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

DATED 15^TH DAY OF SEPTEMBER 2023

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 30X40 feet in the Nagruru layout formed by the ITI Employees Housing Co-operative society Ltd., immediately.
2. Or alternatively, refund Rs.3,50,000/- along with penal compound interest @ 24% per year from the date of receipt of each payment made to the ITI Employees Housing Co-operative Society Ltd., immediately.
3. Payment of compensation of rupees ten lakhs towards damages for deficiency of service, causing mental agony caused to the complainant.
4. Rs.50,000/- towards the cost of the complaint to the complainant.
5. Any other direction or order.

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

It is the case of the complainant that he is the member of the OP society and paid a sum of Rs.3,50,000/- on several dates towards the allotment of site measuring 30X40 feet in Nagaruru, Dasanapura Hobli, Bangalore, and then complainant met with the OP office so many times and requested to allot the site and register in his favour, but OP have not allotted the site till date.  

3. The complainant further submits that he approached the OP office frequently and requested to allot the site from past 10 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 20.02.2023 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 10 years looking forward to the allotment of the site by the OP. Hence he has filed this complaint.
5. In response to the notice, OP has appeared before this Commission and filed their version.  It is the case of the OP that the complaint is liable to be dismissed as not maintainable and the complainant has not approached this commission with clean hands. The complaint is barred by limitation.
6. It is the case of the OP that it is a house building co-operative society whose members are employees of the public sector company ITI.  The OP is a registered co-operative society. The state government acquires land on behalf of the OP society and the same is formed into a layout with sites and distributed among its members based on certain rules and bye-laws. This OP is not providing any service as defined under C.P. act 2019 and hence the complaint is not maintainable. The members of the society are not consumers within the meaning of the act and the complaint is liable to be dismissed on this ground also.
7. It is further case of the OP that the complaint is not filed within the limitation period. They have admitted about the formation of layouts and distribution of sites but it is subject to bye-laws and approval from the Registrar of Co-operative societies and it is also subject to prospective allottees complain with the timeline for payment and making timely payments.
8. It is the specific contention taken by the OP that the complainant has paid a sum of Rs.3,50,000/- and they have denied all the other allegations made in the complaint.  The OP has further denied that they have assured the complainant that a site would be allotted. The updates regarding formation of sites and layout are for the members of the society who have made timely payment of full payment and enjoy seniority and are eligible for sites. Any information in the annual general body or circulars are targeted to those members who have complied with the conditions of allotment by making full payment and on time and enjoy seniority and eligible for the site. They have denied that they are failed to honour their commitment to allot and register the site in favour of the complainant. It is their specific contention that the complainant does not have seniority and he has not made full payment on time. There are no sites available in Nagarur for allotment. The allotment of sites has been done with the approval of the registrar of Co-operative Societies. The OP had denied all the other allegations made by the complainant and prayed for dismissal of the complaint.
9. The complainant has filed his affidavit evidence and relies on 16 documents.  The OP has also filed their affidavit evidence and relies on only one document.
10. Heard the arguments of advocate for the complainant and also the written arguments filed by both the parties.
11. 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?

12. 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

13. 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 and written arguments and documents filed by both the parties.
14. The complainant has reiterated all the allegations made in the complaint and also relied on the documents.  The complainant has produced the membership card No.2130 as document No.1.  The circular issued by the OP dated 28.11.2004 as document No.2.  The site deposit book as document No.3, Copy of the circulars dated 01.10.2010, 13.12.2011, 23.11.2010 & 06.01.2011, and Document No.4 to 7, Extract of the annual report for the year 2013-14 as document No.8, copy of the circular dated 17.04.2019, as document No.9, extract of the annual report for the year 2020-21 & 2021-22, as document No.10 & 11, copy of the circular dated 28.12.2007, as document No.12, copy of the letter dated 14.11.2022, as document No.13, copy of the legal notice dated 20.02.2023 and reply to the legal notice dated 01.03.2023, as document No.14 & 15, copy of the circular dated 05.04.2011 as document No16.
15. The complainant has appeared and led evidence.  Even though the OP have received the total amount of Rs.3,50,000/- from the complainant for allotment of site measuring 30X40 feet, they have miserably failed to publish the seniority list and allot the sites ignoring the seniority of the members.  The OP have made the complainant to believe that at one or the other time they will allot their site.  Complainant has waited for 12 years by paying the sale consideration amount of Rs.3,50,000/-.
16. The OP have appeared and filed their version and also led their evidence by examining one of their in charge CEO have produced Copy of the attendance of the members name and signature who have attended the emergency meeting which is marked as Ex.R1. They have simply denied the case of the complainant alleging that the complainant has not paid the amount on time and they have allotted the sites as per the direction of the Registrar of the Co-operative societies and the complainant has no seniority and there are no sites available for allotment to the complainant. They are not liable to pay any compensation or interest to the complainant, as they are not doing any service and they are only the society formed as per the bye-laws.  On the other hand, the documents produced by the complainant clearly discloses that he has become the member of the OP society by paying the initial payment on 09.01.2012 and has paid a total amount of Rs.3,50,000/- for the residential site measuring 30X40 feet. The complainant has made the last payment on 11.01.2012. Inspite of that the OP failed to allot the site to the complainant.  They have neither refunded the amount nor allotted the site and they are just keeping the amount of the complainant.
17. The complainant has sought for direction to the Ops to allot the site in the layout formed by them at Nagarur or in the alternative refund the amount of Rs.3,50,000/- with compound interest at 24% pa., from the date of receipt of each payment made to the society immediately and also for compensation of Rs.10,00,000/- and cost of litigation of Rs.50,000/-. 

18. If the sites are available the OP may be directed to allot the site measuring 30 feet X 40 feet at Nagarur village, or alternatively if the sites are not available it would be just and proper to direct the OP to return the amount of Rs.3,50,000/- deposited by the complainant to the OP society.  The complainant has deposited the amount from 09.01.2012 and final payment was made on 11.01.2012 as per the demand made by the OP society.  If such amount is deposited by the complainant in similar such projects could have earned more or got a site or flat of his dream in and around Bangalore city.
19. In order to compensate the complainant the award of interest @ 24% as sought is on the higher side.  Hence this Commission is of the view that awarding of interest at 16% p.a., from the date of receipt of each payment by the OP society would meet the ends of justice. The OP have received the hard earned money from the member/complainant in 2012.  Hence the complainant is entitled for 16% p.a., interest.  The complainant is also entitled for compensation of Rs.1,00,000/- and litigation expenses of Rs.10,000/-. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
20. 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 allot the site measuring 30X40 feet at Nagarur Layout, formed by the OP if it is available or in the alternative refund Rs.3,50,000/- with interest @ 16% p.a., from the date of receipt of each payment till realization.
3. OP is further directed to pay Rs.1,00,000/- 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 18% p.a. after expiry of 60 days on Rs.3,50,000/- 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 15^th day of SEPTEMBER, 2023)

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

Documents produced by the representative of opposite party;