Smt. RENUKAMBA.C

          Member

1.       The complainant has brought this complaint before the Commission on the basis of the following facts.

2.     The complainant was in aspirant for a site measuring 50 x 80 feet at Athmanandha Sagara Layout, Mysore developed by the opposite party. The complainant also became a member of the opposite society and his membership number is A-26328. That towards the said site, the complainant has made the following payments in the following manner:

1. Rs.2,01,020/-vide an account payee cheque bearing No.843875 dated 29.10.2008 drawn on Karnataka Bank BTM Layout, 2^nd stage, Bangalore and you have issued a receipt dated 30.01.2009 bearing No.90938.
2. Rs.4,56,000/- vide an account payee cheque bearing no.185164 drawn on corporation bank Bangalore and you payee issued a receipt dated 18.10.2010 bearing no.103875.

3.      The complainant, there was an assurance that the opposite party would develop the layout and execute the Registered sale deed with respect to the subject plot within 18 months in favour of the complainant. However despite having received entire amount the opposite party has miserably failed to allot a site in favour of the complainant. In this regard the complainant has made innumerous visits to the office of the opposite party, however all efforts have gone in vain and there was never a positive result.

4.     The complainant submits that the opposite party is executing sites to other members and of the society and not executing the registered sale deed in favour of the complainant. The opposite party is pick and choosing the members and is not executing the sites in a proper manner. The complainant is ready and willing to get he said deed of conveyance executed in his favour and under no circumstance he intends to postpone. The opposite party who is duty bound to intimate the complainant regarding the developments and approvals, till date has not intimated anything which is once again sheer carelessness which is certainly in service and unfair trade practice.

5.     The complainant receiving huge funds from promising to execute the registered sale deed within 18 months from the date of receipt of amount, not executing the same and giving evasive answers establishes deficiency in service and so also unfair trade practice. The act in prolonging things for long clearly goes to show that the opposite party is not service oriented and its acts deserved to be reprimanded. The direct the opposite party to allot a site measuring 50 x 80 feet and to execute a Registered sale deed in favour of the complainant in their layout named as Athmananda Sagara, and Rs.4,00,000/-for causing inordinate delay and Rs.15,000/-towards cost of the proceedings and Rs. 5,00,000/-towards  compensation.

6. The opposite party his version contended that the complaint filed by the complainant against the opposite party is not maintainable either in law or on facts of the case and hence liable to be dismissed in limine. Complainant is not comes under section 2(b) of Consumer protection Act, 1986. For that reasons the complainant is not maintainable under section 12 of consumer protection act, 1986. The opposite party that, the opposite party society was registered society under registration No.UBC/3UBA/151/99-200. The complainant that, it is true that the complainant is an associated member with opposite party society. But he is not an allottee. Therefore, the complainant is not a consumer within the meaning of Consumer Protection Act,1986. It is not true to that the remaining the complainant the complainant is proving the same. The averments made in para -3,4 and 5 are denied as false and the complainant is put to strict proof of the same. The documents produced by the complainant are invented for the purposes of this complainant.

7.    The complainant is not within the stipulated time. The complainant is not paid proper court fee. The complainant that, the opposite party has been inviting all its members to attend General Body meeting that would be held every consecutive yea and every member of the society have attended the meeting the complainant has raised the objections with respect to allotment of site or otherwise. Hence, it is contrived that the complainant has accepted the progressing were of the opposite party. In the meantime, the opposite party has intimated to its members who ever had applied for the sites and those who have not paid the advance payment of sites and the non payers. There cannot be any adjustment for the amount i.e. already been paid by members with respect to the deposit made for the allotment sought by them. But till today the complainant not paid entire amount. The opposite party submits that there is no mis-use of the money belonging to the complainant by the office of the complainant, whatever the amount that has been received by its members has been utilized for the purchase of lands and development. The opposite party  as many as so many members in its society, who have applied for the sites and except the complainant no other member has raised any objections whatsoever in regard to the functioning of the society. Every other member who has deposited the amount before the opposite party has conceded the functioning of the opposite party in regard to the allotment of sites. The other correspondence, which are required for, smooth functioning in allotting the sites to its members. The opposite party is striving hard to get the sites allotted to its members without any hassle but due to certain hindrances in the concerned office, the delay is caused. The delay is not intentional and also not to cause hardship to its members. That there is no deficiency of services caused to the complainant. This very fact has been intimated to the complainant on several occasions. And the complainant as agreed upon shall pay the difference of the value of the site as on the date of allotment, but the complainant not paid remaining amount. It is further  submitted, with regard to the above, a general body meeting has been conducted and the notices to the members are being dispatched to its members and this being the position the opposite party has intimated the complainant that a final decision with respect to the allotment of sites.

8.     It is submitted, the opposite party not only has discussed this particular matter in every meeting held in the society and also given facts and figures to each of the members whoever had any doubts and dissatisfaction with regard to the allotment of sites or otherwise.

9.       The complainant has filed his affidavit evidence with several documents. Opposite party has filed his version and written arguments.

10.      The points that would arise for our consideration are as under:

1. Whether the complainant has proved that there is a deficiency in service on the part of opposite party and complainant is entitled to the reliefs sought?

2. What order?

11.     Our findings on the aforesaid points are as follows:

Point No.1:- Partly in the affirmative.

Point No.2:- As per final order for the following

:: R E A S O N S ::

12.     Point No.1:- The complainant is one of the member of the opposite party society bearing membership no. A-26328. The complainant is one of the aspirant for a site measuring  50 x 8 ft at Athmanandha Sagar layout, Mysore developed by opposite party society. The Complainant has made the following payments towards the site. Rs.2,01,020/-vide cheque bearing No.843875 dated 29.10.2008  opposite party has issued a receipt for the payment  bearing No.90938 dated 30.01.2009.  Rs.4,56,000/- vide cheque no.185164 for which opposite party has issued a receipt bearing No.103875 dated 18.10.2010. Opposite party have admitted these facts and is not disputed by both the parties.

13.      In support of his arguments, the complainant has relied upon decision in appeal no.1263/2018 of the State Consumer Dispute Redressal Commission, wherein the appeal was allowed, there was delay in the registration of sale deed for allotted sites based on seniority, it was ordered to get the registration of the sale deed done along with costs of proceedings. But, in this instant case, there is no allotment of sites done by the opposite party society nor have they given any seniority no to the complainant. Hence, the appeal order quoted is irrelevant to this case.

14.     Further, the complainant has quoted the following landmark decisions laid down by the Hon’ble National Consumer Disputes Redressal Commission:

1. Reported in 2017(2) CPR 127(NC)
2. Reported in 2017(2) CPR 804(NC)
3. Reported in 2018(3) CPR 62(NC)

All the above quoted judgments are not relevant and cannot be considered to this instant case.

15.     Opposite party society in his version has agreed to allot the sites after the complainant discharges the entire amount and have agreed to allot the sites based on seniority. It is observed that there is delay in the development of sites by the opposite party society causing deficiency in service. Hence, point no.1 is answered partly in the affirmative.

      Point no.2:- In view of the above observations, we proceed to pass the following.

                                                                           :: ORDER ::

1. The complaint is allowed in part.
2. The opposite party is hereby directed to allot the site based on seniority to the complainant, as soon as complainant gets seniority.
3.  Furnish the copy of order to both parties at free of cost.