Dtd.05.10.2024                                            A/277/2022

O R D E R

      BY Mr.K.B.SANGANNANAVAR : Pri.Dist & Session Judge (R) - JUDICIAL MEMBER.

1.    This is an appeal filed U/s.41 of CPA 2019 by OP/Appellant aggrieved by the order dtd.31.12.2021 passed in CC/1814/2019 on the file of 1^st Addl., District Commission, Bengaluru urban. (Parties to the appeal henceforth are referred to their rank assigned to them by the District Commission).
2. The Commission examined grounds of appeal, impugned order, appeal papers and heard the learned counsels. Now the point that arise for consideration of this Commission would be

Whether the impugned order dtd.31.12.2021 passed in CC/1814/2019 does call for an interference of this Commission for the grounds set out in the appeal memo?

3. Learned counsel for Appellant/OP submits in view of Sec.70 of Karnataka Co-operative Societies Act, the dispute raised by Complainant in CC/1814/2019 could not be said consumer dispute to be examined under CPA 1986 and further submits Hon’ble Apex Court of India in the case between Ganeshlal vs. Shyam in Civil Appeal.331/2007 decided on 26.09.2013, reported in 2014 14 SCC 773, held housing construction services cannot be lead to a complaint to the consumer forums and submits District Commission has committed grave error in passing the impugned order. On the contrary, learned counsel for Respondent/Complainant submits that sale of plot of land simpliciter cannot lead to a complaint to the District Commission. The jurisdiction of the District Commission U/s.11 of the Act is to entertain the complaint and as could be seen from the contents of complaint raised by the Complainant/Respondent herein the case on hand is not a sale of plot of land simpliciter and submits the Hon’ble Apex court of India in the case relied on by the learned counsel for Appellant has explained that being the position as far as sale of plot by Appellant/OP society viewed from any angle could not be said a sale of plot of land simpliciter, which in our view correct submission which could be  justified and acceptable by the commission. In such view of the matter the contention of Appellant/OP that the complaint raised by the Respondent/Complainant before the District Commission is not maintainable U/s.70 of the Karnataka Co-operative Societies Act has to be held unacceptable in view of the ratio laid down by the Hon’ble Apex court in the case cited supra.   
4. Let us examine the impugned order, wherein the District Commission, held, in view of the OP admitting his liability and paid some portion of the amount, it becomes clear that, OP neither  formed the layout nor  allotted site. Hence held, OP rendered  deficiency in service  is liable to pay balance amount of Rs.5,23,545/- along with interest at 8% p.a. from each date of receipt of the amount from the complainant and also OP to pay Rs.5,000/- towards cost of the litigation expenses. Learned counsel for Respondent/Complainant submits his hard earned money was invested in the OP’s society with fond hope to get a plot where, he will build his dream house become frustrated and submits award of interest at 8% p.a. is a meagre interest considering the nature of dispute raised by him which could be acceptable. Hence we did not find any reasons either to reduce rate of interest awarded by the District Commission or to disallow the interest awarded. In such view of the matter that they are ready to refund only the principal amount as a society and not the interest is held unacceptable for simple reasons that the amount has been utilised for the development of the society and such amount has been withheld for all these years without allotting any site as promised. Normally whether BDA or the KHB immediately after completion of the allotment process use to return the amount to the non allottees, however in the case on hand the OP society has failed to return but withheld does mean to draw an inference amount has been utilised for the development of the society and with an intention to allot site to the members, however, herein OP has neither allotted site nor returned money in time has to be held had rendered deficiency of services is liable to refund the amount as ordered by the DF. Hence we proceed to dismiss the appeal with no order as to cost.
5. The amount in deposit is directed to be transferred to the District Commission for needful.
6. Notify copy of this Order to the District Commission and parties for their information.

   Lady Member                                Judicial Member               

*NS*