.BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU. (ADDL. BENCH)
DATED THIS THE 20th DAY OF SEPTEMBER, 2023
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, LADY MEMBER
COMPLAINT NO.38/2021
Mr.Sutirtha Deb,
S/o Mr.Satyen Deb,
Aged about 41 years, ….Complainant/s
#B-204, Ittina Anai,
18/4, Kempapura, Yamalur,
Bangalore – 560 037
Permanent Address:-
Billa Para, Shirishtala,
PO: Kharia,
Dt: Jalpaiguri,
West Bengal-735 101
Rep. by his father and GPA holder
Mr.Satyendra Kumar Deb
S/o Lt. Santhosh Kumar Deb,
Aged about 71 years,
R/at: Bill Para,
Shirishtala, PO: Kharia,
Dt: Jalpaiguri,
West Bengal-735 101
(By Shri.P.Raveendran, Advocate)
-Versus-
Karnataka Telecom Department
Employees Co-operative Society Ltd,
“Amima’s Kastle”,
No.706, 1st Floor,
CBI Road, HMT Layout,
RT Nagar post, … Opposite party/s
(Near St.Jude Catholic Church)
Bengaluru – 560 032
Rep. by its President
(By Sri.D.S.Lokesh, Advocate)
O R D E R
BY SMT.SUNITA C.BAGEWADI, MEMBER
The complainant filed this complaint against the Opposite Party alleging deficiency in service and unfair Trade Practice and prays to direct the Opposite Party to allot and deliver the possession of house site of dimension measuring 40X60sq.ft. in the AYUSHMANBHAVA layout formed at Attibele- Sarjapura Road in the lands situated at Bidragupe village, Attibele hobli, Anekal Taluk, Bengaluru with all necessary approvals, by receiving the balance sale consideration and executing the registered sale deed. In the alternative to refund a sum of Rs.9,60,000/- being the advance sale consideration amount received by the Opposite Party as on 1-2-2023 along with 15% interest per annum from the date of respective payments till the date of repayment along with compensation of Rs.2,00,000/- towards deficiency in service and inconvenience and grant such other relief, in the interest of justice and equity.
2. The brief facts of the complaint are that based on the representations of the Opposite Party, the complainant being eligible to become an associated member has submitted duly filled in membership application Sl.no.52659 on 22-2-2012 accompanied with the necessary fees, such as admission fee and share fee of the society amounting to Rs.1020/- and Opposite Party has issued the complainant with associated membership AM No.A-31993. As an associated member, the complainant has applied for a 40X60sq. ft. dimension site vide application No.52359 by paying the initial deposit amount as site advance of Rs.4,80,000/- on 22-2-2012 for which Opposite Party has issued the cash receipt. The Opposite Party has assures of developing and handing over the possession of site by executing sale deed in three years period.
The complainant further submitted that the Opposite Party vide their notice for payment dated 5-3-2012 has demanded for a further sum of Rs.2,40,000/- each as 1st and 2nd installment, total amounting to Rs.4,80,000/- for the lay out development activities such as funds for procurement of land, conversion and development charges etc. The complainant has raised funds through private borrowings and paid a further sums of Rs.2,40,000/- on 13-8-2012 and another sum of Rs.2,40,000/- on 1-2-2013. In all the complainant has paid a total sum of Rs.8,60,000/- which comes to Rs.400/-per square feet, hopping that as assured by the Opposite Party they will deliver the developed house sites within three years period and the complaint can make a house of his own by raising housing loan so that he can avoid payment of rents by living in rented premises.
The complainant further submitted that the Opposite Party initially gave the reply to the queries of the complaint over the phone and personal visits that the layout is under development in a phased manner. After 1-2-2013 there had been no communication from the side of Opposite Party about the status of the project or the excepted completion. Later on Opposite Party stopped attending the calls of the complainant.
The complainant further submitted that the Opposite Party has published in their web site admitting the delay on their part, dated 19-2-2018 as an appeal to the members assuring that the management is conscious about the duly to its members and will discharge their duties of procuring sites for every members. However even after an year of the said appeal being published in the web site, nothing is done form the side of Opposite Party is delivering the developed house site by executing the registered sale deed in favour of complainant.
The complainant further submitted that over the period of 6 years, the complaint was sent by the employer for an out station assignment and complaint through his email dated 1-1-2019 have communicated the new postal address and also have demanded for the delivery of the house site in a time bound manner and failing which to refund the advance held by Opposite Party along with interest at the rate of 18% p.a. from the respective dates of payments. The same was also communicated vide his letter dated 2-1-2019 sent by post.
The complainant further submitted that having left with no other alternative the complainant got issued a legal notice dated 19-4-2019 calling upon the OP to come forward, allot the house site as per Bangalore by receiving the balance sale consideration to execute and register the sale deed in favour of complainant by delivering possession of the developed house site and paying the compensation at the rate of 15% per annum from 1-2-2013 till then to complainant, within 30 days of receipt of this notice. The legal notice issued by the complainant was duly served on the Opposite Party as per the RPAD acknowledgement with postal seal dated 23-4-2019. In spite of receipt of the legal notice, the Opposite Party failed to comply with the demands of complainant or reply to the legal notice dated 19-4-2019.
The complainant further submitted that from the member/associate members if there is any delay in making the payments as per their demand letters, the Opposite Party charge 15% interest over the delayed period and the same is applicable to the Opposite Party as far as members/associate members is concerned in compensating them for the delay in completing the project amounts to unfair trade practices and deficiency in service. Hence, this complaint.
3. After service of the notice, the Opposite Party has appeared through his counsel and submitted that the Opposite Party has already filed objection and evidence affidavit in earlier CC.No.1041/2019 before the District Consumer Commission and same can be considered. In this objection, the Opposite Party contended that, the issues between the land owners and the representatives of the society has taken long time and after completion of all hurdles, the society has got the layout plan approved and formed first and second phases and allotted the sites to its members purely on the basis of the seniority. It is submitted that the complainant has paid an amount of Rs.9,60,000/- to the Opposite Party society and he is still due to the Opposite Party society for a sum of Rs.2,88,000/- towards the balance sital amount. There is no intention to delay the development activity of the layout by the Opposite Party society. It is pertinent to state that the delay, if any, in allotting the site is unintentional and for bonafide reasons.
The Opposite Party further contended that if the complainant has paid the full value of the site and he has waited, he will be getting the site surely. But he has not completed his part of obligation. Therefore, there is no deficiency on behalf of the Opposite Party society. Hence, the question of paying a sum of Rs.2,00,000/- towards compensation for the deficiencies in services and inconvenience caused to the complainant does not arise at all. Hence, prays that the complaint is liable to be dismissed with exemplary costs.
4. Advocate for the complainant submitted that he has filed evidence affidavit and marked the documents before the District Consumer Commission and same can be considered before this Commission.
5. Heard from complainant, and also the complainant has filed notes of arguments. The Opposite Party has not submitted arguments, despite granting sufficient opportunities.
6. On perusal, the following points will arise for our consideration;
(1) Whether the complainant has proved the deficiency of service on the part of the Opposite Party?
(2) Whether the complainant is entitled for the reliefs as sought?
(3) What order?
7. The findings to the above points are;
(1) In the affirmative
(2) In the partly affirmative
(3) As per the final order
R E A S O N S
8. Point Nos.1 to 3:- Perused the contents of complaint, evidence affidavit of complainant and documents produced by the complainant. We noticed that the complainant has filed earlier Complaint No.1041/2019 before the 2nd Addl. District Consumer Commission, Bengaluru which was disposed on 24-5-2021 and the District Commission dismissed the complaint holding that the District Commission has no pecuniary jurisdiction on the date of filing this complaint on 26-6-2019 and return the complaint with all documents for presentation before this Commission. Subsequently, the complainant has filed this complaint No.38/2021 before this Commission; this Commission had admitted the said complaint and issued a notice to the Opposite Party. One Sri.D.S.Lokesh, Advocate filed vakalath for Opposite Party, on the same day the complainant and Opposite Party submits that already they have filed evidence affidavit and the same can be considered in this complaint. Meanwhile the complainant had filed an application under Order 7 Rule 17 r/w Section 151 of CPC for amendment of complaint and same was allowed on payment of cost of Rs.1,000/-. Meanwhile this Commission has referred the matter to the Lok-Adhalath held on 18-3-2023, 15-4-2023 and 20-5-2023. However the matter was not settled before the Lok-Adhalath.
8. Perused the order passed by the District Commission in the earlier complaint No.1041/2019, we noticed that the District Commission has dismissed the complaint on pecuniary jurisdiction holding that “the complaint came to be filed on 26-6-2019. If the interest at the rate of 15% p.a. claimed is calculated from the respective date of payment till filing the complaint, the interest portion would be Rs.5,04,000/-, Rs.2,52,000/- and Rs.2,16,000/- and if principal amount of Rs.9,60,000/- and compensation of Rs.2,00,000/- added to this interest portion, the total claim would be Rs.21,32,000/-. It means, on the date of filing the complaint, the total claim was Rs.21,32,000/- which is about Rs.20,00,000/-. Hence the District Commission had no pecuniary jurisdiction to entertain the complaint”. We agree that, the complaint came to be filed under old Consumer Protection Act, 1986 and as per the Consumer Protection Act, 1986, the Pecuniary Jurisdiction of the District Commission, it reads as under:
“11. Jurisdiction of the District Forum. — (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed 3 [does not exceed rupees twenty lakhs].
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or 4 [carries on business or has a branch office or] personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or 5 [carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 6 [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises
9. However the case was disposed on 24-5-2021 and at the time new Consumer Protection Act, 2019 was came into force. Considering this, the District Commission has to dispose the matter as per Consumer Protection Act, 2019. As per Consumer Protection Act, 2019, the Pecuniary Jurisdiction of the District Commission, it reads as under:
“34. Jurisdiction of District Commission.—(1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration does not exceed Fifty Lakhs rupees: Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit.
(2) A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction,—
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case the permission of the District Commission is given; or
(c) the cause of action, wholly or in part, arises; or (d) the complainant resides or personally works for gain”.
10. Means the time of disposal, the complaint is well within the jurisdiction of District Commission, but the District Commission had dismissed the complaint on pecuniary jurisdiction. Hence, the complainant has filed the complaint before this Commission. However, this Commission has no pecuniary jurisdiction to adjudicate the complaint. However, the Consumer Protection Act is beneficiary legislation, it comes into force to the benefits on the interest of consumer right, if at this junction, we send the complaint to the District Commission for disposal, the complainant can suffer. Moreover this Commission has original jurisdiction, hence we have taken the matter to decide in this Commission only.
11. Perused the contents of complaint and documents produced by the complainant and considering the objection of Opposite Party and evidence affidavit of both parties, it is not in dispute that, the complainant is the associated member of the Opposite Party society and he has got membership bearing No.A-31993. It is also not in dispute that, in the year 2012 the complainant has filed an application for allotment of site measuring 40X60sq.ft. in “AYUSHMANBHAVA” formed by Opposite Party society at Bidragupe village, Attibele hobli, Anekal Taluk, Bengaluru Rural District. It is also not in dispute that the complainant has paid an amount of Rs.9,60,000/- to the Opposite Party society and there is balance amount of Rs.2,40,000/- payable by the complainant to the Opposite Party society, this all admitted by the Opposite Party in his objection.
12. Now only the crux of the case is that, the Opposite Party has received an amount of Rs.9,60,000/- towards site measuring 40X60sq.ft. in the year 2012 and there is balance amount of Rs.2,40,000/-. However, the Opposite Party society not allotted the site and handover the possession of the site to the complainant even after issuing letters dated 1-1-2019 and 2-1-2019 for possession of the site or refund of the money and also the complainant has issued a legal notice to the Opposite Party society. However the Opposite Party neither handover the possession of the site nor refund the money to the complainant. The Opposite Party society admitted all the facts, however contended that the Opposite Party had issued a email letter to pay the balance amount to the complainant and also intimated that the developmental work of layout and progress of work done by the Opposite Party society in the said layout. The work is delayed due to government policy and getting approvals, there is no intentional delay and if the complainant had paid full sital value, he has to wait, he will be getting the site.
13. Perused the documents, the complainant has paid an amount of Rs.9,60,000/- in the year 2012 and still the complainant has not get the possession of the site which amounts to deficiency in service on the part of the Opposite Party society. After receiving the amount towards site, it is duty of the Opposite Party society to develop the layout and allot the site to its members, who have applied for the same. The complainant cannot be made to wait indefinitely for possession of the site, the Opposite Party society cannot take advantage of excuse that the layout work is delayed due to government policies and approval from competent authority for the formation of residential layout. Moreover no documents were produced by the Opposite Party society regarding that, hence it is bounden duty of the Opposite Party society to refund the amount paid by the complainant towards the site and compensate to the complainant.
14. Hence, considering the facts and discussion made here, we are of the opinion that, the complainant has proved deficiency in service on the part of the Opposite Party society. Accordingly, the complaint is partly allowed.
15. Point No.3: In view of above discussion, we proceed to pass the following:-
O R D E R
The complaint filed by the complainant is partly allowed with litigation cost of Rs.25,000/- to the complainant.
The Opposite Party society is directed to allot and deliver the possession of the house site of measuring 40X60sq.ft. in the layout of “AYUSHMANBHAVA” formed at Bidragupe village, Attibele Hobli, Anekal Taluk, Bengaluru with all necessary approvals and development as assured, by receiving the balance sale consideration and executing the registered sale deed in favour of the complainant within 60 days from the date of this order. If failed, to refund a sum of Rs.9,60,000/- paid by the complainant along with 12% interest per annum from the date of respective payments, till realization.
Further, the Opposite Party society is directed to pay compensation of Rs.2,00,000/- to the complainant for deficiency in service and mental agony.
Further the Opposite Party society is directed to comply the above order within 60 days from the date of receipt of this order. Failing which, the payable amount shall carry interest @12% p.a. from the date of default till realization.
Send a copy of this order to both parties.
MEMBER JUDICIAL MEMBER
Jrk/
