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

DATED 25^th DAY OF JULY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This complaint has been filed though Power of attorney holder of the complainant under section 35 of C.P.Act 2019 (herein after referred as “Act”)  against the OPs for the following reliefs.

1. To allot a site having dimension 30 X40 feet by receiving the difference amount which is to be payable by the complainant.

Alternatively,

2. Direct the OP to pay/return Rs.4,80,000/- with corresponding interest at the rate of 24% from the date of payment till realization.
3. Direct the OP to pay a sum of Rs.2,00,000/- as compensation for making the complainant to suffer mentally and physically all along from 2006.
4. Grant any other order or directions that this Hon’ble Forum feels just and reasonable in the facts and circumstances of the case.

2.The brief facts of the complaint is as follows:

The complainant has paid Rs.1,020/- towards membership fees, Rs.2,40,000/- on 19.08.2006, Rs.1,20,000/- on 26.06.2007 and Rs.1,20,000/- to the OP in respect of the residential site measuring 30X40 feet.

3. It is further case of the complainant that on 22.12.2007 OP informed the complainant through letter that society has acquired 67 acres of land and another acquisition proceeding in respect of another 36 acres was in progress.  Later on, OP informed the complainant that project was restricted to 75 acres and awaited for the clearance of BMRDA but OP has neither complied the project nor refunded the amount.  The complainant has paid in all Rs.4,80,000/- to the OP.  By issuing legal notice dated 31.12.2020 the complainant called upon the O to allot the site or refund the amount but OP failed to do so.  This act of the OP amounts to deficiency of service.  Hence this complaint.
4. In response to the notice OP appears through his counsel and files version.  The OP admits that the complainant is a member of the OP society has paid only Rs.4,80,000/- against the value of the cost of site Rs.7,92,000/-  OP society preferred Bhomi pooja and got acquired 261 acres of land.  But the complainant failed to pay the balance sale consideration.  There is no deficiency of service on the part of the OP.  OP is ready to fulfill its obligations.  Therefore OP requests to dismiss the complaint.
5. Complainant has filed his affidavit evidence and got marked 12 documents.  No evidence is adduced on behalf of the OP.  Heard the arguments on the behalf of complainant only. No argument is advanced on behalf of OP.
6. The points that would arise for our consideration are as under:-

1. Whether the complainant proves deficiency of service on the part of the OP?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What  order?

7. Our answer to the above points are as under:

       Point No.1:- Affirmative in part

      Point No.2:- Affirmative in part.

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

                                  REASONS

8. Point No.1 AND 2:    The payment of Rs.4,80,000/- by the complainant to OP is not in dispute.  Ex.P1 is the notice for payment of first installment.  Ex.P2 indicates that the complainant has made payment of membership fee of Rs.1,020/- on 19.08.2006, Rs.2,40,000/- on 19.08.2006, Rs.1,20,000/- on 11.12.2016.  The OP issued Ex.P3 the invitation.  Ex.P4 is the statement which indicates that payment details.  Ex.P5 and P6 are the two notices issued by the OP to the complainant.  Ex.P7 is the letter dated 26.06.2007 which indicates that the complainant made payment of Rs.1,20,000/-.
9. According to the OP, the total cost of the site measuring 30’X40’ was Rs.7,92,000/-.  There is no evidence to show that OP called upon the complainant to pay the balance amount and express its intention to execute the sale deed.  Ex.P8 is the statement showing the details of payment.  Ex.P9 is the letter of OP dated 22.04.2007 which indicates a land of 261 acres was registered and 33 acres was under agreement.  By issuing Ex.P10 legal notice complainant called upon the OP either to allot the site or to refund the amount.  Once again complainant issued legal notice as per Ex.P7 dated 31.12.2020.  This notice came to be served on the OP. but OP neither expressed its intention to allot the site nor ready to refund the amount.  This act of the OP amounts to deficiency of service.
10. It has been proved that the complainant made payment of Rs.4,80,000/- to the OP in respect of the site.  The complainant seeks the first relief to direct the OP to allot site having dimension measuring 30X40 feet.  The complainant has not come forward expressing his intention to pay the balance amount to the OP.  More over the relief of allotment of site cannot be granted by this commission.  However complainant is entitled to alternative relief of refund of Rs.4,80,000/- with interest from the date of payment till realization.
11. There is no privity of contract between the parties with regard to the payment of interest at 24% p.a. In view of the judgement of Hon’ble Supreme Court of India reported in 2022(2) CPR 1(SC) in Civil Appeal No.6044/2019 in the matter between Experion Developers Pvt. Ltd., -vs- Sushma Ashok Shiroor  with Civil Appeal No.7149/2019 dated 07.04.2022, has categorically awarded interest at the rate of 9% p.a., from the date of respective payments till realization. When we are awarding interest at 9%, the complainant is not entitled to compensation amount.  The interest itself is awarded as compensation.  Complainant has engaged the service of advocate.  Therefore cost of litigation is quantified at Rs.5,000/-. Accordingly we answer point NO.1 and 2 partly in affirmative.

12.   POINT NO.3: In view of the discussion referred above, complaint requires to be allowed in part.  OP is liable to refund Rs.4,80,000/- with interest at 9% p.a. from the date of respective payments till realization with cost of Rs.5,000/- to the complainant. In the result, we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund Rs.4,80,000/- with interest at 9% p.a., from the date of respective payment till realization and litigation cost of Rs.5,000/- to the complainant.
3. The OP shall comply this order within 60 days from the date of this order failing which the OP shall pay interest at 12% p.a., after expiry of 60 days from this date till realization.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 25^th day of July, 2022)

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

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