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

DATED 05^TH DAY OF MARCH 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 against the OP:-

1. Direct the Op to refund the advance amount of Rs.9,60,000/- to the complainant.
2. Direct the OP to pay Rs.28,48,988/- towards interest at 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 and further relief.

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

Based on the publication given by the OP inviting general public to avail the benefit of purchasing house/site in the layout known as Sukheebhava(Aravindabhava) at Attibele, Sarjapur Road, Bangalore, complainant became the associate member of OP society and has paid Rs.1,020/- on 22.08.2006 towards membership fee/share amount and he was offered associate membership No.A-11220.  

3. The complainant further submits that he has booked for 40X60 feet house/site at the proposed layout.  OP has demanded for payment for the site allotment and complainant has paid Rs.4,80,000/- on 22.08.2006, Rs.2,40,000/- on 12.12.2006 and Rs.2,40,000/- on 25.06.2007 through cheques. Totally complainant has paid Rs.9,60,000/- to the OP towards purchase of site measuring 40X60 feet. The OP has issued receipts for the payments made by the complainant.

4. Further complainant submits that the OP has not developed the proposed layout as assured.  On the other hand OP postponed the development of layout stating one or the other issues.  When the complainant came to know that there has been no development in the layout and the failure on the part of the OP in forming the proposed layout as assured, the complainant repeatedly demanded for cancellation of membership and for refund of the amount paid by him. Complainant has lost all hopes that the OP will allot the site in the aforementioned layout as even after 17 years since the date of application there has been no development at the layout site. Complainant has no other option than to terminate the booking and demand for a refund of the amount. Due to negligence of service in forming the layout and allotting the site as assured to the complainant, the OP has misled the complainant to pay the amount and misused the same which caused mental agony and loss to the complainant. Even after completion of 17 years the OP has not completed the project and not allotted the site to the complainant. Hence complainant has sent a demand notice dated 25.04.2023 to the OP demanding for refund of the entire amount paid by him with 18% interest p.a., on the advance amount of Rs.9,60,000/-.  Inspite of service of notice OP never came forward for refund of the amount nor replied. Hence this complaint.

5. After issue of notice OP appeared and filed their version. It is the case of the OP that the complaint filed by the complainant is not maintainable either in law or on facts and the complaint is barred by limitation and the same is liable to be dismissed in limine.

6. The OP has admitted that the complainant is a member of the society and this OP is ready to allot the site to the complainant in Sukhibhava(Aravindabhava) layout in Attibele and execute the sale deed in favour of the complainant within a short period if the complainant paid balance amount of Rs.6,60,000/- to the society.  The OP further admitted that the complainant has taken the membership in the year 2006 and made application before the OP society seeking allotment of site in the layout Sukhibhava(Aravindabhava) measuring 40X60 feet.

7. It is the specific case of the OP that they have acquired the lands at Indilbele village, for formation of residential layout for the benefit of the members. They have got approved layout and has already submitted around 60 acres of land for conversion and obtain conversion for residential layout and got all necessary approvals from the authorities.  The layout work has been commenced and they have formed the layout.

8. It is further case of the OP that in view of many legal hurdles from government and various sanctioning authority the said layout project work could not be completed for so many reasons and it has been delayed. The complainant cannot scold the OPs since so many other site allottees like complainant are waiting for allotment of sites even though they have paid similar amount to the OP society.  Due to the delay in paper works with the government and other authorities the formation of the layout is delayed.  OP society has performed Bhumi Pooja in the year 2006 and has processed to acquire the land and registered around 261 acres and 70 acres in progress for layout. Due to difference between the land owners and developers the execution of sale deed were delayed.  This OP has also got permission for conversion of change of land use for doing layout work.  

9. It is further case of the OP that they are ready to give site as per the wish of the board of Directors and not with any malafide intention of cheating the members of the society. The OP has specifically denied the calculation made by the complainant at the rate of 18% p.a., interest from each date of payment till filing of the case.  This OP have no money to refund to the complainant as they have invested the amount received from the society on the lands, developments of lands and formation of layout.  Therefore this OP society has no financial capacity to refund the amount. therefore, this OP is ready to allot the site to the complainant within six months if he has paid the balance amount to the OP Rs.6,60,000/-.  There is no contractual obligation to pay interest with payments between the complainant and OP and this is not a commercial transaction. Hence there is no deficiency of service and unfair trade practice. If the complainant get the sale deed for the said allotted site from the OPs within six months period the complainant will get profit more than six times than the amount which he has paid to the OP.  Hence the question of incur heavy loss inconvenience and hardship and mental agony of the complainant does not arise.  Hence OP prayed for dismissal of the complaint.

10. The complainant has filed his affidavit evidence and relies on 08 documents.   Even after sufficient time was given to the OP they have not lead their evidence hence evidence of OP is taken as nil.

11. Heard the arguments of both the parties. 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 in part

Point No.3: As per final orders

REASONS

14. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence of complainant and documents filed by both the parties. 

15. It is clear from the complaint and the documents that the complainant impressed by the publication given by the Op agreed to purchase site in the layout formed by them Sukheebhava(Aravindabhava).  The complainant has become the member of the society vide membership No.A-11220 on 22.08.2006. As per the assurance given by the complainant that they will allot the site in their project measuring 40X60 feet and have demanded the complainant to pay the advance amount.  The complainant has totally paid an amount of Rs.9,60,000/- from 2006 to 2007 through cheques in three installments.  The complainant has been continuously following up with the OP seeking for allotment of site but till today they have neither allotted the site in favour of the complainant nor refunded the amount.

16. Subsequently complainant has also got issued demand notice dated 25.04.2023 seeking for refund of the deposit amount. Inspite of service of the same they have not complied the demand made by the complainant.

17. In support of his contention the complainant has filed the affidavit evidence reiterated all the allegations made in the complaint and also produced 8 documents, Ex.P1 is the copy of the notice dated 25.11.2006, Ex.P2 is the copy of the letter dated 04.06.2007, Ex.P3 to P6 are the copies of receipts, Ex.P7 is the copy of the demand notice dated 25.04.2023 and Ex.P8 is the postal receipt and acknowledgement.

18. On the other hand, the OPs have admitted about the membership of the complainant and also the advance amount paid by the complainant. The only contention taken by the OP is that they have no money to refund to the complainant as the advance sale consideration amount received by the OP society has been invested on the lands, development of the lands formation of layout etc. the OP society have no financial capacity to refund the same or to give any compensation to the complainant.  The amount collected by the OP society is a public money and if the complainant and others approach them for refund of the amount, definitely the developmental works of the society will be automatically struck off.  Hence they are ready to allot the site to the complainant within a period of six months if the complainant paid balance amount of Rs.6,60,000/- to the OP society. The OP society is only for allotment of site and they will not refund the advance consideration amount after lapse of 14 years from the date of last payment.  This is not a commercial transaction. There is no agreement between the parties for payment of interest.  

19. The OP have not led any evidence. The OP counsel has relied on the decisions of the Hon’ble NCDRC and State Commission and also the order passed by this Commission in CC No.698/2020.

20. We have gone through the decision of the Hon’ble NCDRC in Rev. Petition No.1333/2022.  This decision relates to the OP society and they have preferred this Revision petition aggrieved by the orders of the Hon’ble state Commission and District Commission.  The Hon’ble NCDRC has allowed the Rev. Petition and modified the orders to the extent that the OP is directed to allot residential site in the layout to the complainant within a period of two months from the date of payment of the balance amount and further pass the orders that the complainant is not entitle for any compensation.

21. When the OP society is not in a position to refund the amount as they have invested the entire amount paid by the members of the society for the development of the layout we feel it is necessary to direct the OPs to allot the site in favour of the complainant measuring 40X60 feet within two months after receiving the balance sale consideration amount by the complainant. Therefore the complainant is not entitled for refund of the amount and also the compensation.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

22. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to allot the residential site measuring 40X60 feet at its layout i.e.,  Sukheebhava(Aravindabhava) to the complainant within a period of two months from the date of payment of the balance amount of Rs.6,60,000/- by the complainant.
3. The complainant is not entitled for any compensation.
4. OP is further directed to pay litigation expenses of Rs.10,000/- to the complainant.
5. The OP shall comply this order within 60 days from the date of this order, failing which the OP shall refund the amount of Rs.9,60,000/- interest at 12% p.a. from the date of respective payment till realization.
6. 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 05^TH day of MARCH 2024)

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

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

NIL