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

DATED 09^TH DAY OF SEPTEMBER 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 Opponents to specify the date when they commit to hand over of possession and compensate the Complainant for the loss caused due to the delay in allotting.

The site as promised by the Opponents;    Or

2. Direct the opponents to pay the claimed amount of Rs.9,03,010/- along with interest of 24% for 12 years to as on today.
3.  Direct the opponents to pay the damages, mental agony and harassment.
4. To pay the cost of litigation payable to the Advocate amount of Rs.50,000/-
5.  To award cost of this complaint.
6.  Pass such other and further orders as this Hon’ble Commission deems fit to grant in the facts and circumstances of the complaint.

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

The complainant has become member of the OP society and booked one site measuring 30X40 feet.  The application for registration of site was entered between the parties on 15.03.2011.   The complainant has paid an amount of Rs.9,03,010/- towards the purchase of the site.

3. The OP1 and 2 have agreed to provide all the amenities and completed the sites as early as possible to the complainant.  The complainant has paid Rs.9,03,010/- through different cheques towards entire sale consideration.

4. The complainant totally believed the assurance and promises given by the OP1 and 2, the complainant has paid the entire balance payment when they are proclaimed they are going to allot and register the sites in the name of the complainant.   Hence the complainant requested to refund the amount or get register the site in his name, but OP went on postponing for the one or the pretext with a malafide intention.
5. At last the complainant got issued legal notice on 12.10.2023 and the same was not served on them. Hence this complaint is filed.

6. In response to the notice, OPs appeared and filed version. It is the case of the OPs that the complaint is not maintainable and liable to be rejected in limine. As per sec 29-G(4) of KCS Act 1959 and Rule 140 of Karnataka co-operative Societies Rules 1960 the chief executive officer is the person to sue or to be sued on behalf of OP2 and hence the complaint is not maintainable against OP1.

7. The OPs have admitted about their object of the society is to acquire lands formed layouts and to distribute sites to its members on deposit seniority basis subject to approval of Registrar of Co-operative societies. 

8. The OPs have further admitted about the membership of the complainant and also the site booked by the complainant and total amount of Rs.9,00,000/- remitted by him.  The only contention taken by the OP is that, they are unable to allot the site to the complainant due to land litigation which is for the bonafide reasons but not intentional. The developer who has received advance amount has not procured the lands and formed layouts as per the terms of the agreement and as such layout could not be formed. Criminal action has been taken against the developer for having not fulfilled the terms of the agreement and handed over the site to the OP society. As soon as the layout work is completed site will be allotted in the name of the complainant till such time the complainant has to wait.  These OPs are making hectic effort to complete the layout work through the developer as early as possible. The OPs have not replied to the notice of the complainant.  These OPs are not liable to pay interest at 24% p.a., on the advance amount remitted by the complainant.  They are also not liable to pay interest at 18% p.a., as claimed by the complainant.

9. At present the Board of Management of OP society is disqualified and as per u/s 29C of the KCS act, 1959 and the Joint Registrar of Co-operative Society, Bangalore and in its place the Special officer has been appointed on 12.02.2024 and as such the special officer is filing the version on behalf of OPs. Hence the OPs prayed for dismissal of the complaint.

10. The complainant has filed his affidavit evidence and relies on 3 documents.  Affidavit evidence of official of OPs have been filed and OP relies on 01 document.

11. Heard the arguments of advocate for the complainant.  Perused the written arguments filed by both the parties.

12. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OPs?
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 both the parties, written arguments and documents.

15. The complainant has produced the copy of the application for registration of site marked as Ex.P1, copy of the receipts, marked as Ex.P2, copy of the legal notice with postal receipt and acknowledgement, marked as Ex.P3.

16. The complainant has appeared and led evidence. Even though the OP1 and 2 have received the total amount of Rs.9,03,010/- from the complainant for allotment of site measuring 30X40 feet, they have miserably failed to register the site.  The OP1 and 2 have made the complainant to believe that at one or the other time they will allot their site. Complainant has waited for 13 years by paying the entire sale consideration amount.

17. On the other hand the documents produced by the complainant clearly discloses that he has become the member of the OP society by paying the sale consideration amount for the residential site. Inspite of that the OP1 and 2 have failed to allot the site to the complainant. They have neither refunded the amount nor allotted the site and they are just keeping the amount of the complainant.

18. The complainant has sought for direction to the OP to allot the site in the Byanahalli layout or in the alternative refund the amount of Rs.9,03,010/- with interest at 24% p.a., from the date of receipt of payment and also compensation and cost of litigation.

19. If the sites are available the OP1 and 2 may be directed to allot the site measuring 30X40 feet at Byanahalli layout, or alternatively if the sites are not available it would be just and proper to direct the OP to return the amount of Rs.9,03,010/- deposited by the complainant.  Even though the OPs have appeared and filed their version submitting that they are unable to complete the layout work since the developers could not fulfill the condition as agreed upon for acquiring lands, formation of layout and to hand over the sites to the OP society to distribute the same to the members even after taken heavy amount from the OP society. The developer could not formed layout due to land litigation and hence this OPs are unable to allot the sites to the members.  It is also the contention taken by the OPs that they will try to allot the sites in the name of the complainant provided the complainant remits the balance of sital value and other charges fixed by the Board of Management of OPs.

20. It is clear from the evidence and documents produced by the OPs and the complainant that the OPs have not yet formed any layout and they are unable to form the very layout due to the litigation. Even the amount was given to the developer he was unable to form the layout and acquire the lands due to land litigation and hence this OP society is unable to allot sites to the members.
21. Under these circumstances, we feel it is necessary to direct the OPs to refund the amount paid by the complainant as they are unable to form the layout and allot the sites to its members. 

22. In order to compensate the complainant the award of interest at 24% as sought is on the higher side.  Hence this commission is of the view that awarding of interest 9% p.a., from the date of receipt of each payment by the OP society would meet the ends of justice.  The OPs have received the hard earned money from the member/complainant during 2011 to 2012.  Hence the complainant is entitled for 9% interest.  The complainant is also entitled for compensation of Rs.1,00,000/- and litigation cost of Rs.20,000/-.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

23. 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. OPs are directed to refund Rs.9,03,010/- with interest @ 9% p.a., from the date of receipt of each payment till realization.
3. OPs are further directed to pay Rs.1,00,000/- as compensation with litigation expenses of Rs.20,000/- to the complainant.
4. The OPs shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.9,03,010/- till final 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 09^TH day of SEPTEMBER, 2024)

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

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