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

DATED 16th DAY OF JANUARY 2023

ORDER

SMT. SUMA ANIL KUMAR, MEMBER

1. The  complainant  has filed this complaint under section 35 of C.P.Act, 2019 against the Opposite party  for the reliefs

1. To direct the OP to return the amount of Rs.6,56,000/-  along with interest at 18% from the date of payment till date of realization.
2. To direct the OP to the complainant a sum of Rs.1,00,000/- as compensation for the deficiency of service.
3. To direct the OP to pay Rs.30,000/-  towards cost of litigation expenses and grant  such other reliefs.

2.  The brief averments made in the complaint are as under:

The complainant is the associated member of the society vide membership no.19533. OP deals in  allotting, developing/ promoting sites, lands etc. to members of their  society. The OP has published in public and to its members, the launch of the  housing site project named Athmanandasagar layout,  Mysuru and called for application for allotment of site. The complainant has made application for a site measuring 50X80ft. Further  she submits that  apart from paying membership fee and other charges vide receipt no.35283 she has paid an initial  amount of Rs.2,00,000/- by way of cheque towards the project. The copy of the receipt is produced. Thereafter  the OP issue notice dt.25.01.2007 requesting  for the payment of 1^st  installment, the complainant likewise made payment of amount Rs.2,28,000/- vide receipt no.48800 dt.13.02.2007. The copy of the receipt is produced by the complainant. Further OP again  issued notice dt.15.07.2007 to the complainant for the payment of 2^nd installment of Rs.2,28,000/-, likewise complainant made payment of 2^nd installment vide receipt no.68209 dt.31.07.2007. The complainant has totally paid Rs.6,56,000/- for the value of the site and further OP assured that the site will be allotted immediately after completion of development works and approval from the concerned authority. Further the complainant submits that she has approached the OP several times  requesting to  allot the site. But all efforts went waste as OP has been giving evasive answers. The complainant submits that the  OP has failed to provide the services he promised, leading to deficiency in service.

The complainant further submits that the OP has consumed  more than 15 years time, but still not allotted the site in favour of the complainant. This shows the deficiency of service. The complainant has paid her last installment in the year 2007 and has requested repeatedly for the allotment of the site. The OP has been postponing the date of allotment on reason of paper processing work need to be done for the documentation of the sites, showing deficiency in service. Hence, this complainant forced to file this complaint.

3.  After service of notice, the OP appeared through their counsel and filed version. In the version the OP admits to the facts that the complainant has paid the amount of Rs.6,56,000/- towards the booking of the allotment of site in the said project of the society. The OP also admits the facts  the society got layout plan to the extent of  38 acres and has already submitted around 25 acres land for conversion from agriculture to residential purpose. After acquiring the land issued between land owners and representatives of the society caused hurdles and it took long time for the completion of the plan layout. The extract of 38 acres and remaining 12 acres is in progress after necessary approvals from the concerned authority the OP will continue to do the layout work. In the already formed residential layout, the sites ready to allot to  member are purely on the basis of seniority of the members i.e. first cum 1^st served base. The OP society has invested on the land, development land, formation of layouts. Therefore, OP have no financial capacity to refund the same to any of its member but OP is ready to allot the site in Athmanadasagara at Mysore on payment of balance amount of Rs.7,04,000/- as the stipulated cost of the site is Rs.430/- per sq.ft. Hence, OP prays this Hon’ble Commission to dismiss the complaint with exemplary costs.

4.     The complainant has filed Examination-in-chief affidavit evidence and got marked documents Annexure A-1 to A-20.

5.     The OP has filed his affidavit evidence and produced  documents which are marked as Exhibits R1 to R4.

6. Heard the arguments of both sides. Perused the documents and evidence.

7. The following points do 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

      Point no.2:- Partly in Affirmative.

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

REASONS

9. Point Nos.1 and 2:. These two points are interrelated and hence they have  taken up for common discussion.

10. The complainant has been the member of the Karnataka Telecom Department Employees co-operative society ltd. and filled application for the allotment of site in the project of the said OP.

11. Complainant produced Annexure A-1 is the copy of application of complainant for associated membership of Athmanandasagar, Mysuru holding sl.no.24504 with a cheque holding dt.05.12.2006. Annexure A2 is copy of application from by the complainant for purchase of site in Athmanandasagar project layout. Annexure A3 is copy of receipt of Rs.1,020/- paid by the complainant (Pinky Devi) towards OP dt.04.12.2006. Annexure A4 is copy of receipt for Rs.2,00,000/- paid by the complainant towards OP dt.04.12.2006. Annexure A 5 is copy of notice issued by the OP society for the payment of initial deposit and 1^st installment of Rs.2,08,000/- dt.25.01.2007. Annexure A6 is copy of receipt for Rs.2,28,000/- dt.13.02.2007 paid by the complainant to the OP. Annexure A7 is copy of the notice dt.16.08.2007 issued by the OP for the payment of 2^nd installment of Rs.2,28,000/-. Annexure A8 is copy of the receipt dt.21.07.2007  for the amount Rs.2,28,000/- by the complainant to OP. Annexure A9 is copy of letter by the OP to the complainant dt.01.06.2013 requesting for the time and mentions the reasons for delay of allotment of site no.19533 in Athmanandasagar, Mysuru. Annexure A10 is copy of letter dt.05.03.2013 from complainant to OP requesting for the allotment of site in the said project. Annexure A11 is the copy of the letter dt.02.01.2014 by the OP to the members for the delay in the allotting the sites due to the gazette notification published by the Under secretary, Development vide order no.UDA/431/MDA/2009, Bengaluru dt.24.12.2009. Annexure A12 is copy of letter issued by Sri Narayanappa, counsel for OP to the complainant which says that the complainant has applied for bigger size measuring 50X80ft. application no.20413, Seniority no.719 which are not available as there are only smaller size available and also there is delay in allotment of sites. Annexure A13 is the copy of letter requesting for allotment of site by the complainant dt.03.07.2014. Annexure A14 is the copy of letter by the OP dt.10.09.2014 stating that the remaining sites of Athmanandasagar layout will be developed elsewhere adjacent to any other well developed layout. Annexure A15 is the copy of the letter by the OP to the  member  that the remaining sites will be developed in Kuberanandasagara and to process the said project they need time. Annexure A16 is the copy of letter issued by OP dt.26.12.2015 stating that the government approvals are successfully done and sites will be allotted to the members in the year 2016. Annexure A17 is copy of the letter of the complainant to OP regarding the change in allotment of sites from Athmanandasagar to Kuberananandasagar and for allotment of sites as promised by thte OP. Annexure A18 & A19 are the copy of the letters dt.03.09.2019 and 06.03.2020 respectively requesting for the said sites to be allotted by the OP or will take legal action against OP regarding the same. Annexure A20 is copy of the letter issued by the OP to the complainant dt.14.03.2020 requesting the complainant for seeking some more time for the allotment of site.

12. OP produced documents, Ex.R1 is the copy of the ledger extract of the OP for the amount  paid by the complainant. Ex.R2 is the authorization letter  by OP to  authorize Sri B.S.Manjunath to represent the society for the legal proceedings. Ex.R3 is a copy of the application for the land conversion dt.18.12.2008 applied by the OP.Ex.R4 is copy of the plan of the development of sites made by the OP.

13. The OP admits to the facts that the complainant  has paid Rs.6,56,600/- towards the  booking for the allotment of the site in the said project of the society. The OP also admits to the fact that there was delay in the completion of the project due to the dispute between the land owners and developers. Therefore,  OP has failed to allot the site within a time period promised by him and hence, there is deficiency in service by the OP.

14.  As it clearly shows the deficiency in service by the OP due to delay of 15 years in providing service he promised to the complainant, the OP is liable to refund Rs.6,56,000/-. Complainant is entitled for amount of Rs.6,56,000/-.The complainant claims interest at the rate of 18% p.a. on the refund, also damages of Rs.1,00,000/- and litigation cost of Rs.30,000/-. There is no privity of contract with regard to payment of interest at 18% p.a. between the parties, but the said amount of Rs.6,56,000/- is a huge amount lying with OP since 2007. It is proper to award interest at 10% p.a. on the payment made from respective date till realization and Rs.10,000/- towards cost of litigation. Accordingly, we answer point no.1 in affirmative & point no.2 partly in   affirmative.  

15. Point no.3:-.  In view of the above discussions referred above, we proceed to  pass the following 

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to refund the amount of Rs. 6,56,000/- with interest at 10% p.a. on the date of complaint till realization.
3. The OP is further directed to pay Rs.10,000/- towards litigation expenses.
4. The OP is further directed to pay entire amount within 60 days from the date of this order, if the OP failed to refund the amount, the amount of  Rs.6,56,000/- will carry interest at 12% p.a. after expiry of 60 days  till realization of the amount.
5. Furnish the copy of this order to both the parties, and return the spare pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 16^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 :  

*SKA