BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, GADAG. Basaveshwar Nagar, Opp: Tahasildar Office, Gadag COMPLAINT NO.177/2022 DATED 6TH DAY OF JANUARY-2023 |
BEFORE: | | | HON'BLE Mr. D.Y. BASAPUR, B.Com, L.L.B(Spl.,) PRESIDENT | | HON'BLE Mr. RAJU. N. METRI, B.Com, L.L.B(Spl.,) MEMBER HON'BLE Mrs. YASHODA BHASKAR PATIL, B.Com, L.L.B(Spl.,) M.Ed., WOMAN MEMBER |
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Complainant: - Parashuram
S/o Mariyappa Jambagi
Age:63 Yrs, Occ:Rtd. Employee
R/o Laxmi Raman Nilaya Kariyamakal
Badavane, Near P & T, Gadag,
Tq: & Dist:Gadag.
(Rep. by Sri.C.B.Hatti, Advocate)
V/s
Opposite party :- | | Pruthvi Builders and Developers Shop No.14-A/B, 2nd Floor, Vali Arcade, Opposite J.G. Commerce College, Vidyanagar, Hubli-58 0030. (Absent) |
JUDGEMENT
JUDGEMENT DELIVERED BY SRI. RAJU.N.METRI, MEMBER
The complainant has filed the complaint U/Sec.35 of the C.P. Act, 2019, direction to Op for allotting plot and Rs.1,00,000/- towards mental agony and Rs.10,000/- towards cost of litigation.
2. The brief facts of the complaint are as under:-
The Op is Company, which is carrying the business of developing layout and selling plots to the needy person under the name and style as Pruthvi Builders and Developers. Op offered the complainant to purchase a plot bearing No.22 measuring 30X40,. As per agreement entered into between complainant and Op, the complainant has booked a plot bearing 22, measuring 30X40 situated at T. Koppa and paid a sum Rs.10,000/- on 23.01.2013, for which Op has issued a receipt bearing No.134 for having received the amount. After the payment, the Op failed to develop the layout and handover the site. Therefore, complainant requested the OP several times to allot plot, Op failed to develop the layout and handover the site to the complainant. But, OP postponed the same one or the other reasons. Thereafter, on 25.08.2022 complainant has got issued a legal notice through his Advocate, inspite of service of the notice OP failed to reply for the same which caused mental agony, financial loss and hardship. Therefore, Op has committed the deficiency of service. Hence, filed this complaint.
3. After admitting the complaint, notice was issued to the OP. Inspite of service of notice, Op remained absent.
4. To prove the case, the complainant has filed affidavit evidence and examined as PW-1 and got marked the documents as Ex.C-1 to Ex.C-5.
5. Counsel for complainant filed written argument. Heard, the arguments on complainant side.
6. The points for our consideration arose are as under:
i) Whether the complainant proves that, there is a deficiency of service committed by the OP?
ii) Whether the complainant proves that, he is entitled for the relief?
iii) What order?
7. Our findings on the above points are as under:
Point No.1: In affirmative.
Point No.2: In partly affirmative.
Point No.3: As per final order.
REASONS
8. Point No.1 & 2:- The points are taken together to avoid the repetition of facts. The learned counsel for complainant argued that, as per evidence of PW-1 and Ex.C-1 to
Ex.C-5, complainant proved the case.
9. On careful perusal of the materials placed before us, PW-1 has filed affidavit evidence and reiterated the contents of the complaint. PW-1 has stated that, the Op is Company, which is carrying the business of developing layout and selling plots to the needy person under the name and style as Pruthvi Builders and Developers. Op offered the complainant to purchase a plot bearing No.22 measuring 30X40. As per agreement entered into between complainant and Op, the complainant has booked a plot bearing No.22, measuring 30X40 situated at T. Koppa and paid a sum of Rs.10,000/- on 23.01.2013, for which Op has issued a receipt bearing No.134 for having received the amount. After the payment, the Op failed to develop the layout and handover the site. Therefore, complainant requested the OP several times to allot the plot. Op failed to develop the layout, handover the site to the complainant. But, OP postponed the same one or the other reasons. Thereafter, on 25.08.2022 complainant has got issued a legal notice through his Advocate, inspite of service of the notice OP failed to reply for the same which caused mental agony, financial loss and hardship. Therefore, Op has committed the deficiency of service.
10. Ex.C-1 notice, Ex.C-2 postal acknowledgment and Ex.C-3 postal receipt reveal that, notice issued to the Op was duly served. Ex.C-4 receipt issued by Op on 23.01.2013 for Rs.10,000/- and Ex.C-5 account extract of complainant reveal that, Op received the amount against booking of plot No.22, at T. Koppa layout. Op did not reply for the notice or appeared before this Commission inspite of service of notice. So, the oral and documentary evidence of complainant is remained unchallenged by the Op. There is no reasons to disbelieve the case of the complainant. Complainant paid Rs.10,000/- in the year 2013 and notice issued in the year 2022 there is a delay in lodging the complaint. However, PW-1 has stated that, he requested the Op repeatedly to handover the site or repay the amount. Op postponed one or other reasons. So, cause of action is continued.
11. The learned counsel for complainant is relying a decision in IV (2012) CPJ 36 (NC) Raghava Estates Ltd. V/s Vishnupuram colony Welfare Association & Anr.
Wherein, the Hon’ble National Commission, New Delhi held as under:-
“(ii) Consumer Protection Act, 1986 - Sec.24-A, 21(b)-Limitation-Where there is immovable property and amenities promised by opposite party were not provided, it can be construed as continuing cause of action and it cannot be said to be barred by time”.
Further, relying a decision in IV (2016) CPJ 546 (NC) Rajgopal Bhanda Kiran Kumar Vanajakshi Bhanda Tarun Kumar V/s Venkatesh
Wherein, the Hon’ble National Commission, New Delhi held as under:-
“Consumer protection Act, 1986 – Sections 2 (1) (g), 21(b) – Housing – Cancellation of allotment – Irregularities in Scheme – Alleged default in payment of installment – Deficiency in service District Form dismissed complaint – Sate Commission partly allowed appeal- Hence, revision – Complainants had made bona fide attempt to pay entire balance sale consideration but Op had failed to accept the same in spite of fact that legal notice dated:02.06.2010 and reply notice is dated 14.06.2010 as the scheme started on 17.06.2006 and ended 55 months thereafter, i.e., on 17.12.2010; that Op had made false statement that no plots available whereas only 9 plots were sold land 8 sale deeds filed here – These sites were booked by complainants for purpose of having a shelter over their heads – Deficiency proved – Op is directed to register the site – Directions issued”.
Facts, circumstances and ratio of the above decisions are aptly applicable with case on hand.
So, there is no delay in lodging the complaint as continuing cause of action and it cannot be said to be barred by time.
12. Thus, the cause of action is continued till service of legal notice, and then cause of action arose. So, compliant is lodged within a time from the date of cause of action there is no delay. Therefore, complainant proves that, Op has committed the deficiency of service and for refund of the amount.
13. Complainant seeking relief for handover the plot. Complainant has not produced the agreement regarding terms and conditions. Even, complainant has not stated, what was the consideration amount of site, how many installments and how much of amount to be paid for each installment. So, complainant is not proved that, he is entitled to handover the plot. However, he is entitled for the amount of Rs.10,000/- paid towards booking of plot with interest @ 8% p.a. from the date of receipt dtd:23.01.2013 till realization. Complainant has suffered mental agony. So, complainant is entitled for a sum of Rs.2,000/- towards mental agony and Rs.1,000/- towards cost of the complaint. Accordingly, we answer point No.1 in the affirmative and point No.2 in the partly affirmative.
14. POINT No. 3: In the result, we pass the following:
//O R D E R//
The complaint filed U/Sec.35 of the Consumer Protection Act, 2019, is partly allowed against Op.
Complainant is entitled a sum of Rs.10,000/- with interest @ 8% p.a. since 23.01.2013 till realization.
Further, the complainant is entitled for Rs.2,000/- towards mental agony and Rs.1,000/- towards cost of litigation.
Op is directed to pay the above entire compensation within one month from the date of this order.
Office is directed to send the copies of this order to the parties free of cost.
(Dictated to the Stenographer, directly on computer, corrected and then pronounced by us in the Open Court on this 6th day of January-2023)
,
(Shri Raju N. Metri) (Shri. D.Y. Basapur) (Smt.Yashoda Bhaskar. Patil)
MEMBER PRESIDENT WOMAN MEMBER
-: ANNEXURE :-
EVIDENCE ON BEHALF OF COMPLAINANT/S:
PW-1: Parashuram S/o Mariyappa Jambagi
DOCUMENTS ON BEHALF OF COMPLAINANT/S
Ex.C-1: Legal notice dtd:25.08.2022
Ex.C-2: Postal acknowledgment.
Ex.C-3: Postal receipt.
Ex.C-4 : Pruthvi, Builders & Developers receipt.
Ex.C-5 : Copy of Account extract.
EVIDENCE ON BEHALF OF OP:
NIL
DOCUMENTS ON BEHALF OF OP:
NIL
(Shri Raju N. Metri) (Shri. D.Y. Basapur) (Smt.Yashoda Bhaskar. Patil)
MEMBER PRESIDENT WOMAN MEMBER
