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

DATED 05^TH DAY OF JANUARY 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 to direct them to allotment of site and to pay the compensation of Rs.1,50,000/- towards the deficiency of service on different heads with litigations expenses and costs of this complaint.
2. The case set up by the complainant in brief is as under:-

The complainant agreed to become the member to the project on 10.01.2007 and paid an advance amount of Rs.60,000/- for the site measuring 30X40’ and also paid a sum of Rs.68,400/- towards first installment on 10.01.2007 and the OP in turn discloses documents relating to the said project approval of plan, permission of authorities and other related documents.  The OP demanded the second installment through letter dated 16.07.2007 with an undertaking that the plan approval with MUDA is in progress and NOC to be procured from the competent authorities and thereby the complainant has paid the second installment amount of Rs.68,400/- on 31.07.2007.  The OP formed a layout as per the said specification till 2017.  In view of these background the complainant has agreed to pay the balance amount of Rs.68,400/- towards the last installment as against the allotment of site in her favour.  But the OP fails to allot the site even on completion of the project so far in favour of the complainant without her default.

3. It is the main grievance of the complainant that the complainant had invested her hard earned money on the assurance given by the OP on the said project.  The OP has concluded the project in the year 2015-16 and disposes the same to the allottees of the said scheme upon the allotment of site in their favour. After that the complainant and her companions had enquired the action of the OP for non allotment of the site even on completion of the project as per the terms of the scheme during the month of November 2017.  In turn the OP again assured the complainant that site will be allotted shortly and they are communicating the same through letter during the month of April 2018 but it was not complied by them.  During pandemic of covid 2019 for the reasons best known to them, there is no progress on behalf of the OP in connection with its assurances till October 2021.  
4. The complainant and her companions have visited the office of the OP during October 2021 and prior to the same on several occasions with an intention to compliance of agreed terms and providing the allotment letter of the site formed by the OP under the said scheme. But the OP and its representatives have failed to show any intimation to the complainant.  It is very clear and apparent that the said project is completed as per the assurance and there is no progress in allotment of site in favour of the complainant besides there is no co-operation in any manner by the OP for compliance of agreed terms as per the scheme.  The failure on the part of the OP in connection with non allotment of site on completion of the project and non compliance of the agreed terms of the scheme after receipt of the hard earned money within time and non execution of regular sale deed amounts to deficiency of service on their part.  Hence the OP is liable to pay compensation of Rs.1,50,000/- to the complainant. Hence the complainant has filed this complaint.
5. After issue of notice OP appeared and filed their version.
6. It is the case of the OP that the prayer sought by the complainant to execute the sale deed in her favour and to pay compensation along with damages and litigation expenses is not maintainable and it is barred by time and it is barred under the recent amendment of the C.P. Act.  
7. The OP has admitted about the allotment of site applied by the complainant and the amount paid by the complainant.  It is the specific case of the OP that the OP society has performed Boomi Pooja in the year 2006 and has processed to acquire the lands and register around 50 acres.  Due to the difference between the land owners and developers the execution of sale deed were delayed. The OP society had got permission from MUDA for conversion of change of land for doing layout work.  The society after acquiring the land issues of the land owners and the representative of society had taken long time and after completion of all hurdles the society has got approved layout plan and extent of 50 acres is in progress and after necessary approval from the authority the OP society is doing layout work.  After formation of the residential layout the sites will be allotted to its members purely on the basis of the seniority of the members as first come first serve basis.  
8. It is further case of the OP that the complainant is not entitle for compensation.  This OP society has invested the amount received by the complainant and other purchasers on the lands, development of lands and formation of layout etc., and therefore, the OPs have no financial capacity to refund the amount to its members. The amounts collected by the OP is a public money and thereby if the complainant and others approach for refund of amounts definitely developmental work of the society will be automatically struck, the OP is ready to allot the site to the complainant within six months if she pay the balance amount of Rs.2,17,200/- to the OP society.  The complainant being the member of the OP society is only entitle for allotment of site and not for refund of advance consideration after lapse of 12 years from his last payment.
9. The OP have denied all other allegations made in the complaint. The non completion of the project is not on the hands of society and due to government policies and as per the CDP and MUDA authorities further have not approved the layout plan. Therefore there is no delay or there is no negligence on the part of the OP.  The OP society will intimate the provisional allotment letter within short period of time after getting layout plan issued by the authority.  The site value of the said layout is more than 2 times over and above the deposited amount therefore the complainant is also benefited and she will be allotted the site shortly.  Therefore, there is no deficiency on the part of the OP.  Hence the OP prays to direct the complainant to pay the balance amount of Rs.2,17,200/- to the OP society within six months as they are ready to allot the site and execute the sale deed in favour of the complainant.  Hence prays for dismissal of the complaint with exemplary cost.
10. The complainant has filed her affidavit evidence and relies on 04 documents.  Affidavit of evidence of OP has been filed and OP relies on 01 document.

11. Heard the arguments of advocate for the complainant.  No oral argument is advanced on behalf of OP.  Perused the written arguments with citations filed by the complainant.
12. 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?

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

       Point No.1:  Affirmative

      Point No.2: Affirmative

      Point No.3: As per final orders

REASONS

14. Point No.1 AND 2: Perused the complaint, version, affidavit evidence of complainant and OP and written arguments of the complainant and citations.
15. The complainant filed her affidavit evidence and relied on Ex.P1 to P4. Ex.P1 is the bunch of payment receipts and Ex.P2 is the copy of the notice issued by the OP to pay the first installment dated 25.01.2007 and Ex.P3 is the copy of the letter sent by the OP dated 30.05.2009 seeking reconciliation of escalation in the cost of acquisition by general factors and incidental cost in the development. Ex.P4 is the copy of original site allotment dated 28.01.2016 formed in Nityananda Sagar Phase IV.
16. On the other hand, the secretary of the OP society has filed his affidavit evidence reiterated all the allegations made in the version and relied on Ex.R1 the copy of the payment statement.
17. It is undisputed fact that the complainant became the associate member of the OP society and paid advance payment of Rs.60,000/- for the allotment of site measuring 30’X40’ in the project formed by the OP and she has also paid Rs.68,400/- on the same day towards first installment and again she has paid Rs.68,400/- on 31.07.2007.  The OP has agreed to allot the site by completing the project within 2017.  The OP has also formed a layout as per the said specification till 2017.  After that, OP has concluded the project in the year 2015 and 2016 and disposed off the same to the other allottees of the said scheme.  The complainant and her companions were not allotted any sites. After that they have approached the OP and requested them for allotment of the site.  The OP has assured them that they will allot the site shortly during the month of April 2018 but they have failed to allot the site till October 2021. Inspite of repeated request and approach the OP have failed to show any kind of intimation to communicate the allotment of site and execution of Sale Deed in favour of the complainant. 
18. On the other hand, the OP has clearly admitted about the membership and the payment made by the complainant. It is the specific contention taken by the OP that they are ready to allot the site to the complainant in Atmananda Sagar Layout, Mysore and they are ready to execute the sale deed in favour of the complainant within a short period if she paid the balance amount of Rs.2,17,200/- to the OP society.
19. It is specific contention taken by the OP that in view of so many legal hurdles from government and various sanctioning authorities they could not complete the layout project work and hence it has been delayed.  The paper works with the government and other authorities are under process. There are so many site allottees are waiting like complainant for allotment of sites. Due to difference between land owners and developers the execution of sale deed was delayed. The OP have got the permission from MUDA for conversion of change of land use and now they started doing the layout work.
20. On these back ground, we have gone through the decisions referred by the complainant and also the Judgement passed by the Hon’ble State Commission in A.No.653/2021.
21. The complainant has become the member and made payment of substantial amount as per Ex.R1 on 31.07.2007 itself. The complainant has to pay the balance amount of Rs.2,17,200/- and to get the sale deed from the OP society. When the OP has formed the layout as per their specification till 2017 and allotted the sites in favour of the allottees. They have not allotted the site in favour of the complainant even after 2021. The OP have collected the amount in the year 2007 itself, but failed to allot the site and they are not ready to refund the amount. The complainant cannot wait for an indefinite period for the allotment of site by the OP.
22. If the complainant has invested the amount paid to the OP in the year 2007 in any of the other projects or in the bank she would have got the site or the interest on the said amount. The OP have neither returned the amount nor allotted the site and thereby caused deficiency of service and also unfair trade practice on their part. If the OP are not in a position to form the layout by clearing their litigations and also obtaining the permissions from the competent authority they would have return the amount to the complainant. Instead of returning the amount they simply harassed the complainant alleging that they will allot the site shortly.  Under these circumstances, the complainant has sustained mental agony, financial loss and she was made to approach the Commission by filing this complaint.  Therefore the complainant has clearly established the deficiency of service and hence she is entitled for the relief claimed in the complaint. Hence we answer point No.1 and point No.2 in the affirmative.
23. Point No.3:- In view the discussion referred above the complaint is liable to be allowed with direction to the OP to allot the site after collecting the balance amount from the complainant and further OP is directed to pay the compensation of Rs.1,50,000/- with Rs.10,000/- litigation charges to the complainant within three months from the date of this order.  we proceed to pass the following;

O R D E R

1. The complaint is allowed.
2. OP is directed to allot the site after collecting the balance amount from the complainant within three months from the date of this order.
3. OP is further directed to pay the compensation of Rs.1,50,000/- with Rs.10,000/- litigation charges to the complainant.
4. The OP shall comply this order within three months from this date, failing which the OP shall pay interest at 10% p.a. on Rs.1,96,800/- paid by the complainant after expiry of three months till allotment of site.
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 05^TH day of JANUARY, 2023)

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

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