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

DATED 08^TH DAY OF JULY 2024

COMPLAINT No.223/2023

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 pay to the complainant an amount of Rs.45,00,000/-
2. Or in the alternative allot a fully developed site of 30X40 feet totally admeasuring 1200 sq.feet, in Anandsagara Phase IV, with the same being inspected for completeness by the complainant, with no additional cost being incurred by the complainant for such alternatively allotted site.
3. Pass an order directing the OP to pay Rs.35,00,000/- along with applicable interest at 18% p.a., towards the delay, loss of time, deficiency of service, mental agony and harassment.
4. Pass an order directing the OP to pay the complainant an amount of Rs.1,00,000/- towards litigation expenses.
5. Pass any other order as per facts and circumstances of the case.

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

The complainant agreed to become the member to the OP society vide membership No.6454.  after becoming a member, complainant fulfilled all payment commitments as required by the OP, and was allotted a site bearing No.42B in Anandasagara Phase IV, site allotment was completed by virtue of a provisional site allotment letter dated 11.07.2013.  The complainant has expended towards purchase of the site approximately Rs.4,00,000/-.   The complainant was also issued a khatha for the property. 

3. After execution of the sale deed upon an inspection being done by the complainant, the complainant came to note that the portion of the layout, where the complainant’s site was located was lying the state of debris and vegetation, with no development having taken place therein. There were no marked roads, no demarcation of sites, and the entire portion was lying in shambles.  The complainant immediately raised this concern with the OP.  Upon the concern being raised, the OP mentioned to the complainant that the said portion is in the process of development, and that demarcation of the site will happen in due course, including providing of necessary and requisite layout development such as roads and civic amenities.  Thereafter periodical enquiries were made to the society by the complainant over the past 10 years, regarding development of the site, but the OP only issued evasive oral responses, and adopted an approach of total avoidance with utter neglect of the complainant’s interest as a consumer.
4. Despite the continuous follow-ups the OP has failed to develop, demarcate and allot the site of the complainant as promised by them.  The complainant has also got issued legal notice on 01.09.2022. Inspite of service of notice the OPs have neither handed over the possession of the site nor refund the amount. Hence the complainant has filed this complaint.
5. After issue of notice OPs failed to appear before this commission and they have appeared after lapse of 45 days from the date of placing them exparte. Hence this commission has set aside the exparte order but rejected the prayer for filing of the version.
6. The complainant has filed his affidavit evidence and relies on 6 documents.  Even though OP has appeared have not led any evidence nor submitted any arguments. Heard the arguments of the complainant and perused the documents.
7. The following points do 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?

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

       Point No.1:  Affirmative

      Point No.2 : Party Affirmative

      Point No.3 : As per final orders

REASONS

9. 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, affidavit evidence of complainant and documents.  Even though the OP have appeared have failed to file their version and to lead their evidence. The evidence and documents of the complainant remained unchallenged and there is no reason to disbelieve the evidence and documents.

10. The complainant filed his affidavit evidence and relied on Ex.P1 to P6. Ex.P1 is the copy of the allotment letter, Ex.P2 is the copy of the absolute sale deed, Ex.P3 is the copy of the khatha extract, Ex.P4 is the copy of the legal notice, Ex.P5 is the postal receipt, Ex.P6 is the photographs of the site.

11. It is undisputed fact that the complainant became the associate member of the OP society and OP society have allotted the membership No.6454 and they have allotted the site bearing No.42B at Anandasagara, Phase IV, Mysore, measuring 30X40 feet, vide allotment letter as per Ex.P1.  The complainant has paid a total consideration amount Rs.3,25,200/-. The OPs have executed the registered sale deed as per Ex.P2.  The complainant has spent approximately Rs.4,00,000/- towards the purchase of the amount and it is his hard earned money.

12. The main grievance of the complainant is that he has not seen the site allotted by the OP till the registration of the sale deed. After completion of the registration of the site, the complainant was also issued a khata for the property.  After that the complainant was taken to the spot by the OP and upon inspection he came to know portion of the layout where the complainant site was located was lying a state of debris and vegetation with no development having taken place. There were no marked road, no demarcation of sites and the entire portion was lying in shambles.  Immediately the complainant has raised this concern with the OP.  inspite of that the OP society have neither developed the site nor put the complainant in possession of the site.  

13. The OPs have issued only evasive oral responses whenever the complainant tried to make enquires with the site and they have further adopted an approach of total avoidance with utter negligence of the complainant interest.  Even though the OPs have executed the sale deed on 07.12.2013 but they failed to develop the site even today. The complainant has produced the copy of the location of his site as per Ex.P6 and it clearly discloses that the OPs have neither demarcated the site nor formed any roads.

14. Under these circumstances, the complainant has come up with this complaint to direct the OPs to provide him an alternative site with all development work have been completed or put him in possession of the fully developed site No.42B or to refund an amount of Rs.45,00,000/- which is the present market value of the site.

15. After appearance before this commission by the OPs have offered the complainant for settlement. Inspite of taking sufficient time the OPs have neither come forward to settle the matter as per the request of the complainant.  Hence this commission has proceed to pass the order.  

16. The complainant has obtained the sale deed in the year 2013 by spending more than four lakhs.  Inspite of taking more than 11 years the OPs neither formed the layout by developing the site and roads in the said Anandasagara layout.  It is the duty of the OPs to develop the site and hand over the possession of the site in favour of the complainant or to allot an alternative site and if they failed to allot the site and put him in possession of the site they are liable to refund the amount.

17. As per the decision of the Hon’ble Apex court this commission cannot award the interest more than 9% on the refund amount and if the interest is awarded @ 9% then this commission should not award any compensation.

18. Taking into consideration the above facts and circumstances, we feel that the OPs have played fraud on the complainant and also cheated him and they have practiced unfair trade practice.

 The Hon’ble NCDRC has passed orders in First appeal No.768/2022 in the connected cases that the OPs shall allot the site in favour of the complainant and the complainant is not entitled for any compensation. In view of this the complainant is only entitle for the allotment of the sites by the OPs with litigation expenses. Hence we answer point No.1 in the affirmative and point No.2 party in the affirmative.

19. Point No.3:- In view the discussion referred above the complaint is liable to be allowed with direction to the OP to arrange to allot a fully developed site of 30X40 feet, totally 1200 sq.feet in Anandasagara Layout, Mysore, or in the alternative to allot a fully developed site of the same measurement with no additional cost being incurred by the complainant for such alternatively allotted site. The complainant is also entitled for cost of Rs.20,000/- litigation charges.  The OP shall allot the site within one month from the date of this order in default to pay interest @ 9% p.a., on Rs.4,00,000/- from 07.12.2013 till allotment of site.  we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to arrange and allot a fully developed site of 30X40 feet, totally 1200 sq.feet in Anandasagara Layout, Mysore, or in the alternative to allot a fully developed site of the same measurement with no additional cost being incurred by the complainant for such alternatively allotted site.
3. OP is further directed to pay Rs.20,000/- towards litigation charges to the complainant.
4. The OP shall allot the site within one month from the date of this order in default to pay interest @ 9% p.a., on Rs.4,00,000/- from 07.12.2013 to till allotment of site.
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 08^TH day of JULY, 2024)

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

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

NIL