NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
FIRST APPEAL NO. 8 OF 2005
(Against the order dated 24.09.2004 in Complaint No.47 of 1999
of the State Commission, Karnataka)
Bangalore Development Authority,
By its Commissioner,
Kumara Park (West)
Bangalore– 560 020
Sri Varghese George P.
S/o George Jacob,
No.13, Jayamahal Extension,
HON’BLE MR. JUSTICE V.R. KINGAONKAR,
HON’BLE MR. VINAY KUMAR, MEMBER
For the Appellant : Mr. Ankur S. Kulkarni, Advocate
Ms. Jyoti Bala, Advocate
For Mr. S.K. Kulkarni, Advocate.
For the Respondent : Mr. Amit Sibal, Advocate
Mr. Virendra Sinha, Advocate
Mr. Sushant Singh, Advocate
Mr. Jafar Alam, Advocate
PRONOUNCED ON: 14-11-2011
PER MR.VINAY KUMAR, MEMBER
1. The respondent Mr. Varghese P. George was the Complainant before the Karnataka State Consumer DisputesRedressal Commission, in Consumer Complaint No.47 of 1999. The matter in his complaint pertains to auction of a site by appellant/Bangalore Development Authority (BDA) on 22.9.1997. At Rs.68.48 lakhs, his bid was the highest and therefore accepted by the BDA. He followed it up with payment 25 % of the bid amount, Rs.17.12 lakhs, as required for confirmation. The case of the Complainant was that there was no further communication from the BDA. However, the stand of the BDA before the State Commission was that the decision to confirm the bid in favour of the Complainant was communicated to the Complainant and he was also called upon to pay the remaining amount.
2. Subsequently, a legal notice was issued by the Complainant on 29.1.1999, which was replied by the BDA on 31.3.1999. The State Commission took into account the continued willingness of the BDA to receive the balance of payment and to handover possession of the site and came to the conclusion that there is no deficiency of service on the part of the BDA. Accordingly, the Commission dismissed the complaint, but permitted the Complainant to pay the remaining amount within two months and directed the BDA to execute the sale deed in favour of the Complainant.
3. The BDA is now before us in this appeal, with a prayer to set aside the above direction to receive the payment and execute the sale deed. The case of the Appellant/BDA is that the above direction should not have been given as the State Commission had already held that there was no deficiency of service on the part of the appellant. Secondly, the auction purchaser/Complainant had deliberately refused to accept the confirmation letter and filed the consumer complaint to seek refund. According to the appellant, the Complainant had only sought refund of his money with interest. He had not prayed for direction to execute the sale deed.
4. We have perused the records and heard the two counsels. The appeal has been filed with a delay of 63 days. We have considered the explanation tendered and deem it fit to condone the delay, in the facts and circumstances of this case.
5. The counsel for the respondent/Complainant has drawn our attention to the written submission of BDA before the State Commission. In the second last paragraph an offer has been made in the following terms:-
“Apart from this, the Authority is making an option to the complainant to pay the balance sitalvalue and take possession of the site which is available for peaceful possession and enjoyment. If the complainant is not willing to accept this offer, the respondent authority will have no other option, but to follow the provision as contained in the B.D.A. Rules.”
6. It is therefore apparent that the part of the impugned order, giving the complainant an opportunity to pay and get the site, is not a suo moto offer on the part of the State Commission. It emanates from the proposition put forth by BDA itself before the Commission. It also is clear from the impugned order that the finding of no-deficiency-in-service reached by the State commission was based only on the willingness of the appellant/BDA to receive the balance of price and execute the sale deed.
7. However, it must be noted that whatever the basis, the order of the State Commission giving the complainant twomonths time to pay and get the site, was well beyond the relief sought by the complainant. Before the State Commission, the case put forth by the respondent/Complainant was that the auction was held on 22.9.1997 but there was no confirmation of the same. He wrote to BDA on 26.5.1998 stating that he had been waiting for over six months. Having got no response, he has made alternative arrangement and was no longer interested in confirmation of the auction sale. He had therefore sought refund of the amount of Rs 17.12. lakhs deposited by him. Receipt of this letter is acknowledged by BDA on the same day. This is reiterated in the complaint petition (and his affidavit evidence) before the State Commission. Accordingly, the relief sought by him was refund with interest. Even as late as 18.8.2003, the respondent/complainant had stated in his written submission before the State Commission—
“The only question that requires to be resolved in this complaint is whether the Complainant is entitled to seek refund of the money deposited by him at the time of bidding the auction.”
It is therefore, abundantly clear that in the impugned order the State Commission has granted a relief which was never sought by the complainant.
8. The impugned order, passed on 24.9.2004 is unsustainable, on another ground viz. that it amounts to permitting the complainant to purchase the site in 2004 at the market price of 1997.
9. For reasons detailed above, the order of the Karnataka State Consumer Disputes Redressal Commission in Complaint No. 47/1999 is set aside. The matter is remanded back to the State Commission for fresh consideration of the complaint petition and the prayer made therein. The State Commission shall decide the points for determination and adjudicate upon them after going into all aspects of the matter. Parties to the present proceedings shall bear their own costs.
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