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

DATED 01^ST DAY OF AUGUST 2022

   ORDER

SRI.K.S.BILAGI, PRESIDENT

          Complainant seeks an order to direct the OPs to refund Rs.1,96,000/- with interest at 18% p.a., from 27.03.2007, compensation of Rs.1,00,000/- and litigation charges of Rs.30,000/-. 

2.       The complainant having applied for allotment of site measuring 30 X 40 feet in Sukananda sagar Layout, Belavadi village, by paying Rs.1,96,800/-  against the total cost of Rs.2,60,400/-.

3.       The complainant has paid Rs.60,000/- on 14.08.2016, Rs.68,400/- on 25.06.2007 and Rs.68,400/- on 24.01.2007.  after receiving the huge amount, the OPs neither come forward to allot the site nor agreed to refund Rs.1,96,800/-.   Complainant gave representation on 19.11.2018 and 28.11.2019 OPs failed to comply his request. There is a deficiency of service on the part of the OP.  Hence this complaint.

4.       After receipt of notice, OPs appeared and filed version. They contended that the complaint is barred by limitation and complaint is not maintainable.  The OPs are right to allot site to the complainant in Sukhananda Sagara layout, by executing registered sale deed.  OP has already submitted around 98 acres of land for conversion and OPs did perform Bhoomi pooja in the year 2007.  Complainant becomes associate member of OP society and there is no delay with a malafide intention either to allot the site or to refund the amount.

5.       The OPs further contended that the OP society already allotted sites to its members.  There is no delay on the part of the OP to allot the site.  The sites are going to be allotted on the basis of seniority list.  If the complainant pays the balance amount of Rs.1,28,400/- site will be allotted to the complainant. They request to dismiss the complaint.

6.       The complainant files affidavit evidence and relies on documents.  OPs have filed affidavit evidence of its secretary and relies on one document. Heard the arguments and perused the records.

7.       The points that would arise for our consideration are as under:-

1. Whether the complainant proves deficiency of service on the part of the OP?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What  order?

8. Our answer to the above points are as under:

       Point No.1:- Affirmative in part

      Point No.2:- Affirmative in part.

       Point No.3:- As per the final order.

                                      REASONS

9.      Point No.1 AND 2:    The complainant has reiterated the facts pleaded in the complaint and relies on 13 documents.  OPs have relied on affidavit evidence of their secretary in support of their contention.

10.     It is proved from annexure A1 to A10 that the complainant made a payment of Rs.1,020/- towards share and society membership fees and complainant also paid Rs.60,000/- on 14.08.2006, Rs.68400/- on 25.06.2007 and Rs.68,400/- on 24.01.2007.  The OP issued a notice dated 20.05.2007 calling the complainant to pay second installment of Rs.68,400/-.  Accordingly complainant has paid second installment amount of Rs.68,400/- on 24.01.2007 and on 19.11.2018 the complainant by issuing notice called upon the OP either to allot the site or refund Rs.1,96,800/-.  Similarly the complainant has issued letters as per annexure 12 and 13 calling the OPs either to allot the site or to refund the amount. But OPs have not responded.

11.     Ex.R1 is the ledger extract.  OPs do not dispute the payment of Rs.1,96,800/-.  According to the OPs they are ready to allot the site subject to payment of balance of amount of Rs.1,28,400/-.  Even though OPs contended that the sites are available and sites will be allotted on the basis of seniority.  Except self serving say of the OPs, no evidence is adduced by the OPs that OP got developed the sites and allotted the sites on the seniority basis.  OPs have not produced any evidence to how many members the sites are allotted and what is the waiting number of the complainant. Except bold say of the OP nothing on record to accept the say of the OP that they have developed the sites and release the sites to its members on the basis of seniority.  The vague contention of the OP cannot be appreciated.

12.     In fact the complainant proves deficiency of service on the part of the OP.  complainant relies on following decisions;

1. 2015 4 CPR(NC) 34 in the matter between Swarn Talwar & others –vs- Unitech Ltd.,
2. Decision of State Commission, Delhi in CC No.418/2015
3. Decision of National Commission reported in 2015 2 CPJ(NC) 568 in the matter between Emaar MGF Land Limited & another –vs- Amit Puri

13.     We carefully perused the facts and ratio involved in the above decision.  The OPs have not produced any evidence above the development of the sites and allotment of the sites on the basis of seniority of the members.  The non production of this material facts, an adverse inference can be drawn against the OPs.  The OPs without allotting the site have retained the deposited amount.  The OPs are not legally correct in retaining the amount of the complainant.  Under such circumstances, OPs are liable to refund Rs.1,96,800/- to the complainant.

14.     The complainant claims interest at 18% p.a., the compensation of Rs.1,00,000/- and Rs.30,000/- towards cost of litigation.  But there is no privity of contract between the complainant and OPs with regard to payment of interest at 18% p.a., on the amount of Rs.1,96,800/- paid by the complainant to OP in three installments.  The amount is lying with OP since 14.08.2006 to 25.06.2007.  the OP has no right to retain this amount without paying interest.

15.     The Hon’ble Supreme Court of India had an occasion to grant interest at 9% from the date of respective payment till realization in the decision reported in 2022(2) CPR 1(SC) in Civil Appeal No.6044/2019 in the matter between Experion Developers Pvt. Ltd., -vs- Sushma Ashok Shiroor  with Civil Appeal No.7149/2019 dated 07.04.2022.

16.     In view of this decision and in the absence of privity of contract between the parties, it is proper to award interest at 9% p.a., on the amount paid from the respective dates of payment till realization as a compensation.  When we are awarding the interest at 9% p.a., the complainant is not entitle to compensation.  The claim of cost of Rs.30,000/- is exorbitant.  The complainant has not paid any court fee but he has engaged the service of advocate.  Therefore the cost of litigation is quantified at Rs.10,000/-. Accordingly we answer point NO.1 and 2 partly in affirmative.

17.     POINT NO.3: In view of the discussion referred above, complaint requires to be allowed in part.  OPs are liable to refund Rs.1,96,800/- with interest at 9% p.a., from the date of payment till realization and Rs.10,000/- towards cost of litigation. In the result, 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.1,96,800/- with interest at 9% p.a., from the date of respective payment till realization and litigation cost of Rs.10,000/- to the complainant.
3. The OPs shall comply this order within 60 days from the date of this order failing which the OP shall pay interest at 11% p.a., after expiry of 60 days from this date till realization.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 01^ST day of August, 2022)

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

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

1. Ex.R1: Copy of ledger extract

HAV*