Date of Filing:03/09/2018

Date of Order:15/06/2019

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated:15^th DAY OF JUNE 2019

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.1487/2018

ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This is the Complaint filed by the Complainant under Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service in not allotting and registering the site and for directing the OP to pay a sum  of Rs.17,05,320/- towards the amount deposited, the share amounts, admission fee, associated member fee, expenses for visiting the office of the OP, compensation, legal expenses and interest along with reliefs as this forum deems fit.

2.     The brief facts of the complaint are that: the complainant became a member of OP society registered under Karnataka Co-operative Societies Act.  The society was forming a layout known as ‘Ratnaswarup Layout” and he made an application for purchasing a site measuring 30X40  for a sum of Rs.5,35,020/- and paid the said amount in three installments 23.01.2007, 23.01.2007, 20.11.2007 and 06.06.2007 respectively. Inspite of paying the amount and requesting OPs to allot and register the sites, OPs deliberately, willfully did not keep its promise and went on postponing the allotment and further informing that the layout are not approved for various reasons. He had to make several visits to the OPs society in this regard. He also made several representation to OPs to refund with interest since OPs have not formed the site and not allotted the same. He had to issue legal notice demanding the allotment of site and in the alternate to refund the amount along with 18% per annum from 2007 onwards.   Inspite of service of the legal notice, OPs neither replied nor acceded to the demand made in the legal notice. Hence the complaint.

3.     Upon issuance of notice, OPs remained absent and placed ex-parte. By filing an application, the order keeping OP.No.1 ex-parte got set aside and OP No.1 filed its version whereas by mistake OP.No.2 though remained exparte without getting set aside the exparte order counsel for OP.No.1 who was also appearing for Op.No.2 filed power on behalf of Op.No.2 and filed an adoption memo adopting the version of OP.No.1 which has not been considered since the exparte order not set aside.   

4.     In the version OP.No.1 contended that, the complaint is devoid of merits, misconceived, not maintainable, but has admitted that complainant became a member of the society seeking allotment of site measuring 30X40 to be formed in Chikkajala Village under the layout named Ratnaswarupa. In the year 2009 itself, it formed the layout in the 1^st phase and allotted to 201 persons and got registered 102 sites in the layout formed in I, II, phase. It is still forming some more layouts around Bangalore and Mysore. The formation of the layout in Ratnaswarupa is almost complete and the registration of the same has already commenced.  The formation of the site is time consuming and require approval from various Government Authorities.  The authorities have taken time to give their approval.  Hence the formation of the layouts, allotting of the same and getting it registered could not be completed within the time stipulated.

5.     There is no delay on the part of OP society and has not caused any inconvenience to the complainant. The site value of the said layout is more than two times over and above the amount deposited by the complainant. The complainant will be allotted the site and he can get the benefit out of it provided, he pays the balance of amount. Since the complainant has not paid the balance of amount of Rs.2,98,200/-, they have not  got it registered in his name.  If he pays the full value of the site, he would be allotted a site and execute the sale deed. Under the circumstances, they have not committed any delay and there is no contractual obligation for them to pay the interest as claimed. They are not liable to pay the same and also the compensation, the cost of the proceedings and the claim made by them and denied all the allegations made against it and prayed the forum to dismiss the complaint.

6.     In order to prove the case, both the parties filed their affidavit evidence and Complainant produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the Complainant has proved  

    deficiency in service on the part of the      

    Opposite Parties?

2)  Whether the Complainant is entitled to the

     relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT NO.1:            In the affirmative.

POINT NO.2:            Partly in the affirmative

                                For the following.

REASONS

POINT No.1:-

8.     It is not in dispute that the complainant is a member of the society of OPs and paid a sum of Rs.5,35,020/- towards the cost of the site measuring 30x 40 to be formed and allotted to the complainant by OP  in the layout formed by it in the name ‘Rathnaswarup Layout’.

9.     It is the specific contention of the complainant that, though he has paid the amount in 2007 itself, OPs have not allotted and registered the site in his favour.  The OPs have admitted that there is delay in formation of the sites due to the delay caused by several authorities who have to give approval. 

10.   OPs have  mentioned  that the cost of the site is Rs.8,32,800/-  and the complainant has paid Rs.5,34,000/- and if the balance of Rs.2,98,800/- is paid, they(O.Ps) are ready to allot the site and get it registered in favour of the complainant. When such being the case, we are of the opinion that there is deficiency in service on the part of OP in not allotting the site and registering the same in favour of the complainant. 

11.   In one of the letter dated 22.12.2018 captioned as Rathnaswarupa Status Report, it is mentioned that the 1^st and 2^nd Stage of formation of the sites has been completed and 100% of the sites have been released.  The 3^rd and 4^th stage of formation of the layout is under progress and already obtained approval from Bangalore International Airport planning authority and the plan approved and authorities have released 60% of the sites for registration. The civil work in respect of the 3^rd and 4^th phase is in progress. 

 12.     In view of the above letters, and the tenor of the version if considered, it is clear that there is in ordinate delay in formation of the sites and not allotting the same and not registering the same in spite of release of 100% sites in respect of the 1^st and 2^nd Phase and 60% in respect of 3^rd and 4^th phase, clearly amounts to deficiency in service and hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

13.   In this complaint, the complainant has claimed the amount he has deposited i.e. Rs.5,35,020/-, along with  interest at 18% per annum on the above amount, share amount, associated member, and admission fee of Rs. 1,020/-, damages of Rs.50,000/- and Rs.50,000/- towards litigations expenses and also Rs.10,000/- towards expenses of visiting the office of the OPs several times. 

14.   It is the contention of the OPs that, there is no privity of contract and agreement to pay interest at 18% per annum. It has been held by various decisions that, the society or the builder has to refund the amount along with interest. In view of this, the contention raised by the OPa cannot be accepted.

15.   It is further contended by OPs that, if the Complainant pays sum of Rs.2,98,800/- being the balance of sale consideration, they are ready to allot and register the site measuring 30 X 40 in favour of the complainant.   In view of this, we are of opinion that, the Complainant is entitle for the site and in case OPs failed to register the same, they are bound to refund the entire sale consideration of Rs.5,35,020/- along with interest at 12% per annum from the date of last payment i.e. 06.06.2007 and also bound to refund the share amount of Rs.1,000/-, associated membership fee and admission fee of Rs.20/-, Rs.25,000/- towards causing mental agony, physical hardship and Rs.10,000/- towards litigation expenses for making the complainant to approach this Forum to exercise his right under the Consumer Protection Act. Hence, we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:-       

ORDER

1. The complaint is allowed in part with cost.
2. OP No.1 and 2 are jointly and severally hereby  directed to issue letter of allotment of residential site measuring 30 X 40 in ‘Rathna Swarupa Layout’ formed by OPs within 30 days from the date of this order.  Upon receiving the said allotment letter, if the complainant is willing to get the site register in his favour, the same shall be registered within one (1) month thereafter in favour of the Complainant.
3. In case O.Ps fail to register in favour of the Complainant, complainant is entitle for refund of Rs.5,35,020/- along with interest at 12% per annum from 06.06.2007 till the payment of the entire amount and also refund Rs.1,020/- being the share amount, membership fee and admission fee.
4. Irrespective of compliance of Order No.2 and 3 above, the OPs are directed to pay to the complainant a sum of Rs.25,000/- towards damages for causing mental and physical harassment and Rs.10,000/- towards litigation expenses.
5. The O.Ps are hereby directed to comply the above order and file the compliance report within 30 days after the time  mentioned in para No.(2) of the above order.
6. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be destroyed as per the C.P. Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 15^th JUNE 2019)

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1 to P4: Copies of the Receipts.

Ex P5: Copy of the notice for payment of 1^st installment.

Ex P6: Copy of the legal notice dated 09.06.2018.

Ex P7: Copy of the letter dated 03.08.2018.

Ex P8: Copy of the Postal receipt/acknowledgment.

Ex P9: Copy of the letter dated 27.01.2010.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1:Sri.B.S.Manjunath, of OPs

Copies of Documents produced on behalf of Opposite Party/s

- Nil -

MEMBER                        PRESIDENT

A*