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

DATED 14^TH DAY OF FEBRUARY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs;

1. Direct the OP to refund the advance sale consideration of Rs.9,60,000/- to the complainant.
2. Direct the OP to pay an amount of Rs.28,56,780/- towards interest @ 18% p.a., on Rs.9,60,000/- till this date.
3. Direct the OP to pay compensation and damages of Rs.10,00,000/- to the complainant.
4. Direct the OP to pay future interest and cost.
5. Grant such other reliefs.

2. The case set up by the complainant in brief is as under:-

The OP has given publication inviting general public to avail the benefit of purchasing house site at Sukheebhava (Aravindabhava) at Attibele, Sarjapura Road, to an extent of 100 acres and the same is applied for BMRDA approval and conversion. The complainant believing the words of the OP agreed to become an associate member to the OP society and paid Rs.1,020/- on 18.08.2006 towards membership fee/share amount and become member of the society vide Associate membership No.A-11123. In the said back ground complainant booked for 40X60 ft., house site at the proposed layout and complainant was instructed to pay first installment of Rs.2,40,000/- on or before 15.12.2006 for allotment of the site.

3. Complainant further submits that he has paid the a sum of Rs.9,60,000/- through three cheques on 18.08.2006 Rs.4,80,000/-, on 12.12.2006 a sum of Rs.2,40,000/- and on 25.06.2007 a sum of Rs.2,40,000/-. The OP has issued receipts for the payments made by the complainant.
4. The complainant further submits that the OP has not developed the proposed layout as assured and they have postponed the development of layout stating one or the other issues.  Even though there has been no development in the layout, the OP continued to demand the installments and even enhanced the amount.
5. The complainant further submits that when he came to know that there has been no development in the layout and failure on the part of the OP in forming the proposed layout as assured, the complainant repeatedly demanded for cancellation of membership and to refund the amount paid by him. All his efforts to get a site in the said layout has went in vain. The OP has misled the complainant to pay the amount and misused the amounts paid.  Even after the completion of 17 years the OP has not completed the project and not allotted the site to the complainant.  Without any other option the complainant sent demand notice dated 25.04.2023 to the OP and demanded for refund of advance amount of Rs.9,60,000/- after cancelling the booking. Inspite of service of notice OP never come forward for refund of the amount nor replied. Hence the complainant has filed this complaint.
6. After issue of notice OP appeared and filed their version submitting that the complaint is not maintainable either in law or on facts as the Hon’ble Court has no jurisdiction to entertain the complaint as jurisdiction vested with registrar of co-operative society.
7. The OP has admitted about the membership of the complainant and the site booked by the complainant and also Rs.9,60,000/- paid by the complainant out of Rs.16,20,000/- the cost of the site. The OP society has performed a Bhoomi Pooja in the year 2006 and the society has processed to acquire the land and registered around 261 acres and 70 acres are in progress for layout.  Due to difference between the land owners and the developers the execution of the sale deeds were delayed.  The OP society has applied for conversion of change of land dues to Government of Karnataka and got permission for doing the layout work.  After acquiring the land issues of the land owners and the representatives of the society was taken long time and after completion of all the hurdles the society has got approved layout plan. The OP society is doing the layout work and after formation of the residential layout the sites will be allotted to its members purely on the basis of seniority basis.
8. It is further case of the OP that the complainant is not entitled for compensation.  This OP society has invested the amount received by the complainant and other purchasers on the lands, development of lands and formation of layout etc., and therefore, the OPs have no financial capacity to refund the amount to its members. The amounts collected by the OP is a public money and thereby if the complainant and others approach for refund of amounts definitely developmental work of the society will be automatically struck, the OP is ready to allot the site to the complainant as early as possible as per seniority basis shortly, if he pay the balance amount of Rs.6,60,000/- to the OP society.  The complainant being the member of the OP society is only entitled for allotment of site and not for refund of advance consideration after lapse of 14 years from his last payment.
9. The OP have denied all other allegations made in the complaint. The non completion of the project is not on the hands of society and due to government policies and as per the CDP and BMRDA authorities further have not approved the layout plan. Therefore there is no delay or there is no negligence on the part of the OP.  The OP society will intimate the provisional allotment letter within short period of time after getting layout plan issued by the authority.  The site value of the said layout is more than 6 times over and above the deposited amount therefore the complainant is also benefited and he will be allotted the site shortly.  Therefore, there is no deficiency on the part of the OP.  Hence the OP prays to direct the complainant to pay the balance amount of Rs.6,60,000/- to the OP society within six months as they are ready to allot the site and execute the sale deed in favour of the complainant.  Hence prays for dismissal of the complaint with exemplary cost.
10. The complainant has filed his affidavit evidence and relies on 08 documents.  Though sufficient time was given to the OP to lead their evidence, OP has not appeared and filed their evidence. Hence evidence of OP is taken as nil.
11. Heard the arguments of advocate for the complainant.  Arguments of the OP is taken as nil. Perused the documents.
12. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

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

       Point No.1:  Affirmative

      Point No.2: Affirmative

      Point No.3: As per final orders

REASONS

14. Point No.1 AND 2: Perused the complaint, version, affidavit evidence of complainant and documents.

15. The complainant filed his affidavit evidence and relied on Ex.P1 to P8. Ex.P1 is the notice dated 25.11.2006 and Ex.P2 is the copy report/status for formation of layout and Ex.P3 to 6 are the copies of receipts for having paid Rs.9,60,000/-, Ex.P7 is the copy of demand notice dated 25.04.2023, Ex.P8 is the postal receipt along with acknowledgements.

16. It is undisputed fact that the complainant became the associate member of the OP society on 18.08.2006 and paid advance payment of Rs.9,60,000/- during 2006 and 2007 for the allotment of site measuring 40X60 feet in the project formed by the OP in Sukheebhava(Aravindabhava) layout at Attibele, Sarjapur Road, out of the total consideration amount of Rs.16,20,000/-.  The OP has agreed to allot the site by completing the project.     The complainant was waited for more than 17 years. After that they have approached the OP and requested them for refund of the amount by terminating the booking and send a demand notice on 25.04.2023 as per Ex.P7.  Inspite of repeated request and approach the OP have failed to show any kind of intimation to communicate the allotment of site and execution of Sale Deed in favour of the complainant. 

17. On the other hand, the OP has clearly admitted about the membership and the payment made by the complainant. It is the specific contention taken by the OP that they are ready to allot the site as soon as possible to the complainant and they are ready to execute the sale deed in favour of the complainant within a short period if he paid the balance amount of Rs.6,60,000/- to the OP society.

18. It is specific contention taken by the OP that in view of so many legal hurdles from government and various sanctioning authorities and land owners they could not complete the layout project work and hence it has been delayed.  The paper works with the government and other authorities are under process. There are so many site allottees are waiting like complainant for allotment of sites. Due to difference between land owners and developers the execution of sale deed was delayed. The OP have got the permission from CDP and BMRDA for conversion of change of land use and now they started doing the layout work.

19. The OP have collected the amount in the year 2006 itself, but failed to allot the site and they are not ready to refund the amount. The complainant cannot wait for an indefinite period for the allotment of site by the OP.

20. If the complainant has invested the amount paid to the OP in the year 2006 in any of the other projects or in the bank he would have got the site or the interest on the said amount. The OP have neither returned the amount nor allotted the site and thereby caused deficiency of service and also unfair trade practice on their part. If the OP are not in a position to form the layout by clearing their litigations and also obtaining the permissions from the competent authority they would have return the amount to the complainant. Instead of returning the amount they simply harassed the complainant alleging that they will allot the site shortly.  Under these circumstances, the complainant has sustained mental agony, financial loss and he was made to approach the Commission by filing this complaint.  Therefore the complainant has clearly established the deficiency of service and hence he is entitled for the relief claimed in the complaint. Hence we answer point No.1 and point No.2 in the affirmative.

21. Point No.3:- In view the discussion referred above the complaint is liable to be allowed with direction to the OP to refund the advance sale consideration amount of Rs.9,60,000/- with interest at 12% p.a., from the date of respective payment till realization and further OP is directed to pay the compensation of Rs.2,00,000/- with Rs.10,000/- litigation charges to the complainant within three months from the date of this order.  we proceed to pass the following;

O R D E R

1. The complaint is allowed.
2. OP is directed to refund the amount of Rs.9,60,000/- with interest at 12% p.a., from the date of respective payment till realization to the complainant.
3. OP is further directed to pay the compensation of Rs.2,00,000/- with Rs.10,000/- litigation charges to the complainant.
4. The OP shall comply this order within three months from this date, failing which the OP shall pay interest at 14% p.a. on Rs.9,60,000/- paid by the complainant after expiry of three months till payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 14^TH day of FEBRUARY, 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL