<br /> COMPLAINT FILED: 26.12.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 21st MARCH 2009<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.2799/2008<br /> <br /> <br /> COMPLAINANT Smt.Uma Manohar,# 12/9, Model Town,Mahakali Caves Road,Andheri East,Mumbai – 400093.Presently camped at Bangalore.Advocate – Sri.Altaf HasanV/s.<br /> OPPOSITE PARTY Sri.Manohar Reddy,Chairman and Managing Director,Happy Home Constructions,179/12-01, 2nd Cross Road,Wilson Garden,Lal Bagh – Hosur Road,Bangalore – 027.Advocate – Sri.V.Srinivasan<br /> <br /> <br /> O R D E R<br /> <br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to allot a plot in “Spanish Village” project and pay a compensation and for such other relief’s on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> <br /> Complainant being lured away with the advertisement and publicity given by the OP who claims to be the developers and promoters of residential plots in and around Bangalore in their project called as ‘Spanish Village’ thought of enrolling himself as a member of the said project in the year 1996. OP accepted her membership and allotted her No.618. The total cost of the plot is fixed at Rs.1,99,000/-. Complainant paid nearly Rs.1,11,000/-. OP allotted her plot No.107. In the month of November 2001 when complainant came from Bombay to see the said project and its progress, to her utter shock and surprise there were no developmental activities at all. Though complainant invested her hard earned money she is unable to reap the fruits of her investment because the project is not completed. Then complainant caused the legal notice to OP on 22.01.2007. Again there was no response. Under the circumstances complainant felt the deficiency in service on the part of the OP. Accordingly she is advised to file this complaint and sought for the reliefs.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant is a defaulter in payment, she has kept the amount in due. Complainant kept mum for all these five years without agitating her rights. Complaint is barred by time. No alternative plots are available at the disposal of the OP as on today. Complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant became the member of the project floated by the OP in the name and style “Spanish Village” in the year 1996. OP accepted her membership and allotted her membership No.618. Complainant choosen to purchase the plot No.107. OP fixed up the total plot value of Rs.1,99,000/- including developmental charges payable in monthly instalment of Rs.3,000/-. Complainant paid in all Rs.1,11,000/-. OP acknowledged the same. Of course OP has not disputed the fact of receipt of the said amount right up to November 2001. Now the grievance of the complainant is that when she visited the said project, to her utter shock and surprise there were no developmental activities at all, plot No.107 is not demarkated and identified.<br /> <br /> 7. The evidence of the complainant which finds support from the contents of the undisputed documents appears to be very much natural, cogent and consistent. There is nothing to discard the sworn testimony of the complainant. OP having retained the said huge amount for all these years without registering the plot and putting the complainant in actual and physical possession of the same accrued the wrongful gain to self thereby caused wrongful loss to the complainant that too for no fault of her. Though complainant invested her hard earned money she is unable to reap the fruits of her investment it is all because of hostile attitude of the OP. Being fed up with the hostile attitude of the OP, complainant got issued the legal notice on 22.01.2007. Copy of the same is produced. Again there was no response.<br /> <br /> 8. As against this unimpeachable evidence of the complainant the defence set out by the OP appears to be defence for defence sake. The main contention of the OP is that, the complaint is barred by time does not hold much force. Once when OP accepted the membership of the complainant for the said project, collected the money towards the allotment of a plot till the plot is registered and complainant is put in possession she will accrue the recurring cause of action. Complainant did make repeated requests and demands to OP but there was no positive response. Naturally complainant must have felt both mental agony and financial loss.<br /> <br /> 9. Of course OP says that complainant is expected to give Rs.1,99,000/- including the developmental charges wherein part payment of Rs.1,11,000/- is paid. Hence complainant became the defaulter. Again we don’t find force in the said defence. If the OP is ready with the said project being approved by the statutory authority it would have made demand to the complainant to pay the remaining amount in due and express their willingness to execute the sale deed, but no such steps are taken. So in absence of such specific defence and proof the bare and vague allegations of the OP rather does not hold much force. As it is there is no proof that OP has completed the said project and some plots are available at its disposal.<br /> <br /> 10. Having considered the facts and circumstances of the case we find it is a fit case wherein complainant deserves the refund of the money that is paid with some compensation and litigation cost. We are satisfied that complainant is able to prove the deficiency in service on the part of the OP. <br /> <br /> 11. Though complainant has not sought for the refund of the sital value but in the interest of justice when there is no proof of completion of the said project “Spanish Village” and that project being approved by the statutory authority and some plots are still available at the disposal of the OP relief now sought by the complainant for the transfer of the said plot in her name or to allot alternative plot cant’ be considered. With these reasons we answer point Nos.1 & 2 accordingly and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP is directed to refund Rs.1,10,000/- to the complainant along with interest at the rate of 12% p.a from November 2001 till realization and also pay a compensation of Rs.1,00,000/-, litigation cost of Rs.1,000/-. This order is to be complied within four weeks from the date of its communication.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 21st day of March 2009.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> Vln* <br />