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.7,61,600/-  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 expensenses 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 account no.45809. OP deals in  allotting, developing/ promoting sites, lands etc. to members of their  society. The OP has published in public and the to its members, the launch of the  housing site project named Kalpaviruksha layout,  Hoskote Tq., Bengaluru Rural Dist and called for application for allotment of site. The complainant has made application for a site measuring 40X60ft. Further  she submits that  she paid an initial  amount of Rs.3,60,000/- by way of cheque towards the project dt.29.11.2007, receipt no.100628. The copy of the receipt is produced. Thereafter  the OP issued letter dt.04.02.2009 requesting  for the payment of 2^nd installment, the complainant likewise made payment of amount Rs.2,00,800/- vide receipt no.102447. The copy of the receipt is produced by the complainant. The complainant has totally paid Rs.7,61,600/- 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 second time and requested to  allot the sites. 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 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 sites. 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.7,61,600/- towards the booking of the allotment of site in the said project of the society. The OP also admits the facts that there was delay in the allotment of sites due to differences between the land owners and the developers. The OP society has applied for conversion of land use to BMRDA on 14.05.2007 vide letter dt.KTDSCS/BMRDA/2007-08. The OP also admits to the fact that 25 ½ acres of land are already approved for layout plan and remaining 75 acres is in process. The OP clearly admits that the society has fulfilled the obligation and the complainant will get refund of the principal amount  without any interest, because the complainant has misused her name in two different places and OP is ready to execute the sale deed in Complaint no.699/2020 by allotting the site in Athmanadasagara at Mysore on payment of balance amount. 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 A1 to A10.

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 the receipt dt.29.11.2007 holding receipt no.100628 initial deposit of Rs.3,60,000/- made by the complainant towards the project name Kalpaviruksha. Annexure-A2 is the copy of the letter issued by the president Sri VJK Baktahvakchalam of the Kalpaviruksha requesting the members for the payment of initial amount and the 1^st installments by 26.02.2008. Annexure-A3 is a copy of the payment receipt dt.24.02.2009 of 2^nd installment made by the complainant towards the OP holding receipt no.102447. Annexure-A4 is a letter  written by the complainant to OP requesting for the allotment of site no.45809 as there is delay. Annexure-A5 is a invitation dt.18.03.2013 of OP to all members of the project for “Bhoomi Pooja” to be held on 31.03.2013 at 9.00AM at project site. Annexure A-6 is copy of the notice of OP to all members regarding the reconciliation of escalation in cost of acquisition  by increase of Rs.69/- per sq. ft. Annexure-A7 is a copy of the Status Report of the project by OP to complainant requesting for co-operation from the members as the proposed plan modified and are awaiting for the approval shortly from Hoskote Development Authority. Annexure-A8 & A9 are request letters dt.03.07.2017 & 06.03.2020 by the complainant claiming the allotment of site as to be taken as the final attempt. Annexure-A10 is a letter dt.14.03.2020 by the KTDE Co-OP Society Ltd to the complainant assuring the allotment of the site  by October/November-2020.

12. OP produced documents, Ex.R1 is the copy of the Hand Written receipt issued by the OP for the amount  paid by the complainant, which hold the seal and signature of the competent authority of the society. 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.30.12.2014 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.7,61,600/- 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.7,61,600/-. Complainant is entitled for amount of Rs.7,61,600/-.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.7,61,600/- 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. 7,61,600/- 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.7,61,600/- 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