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

DATED 15^TH DAY OF FEBRUARY 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;

1. Direct the OP to allot the site measuring 30X50 or alternatively to refund the amount of Rs.7,54,020/- to the complainant with interest at 18% p.a., towards amount paid by the complainant to the OP.
2. Direct the OP to pay compensation and damages of Rs.1,00,000/- to the complainant.
3. Direct the OP to pay Rs.50,000/- towards litigation expenses.
4. Grant such other reliefs.

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

The OP has given publication inviting general public to avail the benefit of purchasing land/site of different dimensions, near Devanahalli.  The complainant impressed by the catalogue and broachers approached the OP and after negotiation with the OP has agreed to purchase site measuring 30X50 feet in the layout formed by the OP.  Accordingly the complainant has submitted an application form along with payment of Rs.7,54,020/- through cheque dated 28.08.2017 in favour of the OP and the same was acknowledged by the OP. the complainant has become the member.

3. After that the complainant was regularly and continuously following with the OP and he was making enquiry about the progress of the layout. The OP has given an assurance that they would complete the project very shortly. Even after lapse of 6 ½ years the OP has neither allotted the site nor refund the money.  After that the complainant has given a representation on 22.04.2023 calling upon the OP for allotment of site or to refund the amount. Inspite of service of letter the OP has not issued any reply or complied the request of the complainant.  After that the complainant has got issued legal notice on 06.07.2023.  after service of notice the OP has issued a reply stating that they will allot the site as per the seniority of the members and no allotment will be done out of turn. They will refund the amount without any interest.  After that the complainant has filed this complaint.
4. After issue of notice OP appeared and filed their version submitting that the complaint is not maintainable and liable to be dismissed limine.
5. The OP has admitted about the membership of the complainant and the site booked by the complainant and also Rs.7,54,020/- paid by the complainant. Rs.4,000/- paid by the complainant is membership fee and it is nonrefundable.
6. It is the specific case of the OP that the OP allot the site as per the seniority of the members and no allotment will be done out of turn.  These aspects were explained to the complainant at the time of issuing the application form itself.  The complainant with ulterior motive is making untenable allegations. There is no time fixed to allot the site as the allotment will happen on seniority basis that to depending on several aspects.
7. The OP has further admitted about the legal notice issued by the complainant and also the initial deposit of Rs.7,54,020/-. The OP further stated that they are ready to refund a sum of Rs.7,50,000/- without any interest as this OP is not a profit making organization. The complainant was not ready to accept the refund and he has being restless and inpatient and not ready to wait for his turn demanding his money back with interest. There is no deficiency of service nor this OP practiced immoral practice as alleged by the complainant, the conduct of the complainant speaks in volumes about his falsification of the matters of fact. Hence the OP prayed for dismissal of the complaint.
8.  The complainant has filed his affidavit evidence and relies on 06 documents.  OP has filed their affidavit evidence and relied on 02 documents
9. Heard the arguments of both the parties.   Perused the documents filed by both the parties.
10. The following points 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?

11. Our answers to the above points are as under:

       Point No.1:  In the Affirmative

      Point No.2:  In the Affirmative

      Point No.3: As per final orders

REASONS

12. Point No.1 AND 2: Perused the complaint, version, affidavit evidence and documents of both the parties.
13. The complainant filed his affidavit evidence and relied on Ex.P1 to P6. Ex.P1 is the original receipt and Ex.P2 is the original letter given by complainant to OP for withdrawal of allotment of site and refund of the amount, Ex.P3 are the legal notice Ex.P4 is the postal receipt, Ex.P5 is the acknowledgment and Ex.P6 copy of reply notice.
14. On the other hand in order to prove their contention one of the Director of the OP namely Sri.Manjunatha, filed his affidavit and relied on Ex.R1 and R2. Ex.R1 is the extract of minutes of meeting authorizing him to appear in the court and Ex.R2 is the copy of the affidavit submitted by the complainant to the OP at the time of taking membership.
15. It is undisputed fact that the complainant became the associate member of the OP society on 04.10.2017 and paid total consideration amount of Rs.7,50,000/- with membership fee of Rs.4,000/- as per Ex.P1. When the OP have failed to allot the site or to refund the amount even after lapse of 6 ½ years the complainant has requested the OP either to refund the amount or to allot the site by sending a letter as per Ex.P2. Inspite of service of the letter OP has not given any reply after that the complainant has sent legal notice as per Ex.P3 and it was served on OP and they have issued a reply as Ex.P6 admitted the transaction.
16. OP have taken the specific contention that the allotment of the sites cannot be done within the stipulated time as the allotment process would depend upon several aspects like acquisition of land, conversion, layout approval and permission/sanctions from several statutory authorities.  These OP will allot the sites as per the seniority of members and no allotment will be done out of turn and the same was explained to the complainant at the time of issuing application form itself.  They are ready to refund the amount without any interest as they are not profit making organization.  The complainant being restless and inpatient and not ready to wait for his turn and demanding his money back.  The complainant refused to receive the refund amount from the OP without interest.  The complainant has filed this complaint just to harass this OP.
17. The complainant cannot wait for an indefinite period after payment of entire sale consideration amount towards the site.  The OP is under the obligation to allot the site within the stipulated period after they received the entire amount.  It is their duty to get the proper conversion, approval and permissions and sanctions from the statutory authorities before they calling the general public for purchase of the sites. The OP cannot retain the amount by giving one or the other reasons without allotting the site and without refunding the amount.
18. If the complainant has invested the amount paid to the OP in the year 2017 in any of the other projects or in the bank he would have got the site or the interest on the said amount. The OP have neither returned the amount nor allotted the site and thereby caused deficiency of service and also unfair trade practice on their part. If the OP are not in a position to form the layout after obtaining the permissions from the competent authority they would have return the amount to the complainant. Under these circumstances, the complainant has sustained mental agony, financial loss and he was made to approach the Commission by filing this complaint. The complainant is also seeking for the relief to direct the OPs to allot the site measuring 30X50 feet or in the alternative for refund of the amount with interest and compensation.  The OPs may be directed to allot the site if the sites are available to the complainant. Therefore the complainant has clearly established the deficiency of service and hence he is entitled for the relief claimed in the complaint. Hence we answer point No.1 and point No.2 in the affirmative.
19. Point No.3:- In view the discussion referred above the complaint is liable to be allowed with direction to the OP to allot the site or in the alternative refund the sale consideration amount of Rs.7,54,020/- with interest at 12% p.a., from the date of respective payment till realization and further OP is directed to pay the compensation of Rs.1,00,000/- with Rs.10,000/- litigation charges to the complainant within three months from the date of this order.  we proceed to pass the following;

O R D E R

1. The complaint is allowed.
2. OP is directed to allot the site measuring 30X50 feet if available within three months from the date of this order or to refund the amount of Rs.7,54,020/- with interest at 12% p.a., from the date of respective payment till realization to the complainant.
3. OP is further directed to pay the compensation of Rs.1,00,000/- with Rs.10,000/- litigation charges to the complainant.
4. The OP shall comply this order within three months from this date, failing which the OP shall pay interest at 14% p.a. on Rs.7,54,020/- paid by the complainant after expiry of three months till 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 15^TH day of FEBRUARY, 2023)

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

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