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

DATED 28^TH DAY OF OCTOBER 2024

COMPLAINT No.05/2024

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 give any alternative site of similar dimension in any of the layout formed by the OP near Mandibele to the complainant.
2. In the event of the OP not coming forward to allot any other alternative site to the complainant or to direct to return the advance installments amount of Rs.5,00,000/-  and to pay 25% annual compound interest from the date of remittance of advance amount till the date of return of the amount.
3. Direct the OPs to pay damages of Rs.2,00,000/- to the complainant.
4. Grant such other relief as this Commission deems fit.

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

The complainant become the member to the OP society vide membership No.33/80 and paid an amount of Rs,2,00,000/- through cheque dated 26.11.2014 for allotment of site measuring 60X40 feet in Sy.No.142 & 201 at Mandibele Village, Vijipura Hobli, Devanahalli Taluk, Bangalore Rural District. As per the demand the complainant has paid Rs.3,00,000/- through cheque dated 25.03.2015.  Totally complainant has paid Rs.5,00,000/- to the OP for which OP acknowledged the same.

3.  The complainant further submits that the OP has issued letter dated 30.05.2019 to pay the remaining amount and in the same letter confirmed that the conversion of land and same has been approved by BIAPPA and the formation and registration of 30 sites been done and now remaining around 50 sites are available for allotment and registration and the same will be allotted on priority basis.  The OP did not confirm that, on what priority basis they are going to allot the site and even after converting 10 acres land for residential purpose and BIAPPA approval order, still the OP developed and formed only around 80 sites.
4.   After collecting the substantial amount, the OP did not come up with positive response and still want more money rather than comply as per their assurance given at the time of booking. When the complainant approached the OP they gave vague and irrelevant answer and even mislead the complainant by stating that soon they clear the formation and distribute the sites. The complainant has given request letter dated 23.10.2020 and on 08.02.2023 but the OP have not at all complied the request of the complainant. Hence this complaint.
5. 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 same is liable to be dismissed in limine.
6. The OPs have admitted that the complainant is a member of the society and they have received Rs.5,00,000/- from the complainant.
7. It is the specific contention taken by the OP that they have issued the letter to the complainant on 30.05.2019 stating that to pay the remaining amount and layout made by developer is approved by BIAPPA and in the same layout 30 sites are already been sold and the remaining 50 sites are available for registration and same will be allotted and registered priority basis. They have clearly stated in the letter that

“ಮಾನ್ಯ ಸದಸ್ಯರುಗಳು ಮೊದಲು ಬಂದು ಹಣ ಪಾವತಿಸಿದ ಆದ್ಯತೆ ಪರಿಗಣಿಸಿ ನಿವೇಶನ ನೊಂದಾಯಿಸುವ ಉದ್ದೇಶದಿಂದ ಸದಸ್ಯರು ಕೂಡಲೇ ಸಂಘವನ್ನು ನೇರವಾಗಿ ಸಂಪಕಿಸಿ ಎಂದಿರುತ್ತದೆ.”

It means who have paid full site amount to the OP society will consider priority.

8. The OP further admitted about the letter given by the complainant on 23.10.2020 and 08.02.2020 to their society.  The complainant has not paid the full site cost of Rs.18,00,000/- as applied for the site measuring 60X40 feet till today.  Therefore she did not get the priority.
9. It is further case of the OP that the complainant did not ask this OP for refund of the site amount. If the complainant approached this OP genuinely through letters the same should have bear the seal of the OP society.  This OP society is a housing co-operative society and the amount paid by the complainant is a site deposit but not a fixed deposit. Therefore this OP is not liable to pay interest claimed by the complainant. There is no deficiency or unfair trade practice as alleged by the complainant. The complainant is also having remedy under the provisions of Karnataka Co-operative Societies 1959 and rules 1960 to file dispute u/s 70 against this OP.  This complaint is not maintainable. Hence prayed for dismissal of the complaint.
10. The complainant has filed his affidavit evidence and relies on 6 documents.  OPs have also filed their affidavit evidence but not filed any documents.
11. Heard the arguments of the complainant and perused the written arguments and documents filed by the complainant. Though sufficient time was given to the OP to address their arguments, they have not appeared nor have filed any written arguments. Hence arguments of OP is taken as nil.
12. 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?

13. 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

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 and written arguments and documents filed by the complainant. 
15. The complainant filed his affidavit evidence and relied on Ex.P1 to P6. Ex.P1 & 3 are the copy of the receipts, Ex.P2 and 4 are the copies of the cheques, Ex.P5 is the reminder letter dated 30.05.2019 and Ex.P6 is the copies of request letter dated 23.10.2020 and 08.02.2023.
16. On the other hand OPs have also filed their affidavit evidence but not submitted any documents.  
17. It is undisputed fact that the complainant became the associate member of the OP society and OP society has allotted the membership. The complainant has paid a sum of Rs.5,00,000/- as per Ex.P1 to 4.  

18. The main grievance of the complainant is that even though he has paid the advance sale consideration to the OPs from 2014 to 2015 itself but the OPs still have not allotted any site 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.  
19. 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 but the complainant has not paid the entire amount of Rs.18,00,000/- as she applied for the site measuring 60X40 feet.  The complainant did not ask for refund of the site amount. She has created the letters as per Ex.P6.  these OPs are housing co-operative society and the complainant has paid the amount as a site deposit and hence they are not entitle to pay any interest.  They have already paid the amount to the developer.   
20.   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 is really interested in allotting the sites in order to safeguard 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.  
21. Even though the OPs have examined their witness have not at all produced any document to show that they are ready to allot the site in favour of the complainant after received the entire amount.
22. Under these circumstances, we feel it is necessary to allow this complaint directing the OP to refund the amount of Rs.5,00,000/- with interest @ 9% pa., from the date of respective payment 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.
23. 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.5,00,000/- 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.5,00,000/- from the date respective 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;