Date of filing:18.05.2017

                                                               Date of Disposal:20.02.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 20^th DAY OF FEBRUARY, 2023

CONSUMER COMPLAINT NO.1082/2017

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Smt.Dhanalakshmi N,

W/o Nandagopal,

Aged about 50 years,

R/at No.127, 9^th cross,

Bengaluru-560 018. ……COMPLAINANT

Rep by Sri.M.S.Nagaraja, Advocate

M/s The Balaji Promoters (R),

Partnership Firm,

Having its office at:No.1,

R.K.Complex, Shop No.4,

Byatarayanapura Bus Stand,

Bengaluru-560 026,

Rep by its Managing Partners.……      OPPOSITE PARTY

Sri.M.V.Naveen Reddy, Advocate

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint under Section-12 of Consumer Protection Act, 1986 seeking for a direction to the opposite party to execute the sale deed in respect of the schedule property in favour of the complainant in terms of receipt-cum-possession certificate dt.23.05.1997 and such other reliefs as this commission deems fit in the circumstances of the case.

2. The schedule property is the site bearing No.728 and Katha No.27/1A4, measuring 40 X 30 Feet with boundaries. 

3. It is not in dispute that the opposite party being the Promoter has executed a sale deed in respect of site No.655 on 23.05.1997 by receiving the entire sale consideration amount out of the scheme.  Further, it is not in dispute that the complainant continued to be a member on the instalment basis of the scheme in respect of site No.728.  It is not in dispute that at the first instance the BDA has chosen to acquire the land bearing Sy.No.27/1A4 for formation of Nadaprabhu Kempe Gowda Layout as per the preliminary notification dt.21.05.2008 and subsequently the same has been dropped in the final notification dt.18.08.2020.  Further, it is not in dispute that the complainant has issued a legal notice dt.07.03.2017 and the opposite party had replied for the same as per reply dt.25.03.2017.

4. It is the further case of the complainant that the complainant had paid entire amount as per the terms and conditions of the scheme in respect of the site No.728 and had issued possession certificate in respect of site No.728 in favour of the complainant by receiving initial payment of Rs.12,000/- vide certificate dt.23.05.1997.  Further, in spite of payment of the amount, the opposite party had failed to execute the sale deed in terms of the certificate issued by the opposite party.  Further, the opposite party had postponed the execution of the sale deed in respect of the schedule property on the reason that, the BDA has acquired the land bearing Sy.No.27/1A4 for the purpose of formation of the proposed Kempegowda Layout, and after de-notification of the land the opposite party had formed the layout in the said land and allotted the site to the members who have registered for purchase of the site.  Further, even though the opposite party had executed a sale deed in respect of another site in favour of the complainant, the opposite party had failed to execute the sale deed in favour of the complainant in respect of the schedule property.   Further, even though the complainant had requested the opposite party repeatedly to execute the sale deed in respect of the schedule property, the opposite party has dragged the execution of the sale deed under one pretext or the other and for the legal notice issued by the complainant to the opposite party, the opposite party had issued evasive reply.  Hence, the complaint came to be filed.

5. It is the further case of the opposite party that as per the terms and conditions of the scheme, the scheme was closed during the year 2000.  Further, the complainant has become the member on 21.05.1997 at the belated stage of scheme for acquiring site No.728 in the residential layout formed by the opposite party in the layout called as Basaveshwara Nagar by paying initial deposit of Rs.12,000/- and the three months instalment amount of Rs.3,000/-.  Further, the scheme was a monthly instalment scheme for a period of 40 months.  Further, as per the terms and conditions of the scheme, the member shall pay an amount of Rs.12,000/- as initial deposit and shall pay a sum of Rs.1,000/- every month and shall further pay a sum of Rs.8,500/- for 10^th, 20^th, 30^th and 40^th month respectively.  But the complainant neither complied with the mandatory terms and conditions of the scheme nor paid the entire scheme amount totalling to a sum of Rs.86,000/-.  Hence, the complainant was a chronic defaulter in payment of regular instalments.  Further, the complainant had paid only an amount of Rs.77,500/- in irregular instalments and her last payment was on 15.06.2000.  The complainant has not paid an amount of Rs.8,500/- for the 40^th month which the complainant shall be liable to pay as per the terms and conditions of the scheme.  Further, the complainant had deliberately failed to pay the agreed instalments and had filed the present complaint with baseless allegations.  Further, in spite of repeated demands, the complainant did not pay the agreed instalment amount.  Further, immediately after completion of the scheme the opposite party has intimated the complainant through telephone to pay the arrears or else to receive the amount paid by the complainant if she is not interested in getting the sale deed in her favour by paying the last instalment amount of Rs.8,500/-.  But the complainant never turned up to get the registered sale deed in her favour immediately after the demand been made by the opposite party.  Hence, there is no deficiency of service on the part of the opposite party. 

6. To prove the case, the complainant (PW1) has filed affidavit in the form of her evidence in chief and got marked EX.P1 to P8 documents. The Partner of opposite party has filed affidavit in the form of his evidence in chief and produced documents. 

7. Counsels for both the parties have filed their respective written arguments. 

         8. The points that would arise for consideration are as under:

i) Whether there is deficiency of service on the part of the opposite party ?

   ii) Whether the complainant is entitle for the 

    compensation as sought ?

    iii) What order ?

  9.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

10.POINT NO.1:- The complainant (PW1) and partner of opposite party(RW1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  It is the contention of the learned counsel for the opposite party that in total the complainant had paid only an amount of Rs.77,500/- in irregular instalments and made for last payment on 15.06.2000 and the complainant has not paid an amount of Rs.8,500/- for the 40^th month.  It is the contention of the learned counsel for the complainant that he had paid entire amount.  The only contention of the opposite party is that the complainant did not pay the balance amount of Rs.8,500/-.  On perusal of EX.P1 extract of bank pass book, it appears that on 06.11.1999 the complainant has paid Rs.8,500/-.  Further, the complainant has also produced the certified copy of the receipt dt.06.11.1999 issued by opposite party for having received Rs.8,500/- pertains to site No.728.  Hence, there is no merit in the contention of the learned counsel for the opposite party that the complainant has paid the balance amount of Rs.8,500/-.

11. It is the further contention of the learned counsel for the opposite party that the scheme was closed during the year 2000.  It is the further contention of the learned counsel for the complainant that after the de-notification been issued by BDA the opposite party had formed the layout in the said land and allotted the site to its members who have registered for the purchase of the site.  The final notification in dropping the acquisition was made on 18.08.2010.  It is the further contention of the opposite party that the complainant has become the member on 21.05.1997 at belated stage of scheme for acquiring site No.728 in the residential layout formed by opposite party in the layout called as Basaveshwara Nagara.   The complainant did not produce any documents to substantiate that the opposite party had allotted the site to the members who have registered for purchase of site after the proposed acquisition of land was de-notified.  Further, the complainant did not produce any document to prove that still sites are there for registration and the layout plan.  Hence, the opposite party cannot be directed to execute the sale deed.

12. This complaint was filed on 18.05.2017.  Since the complainant has paid the consideration for the site, he was under an expectation that the opposite party may allot the site.  Further, according to the opposite party, the last payment was made on 15.06.2000 and the de-notification was issued on 18.08.2010.   Hence, since there is a continuous cause of action there is no delay as such in approaching this commission.   

13. It is the further contention of the learned counsel for the complainant that if there was balance of Rs.8,500/-, the opposite party could have issued notice calling upon the complainant to pay the same.    Further, one of the conditions with the application for membership is that in case the member fails to pay the instalment for a continuous period of 3 months his membership could be terminated and after 40 months the instalment paid would be refunded.  In the case on hand, no such refund has been made.  Further, the object of the complainant become the member in the opposite party was to obtain a site, that has not been fulfilled by the opposite party as per the assurance made.  Hence, there is deficiency of service on the part of the opposite party and the act of opposite party amounts to unfair trade practice within the meaning of Section-2(1)(r) of Consumer Protection Act, 1986.  Accordingly, we answer this point in affirmative.

14.POINT No.2:- The complainant claimed for a direction to the opposite party to execute sale deed.  For the above said reasons, the said direction cannot be issued.  Further, the complainant claimed compensation of Rs.5,00,000/-. We feel the complainant is entitled for the refund of amount paid of Rs.86,000/-.  Since the last payment was made on 15.06.2000 from the said date the complainant is entitle for interest at the rate of 9% p.a, since the opposite party had attained the money of the complainant and it amounts to unjust enrichment which is opposed to law as contemplated under Indian Contract Act.  Further, even though the complainant had paid the amount to have a residential site, the opposite party neither allotted the site nor refunded the amount even though refund has to be made as per the terms and conditions mentioned in the application form submitted for membership. Hence, the opposite party has to pay a sum of Rs.30,000/- towards mental agony.  Further the activity of the opposite party made the complainant to issue notice vide EX.P7 and to approach this commission.  The opposite party instead of complying the notice had issued evasive reply.  Hence, the opposite party has to pay a sum of Rs.10,000/- towards litigation fee.    Accordingly, we answer this point partly in affirmative.

15.POINT NO.3:- In view of the discussion made above, we proceed to pass the following;

The complaint is allowed in part.

The opposite party is directed to pay Rs.86,000/- to the complainant with interest at the rate of 9% p.a. from 15.06.2000 till realization and shall pay a sum of Rs.30,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost. 

The opposite party shall comply the order within 30 days.   In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.40,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 20^th day of February, 2023)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainants side:

Smt.Dhanalakshmi N, the complainant has filed her affidavit.

Documents marked for the complainant side:

1. Pass book issued by opposite party in favour of complainant in respect of site No.728.
2. The 35 receipts bearing different dates issued by the opposite party for having received money from complainant.
3. The acknowledgements two in numbers issued by BDA.
4. Residential site on monthly installment scheme in respect of site No.728.
5. The receipt cum possession certificated dt.23.05.1997 in respect of site No.728 issued by the opposite party
6. The copy of the legal notice dt.07.03.2017 got issued by the complainant to the opposite party through her advocate. 
7. The reply notice got issued by the opposite party dt.25.03.2017 through her advocate.

Witness examined for the opposite party side: 

Sri.D.S.Venugopal, Partner of opposite party has filed his affidavit.

Documents marked for the Opposite Party side:

1. Xerox copy of Membership applications (2 in numbers).

2. Copies of counter foils of receipts (33 in numbers).

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•