BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 02^ND DAY OF SEPTEMBER 2022

ORDER

SRI.H.JANARDHAN, MEMBER

1. This complaint has been filed under section 35 of C.P.Act,2019 prays this Hon’ble Commission to a)To allot a residential site measuring 40X60Sq. ft. in the said Bogadhi 1^st stage or in the Modified & approved plan if any duly registered in favour of the complainant at their cost and to put him in constructive physical and peaceful possession of the same and also 

B)To pay  compensation and losses and damages to the tune of Rs.69,50,000/- and to pay other  costs and pass such other reliefs.

2. The brief facts of the complaint is as under:

The complainant was enrolled as member with OP during the year 1991 vide application no.2403 dt.28.06.1991 and after being enrolled as member,notices/circulars issued by OP during 2^nd week of March 1994 and decided to have as site and applied for the site and after which OP demanded for payment of installments towards cost of the site. After that the complainant had made payment towards said site in installment basis with full and final settlement. After which the complainant made correspondences with the OP from 1995 to 21.08.2003 for early allotment of the site after having paid all the installments in full. After the follow up by the complainant OP had issued provisional allotment letter for site measuring 40X60sq.ft. vide provisional allotment letter no.864/2001-02/740 dt.20.03.2002. But the provisional allotment letter does not indicates the site number, but it is mentioned as “allotment No.(Modified plan)”. Again the complainant followed up with OP that after allotment the site was not allotted to the complainant. As he pursued with the OP, the Op has replied that since MUDA acquired 2.5 acres of the land in 1^st layout formed at Bhogadhi 1^st stage and it is approved by MUDA for grant of a modified plan to the said housing society and or allotting 2.5acres of land alternatively making a revised or new plan in the left out of the member who have paid full amount would be allotted site. Even after frequent follow up by the complainant from 1991 to 2003 after making payment and from 2003 till today was pursued with the OP. but best known to the OP, OP has not allotted any site to the complainant till today. Hence, the complainant alleged deficiency of service on the part of the OP and complainant filed thiscomplaint.

3. After issuance of notice, OP has unclaimed the notice, hence we treated service is sufficient. OP is called out, absent and placed exparte.

4. The complainant has filed his affidavit evidence and got marked exhibit P1 to P19.

5.      Heard arguments of the complainant.   Perused documents.

6.      The points that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OPs?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

7. Our answer to the above points are as under:

       Point No.1:- Affirmative in part.

      Point No.2:- Affirmative in part.

      Point No.3:-As per the final order.

REASONS

8.  Point No.1 & 2: On perusal of the pleading of the complainant, it is admitted that the complainant had become a member of the OP society and after becoming a member of the OP society by filling application form of the OP vide application no.2403 dt.28.06.1991 and after which the OP society  had called the enrolled members of the OP society for  forming layout and under which the said members would be allotted sites and for which the complainant being the member of the said society and had applied for the site vide OP application no.2403 dt.28.06.1991. The complainant had made payment to the tune of Rs.10,600/- by way of DD dt.11.03.1991 and OP has accepted the same and have issued receipt dt.28.06.1991, which is marked as Exhibit P2 & P3. After which the complainant had  made a part payment towards site on various dates till 2003. After OP being received entire payment towards cost of the site, when the complainant insisted  for the allotment of the site. OP issued provisional allotment letter dt.20.03.2002 and the provisional letter was issued to the complainant as per exhibit P15, in which no site number was allocated to the complainant, but it was written as subject to modification in the allotment. When the complainant insisted for the allotment of the site and later met the OP society by the complainant on 29.08.2019 for the allotment of the site carved in sy.no.227 at Bogadhi village, Mysuru. When the complainant has wrote letter to the OP for the allotment of the site after which OP received total consideration of Rs.1,19,367/- vide letter dt.29.08.2019 as per exhibit-P16. and after which OP has stated that       certain lands of the OP institution was  acquired by the MUDA and the OP has approached MUDA for the grant of the alternative lands by MUDA and for making revised new plan in which layout formed and members who have paid full amount would be allotted site. Later the complainant made persistent follow up with the OP for allotment of the site till today, but OP have neither allotted site to the complainant nor has responded to the complainant’s words. Though the OP has received entire sale consideration towards allotment of the site have kept hard earned money of the complainant with the OP without allotment of the site to the complainant. Further more the complainant had sought for the allotment of the site and to put the complainant in physical and peaceful possession of the property. The OP knows full well that they cannot deliver the possession of the property till layout is formed and the OP does not know when the layout can be formed and it is in question. However, the complainant has also sought for the compensation. Though the complainant cannot  get the possession of the property as the OP does know when the layout can be formed. As such this commission can mould the relief as per order VII Rule 7 of CPC inspite of allotment of the site, the commission can order for refund of the amount, which has been paid by the complainant by molding the reliefs which the court may deem just to the same  extent as if it had been asked for. The OP has keep  hard earned money of the complainant for a long time without showing sufficient cause is nothing but deficiency of service on the part of the OP. More over the complainant has engaged service of advocate to contest the case on merits. Hence, the complainant is entitled for Rs.5,000/- towards cost of litigation. It is proper to fix time limit to comply the order. Hence, we fix 60 days time for compliance of the order, failing which  OP shall pay interest  at 12% p.a. on amount of  Rs.1,19,367/-.  Hence, we answer the point no.1 &2 in the affirmative.

9.  Point no.3:- For the for going reasons,  Accordingly, we proceed to pass the following 

O R D E R

1. The complaint is allowed in part.
2. OP is  directed to refund an amount of Rs.1,19,367/-  along with interest at the rate of 9% p.a. from date of respective payments till realization to the complainant and to pay Rs.5,000/- towards cost of litigation.
3. The OP shall comply this order within 60 days from the date of this order, failing which the OPs shall pay interest @ 12% p.a. on Rs.1,19,367/- after expiry of 60 days till realization.
4. Furnish the copy of this order to both the parties and return extract pleading and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 02^nd  day of September, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :  Nil