BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.745/2015

DATED ON THIS THE 27^th January 2017

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

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri DEVAKUMAR.M.C,

Member

1.     The complainant has filed the complaint under section 12 of the C.P.Act 1986, against the opposite party, alleging deficiency in service and seeking a direction to allot a site measuring 40 x 60 ft. in Nityananda Sagara Layout, developed by opposite party at the price, terms and conditions as agreed on the date of becoming the members of opposite party and to award damages of Rs.1,00,000/- towards the mental agony, financial hardship and deficiency in service with such other reliefs.
2.     The complainant obtained the membership with opposite party on 19.08.2009.  Intending to purchase a site measuring 40 x 60 ft, at Nityananda Sagara Layout, of opposite party society, deposited a sum of Rs.1,20,000/- towards initial payment.  Later, the balance sale consideration has been paid by him, but opposite party failed to issue receipts for having received the balance amount towards the allotment of site.  A legal notice dated 17.06.2015 has been issued, calling upon to allot a site, but the opposite party neither replied nor complied.  Hence, alleging deficiency in service, the aggrieved complainant has filed the complaint, seeking reliefs.
3.     The opposite party filed its version, denying the allegations as false.  After payment of Rs.1,21,020/-, the complainant failed to make the balance sale consideration despite of repeated demands.  The total sale consideration of the site was Rs.6,50,400/-.  In order to consider the seniority for allotment of site, the complainant ought to have paid three instalment.  It has replied the legal notice on 08.07.2015, narrating all the facts about payment.  Hence, there is no deficiency in service on its part and not liable to pay any damages to the complainant.  As such, prays for dismissal of the complaint. 
4.     To establish the facts, the complainant filed his affidavit with documents.  The opposite party also lead its evidence by filing affidavit with certain documents.  The opposite party filed its written arguments.  Perusing the material on record, matter posted for orders.
5.      The points arose for our consideration are:-

1. Whether the complainant establishes the deficiency in service on the part of opposite party, in not allotting a residential site in its layout by name “Nityananda Sagara” despite of payment of sale consideration and 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, a member of opposite party society, bearing membership No.13782 since 19.08.2009, had applied for allotment of a site measuring 40 x 60 ft. in its layout known as Nityananda Sagara, formed and developed by opposite party society, and deposited a sum of Rs.1,21,000/-.  He had approached opposite party on several occasion and requested to allot a site in his favour.  But, the opposite party never attempted to allot a site, even failed to include his name in the seniority list. Having deprived of non-allotment of site, a legal notice had been caused on  17.06.2015, calling upon the opposite party to allot a site in his favour, but in vain.  As such, the complainant alleged the negligence and deficiency in service, filed the complaint and sought for the reliefs.
8.    The opposite party admitted that the complainant was its associate member and had paid the initial amount towards the allotment of site in Nityananda Sagara Layout, on 19.08.2009.  Subsequently, complainant had failed to deposit the 2^nd and 3^rd instalment amount despite of repeated reminders calling for deposit of amount, and in order to accommodate the complainant’s name in the seniority list.  But, the complainant failed to deposit the same.  As such, opposite party could not include complainant’s name in the seniority list of members and could not made even the provisional allotment in favour of the complainant.  The opposite party contended apart from Rs.1,20,000/-, the complainant has not deposited the balance sale consideration.  The sale consideration was fixed at Rs.6,50,400/-.  Further, the opposite party has not authorised any person to receive the amount in its favour, as such, the complainant’s allegation of payment made to one Mr.Sundar is denied as false and baseless.  Since the complainant failed to deposit the entire sital value, the opposite party could not allot a site in his favour.  As such, opposite party contended that, there is no deficiency in service and negligence on its part, and not liable to pay any compensation and prays for dismissal of the complaint.
9.    The documents placed on record, established that the complainant was the associate member of opposite party and had deposited a sum of Rs.1,21,020/- towards membership and initial amount towards allotment of residential site measuring 40 x 60 ft. in opposite parties Nityananda Sagara Layout, on 19.08.2009.  The complainant failed to establish that he had paid the entire sital value by means of cogent evidence.  The opposite party admitted the receipt of Rs.1,20,000/- initial amount for allotment of site in favour of the complainant.  In absence of payment of entire sital amount, the opposite party could not allot the site.  Thereby, the opposite party established that the complainant failed to pay the entire amount towards the site value.  Hence, not allotted the site.  As such, opposite party clearly established there is no deficiency in service and negligence on its part.  So we opine that the complainant is not entitled to get allotted a site from opposite party.  However, the complainant is entitled to receive the entire amount deposited with interest from the date of deposit of the amount to, till date.  Accordingly, point No.1 is answered partly in the affirmative.
10. Point No.2:- With the above observations, we proceed to pass the following

:: O R D E R ::

1. The complaint is allowed in part.
2. The opposite party is hereby directed to refund Rs.1,20,000/- along with interest at 18% p.a. from the date of deposit i.e. 19.08.2009 till this date, to the complainant, within 60 days of this order.  Failing which, the opposite party shall pay penalty of Rs.50/- per day until payment.
3. The opposite party shall pay Rs.1,000/- towards cost of the proceedings to the complainant, within 60 days of this order.  In default to pay interest at 10% p.a. until payment.
4. In case of default to comply this order, the opposite party shall 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 January 2017)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER