BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 11^th DAY OF MARCH 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to refund him a sum of Rs.5,88,000/- paid towards allotment of site together with interest @ 18% p.a, compensation of Rs.2,00,000/- for mental agony and cost of the proceedings.

2. The brief averments made in the complaint are as under:

The complainant is a member of OP society.  The complainant applied for a site in pursuance of circular dated 25.07.2006 issued by OP.  The complainant was informed that the society has fixed the cost of the site at the rate of Rs.360/- per square feet.  The complainant applied for a site measuring 40x60 at Bettanagere layout and remitted a sum of Rs.5,88,000/- on different dates under valid receipts issued by OPs.  Thereafter, the complainant was waiting for allotment of site but the society instead of allotting a site to the complainant went on allotting sites to other members who are much junior to the complainant and some of whom have not paid the further consideration amount.  Subsequently, the complainant was informed when approached personally that sites measuring 40x60 are not available in the said layout and advised to opt for site measuring 30x40.  Accordingly, the complainant opted for site measuring 30x40 and requested the OP to allot him such a site and requested to refund the excess amount collected by them.  Though OP agreed to allot a site measuring 30x40 at Bettanagere layout but failed to keep up their promise and also refund the excess amount.

The complainant thereafter submitted representations dated 20.01.2012, 19.02.2013 and 20.03.2013 requesting the OPs to allot him site measuring 30x40 in above said layout.  However, OPs failed to allot any site to the complainant.  Thereafter, the OPs society requested the complainant to opt for site at Kempanalingana Halli layout proposed to be formed by the society, which the complainant did not accept.  Then the complainant left with no other alternative got issued a legal notice to OP on 05.08.2013 calling upon them to allot him a site measuring 30x40 at Bettanagere Layout for which he has already deposited the necessary consideration amount with a request to refund the excess amount and in the alternative to refund a sum of Rs.5,88,000/- paid by him together with interest @ 18% p.a.  However, the OPs instead of complying the demand made in the notice, issued an untenable reply dated 12.08.2013.  Therefore, the complainant approached this Forum for redressal.

For the aforesaid reasons, the complainant prays for an order directing the OPs to refund him a sum of Rs.5,88,000/- together with interest @ 18% p.a from the date of respective receipts till the date of realization, compensation of Rs.2,00,000/- for mental agony and inconvenience caused together with litigation cost.

3. In response to the notice issued, OPs entered their appearance through their advocate and filed their version contending in brief as under:

It is true that the complainant had applied for a site measuring 40x60 in Bettanagere Layout by depositing a sum of Rs.4,00,000/-.  At that time the sites measuring 30x50 and 30x40 only were available in the said layout and those members who had applied for sites measuring 30x50 and 30x40 were allotted sites.  Thereafter, the complainant applied for site measuring 30x40 in the said layout but he could not be allotted any site due to non availability of sites in the said layout.  The complainant was informed about the same and was offered a corner site in the said layout with a higher price which was not accepted by the complainant.  The complainant was informed that the site with a measurement sought by the complainant is available in other layout formed by the OPs in Kempalinganahalli but the complainant was not ready to accept the same.  The OP was to get 300 sites in Bettanagere layout.  The developer has released only 120 sites measuring 30x50 and 30x40.  At the time when the complainant applied for smaller dimension the same were already allotted to the members.  There is no deficiency on the part of the OP as alleged.  OPs have neither cheated the complainant nor committed any fraud.  He was not allotted sites in Bettanagere layout since sites were not available.

For the aforesaid reasons, the OPs prays for dismissal of the complaint with exemplary costs.      

4. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

        5. The complainant called upon to file his affidavit evidence, after the version was filed and accordingly he filed his affidavit evidence.  Thereafter, OP-1 filed his affidavit evidence in support of the averments made in the complaint.  Both the parties have produced certain documents in support of their respective contentions.  Both parties have submitted their written arguments.

          6. Perused the material placed on record including the sworn testimony of both the parties, various documents relied upon by both sides and written submissions.

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

REASONS

8. It is not in dispute that the complainant is a member of OP society and in pursuance of notification dated 25.07.2006, he applied for a site measuring 40x60 in Bettanagere layout initially remitting a sum of Rs.4,00,000/-.  As per the said notification marked as Annexure-A the total consideration for a site measuring 40x60 was Rs.8,64,000/-.  It is not in dispute that, the complainant remitted a sum of Rs.2,50,000/- on 08.09.2006, Rs.1,50,000/- on 14.12.2007 and Rs.1,88,000/- on 21.06.2011.  Thus, he paid a total sum of Rs.5,88,000/- towards part consideration for the site he sought to purchase from the OPs.

9. It is the case of OPs that, they could not allot a site measuring 40x60 to the complainant in Bettanagere layout since the sites formed in the said layout were of the dimensions of 30x50 & 30x40 only.  It is further case of the OPs that, the developer had promised to deliver them 300 sites in the layout however he released only 120 sites consisting of 30x50 and 30x40 only.  If at all the OPs were developing sites measuring 30x40 and 30x50 only in the said layout why did they call upon the members to apply for sites measuring 40x60 as well as 50x80 apart from sites measuring 30x20, 30x40 and 30x50.  The complainant who was willing to purchase a site measuring 40x60 applied for the same and remitted considerable amount to the OPs.  The OPs did not explain as to why the sites measuring 40x60 were not developed in the said Bettanagere layout and why they invited the members to apply for site measuring 40x60, if at all no such sites were proposed to be developed in the said layout.  Certainly this conduct of OP amounts to deficiency in service.

10. If at all the OPs were not able either to develop or get sites of the dimension of 40x60 they immediately should have informed the complainant about the same asking him to opt for sites either 30x40, 30x50, if so he desires.  However, it appears that, the OP immediately after taking possession of 120 sites have allotted the same to the members who had applied for sites 30x50, 30x40 and thereafter have communicated the complainant and expressed their inability to allot sites measuring 40x60 in Bettanagere layout.  The OPs are certainly not justified in doing so.  For any reasons, OPs were not able to develop sites measuring 40x60 they could have given an option to the complainant to opt for site of smaller dimension before allotment of smaller dimension site to the members.  The complainant had already paid Rs.5,88,000/- and was certainly the said amount was more than sufficient for the site measuring 30x40 mentioned in the notification at Annexure-A.  The OPs have also not produced any documentary/material to substantiate their contention that all the sites measuring 30x40 were already allotted to the members much before the complainant opted for a smaller site of the dimension of 30x40.  From the conduct of OP it appears to us that they have deliberately denied to allot site to the complainant though he is a senior member of the society and though he had already remitted considerable amount to the OPs.

11. Though the complainant submitted his representations repeatedly to the OPs requesting for allotment of smaller dimension site, the OPs did not heed to his request and deprived him a site at Bettanager layout.  Therefore, we are of the opinion that, the OPs have to be directed to refund the said amount of Rs.5,88,000/- together with interest @ 18% p.a.  The conduct of OPs must have put the complainant to huge inconvenience and mental agony for which the OPs have to be directed to pay compensation of Rs.50,000/-.  Accordingly, point No.1 is answered.      

          12. The order could not be passed within the stipulated time due to heavy pendency.

13. In the result, we proceed to pass the following:

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs.1 & 2 are directed to refund a sum of Rs.5,88,000/- to the complainant together with interest @ 18% p.a from the date of receipt till the date of realization.  Further OPs are directed to pay compensation of Rs.50,000/- to the complainant for inconvenience and mental agony caused to the complainant together with litigation cost of Rs.5,000/-.

This order is to be complied within six weeks from the date of communication of this order.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 11^th day of March 2016)

MEMBER                           MEMBER                     PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 06.01.2014.

1. Sri. A. Siddalingappa.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 22.01.2014.

1. Sri.Prasad.

Documents produced by the OPs – nil.

MEMBER                            MEMBER                    PRESIDENT

Vln*