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

DATED 06^TH DAY OF AUGUST 2024

COMPLAINT No.370/2023

ORDER

SMT.M.SHOBHA, PRESIDENT

The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP directing jointly and severally to refund the amount of Rs.4,51,690/- with interest at 18% p.a., on the date of execution of the sale deed 02.03.2013 till realization ad further direct the OPs to pay compensation of Rs.20,00,000/- towards financial loss and also mental agony suffered by complainant along with litigation cost of Rs.70,000/-.

Direct the OP1 for allotment of alternative site in favour of complainant and to pass any other order as the Hon’ble commission may deem fit and proper in the facts and circumstances in favour of the complainant be passed.

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

The OP2 has formed the layout in Kuberanandasagar layout, Phase 1 in Maidhnahalli Village, Ilwala Hobli, Mysore Taluk which is coming under Koorgahalli Gramapanchayat.  It is purely Gramathana sites which are formed and planned by the local Grama Panchayat and the layout is not approved by MUDA. The OP1 had informed the complainant that the layout is approved by MUDA and accordingly the complainant has choosen site NO.72 and agreed to take the site in the ongoing project.

3. The complainant has made part payment and OP1 had issued allotment letter on 26.02.2013 and OP1 has not complied the site allotment letter conditions and promises to the members of the society.  The complainant has paid third and final payment on 12.02.2013 of Rs.1,48,800/-.  After that the OPs have jointly executed the sale deed in favour of the complainant on 02.03.2013.
4. After execution of the sale deed the complainant obtained the khata and accordingly the Koorgalli Grama Panchayath, Mysore taluk has issued form-09, Form 11 and Form No.12 and OP1 has issued possession certificate on 20.06.2013.  After that the complainant has approached many banks for raising loan on site No.72 for construction but all the banks have refused to sanction the loan.  After that the complainant has visited the location on July 2023 to Kuberanandasagar layout phase 1 project at Maidanahalli Village and for her shock and surprise there was no existence of the layout.  After enquiry the complainant came to know that it is under litigation and hence the layout is not formed. Therefore the OPs have committed unfair trade practice and defective service to the complainant.
5. The OPs have illegally got registered the sale deed without getting any planning approval layout and misguided the complainant and fraudulently obtained Rs.4,23,000/- total consideration amount for site No.72.  In view of this the complainant has suffered mental agony, huge financial loss. The complainant has also got issued legal notice on 16.08.2023 and the same was served on the OPs but the OPs failed to reply. Hence the complainant has filed this complaint.
6. After issue of notice OP1 has filed his version. Though OP2 has appeared before this commission but failed to file version even after lapse of 45 days, hence version of OP2 is taken as not filed.
7. It is the case of the OP1 that the complaint is not maintainable and hopelessly barred by time from the date of execution of sale deed. The complainant has not approached this commission within two years. This commission has no jurisdiction to entertain this complaint and it is liable to be dismissed.
8. The OP1 has admitted about the transaction of allotment of site to the complainant and also execution of the registered sale deed in favour of the complainant after received the entire sale consideration amount. The OP1 further admitted about issue of possession certificate on 20.06.2013 in respect of site No.72 at Kuberanandasagar layout.  
9. The OP has further denied all other allegations made in the complaint. It is further case of the OP1 that they have already registered the site as per the seniority.  This OP is not liable to pay any interest on the amount claimed by the complainant.  This OP has no money to refund the amount to the complainant as the sale price amount received by this OP society has been invested in the lands, development of lands, formation of layouts etc., and the OPs have no financial capacity to refund the same to any members.  The amount collected by the OP society is a public money and if the complainant and others approach for refund of the said amount, definitely developmental works of the society will be automatically struck off. This OP has already allotted the site to the complainant and it is not for refund of advance consideration after lapse of 10 years from the date of last payment.  This transaction is not a commercial transaction. There is no deficiency on the part of this OP since they have already registered the site in favour of the complainant. Therefore OP1 prayed for dismissal of the complaint.
10. The complainant has filed her affidavit evidence and relies on 11 documents.  OP1 has filed his affidavit evidence and relied on 02 documents.  Though sufficient time was given to the OP2 to lead their evidence, they have not filed any evidence. Hence evidence of OP2 is taken as nil. Heard the arguments of the complainant and perused the written arguments and documents filed by the complainant and OP2.
11. 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?

12. 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

13. 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. 

14. The complainant filed his affidavit evidence and relied on Ex.P1 to P11. Ex.P1 is the original allotment letter, Ex.P2 is the sale deed, Ex.P3 is the original copy of Form-09, 11 and 12, Ex.P4 is the original possession certificate, Ex.P5 to 7 are the original payment receipts, Ex.P8 is the original legal notice, Ex.P9 is the postal receipt, Ex.P10 is the postal acknowledgement and Ex.P11 is the tracking record of consignment by postal department.

15. The President of OP1 filed his affidavit evidence and reiterated all the allegations made in the version and produced two documents. Ex.R1 is the copy of the ledger extract and Ex.R2 is the copy of the registered sale deed executed in favour of the complainant.

16. It is undisputed fact that the complainant became the member and she was allotted site No.72 by the OP society and after received full consideration amount, they have executed the registered sale deed as per Ex.P2 and R2 on 02.03.2013. The complainant has paid a total consideration amount Rs.4,51,690/- including registration charges.  The OP1 and 2 have allotted the site No.72 in favour of the complainant in the residential layout name Kuberanandasagar Phase I at Maidanahalli village, Ilawala Hobli, Mysore Taluk measuring 111.63 sq.mtrs.

17. It is the main grievance of the complainant that after purchase of the site she has tried to raise loan on the site and approached various banks but the banks have refused to sanction the loan on the site. When the complainant has visited the site location in July 2023 to her shock and surprise there was no existence of the Kuberanandasagara layout plan Phase I. after verification the complainant came to know that layout was not formed due to the litigation. After that she has tried to recover the amount from the OPs by issuing legal notice and also making several demand but the OPs refused to settle the matter.

18. On the other hand the contention taken by the OP1 is that they have executed the absolute sale deed in favour of the complainant and they are not at all ready to refund the amount since they have executed the sale deed. The amount collected by their society is public money and they have no other source of income for development of the land. The complaint is barred by limitation.

19. On the other hand the contention taken by the OP2 is that the site No.72 is carved on Sy.No.127/2 measuring 7 acres 29 guntas of Maidanahalli, Ilwala Hobli. They have developed the said layout and formed the site as per the approved plan. This being the fact one Smt.Puttamma and others have filed a suit in O.S.No.485/2012 before the III Addl Senior Civil Judge at Mysore. Now the suit came to be compromised and the suit was disposed off on 20.01.20224 in terms of compromise petition. In view of the disposal of the suit this OP2 became the absolute owner of the entire land without any disturbance.

20. Now the OP2 has started the development of land to the original stage and it is under process. They are doing underground drainage work, underground water line work to each site, erection of electricity poles has been done and on the roads asphalting work is pending and in the next six months the land will be restored to its original stage as sites for residential purpose. Due to the aforesaid reasons and in view of the pendency of the suit this OP2 was not able to keep the original stage of site NO.72 of Kuberanandasagar layout, due to the aforesaid bonafide reasons and pendency of civil suit this OP2 was not able to keep the original stage of site No.72. Now the dispute is resolved and they will complete the entire layout work within six months and hand over the site in favour of the complainant.  They have relied on the memo filed in O.S.No.482/2012 filed by both the parties for dismissal of the suit as not pressed and the copy of the order sheet of the said O.S.482/2012.

21. In view of the above facts and circumstances it is clear that the complainant has got the registered sale deed in respect of site No.72 which was allotted by the OP1 and 2. In view of the pendency of the civil suit the OPs were unable to complete the formation of the layout and now the suit No.482/2012 was disposed off on 20.01.2024. The OP2 has taken the formation work and according to them they will complete the formation of layout within six months and hand over the site to the complainant.

22. When the complainant has got the registered sale deed in her favour this commission cannot order for refund of the consideration amount without cancellation of the registered sale deed from the OP1 and 2. When the OP1 and 2 are ready to hand over the site No.72 in favour of the complainant after completion of the formation work we feel it is necessary to direct the OP1 and 2 either to hand over the possession of site NO.72 in favour of the complainant or to allot an alternative site for the same consideration amount in the fully developed layout.  In default it is necessary to direct the OPs to refund the amount in favour of the complainant after taking the cancellation deed from the complainant. The OPs have committed deficiency of service and unfair trade practice in allotting and registering the site No.72 in favour of the complainant even though they have not at all formed the layout in kuberanandasagar layout Phase I. 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 and hence we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OPs are directed to hand over the possession of site No.72 in favour of the complainant within three months from the date of this order. If the site NO.72 is not ready for handing over possession the OPs are directed to allot an alternative site in the fully developed layout in favour of the complainant.
3. If the OP1 and 2 are failed to hand over the possession of the site or to allot the alternative site in favour of the complainant in a fully developed layout they are liable to refund Rs.4,51,690/- in favour of the complainant with 9% interest from the date of execution of the sale deed 02.03.2013 till realization after obtaining proper cancellation deed from the complainant.
4. OP is further directed to pay Rs.20,000/- towards litigation charges to the complainant.
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 06^TH day of AUGUST, 2024)

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

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