COMPLAINTS FILED ON: 03.07.2010

DISPOSED ON: 05.03.2011

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

DATED THIS THE 5^TH MARCH 2011

  PRESENT:-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA               MEMBER

                     SRI. A. MUNIYAPPA                         MEMBER         

COMPLAINT NOs.1498, 1499 & 1500/2010

O R D E R

SRI. B.S.REDDY, PRESIDENT

The complainants in all these complaints filed U/s. 12 of the Consumer Protection Act of 1986, are seeking direction against Opposite Parties (herein after called as O.Ps) to execute the sale deed in respect of residential sites at Sarjapura Road Residential Layout and Gubbalalu Residential Layout and to provide civic amenities like roads, water, electricity etc., and to pay compensation for mental agony on the allegations of deficiency in service on the part of the OPs. 

Since OPs are common in all these complaints, the questions involved and the reliefs claimed are similar, in order to avoid the repetitions of facts and multiplicity of reasonings in the interest of justice all these three complaints are disposed of by this common order.

2.      The case of the complainants in brief is that:  

OPs introduced a housing scheme i.e., development of a residential layouts under project i.e.,

a)     Yelahanka Residential Layout.

b)    Kadabagere Residential Layout.

c)     Gubbalalu Residential Layout.

d)    Sarjapura Road Residential Layout.

Surrounding Bangalore City in the year 1991 and 1992 and got it published and advertised by various modes to the members of the OPs society and the employees of the KEB presently known as KPTCL offering them to purchase the residential plots in the said layouts. In the said offer OPs promised that the said residential layouts will be complete with all basic amenities like roads, underground drainage, electricity, water facilities, etc., The complainants believing the colourfull words of OPs and being attracted by that scheme intended to purchase a residential site. The complainants in complaint Nos.1498/10 and 1499/10 each intended to purchase residential site in Sarjapura Road Residential Layout measuring 40 X 60 feet for sale consideration of Rs.99,500/- price fixed as per notification dated 06.08.1997 and paid an amount of Rs.65,510/- and Rs.69,000/- respectively. The complainant in complaint No.1500/10 intended to purchase site measuring 40 X 60 feet in Gubbalalu Residential Layout for a sale consideration of Rs.99,500/- fixed as per the notification dated 06.08.1997 and paid the sale consideration of Rs.8,000/-.

The complainants claims that inspite of they having paid installments OPs have not come forward to execute the sale deed, they went on evading on one pretext or the other. Even they got issued legal notice to OPs to execute the sale deed OPs neither replied the notice nor come forward to execute the sale deed. As per the annual general body meeting 2006-07 dated 28.09.2007 OPs have stated out of four layouts, three layouts were completed and also registered to the members i.e., Yelahanka Residential Layout, Kadabagere Residential Layout and Gubbalalu Residential Layout and OPs admitted civic amenities were not completed and concerned Sarjapura Road Residential Layout still it is pending for the registration to the members. The act of OPs in not executing the sale deed, even after receiving the sale consideration and after joint inspection of the plot by both the parties clearly amounts to deficiency of service on the part of the OPs. In the year 2006-2007 OP sold 7 acres 15 guntas of land at Gubbalalu of Kanakapura Road to M/s Golden Gate Builders and Developers for Rs.6,29,97,000/- which clearly shows that the activity of the OPs making a unlawful gain, the same amounts to deficiency of service. Further OPs sold the property to M/s Golden Gate Builders and Developers for Rs.8,68,80,000/- in the year 2002 and 2003. OPs issued public notification dated 10.03.2010 of public auction and conducted the public auction with regard to available residential sites at Yelahanka Layout and Kadabagere Layout and collected more than Rs.2,00,00,000/- from the highest bidder in the auction. Hence the complaints.    

3.      On appearance, OPs filed version. The contention taken in all the versions is identical. It is stated that no layout has been formed at Sarjapura till date; hence the question of allotting sites does not arise. Though there was a proposal to form a layout at Sarjapura the same has not been materialized. OPs got issued notice to the complainants on 11.12.2007 stating that as the complainants have not paid the amount due as per the time schedule, the allotment with respect to Gubbalalu was cancelled and it was further provided that allotment would be only with respect of layout that would be formed in the future at the rate of Rs.8,64,000/- for a site measuring 30 feet by 40 feet.

In complaint No.1499/10 the complainant got registered a sale deed at PSR ICON Anekal, bearing site No.194 in the layout known as PSR ICON Valley measuring East to West 40 feet and North to South 30 feet totally measuring 1200 square feet. The society has allotted one site and there is no question of allotment of another site.

From 15.10.1994 to 28.02.2010 (17 years) the complainants have not paid any further amount. As the OPs have not allotted, without allotment of the site, OPs have no right to execute the registered sale deed. The complainants advocate has now issued notice to create cause of action to get over hurdle of limitation. OP has also issued reply notice; the complainants have not come forward to pay the prevailing price and to get the sale deed registered at the layout at PSR ICON at Jigani Anekal. The complaints are hit by the law of limitation U/s 24(A) of the Consumer Protection Act. The complaints are bad for non- joinder of necessary parties i.e., the then Secretary Champakadhamaswamy as he is a necessary party as held in Appeal No.1910/2008. The lands that belong to OPs have been involved in various court litigations. An extent of 5 acres of land at Gubbalalu has been illegally sold in favour of M/s Golden Gate Properties Limited. The said alienations have been challenged before the Joint Registrar of Co-operative Societies. After resolution of the said disputes / litigations OPs would be in a position to execute the sale deed in favour of the members of the society that includes the present complainants. If the complaints are unwilling to wait they can avail opportunity of getting site at PSR ICON at the rates mentioned in the circular and subject to the terms and conditions. As there are no sites at Yelahanka and Kadabagere, question of allotting the sites does not arise. Hence it is prayed to dismiss the complaints with exemplary costs.

4.      In order to substantiate the complaint averments, the complainants filed their affidavit evidence and produced documents. The Executive Director of OP of the Karnataka Power Transmission Ltd., filed affidavit evidence in support of the defence version and produced documents.

5.      The complainants filed memo with copy of the judgement in complaint Nos.2191/2008 to 2200/2008 on the file III Additional Bangalore Urban District Consumer Disputes Redressal Forum. OP filed memo on 11.02.2011 with Annexure – A and B stating that only available sites at the Yelahanka Layout have been allotted as per the seniority, Annexure – A is the copy of the allotment made to the 22 members.

6.      Arguments on both sides heard. Points for consideration are:

Point No.1: Whether the complainants have proved

                  the deficiency in service on the part of

                   the OPs?

     Point No.2: Whether the complainants are entitled

                 for the relief’s now claimed?

     Point No.3: To what Order?

7.      We have gone through the pleadings, affidavit and documentary evidence of both the parties, arguments advanced on both sides is taken into consideration. Our findings on the above points:

Point No.1:- Affirmative.

Point No.2:- Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

8.      At the outset it is not at dispute that the complainants became the members of the OP intending to purchase the residential plots in the proposed layouts to be formed by OP. The complainant in complaint No.1498/2010 deposited totally Rs.65,510/- OP has admitted the deposit of Rs.64,000/-. The complainant produced the receipt No.14628 dated 07.08.1992 for having deposited Rs.1,510/- OP has not taken into consideration of the said deposit. Thus the complainant in all deposited Rs.65,510/- seeking allotment of site measuring 40’ X 60’ at Sarjapura Road Residential Layout as a part of sale consideration, out of total sale consideration of Rs.99,500/- fixed by OP as per notification dated 06.08.1997. Similarly the complainant in complaint No.1499/10 deposited Rs.69,000/- out of the total cost of Rs.99,500/- for the site measuring 40’ X 60’ in the same layout. OP has admitted the deposit of Rs.69,000/-.

9.      The complainant in complaint No.1500/2010 applied for allotment of site measuring 40’ X 60’ in the Gubbalalu Residential Layout proposed to be formed. Out of the total cost of the site amounting to Rs.99,500/- an amount of Rs.8,000/- was deposited.

10.    From the version of the OP; it becomes clear that no layout has been formed at Sarjapura Road; the question of allotting any sites in the said layout does not arise. OP claims that the notices dated 11.12.2007 were issued to the complainants intimating them that they had not paid the installment amounts due as per the time schedule, they are not eligible for allotment of sites in the layouts proposed to be formed. Further by circular dated 13.11.2008 the complainants were informed that they would be eligible for allotment of sites to be formed at P.S.R. ICON Layout Jigani, Anekal Taluk at the rate of Rs.8,64,000/- for the site measuring 30’ X 40’. OP also issued circular on 03.10.2009 demanding the members to pay the prevailing prices of the sites and get the registered sale deed at P.S.R. ICON Layout at Jigani, Anekal Taluk. Thus the defence of the OPs is as the complainants failed to deposit the amount in time as per the schedule and they have also not deposited the entire cost of the sites, as such they are not entitled for any of the reliefs claimed.   

11.    The copy of the judgement produced by the complainant in complaint No.2191/2008 to 2200/2008 on the file of III Additional Bangalore Urban District Consumer Disputes Redressal Forum relating to similar complaints against the same OPs. Complaints are allowed directing the OPs to allot the sites, if for any reason OP is unable to get the sale deed, so executed to refund the amount collected with 18% interest from the date of respective payments till refund and to pay compensation of Rs.2,00,000/- for the deprivation of the proposed site and for the agony, sufferance for which the complainants were put to and who have paid the full consideration and an amount of Rs.1,00,000/- each to the complainants who have paid the part consideration. Litigation cost of Rs.5,000/- has been awarded. On the basis of the said judgement; the learned counsel for the complainants contended that similar direction may be issued in these three cases. In our view without there being any material to show that the sites are available at the disposal of the OP society in the layouts for which these complainants had applied for allotment of sites, no such direction can be issued for allotting the sites and to execute the sale deeds. The complainants in complaint Nos.1498/10 and 1499/10 applied for allotment of sites at Sarjapura Road Layout, but OP has not at all formed any such layout; as such OP cannot be directed to allot the sites in that layout. The complainant in complaint 1500/10 applied for allotment of site at Gubbalalu Layout, there is no material to show that the sites are available in that layout. Further none of these complainants have deposited the entire cost of the sites. The cost of the site measuring 40’ X 60’ was Rs.99,500/-, the complainants in complaint Nos.1498/10 and 1499/10 have deposited only Rs.65,510/- and 69,000/- respectively. The complainant in complaint No.1500/10 deposited only Rs.8,000/- out of Rs.99,500/-. The cost of sites formed in P.S.R. ICON Layout near Anekal is shown at Rs.6,60,000/- for the site measuring 30’ X 40’, Rs.8,25,000/- for the site measuring 30’ X 50’ and Rs.13,20,000/- for the site measuring 40’ X 60’. There is no any justification to direct the OPs to allot the sites formed in that layout to the complainants at the cost which was prevailing earlier at the rate of Rs.99,500/- for the site measuring 40’ X 60’. The act of OPs in not forming the proposed layout after accepting the part of the cost of the site amounts to deficiency in service.

12.    The complainant in complaint No.1499/10 has already been allotted a site bearing No.194 measuring 30’ X 40’ at P.S.R. ICON Valley Layout, Anekal Taluk and registered sale deed had been executed in respect of the same on 11.06.2010 by one P.Sreedhar Reddy for Rs.3,60,000/-. Annexure – C is the site allotment letter issued by OP society. Annexure – D is the copy of the sale deed. In the said sale deed; there is no mention about the earlier site cost of amounting to Rs.69,000/- deposited; has been adjusted towards the sale consideration in respect of the site sold. Therefore the complainant is entitled for the refund of the said amount of Rs.69,000/- with interest and compensation.

13.    There is no merit in the contention of the OPs that these complaints are barred by limitation; as the complainants have not paid any further amounts subsequently and they have not initiated any proceedings till they got issued legal notice. When OP has accepted the membership of the complainants and received the part of the cost of the sites, failed to complete the project forming layout and allotted the sites, the complainants get recurring cause of action. The cause of action arose to these complainants when the OP even after receiving the legal notice dated 28.02.2010 failed to execute the sale deeds or refund the amount. Under these circumstances we are of the view that the complainants are entitled for refund of the amount deposited with interest at 18% p.a. from the date of respective payments till the date of refund and in addition the complainants in complaint No.1498/10 and 1499/10 each entitled for compensation of Rs.1,00,000/- towards deprivation of sites and for mental agony and hardship suffered. The complainant in complaint No.1500/10 is entitled for refund of the amount of Rs.8,000/- with interest at 18% only as the amount deposited as only meager amount. Accordingly we proceed to pass the following:      

O R D E R

The complaints filed by the complainants allowed in part.

1. In complaint No.1498/2010 OPs are directed to refund an amount of Rs.65,510/- with interest at 18% p.a. from the date of respective payments till the date of refund and to pay compensation of Rs.1,00,000/- with litigation cost of Rs.2,000/- to the complainant.

2. In complaint No.1499/2010 OPs are directed to refund an amount of Rs.69,000/- with interest at 18% p.a. from the date of respective payments till the date of refund and pay compensation of Rs.1,00,000/- with litigation cost of Rs.2,000/- to the complainant.

3. In complaint No.1500/2010 OPs are directed to refund an amount of Rs.8,000/- with interest at 18% p.a. from the date of payments till the date of refund and pay litigation cost of Rs.2,000/- to the complainant.

OP to comply the order within four weeks from the date of this order.

This original order shall be kept in the file of the complaint No.1498/2010 and a copy of it shall be placed in other respective files.

Send the copy of this order to both the parties free of cost.

(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 5^th day of March – 2011.)

PRESIDENT

MEMBER                                                      MEMBER 

 Snm: