BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)
DATED THIS THE 18th DAY OF AUGUST, 2023
APPEAL NOS.162/2023 & 36/2023
PRESENT
SRI RAVI SHANKAR – JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI – MEMBER
1. APPEAL No.162/2023
Sri Adichunchanagiri Employees
Housing Co-operative Society Ltd ®,
With its registered office at
Sri Adichunchanagiri Kshetra, … Appellant/s
Nagamangala Taluk,
Mandya District – 571 811
Represented by its Secretary
(By Sri.S.Rupesh Kumar, Advocate)
-Versus-
Sri.K.S.Papegowda
S/o Sri.Siddeagowda,
Aged about 69 years, … Respondent/s
Occ: Retired Asst. Professor,
Residing at No.177, Behind
Gramabharathi Educational Institution,
Muthuraayaswamy Layout,
KR Pet Town, Mandya District
(By Sri.Prashant.T.Pandit, Advocate)
2. APPEAL No.36/2023
Sri.K.S.Papegowda
S/o Sri.Siddeagowda,
Age: 70 years, … Appellant/s
Occ: Retired Asst. Professor,
Residing at No.177, Gramabharathi
Educational Society, Muttaray Swamy
Layout out, Mandya District
(By Sri.Prashant.T.Pandit, Advocate)
-Versus-
1. Sri Adichunchanagiri Employees
Housing Co-operative Society Ltd ®,
Sri Adichunchanagiri Kshetra-571 811,
Tq: Nagamangala,
Dist: Mandya
... Respondent/s
2. The President,
Sri Adichunchanagiri Employees
Housing Co-operative Society Ltd ®,
Sri Adichunchanagiri Kshetra-571 811,
Tq: Nagamangala,
Dist: Mandya
3. The Vice-President,
Sri Adichunchanagiri Employees
Housing Co-operative Society Ltd ®,
Sri Adichunchanagiri Kshetra-571 811,
Tq: Nagamangala,
Dist: Mandya
4. The Secretary,
Sri Adichunchanagiri Employees
Housing Co-operative Society Ltd ®,
Sri Adichunchanagiri Kshetra-571 811,
Tq: Nagamangala,
Dist: Mandya
5. The Account Officer,
Sri Adichunchanagiri Employees
Housing Co-operative Society Ltd ®,
Sri Adichunchanagiri Kshetra-571 811,
Tq: Nagamangala,
Dist: Mandya
… Respondent/s
6 The Executive Officer,
Sri Adichunchanagiri Employees
Housing Co-operative Society Ltd ®,
Sri Adichunchanagiri Kshetra-571 811,
Tq: Nagamangala,
Dist: Mandya
(Respondents -by Sri.S.Rupesh Kumar, Advocate)
COMMON ORDER
BY SRI RAVISHANKAR, JUDICIAL MEMBER
Both Opposite Parties and complainant have preferred these Appeals against the order passed by the District Consumer Commission, Mandya dated 03-12-2022 in Complaint No.79/2022 which directed the Appellant/Opposite Parties in Appeal No.162/2023 to refund an amount of Rs.4,56,000/- with interest @ 9% per annum from 21-5-2011 and Rs.6,84,000/- with interest @ 9% per annum from 3-7-2019 till realization and also directed to this appellant/Opposite Parties to pay Rs.1,50,000/- towards litigation expenses.
2. The Appellant/complainant in Appeal No.36/2023 being not satisfied with the order has preferred this appeal and prays for allotment of the site measuring 60X40sq.ft. and also to pay compensation for deficiency in service.
3. On perusal of the certified copy of the order and memorandum of appeals filed by both Opposite Parties and complainant. It is an admitted fact that, the complainant became a member with the Opposite Party society in order to obtain a site measuring 60X40sq.ft. which is going to be developed at Sy.Nos.205/1, 205/2, Vajamangala, Varuna Hobli, Mysore District. At the time of becoming a member, he paid initial amount of Rs.1,75,000/- on 10-10-2006 itself for allotment of site measuring 60X40sq.ft. Thereafterwards as per the direction given by the society the complainant had paid Rs.52,000/- on 22-1-2007. Thereafterwards on 10-2-2007 the complainant paid an advance amount of Rs.35,000/-, totally the complainant had paid an amount of Rs.11,40,000/- towards allotment of site measuring 60X40sq.ft. After obtaining the said amount, the Opposite Party for one or other reasons had not allotted the site. Thereafterwards the complainant received letter from Opposite Party stating that they have not able to allot 60X40sq.ft. site and instructed him to take 30X50sq.ft. site valued at Rs.6,90,175/- and also instructed him to get refund the balance amount. The complainant being not satisfied with the allotment of 30X50sq.ft. site, he demanded for allotment of 60X40sq. ft. site, when the Opposite Party denied to allot 60X40sq.ft. site, the complainant approached the District Commission alleging deficiency in service and prayed for allotment of the site measuring 60X40sq.ft.
4. The District Commission after trial allowed the complaint and directed for refund of the entire amount paid by the complainant with interest @9% per annum from the date of payment. Being not satisfied with the order, the complainant approached this Commission by filing the above appeal and submits that he intended to purchase a site measuring 60X40sq.ft. way back in the year 2006. The Opposite Party ought to allot 60X40sq.ft. site instead of that they have chosen to allot only 30X50sq.ft. site which the complainant not interested. Hence, prays to set aside the order passed by the District Commission and direction be given to allot 60X40sq.ft. site along with compensation, in the interest of justice and equity.
5. On the other hand, the Opposite Party also in his memorandum of appeal had admitted all the averments but submits that as per the general body meeting they could not allot the site measuring 60X40sq.ft. to the complainant due to non development and instructed the complainant to take 30X50sq.ft. site and also instructed to take refund of the balance amount which was paid by the complainant, but the complainant was not satisfied with the decision taken by the general body meeting had approached the District Commission. The District Commission has instead of direction given to the complainant to taken 30X50sq.ft. site had directed this appellant to refund the entire amount with interest @9% per annum. In fact there is no any deficiency in service on the part of this appellant in allotting the site measuring 30X50sq.ft. in favaour of complainant and they are not liable to pay any compensation as awarded. Hence prays for set aside the order passed by the District Commission.
6. Heard from both parties.
7. The complainant had admittedly paid an amount of Rs.11,40,000/- for allotment of 60X40sq.ft. site as per the instruction given by the Opposite Party. The complainant without any default had paid the amount as and when the Opposite Party demanded, the only intention of payment of the said amount is for allotment of the site measuring 60X40sq.ft. The Opposite Party ought to develop the site measuring 60X40sq.ft. in the layout and allot the same. They cannot escape the liability of allotting the site measuring 60X40sq.ft. after receipt of the entire amount from the customers/members including the complainant. We do not find any valid reasons assigned by the Opposite Party for non development of the 60X40sq. ft. site. During the course of arguments, the learned advocate for appellant/complainant had submitted that they have actually developed the site measuring 60X40sq.ft. but in spite of development of the site they have not allotting a site to the complainant for the best reasons known to them. Hence prays for modification of the order passed by the District Consumer Commission. When the layout was formed for allotment of site measuring 30X50sq.ft. and 60X40sq.ft, the Opposite Party ought to allot a site to the members who have applied for site measuring 60X40sq.ft. and other sites respectively after payment. Here it is undoubtedly the amounts were paid fully by the complainant. Mere holding general body meeting for cancellation of allotment of site to the complainant measuring 60X40sq.ft. is not justifiable. It is clear case of deficiency in service on the part of the Opposite Party in not allotting the site measuring 60X40sq.ft. formed at Sy.No.205/1 and 205/2, Vajamangala village, Varuna hobli, Mysuru district. The District Commission without considering the said prayer had directed for refund of the entire amount which were paid by the complainant, the complainant approached the District Commission for allotment of site measuring 60X40sq.ft. and not for refund of the amount, hence the order passed by the District Commission lacks legality. The Opposite Party ought to allot the site in favour of complainant measuring 60X40sq.ft, hence the order required to be modified.
8. On the other hand, the advocate for Opposite Party/appellant in Appeal No.162/2023 submits that there is no deficiency in service on the part of Opposite Party in allotting site measuring 30X50sq.ft.and instructed for refund of the balance amount. Hence prays to set aside the order passed by the District Commission, we do not find any valid reasons to dismiss the complaint, on the ground that they are not able to allot the site in favour of the complainant measuring 60X40sq.ft.site. It is an admitted fact that, during the pendency of litigation, the Opposite Party has developed 60X40sq.ft. sites in the said layout, when they have developed the said sites; it is under the obligation on the part of the Opposite Party to allot and register the site to the complainant who had paid full consideration amount, therefore the appeal has no merits. The complainant constrained to file a complaint before the District Consumer Commission for allotment and registration of site measuring 60X40sq.ft. with all basic amenities. It is also noticed that the complainant is a senior citizen who anticipated site registering in his name. Therefore, it is clear case of deficiency in service, hence the Opposite Parties are liable to pay compensation to the tune of Rs.10.00 lakhs. Accordingly the appeal filed by this appellant is liable to be dismissed. The order passed by the District Commission hereby modified as hereunder. Accordingly, we proceed to pass the following:
O R D E R
The Appeal No.162/2023 filed by the appellant/Opposite Party is dismissed.
The Appeal No.36/2023 filed by the appellant/complainant is hereby allowed.
The complaint is allowed and the order is modified hereunder;
The Opposite Party Society is directed to allot a site measuring 60X40sq.ft. with all basic amenities and register the site in favour of complainant by accepting the registration charges only within 45 days from the date of receipt of this order.
The Opposite Party Society further directed to pay compensation of Rs.10.00 lakhs for deficiency in service in not allotting and registering 60X40sq.ft. site inspite development along with litigation costs of Rs.25,000/- to the complainant.
The Opposite Party Society further directed to comply the above said order within 45 days from the date of receipt of this order. Failing which, the payable amount (including cost and compensation) shall carry 12% interest from the date of this order, till realization.
The amount in deposit in Appeal No.162/2023 shall be transmitted to the concerned District Commission to pay the same to the complainant.
Keep the original order in Appeal No.36/2023 and a copy of the same in Appeal No.162/2023.
Send a copy of this order to both parties as well as concerned District Consumer Commission.
Member Judicial Member
Jrk/-
