BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.1311/2014

DATED ON THIS THE 6^th January 2017

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri DEVAKUMAR.M.C,

Member

1.     The complainant has filed the complaint under section 12 of the C.P.Act, 1986, against the opposite parties alleging deficiency in service and unfair trade practice and seeking a direction to allot a site measuring 30’x40’ and to pay damages and such other reliefs.
2.    The complainant become the member of the opposite party society and intending to purchase a residential site, deposited the amount as demanded by the opposite party.  An unnumbered site measuring 30 x 40 ft. has been provisionally allotted in favour of the complainant, on deposit of Rs.39,000/- on various dates.  The opposite party not allotted a site till 22.02.2014.  A legal notice caused on 03.04.2014 which was untenably replied on 24.05.2014.  Aggrieved complainant filed the complaint seeking reliefs.
3.    The opposite party admitted the complainant as its member and receipt of amount towards allotment of site measuring 30 x 40 ft. in its layout, periodically.  It has issued a notice to the complainant on 02.03.2009, calling upon to submit certain documents within stipulated period or else to withdraw the amount deposited towards the site.  As there was no response and due to non-submission of relevant documents, it was presumed that the complainant was not interested in getting allotment of site.  Thereby, the complainant is entitled only for refund of the amount deposited towards the allotment of funds without interest.  Hence, there is no deficiency in service on its part and the complainant is not entitled for any damages.  As such, prays for dismissal of the complaint.
4.     Both parties lead their evidence by filing affidavit and relied on certain documents.  Written arguments filed and heard the oral submissions by respective counsels.  Perusing the material on record, matter posted for orders.
5.      The points arose for our consideration are:-

1. Whether the complainant establishes the deficiency in service on the part of opposite parties in not allotting a residential site till date and thereby he is entitled for the reliefs sought?
2.  What order?

6.    Our findings on the aforesaid points are as follows:

Point No.1 :- Partly in the affirmative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

7. Point No.1:- The complainant took the membership on 12.02.1985, had applied for allotment of site measuring 30 x 40 ft, by depositing the amount.  The opposite party allotted sites to few members only.  The complainant paid Rs.15,000/- vide demand draft dated 22.11.1991, towards allotment of site.  Again Rs.14,000/- on 18.10.1998 by cash, apart from other payments.  The opposite party issued a provisional allotment letter on 05.11.2003 to the complainant.  The complainant seeking allotment of site, contacted opposite party repeatedly.  On 22.02.2014, the opposite party suggested the complainant to receive amount paid, without interest.  A legal notice got issued on 03.04.2014, calling upon the opposite party to allot a site, but the opposite party failed to do so.  Hence, the complaint and sought for the reliefs.
8.    The opposite party admitted the complainant’s membership and the payment of amount towards allotment of site and also the provisional allotment of site in favour of complainant.  The opposite party contended that, it had invited the complainant, to submit affidavit and other relevant documents for further processing of his application for allotment of site, but the complainant failed to do the needful, or to withdraw the application for allotment of site, and to receive back the amount deposited without interest towards the site.  As such, contended there is no deficiency in service by it, hence not liable for payment of damages and prays for dismissal of the complaint.
9.    The material on record established that the complainant was the member of opposite party since 1985 and had deposited the amount periodically with opposite party, towards allotment of site.  Complainant also established the provisional allotment of site by opposite party.  Admittedly the opposite party had allotted sites to few of its members, but failed to allot a site in favour of the complainant.  The opposite party does not disclosed the reason for not making an allotment of site in favour of the complainant, but express its readiness to refund the amount without interest.  The complainant deposited the amount towards the site from 1991 onwards and the opposite party has made use of the amount deposited by him, for development of layout.  Now refusing to allot a site without assigning any reasons is unjustified.  As such, we opine that, the opposite party is liable to allot a site measuring 30 x 40 ft. in its layout by receiving the balance sale consideration or else to refund the amount deposited with interest till date.   Accordingly, point No.1 is answered partly in the affirmative.
10. Point No.2:- With the above observations, we proceed to pass the following

:: O R D E R ::

1. The complaint is allowed in part.
2. The opposite party is hereby directed to allot a site measuring 30 x 40 ft in its layout, by receiving balance sale consideration towards the sital value, as on the date of provisional allotment made or to refund the entire amount along with interest at 18% p.a. from the respective date of deposit, till this date, to the complainant, within 60 days of this order.  In default, the opposite party shall pay interest on the said total sum at 12% p.a. until payment made.
3. The opposite party is hereby directed to pay Rs.5,000/- towards the deficiency in service and Rs.2,000/- towards cost of this proceedings to the complainant, within 60 days of this order.  Failing to comply, the opposite party shall pay interest at 12% p.a. on the said total sum of Rs.7,000/- until payment made.
4. In case of default to comply this order, the opposite parties shall undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
5. Give the copies of this order to the parties, as per Rules.

 (Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 6^th January 2017)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER