BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

DATED 21^ST DAY OF JANUARY 2016

O R D E R

SRI.P.V.SINGRI, PRESIDENT

The complainant filed this complaint under Section 12 of Consumer Protection Act, 1986 against Opposite Party (herein after referred as OP) with a prayer to direct the OP to allot him a higher dimension site measuring 60 X 80 feet as assured and execute a registered sale deed and put him in physical possession of the same in Vishwabharathi House Complex measuring 124 acres in Sy.Nos.7 to 16 & 26 of Avalahalli Village and Sy.Nos.88, 99,100 and 102, of Hosakerehalli Village, Uttarahalli Hobli, Bangalore South Taluk, and further to direct the OPs to execute registered sale deed in respect of site No.375 already registered under a sale deed dated 20.10.1999 and also to direct the OP to refund extra amount collected from him to the tune of Rs.9,20,000/- with interest at the rate of 18% per annum together with damages of Rs.5,00,000/- and litigation costs.

2.      The brief averments made in the complaint are as under:

  The complainant is member of the OP Housing Building Co-operative Society which is absolute owner in possession of an areacalled Vishwabharathi Housing Complex measuring 124 acres in Sy.nos. 7 to 16 and 26 of Avalahalli Village and Sy. Nos.88, 99, 100 and 102 of Hosakerehalli Village, Uttarahalli Hobli, Bangalore South Taluk, duly converted for residential purpose from the competent authority.  The complainant being one of the member of OP society was allotted a site bearing No. 375 measuring 60 x 80 square feet for a sum of Rs.1,30,000/-.  On receipt of the entire sale consideration OP society executed a sale deed dated 20.10.1993 except the execution of the sale deed, so far the OP has not handed over the physical possession of the said site to the complainant. 

3. Subsequent to the execution of the sale deed dated 20.10.1993, the OP society has collected an extra sum of Rs.9,20,000/- on different dates from the complainant assuring the complainant that the society will allot him a  higher dimension site measuring 60 x 80 feet and execute a registered sale deed in his favour.  The OP society has issued receipt for Rs.9,20,000/- from the complainant on various dates.  The complainant is always ready and willing to perform his part of the contract by getting the higher dimension site registered in his name.  However, the OP society citing untenable and evasive reasons, avoiding execution of sale deed in favour of the complainant.  After the execution of sale deed dated 20.10.1983 the OP has restructured the entire layout in the year 2007-08 and the site numbers and dimensions are altered and renumbered even without intimating the purchasers.  Despite directions by the Hon’ble High Court of Karnataka and Bangalore Development Authority, the OP society has failed to respond to the request made by the complainant.   The complainant aggrieved by the inaction of the OP society got issued a legal notice dated 11.10.2010 to the OP society  to allot him a site of higher dimension measuring 60 x 80 feet and execute a registered sale deed in his favour and put him to possession of the same at the earliest.  However the legal notice sent was returned unserved. OP society has failed to honour its commitment to the complainant regarding the allotment of higher dimension site despite collecting huge amount which amounts to deficiency in service and gross negligence on the part of the OP society. 

4. For the aforesaid reasons the complainant prays for allowing the complaint directing the OP Society to allot him a site measuring 60 x 80 feet and execute registered sale deed in respect of the same in Vishwabharathi Housing Complex situated at Avalahalli Village and Hosakerehalli village, Uttarahalli Hobli, Bangalore South Taluk and handover physical possession of the same and also to execute a Rectification Deed in respect of site No.375 and also registered under a sale deed dated 20.10.1999 and also to refund him a sum of Rs.9,20,000/- collected from him together with interest at the rate of 18% per annum together with damages of Rs.5,00,000/- and litigation cost of Rs.5,000/-.                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

5. In response to the notice issued, OP appeared through their advocate and filed version contending in brief as under:

The complaint is not at all maintainable as the same is highly misconceived, frivolous and vexatious.  The OP denies that the complainant has become the member of the OP.  The OP does not have any records in their office regarding the allot amount of membership to the complainant.  The OP denies that the complainant was allotted a site bearing No.375 measuring 40 x 60 feet for a sum of Rs.1,30,000/- and also denies the alleged registered sale deed executed in the year 1993.  When the alleged sale deed itself is void, the delivery of the possession does not arise.  The complainant in colluding with earlier president Sri.Krishna Bhat has created this illegal, fraudulent sale deed and other alleged documents.  The OP has never assured allotment of any higher dimension site to the complainant and also not collected Rs.9,20,000/- on different dates as alleged in the complaint.  The receipt produced by the complainant regarding the payment of Rs.9,20,000/- are of concocted and not issued by the OP society.  As could be seen from the head note of the alleged receipt that the same has been issued by Vishwabharathi Housing Project, Girinagar, Bangalore and not by OP society.  The alleged receipts are created with the collusion of then president Sri.B.Krishna Bhat.  Therefore, the OP is not responsible or binding for the alleged payment made under the said receipts. 

6. The allegation that the OP society has restructured the entire layout and changed the site number is also not correct.  There is no any deficiency on the part of the OP society.  That in pursuance of the direction given by the Hon’ble High Court of Karnataka in W.P.No.6945/2008, the society is making allotment of sites by issuing a paper publication on 03.03.2011 calling upon the members including the complainant to furnish the documents regarding the allotment of site.  The complainant has no cause of action to file the present complaint.  The filing of this complaint is nothing, but an act of abuse of process of law.  That there were allegations of misappropriation of funds and misuse of office of this OP society by earlier committee and the then president Sri.B.Krishna Bhat.  Therefore, the Joint Registrar of Co-operative Society by holding an enquiry has disqualified/removed the said Sri.B.Krishna Bhat from the post of president of OP society by order dated 17.08.2009.  The complainant is not a ‘Consumer’ as defined under the Consumer Protection Act, 1986 as he is a member of the society.  Therefore, he cannot invoke the jurisdiction of this Forum for redressal of his grievances.  As per the bye-law of the society receipts for any payment shall have to be paid and signed by Secretary only.  Therefore, the receipts produced by the complainant are not valid as the same has not been signed by the secretary.  Therefore, the complainant is neither entitled to allotment of site nor refund of the said sum of Rs.9,20,000/- which the OP society never received. 

7. For the aforesaid reasons, the OP prays for dismissal of the complaint.

8. On the rival contention of both the parties, the points that arises for our determination are as under:

1. Whether, the complainant proves the deficiency in service on the part of the OP society as alleged in the complaint?

2. If so, what order or relief the complainant is entitled to?

9.  The complainant to substantiate the allegations made in the complaint filed his affidavit evidence in lieu of oral evidence and relied upon several documents.  The OP society in support of the averments made in the version filed the affidavit evidence of Secretary and also placed reliance on certain documents.  Both the parties have submitted their written arguments. 

10. Perused, the allegations made in the complaint, averments made in the version, sworn testimony of both parties, written arguments, various documents and copies of the judgements produced by both the parties and other material placed on record. 

11. Our answer to the above points:

12.  POINT NO.1:  The OP society in their version denied that the complainant is a member of the society and his name does not finds place in records maintained by the society in their office.  The OP society did not produce the records pertaining to the relevant period to show that so that the name of the complainant does not appear in the list of members.  However, the complainant produced an original receipt dated 24.09.1993, according to which he has paid a sum of Rs.1/- towards entrance fee and 0-62Ps towards share fee and has obtained shares worth Rs.100/- from the OP society.  The OP society did not deny the genuineness of the said receipt dated 24.09.1993 issued and signed by the then Executive Director of the society.  This receipt produced by the complainant goes to establish that the complainant having become the member of the OP society has bought shares of the society worth Rs.100/-. 

13.  The OP denied that it has executed the sale deed dated 20.09.1993 in favour of the complainant regarding site No.375 in Vishwabharathi Housing Complex.  The complainant produced the original sale deed executed by the OP society in his favour in respect of the said site bearing No.375.  The said sale deed has been executed by the then secretary in favour of the complainant.  The complainant has produced the copy of receipts for having paid Rs.1,30,000/- towards the purchase of the said site. The complainant has also produced an intimation of provisional allotment of site dated 24.09.1993 issued in his favour by then Executive Director Sri.B.Krishna Bhat.  In the said provisional allotment letter it has been specifically mentioned that the complainant has been allotted site bearing No.375 measuring                 40 x 60 feet in the 4^th phase of the Vishwabharathi Housing complex layout, Girinagar, Bangalore.  The said provisional letter further discloses that the complainant has paid Rs.1,30,000/- to the OP society towards the purchase of the said site.  Apart from the secretary the said sale deed in respect of site Bearing No.375 is also signed by the then president, Executive Director Sri.B.Krishna Bhat. The original registered sale deed, produced by complainant falsifies the allegation of the OP society that the complainant was never allotted a site bearing No.375 and no sale deed was executed in his favour in respect of the said site. 

14.  The complainant alleges that though the OP society executed the said sale deed dated 20.09.1993 the possession of the site was not handed over to him.  Therefore, complainant prays for a direction to the OP society to hand over him the possession of the same.  Further, the complainant alleges that subsequent to execution of the said sale deed the OP society has restructured the entire layout in which the said site bearing No.375 situated and allotted a different site number.  Therefore, complainant prays for a direction to the OP society to execute a rectification deed in pursuance of the restructuring and renumbering of the site.  The complainant did not produce any credible or documentary evidence to substantiate the allegations of restructuring subsequent to sale of site bearing No.375 dated 20.09.1993.  OP society also denied any such restructure of the layout.  Under the circumstances, we are unable to believe the contention of the complainant that restructuring was done by the OPs and the said site bearing No.375 was given a different number.  Therefore, we are unable to give any direction to the OP society to execute any rectification deed. 

15. The complainant states that he was not handed over actual physical possession of the site No.375 on the day the said sale deed was executed on his favour.  However, the recital in the sale deed discloses that the complainant was handed over physical and actual possession of the site on the same day.  Further if at all the actual possession of the said site has not been given to the complainant he shall approach the competent civil court seeking direction to the OP society to hand over actual possession of the same.  This Forum has no jurisdiction to grant any such relief to the complainant. 

16.  The complainant alleges that he was  assured and promised by the OP society of allotment of a higher dimension site measuring 60 x 80 feet and direct to pay Rs.9,20,000/- for the same and accordingly he paid the said amount of Rs.9,20,000/- between 26.10.2007 to 27.12.2007 under various receipts.  The complainant did not produce any documentary evidence to substantiate that he was either assured or promised a site measuring 60 x 80 feet by the OP society.  The OP also denied that the complainant was promised a site measuring 60 x 80 feet.  The complainant also did not specify as to who actually, in the OP society assured him allotment of a higher dimension site measuring 60 x 80 feet.  In his affidavit evidence also the complainant did not mention the name of the office bearer of OP who promised or assured him allotment of such higher dimension site.  Therefore, we are unable to believe the contention of the complainant that he was promised allotment of a higher dimension site measuring 60 x 80 feet by the OP society. 

17. The complainant has produced various receipts for having paid a sum of Rs.9,20,000/- to the OP society.  The complainant has paid a sum of Rs.1,30,000/- on 26.10.2007 under receipts No.4385 he has paid a sum of Rs.60,000/-, under receipt No.4386 dated 26.12.20007.  He has paid a sum of Rs.1,80,000/- under receipt No.23774 dated 25.10.2007.   He has paid a sum of Rs.3,80,000/- on 27.12.2007 under receipt No.5238. On 27.12.2007 the complainant has made payment of Rs.1,80,000/- under receipt No.24138. Thus the complainant has paid a total sum of Rss.9,20,000/- to the OP society between 20.06.2007 to 27.12.2007.  The complainant has produced the original receipt under which he has made the said payment.  The OP society denied the receipt of the said amount and contended that the said receipt which are by Vishwabharathi Housing project have not been issued by them. 

18.  It is contended by the OPs that as per the bye-law only secretary of the society alone is entitled to receive payment and issue receipt.  The OP society did not produce the copy of the bye-laws to substantiate their contention that the secretary of the OP society alone is entitled to receive money from the members and sign the receipt.  It is pertinent to note that here that earlier receipts issued towards the sale of site bearing No.375 in favour of the complainant have been signed sometimes by Executive Director, sometimes by the Secretary and sometimes by President.  Therefore, we are not ready to accept the contention of the OP society, in absence of the copy of the bye-law, that the secretary of the society alone is competent to receive the money and sign the receipt.

19.  It is further contended by the OP society that the amount paid under the receipts produced by the complainant have not been accounted in the passbook of accounts of the OP society.  The OP society to substantiate the said contention did not produce the account books for the relevant years.  Further if at all the said payment does not find mention in the account book nothing prevented the OP society in producing the account book for the year 2007.  The receipt issued by OP society even during the year 1993 at the time of execution of the registered sale deed of the complainant goes to show that the receipts are under the head note of OP society as well as Vishwabharathi House Building Co-operative Society Ltd. Therefore, we have no reasons to believe the contention of the OP society that the receipts issued under head note of Vishwabharathi Housing project have not been issued by them. 

20.  It is alleged by the OP society that the then president and the Executive Director indulged in misappropriation of funds of OP society.  Therefore, the Joint Registrar of Co-operative Society after holding an enquiry, disqualified/removed Sri.B.Krishna Bhat from the post of President vide its order dated 17.08.2009 and the same was confirmed by the additional Registrar of Co-operative Society, Bangalore vide its order dated 29.03.2010.   The said fact that the removal of Sri.B.Krishna Bhat from the post of President/Executive Director appears to be because of certain misappropriation of funds belonging to the society by him.   However the complainant cannot be punished for the alleged misappropriation of funds by the then president.  The OP is at liberty to proceed against the then president for alleged misappropriation of funds. However, under the guise of misappropriation of funds by the then president the OP society cannot escape their liability in refunding a sum of Rs.9,20,000/- received from the complainant.  Therefore, we are of the opinion that the OP society has to be directed to pay the said sum of Rs.9,20,000/- to the complainant which they have retained with them all these years.  Therefore, they have to be directed to pay interest at the rate of 18% per annum on the said amount.  In the given facts and circumstances of the case, we do not feel it proper to award any damages/compensation since the complainant has made the said payment of Rs.9,20,000/- without their being any allotment letter or written request from the OP society. 

21. POINT NO.2:  The order could not be passed within the stipulated time due to heavy pendency.  In the result we proceed to pass the following:-

ORDER

1. The complaint filed by the complainant u/s.12 of the Consumer Protection Act 1986 is allowed in part.

2. OP is hereby directed to refund a sum of Rs.9,20,000/- to the complainant together with interest at the rate of 18% per annum from 27.12.2007 till the date of realization along with litigation cost of Rs.5,000/-.

3. The OP shall comply the order of this Forum within a period of six weeks from the date of communication of the order.

4. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 21^st day of January 2016)

MEMBER                               MEMBER                              PRESIDENT

NRS* 

C.C.No.280/2011

Witness examined on behalf of the complainant dated 13.06.2011

1. Sri.B.R.Suraj

Witness examined on behalf of the OP Bank dated 14.01.2014

1. Sri.L.Gopappa Naik, Senior Manager of Canara Bank, Byatarayanapura Branch

MEMBER                               MEMBER                              PRESIDENT