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

DATED 28^TH DAY OF OCTOBER 2024

COMPLAINT No.82/2024

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 OPs to register a site measuring 30X40 feet in the project named Akshayabrindhavan situated at Chikkajala/Maranayakanahalli, Jala Hobli, Bangalore North Taluk, Bangalore in favour of the complainant.
2. Or to direct the OPs to refund the advance amount of Rs.8,32,800/- with interest at 18% p.a., from the date of payment till its payment.
3. Direct the OPs to pay damages of Rs.5,00,000/- towards hardship and mental agony.
4. Direct the OPs to pay Rs.25,000/- towards the expenses for causing legal notice.
5. Direct the OPs to pay Rs.40,000/- as cost of legal expenditure.
6. For cost and grant such other reliefs as this Hon’ble Commission deems fit.

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

The complainant attracted by the advertisement of the OPs, has applied for a residential site measuring 30X50 feet in OPs project namely Akshayabrindhavan, situated at Chikkajala/Maranayakanahalli, Jala Hobli, Bangalore North Taluk, Bangalore and complainant become an associate member to the OP society by paying membership fee  of Rs.1,020/- vide Reg. No.A5322 on 02.02.2006 and paid a sum of Rs.1,80,000/- towards the site advance and further in total complainant has paid Rs.8,32,800/- in different dates.  The OPs have assured that the project will be completed within April 2014 as per BIAAPA norms.

3. Complainant further submits that though initially he has applied for site measuring 30X50 feet at the rate of Rs.374/- per sq.feet OPs refused to offer the site of that dimension and changed to 30X40 feet on the pretext that sites with the dimension 30X50 were not being offered in the aforesaid project. Hence complainant has agreed to purchase a site measuring 30X40 feet site in the said project.
4. During the receipt of each part payment the OP1 through OP2 promised to allot and register the site of 30X40 feet to complainant immediately upon payment of the entire cost of the site.  After paying the entire cost of the site whenever the complainant contacted and requested the OPs to register the site in the name of the complainant and gave some excuse or the other for the delay in registering the site in his name.  The complainant has been following and requesting the OPs for registration of the site.  Even after lapse of 17 years from the date of booking on 13 years from the date of entire cost of the site the OP1 have not yet registered the site in the name of the complainant.  
5. The OPs have cheated the complainant and collected Rs.8,32,800/-.  The complainants have paid the entire amount which is an hard earned money with a fond home that he will build the house there, but the OPs false and misrepresentation shattered his dreams of constructing his own house. The OPs stopped intimating the progress of the layout from 2013 onwards.  The action of the OP clear violation of C.P.Act and sec 406 and 420 of IPC and the same is actionable. At last the complainant has sent a legal notice dated 16.10.2023 and the same was received by the OP. Inspite of that the OP have neither issued any reply nor allotting the site. Hence the complainant has filed this complaint.
6. After issue of notice OPs appeared and filed their version. It is the case of the OPs 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.

7. The OPs have admitted that the complainant is a member of the society and this OP is ready to allot the site to the complainant in Akshayabrindhavan layout, and execute the sale deed in favour of the complainant within a short period if he paid the balance amount of Rs.4,27,200/-.

8. 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 Akshayabrindhavan layout, measuring 30X40 feet.

9. It is the specific case of the OPs that they have acquired the lands at Chikkajala Maranayakanahalli, Jala Hobli, Banglaore North, for formation of residential layout for the benefit of the members. They have got approved layout and has already submitted around 30 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.

10. It is further case of the OPs that the complainant has applied for allotment of site measuring 30X40, at stipulated cost of Rs.1,050/- per sq. feet, thus cost of the said site is at Rs.12,60,000/- but the complainant has paid only Rs.8,32,800/- and 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 30 acres in progress for layout. Due to difference between the land owners and developers the execution of sale deed were delayed. 
11. It is further case of the OPs 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 OPs have specifically denied the calculation made by the complainant 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.4,27,200/-.  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 OPs.  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.

12. The complainant has filed his affidavit evidence and relies on 8 documents.  OPs have also filed their affidavit evidence and relied on 3 documents.

13. Heard the arguments of both the parties and perused the written arguments and documents of both the parties.

14. The following points do 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?

15. 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

16. 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 and written arguments and documents filed by both the parties. 

17. The complainant filed his affidavit evidence and relied on Ex.P1 to P8. Ex.P1 is the copy of the circular, Ex.P2 is the copy of the receipts, Ex.P3 is the copies of letters, Ex.P4 and 5 are the letters dated 22.12.2007, 24.12.2008, Ex.P6 is the copy of change of site and escalated payment details, Ex.P7 is the copy of the letter dated 11.03.2008, Ex.P8 is the copy of the legal notice dated 16.10.2023.

18. On the other hand OPs have also filed their affidavit evidence and relied on four documents as Ex.R1 is the copy of the personal ledger, Ex.R2 is the copy of the Office memorandum, Ex.R3 is the copy of the layout plan.

19. It is undisputed fact that the complainant became the associate member of the OP society and OP society have allotted the membership. The complainant has paid a sum of Rs.8,32,800/- as per Ex.P3.  

20. The main grievance of the complainant is that even though he has paid the advance sale consideration to the OPs from 2006 to 2010 itself but the OPs still have not formed the layout and they are postponing the registration of the site and harassing this complainant without either refunding the amount or allotting a site and thereby they have committed deficiency of service and they are making unfair trade practice on their part.  

21. On the other hand the main contention taken by the OPs is that he is ready to allot the site in favour of the complainant if the complainant paid the balance amount of Rs.4,27,200/- and they are ready to execute the sale deed and put the complainant in possession of the site.

22. It is further case of the OPs that they have invested the amount received by the complainant and other members on lands for development of lands, formation of layout etc., and therefore this OP society have no financial capacity to refund the amount to any of its members or to give compensation. They are only ready to allot the site within six months if the complainant has paid the balance sale consideration of Rs.4,27,200/-. The complainant applied for the site measuring 30X40 feet at stipulated cost at Rs.1,050/- per sq.feet and the cost of the site is at Rs.12,60000/- but the complainant has paid only Rs.8,32,800/-.  The formation of the layout was delayed due to legal hurdles from government and also the issues in relating to the land owners and the society in acquiring the land and also getting the approvals from other authorities.

23. The OP society is not ready to refund the amount and they are only agree to allot the site after received balance amount from the complainant.  Ex.P3 are the copies of receipts issued by the OP society and they have shown amount received in installment by them. The complainant has paid total amount of Rs.8,32,800/- in installments.

24.   It is not the case of the OP that the site value was Rs.8,32,800/- at the time of allotment of the site in the year 2011.  Now the OP has taken the contention that the stipulated cost for site measuring 30X40 feet is Rs.1,050/- per sq.feet and the cost of the site is at Rs.12,60,000/-.  Except the Ex.R1 the OP have not at all produced any other document to show that they have fixed the site value of the complainant at Rs.12,60,000/- and Rs.1,050/- per sq.feet.  On perusal of the Ex.R1 it is clear that it is not at all bearing any date and the printout was taken by the OP according to their wish and will.  If the OP have increased or raised the value of the site nothing prevented them from informing the same to the complainant. 

25. The complainant has become the member of the society by paying the membership fee itself as per Ex.P2. He has made the payment as per the rate fixed by the OP.  The OPs have fixed the rate of site as per Ex.P1 Rs.374/- per sq. feet for its members. The OPs have now come up with this new contention that the cost of the site is fixed at Rs.1.050/- per sq.feet and total cost of the site measuring 30X40 feet at Akshayabrindhavan layout is Rs.12,60,000/- and now they are demanding the complainant to pay an amount of Rs.4,27,200/-.  

26. All these documents and the contention taken by the OP clearly discloses that they are not at all interested in performing their part of the obligations.  They have simply received the amount about 17 years back and now they are demanding the double the amount of the earlier cost fixed by them for site measuring 30X40 feet.  When the OP have never demanded the extra amount from the complainant, the complainant is not at all liable to pay any balance amount to the OP.  If the OP has formed the layout and really interested in safeguarding the interest of their members they would have made arrangements for allotment of the site after received the entire amount.  The conduct of the OP clearly discloses that they are practicing unfair trade practice and they have committed deficiency of service and negligence on their part.  

27. Even though the OPs have examined their witness and produced Ex.R1 to R3 they have not at all produced any document to show that they have formed the layout namely Akshayabrindavana the given address and the sites are ready for allotment and they are ready to register the site allotted in favour of the complainant. Except the sketch produced by the OP as per Ex.R3, there is no other document placed before this commission to show that the OPs have formed the layout Akshayabrindavana and the said layout is ready for allotment of the site and for registration.  The OPs have demanding more money from the complainant without forming and completing any layout as Akshayabrindavana and they are unable to allot any site in favour of the complainant.  The OPs are only interested in grabbing money from the public in the name of formation of layout and allotment of site. Even though they have not at all formed any layout and not at all allotting any site.

28. Under these circumstances, we feel it is necessary to allow this complaint directing the OP to refund the amount of Rs.8,32,800/- with interest @ 9% pa., from the date of respective payments till the realization of the amount.  The complainant is also entitled for litigation cost of Rs.20,000/-.  Hence we answer point No.1 in the affirmative and point No.2 party in the affirmative.

29. Point No.3:- In view the discussion referred above the complaint is liable to be allowed hence we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund Rs.8,32,800/- with interest at 9% p.a., from the date of respective payment till realization to the complainant.
3. OP is further directed to pay Rs.20,000/- to the complainant towards litigation expenses.
4. The OP shall pay this amount within three months from the date of this order in default to pay interest @ 12% p.a., on Rs.8,32,800/- from the date of payment till realization.
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 28^TH day of OCTOBER 2024)

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

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