BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.203-2018

DATED ON THIS THE 8^th March 2019

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

B.A., LLB., - PRESIDENT   

                     2) Sri. Devakumar.M.C.           

                                        B.E., LLB., PGDCLP   - MEMBER

Sri DEVAKUMAR.M.C,

MEMBER

1.     The complainant filed the complaint under section 12 of the C.P.Act 1986, against the opposite party society, alleging deficiency in service and unfair trade practice and seeking direction to allot a site measuring 40 x 60 ft. in their layout by name “Kuberananda Sagara” and to execute registered sale deed and to pay compensation of Rs.4,00,000/- for causing mental agony, hardship etc., with cost of litigation of Rs.25,000/- and such other reliefs.   
2.     The complainant submits, he became a member of opposite party, society and intending to purchase a residential site measuring 40 x 60 ft, in their layout by name “Kuberananda Sagara”, deposited a total sum of Rs.5,47,200/-.  The opposite party assured to develop the layout and allotting a site, register sale deed would be executed in his favour, within 18 months.  Having paid a considerable amount towards sale consideration, he has approached opposite party and demanded for allotment of site, but in vain.  A legal notice was caused on 24.05.2018, but the opposite party never replied.  Hence, the aggrieved filed the complaint seeking reliefs. 
3.     The opposite party in their version admitted the payment of Rs.5,47,200/- towards allotment of site in their layout and acknowledged the same vide receipts, as and when the amount has been paid.  Further, submits still the complainant owes an amount of Rs.4,77,600/- towards sale consideration, as the entire sale consideration was Rs.10,24,800/-.  The assurance of allotment of site in 18 months was denied as false.  The society has allotted sites on the basis of seniority and the complainant’s seniority is 563 and they have already allotted sites measuring 40 x 60 ft.  up to 448.  Owing to delay in getting approval was the reason for delay in development of layout.  However, assured to allot the site in favour of the complainant, on payment of balance sale consideration of Rs.4,77,600/-.  As such, the allegations of deficiency in service is denied and prays for dismissal of the complaint.
4.     Both side parties filed affidavit in lieu of evidence and relied on several documents, to prove the contentions.  Written arguments filed by both parties.  Heard the counsel for complainant only.  Perused the material on records, and the matter set down for orders.
5.    The points arose for our consideration are:-

1. Whether the complainant establishes deficiency in service by opposite party society, for not allotting a site measuring 40 x 60 ft. in their Kuberananda Sagara Layout and for not executing registered sale deed in his favour, thereby he is entitled for the reliefs sought?
2.  What order?

6.    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 ::

7.    Point No.1:- The complainant intended to purchase a site measuring 40 x 60 ft, in opposite party’s layout by name “Kuberananda Sagara” paid a total sum of Rs.5,47,200/- towards sale consideration apart from membership fee of Rs.1,020/-.
8.    The opposite party acknowledged the payment, however failed to develop the layout and execute registered sale deed in 18 months, by allotting the site in favour of the complainant.  Even after several demands also the opposite party kept the complainant in dark without execution of sale deed, though he was ready and willing to get the deed of conveyance executed in his favour.  The opposite party is executed the sale deed to other members over looking the seniority of the complainant.  Hence, the complaint and sought for the reliefs.
9.    The opposite party admitted the complainant as their associate member with membership No.A-28232 and the application made for allotment of site measuring 40 x 60 ft. in the layout by name “Kuberananda Sagara” at Mysore.  The payment of Rs.5,47,200/- towards sale consideration was admitted.  However, claims the complainant still due for a sum of Rs.4,77,600/- towards entire sale consideration.  The sites were allotted and registered sale deed were executed to those members on the basis of seniority and to those members who paid the entire sale consideration.  In absence of material evidence, the assurance of execution of sale deed in his favour within 18 months is denied as false.  Hence, prayed for dismissal of the cost. 
10. On perusal of the pleadings and other documents on record, the complainant become a member of opposite party society on payment of membership fee of Rs.1,020/- and paid Rs.2,50,000/- on 14.09.2011 towards advance for allotment of site measuring 40 x 60 ft, in “Kuberananda Sagara Layout” at Mysore.  Another sum of Rs.2,97,200/- has been paid on 22.12.2011.  The payment has been acknowledged by opposite party society.  The opposite party failed to allot site in favour of the complainant despite of payment until this date, demanding another sum of Rs.4,77,600/- towards entire sale consideration. Though the opposite party contended that, the total cost of site at Rs.10,24,800/-, no material evidence has been placed, to establish the same.  Considering the admissions of opposite party that the development of layout was delayed by 5 to 6 years on account of delay in obtaining necessary approval from the concerned authorities, we opine the opposite party has failed to allot a site and execute registered sale deed in favour of the complainant, within the stipulated time.  Thereby, the opposite party has committed deficiency in service and hence liable to pay compensation.  Accordingly, point No.1 is answered partly in the affirmative.      
11. Point No.2:- with the above observations, the complaint is to be allowed in part with a direction to opposite party to allot a site measuring 40 x 60 ft. in “Kuberananda Sagara Layout” and execute registered sale deed in favour of the complainant and to pay compensation for the deficiency in service committed. Hence, we proceed to pass the following:-

:: O R D E R ::

1. The complaint is hereby allowed in part.
2. The opposite party is hereby directed to allot a residential site measuring 40 x 60 ft. in their “Kuberananda Sagara Layout” at Mysore and execute registered sale deed in 60 days of this order.  Failing to comply, the opposite party society is liable to pay penalty of Rs.200/- per day until compliance.
3. The opposite party shall pay compensation of Rs.1,50,000/- for the deficiency in service and Rs.25,000/- for causing mental agony, hardship etc., and Rs.5,000/- towards litigation expenses to the complainant in 60 days of this order.  In default, the opposite party shall pay interest at 12% p.a. on the said sum of Rs.1,80,000/- until payment made.   
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 8^th March 2019)