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

DATED 24^TH DAY OF APRIL 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. To allot a site measuring 40X60 feet in the Nagarur Layout, formed by the ITIEHCS immediately.
2. Or alternatively refund Rs.6,00,900/- along with penal compound interest @ 21% per year from the date of receipt of each payment made to the ITIEHCS immediately.
3. Payment of compensation of Rs.10,00,000/- towards damages for deficiency of service, causing undue hardship, harassment and mental agony caused to the complainant.
4. Pay Rs.50,000/- towards the cost of the complaint to the complainant.
5. Grant such other relief as this Hon’ble commission may deem fit.

2. The case set up by the complainant in brief is as under:-

It is the case of the complainant that her husband served as a Medical Superintendent in M/s ITI Limited hospital, was obtained the membership of the OP society and applied for site measuring 60X40 feet and made initial deposit and also first and second installments.  The husband of the complainant expired on 01.05.2020.  After that the complainant has given letter to the OP society to transfer the membership in her name and the same was transferred in her name. The husband of the complainant has paid a total amount of Rs.6,00,900/- in three installments towards the allotment of site in the year 2011 and 2012. And then complainant met with the OP office so many times and requested to allot the site and register in her favour, but OP have not allotted till date.  

3. The complainant further submits that she approached the OP office frequently and requested to allot the site from past 13 years, but OP had ignored. Ops are not responding properly regarding allotment of site in favour of the complainant. When the OP have not allotted the site finally he got issued legal notice on 18.12.2023 to the OP for allotment of site and for registration of the same or otherwise to refund the amount with compound interest.

4. The complainant has waited for 13 years looking forward to the allotment of the site by the OP. Hence she has filed this complaint.

5. In response to the notice, OP has appeared before this Commission and filed their version.  The main contention taken by the OP is that the complaint is not maintainable.  The OP2 in order to cater the needs of its members has formed several layouts in and around Bangalore city and as there was demand for formation of layout by the OP2. The OP2 undertaken to form the layout of sites in different survey numbers at Nagaroor village, Dasanapura Hobli, Bangalore North Taluk.  The OP2 was able to form 320 sites in the said layout.  The complainant being a member of the OP2 has applied for allotment and paid an amount of Rs.6,00,900/- in three installments.

6. After obtaining approvals from the competent authorities the OP1 and 2 have formed layout and it was allotted to their eligible members as per the approval given by the competent authority. The OP society have also increased the value of the site due to escalation and entanglement of various litigations as per the resolution the OP society have adopted to hike price at Rs.200/- per sq. feet.  All the members have deposited the enhanced sital value to the OP2 and thereafter have secured allotment as per the seniority list approved by the competent authority.

7. It is the specific allegations made against the complainant that the complainant deliberately neither attend the meeting of site depositors nor paid enhanced sital value. The total sale consideration for allotment and registration of site measuring 40X60 feet is Rs.750/-sq.feet is Rs.16,80,000/-. Therefore admittedly the complainant did not pay the required sital value to the OP2 till date. Whenever the complainant visiting their office they have duly informed the complainant to make payment of additional amount as required as per the resolution adopted in the meeting of site depositors.  When the other members have paid the consideration amount as per the resolution of the meeting of site depositors the complainant cannot be given special treatment.  The OP have further denied all the allegations made in the complaint. It is also the case of the OP that there is no cause of action for the complainant to file this complaint and the complaint is barred by limitation. The complainant is not entitled for any relief. Hence prays for dismissal of the complaint.

8. The complainant has filed her affidavit evidence and relies on 17 documents.  In order to prove their contention the secretary of the OP society has filed his affidavit evidence and relies on 03 documents.

9. Heard the arguments of advocate for the complainant and OP and complainant filed written arguments and relied on decisions of the NCDRC and also SCDRC, Bangalore and DCDRC, Bangalore.

10. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

11. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

12. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence, written arguments of the complainant and citations.
13. The complainant has reiterated all the allegations made in the complaint and also relied on 17 documents.  The complainant has produced the copy of the death certificate marked as Ex.P1, copy of the letter issued by the OP, marked as Ex.P2, copy of the circular marked as Ex.P3, copy of membership receipt dated 20.05.2011 marked as Ex.P4, copy of the site deposit book marked as Ex.P5, copies of the receipts marked as Ex.P6 to P8, Copy of circular dated 17.04.2019 as Ex.P9, copies of extract of annual report for the year 2020-21 and 2021-22, 2022-23 as Ex.P10 to Ex.P12, copy of circular marked as Ex.P13, copy of legal notice as Ex.P14, copies of unserved cover as Ex.P15 and Ex.P16, copy of the circular marked as Ex.P17. The Secretary of the OP society has filed his affidavit evidence and relied on Ex.R1 to R3.  Ex.R1 is the notice issued by the OP society to its members, Ex.R2 is the copy of the provisional list of associate members prepared by the OP society related to Nagaroor layout and Ex.R3 is the proceedings of the meeting held on 23.07.2016 for having taken decision to increase the rate of the site value of Rs.200/- per sq.feet.

14. The OP even though have received the entire amount as per Ex.P6 to P8.  Even though the complainant was ready to pay the excess amount as per the decisions taken by the OP society as per Ex.R3 they have not properly responded to the request of the complainant.  The deceased husband of the complainant has made the payment towards the site and also he has applied for allotment of site in the year 2011 itself and he has paid the entire amount in the year 2012. Inspite of that the Ops have not at all responded to the demand of the complainant. They have not at all allotted the site in favour of the complainant.  The OP have allotted the sites only in favour of the members whose list was approved by the society.  When the complainant has waited for more than 13 years, the Ops neither allotted the site nor made any effort to refund the amount.

15. If the deceased husband of the complainant and the complainant have invested the amount of Rs.6,00,900/- during 2011 in any of the society or with any of the developer the complainant would have got site or apartment of his choice.  Instead of considering the amount deposited by the complainant, the Ops have simply taken the contention that the complainant has failed to pay the increased sital value and hence they are not ready to allot the site in favour of the complainant and they have also not at all entered the name of the complainant in the list of members prepared by them for allotment of site. 

16. Taking into consideration the payment made by the husband of the complainant from 2011 and also the conduct of the OP society in neither allotting any site to the complainant nor refunding the amount, it is clear that the Ops have committed deficiency of service and also unfair trade practice on their part. If the Ops are not ready to allot any site in favour of the complainant, they would have refund the amount in favour of the complainant. The Ops have refused to allot the site in favour of the complainant after lapse of 13 years. Under these circumstances it is very difficult for the complainant to purchase any site outside and it is difficult for her to pay the amount in lumpsum.  The complainant has suffered irreparable loss and mental agony due to the delay and deficiency of service on the part of the Ops. When the Ops are not ready to allot any site in favour of the complainant it is better to order for refund of the amount to the complainant with 18% interest per annum with compensation of Rs.1,50,000/- to the complainant. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

17. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund Rs.6,00,900/- with interest @ 18% p.a., from the date of receipt of each payment till realization.
3. OP is further directed to pay Rs.1,50,000/- as compensation with litigation expenses of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 20% p.a. after expiry of 60 days on Rs.6,00,900/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 24^th day of APRIL, 2024)

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

Documents produced by the representative of opposite party;