Karnataka

Bangalore 4th Additional

CC/755/2016

S. Nanjappa - Complainant(s)

Versus

President Vishwa Bharathi House Building Co-Op-erative Society, - Opp.Party(s)

B.S. Shekhar

08 Dec 2017

ORDER

Complaint filed on: 25.05.2016

                                                      Disposed on: 08.12.2017

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.755/2016

DATED THIS THE 08^th DECEMBER OF 2017

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

S.Nanjappa,

aged about 76 years,

No.G-74, Appayanna

street, Doddmavalli,

Bengaluru-04,

Bengaluru-92.

 

By Adv.Sri.B.S.Shekhar       

 

V/s

Opposite party/s

Respondent/s:-

 

1. President,

Vishwa Bharathi House Building Co-operative Society (VBHBCS), no.35, Rathna Vilas road, Basavanagudi,

Bengaluru-04.

 

2. N.Manjunath

C/o Vishwa Bharathi House Building Co-operative Society (VBHBCS), no.35,

Rathna Vilas road, Basavanagudi,

Bengaluru-04

 

• Ex-parte   

ORDER DELIVERED BY PRESIDENT

SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant seeking direction against the Opposite parties (herein after referred as Op.no.1 & 2 or Ops) to deliver the possession of the registered site executed vide rectification deed dtd.04.08.2004 bearing no.1077/1 in IV phase measuring 30’x50’ or in the alternative, refund the entire amount of Rs.5,38,450/- with 18% interest from date of payment till settlement and further seeking to direct the Ops to pay the nominal damages of Rs.1 lakh towards mental agony and cost of the proceedings and any other order as deemed fit to be granted in the facts and circumstances of the case.      

 

          2. The brief facts of the case of the Complainant are that the Op.no.1, Vishwa Bharathi House Building Co-operative society (herein after called as the said society) having its registered office at Bengaluru is a housing society registered under the Karnataka societies Act. The Op.no.2 is the erstwhile authorized representative of the society handling day to day affairs. The Op.no.1 was earlier known as Writers and Artists house building co-operative society ltd., (WAHBCS) functioning from the same office. Later the society changed its name to Vishwa Bharathi House Building Co-operative society (VBHBCS). It is the case of the Complainant that the said society invited members to subscribe/apply for site at IV phase of Vishwa Bharathi housing complex layout, Girinagar, Bengaluru developed by the society. As stated supra, at the first instance the society functioned as Writers and Artists house building co-operative society ltd., and invited application from members for allotment of site and Complainant applied for a site in the proposed layout. The Complainant was intimated vide letter no.114/1970/IV/565/1081 dtd.30.09.1981 that he was allotted site no.565 in IV phase Girinagar and advised to remit the sital amount.  Further it is the case of the Complainant that later the WAHBCS bame VBHBCS and as per revised demand Complainant again applied for a site and the society issued a revised allotment letter vide no.VHC/461/1988-89 dtd.17.06.1999, advising to remit Rs.16,645/- towards the entire sital value. The site allotted was no.461 measuring 40’x60’ at IV phase and the society on receipt of full amount executed a sale deed vide no.2069/89-90 dtd.28.09.1989, registered with SRO, Kengeri. The Complainant further submitted that even after execution of the sale deed, the society was not forthcoming in giving possession to the Complainant. However, on the pretext of cost escalation demanded the enhanced price towards the site. As on date our client has paid the following sums towards the site on the dates mentioned therein:

Sl.No.	Date	Amount	Receipt no.	By cheque/cash/DD
1	10.04.1980	5,000/-	265	Cash
2	19.08.1981	450/-	514	Cash
3	18.10.1982	500/-	5227	Cash
4	20.06.1985	10,000/-	9154	Cash
5	19.10.2007	1,12,500/-	23718	DD
6	22.10.2007	35,000/-	4338	Cheque
7	22.10.2007	75,000/-	4337	Cheque
8	During 2000	3,00,000/-	Nil	Cash to Op.no.2
	Total	5,38,450/-

 

The Complainant further submitted that the dates of allotment letters, sale deed and payment of money do not go in a sequence and there is great mis-match. The cause for this incongruity is the Op society was running on ad-hoc basis and at that first instance Mr.Krishna Bhat assisted by Mr.Manjunath were running the affairs of the society. In the above payment received by the society, amount paid at sl.no.1 to 7 have receipts and the last cash component which was paid directly to Mr.Manjunath on behalf of the society does not have a receipt. The Complainant further submitted that the society pleaded its inability to allot the original dimension and requested all members including the Complainant to exchange for a lesser dimension of site. Taking a generous view believing the representation of the Op to be true Complainant agreed for accepting a site of lesser dimension in lieu of the original dimension registered by a sale deed stated supra. As stated above the Op executed a rectification deed dtd.04.08.2004 allotting and registering a site bearing no.1077/1 in the IV phase measuring 30’x50’ in lieu of site no.461 measuring 40’x60’. It was at this point the Op.no.2 promising delivery of early possession of site demanded and took Rs.3 lakhs as authorized by the Op.no.1. The Complainant further submitted that the first payment was started in the year 1980, and the last was paid in the year 2000, the Complainant presently at the age of 76 years is still struggling to get the site and has poured his entire savings on the Op. Even after waiting for 35 years, the Op having enjoyed his money making false promises has denied a site that too after 2 registered conveyances. He further submitted that the Op has suffered several orders from the Hon’ble High court of Karnataka and there is a clear direction for drawing seniority list of members and allot site. However, in gross violation without caring for the orders of the higher courts, the Op has distributed sites to various non-members/members not as per seniority list at fancy price, thereby defeating the entire purpose of its existence. He further submitted that the Complainant even at his old age has visited the office of the Op innumerable times and has met and pleaded past and present Presidents, functionaries to give possession of the site registered by a sale deed. All his efforts till date are in vain resulting in further agony, expenses. He further submitted that he is a consumer within the meaning of the CP Act and also the op being a housing society engaged in acquiring land, converting in to sites and marketing fall within the ambit of CP Act and all their acts, deeds, services, promises, deficiencies can be tried by this forum. On 07.05.2016, a legal notice was sent by registered post by the Complainant to both the Op.no.1 & 2 at their registered office. The Op.no.1 & 2 did not cause any reply till the date of filing this complaint. Hence the Ops have committed serious act of deficiency of service, as such the Complainant is entitled for the relief as sought for.

 

          3. Notice were ordered to issue to the Op.no.1 & 2. Inspite of the notice duly served on them, they did not appear before this forum either to admit or deny the contents of the complaint filed by the Complainant.

         

          4. We allowed the Complainant to substantiate his case. Accordingly he filed his affidavit evidence and additional affidavit evidence and got marked the documents Ex-A1 to A19 and closed his side. He filed written arguments also. We heard the learned counsel for the Complainant and also placed reliance on the available materials on record furnished by the Complainant.

 

5. The points that arise for our consideration are:

1. Whether the complaint is maintainable before this forum in view of the specific direction issued by Hon’ble High court of Karnataka in WP no.1764/2008 dtd.04.08.2008 and in WA no.1508/2008 dtd.19.08.2008 ?
2. Whether is there any deficiency of service on the part of Ops, if so whether the Complainant is entitled for the relief sought for ?
3. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Negative.

Point no.2: Does not survive for consideration in view of findings on point no.1.

Point no.2: As per the final order for the following

 

REASONS

 

          7. Point no.1: This complaint filed by the Complainant u/s 12 of CP Act 1986, directing the Ops to deliver the possession of the registered site executed vide rectification deed dtd.04.08.2004 bearing no.1077/1 in IV phase measuring 30’x50’ or in the alternative, refund the entire amount of Rs.5,38,450/- with 18% interest from date of payment till settlement. Further prays to direct the Ops to pay the Complainant’s nominal damages of Rs.1 lakh and cost of the litigation. In response to the notice issued by this forum to the Ops, but the Ops did not appear before this forum and hence placed ex-parte.   

 

          8. Now this forum will have to consider the available materials on record placed before it by the Complainant. The available materials on record go to show that, the Ops have executed the registered sale deed in favour of the Complainant on 28.09.1989 with SRO, Kengeri with regard to the allotment of site no.461 measuring 40’x60’ at IV phase. Further the dimension of the site has been changed. In this context, the Ops executed the rectification deed dtd.04.08.2004 allotting and registering a site bearing no.1077/1 in the IV phase measuring 30’x50’ in lieu of site no.461 measuring 40’x60’.  It was at this point the Op.no.2 promising delivery of early possession of site demanded and took Rs.3 lakhs as authorized by the Op.no.1. In this context, the documents produced by the Complainant that the intimation of the site allotment marked as Ex-A1 & A2, copy of the sale deed marked as Ex-A3 and the copy of rectification deed marked as Ex-A11 to substantiate the contention taken by the Complainant. As these documents are not denied by the Op, hence we placed reliance on these documents which go to show that the said society initially allotted the site no.461 measuring 40’x60’. Thereafter the rectification deed executed on 04.08.2004 allotting and registering a site bearing no.1077/1 in the IV phase measuring 30’x50’.  Even though the Ops are placed ex-parte, where the contention taken by the Complainant, but this forum can adjudicate the matter in question that crops up for our consideration.  In this context, our answer in the negative for the simple reasons that the Complainant herein was the writ petitioner. In WP no.1764/2008 along with other petitioners, where he has sought the relief seeking implementation of Government order dtd.04.10.2007 for the allotment of the sites. Hon’ble High court of Karnataka by its order dtd.04.08.2008 disposed the said WP along with the other WPs in common order stating that:

The petitioners have directly approached this court on the ground that they have already been allotted with sites and that they should be considered on priority as against other persons who have been allotted sites and who have become members subsequently. When specifically the Co-operative societies Act has provided a forum, which is a fact finding authority, without exhausting the remedy before the said forum, the petitioners have directly approached this court. Since this court is not a fact finding authority that too in the writ proceedings all these petitions are disposed of with a direction to the petitioners to approached the concerned Registrar of co-operative societies to hold an enquiry on serving notices to the affected persons and to dispose of the matter in accordance with law expeditiously.

 

          9. The Complainant herein changed the said order in WA no.1508/2008 before Hon’ble High court of Karnataka. The Hon’ble High court of Karnataka passed order on 19.08.2008 by confirming the judgment passed by Hon’ble Single Judge of the Hon’ble High court of Karnataka with an observation:

The writ appeals are dismissed with liberty to the appellants to work out their remedy before the Registrar of co-operative societies under the Act and the Registrar of co-operative socities is directed to dispose of the dispute independently without being influenced by the directions that have been issued by the learned Single Judge of this court in WP no.12236/2006 and connected matters dtd.11.10.2007 or any other writ petition regarding allotment of site to the members of the society in accordance with the conditions imposed in the Government order dtd.04.10.2007 and the Registrar of co-operative societies shall decide the dispute independently on merits, in accordance with law and dispose of the proceeding expeditiously.

 

10. If the order passed in the WP no.1764/2008 and also in WA no.1508/2008, wherein it is specifically stated that the writ petitioners therein are at liberty to approach the Registrar of the co-operative societies to get redress their remedy, by passing this direction again by the Hon’ble High court of Karnataka in WP no.1764/2008 as well as in WA no.1508/2008. He approached this forum by invoking Sec.12 of CP Act. In our view, when there is specific direction by the Hon’ble High court of Karnataka in the said writ petition as well as in the said writ appeal, we are declined to entertain this complaint keeping liberty to the Complainant to approach the Registrar of the co-operative society as observed by Hon’ble High court of Karnataka.  The Complainant has relied on one of the case disposed by the Hon’ble State Commission in CC.no.574/2006 filed by one K.Subramanya as against the Op herein. The said complaint was allowed directing the Op to pay an amount of Rs.22 lakhs. The Complainant in the said case name called K.Subramanya appears to be not filed any writ petition before Hon’ble High court of Karnataka. Hence the Hon’ble State Commission entertained the said complaint and disposed the matter. But herein the Complainant has already approached the Hon’ble High court of Karnataka to get redress his remedy to which the Hon’ble High court of Karnataka directed the Registrar of Co-operative societies to decide the matters independently. Hence, the said decision is not applicable to the present case. Accordingly we answered the point no.1 in the negative.  

 

11. Point no.2: In view of our findings on point no.1, this point does not survive for consideration. Accordingly this point is answered.

 

12. Point no.3: In the result we passed the following.  

 

ORDER

 

          The complaint filed by the Complainant is dismissed as not maintainable.

 

2. Anyhow the liberty is extended to the Complainant to approach the Registrar of Co-operative Societies to get redress his remedy in the light of the observations made by Hon’ble High Court of Karnataka in WP no.1764/2008 and in WA no.1508/2008.

 

3. Looking to the circumstances of the case, we directed both the parties to bear their own cost.   

 

          Supply free copy of this order to both the parties. 

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 8^th December of 2017).

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.S.Nanjappa, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1 & A2	Intimation of site allotment dtd.30.01.1987 & dtd.17.06.1999
Ex-A3	Sale deed dtd.28.09.1989
Ex-A4 to A7	Receipts dtd.10.04.1980, 19.08.1981, 18.10.1982, 20.06.1985
Ex-A8 to A10	Original receipts dtd.19.10.2007, 22.10.2007, 22.10.2007
Ex-A11	Rectification deed dtd.04.08.2004
Ex-A12	Legal notice dtd.07.05.16
Ex-A13	Original postal acknowledgement
Ex-A14	Original Postal envelope with postal receipt and postal acknowledgement
Ex-A15	Order in CC.574/2006 dtd.30.08.07
Ex-A16	Commissioners report in WP10610/2008
Ex-A17	Letter of Complainant dtd.04.04.16
Ex-A18	Judgment in WP 20370/2007 (WP 1764/08) dtd.04.08.08
Ex-A19	Judgment in WA 10354/2008 (WA 1508/08) dtd.19.08.08

 

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT