Date of Filing : 06.08.2011
Date of Order : 03.11.2011
BEFORE THE BANGALORE URBAN 4th ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
No. 8, Sahakara Bhavan, Cunningham Road, Bangalore – 560 052
Dated 3rd NOVEMBER 2011
PRESENT
Sri. J.N. HAVANUR ….. PRESIDENT
Sri. GANGANARASAIAH ….. MEMBER
Smt. ANITA SHIVAKUMAR ….. MEMBER
COMPLAINT NO. 1455 / 2011
Mr. Ramakrishnan,
Aged about 48 years,
S/o. Late Muniswamy,
R/at: No. 303, Kemps Avenue,
Pai Layout, Beniganahali,
Bengaluru – 560 016. ……. Complainant
V/s.
M/s. Army Housing Co-operative Society Ltd.,
No. 179, 5th Main, 9th Cross,
Indiranagara, 1st Stage,
Bengaluru – 560 038.
Rep. by its Secretary …… Opposite Party
ORDER
By Smt. ANITA SHIVAKUMAR, MEMBER
This Complaint is filed by the Complainant u/s. 12 of the Consumer Protection Act, 1986. The brief facts of the complaint filed by the Complainant against OP are that he has subscribed for a site measuring 30’ x 50’ at Soldier Port, a prestigious residential layout formed by OP which is situated near Suryanagar, Electronic City, Bangalore. The Complainant submitted that believing on the OP’s representation, he invested his hard earned money of Rs.3,00,000/-. OP has issued receipt dated 07.09.2007 for the same. OP agreed to allot a site for Rs.8,77,500/- within 6 months in the said area. After payment of first installment, the Complainant requested OP several times to show the layout and to mark the site to be allotted to him, but so far OP has not come forward to show the layout and the site. The Complainant came to know that OP has not acquired any property in the said area for formation of layout as agreed. On the other hand, OP was demanding for further payment for allotting the site. Even after lapse of 4 years & 9 months from the date of payment of first installment, OP never turned up to form layout. As the Complainant has already paid 1st installment, he is entitled to see the layout and site, before making further payment. It is duty bound of OP to show it as requested by the Complainant and to allot a site measuring 30’ x 50’ in Soldier Port or in some other layout with good and perfect right title. The attitude of OP constrained to issue legal notice dated 27.07.2011 by RPAD. The same was returned unserved with an endorsement “not claimed”. After collecting money from the Complainant, OP has failed to meet its promise which amounts to negligence and deficiency of service. The Complainant approached this Forum seeking direction to refund the amount of Rs.3,00,000/- with interest @ 18% P.A. from the date of deposit and Rs.3.00 Lakhs as compensation for the hardship and damages for negligent behavior of the OP.
2. Notice was sent to OP through RPAD. It was endorsed by the postal authority as “refused”. Hence, it is taken as service is held sufficient. OP was absent on the date of appearance. Hence, OP was placed exparte.
3. In the course of enquiry, the complainant has submitted his evidence by way of affidavit, reproducing what he has stated in his complaint. The complainant has produced copy of registration form, copy of receipt issued by OP dated 31.08.2007, copy of brochure and payment schedule, copy of 26th Annual General Body meeting invitation issued by the OP Society and its proceedings, copy of legal notice addressed to OP, copy of postal endorsement, copy of statement of account of Complainant to prove the amount of Rs.3.00 Lakhs is encashed by the OP, the application for condonation of delay with memorandum of facts by way of affidavit. Heard the Counsel for Complainant and perused the records.
4. On perusal of the material documents produced by the Complainant, the Complainant has paid Rs.3,00,000/- towards site measuring 30’ x 50’ at Suryanagar, near Electronic City, Bangalore. OP has issued receipt dated 31.08.2007 for the same. The brochure published by OP exhibits the area in which OP is going to form layout named as “Soldier Port” and also where the Complainant will be allotting site. It also contains the payment schedule which can be paid in 4 installments. As per their schedule, the first installment had to pay along with registration form and accordingly Complainant has paid Rs.3.00 Lakhs as first installment. Even the allotment is based on seniority which is based on the date of receipt of first installment amount. The Complainant paid it on 31.08.2007, but OP never shown the layout formed by it and also the site to be allotted to the Complainant even though he paid first installment and requested the OP several times. Subsequently, the Complainant came to know that OP has not acquired any property to form layout. When we perused the documents of proceedings of General Body Meeting produced by the Complainant, they decided to take some action against the builder who has committed mistake pertaining to the layout in question, and they decided to recover the money given to the builder. It is evident that the said layout is not yet formed and it is not in a position to allot the site to the members of the Society as submitted by the Complainant. OP has not even come forward to prove that it has formed the layout or sites by taking utmost care & caution. Therefore, under these circumstances, Complainant opted for taking back his membership fee which cannot be denied.
5. Since the OP has not exhibited its interest in keeping its promise and sincerity in showing some progress in formation of layout or allotting a site in any other layout formed by it which is requested by the Complainant, OP cannot retain Complainant’s money without providing any service. Either OP should have allotted the site in favour of the Complainant or refunded his money when OP is unable to keep up its promise. The Complainant has waited and pursued the matter since 4 years 9 months without getting fruitful result. The Complainant was ready to pay the balance amount if OP was prompt in its attempt to form the layout as promised. But, OP neither shown the required materials to the Complainant nor allotted the site even though he issued legal notice to OP. It indicates that OP is not able to allot and register the site in the said layout and OP has no right to retain the money paid towards the site since 4 years and 9 months. It amounts to deficiency in service on the part of OP and OP is liable to compensate for it. We find no rebuttance from the OP though the opportunity given to it. Therefore, in our view the allegation made against OP is proved by the Complainant and he is entitled for compensation. Accordingly we pass the following:
ORDER
Complaint is allowed.
OP is directed to refund Rs.3,00,000/- (Rupees Three Lakhs Only) with interest @ 18% P.A. from the date of payment till the date of refund which shall be paid within 45 days from the date of this order.
OP is directed to pay Rs.3000/- towards cost.
Both parties are given free copies of the order.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the open Forum on this the 3rd day of November 2011.
MEMBER MEMBER PRESIDENT
