced Ex.P1/ copy of paper cutting of daily newspaper Ex.P1 reflecting that, it is the paper cutting of “Prajavani”, dated 26^th November 2001 and also reflecting the details as (¥ÀæPÀluÉ ¸ÀASÉå – PÀ UÀȪÀÄ/ºÀAaPÉ/¥ÀæPÀluÉ/ªÀÄ£É/¤ªÉñÀ£À/201/2001-02 ¢£ÁAPÀ:23-11-2001, PÀ£ÁðlPÀ UÀȺÀ ªÀÄAqÀ½AiÀÄ F PɼÀV£À §qÁªÀuÉUÀ¼À°è ªÁ¸ÀPÉÌ AiÉÆÃUÀåªÁzÀ ¤ªÉñÀ£ÀUÀ¼ÀÄ/ªÀÄ£ÉUÀ¼ÀÄ/§ºÀĪÀĺÀr PÀlÖqÀUÀ¼ÀÄ ºÀAaPÉUÁV ®¨sÀå«gÀÄvÀÛªÉ.  Further 2^nd page of Ex.P1 reflecting that, vÀĪÀÄPÀÆgÀÄ f¯Éè, J.JA.¥Á¼Àå-ºÉZï.¦.f – 3,4,7,8,4. Hence the Ex.P1 establishes that, the OPs were published for allotment of site/house formed by them. Further the counsel for complainant has argued that, complainant had filed application on 19-6-2006 for allotment of site or house before the OPs. Page number 34 of annexure produced by the OPs / copy of Applicant form for Registration / Allotment proves that the complainant filed the application before OPs on 19-6-2006 and Ex.P2/ copy of notice of allotment letter dated 21-6-2006 proves that the OPs have allotted house no.8 HIG AM PALYA, Tumkur  to the complainant.  Further the counsel for complainant has argued that, the OPs have fixed the final cost of the house as of Rs.3,56,150-00 and complainant has paid sum of Rs.11,555-00 and Rs.3,44,600-00 through DD to the OPs. The OPs we also admitted the same and Ex.P2, Ex.P3/ copy of the bank receipt proves the same. Further counsel for the complainant has argued that though the complainant has paid final cost fixed by the OPs, the OPs have not executed any registered sale deed pertains to allotted property till 2019 and the complainant filed the complaint in CC No.182/2019 before this Commission. Ex.P14/ copy of complaint, CC No.182/2019, Ex.P13/ copy of the order sheet pertains to CC No.182/2019 proves that, the complainant filed the complaint against the OPs before this Commission. Further counsel for the complainant has argued that, while proceedings of CC No.182/2019 OPs were assured that they will execute the registered sale deed pertains to alternative HIG – II House No.8 in the favour of complainant if she paid additional amount of Rs.13,82,762-00 and the complainant has withdrawn the CC No.182/2019 as believe on the assurance made by the OPs. On perusal of Ex.P13/ copy of the order sheet of CC No.182/2019 it is reflecting that, the case was advanced on                07-07-2021, Sri.Anandamallappa files NOC Vakalath for complainant and Ex.P13 reflecting as “the learned counsel presented a memo signed by complainant stating that the matter is settled outside the Commission. In view of memo filed by complainant, this complaint is disposed off as withdrawn”.  Further Ex.P13 reveals that the complainant and counsel for the complainant have signed in the order sheet dated 7-7-2021 in CC No.18/2019. The order Sheet of CC No.182/2019 has not reflecting that, what the OPs assured to the complainant because the matter was settled out side of the Commission. Further counsel for the complainant has contended that, though Rs.13,82,762-00 paid to the OPs, OPs have not registered the sale deed in favour of the complainant, but on verification the complainant to know that the OPs have allotted the same property to one Shri.Raghunath K.B and the complainant produced the Ex.P10/ copy of notice of allotment given to one Shri.Raghunath K.B dated 22-1-2002, Ex.P11/ copy of the sale deed which is in the name of Shri.Raghunath.K.B. But comparing Ex.P10, Ex.P11 with Ex.P2/ copy of notice of allotment of the complainant, it reveals that, the OPs have allotted house No.8 HIG A.M Palya, Tumkur to the complainant and SITE NO.8 HIG A.M Palya, Tumkur to one Shri.Raghunath. Thus, it confirms that the OPs have not allotted the house no.8 HIG A.M Palya, Tumkur to one Shri.Raghunath.

8.       Counsel for the OPs have contended that, house no.8 HIG was allotted to the Shri. Anandamallappa on 1991-9992 who is the husband of the complainant. Ex.P14/copy of the complaint in CC.No.182/2019 produced by the complainant itself is reveals that, Shri. Anandamallappa and complainant are the husband and wife.   Ex.P17/copy of the allotment letter dated 23-7-1992 produced by the complainant proves that the OPs have allotted the house no.8 HIG A.M Palya, Tumkur to Shri.Anandamallappa.

9.       Further counsel for OPs have argued that, Shri.Anadmallappa has not paid yearly installments and Shri.Anandamallappa filed O.S No.122/1999 in the 1^st Additional Civil Judge (Senior Division) Tumkur. As per para 30 of Annexure 11 / copy of the judgment passed in O.S. No.122/1999 produced by OPs proves that, the Shri. Anandamallappa has not paid full amount fixed by the OPs. Further counsel for the OPs have contended that, Shri.Anandamallappa has requested with OPs to register the sale deed of said house under ORS scheme in the name of the complainant who is the wife of Shri.Anandamallappa.  Annexure 8/copy of the affidavit of Shri. Anandamallappa dated 20-6-2006 proves the same. Further, Ex.P1/copy of notice of allotment dated: 21-6-2006 produced by the complainant proves that, the OPs have allotted said house to the complainant at next day from request made by the Shri. Anandamallappa.  The OPs themselves admitted that, though the said house allotted in the name of complainant, the Lease cum sale agreement which was stood in the name of husband of the complainant has remained without cancellation.  Further counsel for the OPs have admitted that, the complainant has paid Rs.3,56,150-00 (11,550+3,44,600) with D.D number 512185 and 494859. Further counsel for the OPs have contended that, OPs have issued the letter about cost of marginal land as Rs.5,06,338-00 on 23-10-2007 and Annexure 10/ copy of the letter which was received and signed by the complainant proves the same and counsel for the OPs have argued that the complainant has not paid the total cost of marginal land of Rs.12,63,093-00 with penalty and interest from 23-10-2007 to 30-9-2019. Hence OPs have not made registration of sale deed in favour of the complaint. But after withdrawal  of CC No.182/2019 filed before this commission, the complainant and her husband Shri. Anandamallappa have submitted joint affidavit to OPs on 23-06-2020 by swearing that, OPs may register the house no.8 HIG A.M Palya, Tumkur in the name of the complainant. Ex.R1/ copy of joint affidavit sworn by complainant and Shri. Anandamallappa, husband of the complainant proves the same. Further counsel for the OPs have submitted that, shri. Anandamallappa paid Rs.7,65,462-00 on 8-7-2020 Ex.P22/copy of cash paid receipt produced by the complainant proves the same. Counsel for the OPs have contended that, they have wrote letter on 29-6-2021 to Shri Anandamallappa about registration of sale of the said house by stating that, after paying Rs.13,82,762-00, the OPs have registered the sale deed in favour of whom they want/wish. Annexure 15 produced by the OPs establishes the same. Further the counsel for the OPs have contended that they have not done any deficiency in service and they have executed the registered sale deed of house no.8 HIG A.M Palya, Tumkur in favour of Shri. Anandamallappa as per wish of complainant and Shri Anandamallappa.  To prove the same OPs have produced the Ex.R2/True copy of joint affidavit sworn by the complainant and Shri. Anandamallappa in which the complainant has given consent to execute the registration of sale deed of said house in the name of Shri. Anandamallappa by adjusting all the amount paid by the complainant in favour of Shri. Anandamallappa. The complainant has only objected to mark the xerox copies as Ex.R1 and R2 after marking of the same.  But the complainant has not denied the contents of the Ex.R1 and R2.  When the complainant has given consent to adjust the amount of Rs.17,38,912-00 paid by the complainant in favour dues Shri. Anandamallappa.  As per Ex.R2,  the complainant has no right to ask for refund of the Rs.17,38,912-00 as prayed by her. Further, the complainant herself produced Ex.P19/ copy of registered sale deed for marginal land dated 4-8-2021 and Ex.P20/copy of registered sale deed dated 4-8-2021, which are registered in the name of Shri.Anandamallappa.

10.     As per Annexure 15, the OPs have issued a letter on 29-6-2021 to pay Rs.13,82,762-00 and they will registered the sale deed in the name whom they want either complainant or Shri Anandamallappa, and as per Ex.R2 the complainant and Shri Anandamallappa executed the joint affidavit on 2-8-2021 requesting / swearing they have no objection to execute the registration of sale deed in the name of Shri Anandamallappa. Further as per annexure 22 produced by the OPs, the Ops have cancelled the allotment of made to complainant by adjusting the paid amount by the complaint with dues payable by her husband Shri. Anandamallappa and as per Ex.P19, Ex.P20 the OPs have registered the sale deed of marginal land and sale deed of house no.8 HIG A.M Palya, Tumkur in the name of Shri. Anandamallappa on 4-8-20212 as per consent given by the complainant through Ex.R2.  Hence we have not found any deficiency in service on the part of the OPs.  Hence, the complaint is liable to be dismiss. Accordingly we pass the following:-     

:ORDER:

The complaint is dismissed without cost.    

Supply copy of this order to both parties at free of cost immediately.