Sri Balaji land and building Developers V/S KamalaC - Consumer Court Case

Karnataka

Bangalore Urban

CC/08/1915

KamalaC - Complainant(s)

Versus

Sri Balaji land and building Developers - Opp.Party(s)

C.krishnanaik

10 Sep 2008

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. CC/08/1915

KamalaC						...........Appellant(s)
Vs.
Sri Balaji land and building Developers Sri Suresh Kumar						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

COMPLAINT FILED: 29.08.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 07th NOVEMBER 2008 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 1915 & 1916/2008 COMPLAINT NO. 1915/08 COMPLAINANT COMPLAINT NO. 1916/08 COMPLAINANT Smt. C. Kamala, W/o. Nanda Kumar, Residing at No. 15, Thigalarapet, Yarrappagowdarahalli, Bangalore 560 002. Sri. C. Nagaraj, S/o. Sri. Chandra, Residing at No. 15, Thigalarapet, Yarrappagowdarahalli, Bangalore 560 002. Advocate (C. Krishna Nayaka) V/s. OPPOSITE PARTIES 1. Sri Balaji Land and Building Developers, Chowdeshwari Complex, Yelachenahalli, Kanakapura Road, Bangalore. Represented by its Promoters & Developers Sri. Dilipkumar. 2. Sri. Suresh Kumar, S/o. Dayalalji, Promoters and Developers of Sri. Balaji Land and Building Developers, Resident of Arjuanappa Pappana Lane, Door No. 6, S.P. Road Cross, Bangalore 560 002. Advocate (S. Nagaraja) O R D E R These are the complaints filed U/s. 12 of the Consumer Protection Act of 1986 by the respective complainants seeking direction to the Opposite Party (herein after called as O.P) to allot sites and pay a compensation of Rs.1,00,000/- and for such other reliefs on an allegations of deficiency in service. 2. As the OPs are common and the question involved, relief claimed being the same, in the interest of justice, in order to avoid repetition of facts, multiplicity of reasoning these cases stand dispose of by this common order. 3. The respective complainants referred to above became the members of the OPs, who claims to be the promoters and developers of residential layout at Bangalore. OPs allotted sites bearing No. 92 & 93 respectively measuring 30 X 40 feet each in the layout formed by them in Sy. No. 6/1 and 6/2 of Hosahalli Village, Uttarahalli Hobli, Bangalore South Taluk for a total sale consideration of Rs.1,00,000/- each. The said sale consideration was payable in monthly instalments. The complainants were ready to pay the balance sale consideration and requested the OP to get the site registered in their favour. But OP failed to register the same. Complainant got issued the legal notice. Inspite of service of notice, OP failed to register the site. Complainants felt the deficiency in service on the part of the OPs. Hence they were advised to file these complaints against the OP for the necessary reliefs. The details of the payment made by each one of the complainants is as follows: Sl No. Complaint No. Complainants Name R. No. Date Amount 01 1915/08 C. Kamala 65 189 216 231 253 277 893 456 10.01.96 12.03.96 11.04.96 27.04.96 11.05.96 04.06.96 18.06.98 28.11.96 Rs.5,000/- Rs.5,000/- Rs.5,000/- Rs.5,000/- Rs.5,000/- Rs.6,000/- Rs.10,000/- Rs.9,000/- Rs.50,000/- 02 1916/08 C. Nagaraj 182 217 252 257 281 457 12.03.96 13.04.96 06.05.96 18.05.96 10.06.96 28.11.96 Rs.5,000/- Rs.10,000/- Rs.5,000/- Rs.5,000/- Rs.6,000/- Rs.9,000/- Rs.40,000/- 4. On issuance of notice OPs appeared and filed their version mainly contending that complainant paid only Rs.50,000/- and Rs.40,000/- respectively and complainants are defaulters in paying the instalments. After making the last payment of instalment in the year 1996 and thereafter in the year 2007 complainants have approached OP to accept the balance amount. At this belated point of time there was no provision for any refund. There are no vacant sites available in the said layout formed by OP as on today. As the complainants are defaulters they have no right to allege the deficiency in service against OP. The complaints are barred by time. Among these grounds OP prayed for dismissal of the complaints. 5. In order to substantiate the complaint averments, the complainants filed their respective affidavit evidence and produced the documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard. 6. In view of the above said facts, the points now that arise for our consideration in these complaints are as under: Point No. 1 :- Whether the complainants have proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainants are entitled for the reliefs now claimed? Point No. 3 :- To what Order? 7. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- Affirmative Point No.2:- Affirmative in part Point No.3:- As per final Order. R E A S O N S 8. At the outset it is not at dispute that each one of these complainants became the members of the scheme floated by the OP on 10.01.1996. OP formed the scheme, members were given choice to select site number of their choice and fixed the sale consideration, depending on measurement of site chosen. The cost of the site measuring 30 X 40 feet was fixed with Rs.1,00,000/- and in 5 monthly instalment at the rate of Rs.5,000/- each and remaining balance of Rs.75,000/- is payable in 25 monthly instalment of Rs.3,000/- each. If the members fail to pay instalment amount within 10th of every month, member is not entitle for allotment of the site and the amount what was paid would be returned back after completion of the scheme without any interest. 9. On the perusal of the version and evidence of the OP, it admits the acceptance of the membership and collection of part of the sital value from the respective complainants. The main contention of the OP is that the complainants are the defaulters and the last payment was made is in the year 1996 and thereafter in the year 2007 complainants approached OP to accept the balance amount by issuing legal notice. The documents to that effect are produced. What made the complainants to keep mum for all these 11 years is not known. No reason or documents are forthcoming to explain that delay in payment. 10. OP having retained such a huge amount for all these years accrued the wrongful gain and thereby caused wrongful loss to the complainant and not made any attempt to return the same to the concerned complainants in time. Here we find the deficiency in service on the part of the OP. The copies of the application form, layout plan, copy of the legal notice and cash receipts are produced. The evidence of the complainants finds full corroboration with the contents of the above said undisputed documents. Their evidence appears to be very much natural, cogent and consistent. There is nothing to discard the sworn testimony of these complainants. Complainants gets recurring cause of action till OP allot them sites. Hence we do not find any force in the contention of the OP that the complaints are barred by time. 11. It is said he who seeks equity must do equity and must come with clean hands. Having considered the facts and circumstances of the case, in our view complainants are not entitled for allotment and registration of the site. In addition to that OP has specifically stated that no such vacant sites in that layout are available at their disposal as on today. Complainants have not produced any other document to show that even till today some sites are available in that layout. When that is so, in our opinion the justice will be met by directing the OP to refund the sital value with interest and pay some compensation. Under the circumstances the complainants are entitled for the alternative relief of refund of amount paid by them. Accordingly we answer point nos.1 and 2 and proceed to pass the following: O R D E R The complaints are allowed. In Complaint No. 1915/08 OP is directed to refund Rs.50,000/- to the complainant Smt. C. Kamala together with interest at the rate of 9% p.a. from December 1996 till the date of realization and pay a compensation of Rs.5,000/- along with litigation cost of Rs.500/-. In Complaint No. 1916/08 OP is directed to refund Rs.40,000/- to the complainant Sri. C. Nagaraj together with interest at the rate of 9% p.a. from December 1996 till the date of realization and pay a compensation of Rs.4,000/- along with litigation cost of Rs.500/-. This order is to be complied within 4 weeks from the date of its communication. The original order shall be kept in the file of the complaint No. 1915/08 and a copy of it shall be placed in other respective file. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 07th day of November 2008.) MEMBER MEMBER PRESIDENT p.n.g.

COMPLAINT FILED: 29.08.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 07th NOVEMBER 2008 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 1915 & 1916/2008 COMPLAINT NO. 1915/08 COMPLAINANT COMPLAINT NO. 1916/08 COMPLAINANT Smt. C. Kamala, W/o. Nanda Kumar, Residing at No. 15, Thigalarapet, Yarrappagowdarahalli, Bangalore 560 002. Sri. C. Nagaraj, S/o. Sri. Chandra, Residing at No. 15, Thigalarapet, Yarrappagowdarahalli, Bangalore 560 002. Advocate (C. Krishna Nayaka) V/s. OPPOSITE PARTIES 1. Sri Balaji Land and Building Developers, Chowdeshwari Complex, Yelachenahalli, Kanakapura Road, Bangalore. Represented by its Promoters & Developers Sri. Dilipkumar. 2. Sri. Suresh Kumar, S/o. Dayalalji, Promoters and Developers of Sri. Balaji Land and Building Developers, Resident of Arjuanappa Pappana Lane, Door No. 6, S.P. Road Cross, Bangalore 560 002. Advocate (S. Nagaraja) O R D E R These are the complaints filed U/s. 12 of the Consumer Protection Act of 1986 by the respective complainants seeking direction to the Opposite Party (herein after called as O.P) to allot sites and pay a compensation of Rs.1,00,000/- and for such other reliefs on an allegations of deficiency in service. 2. As the OPs are common and the question involved, relief claimed being the same, in the interest of justice, in order to avoid repetition of facts, multiplicity of reasoning these cases stand dispose of by this common order. 3. The respective complainants referred to above became the members of the OPs, who claims to be the promoters and developers of residential layout at Bangalore. OPs allotted sites bearing No. 92 & 93 respectively measuring 30 X 40 feet each in the layout formed by them in Sy. No. 6/1 and 6/2 of Hosahalli Village, Uttarahalli Hobli, Bangalore South Taluk for a total sale consideration of Rs.1,00,000/- each. The said sale consideration was payable in monthly instalments. The complainants were ready to pay the balance sale consideration and requested the OP to get the site registered in their favour. But OP failed to register the same. Complainant got issued the legal notice. Inspite of service of notice, OP failed to register the site. Complainants felt the deficiency in service on the part of the OPs. Hence they were advised to file these complaints against the OP for the necessary reliefs. The details of the payment made by each one of the complainants is as follows: Sl No. Complaint No. Complainants Name R. No. Date Amount 01 1915/08 C. Kamala 65 189 216 231 253 277 893 456 10.01.96 12.03.96 11.04.96 27.04.96 11.05.96 04.06.96 18.06.98 28.11.96 Rs.5,000/- Rs.5,000/- Rs.5,000/- Rs.5,000/- Rs.5,000/- Rs.6,000/- Rs.10,000/- Rs.9,000/- Rs.50,000/- 02 1916/08 C. Nagaraj 182 217 252 257 281 457 12.03.96 13.04.96 06.05.96 18.05.96 10.06.96 28.11.96 Rs.5,000/- Rs.10,000/- Rs.5,000/- Rs.5,000/- Rs.6,000/- Rs.9,000/- Rs.40,000/- 4. On issuance of notice OPs appeared and filed their version mainly contending that complainant paid only Rs.50,000/- and Rs.40,000/- respectively and complainants are defaulters in paying the instalments. After making the last payment of instalment in the year 1996 and thereafter in the year 2007 complainants have approached OP to accept the balance amount. At this belated point of time there was no provision for any refund. There are no vacant sites available in the said layout formed by OP as on today. As the complainants are defaulters they have no right to allege the deficiency in service against OP. The complaints are barred by time. Among these grounds OP prayed for dismissal of the complaints. 5. In order to substantiate the complaint averments, the complainants filed their respective affidavit evidence and produced the documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard. 6. In view of the above said facts, the points now that arise for our consideration in these complaints are as under: Point No. 1 :- Whether the complainants have proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainants are entitled for the reliefs now claimed? Point No. 3 :- To what Order? 7. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- Affirmative Point No.2:- Affirmative in part Point No.3:- As per final Order. R E A S O N S 8. At the outset it is not at dispute that each one of these complainants became the members of the scheme floated by the OP on 10.01.1996. OP formed the scheme, members were given choice to select site number of their choice and fixed the sale consideration, depending on measurement of site chosen. The cost of the site measuring 30 X 40 feet was fixed with Rs.1,00,000/- and in 5 monthly instalment at the rate of Rs.5,000/- each and remaining balance of Rs.75,000/- is payable in 25 monthly instalment of Rs.3,000/- each. If the members fail to pay instalment amount within 10th of every month, member is not entitle for allotment of the site and the amount what was paid would be returned back after completion of the scheme without any interest. 9. On the perusal of the version and evidence of the OP, it admits the acceptance of the membership and collection of part of the sital value from the respective complainants. The main contention of the OP is that the complainants are the defaulters and the last payment was made is in the year 1996 and thereafter in the year 2007 complainants approached OP to accept the balance amount by issuing legal notice. The documents to that effect are produced. What made the complainants to keep mum for all these 11 years is not known. No reason or documents are forthcoming to explain that delay in payment. 10. OP having retained such a huge amount for all these years accrued the wrongful gain and thereby caused wrongful loss to the complainant and not made any attempt to return the same to the concerned complainants in time. Here we find the deficiency in service on the part of the OP. The copies of the application form, layout plan, copy of the legal notice and cash receipts are produced. The evidence of the complainants finds full corroboration with the contents of the above said undisputed documents. Their evidence appears to be very much natural, cogent and consistent. There is nothing to discard the sworn testimony of these complainants. Complainants gets recurring cause of action till OP allot them sites. Hence we do not find any force in the contention of the OP that the complaints are barred by time. 11. It is said he who seeks equity must do equity and must come with clean hands. Having considered the facts and circumstances of the case, in our view complainants are not entitled for allotment and registration of the site. In addition to that OP has specifically stated that no such vacant sites in that layout are available at their disposal as on today. Complainants have not produced any other document to show that even till today some sites are available in that layout. When that is so, in our opinion the justice will be met by directing the OP to refund the sital value with interest and pay some compensation. Under the circumstances the complainants are entitled for the alternative relief of refund of amount paid by them. Accordingly we answer point nos.1 and 2 and proceed to pass the following: O R D E R The complaints are allowed. In Complaint No. 1915/08 OP is directed to refund Rs.50,000/- to the complainant Smt. C. Kamala together with interest at the rate of 9% p.a. from December 1996 till the date of realization and pay a compensation of Rs.5,000/- along with litigation cost of Rs.500/-. In Complaint No. 1916/08 OP is directed to refund Rs.40,000/- to the complainant Sri. C. Nagaraj together with interest at the rate of 9% p.a. from December 1996 till the date of realization and pay a compensation of Rs.4,000/- along with litigation cost of Rs.500/-. This order is to be complied within 4 weeks from the date of its communication. The original order shall be kept in the file of the complaint No. 1915/08 and a copy of it shall be placed in other respective file. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 07th day of November 2008.) MEMBER MEMBER PRESIDENT p.n.g.