BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

                       17^th DAY OF JUNE 2020

O R D E R

SMT.PRATHIBHA. R.K., PRESIDENT

This complaint is filed by the complainant against the Opposite Parties (herein after called as OPs) under section 12 of the Consumer Protection Act, 1986.  The Complainant prays to direct the OPs to register a site measuring 30x40 or alternatively refund the site value of Rs.5,41,020/- with interest @ 24% p.a from the date of receipt of payment till the date of full satisfaction along with Rs.3,00,000/- towards mental agony and hardship.

2.      The brief facts of complaint is as under:

Complainant became a member of OPs society and applied for site at Attibele, Sarjapur Road, Anekal Taluk, Bangalore District.  OPs have allotted A/c No.A-20916 and collected the amounts towards 30x40 site at “Ayushmanbhava project” as detailed below.

Complainant further submitted that the OPs have assured to register the site 30x40 and issued letter dated 21.08.2006, 05.05.2007, 28.05.2007, 25.09.2007, 24.12.2010 and certificate dated 16.12.2011.  Complainant further submitted that he has paid the site value but OPs under the guise of allotting site have collected substantial amount but failed to register the site as on date and postponing the registration of site on one or the other pretext.  Complainant has paid amounts as and when demanded by the OPs.  But OPs failed to register the same.

Complainant further submitted that the complainant has lost substantial interest on investment and also escalation in site value from OPs for which OPs are bound for.  OPs are held responsible for all the loss incurred by the complainant both by loss of interest and also the escalation of the site value due to passage of time.  That the OPs failed to provide the services to the complainant whereby caused loss to the complainant.  Complainant felt deficiency in service on the part of OPs.  Complainant got issued legal notice dated 05.03.2019 calling upon the OPs to register the sites immediately or in the alternative to refund the amount deposited together with interest.  OPs failed to comply the demands made in the legal notice.  Hence complainant approached this Forum.

3.      After service of notice, the OPs appeared before this Forum and filed objections.  The OPs submitted that the complainant is an associate member of OPs society and he has got membership No.A-20916.  In the year 2007, the complainant became a member of the society for allotment of site measuring 30x40 feet in the layout known as “AYUSHMAN BHAVA” formed by OPs society at Attibele – Sarjapura Road, At Indlabele Village, Attibele Hobli, Anekal Taluk, Bangalore Rural District, Bangalore.

OPs further submitted that, OPs society have acquired land at Indlabele Village, Attibele Hobli, Anekal Taluk, Bangalore Rural District, Bangalore for formation of residential layout for the benefit of the members.  The society has got approval of layout plan and formed III phase in the layout.  OPs society developer is carrying out civil work which is almost complete.  Once, the approval is obtained and sites are released from the authority, immediately the OP society will allot the site to the complainant without further delay.

In the year 2006 the OP society has performed a bhoomi pooja of the said layout called ‘Ayushman Bhava’, the society has processed to acquire the lands.  Due to difference between the land owners and the developers, the execution of the sale deeds was delayed.  Complainant is the associate member of OPs society and has paid a sum of Rs.4,80,000/- to the OP society.  The complainant himself has made application for having associate membership of the OP society by paying necessary fees and applied for allotment of site measuring 30x40 in the said layout formed by the OP Society.

OPs further submitted that after the OP society acquired the land, the issues between the land owners and the representatives of the society has taken long time and after completion of all hurdles, the society has got the layout plan approved and formed first and second phases and allotted the sites to its members purely on the basis of the seniority.  The complainant will also get the site shortly on the basis of his seniority which is 1019, which will be registered after the release of the sites from the authority.  That the complainant is still due to the OP for a sum of Rs.1,44,000/- towards the balance sital amount.

OPs further submitted that the OP society has already formed layout in around 80 acres of land with sites of different dimensions in the said layout.  Out of the 80 acres, now around 30 acres of land has been converted and got layout plan approved by the authority.  OPs society has not collected substantial amount under the guise of allotting the site.  The complainant has paid necessary instalments for allotment of site.  As per the seniority basis, the complainant will be allotted his site.  OP society has issued several letters to its members regarding the information of developmental work of the layout and progress of the work done by the OP society in the said layout.  The layout work is delayed due to government policies and getting approvals from the competent authorities for formation of residential layout.  There is no intention to delay the developmental activity of the layout by the OP society.    That the delay, if any, in allotting the site is unintentional and for bonafide reasons.

OPs further submitted that there is no cheating, mental agony and harassment by the OP Society.  Complainant has not lost substantial interest on his investment.  OP has no intention either to cause harassment to the complainant or cause unlawful gains to the OP society.  The delay in allotting the site, if any, has not caused any inconvenience to the complainant.  The value of the site in the said layout is more than two times and above the deposited amount.  Therefore the complainant is also benefitted.  OP society is still forming several layouts in and around Bangalore and Mysore.  The said layout has been completed and sites will be allotted shortly on the basis of the seniority.  It is the duty of the OP society to develop the layout and allot the sites to its members who have applied for the same.  The completion of the project is not in the hands of the OP Society, but got delayed due to the government policies and as per the CDP.  Therefore, there is no question of delay in allotting the site to the complainant.  If the complainant has paid the full value of the site and he has waited, he will be getting the site surely.  But he has not completed his part of obligation.  There is no deficiency of service on the part of OPs.  Rest of the allegations made by the complainant is denied by OPs.  Hence OPs prayed for dismissal of the complaint with exemplary cost.    

4. In the course of enquiry into the complaint, the complainant and the OP-1 has filed their affidavit reproducing what they have stated in their respective complaint and objection.  Both parties have filed their written arguments.  Complainant and OPs have produced certain documents.  We have heard the arguments of both sides and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

5. Based on the above materials, the following points arise for our consideration:

        6. Our findings on the above points are as under:

REASONS

7. Point No.1 On perusal of the pleadings, evidence and documents produced by both the parties it is an admitted fact that the complainant became an associate member of the OPs society by paying an amount of Rs.1,020/-.  The complainant applied for allotment of site with the OPs measuring 30x40 in the OPs project called “Ayushmanbhava”.

8. The complainant submits that, he had paid an amount of Rs.5,41,020/- to the OPs for allotment of site but the OPs have not allotted a site to the complainant till today.  Hence complainant sought for refund of the amount paid to the OPs.

9. On the contrary OPs submitted that the complainant has paid an amount of Rs.4,80,000/- to the OPs Society for allotment of site.  On perusal of the documents produced by either parties, as per Ex-P2 dated 30.01.2007, Ex-P4 dated 08.05.2007 and Ex-P5 dated 17.11.2007 the complainant paid total amount of Rs.4,80,000/- to the OPs society for allotment of site.  Further the complainant has not produced any documents to prove that he has paid Rs.60,000/- cash to the OPs society.  In the affidavit evidence complainant himself stated that, he has paid an amount of Rs.4,80,000/- to the OPs towards allotment of site.  Hence it is proper to accept that the complainant has paid Rs.4,80,000/- to the OPs towards allotment of site measuring 30x40 in the ‘Ayushmanbhava’ project.

10. Further OPs contended that after acquiring the land from the land owner got the layout plan approved and formed first and second phases and allotted the sites to the members purely on the basis of the seniority.  The complainant will also get the site shortly on the basis of seniority which is 1019, which will be registered after the release of the sites from the authority.  To substantiate his contention OPs have not produced seniority list of the members.  Hence the contention of the OPs cannot be accepted.  Further on perusal of Ex-P10 dated 24.12.2010 the OPs have issued circular stating that;

After obtaining the above mentioned order we have converted around 70 Acres of land vide order number:ALN(A)(S) S.R/115/09/10, dated 07.09.2010.  Further papers are under process.  Mean while, the layout primary work has been commenced in both the projects.  Efforts have been made to get the plan approval and pollution control board clearance at the earliest.

11. Thereafter the OPs issued a letter to the complainant dated 16.12.2011 demanding to pay the balance amount of Rs.1,44,000/-.  The said letter reads here as under:

This is to bring to your kind notice that SRI.G.VITTALA, (A/C no.20916), Residing at, NO 2014/5, 1^ST MAIN ROAD, VIJAYANAGAR 2ND STAGE, BANGALORE-560040, has applied for 30x40 site in our “AYUSHMANBHAVA” project in Bangalore, and has paid an amount of Rs.4,80,000 (Rupees Four Lakh Eighty Thousand Only) towards the purchase of site.  After paying the balance amount of Rs.1,44,000/- (Rupees One Lakh Forty Four Thousand Only).  We will allot a site in the above said project.

12. Admittedly the complainant had paid Rs.4,80,000/- to the OPs for allotment of site.  Further by letter dated 21.08.2006, 05.05.2007, 28.05.2007, 25.09.2007 and 24.12.2010 the OPs have assured that they will register the site.  The OPs have taken a defence stating that due to government policies delay in getting approval from the competent authority, there delay in allotting the site to the complainant for bonafide reasons.  The said contention of the OPs cannot be acceptable since the complainant has paid amount as and when demanded by OPs and complainant has been waiting for the OPs to register the site.  Even after long lapse of time failed to convert the land and get the approval from the concerned authority.  The complainant approached the OPs several times to refund the amount.  Finally complainant got issued legal notice dated 05.03.2019/Ex-A14 to refund the advance amount along with interest.  Till today OPs have not come up to register the site in favour of the complainant nor refund the amount to the complainant.  Hence we come to the conclusion that there is a deficiency in service on the part of OPs.  Therefore in the interest of justice and equity we deem it proper to direct the OPs to register the site as assured as per letter dated 24.12.2010 in favour of the complainant within six months from the date of this order by receiving the balance amount of Rs.1,44,000/- from the complainant.  In case the OPs failed to register the site within the prescribed time limit OPs are directed to refund the advance amount of Rs.4,80,000/- to the complainant together with interest @ 12% p.a from the respective dates of payment till the date of realization.  Further OPs are directed to pay compensation of Rs.20,000/- along with litigation cost of Rs.10,000/- to the complainant.  Accordingly we answer the point No.1 affirmative in part.

13. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:           

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part. 

OP.1 & 2 are directed to register the site as assured as per letter dated 24.12.2010 in favour of the complainant within six months from the date of this order by receiving the balance amount of Rs.1,44,000/- from the complainant.  Failing which OPs are directed to refund the advance amount of Rs.4,80,000/- to the complainant together with interest @ 12% p.a from the respective dates of payment till the date of realization. 

Further OP.1 & 2 are directed to pay compensation of Rs.20,000/- along with litigation cost of Rs.10,000/- to the complainant.

Furnish free copy of this order to both the parties.  

(Dictated to the Stenographer, transcribed and typed by his, corrected and then pronounced by us in the Open Forum on this, the 17^th day of June 2020)

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

Witnesses examined on behalf of the complainant by way of affidavit:

Sri.G.Vittala,

Copies of documents produced on behalf of complainant/s:

Witnesses examined on behalf of the OP-2 by way of affidavit:

Sri.B.S Manjunath, who being the Secretary of OP society.  

Copies of Documents produced on behalf of OPs

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

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