BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MYSORE-570023

CONSUMER COMPLAINT NO.300/2021

DATED ON THIS THE 14^th October 2022

Present:   1) Sri. B.Narayanappa

M.A., LL.B., - PRESIDENT  

                     2) Smt.Lalitha.M.K.,

M.A., B.A.L., LL.B., - MEMBER  

                        3) Sri Maruthi Vaddar,

                                                B.A., LLB (Special)  - MEMBER

Sri MARUTHI VADDAR,

MEMBER

1.         This is a complaint initiated by the complainant Smt.Mamatha.S. resident of Mysuru under Section 35 of the C.P.Act, 2019 alleging deficiency of service against the opposite party – The President, Karnataka State College Lectures and School Teachers House Building Co-operative Society Ltd., Mysuru directing the opposite party to execute the sale deed in favour of the complainant for site measuring 9 x 12 mtrs and to pay Rs.5,00,000/- as compensation for their deficiency of service and unfair trade practice and such other reliefs as this Hon’ble Commission deems fit in the circumstances of the case in the interest of justice and equity.   
2. The brief facts of the complaint is as here under:-

It is alleged in the complaint that the complainant is a member of the opposite party society in which she is having a membership No.637 and the opposite party was developiong sites at Kuppalur Village, Mysuru and the complainant applied for a site measuring 9 x 12 mtrs and she paid the amount of Rs.9,48,000/- from time to time. On 01.09.2013 opposite party issued a provisional allotment letter No.84/2013-14.Thereafter, on 27.10.2019 the opposite party conducted a lottery on the basis of seniority at the office of the opposite party and that complainant was allotted a site bearing No.193 measuring 12 x 18 mtrs x odd/9 meter x odd 9 meter x 12 meters. She executed an affidavit on 27.10.2019 as required by opposite party.

It is further alleged in the complaint that the opposite party has not given possession and not executed sale deed in favour of the complainant till today even though she had paid the entire amount.The complainant requested the opposite party many times and sought for possession and execution of sale deed, the opposite party claimed that the said site is not released by MUDA.Thereafter, the complainant applied for the clarification before the MUDA under RTI and the MUDA authorities have given information wherein the site No.193 is released along with other sites even though the allotted site No.193 is released by MUDA, the opposite party has not executed the title deed in favour of the complainant, this act of the opposite party is deficiency in service as well as unfair trade practice on the part of opposite party.After, issuance of legal notice dated 12.10.2021 this complaint has been filed.

3. After the registration of the complaint, notice was ordered to be issued against the opposite party and in response to the notice, opposite party did not appeared and hence placed exparte.  Later, the opposite party has appeared through its counsel by filing necessary application under Order 9 Rule 7 of CPC with affidavit praying to set aside the exparte order passed against it and the said exparte order was set aside and permitted the opposite party to contest in the case and then the opposite party filed its version contending that the opposite party admitted the averments made in para No.3 of the complaint to an extent that complainant has allotted site bearing NO.193 through lottery system where as complainant has applied only for 9 x 12 meters and she paid Rs.9,48,000/- to the opposite party.

The opposite party further contended that the opposite party is not admitted the averments made in para No.4 of the complaint and submitted that the developer of opposite party one Sri U.S.Siddalingappa who is Managing Director of M/s Bhavani Minerals Global Infrastructure and Developer Pvt. Ltd., has written a letter to the opposite party society and instruct opposite party to allot the site as mentioned in his letter for members of the opposite party. After such assurance given by the society, Developer of opposite party allotted site to its members through lottery system likewise complainant has got site No.193 through lottery system, but even today the developer U.S.Siddalingappa has not come forward to execute the sale deed in favour of society and in turn the society is unable to execute the sale deed in favour of the complainant.

It is further submitted that the complainant has applied for only 9 x 12 meters (30 x 40 ft.) but site bearing No.193 measures 12 x 18 meters ( 40 x 60 ft.).But, complainant has applied for only 30 x 40 ft. but, opposite party has already told the developer to make partition of the site and after such partition, opposite party requested the developer to come and execute the sale deed in favour of the society then only the opposite party will get right to execute the sale deed as demanded by the complainant.It is not fault or insufficient for the service by the opposite party due to technique grounds and it is the mistake committed by the developer but not by the opposite party and hence prays the Hon’ble Commission to dismiss the complaint as it is not attract the deficiency in service by the opposite party and it is the fault committed by the developer and the opposite party is ready to pay Rs.9,48,000/- on 2 or 3 installments to the complainant in the interest of justice and equity.

4. The complainant has filed her affidavit by way of examination in chief and the same was taken as P.W.1 and got marked the documents as Ex.P.1 to Ex.P.6 and other documents.  On the other hand, the opposite party has also filed its affidavit towards its chief examination and the same was taken as R.W.1 and got produced two documents.
5. Heard the arguments on both sides and perused the materials placed with the record.
6. The points that would arise for our consideration are as here under:-  

1. Whether the complainant proves the alleged deficiency in service on the part of the opposite party and thereby she is entitled to the reliefs as sought for?
2.  What order?

7.       Our findings on the aforesaid points are as follows:

      Point No.1 :- Partly in the affirmative.

      Point No.2 :- As per final order for the following

:: R E A S O N S ::

8.       Point No.1:- To substantiate the truth of her case, the complainant has examined herself as P.W.1 by filing her affidavit towards chief examination and the same was taken as P.W.1 and got marked the documents as Ex.P.1 to Ex.P.6 and other related documents. The complainant has reiterated the averments of the complaint in her affidavit.  Ex.P.1 is the identity card.  Ex.P.2 is the provisional allotment letter.  Ex.P.3 is the intimation given by opposite party to the complainant to allot the sites through lottery system.  Ex.P.4 is the agreement.  Ex.P.5 is the legal notice.  Ex.P.6 is the reply notice.  The complainant has produced the list of documents.  Document No.1 is the membership registration receipt – 10 numbers and identity card, two bank challen. Document No.2 is the receipts for having paid the amount to the opposite party for the allotment of site and development of the layout.  Document No.3 is the list of the members and depositors seniority list approved order (issued by Karnataka State Co-operative Societies Registrar). Document No.4 is the provisional allotment letter dated 01.09.2013 of site measuring 9 x 12 meters.  Document No.5 is the letter issued by the opposite party dated 19.10.2019 to conduct lottery and another letter for selecting the complainant through the lottery of site No.193 dated 27.10.2019.  Document No.6 is the letter issued by MUDA to the opposite party releasing 226 sites dated 28.12.2013, 24.05.2014 and 12.05.2020.  After the affidavit of the complainant, the opposite party has also filed its affidavit towards the chief examination and the same was taken as R.W.1 and got marked two documents as Ex.R.1 and Ex.R.2.  The opposite party has also reiterated the averments of its version in the affidavit. Ex.R.1 is the letter written by the opposite party for its developer dated 03.07.2021.  Ex.R.2 is the developer of the opposite party written letter to the opposite party.  After the testimony of the parties, both parties have submitted their written arguments and the complainant counsel has submitted his oral arguments.  After carefully perusing the averments of the pleadings and documents submitted by both parties, it is noticed that the complainant has applied for a site measuring 9 x 12 meters and she paid the required amount from time to time and on 01.09.2013 the opposite party issued a provisional allotment letter in which she was allotted a site of measurement 9 x 12 meters which is numbered as 84/2013-14.  Thereafter, on 27.10.2019 the opposite party conducted a lottery on the basis of seniority and the complainant was allotted a site bearing No.193 which measurs 12 x 18 meters.  But, it is the contention of the opposite party that the complainant has applied for only 9 x 12 meters (30 x 40 ft.) but the site allotted to complainant measures 12 x 18 meters and it amounts to 40 x 60 ft. and hence the opposite party told the developer to make partition of the site, after such partition and requested the developer to come and execute the sale deed in favour of the opposite par;ty, then only opposite party will get right to execute sale deed in favour of the complainant.  But, it is the say of the complainant that the opposite party has not given possession and not executed sale deed till today even though she paid the entire amount.  But, opposite party denied that the said site is not released by MUDA.  Hence, the complainant has took information from MUDA and the MUDA has given information that site No.193 released along with other sites and thereafter the opposite party has not executed the title deed in favour of the complainant, this act of the opposite party is deficiency in service as well as unfair trade practice on the part of opposite party.
9. After rival contention of both parties, it is crystal clear that the complainant started to make payment from the year 2010 itself and the opposite party has given provisional allotment letter on 01.09.2013, but issued seniority list on 19.10.2019.  Even after the payment of the amount, the opposite party has not allotted the site till today nor delivered possession nor executed the sale deed, the opposite party has dodged the matter by giving one or the other pretext.  In her chief affidavit para No.10 the complainant has stated that the MUDA has released 162 sites measuring 30 x 40 ft. (9 x12 meters) as per letter No.ªÉÄÊ.£À.¥Áæ./¦©/¨Á§ 732/2013-14 and even number 2014-15 and even number 2020-21 dated 28.12.2013 and 24.05.2014.  Hence, the complainant has proved her case against the opposite party for the alleged deficiency in service as per Section 2(11) of C.P.Act, 2019. Hence, it would meet the ends of justice if the OP is directed to execute sale deed for a site measuring 9 x 12 meters (30 x 40 ft.) in favour of the complainant.  Hence, we answer the point No.1 partly in the affirmative.
10. Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

1. The complaint filed by complainant is allowed in part.
2. The opposite party is hereby directed to execute a sale deed for a site measuring 9 x 12 meters (30 x 40 ft.) in favour of the complainant within 2 months from the date of this order, failing which the opposite party is hereby directed to pay Rs.100/- per day as penalty to the complainant till the execution of the sale deed.
3. The opposite party is hereby directed to pay Rs.10,000/- towards deficiency in service caused to the complainant and Rs.5,000/-towards cost of litigation within two months from the date of this order.  In default, Rs.10,000/- + Rs.5,000/- totally Rs.15,000/- will carry interest at 10% p.a. from the date of this order till its payment.
4. The complainant is at liberty to take necessary action, under Section 72 of C.P.Act for non-compliance the order.
5. Pending application if any shall stand disposed off in terms of this final order.
6. Furnish the copy of order to both parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Commission on this the 14^th October, 2022)