BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.96/2017

DATED ON THIS THE 12^th January 2018

Present:       1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT  

    2) Smt. M.V.Bharathi                   

                                   B.Sc., LLB., -  MEMBER

    3) Sri. Devakumar.M.C.                

                                            B.E., LLB., PGDCLP,    - MEMBER

Sri M.C.DEVAKUMAR,

Member

1.     The complainant filed the complaint under section 12 of the C.P.Act 1986, against the opposite party, alleging unfair trade practice and deficiency in service and seeking a direction to allot a residential site measuring 40’ x 60’, situated at Brahmananda Sagara Layout, Mysore with such other reliefs.
2.     The complainant being a member of opposite party society, intending to purchase a residential site measuring 40’ x 60’ ft, to be developed by opposite party, in its Brahmananda Sagara Layout, near Mysore city, deposited a total sum of Rs.3,93,600/- in two instalments.  The opposite party acknowledged the receipt of the amount and assured to allot a site in the said layout.  After the lapse of stipulated period, the opposite party informed that, the site will be allotted in its Kuvempu Layout.  Aggrieved by the same, complainant alleged the unfair practice and deficiency in service by opposite party, filed the complaint seeking reliefs. 
3.     The opposite party, filed version and denied the allegations.  It admitted the deposit of amount and application towards allotment of site in Brahmananda Sagara at Mysuru.  The sites were allotted in accordance with the seniority list and subject to availability of requisite dimension site in the layout.  Since there was shortage of requisite number of site to be allotted in favour of the complainant, the Board of Directors decided to allot a site in its own Kuvempu layout.  The cause of delay in allotment of site was due to delay in approval by the Government.  Further, the complainant has not paid the balance sale consideration of Rs.2,57,400/- towards allotment of site.  As such, submits there is no deficiency in service and unfair trade practice by them and prays for dismissal of the complaint.
4.     The complainant and opposite party lead evidence by filing affidavit with certain documents.  Opposite party filed written arguments.  Both parties not addressed the arguments.  Perused the material on record and posted for orders.
5.     The points arose for our consideration are:-

1. Whether the complainant established the deficiency in service and unfair trade practice by opposite party for not allotting a residential site measuring 40’ x 60’, in its Brahmananda Sagara Layout despite of receipt of consideration and thereby he is entitled for the reliefs sought?
2. To What order?

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

Point No.1 :- Partly in the affirmative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

7.    Point No.1:- The complainant intended to purchase a residential site measuring 40’ x 60’ in opposite party’s layout by name “Brahmananda Sagara” deposited 1^st instalment of Rs.1,20,000/- on 12.09.2011 and Rs.2,73,600/- on 17.04.2012 as 2^nd instalment.  Further, the complainant agreed to pay the balance sale consideration, as fixed by the opposite party.
8.    The opposite party vide notice issued in the year 2013, informed the complainant that, no sites of 40’ x 60’ dimension were available in “Brahamananda Sagara Layout”, as such, assured to allot a site in “Kuvempu layout” which is four kms far from the Brahmananda Sagar Layout, as decided by the Board of Management of the society.  The complainant had applied for allotment of site in Brahmananda Sagara Layout only and deposited Rs.3,93,600/-.  The opposite party had assured to develop the layout and allot the site within 2 ½ years, but failed.  Hence, the complaint and sought for the reliefs.
9.    The opposite party admitted the receipt of Rs.3,93,600/- towards partial sale consideration for allotment of site in Brahmananda Sagara Layout.  The sital value was fixed at Rs.7,92,000/- for a site measuring 40’ x 60’.  The complainant has to pay the balance last instalment amount of Rs.2,57,400/-.  After development of Brahmananda Sagara Layout, the sites were formed and allotted in the available land, as per the approved seniority list of members.  The delay in development of layout was due to legal battle and procedural delay in approval of the layout plan.  As such, the members were informed about the allotment of site in Kuvempu Layout.  Further, contended that, if any of the member does not want a site in Kuvempu Layout, the entire amount deposited would be refunded to those members.  Therefore, there is no negligence or deficiency in service on their part.  As such, prayed for dismissal of the complaint. 
10. On perusal of the material on record, the complainant deposited Rs.3,73,600/- towards allotment of a site measuring 40’ x 60’ at Brahmananda Sagara Layout.  Since there was litigation with respect to the land acquisition and delay in necessary approval by the concerned governmental authorities, the opposite party society developed a part of the layout and allotted the sites to the available extent, in accordance with the approved seniority list.  As there was shortage of land, the opposite party offered to allot a site in its other layout by name Kuvempu Layout.  Further, the complainant owes a due of Rs.2,57,400/- towards the entire sale consideration for a site measuring 40’ x 60’.  The opposite party also offered to refund the entire amount deposited, to those members who were not prepared to wait until development of layout in Brahmananda Sagara Layout.  From the above observations, we opine that, the opposite party failed to allot a residential site measuring 40’ x 60’ in its Brahmananda Sagara Layout within the stipulated period of 2 ½ years from the date of receipt of 1^st instalment amount i.e. 12.09.2011.  As such, the opposite party is liable to allot a site measuring 40’ x 60’, in its Brahmananda Sagara Layout in favour of the complainant, by duly receiving the balance sale consideration towards the site as agreed by them.  Accordingly, the point No.1 is answered partly in the affirmative.
11. Point No.2:- In view of the observations made in point No.1 above, we proceed to pass the following

:: O R D E R ::

1. The complaint is allowed in part.
2. The opposite party is hereby directed to allot a residential site measuring 40’ x 60’ in its Brahmananda Sagara Layout situated at Mysuru Taluk in favour of complainant, duly collecting the balance sale consideration of Rs.2,57,400/- from the complainant, towards the entire sital value, within 60 days of this order.  Failing to comply, the opposite party is liable to pay penalty of Rs.200/- per day until compliance.
3. The opposite party shall pay Rs.25,000/- towards deficiency in service and Rs.2,000/- towards cost of the litigation to the complainant, within 60 days of this order.  In default to pay, the opposite party is liable to pay interest at 10% p.a. on the said total sum of Rs.27,000/- until payment made.
4. In case of default to comply this order, the opposite party undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
5. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 12^th January 2018)