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

DATED 23^RD DAY OF FEBRUARY 2023

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:-

(a) Allot a site measuring 40 X 60 feet in the Nagruru Layout formed by the ITI Employees Housing Co-op Society Ltd., immediately.

(b)  Or alternatively, refund Rs.9,28,000/- along with penal compound interest @ 21% per year from the date of receipt of each payment made to the ITI Employees Housing Co-Op society ltd., immediately.

(c) Payment of compensation of Rs.10,00,000/- towards damages for deficiency of service, causing undue hardship, harassment and mental agony caused to the complainant.

Rs.50,000/- towards the cost of complaint to the complainant.

(d)  Grant such other relief.

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

It is the case of the complainant that she is the member of the OP society bearing membership No.IM 45014 vide receipt No.687 dated 06.12.2004 after remitted required fees.  The OP has released a circular dated 28.11.2004 inviting applications from its members for allotment of site in different dimensions in its newly formed layout located at Nagarur Village, Bangalore.  The complainant in response has applied for allotment of residential site measuring 40 X 60 feet on 20.12.2004 while she was in service in the company.  The complainant has remitted an amount of Rs.60,000/- to the OP society on 20.12.2004 and further paid an amount of Rs.1,00,000/- as demanded by the OP society on 30.12.2010. Again the complainant paid an amount of Rs.1,00,000/- on 30.04.2011 as per the demand made by the OP society and again paid an amount of Rs.2,00,000/- on 19.10.2011 and paid an amount of Rs.68,000/- on 20.10.2011.  The complainant further paid Rs.4,00,000/- on 05.04.2019. The complainant has paid total amount of Rs.9,28,000/- to the OP society towards sital value for allotment of residential site in Nagarur layout formed by them.

3. The OP have assured the allotment of site to the complainant within six months vide their circular dated 01.10.2010. The Ops have allotted totally 248 sites to the members on 19.12.20211. Even though the complainant was eligible for allotment of site measuring 40 X 60 feet she was denied allotment by the OP society without any valid reasons.

4. The Ops have also assured the complainant that the allotment will be done within next two months and they have continuously assured the complainant that the formation of the layout is in progress and they have demanded the payment towards the allotment and registration of the site on 23.11.2010.

5. When the OP have not allotted the site finally she got issued legal notice on 04.05.2022 to the OP for allotment of site and for registration of the same or otherwise to refund the amount with compound interest @ 21% with compensation of Rs.10,00,000/-.  The OP have sent a reply stating that no sites are available in Nagarur layout for allotment and agreed to refund the amount remitted without any interest.
6. The complainant has waited for 18 years looking forward to the allotment of the site by the OP but the complainant was shocked with the arbitrary and irresponsible reply given by the Ops.  Hence she has filed this complaint.

7. In response to the notice, OP appears and files version after lapse of 45 days and it was rejected by this Commission vide order dated 29.12.2022.

8. The complainant has filed her affidavit evidence and relies on 17 documents. 

9. Heard the arguments of advocate for the complainant and complainant filed written arguments with authorities. OP has also filed the written arguments.

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:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

12. 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 and documents 1 to 17 and written arguments filed by both the parties.

13. The complainant has reiterated all the allegations made in the complaint and also relied on 17 documents.  The complainant has produced the initial membership receipt dated 06.12.2004 as document No.1.  The circular issued by the OP inviting application for allotment of site dated 28.12.2004 as document No.2.  The complainant had applied for 40 X 60 feet dimension site and remitted Rs.9,28,000/- promptly on various dates commencing from 20.12.2004 and final payment on 04.05.2019 as demanded by the OP society.  The said amount was received by the OP and also acknowledged in their reply notice dated 03.06.2022 as per document No.16. As per the reply the OP has agreed to refund the principal amount of Rs.9,28,000/- and out rightly rejected the claim of the complainant for allotment of site, interest on the principal amount and compensation claimed by the complainant.

14. The complainant has appeared and led evidence through her power of attorney holder.  Even though the OP have received the entire amount from the complainant they have miserably failed to publish the seniority list and allot the sites ignoring the seniority of the members.  The OP have made the complainant to believe that at one or the other time they will allot their site.  Complainant has waited for more than 18 years by paying the entire sale consideration amount of Rs.9,28,000/-.

15. Even though the OP has failed to file their version have submitted their written arguments taking the contention that the complaint is hopelessly barred by limitation and the complainant is not a consumer and the OP society are not service providers within the meaning of C.P. Act.

16. The complainant became member of the OP society as per document No.1 and the OP society have received the amount vide receipt dated 06.12.2004.  The complainant became the member after receiving the membership fee by the OP from 06.12.2004 itself.  If the complainant is not a member of the OP society they would not have issued the circular Document No.2 and also they would not have received the amount towards allotment of site.  Even though the complainant has started making payment from the year 2004 itself till 2019 the OP neither allotted any site in favour of the complainant nor refunded the money. The cause of action for the complainant arises from 2004 till the OP have either allotted the site or refunded the amount and it is a recurring cause of action and hence the complaint is not barred by either limitation or for cause of action.

17. The complainant even though eligible for the allotment as per the seniority list the OP society have allotted sites to some other person without considering her seniority list.  

18. The complainant has sought for to direct the Ops to allot the site in the layout formed by them at Nagarur or in the alternative refund the amount of Rs.9,28,000/- with compound interest at 21% pa., from the date of receipt of each payment made to the society immediately and also for compensation of Rs.10,00,000/- and cost of litigation of Rs.50,000/-.  

19. When the sites are not at all available as per the contention taken by the OP in their written arguments it would be just and proper to direct the OP to return the amount of Rs.9,28,000/- deposited by the complainant to the OP society.  The complainant has deposited the amount from 20.12.2004 and final payment was made on 04.05.2019 as per the demand made by the OP society.  If such amount is deposited by the complainant in similar such projects could have earned more or got a site or flat of her dream in and around Bangalore city.

20. In order to compensate the complainant the award of interest @ 21% as sought is on the higher side.  Hence this Commission is of the view that awarding of interest at 16% p.a., from the date of receipt of each payment by the OP society would meet the ends of justice. The OP have received the hard earned money from the member/complainant in between 2004 and 2019.  Hence the complainant is entitled for 16% p.a., interest.  The complainant is also entitled for compensation of Rs.1,00,000/- and litigation expenses of Rs.10,000/-. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

21. Point No.3:- In view the discussion referred above 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.9,28,000/- with interest @ 16% p.a., from the date of receipt of each payment till realization.
3. OP is further directed to pay Rs.1,00,000/- as compensation with litigation expenses of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 18% p.a. after expiry of 60 days on Rs.9,28,000/- till final 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 23^rd day of FEBRUARY, 2023)

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

Documents produced by the representative of opposite party;

NIL