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

DATED 27^TH DAY OF JULY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This complaint is filed under section 35 of C.P.Act, 2019 (herein referred as “Act”) against the OPs to direct the OP to allot and convey a particular site measuring 40X60 feet in their project of Hoysala Judicial Layout. Award compensation of interest at the rate of 6% p.a., from the date of deposit of site value and additional cost of site till the date and pay for loss and hardship.
2. The case of the complainant in brief is as under;

The complainant by becoming nominal member of the OP1 by paying Rs.25/-, applied for allotment of site measuring 40 X 60 feet on 24.05.2010 in Hoysala Judicial Layout of the OPs.

3. On 21.03.2013 in response to the notice of the Ops, the complainant personally visited the spot with M/s Vasavi Builders and Developers.  Accordingly OPs have issued Provisional Allotment Letter dated 27.05.2013 for having accepted Rs.15,60,000/- and additional difference amount of Rs.5,76,000/-, but OPs failed to allot, convey or deliver the particular site to the complainant.
4. It is further case of the complainant that by issuing legal notice dated 08.02.2021 and 16.08.2021, complainant called upon the OP to allot a site measuring 40X60 feet and to pay interest at 6% p.a., for delayed period.  The OPs failed to comply the request of the complainant.  The act of the OPs suffers from deficiency of service.  Hence this complaint.
5. In response to the notice, OPs appeared through their counsel, OP1 has filed version which is adopted by OP2 and 3.  OPs contend that the present dispute of the complaint is not maintainable either in law or on facts.  OP1 is the society registered under the provisions of Karnataka Societies Act 1959 and this Commission has no jurisdiction to entertain the dispute as dispute requested to be adjudicated u/s 70 of Karnataka Co-operative Societies Act.  The complaint is barred by limitation.  OP1 society bound by the undertaken given by it before the Hon’ble Karnataka Appellate Tribunal in R.P.No.12/2016.  As per the order of Karnataka Appellate Tribunal dated 10.06.2016, the OP1 society shall give preference to its members on the basis of seniority list and the society members.  OP1 society is making best efforts to allot the sites to its members.  The OPs have not disputed payment of the amount made by the complainant.  But dispute about alleged deficiency.  They request to dismiss the complaint.
6. Complainant files affidavit evidence and relies on 08 documents.  OPs have filed affidavit evidence of OP3 on behalf of all the OPs and relies on one document.  Heard the arguments of both side.
7. The points that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

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

       Point No.1:- Affirmative in part

      Point No.2:- Affirmative in part.   

      Point No.3:-As per the final order.

REASONS

9.  Point Nos.1 and 2: Before considering the controversies between the parties, we would like to refer the admitted facts.  OP1 society is the Judicial Department Multipurpose Co-Operative Society Limited.  The complainant is a retired Assistant Commissioner of Commercial taxes, submitted an application for allotment of site measuring 40X60 feet on 24.05.2010.  Ex.P2 is the broacher issued by OP1.  It is also admitted fact that the OP1 issued Ex.P3 Provisional site allotment letter dated 27.05.2013 with regard to site measuring 2400 sq feet without mentioning the site number.  The payment of Rs.15,60,000/- against cost of site Rs.21,36,000/- has been admitted.  OPs issued performa affidavit along with letter dated 02.01.2014 admitting receipt of Rs.21,36,000/- from the complainant. Seven receipts produced under Ex.P4, P5 and performa affidavit indicate that the complainant made payment of Rs.21,36,000/- including Rs.25/- towards nominal membership and Rs.5,000/- as savings deposit.  By issuing Ex.P7 and serving notice dated 16.08.2021, the complainant called upon the OPs to allot the site.
10. OPs have not disputed payment of Rs.21,36,000/- by the complainant under seven receipts and performa affidavit referred above.
11. According to the OPs as per the order of Karnataka Appellate Tribunal first they have to allot site to its regular members than the associate member.  Admittedly complainant is only a nominal and associate member.  Ex.R1 is the order of Karnataka Appellate Tribunal in R.P.No.12/2016 filed by some of the members against OPs, office bearers and additional registrar of co-operative society indicates that the order of the additional registrar of co-operative society was upheld. Mere provisional allotment letter without mentioning site number does not give preferential right to the nominal/associate member of the complainant.  The complainant has no preferential right to get allotment of site. The complainant has not demonstrated by evidence to show that huge number of sites are available with the OPs to satisfy their claim by allotting site in Hoysala Judicial Layout project of the OPs.  Under such circumstances, the complainant is not entitled to relief of allotment of site.  But the payment of Rs.21,36,000/- has been proved from Ex.P4, 5 bunch of the receipts and performa affidavit which indicate that the complainant has paid Rs.2,05,025/- on 24.05.2010, Rs.3,40,000/- on 28.11.2012, Rs.3,40,000/- on 19.07.2013, Rs.2,88,000/- on 03.03.2014 and Rs.2,88,000/- on 09.05.2014.  This payment is lying with the OPs.  Even though complainant contends that in view of the decision of the Hon’ble Supreme Court of India, he is entitled to 6% interest for delay in allotment of the site. 
12. The advocate for the complainant relies on the Judgement of Hon’ble Supreme Court of India in Civil Appeal No.6239/2019 in the matter between Arifur Rehman Khan and Aliya Sultan and other –vs- DLF Southern Homes Pvt. Ltd.,, argues that the complainant is entitled to interest at 9% from the date of payment till realization.  This view is also reiterated by Hon’ble Supreme Court of India in the decision reported in 2022(2)CPR1 in the matter between Experian Developers Pvt. Ltd., -vs- Sushma Ashok Shiroor, wherein the interest at 9% from the date of payment till realization is awarded.  When we are awarding interest at 9% on the paid amount from the date of payment till realization the complainant is not entitled to any compensation.  However complainant is entitled to Rs.10,000/- towards cost of litigation. Accordingly, we answer the point No.1 in affirmative and point No.2 partly in affirmative.
13. Point no.3:- Having regard to the discussion made on point No.1 and 2 and proof of deficiency of service on the part of OPs, OPs are liable to refund Rs.21,36,000/- with interest at 9% p.a., from the date of respective payment till realization and OPs are also liable to pay Rs.10,000/- towards cost of litigation.  It is proper to impose a time limit on the OPs for payment of this amount.  If the OPs fails to comply this order, they are liable to pay 11% p.a., interest after expiry of time limit. We proceed to pass the following; 

O R D E R

1. The complaint is allowed in part against all the OPs.  The request of the complainant to direct the OP to allot the site is rejected.
2. The OPs are directed to refund Rs.21,36,000/- with interest at 9% p.a. from the date of respective payments till realization with Rs.10,000/- towards cost of litigation to the complainant.
3. OPs shall comply this order within 60 days from this date, failing which the OPs shall pay interest at 11% p.a., after expiry of 60 days from this date till realization.
4. Furnish the copy of this order to the complainant and OP and return the documents to the complainant with extra pleading.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 27^st day of July, 2022)

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

Documents produced by the representative of opposite party – R.W.1 : Nil