BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 26^th DAY OF NOVEMBER 2020

O R DE R

SRI.S.L.PATIL, PRESIDENT

The complainant filed this complaint under Section 12 of Consumer Protection Act, 1986 against Opposite Party (herein after referred as OP) with a prayer to direct the OP to allot a site or compensation of Rs.15,00,000/- in favour of complainant, to issue an allotment letter and execute the registration of the site in favour of complainant and to pay cost of petition and other such ancillary and incidental relief, which are necessary to meet the ends of justice.   

2.      The brief averments made in the complaint are as under:

  The OP is a society and made a public offer to become member of the society on 10.01.2006 that it is developing a residential layout under the name “Athmananda Sagara” at Hunsur-Yellawala Road, Mysuru and society further mentioned in the offer of advertisement that, it proposed to develop the sites consists of variable dimension of 30 x 40, 40 x 60 and 50 x 80 ft. etc., and the development work is being carried by experienced BSR Enterprises Developers and Contractors, Bangalore and time required for developers of the site is only for twelve to fifteen months.  Further, the OP has stated that the value of the Athmananda Sagara layout sites are worth of Rs.194/- per sq.ft. and will be allotted to first come first serve basis that means to say that the members who first deposited the initial amount of Rs.50/- per sq.ft. as an advance deposit and remaining cost of the amount may be paid depending upon the development work of the project.

It is further submitted that due to above said offer, he has fond hope to have a shelter of his life became member of society by paying membership fee of Rs.1,020/- under membership No.A-19415 through cheque bearing No.129743 dated 27.11.2006 drawn at UTI Bank Ltd., Koramanagala, Bengaluru for site measuring 30 x 40 ft. along with initial payment of Rs.60,000/- through same cheque.  The OP has issued receipt bearing No.34152 and 34153 on 27.11.2006 to the complainant.  Further it is submits that the OP has issued a notice on 20.02.2007 call upon him to deposit the first instalment of Rs.68,400/- as such complainant deposited Rs.28,400/- and Rs.40,000/- on 10.04.2007 through DD Nos.306228 and 306229, SBI Malleshwaram for which the OP issued receipt No.55364 on 11.04.2007.

It is further submitted that again OP has issued another notice on 16.07.2007 calling upon him to deposit the second instalment amount of Rs.68,400/-, then also again complainant paid Rs.68,400/- through cheque No.886494 dated 06.08.2007 drawn on SBI, MG Road Branch, Bengaluru-01 for which the OP has issued receipt No.69268 on 06.08.2007. It is further submits that he has paid total amount of Rs.1,96,800/- and only Rs.36,000/- has to be paid by him to the OP society as per the advertisement.  The complainant is ever ready to deposit the remaining amount.  It is further submits that whenever the complainant asking the OP about the allotment of site, they went on dodging the time by one or the other baseless reasons.  Though the OP promised to allot the site within 12 to 15 months from the date of advertisement but has not allotted the site even though more than 11 years has been completed by launching the project for developing the site. So, the complainant has issued a legal notice dated 29.01.2018 to the OP, even though it was served no reply was made by OP.  As such the complainant without any alternative again on 23.08.2018 calling upon to allot a site, but OP neither replied nor responded, hence the complainant approached this Forum.

The cause of action arose on 27.11.2006, subsequently on 11.04.2007, 06.08.2007 being the dates of deposits of amount and subsequently on 23.08.2018 when the notice was issued to OP. 

3. On receipt of the notice, OP did appear through its advocate and filed its version.  In the version, the OP submits that it is true that it has given vide publicity that the society is developing layout in the name of Athmananda Sagara at Mysuru on different dimensions of sites measuring 30 x 40 ft, 40 x 60 ft, and 50 x 80 ft. and the said project has been given to BSR Enterprises, Developments and Contractors, Bengaluru.  But, it is false to say that the said layout will be completed within 12 to 15 months. Further it is submits that the para 4 of complaint is partly correct that initially the OP has fixed Rs.194/- per sq.f.t and it is not final and the sites will be allotted on first come first serve basis.  It is further submits that the complainant is an Associate member of OP society and he has got membership and has made application before it, seeking allotment of site measuring                     30 x 40 ft. in the layout called Athmananda Sagara.  As on today, the complainant has deposited Rs.1,96,800 to the society and submits that the complainant still has to pay a sum of Rs.1,63,200/- to the OP but not Rs.36,000/-.

It is further submitted by the OP that it has acquired lands in and around Ilavala for formation of residential layout around 100 Acres and after necessary approval from the authorities, the layout work has been commenced.  It is further submits that in the year 2009, the Government of Karnataka passed a notification stating that for formation of satellite towns parallel to Mysore City in 7 Villages including Nagavala Village and for extension of the area to be covered Under Comprehensive Development Plan by the MUDA and also the areas acquired by the OP society comes under the said area and the authorities have not permitted for conversion of land.  The OP society after acquiring the land, it has been converted for residential purpose.  After formation of the residential layout, the sites have been allotted to its members purely on the basis of the seniority of the member as first come first serve basis.  The OP society has already allotted sites to its members purely on the seniority basis and complainant’s seniority is 1207 and the sites allotted to its members totally 1200 of different dimensions in the said layout.  Thereafter, due to Comprehensive Development Plan further layout work has been stopped.  In the year 2016, the Government of Karnataka has approved the Comprehensive Development Plan and it has been published in the Gazette notification on 04.02.2016 for development of the area and included in MUDA.  It is submitted that the society has already submitted the conversion of land use of remaining extent of 154 Acres out of 300 Acres of the Athmananda Sagara.  The society will get the conversion of land use and layout plan shortly.  The said fact has also been informed to the members of the society who have made applications in the above said layout, vide its letter dated 02.01.2014.

It is further submits that it is true that it is the duty of the OP society to develop the layout and allot the sites to its members.  The non-completion of the project is not in the hands of the OP society due to Government policies and as per the CDP, the authorities further have not approved the layout plan.  There is no intention to stop the development of the project.  It is further submits that the OP society has annexed letter dated 02.01.2014, 10.09.2014, 26.12.2015 and Gazette notification of the Government of Karnataka dated 04.02.2019.  The layout work has been delayed because of Government notification.  Therefore, there is no delay or there is no negligence on its part. 

It is further submits that the formation of residential layout was usually time consuming task involving several aspects of taking approval from the Government authorities, investing huge sums for acquisition of the lands, obtaining necessary approvals from the concerned authorities and thereafter making payment of relevant charges hence, the formation of layout and for allotting the site could not be completed within stipulated period.  The delay is not on the part of OP and absolutely there is no delay and the OP society has not caused any inconvenience to the complainant.  Therefore, the complainant is also benefitted and he will be allotted the site shortly. It is further submits that the cost of the construction is also rising.  If the complainant has paid the full value of the site and he was waited, he will be getting the site surely.  It is further submits that OP has fulfilled the obligations and the complainant will get the site as early as possible as per the seniority basis shortly and after balance payment of Rs.1,63,200/ and that even today, the complainant has not paid full value of the site, he has to pay balance consideration to OP society.  Therefore, there is no question of today in allotting the site to the complainant.  If the complainant has paid the full value of the site and she has waited, she will be getting the site surely.  But, she has not completed her part of obligation.  Therefore, there is no deficiency on behalf of the OP society. Further, OP has stated in para No.12 of its version. But, he has not completed his part of obligation.  Therefore, there is no deficiency.  The question of paying alleged compensation of Rs.15,00,000/- does not arise and there is no question of paying the cost of the proceedings.  Therefore, OP prays to dismiss the complaint with exemplary cost.

4. The complainant has filed an application under Section 24-A(2) of C.P.Act R/w Section 5 of Limitation Act to condone the delay, if any, in filing the complaint for the reasons stated in the accompanying affidavit.  In the affidavit, complainant has stated that he had paid the major portion of the amount for the allotment of site and OP sent a notice calling upon him to pay the last instalment amount as agreed at the time of payment of initial amount.  The complainant stated that he working in different place of interstate, hence he could not pursued the society constantly and regularly.  Even when he insisted, OP informed that when the project is complete it will allot a site to all the members.  So by believing the words of OP, complainant waited with a hope that OP would allot a site after completion of the project.  Whenever he came to Bangalore and enquire them through phones they always informed that wait for few months and the project is under progress.  Hence due to the lethargic and dodging attitude of the OP society got issued a legal notice on 23.08.2018 calling upon to allot a site by collecting the remaining balance amount of site value.  Even he issued a notice on 23.08.2018 no response came from the OP.  However, with an abundant caution this application has been filed.

5. To this application, OP has filed objections that this complaint is not maintainable and it is liable to be dismissed in limine.  The complaint filed by the complainant is barred by time.  The last payment made by the complainant is 06.08.2007, thereafter complainant has not made the payment nor he has come forward to pay the balance instalment of Rs.1,63,200/-.  On this ground alone, the complaint is liable to be dismissed for barred by limitation.  It is further submits that the complainant has admitted that he did not pursue the matter with OP society constantly and regularly.  As and when the complainant enquired with the OP society, the society has suitably responded and the society informed the complainant that the site will be allotted after completion of the project.  This cannot be a ground for condoning the delay in filing the complaint as the complainant has not paid the entire sital value to the OP society.  Therefore, OP prayed for dismissal of the application.

6. Complainant has tendered his evidence by way of affidavit.  He has also produced documents in support of his case and they are marked as Ex.A.1 to Ex.A.12.  The OP has also filed its affidavit evidence and also filed its written arguments.

7. Heard the learned counsel for the complainant and OP.
8. The points that arise for our consideration are:

1.  Whether the application filed by the complainant under Section 24(A) of the C.P.Act R/w Section 151 CPC is condonable?
2. Whether the Complainant prove the deficiency of service on the part of OP, if so, entitled for the relief sought for?
3. What order?

  9.  Our answers to the above points are as under:

       Point No.1:  In the affirmative.

              Point No.2: Partly in the Affirmative 

      Point No.3  As per the final order for the following

REASONS

10. Point No.1:  We have briefly stated the contents of the complaint and the version. At the time of filing this complaint, the complainant has filed an application under Section 24-A(2) of C.P.Act R/w Section 5 of Limitation Act to condone the delay, if any, in filing the complaint of the reasons stated in the accompanying affidavit.
11. Pending admission, notice was ordered to issue along with condonation of delay application to the OP.  OP appeared and filed objections to the application under Section 24-A(2) of C.P.Act R/w Section 5 of Limitation Act, 1963.  In the said objection, the OP has taken contention that complaint is barred by time.  The last payment made by the complainant is 06.08.2007, thereafter, he has not payment nor he has come forward to pay the balance instalment of Rs.1,63,200/- to the OP society.  On this ground alone, the complaint is liable to be dismissed for barred by limitation.  This contention taken by OP is also no legs to stand in the light of the decision reported in IV (2017) CPJ 229 (NC), wherein it is held that “Sec.24A, 21(a)(i) – limitation – continues cause of action – failure delivery, possession of bungalow gives raise to current cause of action to the Complainant.” In the instant case, the Complainant has repeatedly requested the OP for allotment of site, which was not materialized. In the light of the decision cited supra, we come to the conclusion that, complaint filed by the Complainant is well within time.
12. Further it appears that with abundant cautions, the complainant filed this application to condone the delay, though not necessary.  Any how, the application is filed.  Hence, we record our findings on the said application, accordingly disposed as allowed and complaint is admitted.  Hence, point No.1 answered in the affirmative.
13. Point No.2:-   According to the case of the complainant so far he has already paid an amount of Rs.1,96,800/, the only amount ought to have paid is Rs.36,000/- for registration of the said site.  Even though he is ready to pay the balance amount of Rs.36,000/-, OP is not in a position to get registered the regular sale deed.  Even on repeated requests that OP postponing the registration process by one or the other pertest.  The complainant waited for 11 years.  According to the case of the complainant that itself amounts to deficiency of service much less the unfair trade practice.  Hence, he is entitled for the registration of the site in his favour.  The specific contention of the OP is stated in para Nos.3 to 4 of its version and further partially admitted.  The main contention of the OP that initially the site value has been fixed at Rs.194/- sq.ft. which was not final.  It is also submitted that as on the date of filing version, the complainant has deposited Rs.1,96,800/- but still he has to pay a sum of Rs.1,63,200/- to the OP society and not Rs.36,000/-.  In respect of the alleged delayed process is concerned, the OP specifically taken the contention in Para Nos.7 to 10 of its version reads thus:-

Para 7:- It is submitted that the OP society has acquired the lands in and around Ilavala for formation of residential layout for the benefits of the members around 100 Acres and after necessary approval from the authorities, the layout work has been commenced.It is submitted that in the year 2009, the Government of Karnataka passed a notification stating that for formation of satellite towns parallel to Mysore City in 7 villages including Nagavala Village and for extension of the area to be covered under comprehensive development plan by the MUDA and also the areas acquired by the OP society comes under the said area and the authorities have not permitted for conversion of land use and for approval of the layout plans because of the government policy.

Para 8:- The OP society, after acquiring the land it has been converted for residential purposes from the competent authority and after necessary approvals from the authorities, the OP society has formed the residential layout at Mysore known as Atmananda Sagar Phase 1,2,4 and 4.After formation of the residential layout, the sites have been allotted to its members purely on the basis of the seniority of the member as first cum first serve basis.The OP society has already allotted sites formed in the said layout to its members purely on the basis of seniority.The complainant’s seniority is 1207 and the sites allotted to its member totally 1200 sites of different dimensions in the said layout.Therefore, since due to comprehensive development plan the further layout work has been stopped.In the year 2016, the Government of Karnataka has approved the comprehensive development plan and it has been published in the Gazette notification on 04.02.2016, for development of the area and included in MUDA.It is submitted that now the society has already submitted the conversion of land use of remaining extent of 154 acres out of 300 acres of the Atmananda Sagara.The society will get the conversion of land use and layout plan shortly.The said fact has also been informed to the members of the society who have made applications in the above said layout, vide its letter dated 02.01.2014.

Para 9:- The OP society is a good organization and doing well and the society is still forming several layouts in and around Bangalore and Mysore.The layout known as Atmananda Sagara is almost completed and the contention of the complainant is imagination.It is submitted that the registration of the site is already commenced and the OP society has allotted and registered the sites to its members only on the basis of the seniority.

Para 10:- It is true that 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 non completion of the project is not in the hands of the OP society, due to government policies and as per the CDF, the authorities further have not approved the layout plan.There is no intention to stop the development of the project.It is submitted that the OP society has annexed letter dated 02.01.2014, 10.09.2014, 26.12.2015 and Gazette notification of the Government of Karnataka dated 04.02.2016 for kind perusal of this Hon’ble Forum.The layout work has been delayed because of government notification.Therefore, there is no delay or there is no negligence on the part of the OP society.Further, it is informed that the OP society will intimate the provisional allotment letter within short period of time after getting the layout plan issued by the authority.

14.  This contention taken by the OP is not specify denied by the complainant.  On clearing the legal hurdles, the OP has refix the value of the site.  Further it is not the case of the OP that now it is not in a position to get registered the sale deed.  In this context, the OP has specifically stated in para No.12 of its version reads thus:-

Para 12: It is submitted that the OP society has fulfilled the obligations and the complainant will get the site as early as possible as per the seniority basis shortly and after balance payment of Rs.1,63,200/-.It is submitted that even today, the complainant has not paid full value of the site, he has to pay balance consideration to OP society.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 she has waited, she will be getting the site surely.But, she has not completed her part of obligation.Therefore, there is no deficiency on behalf of the OP society.

15. This fact is also not seriously disputed by the complainant.  In this context, we come to the conclusion that the stand taken by the OP with regard to the seniority, legal hurdles and also increase of the sital value, complainant yet to pay the balance amount of Rs.1,63,200/- towards remaining sital value, but not Rs.36,000/-.  Looking to the undertaking given by the OP, we deemed it just and proper to direct the OP to get registered the site measuring 30 x 40 ft. in its layout as promised and complainant has to bear the registration charges.  We have also kept another option to the complainant that in the event, he failed to deposit the remaining balance amount of Rs.1,63,200/-, he is at liberty to get refund an amount of Rs.1,96,800/- with interest at the rate of 10%p.a. by way of compensation from the date of periodical payment with litigation cost of Rs.5,000/- in the light of the decision reported in reported in EMAAR MGF Land Ltd., & Anr. V/s Amit Puri, II (2015) CPJ 568 (NC) wherein it was held that, after the promised date of delivery of possession, if the project is not completed, the discretion lies with the Complainant whether he wants to take delivery of possession or seeks refund of earnest money. Hence, we answer the point No.2 in the affirmative.

16. Point No.3:  In the result we proceed to pass the following:-

1. The complaint filed by the complainant is allowed in part.

2. OP is hereby directed to execute the sale deed in respect of site measuring 30 x 40 feet in favour of the complainant by receiving balance amount of Rs.1,63,200/-.  It is the complainant to bear the registration charges. If the complainant is unable to pay the remaining amount of Rs.1,63,200/- to get execute the sale deed in respect of the said site allotted by the OP, he is at liberty to seek the refund of Rs.1,96,000/- with interest at 10% p.a. by way of compensation from the date of periodical payment till realization with litigation Cost of Rs. 5,000/-.
3. The OP shall comply the order of this Forum within a period of six weeks from the date of receipt of the order, failing which the complainant is at liberty to take steps as per Law.
4. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 26^th day of November, 2020).

Document produced by the complainant are marked as Ex.A.1 to Ex.A.12 are as follows: