The President,Vishwabharathi House Building Co-Operative Society Limited The Secretary,Vishwabharathi House Building Co-Operative Society Limited
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
Date of Filing: 23.01.2008 Date of Order: 22.05.2008 BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20 Dated: 22nd DAY OF MAY 2008 PRESENT Sri. Bajentri H.M, B.A, LL.B., President Smt.C.V. Rajamma, B.Sc., LL.B., PGDPR, Member Sri. M. Nagabhushana, B.Com, LL.B., Member COMPLAINT NO. 199 OF 2008 M.M. Ravishankar, R/at: No.328, Sangeetha Bhavan, T.S.P. Road, Fort, BANGALORE-560 002. . Complainant. -V/s- 1. Vishwabharathi House Building Co-operative Society Limited, Rep. by its President, No.35, Rathnavilas Road, Basavanagudi, BANGALORE-560 004. 2. Vishwabharathi House Building Co-operative Society Limited, Rep. by its Secretary, No.35, Rathnavilas Road, Basavanagudi, BANGALORE-560 004. . Opposite Parties. ORDER This complaint is filed seeking direction to the opposite parties to put the complainant in possession of Site No.386, measuring 40 feet X 60 feet in 4th Phase of Vishwabharati Housing Complex Layout, Girinagar, Bangalore, and to pay compensation of Rs.19,90,000/-. The case of the complainant is as under:- The complainant became a member of the opposite party Society in 1982 and deposited Rs.3,000/- on 06.12.1982 towards the site advance. As directed he also produced the affidavit on 02.01.1985. By the letter dated: 11.01.1997 the Society allotted site No.2765 measuring 40 feet X 60 feet in 4th Phase of Vaishwabharati Housing Complex Layout. The sital value was fixed tentatively at Rs.24,620/- at the rate of Rs.91/- per square yard. The complainant paid Rs.4,000/- as per the receipt dated: 01.07.1988 and also paid Rs.80,000/- through cheque dated: 03.03.1994 towards developmental charges, Rs.60,000/- on the same day towards the site deposit. Finally site No.386 instead of site No.2765 was registered in favour of the complainant as per the sale deed dated: 30.04.1994. The Society collected Rs.25,000/- towards registration charges, and Rs.8,000/- towards stamp duty on 11.01.1987. In the meeting held on 28.03.1999 the Society fixed Rs.48,000/- towards miscellaneous expenses for a site measuring 40 feet X 60 feet and the said amount was paid on 10.04.1999. Besides the above payments the complainant also paid a total sum of Rs.6,00,000/- in cash to the President of the Society on different dates as narrated in Para-13 of the complaint. Though the registered sale deed was executed way back on 30.04.1994 the complainant was not put in possession of the site. In spite of repeated requests the Society did not take any steps to put him in possession of the said site. On 10.05.2007 he made a detailed representation demanding the Society to put him in possession of the said site. In spite of it, no action was taken, but only promises were made. When the sale deed was executed in his favour the cost of construction was only Rs.10,000/- now the same has been increased to Rs.1,10,000/- per square. Apart from construction cost the complainant also suffered financial loss and mental agony and has waited for more than 13 years to get possession of the site purchased. In the Encumbrance Certificate his name finds place with regard to the site in question. The failure on the part of the opposite party to put him in possession of the site amounts to deficiency in service. Hence the complaint. 2. In the version the contention of the opposite parties is as under:- Admittedly the registered sale deed was executed in the year 1994 and the compliant is field in the year 2008. Therefore the complaint is barred by limitation. In the sale deed itself there is a covenant that the purchaser has been put in possession of the site on the date of the sale deed. Having kept quite for long 14 years the complainant has filed the present complaint with a prayer to put him in possession of the site. In view of Section 70 of the Karnataka Co-Operative Societies Act the complaint is not maintainable under the provisions of the Consumer Protection Act. The Society cannot allot or register site of any dimension to anybody except taking the norms ordered in the Government Notification dated: 04.10.2007. The Society has to allot sites on seniority basis from 1975. The complainant became a member of the Society in the year 1982 and has deposited a total sum of Rs.1,95,000/- only. No site is available for the allotment in favour of the complainant and since the complainant has not paid the full sital value, the Society will refund Rs.1,95,000/- paid by the complainant. The sale deed executed in favour of the complainant is only an interim document of conveyance effected by the Society, as the Society has obtained possession of the land after paying the huge advance amount to the land owners. In the sale deed itself it is clear that the Society has reserved its right to claim such additional monetary consideration as may become necessary due to the spurt in the cost of materials and labour and heavy loss occurred during the administration of the Society by the Government and also in view of the prevailing rates in the surrounding area subject to the revision that may become necessary to meet the costs of departmental estimates for water supply and such other expenses. At the time of the interim document of conveyance the land in question under bulk allotment was not transferred to the Society by the BDA and the Government. Only recently the Government of Karnataka passed the Order dated: 04.10.2007 effecting bulk allotment. The said order has to be implemented by the BDA not only by fixing the rate or cost of the land, but also formally releasing the lands in question in favour of the Society. The Society has to complete the layout work as per directions of the Honorable High Court with all the infrastructure by incurring heavy expenditure such as the cost of bulk allotment to be fixed by the BDA, the cost of layout work. Thereafter the cost of the site has to be decided and after collecting the decided amount regular deeds of conveyance would be executed in favour of the allottees who would be put in possession of sites allotted by executing rectification deeds and issuing possession certificates. Until all the above requirements are complied with the complainant has no locus standi or enforceable right against the Society and the complaint is premature. Under the document of conveyance in favour of the complainant there is no transfer of valid title within the meaning of Section 54 of the Transfer of Property Act as the Society was only in possession of the lands and the BDA had not effected bulk allotment in favour of the Society. In the order dated: 04.10.2007 the Government has considered the case for bulk allotment of the lands in favour of the Society as a special case. As per the Government Order the Society has to deposit crores of rupees with BDA to obtain bulk allotment. The successful members have to pay further sum of Rs.750/- to Rs.800/- per square feet in order to fulfill the conditions of the Government Order. Only after depositing the amount further work is to be done. Now no sites are available for allotment to the complainant. The contention in Para-13 of the complaint regarding payment of Rs.6,00,000/- in cash to the President of the Society is false. The President or Secretary of the Society has not received those amounts from the complainant. The amount paid by the complainant is not the full value of the site. Without making payment of the full value of the site the complainant cannot allege deficiency in service. In the press note dated: 19.07.2003 the Society had informed the members who had applied for allotment of sites in 1st phase about the litigation pending before the High Court of Karnataka and asking them to take refund of the amount paid. The complainant is at liberty to seek refund of the amount paid towards the sital deposit. Since the lands in question was acquired by BDA, the Government had recommended for bulk allotment. Until bulk allotment is made the Society is not in a position to form layout and allot sites to the members including complainant. Since the matter is beyond the comprehension and control of the Society, no direction as prayed for by the complainant can be given. But the Society is ready to refund the amount deposited by the complainant. The complainant is also not entitled for any damages as there are no latches on the part of the Society. The complainant is one among the members who are eagerly awaiting bulk allotment by the BDA to the Society and formation of layout and allotment of sites to the members by the Society. There is no cause of action to file the complaint. Hence the complaint is liable to be dismissed. 3. In support of the respective contentions, both the parties have filed affidavits and have produced documents. We have heard arguments on both sides. 4. The points for consideration are:- (1) Whether the complainant has proved deficiency in service on the part of the opposite parties? (2) Whether the complainant is entitled to the relief prayed for in the complaint? 5. Our findings on the above points are:- POINT No.1:- In the Affirmative POINT No.2:- As per the final order REASONS POINT Nos. 1 & 2:- 6. The fact that on 30.04.1994 the Society executed sale deed in favour of the complainant in respect of site No.386 measuring 40 feet X 60 feet is admitted by the opposite parties. Though in the sale deed the consideration for sale of the site is mentioned as Rs.20,000/- the opposite parties have admitted for having received Rs.1,95,000/- from the complainant. The complainant also claims that he paid a total sum of Rs.6,00,000/- in cash to the President of the Society on different dates as narrated in Para-13 of the complaint, but this payment is denied by the opposite parties. It is specifically contended by the opposite parties that neither the President nor the Secretary of the Society has received those amounts from the complainant. No documents supporting those payments are produced by the complainant. Therefore we are unable to agree that apart from Rs.1,95,000/- the complainant has also paid Rs.6,00,000/- in cash to the President of the Society. In spite of executing the sale deed on 30.04.1994 admittedly the complainant is not put in possession of the site though there is a recital in the sale deed that the purchaser is put in possession of the site on the date of the sale deed itself. No doubt the complainant has approached this Forum with the present complaint on 23.01.2008 nearly 14 years after the date of the sale deed. But when the opposite parties admit for having not delivered possession of the site sold, the transaction of sale is not complete. Admittedly the complainant is a member of the opposite party which is a Co-operative Society. Therefore the cause of action available to the complainant is recurring till the transaction is completed. As such, we are unable to uphold the contention of the opposite parties that the complaint is barred by limitation especially in the absence of material to show that at any time two years prior to the date of the complaint the claim of the complainant for possession was denied by the opposite parties. Though the opposite parties have executed registered sale deed, yet they contend that it is only an interim document not confirming title in favour of the complainant. If we consider the stand of the opposite parties in the version it goes to indicate as if the Society had executed sale deed in favour of the complainant without valid title over the property in question. It is the contention of the opposite parties that at the time of execution of the sale deed no bulk allotment of land was made by the Government in favour of the Society and only recently as per the Order dated: 04.10.2007 the Government has passed an order for bulk allotment of the lands and the same is required to be procured from the BDA on payment of crores of rupees. It is in this context the opposite parties have contended that the complainant has not even paid full sital value and after the bulk allotment is made by the BDA the members will have to pay further sum of Rs.780/- to 800/- per square feet to fulfill the conditions of the Government order. This contention only goes to indicate that without forming the layout and without procuring the land from the Government the Society had proposed to execute the sale deeds in favour of its members on the basis of the agreement to sell between the Society and land owners. If that is so, it only indicates that, in spite of the sale deed the complainant has not even acquired any title over the site sold in his favour. The co-operative Society which is established for the benefit of the members should not have ventured to execute sale deed in favour of its members without valid title over the property. If the same is done it is nothing short of unfair trade practice on the part of the Society. Having received a total consideration of Rs.1,95,000/- way back in 1994 the Society cannot deprive the complainant of a site. Admittedly now the Government has passed an order for bulk allotment of lands. Therefore the Society is certain to get bulk allotment from the BDA on payment of the amount fixed by the BDA or the Government as the case may be. If the Society is required to make additional payments for bulk allotment of the lands, the members of the Society Layout bear the same. Considering all these circumstances, in our opinion, it is just and proper to direct the opposite parties to put the complainant in possession of site No.386 sold in his favour if the same site remains intact in the bulk allotment to be made by the BDA. This is subject to the payment of the additional amount if any as fixed by the Society. If the same site is not available for putting the complainant in possession, the Society shall allot alternative site of the same dimension out of bulk allotment by the BDA. In the result, we pass the following:- ORDER 7. The complaint is allowed. Within six months after forming the layout following the bulk allotment, the opposite parties shall put the complainant in possession of Site No.386 subject to his making payments of additional amount if any as fixed by the Society. If the said site is not available for delivery of possession in favour of the complainant, the Society shall allot alternative site of the same dimension in favour of the complainant and the same also shall be subject to payment of additional amount if any as fixed by the Society. We direct the parties to bear their own costs. 8. Send a copy of this order to both the parties free of costs immediately. 9. Pronounced in the open forum on this 22nd DAY OF MAY 2008. MEMBER MEMBER PRESIDENT
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