COMPLAINT FILED: 25.08.2009
DISPOSED ON: 07.06.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
7th DAY OF JUNE-2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NOS.2044/2009 AND 2045/2009
COMPLAINT NO.2044/2009 COMPLAINANT COMPLAINT NO.2045/2009 COMPLAINANT | G.S.Shashidhar S/o G.N.S.Upadhyaya, Aged about 56 years, Residing at No.47/3, 5th Main, Chamarajpet, Bangalore-18. T.Ramakrishnaiah S/o late T.Junjaiah, Aged about 66 years, now residing at No.257, 7th Main, Saraswathi Nagar, Vijayanagar, Bangalore-40. Advocate : K.Vishwanath Shetty V/s. |
OPPOSITE PARTY | The Kendra Upadhayara Sangha, Bangalore South Taluk, No.24, Sybbarama Setty Road, Basavanagudi, Bangalore-04. Rep. By its General Secretary. Advocate : Puttasiddappa |
O R D E R
Sri.B.S.REDDY,PRESIDENT
1. The OP in both these complaints is common, the questions involved and the relief’s claimed is similar, as such both these complaints are disposed-off by this common order.
2. The complainants filed these complaints U/s 12 of the Consumer Protection Act of 1986 seeking directions against the opposite party (herein after referred to as OP) to allot/convey alternative site or to refund the amount with interest at 12% p.a. and for compensation for the mental agony, hardship and inconvenience caused, with costs of the proceedings, on the allegations of deficiency in service on the part of the OP.
3. The brief averments made in the complaints are as follows:
These complainants being the members of the OP applied for allotment of sites in the Layout proposed to be formed by the OP. They deposited the entire amounts towards cost of the sites applied for and the OP formed Layout in Sy.No.63(2) and 63(3)of Jaraganahalli Village, the sites were allotted to these complainants, the OP also executed registered sale deeds dt.20.11.1993 in favour of the complainants. Site No.60 measuring 40 X 61 feet was allotted and registered in favour of the complainant in complaint No.2044/2009, site No.49 measuring 40 X 40 feet was allotted and registered in favour of the complainant in complaint No.2045/2009. The Banashankari Temples authorities approached the Special Deputy Commissioner, Bangalore District complaining about the illegal execution of sale deeds and formation of the sites in the said Survey numbers claiming that those lands belongs to the temple. The Special Deputy Commissioner initiated enquiry against the OPs and other allottees of the sites and passed orders on 07.10.1998 in case No.DVS.CR.No.140/1994-95 holding that the property belongs to the Banashankari Temple and the sale deeds executed in favour of the complainants and other allottees by the OP are null and void. The complainants filed civil suits in O.S.No.2276/1999 and 2277/1999 on the file of City Civil Judge, Bangalore to set aside the order of the Special Deputy Commissioner, the said suits were dismissed on 04.11.2008 and 15.09.2009 respectively. Thereafter these complainants issued letters dt.04.09.2008 and legal notice is dt.10.11.2008 to the OP demanding to allot alternative site or to refund the amount paid by them. The OP in spite of receipt of the letters and legal notice failed to comply with the demand of the complainants, as such the complainants were compelled to approach this Forum seeking the necessary relief’s.
4. During the pendency of these complaints, the complainants also filed I.A U/s 24-A(2) of Consumer Protection Act R/w Section-5 of the Limitation Act to condone the delay if any in filing these complaints.
5. In the version filed by the OP, it is contended that the cause of action arose on 20.11.1993, the date on which the sale deeds were executed in favour of these complainants, as such the complaints are barred by limitation. The Civil Suit filed in O.S.2276/1999 has already been dismissed on merits, in view of the same the complaints are not maintainable. The OP has discharged its duty by executing the sale deeds, such being the case there is no deficiency of service. The complainants were well aware of the disputes regarding the property and obtained the sale deeds in collusion with the earlier secretary of the OP. The OP is approaching the authorities to convey the property to OP. The complainants have not preferred the appeals against the Order of the Civil Court dismissing the suits. The OP denied the receipt of registered letters dt.04.09.2008 and legal notices dt.10.11.2008. It is stated that the complainants are not entitled for any relief’s including, the compensation and interest claimed. The complainants have not approached the forum with clean hands. Further, it is stated that there is no board resolution in respect of the sale deeds executed in favour of these complainants by the OP. Hence, it is prayed to dismiss the complaints with costs.
6. In order to substantiate the complaints averments, the complainants filed their affidavit evidences and to produced documents. The General Secretary of the OP filed affidavit evidences in support of the defence version and filed documents.
7 The complainants filed return arguments and additional return arguments. The Arguments on both sides heard. Points for consideration are as under:
Point No.1:- Whether the complaints are barred
by limitation?
Point No.2:- Whether the complainants proved
deficiency in service on the part
of the OP?
Point No.3:- Whether the complainants are entitled
for the reliefs claimed?
Point No.4:- To what Order?
8. We record our findings on the above points:
Point No.1:- In Negative.
Point No.2:- Affirmative
Point No.3:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
9. The complainants have produced the copy of the Order in complaint No.9014/2010 on the file of 3rd Additional Consumer Disputes Redressal Forum, Bangalore. The said complaint was against the same OP by one of the allottees of the site No.47 and the said complaint was allowed directing the OP to refund the amount with interest at 12% p.a. and pay compensation of Rs.50,000/- with litigation cost of Rs.10,000/-. The OP being aggrieved by the said Order, preferred appeal No.218/11 before the Hon’ble State Consumer Disputes Redressal Commission, Bangalore and the said appeal has been dismissed confirming the Order passed by the 3rd Additional Consumer Disputes Redressal Forum. After going through the orders, similar contention was taken by this OP regarding the limitation and other contentions which are urged in these complaints. Thus it becomes clear the contention of the OP that the complaint is barred by limitation taken in the earlier proceedings has been negatived and same has been confirmed by the Hon’ble State Commission.
10. It is not in dispute that both these complainants were the members of the OP, they applied for the sites by depositing the required amount and the OP formed the Layout in Sy.No.63(2) and 63(3) and in other Survey numbers of Jaraganahalli, Uttarahalli Hobli, Bangalore Sout Taluk, Bangalore. Site No.60 measuring 40 X 61 feet was allotted to the complainant in complaint No.2044/2009, site No.49 measuring 40 X 40 feet was allotted to the complainant in complaint No.2045/2009. The OP executed registered sale deeds in favour of the complainants in respect of both the sites on 20.11.1993. The Special Deputy Commissioner, Bangalore passed order in DVS-CR140/04-95 holding that the sale deeds are null and void, as the OP had no right over the said property. These complainants challenged the Order of the Special Deputy Commissioner in Civil Suites No.2676/1999 and 2677/1999 on the file of City Civil Judge Bangalore. Both the suits were dismissed on 04.11.2008 and 15.09.2009 respectively. When the complainants were not successful it their attempts to get title to the sites allotted by the OP, They issued registered letters dt.04.09.2008 and legal notice dt.10.11.2008 demanding OP to allot alternative sites or to refund the amount paid by them. In spite of receipt of the letters and legal notices, the OP neither replied nor complied the demands. Therefore, the cause of action for these complaints arose when the OP in spite of receipt of demand notice and legal notices failed to comply the demands. In (2005) CTJ NCDRC 499) Juliet V.Quadros V/s Miss.Malathi Kumar the Hon’ble National Commission, Consumer Disputes Redressal Commission held that the cause of action remains continuous till allotment of site or till refusal. As OP has not allotted the sites nor refunded the amount, the cause of action arose in the year 2008 and the complaints filed on 25.08.2009 are within the period of limitation. We have gone through the authorities submitted by the learned counsel for the OP on the point of limitation, the facts of the cases decided in those authorities are different, hence the same cannot be made applicable to the facts of this case.
11. The OP without having any valid right, title and interest over the land Sy.No.63(2) and 63(3) formed the sites and allotted to these members. These complainants became the victims by taking the sites formed in the disputed lands, the sale deeds executed in their favour by OP were declared as null and void by the Special Deputy Commissioner Bangalore. After the order of the Deputy Commissioner the OP has not bothered to allot alternative sites to these complainants nor refunded the amount received towards the costs of the sites. The act of the OP in not allotting the alternative sites or refunding the amount amounts to deficiency in service on its part.
12. The complainant in complaint No.2044/2009 claims that he has made total payment of Rs.5,50,000/- to the OP towards the cost of the site including development charges, expenses for documentations and other miscellaneous charges. Further, he claims that though the OP has received a total sum of Rs.5,50,000/- by cash, in the sale deed dt.20.11.1993 executed by the OP the sale consideration amount has been shown as Rs.1,10,000/- only and the OP had not issued any receipt for remaining amount. Further, the complainant has claimed interest at 12% p.a. on the said amount of Rs.5,50,000/- from 20.11.1993 till the date of filing the complaint, totally amounting to Rs.10,23,000/- and a sum of Rs.3,00,000/- towards compensation for the harassment, mental agony and inconvenience caused. Thus the total amount claimed is Rs.18,73,000/-.
13. In the complaint No.2045/2009 the complainant has claimed Rs.3,25,000/- as the actual cost of the site paid by him including development charges, expenses for documentation and other miscellaneous charges. The OP has received the said amount but in the sale deed, sale consideration amount has been shown as Rs.72,000/- only and the OP has not issued any receipt for the remaining amount. Further, the complainant has claimed interest at 12% p.a. on the said amount of Rs.3,25,000/- from 20.11.1993 till the date of complaint and total amount including interest is Rs.6,04,500/- and further a sum of Rs.2,00,000/- is claimed towards compensation for the harassment, mental agony and inconveniences caused. Thus, the total amount claimed is Rs.11,29,500/-.
14. In the version filed, OP has denied the receipt of amounts as claimed by the complainants. The complainants have not produced any material to show that apart from sale consideration mentioned in the sale deeds they have paid any other amount to the OP. In the absence of any materials in support of such payments, only the amounts shown as sale consideration in the sale deeds is to be taken as the actual amount paid by these complainants. Therefore, the complainants are entitled for refund of the amounts shown as sale consideration in the sale deeds. The compensation of Rs.3,00,000/- and Rs.2,00,000/-claimed is excessive. In other complaint of similar nature filed against the OP in complaint No.914/2010 on the file of 3rd Additional Consumer Disputes Redressal Forum, Bangalore compensation of Rs.50,000/-has been awarded and the same has been confirmed the Hon’ble State Commission in appeal No.218/11. Under these circumstances, we are of the view that the complainants are entitled for compensation of Rs.50,000/- each and interest at 12% p.a. on the sale consideration to be refunded with litigation cost of Rs.10,000- to each complainant. Accordingly, we proceed to pass the following:
O R D E R
The complaints filed by the complainants allowed in part.
In complaint No.2044/2009 the Op is directed to refund an amount of Rs.1,10,000/-with interest at 12% p.a. from 20.11.1993 till date of actual payment and pay compensation of Rs.50,000/- with litigation cost of Rs.10,000/- to the complainant.
In complaint No.2045/2009 the OP is directed to refund an amount of Rs.72,000/-with interest at 12% p.a. from 20.11.1993 till date of actual payment and pay compensation of Rs.50,000/- with litigation cost of Rs.10,000/- to the complainant.
Keep the original order in complaint No.2044/2009 and copy there of in complaint No.2045/2009.
This order is to be complied within four weeks from the date of the order.
(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 07th day of June 2011.)
MEMBER MEMBER PRESIDENT
Cs.
