State Consumer Disputes Redressal Commission
Smt.Asha.D.Prasad, B.A.,Ll.B vs President on 17 April, 2023
1 CC/635/2018
Date of Filing : 28.12.2018
Date of Disposal : 17.04.2023
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED THIS THE 17th DAY OF APRIL 2023
PRESENT
Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER
Mrs M.DIVYASHREE : LADY MEMBER
CC-NO.635/2018
Asha.D.Prasad,
B.A., LL.B, Advocate,
W/o B.S.Durga Prasad,
Aged about 60 Years,
R/at No.188, 'Ashirwad',
15th Main, BSK I Stage,
II Block, Bangalore-560050
Present Address:
Elita Promenade,
A-10, G-03,
J.P.Nagar 7th Phase,
Bengaluru-78 . . ..Complainant/s
(By Adv.Sri.Ranganath Jois)
VS
1.
1. President
Vishwabharathi House Building
Co-Operative Society Ltd.,
No.35, Rathnavilas Road,
Basavanagudi,
Bangalore-560064.
2. Secretary
Vishwabharathi House Building
Co-Operative Society Ltd.,
No.35, Rathnavilas Road,
Basavanagudi,
Bangalore-560064 ... Opposite party/s
2 CC/635/2018
(By Adv.Sri.Kirankumar V Sambrani)
ORDER
BY Mr.K.B.SANGANNANAVAR : Pri.Dist & Session Judge (R) - JUDICIAL MEMBER.
1. This is the complaint filed by Complainant alleging deficiency in service on the part of OPs.1 & 2 in respect of allotment of site measuring 40'x55' and in this regard she sought for direction against OPs to hand over an alternative site free from any encumbrance, measuring not less than 40'x55' in the layout of OPs.1 & 2 within time frame and in the alternative to pay Rs.99 lakhs as per the guidance value of the site allotted and to pay Rs.14,08,000/- along with interest at 24% from the date of receipt of amount till realisation and to pay Rs.2 lakhs as compensation for mental agony and cost of litigation.
2. It is the case of the Complainant that he had made payments to OPs.1 & 2 in respect of the site bearing no.258/A, 1st phase situate in Hosakerehalli, Uttarahalli hobli, Bengaluru south taluk, Bengaluru, measuring 40'x55' at the rate of Rs.630/- per sq.ft and the total site value was Rs.13,86,000/- and the registration fee was Rs.22,000/-. She had paid such an amount in the forum of cash and cheques. Pursuant to such payments made by her OPs.1 & 2 have executed a sale deed on 13.02.2023 through the Secretary of 3 CC/635/2018 the OP society at office of Sub-Registrar Kengeri, Bengaluru. After execution of the sale deed Khatha was affected in the BBMP records and the BBMP issued registration certificate as well as Khata Certificate. She has obtained EC in respect of the said property for the period from 01.06.1989 to 20.02.2003. In such circumstances, when she with an intention to build a residential house applied for license which has been duly sanctioned by BBMP. One Mrs.Jayalakshmi Bhat and Mr.Raghavendra Bhat tried to interfere with her property and to that effect filed complaint before Joint Registrar of Co-operative Society which was pending till 2008 and while pending of the said case, as OP society got the bulk allotment of the disputed land pertains to 4th phase of the said layout, as such the society promised the Complainant to allot another alternative litigation free site, while forming the new layout in 4th phase subject to her withdrawal of the pending case. Accordingly believing the words of OPs.1 & 2, Complainant withdrew the dispute No.107/2003 pending on the file of Joint Registrar of the Co-operative society. Accordingly the OP society issued new ID card bearing no.1173 promising to allot another site in due course of time and she was also shown an alternative site without there being any documents and when she went to construct compound wall on such second allotted site as shown by 4 CC/635/2018 OPs the compound wall was pulled down saying that the said site was not legally allotted to her. In this regard, she has repeatedly visited the society with a request for allotment of new site. However, OPs have not shown any response to provide an alternative site. She had made repeated representation between 2007 & 2013, yet, could not get an alternative site. In such circumstances, she raised consumer complaint for allotment of site measuring not less than 40'x55' or in the alternative sought for compensation equal to the guidance value of the site allotted earlier, which was disputed site and sought for compensation as stated in the preamble.
3. This complaint came to be admitted by the Commission and notice was ordered against OPs.1 & 2, who have put their appearance through learned counsels, however, failed to submit their version and the Commission proceed to hold an enquiry by receiving affidavit evidence of Smt.Asha D Prasad W/o B.S.Durgaprasad and received documents marked as per Ex-C1 to C22. After closure of enquiry, having heard learned counsel for the Complainant, Commission now to decide on the alleged rendering deficiency in service on the part of OPs and if it is found proved to grant befitting releifs.
5 CC/635/2018
4. The Complainant presented herself as a practicing advocate, aged about 60 years during 2018, while OP.1 is the President and OP.2 is the Secretary of the Society. In her affidavit evidence she has categorically stated Ops 1 and 2 have received money from her as per Ex-C1 to C3/receipts and it is found from these receipts that they are in respect of site bearing no.258/A measuring 40'x55' on 05.02.2003, of which, one is for Rs.43,000/-, second is for Rs.48,000/- and third one is for Rs.4,29,000/-. Thus through these receipts such amount was paid. In our view she had paid huge amount at that point of time to OPs.1 & 2 with fond hope to get a litigation free site in which to build her dream house. The site sought for allotment from OP society was measuring 40'x55'. She had also produced statement of accounts obtained from Vijaya Bank to corroborate her payments made to OPs. If we examine the evidence placed on record by the complainant could see OP society on 13.02.2003 executed registered sale deed in favour of the Complainant in respect of site bearing no.258/A situated in first phase by specifying the boundaries and it was valued at Rs.5,50,000/-, wherein could see the President, Secretary and the Director of OP society were parties as vendors on the other part and they have sold such property in favour of the Complainant. This fact placed on record has to be accept as it is since Ops failed 6 CC/635/2018 to file their version. In other words they did not have any defence at all, as such the same has to be accept as they are from which could see the signatures not only of the Ops but also of one of the Director. However, enquiry reveals one Mrs.Jayalakshmi Bhat and Mr.Raghavendra Bhat tried to interfere with the said property and to that affect Complainant had raised dispute no.107/2003 on the file of Joint Registrar of Co-operative Society and when OPs promised to allot a litigation free site to her with similar dimension, she withdrew the said dispute, but OPs did not kept up their promise to yet another site. In such circumstances, it is quite natural for the complainant to raise consumer complaint to get redressed her dispute.
5. It has also come in the enquiry followed by the sale deed/Ex-C5 executed by Ops in favour of the Complainant, BBMP issued Khatha certificates as per/Ex-C6 & C7 during 2003 itself. It is also found OP society issued Ex-C8/possession certificate on 18.08.2003 in favour of the Complainant in respect of site bearing no.258/A measuring 40'x55' specifying boundaries, yet the very site could not be made useful for her to build a house, since Mrs.Jayalakshmi Bhat and Mr.Raghavendra Bhat tried to interfere with said property for which one can draw inference that site which was allotted to some other persons was allotted in favour of 7 CC/635/2018 the Complainant for the reasons best known to the Ops and for their wrongful gain have created not only registered sale deeds but issued possession certificate, without putting the Complainant in actual possession of the said site and in such circumstances the complainant could have raised a dispute also before the Joint Registrar of Co-Operative Societies, which was ended in withdrawal as promised by Ops to allot a site with similar dimension in due course of time as stated by complainant. No doubt, all documents and EC placed in respect of the said site are in the name of the Complainant but with no use. It is also found that she had also paid taxes to the concerned authorities.
6. In the above such circumstances, on 05.12.2007 she had made request to OP.1 society for allotment of an alternative site as per Ex-C17 and on 16.06.2013 society informed she did not fits into the parameters laid down by the Hon'ble High Court and if she is insists to avail the site proposed to be formed by the society, is called upon to give her written consent within 5 days, failing which, society shall be at liberty to take further steps. Accordingly the Complainant informed to the Secretary of the Society expressing her regret that she had been deprived of the site allotted to her and her hard earned money being paid to the 8 CC/635/2018 society without getting a site in lieu of the earlier site allotted to which a sale deed also is executed.
7. In view of the above such circumstances and in view of the documents placed on record as stated above, coupled with contents of her affidavit evidence, since OPs have failed to submit their version to the case raised are to be accepted as they are to decide the case keeping in mind the object of the CPA. In other words, Complainant could be held is a consumer, while OPs.1 & 2 the service providers failed to keep up their promise to allot a site in lieu of the sale deed rendered deficiency in service in respect of allotment of site measuring 40'x55' and their actions in executing sale deed in favour of the Complainant receiving the entire sale price and driving her even to mutate in all the BBMP records and made her to pay taxes, created a paper possession knowing fully-well that such site factually not at site was already allotted to somebody. In other words OPs without putting her in actual possession allotting very site to some other persons either in favour of Mrs.Jayalakshmi Bhat and Mr.Raghavendra Bhat or others which is not known, without cancelling the sale deed executed in favour of the Complainant marked as Ex-C5, amounts to unfair trade practice of OPs, since by such actions they have caused unlawful loss to the Complainant and to gained unlawfully 9 CC/635/2018 either for the society or for the persons who are in helm of affairs of the said society at the relevant time. In such circumstances, Complainant has to be held proved the rendering deficiency in service on the part of OPs.1 & 2 has to be held entitle for suitable reliefs.
8. Firstly for allotment of a site similar to the dimension allotted earlier and executed sale deed which shall be litigation free. Or in the alternative to pay the government guidance value of the said site as on the date of raising complaint. Hence, Commission proceed to allow the complaint in part and directed OPs.1 & 2 to allot an unencumbered site measuring 40'x55' in any other layout to be formed as promised within six months in lieu of sale deed dtd.13.02.2003 executed by OPs.1 & 2 in favour of the Complainant at their costs, since the said sale deed being the void document. Further they are directed to pay Rs.1 lakh as compensation for the mental agony and hardship caused to her all these years and pay Rs.50,000/- towards litigation cost. Or in the alternative to pay government guidance value of the site measuring 40'x55' as on the date of the complaint along with interest at 6% p.a. from the said date till realisation and do pay Rs.25,000/- as litigation cost.
10 CC/635/2018 It is hereby clarified as to the e guidance value has to be worked out at the time of filing the execution petition from the document obtained from the concerned Sub-Registrar office and on the actual market price of the site.
9. Supply free copy of this order to both the parties.
Lady Member Judicial Member
*NS*