BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.5/2018

DATED ON THIS THE 27^th July 2018

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

                     2) Sri. Devakumar.M.C.                  

                                                B.E., LLB., PGDCLP   - MEMBER

Sri H.M.SHIVAKUMARA SWAMY,

President

1.     This complaint is filed for a direction to the opposite party to allot site measuring 50 x 80 feet and to execute the registered sale deed in favour of the complainant in their layout called Paramananda Sagara, with damages of Rs.4,00,000/-, costs of Rs.15,000/- and compensation of Rs.5,00,000/-.
2.     The brief facts alleged in the complaint are that the complainant being aspirant member for a site measuring 50 x 80 feet at Paramananda Sagara layout developed by the opposite party.  The complainant become a member of the society and deposited total sum of Rs.10,85,020/-.  The opposite party has undertaken to register the sale deed in 18 months by developing the layout.  Though opposite party has received the entire amount, failed to allot the site in favour of the complainant. Since anuary and March 2017, the complainant is visiting the office of the opposite party and enquiring about the allotment of site, but there is no reply from the opposite party.   The opposite party is selecting the members and executing the sale deeds.  Thereby, the opposite party has committed deficiency in service.  Accordingly, sought for reliefs.
3.     The opposite party appeared and filed the following version:- It is admitted that the complainant is an associate member of the society and applied for site in 2010 seeking allotment of site measuring 50 x 80 feet at Paramananda Sagara layout.  The opposite party acquired 90 acres of land in and around Huilal Village and around 70 sites, 50 x 80 feet measurement are allotted to the members based on seniority.  The seniority of the complainant is 79. 
4.     The opposite party society has informed the complainant to get the sale deed registered long back and site No.14J was allotted jointly in the name of complainant and her husband.  There is no delay.  Though opposite party society has informed the complainant to visit the office of opposite party to get the details of the sites allotted.  The complainant did not approach the opposite party.  Thereby, there is no deficiency of service on the part of opposite party.  Accordingly, opposite party sought for dismissal of the complaint.  
5.     On the above contention, this matter is set down for evidence.  During evidence, complainant has filed her affidavit evidence and further evidence closed.  Likewise, Secretary of opposite party has filed affidavit evidence and further evidence closed.  Both parties filed their written arguments.  Since opposite party and advocate for opposite party absent, heard the counsel for complainant only, this matter is set down for orders.
6.    The points arose for our consideration are:-

1. Whether the complainant establishes that there is deficiency of service on the part of opposite party in not allotting the site, thereby the complainant is entitled for the reliefs sought?
2.  What order?

7.    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 ::

8.    Point No.1:- The transaction between parties is not in dispute.  The complainant alleges that she is made payment of Rs.10,85,020/- and opposite party undertakes to allot sites in 18 months.  But, the opposite party has not come forward to execute the sale deed as agreed.  Thereby, there is deficiency of service on the part of opposite party.  The complainant approached the opposite party on several occasions particularly January and March 2017, though assured to execute the sale deed, the opposite party failed to give the same.  Hence, this complaint is filed.
9.    Of course, the opposite party has contended that the opposite party society has formed the layout and in the first instance, 70 sites measuring 50 x 80 feet are allotted to the members based on the seniority.  The complainant’s seniority is 79.  Thereby, she will get the site in a short period.  Further, it is alleged in para 6 of the version, that the opposite party has informed the complainant to get the site bearing No.14J to register in the name of complainant and her husband Suryaprakash jointly.  But, there is no documents placed by the opposite party to establish that there is allotment relating to site No.14J as contended in para 6 of the version.  The opposite party did not palce any materials particularly documents to evidence the allotment of site bearing No.14J.  But, contrary to this, in the written arguments at para 3, it is contended by the opposite party that the opposite party society has allotted site No.14J a bigger site in the name of complainant and her husband Suryaprakash and informed them to get the sale deed long back, but the complainant has not come forward to register the same.  Thereby, there is no delay or deficiency of service on the part of opposite party.  But, this fact has not been pleaded or evidenced by the opposite party in version or in the affidavit evidence.  For the first time in the written arguments, such plea has been raised.  So far the allotment of bigger dimension site is concerned even to that effect, there is no record placed by the opposite party.  In the circumstances, the non-allotment of site by opposite party to the complainant amounts to deficiency in service.  Thereby, the complainant is entitled for the allotment of site and compensation with litigation expenses.    Hence, point No.1 is answered partly in the affirmative.
10. Point No.2:- In view of the findings recorded on point No.1, opposite party is liable to be directed to allot site measuring 50 x 80 feet at Paramananda Sagar layout formed by it and execute the registered sale deed in favour of the complainant and also to pay compensation of Rs.2,00,000/- with litigation expenses of Rs.5,000/-. Hence, we pass the following order:-

:: O R D E R ::

1. The complaint is hereby allowed in part.
2. The opposite party is hereby directed to allot site measuring 50 x 80 feet and to register the sale deed in favour of complainant in Paramananda Sagara layout in 3 months from the date of this order.  Failing which, the opposite party shall pay penalty of Rs.200/- per day to the complainant till compliance.
3. The opposite party is directed to pay compensation of Rs.2,00,000/- along with litigation expenses of Rs.5,000/- to the complainant within 45 days from the date of this order.  Failing which the opposite parties shall pay interest at 12% p.a. on the said total sum of Rs.2,05,000/- from the date of this complaint i.e. 02.01.2018 till payment.     
4. In case of default to comply this order, the opposite party to undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
5. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 27^th July 2018)