BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.479-2015

DATED ON THIS THE 11^th March 2016

      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.,    - MEMBER

Sri Devakumar.M.C.

Member

1.     This is a complaint filed by the complainant for a direction to the opposite party to allot a site measuring 50 x 80 ft. and to execute the sale deed in favour of the complainant, for compensation of `4,00,000/-, for causing inordinate delay and cost of the proceedings `15,000/- and `5,00,000/- towards compensation and other reliefs.
2.     The brief facts alleged in the complaint are that the complainant being the member for opposite party society, applied for a site measuring 50 x 80 ft. and deposited the sum of `12,08,000/- on different dates narrated in para 3(a to e). Though the opposite party has collected entire amount, never showed any inclination in completing the project and the development activities in the said layout and never bother to give possession certificate and fail to execute the sale deed.  Thereby, there is deficiency in service on the part of opposite party that is to be suitably compensated.  The cause of action arose on 11.05.2007 when the complainant has applied for site and subsequently on different dates on which the complainant paid the amounts and at last, a legal notice was issued on 10.06.2015 in Mysore within the jurisdiction of this Forum.
3.     The opposite party appeared through the advocate and filed the following detailed version.  It is not in dispute that the complainant is the member of the opposite party society and he has paid the membership fee and also paid a sum of `12,08,000/- for the purpose of getting the site.  The opposite party has formed the layout called “Kuberananda Sagara” and allotted 91 sites, the complainant’s seniority is 108.  Thereby, the opposite party is waiting for an order to release the site for allotment by the authorities.  In fact, the opposite party has offered site No.244 measuring 3415 sq.ft.  Even after receipt of such information, complainant has not answered, hence there is delay in allotment of site on seniority basis.  Thereby, there is no deficiency in service on the part of opposite party and the opposite party sought for dismissal of the complaint.
4.     On the above contentions of the both parties, this matter was posted for evidence.  During evidence, on behalf of the complainant, complainant has filed sworn affidavit evidence and also relied on the documents and closed his further evidence.  Even opposite party has filed its affidavit evidence of Secretary of society and closed its evidence.  Written arguments of both sides filed.  After hearing oral submissions, this matter is set down for orders.
5.     The points arose for our consideration are:-

1. Whether the complainant has established that though the opposite party has received the entire cost of the site fail to allot the site and thereby, there is deficiency in service and as such, the complainant is entitled for the reliefs claimed in the complaint?
2.  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:- During evidence, the complainant has filed sworn affidavit as his evidence reiterating the allegations made in the complaint to the effect that he is the member of the opposite party society and he has deposited `12,08,000/- on different dates.  In spite of it, opposite party has not allotted the site, it amounts to deficiency in service.  Further, he has submitted that the inordinate delay caused him mental agony and financial loss due to escalation in construction cost.
8.    Whereas the Secretary of the opposite party society has submitted that there is no deficiency in service on the part of the opposite party.  In fact, opposite party has made all arrangements for allotment of site by developing the land and in fact, the complainant was directed by the opposite party society to get registered the site bearing No.244 measuring 3415 sq.ft and opposite party society has also undertaken to refund the difference of land value, but there is no reply from complainant.  As such, the opposite party was not able to register the site bearing No.244.
9.    The advocate appearing for complainant submits that the huge amount of `12,08,000/- was collected long back by the opposite party society and the complainant has deposited the amounts between 10.05.2007 to 10.04.2010 on different dates.  The opposite party has made use of the said sum for development of the layout.  In spite of it, the opposite party has not allotted the site to the complainant and delayed the allotment of the site on frivolous grounds.  The complainant is not prepare to get site of lesser measurement and submits that there is deficiency in service on the part of opposite party in not registering the site in favour of the complainant.
10. The submission of the opposite party is to the effect though the offer was made for allotment of site with little less measurement in respect of site No.244, there was no reply by the complainant.  As such, there is no deficiency in service on the part of opposite party.
11. Taking into consideration, the rival contention of both parties, this Forum finds that the complainant has deposited amount from May 2007 to April 2010.  The opposite party has made use of huge amount for development of the layout even then the site was not allotted to the complainant that the act of opposite party definitely amounts to deficiency in service.  Further, in the arguments, the opposite party has submitted in para 6 that the site bearing No.302/3 measuring 8635.9 sq.ft. which is more than the measurement sought for by the complainant. There is additional measurement of site measuring 635 sq.ft and in the written arguments, it is submitted that the opposite party is ready to execute the sale deed not only in respect of 50 x 80 ft. and also in respect of the additional land attached to the site proposed to be allotted to the complainant.  Why there was delay, in spite of such allegations in executing the sale deed, there is no explanation on the part of opposite party.  Thereby, this Forum finds that the delay caused by the opposite party amounts to deficiency in service, which has caused not only mental agony, but also financial loss to the complainant which is to be suitably compensated.  Hence, the point No.1 is answered partly in the affirmative.
12. Point No.2:- In view of the findings recorded on point No.1, this Forum finds that it is a fit case to direct the opposite party to allot site measuring 50 x 80 ft and to register the title deed with possession to the complainant.  If the complainant agrees to purchase the excess land of 635 sq.ft. along with his brother who is the complainant in another case (CC 477/2015).  The complainant is at liberty to pay the difference value at the rate prevailing in 2007 for excess land.  Further, opposite party is liable to pay compensation of `75,000/- to the complainant for having caused inordinate delay and deficiency in service.  Further opposite party is to be directed to pay a sum of `5,000/- towards litigation expenses.  Hence, the following order 

:: O R D E R ::

1. The complaint is allowed in part.
2. The opposite party is hereby directed to allot a site measuring 50 x 80 ft. in the well developed Kuberananda Sagara Layout within two months from the date of this order.
3. If complainant chooses to purchase the additional land attached to the proposed site to be sold in favour of the complainant, the opposite party is directed to receive the additional amount for excess land at the rate prevailing in 2007 and execute the sale deed in respect of the additional land also.
4. If the opposite party fail to comply with the said direction, opposite party shall pay penalty of `100/- per day to the complainant.
5. The opposite party shall pay compensation of `75,000/- and also to pay `5,000/- towards litigation expenses to the complainant within 2 months from the date of this order, failing which, the said amount of Rs.80,000/- shall carry interest at 12% p.a. from the date of said default till payment.      
6. In case of default to comply this order, the opposite parties shall undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
7. 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 11^th March 2016)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER