::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
AT BIDAR::
C.C.No. 05/2014
Date of filing : 16/01/2014
Date of disposal : 27/10/2016
P R E S E N T:- (1) Shri. Jagannath Prasad Udgata,
B.A., LL.B.,
President.
(2) Shri. Shankrappa (Halipurgi),
B.A.LL.B.,
Member.
COMPLAINANT/S: Savita, W/o Vithal Janwadkar,
Age major, Occ: House hold,
R/o C/o M.G. Ganganpalli, Vivek Niketan
Rampure colony, Bidar, Tq.& Dist.Bidar.
(By Shri. Subhash. G.S., Advocate )
VERSUS
OPPONENT/S :- 1. The Commissioner,
The Karnataka Housing Board, K.G. road,
Bangalore.
2. The Assistant Executive Engineer,
& Project Officer, Karnataka Housing Board,
Bidar.
(O.Ps By Shri. Pandurang Rao G., Advocate)
:: J UD G M E N T : :
By Shri. Jagannath Prasad Udgata, President.
The complainant has filed this case U/s.12 of the C.P.Act., 1986 alleging as hereunder:-
2. That, she was an applicant for allotment of a M.I.G. house then being developed by the K.H.B. at Chitta, Bidar. She was allotted house bearing no.MIG-00052105 vide draw of lottery on 25-09-2012 and was called upon by the opponents to deposit the cost of house amounting to Rs. 17,50,000/- by four instalments or with a single payment of the total cost enjoying a concession @ 1% of the price. She opted for the later option and paid the dues on 20-10-2012 through Axis Bank as stipulated by the opponents and had availed the concession.
3. It is further say of the complainant that, contingent upon the payment of the dues, the opponents executed Regd. sale deed in favour of her on 21-02-2013 in respect of the M.I.G. house No.942, together with land and further on 11-03-2013, issued her the possession certificate without handing over the factual possession of the property concerned. The key to the lock of the house is still retained by the Opponents. The house remains inhabited and basic amenities like electricity connection, water supply and sundry have not been provided as on the date of application. She had approached the O.P.no.2, several times to deliver the key and defacto possession of the house and her pleas had fallen into deaf ears. She further avers, touching the subject matter, a legal notice was issued to the Opponents on 23-09-2013 in spite of which, the opponents had maintained a stoic silence. Neither the factual possession of the house has been given nor basic amenities have been provided for which she has approached this Forum with the complaint claiming compensation in the shape of interest on her deposited amount @ 10.5% p.a. i.e. @ Rs. 18,375/- p.m. She claims to be reimbursed an amount of Rs. 2,57,250/- as accrued interest and compensation of Rs. 50,000/- by the opponents.
4. Vis-a-vis to the complaint, the Opponents had filed their belated versions with an I.A. filed under order VIII, Rule 1 r/w section 151 C.P.C. on 17-01-2015. In spite of several chances given to the complainant’s counsel no objections to the I.A. was filed and it came to be allowed vide orders dt.11-02-2016 and the versions was taken on records. On the same day the Opponents filed evidence affidavit. The complainant submitted that, he had filed evidence affidavit on 05/07/2014 and the fact was reckoned.
5. As a corollary, after availing several adjournments, the complainant’s side filed written arguments on 04-04-2016. Chance was given to the both sides counsels to argue further, but they are remaining absent from the proceedings for which, on 18-10-2016, we decided to treat arguments as closed and posted the case for orders.
6. In the versions filed, the Opponents have claimed that, the factual possession of the house in question had been given to the complainant while executing the possession certificate dt.11-03-2013. Further that, all other amenities like water supply, street lights, B.T. Roads, drainage, sewerage have been provided to the house in the K.H.B. layout at Chitta, sans the electricity supply, the responsibility of which has been clamped unto the GESCOM, an independent authority. They claim that, the furnishings for electricity supply has been complied by them, but they dispute to be held liable for the lapses in the part of the GESCOM. They further claim that, now the power supply has been complied and the complainant is enjoying the property thereby barring her to maintain the present complaint.
7. The Opponents further claim that, on the assumption of GESCOM providing electricity supply, they did not respond to the legal notice of the complainant and the same cannot be taken as an admission. Further, while in the sale deed the fact of handing over the possession is mentioned another document “possession certificate “has been purportedly issued at a much later date. As a whole, the Opponents are obfuscating the real issue involved in the case. Surprisingly, both counsels are absenting themselves from hearing continuously to clarify the real matter.
8. From the contents of the versions, it is crystal clear that, while at one point the opponents are calming the electricity to have been provided, at the other point they state to be expecting electrical connections by GESCOM. We cling to the legal maxim “Qui approbate, nemo reprobate”and therefore discard the perfunctory defence of the Opponents as a whole. Being service providers, it was incumbent upon them to prepare the built up allotted house habitable in all respect and then to allot the same to the prospective allottees by lottery or otherwise. The Opponents had made haste to handover the incomplete homestead to the allottees and they must be held liable for their negligence, no manner they clamp the blame of GESCOM.
9. Both sides have filed evidence affidavits and the complainant has filed documents as per the list at the end of this order.
10. Considering the rival contentions of the parties, the following points arise for our consideration:-
- Does the complainant prove that, there has been deficiency of service in the part of the Opponents?
- Does the complainant further prove that, she is entitled for damages/interest to the tune of Rs. 2,57,250/- together with running interest @ Rs. 18,375/- p.m. and Rs.5,000/- towards mental agony?
- Do the O.Ps prove that, there actions are in perfect harmony with rules, procedures and normal transactions?
- What order ?
11. Our answers to the points stated above are as follows:-
1. In the affirmative
2. Partially affirmative
3. In the negative.
4. As per the final order, for the following:
:: REASONS ::
12. In the instant case, the facts are clear from the records and as per the admissions of the O.Ps in the version that, the house in question was allotted to the complainant vide lottery and inconsonance with the directions of the opponents, the full consideration price of Rs.17,50,000/- was defrayed by her. Her claim to have raised the amount by selling agriculture property and raising loans is of no significance to the case in hand. Further, her claim that, only possession certificate was handed over to her and not the factual possession of the house is incredible since, her signature is found on the possession certificate denoting to have received possession of the house in perfect condition. However, such denotation cannot be construed as an escape gate by the opponents since the house handed over was devoid of electricity and hence was not in a habitable condition. As discussed above, the Opponents should have completed the construction of house in all respect and since as per their own admission, they were anticipating power connection from GESCOM and on such assumption the house was allotted, the clearly tantamount to deficiency of service and hence we answer point no.1 in affirmative.
13. The claim of the complainant of interest @ Rs.18,375/- p.m. is one sided, preposterous, having no basis and hence such a fanciful claim cannot be entertained. However, her pang of sufferings to live in the house without power is a factor to be considered, for which the Opponents have paid no attention in spite of legal notice received by them, thereby causing sufferings and mental agonies to the complainant and she is entitled for the sum of Rs.50,000/- and hence we answer point no.2 partially in affirmative.
14. The Opponents, state instrumentalities are bungling up the matter notoriously. First, they received payments for an un finished house, execute the sale deed where in, fact of handing over of physical possession is recited. Then, they execute another document after almost twenty days, claiming to have delivered the possession on 11-03-2013. We don’t understand how the possession of a house can be delivered twice to an allottee? The Opponents at one point of time blaming non supply of power on GESCOM, canvassing that, they were anticipating power connection and hence did not refute the contentions of the legal notice are all perfunctory perse. As service provider, they have failed in all respect to deliver the Consumer/Complainant her just dues and then we answer the point no.3 in negative and proceed to pass the following:
:: ORDER ::
- The complaint is allowed.
- The O.Ps are directed to put the complainant in physical possession of the house provided with all amenities within four weeks from the date of this order.
- The O.Ps are jointly and severally liable to pay a sum of Rs.50,000/- as compensation to the complainant and a further sum of Rs.3,000/- towards litigation expenses.
d) Four weeks time granted to comply this order.
( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 27th day of October-2016 )
Sd/- Sd/-
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
Documents produced by the complainant
- Ex.P.1- Allotment letter (copy )
- Ex.P.2- Regd. Sale deed dt.21/02/2013 ( copy )
- Ex.P.3- Possession certificate dt.11/03/2013 ( copy )
- Ex.P.4- Cash receipt dt. 20-10-2012 ( copy)
- Ex.P.5- Office copy of legal notice with postal receipts.
- Ex.P.6- Postal acknowledgment in respect of O.P.no.2.
Document produced by the Opponent/s
Nil
Sd/- Sd/-
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
mv.
