COMPLAINT FILED: 07-01-2011
DISPOSED ON: 07-07-2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
07TH JULY 2011
PRESENT :- SRI. B.S.REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO. 51/2011
Complainant | SMT. SWARNA MURTHY, W/o H.V.L.K.Murthy, Aged about 56 years, R/at No.110, 11th Main, 12th Cross, 3rd Phase, Girinagar, Bangalore – 85. Advocate: Sri.R.Venkatesh. V/s. |
OPPOSITE PARTY | 1) VISHWABHARATHI H.B.C.S. No.35, Rathna Vilas Road, Basavanagudi, Bangalore-4 Rept. By its Secretary H.V.Vadiraj. 2) VISHWABHARATHI H.B.C.S. No.35, Rathna Vilas Road, Basavanagudi, Bangalore-4 Rept. By its President, Sri JAYARAM. Advocate: Y.A.Sudhakar Babu |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
Complainant filed this Complaint u/s. 12 of the C.P.Act of 1986 seeking direction to Opposite Party No.1 & 2 (herein after called as OP) to ear mark the site and to put the Complainant in possession of the site bearing site No.193/15, measuring 30 X 50 feet, in phase No.IV, of Vishwabharathi House building Co-operative Society Ltd., Hosakerehalli, uttrahalli, Bangalore-85 and to pay compensation of Rs.50,000/- towards inconveniance and mental agony caused to the complainant and to pay the cost on the allegations deficiency in service against the O.Ps.
3. The brief averments made in the complaint are as under:
Complainant became the member of O.P. Society which is registered under the Karnataka Co-operative Society Act and formed the residential layout at Hosakerehalli, uttarahalli, Bangalore South Taluk. Complainant paid a sum of Rs.22,50,000/- to O.P. The receipts issued by O.P. are produced. Complainant paid 13,50,000/- on 6-5-2007, Rs.1,12,500/-, Rs.75,000/- & Rs.37,500/- on 5-10-2007, Rs.2,25,000/- on 28-12-2007 and Rs.4,50,000/- by way of cash. Totally complainant paid Rs.22,50,000/- to O.P. O.P. registered the site bearing No.193:15 in favour of the complainant vide registration No.KEN-1-04682/2006-2007 C.D.No.:KEND 286 Block No.1 in the office of Sub-registrar Bangalore on 8/5/2006. Copy of the said registered sale deed is produced. O.P. also issued possession certificate, no due certificate, & clearness certificate in favour of the complainant. After registration of the said site complainant is not put in possession of the said site. On 26-8-2010 complainant made detail representation to O.P. to put the complainant in possession of the said site. Inspite of repeated requests O.P. failed to put the complainant in possession. Hence complainant felt deficiency in service against O.Ps. Under the circumstances she is advised to file this complaint for the necessary relief’s.
3. On appearance O.P.1 filed the version, O.P.2 filed the memo adopting the version filed by O.P.1. It is contended byO.P.1 that the complainant is guilty of suppression of facts and claim is based on created and fabricated documents. Hence complainant is not entitled for any relief’s in the complaint. As per the records available the name of the complainant is not tracing as member of the society. The alleged receipts relied upon by the complainant is not connected with the society including clearance certificate, no due certificate issued in favour of complainant. The alleged documents relied upon by the complainant clearly shows that the complainant colluded with earlier removed President Sri Krishna Bhat and have obtained the alleged sale deed in her name. Such being the case complainant cannot be claim as a consumer under the provisions of Act before this Forum. There is no cause of action to approach this Forum. The prayer sought is beyond the jurisdiction of this Forum. Remedy is to approach the Registrar of Co-op. Societies Complainant has not demonstrated any deficiency on the part of the O.P. Among other grounds O.P. prayed for dismissal the complaint.
4. To substantiate the complaint averments, the complainant filed her affidavit evidence and produced 5 number of receipts copy of the sale deed dt:8-5-2006, possession certificate, No due certificate, No objection certificate, encumbrance certificate, copy of the letter dt:26-6-2010, reply letter. On behalf of O.P. Sri Vadiraja, Secretary, filed his affidavit in support of the defence version not produced any documents. Complainant filed written arguments. O.P. produced copy of the Judgement dt:8-1-2010 of the Hon’ble State Commission. Heard arguments from both the sides.
5. In view of the above said facts, the points now that arise for our consideration in this complaint is as under:
Point No.1: Whether the complainant
proved the deficiency in service
on the part of the OP 1 & 2 ?
Point No.2 : If so, whether the complainant is
entitled for the reliefs now claimed?
Point No.3 : To what Order ?
6. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:
Point No.1 :- In negative.
Point No.2 :- In negative.
Point No.3 :- As per final order.
R E A S O N S
7. The complainant claims that she became the member of O.P. House Building Co-operative Society and opted to purchase site bearing No.193/15 O.P. collected entire sale consideration of Rs.22,50,000/- and executed registered sale deed on 8/5/2006. To substantiate this fact complainant has produced the receipts issued by O.P. and copy of the registered sale deed. The grievance of complainant is that though she waited for more than 5 years and her repeated requests to O.P. to put her in possession went in vain. Inspite of correspondences and oral request O.Ps. failed to put the complainant in possession of site bearing No.193/15. Hence complainant approached this Forum for the necessary reliefs.
8. As against the case of the complainant the defence of the O.P. is that complainant is guilty of suppression of facts. The Complainant has not paid the sale consideration and fraudulently had obtained the alleged sale deed in her name. To cover up the illegality and fraudulent act Complainant is making unnecessary allegations of deficiency in service against O.P. O.P. denied the membership of the complainant and issuance of the receipts to the complainant stating that the receipts not pertains to O.P. O.P. denied payment of Rs.22,50,000/- by complainant. O.P. also denied the allotment of site bearing No.193/15 and registration of the alleged sale deed in the year 2006 besides issuance of possession certificate, no due certificate and clearance certificate. It is contended that complainant colluded with earlier removed President Sri.Krishna Bhat and created the fraudulent sale deed and other alleged documents. Remedy is open to the complainant to approach the registrar of Co-op. Societies. There is no cause of action to approach this forum. The alleged document, receipts and correspondences are not related to O.P. but stands in the name of Vishwabharathi Housing project.
9. In support of its defence O.P. has produced the copy of the order dated:08/01/2010 passed by the Hon’ble Karnataka State Consumer Dispute Redressal Commission Bangalore in C.No.159/09 to 164/09; wherein the Hon’ble Commission has dismissed those complaints on the observation that
“ The specific case of the complainants is that though the sale deed has been executed in favour of complainants in respect of the sites allotted but possession was not given. In the recital of the sale deed it is clearly mentioned that the possession has been handed over to the complainants on the very same day. The complainants have not made clear whether they have taken symbolic possession of their sites or physical possession. If they have taken symbolic possession for the relief sought for compensation, the remedy available else where seeking direction to hand over the possession. The complainants have not produced any Khatha Extract maintained with the Corporation to show that they are entitled for compensation. So in the absence of such averments and pleadings. We are of the view that all these complaints filed by the respective complainant seeking direction to the O.P. to hand over possession with the respective complainants in their favour have to approach the Civil Court.”
Further it is observed.
“This Commission in Complaint No.34/2009 dated 16.04.2009 had taken a view that in case the OP has already executed the sale deed in favour of the complainant and if there is any breach on that account the complainant has no remedy before the Consumer Forum and the remedy available for him elsewhere by filing an appropriate Civil Suit for his grievance. Therefore it is just and necessary to direct the complainants to approach the Civil Court for their respective relief’s.”
10. The facts of the present complaint are similar to the facts of the above complaints. Hence the observations made in the said complaints are aptly applicable to this complaint. Accordingly we proceed to pass the following
O R D E R
The Complaint is dismissed reserving liberty to approach
the Civil Court for appropriate relief as sought for in the
complaint.
There is no order as to the nature of costs.
(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 7th day of July – 2011.)
MEMBER MEMBER PRESIDENT
RK:
