BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 22^nd DAY OF JULY, 2022

CONSUMER COMPLAINT NOs.302/2021 C/w 303/2021,      

                                              305/2021, 306/2021,

                                               307/2021 & 366/2021

PRESENT:

SRI.RAJU K.S,

COMPLAINT NO.302/2021

M.C.Guttal S/o Late Chennabasappa,

Aged about 68 years.……COMPLAINANT-1

G.P.Neethu W/o Mayur M.B,

Aged about 35 years,……COMPLAINANT-2

Mayur M.G. S/o M.C.Guttal,

Aged about 37 years.……COMPLAINANT-3

M.G.Manas @ Manas M.Guttal,

S/o M.C.Guttal,

Aged about 33 years,……COMPLAINANT-4

All the complainants R/at No.300,

Part I, Kanakasri Layout,

Hennur Bagaluru Main Road,

(Complainant No.1 to 4 is Rep., by Sri.Sameer S.N, Adv).

COMPLAINT NO.303/2021

Smt.K.P.Lakshmi W/o Muddeeregowda,

Aged about 62 years.……COMPLAINANT-1

Ramya M D/o Muddeeregowda,

W/o Chandu,

Aged about 38 years,

Both the complainants are R/at No.632,

HAL 3^rd Stage, Indira Nagar,

(Complainant No.1 & 2 is Rep., by Sri.Sameer S.N, Adv).

COMPLAINT NO.305/2021

Smt.Bhavani Irappa Lachyan,

D/o Irappa Lachyan,

Aged about 34 years,

R/at No.2490,

Bangalore-560 038.……COMPLAINANT

(Rep., by Sri.Sameer S.N, Adv)

COMPLAINT NO.306/2021

S.Shashiranjan Das,

S/o Late S.Sundara Raju,

Aged about 73 years.……COMPLAINANT-1

Daniel Nithin S/o S.Shashiranjan Das,

Aged about 42 years,

Both the complainants are

R/at No.10, 9^th Cross,

BTM Layout,

(Complainant No.1 & 2 is Rep., by Sri.Sameer S.N, Adv).

COMPLAINT NO.307/2021

Shankaragouda @ Mr.Shankargouda Hoolageri,

S/o Gurubasappa Hoolageri,

Aged about 35 years,

R/at 8100, Memorial Lane,

Apt 7110, Plano TX 75024 USA,

Represented by his GPA Holder

Mr.Mruthyunjaya C.Guttal,

Aged about 69 years,

S/o Late Channabasappa Guttal,

R/at No.300, 7^th Main,

Kanakadhree Layout,

Kannur, Hennur, Bagaluru Main Road,

(Rep., by Sri.Sameer S.N, Adv).

COMPLAINT NO.366/2021

Smt.H.Sulochanamma W/o K.Sharabanna,

Aged about 68 years.……COMPLAINANT-1

H.S.Jaya W/o Venugopal Seema Kurthi,

Aged about 48 years,

R/at No.1969/3,

Both the complainants are R/at,

S.S.Layout, ‘B’ Block,

(Complainant No.1 & 2 is Rep., by Sri.Sameer S.N, Adv).

V/s

The President,

Karnataka State Government S.C., S.T.,

Backward and Minority Employees House Building

Co-operative Society Limited,

Bangalore, No.5/1,

Shumbulingeshwara Temple Street,

Cholanayaanahalli, R.T.Nagar,

Near Hebbal Sub-Registrar’s office,

Bangalore-560 032. ..… OPPOSITE PARTY-1

The Secretary,

Karnataka State Government S.C., S.T.,

Backward and Minority Employees House Building

Co-operative Society Limited,

Bangalore, No.5/1,

Shumbulingeshwara Temple Street,

Cholanayaanahalli, R.T.Nagar,

Near Hebbal Sub-Registrar’s office,

Bangalore-560 032...…OPPOSITE PARTY-2

Karnataka State Government S.C., S.T.,

Backward and Minority Employees House Building

Co-operative Society Limited,

Bangalore, No.5/1,

Shumbulingeshwara Temple Street,

Cholanayaanahalli, R.T.Nagar,

Near Hebbal Sub-Registrar’s office,

Bangalore-560 032.

Rep., by its Secretary Sri.N.Jayanna. .….OPPOSITE PARTY-3

IN CC.302/2021, 303/2021,

305/2021, 306/2021,

307/2021 & 366/2021

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainants in all the complaints have sought for a direction to the opposite parties to allot the sites claimed by the respective parties and offered by the opposite parties in the layout formed by opposite party no.3 society and for a direction to refund the construction amount paid by the respective complainants along with interest at the rate of 12% p.a. from the date of payment till the date of refund and such other reliefs as this Hon’ble Commission may deem fit in the circumstances of the case.

2. The opposite parties even though notice been served remained absent and they are placed ex-parte.

3. To prove the case, in CC.302/2021 the complainant no.1 (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P26 documents.

4. In CC.303/2021 the GPA holder of the complainants (PW1) has filed affidavit in the form of his evidence in chief and got marked as EX.P1 to P11 documents.

5. In CC.305/2021 the complainant (PW1) has filed affidavit in the form of her evidence in chief and got marked as EX.P1 to P1(f) documents. 

6. In CC.306/2021 the complainant-No.1 (PW1) has filed affidavit in the form of his evidence in chief and got marked as EX.P1 to P1(f) documents. 

7. In CC.307/2021 the GPA Holder of the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked as EX.P1 to P7(f) documents.

 8. In CC.366/2021 the complainant No.2 (PW1) has filed affidavit in the form of her evidence in chief and got marked as EX.P1 to P10(f) documents. 

9.  Heard the arguments in both the cases.

10. The points that would arise for consideration in all cases are as under:

i) Whether there is deficiency of service on the part of the opposite parties ?

    ii) Whether the complainants are entitled for the  

         compensation as sought ?

     iii) What order ?

 11.   Our findings on the aforesaid points in all cases are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

12. POINT NO.1 IN CC.302/2021, 303/2021, 305/2021, 306/2021, 307/2021 & 366/2021:-

PW1 in the respective cases referred above has reiterated the fact stated in the respective complaints, in the affidavits filed in the form of their evidence in chief.  In these cases, the opposite parties are one and the same persons and the complainants are different.

13. According to PW1 in CC.No.302/2021 the complainants No.1 to 4 have become the member of the opposite party no.3 society under membership No.AM-80, AM-154, AM-161 and AM-149 respectively and the opposite party no.3 society had promised to allot the sites to be formed by the opposite party society at the rate of Rs.550/- per square feet and the complainants No.1 to 4 have paid a sum of Rs.8,00,000/-, Rs.8,11,200/-, Rs.7,70,450/- and Rs.11,41,200/- respectively to the opposite party No.3 society and the opposite parties had failed to allot the sites as assured.  Hence, the complainants got issued legal notice to the opposite parties seeking for refund of the amount paid along with interest at the rate of 12% p.a. within 7 days from the receipt of legal notice.  In support of the oral evidence, PW1 had produced EX.P1 to P25 xerox copies of payment receipts issued by opposite party No.3 society for having received the respective amount.  EX.P26 is the office copy of the legal notice, EX.P26(a) to P26(c) are the original postal receipts and EX.P26(d) to P26(f) are the original postal acknowledgements for having received the notice by the opposite parties.

14. In CC.No.303/2021, in support of the oral evidence, the GPA holder of the complainants has filed EX.P1 copy of the GPA.  According to PW1, the complainants have become the member of the opposite party no.3 society under membership No.AM-153 and AM-173 respectively and the complainants had been promised by the opposite party No.3 to allot the sites at the rate of Rs.550/- per square feet and the complainant no.2 was promised site at the rate of Rs.650/- and the complainant no.1 had paid total sum of Rs.13,20,000/- and the                        2^nd complainant had paid a sum of Rs.15,60,000/- and the opposite parties failed to allot the sites as assured.  Hence, the complainants got issued legal notice to the opposite parties seeking for refund of the amount paid along with interest at the rate of 12% p.a.  In support of the oral evidence, PW1 had produced EX.P2 to P10 are the 9 payment receipts issued by opposite party No.3 society for having paid the amount.  EX.P11 is the office copy of the legal notice and EX.P11(a) to P11(c) the original postal receipts and EX.P11(d) to P11(f) the original postal acknowledgements for having received the notice by the opposite parties.

15. In CC.No.305/2021, the complainant has filed affidavit in the form of her evidence in chief.  According to her, she has become the member of the opposite party no.3 society and the opposite party no.3 society had promised to allot the site at the rate of Rs.650/- per square feet and she had paid a sum of Rs.7,83,000/-as consideration for getting the site.  Since the opposite parties did not allot the site, she got issued legal notice to the opposite parties seeking refund of Rs.7,83,000/- with interest at the rate of 12% p.a.  Even then the opposite parties did not pay the said amount.  In support of the oral evidence, she had produced EX.P2 to P6 xerox copies of the five cheques for having paid the consideration to the opposite party no.3.  EX.P1 is the office copy of the legal notice and EX.P1(a) to P1(c) original postal receipts and EX.P1(d) to P1(f) the original postal acknowledgements for having received the notice by the opposite parties.

16. According to PW1 in CC.No.306/2021, the complainants have become the member of the opposite party no.3 society under membership No.AM-113 and AM-174 respectively and the opposite party no.3 society had promised to allot the sites to be formed by the society at the rate of 650/- per square feet and the complainants together have paid consideration to an extent of 11,70,000/- each to the opposite party no.3 and the opposite parties have failed to allot the sites.  Hence, the complainants got issued legal notice to the opposite parties.  EX.P1 is the office copy of the legal notice and EX.P1(a) to P1(c) original postal receipts and EX.P1(d) to P1(f) the original postal acknowledgements for having received the notice by the opposite parties.  EX.P2 to P11 are the ten receipts for having paid the consideration to the opposite parties.

17.  In CC.No.307/2021, the GPA holder of the complainant has filed affidavit (PW1) in the form of his evidence in chief.  EX.P1 is the copy of the GPA.  According to PW1, the complainant has become the member of the opposite party no.3 society vide membership No.AM-158 and the complainant was promised by the opposite party No.3 to allot a site at the rate of Rs.650/- per square feet and the complainant had paid a sum of Rs.11,70,000/- as consideration. Since the opposite parties failed to allot the sites as assured, the complainant got issued legal notice to the opposite parties seeking for refund of the amount paid along with interest at the rate of 12% p.a.  In support of the oral evidence, PW1 had produced EX.P2 to P6 are the 5 payment receipts issued by opposite party No.3 society for having paid the amount to the opposite parties.  EX.P7 is the office copy of the legal notice issued to the opposite parties and EX.P7(a) to P7(c) are the original postal receipts and EX.P7(d) to P7(f) are the original postal acknowledgements for having received the notice by the opposite parties.

18. In CC.No.366/2021, the complainant no.2 (PW1) has filed affidavit in the form of her evidence in chief.  According to her, the complainants have become the member of the opposite party no.3 society under membership No.AM-175 and AM-164 respectively and the opposite party no.3 society had promised to allot the sites to be formed by the society at the rate of 650/- per square feet and the complainant No.1 has paid Rs.25,48,800/- and 2^nd complainant has paid Rs.15,98,000/- as consideration and in total a sum of Rs.41,46,800/-.  Since the opposite parties have failed to allot the sites as promised, the complainants got issued legal notice to the opposite parties.  EX.P1 to P6 are the notarized copies of the receipts.  EX.P7 is the acknowledgement issued by the Kotak Mahindra Bank for having transferred a sum of Rs.5,00,000/- to the account of the opposite party no.3.  EX.P8 & P9 are the Xerox copies of DDs drawn in favour of the President of opposite party no.3 society.  The said documents are sufficient to hold that the complainants have paid the amount to opposite party no.3 society. EX.P10 is the office copy of the legal notice.  EX.P10(a) to P9(c) are the original postal receipts and EX.P10(d) to P10(f) are the original postal acknowledgements for having received the notice by the opposite parties. 

19. Even though the notice been served on the opposite parties issued by this Commission, the opposite parties remained absent and they are placed ex-parte in all the cases.

20. The documents produced by PW1 in all the cases are sufficient to hold that the opposite parties had received the sale consideration paid by the respective complainants.  Further despite of the notice been received by the opposite parties sent by the complainants calling upon them to return the sale consideration paid, the opposite parties neither allotted the sites nor the refund amount paid.  The opposite parties are not permitted to keep the money of the complainants without any purpose.  Hence, it amounts to unjust enrichment as contemplated under the provisions of Indian Contract Act.  Therefore, the opposite parties shall return the said amount taken from the opposite parties.  The act of the opposite parties in not replying to the notice amounts to their audacity. Either the opposite parties should have allotted the sites or should have returned the amount taken.  Hence, we feel it amounts to deficiency of service on the part of the opposite parties as contemplated Under Section-2(11) of Consumer Protection Act, 2019 in both cases. Further since the opposite party had falsely assured with regard to the formation of layout to promote their business, it amounts to unfair trade practice as contemplated U/s 2(47) of C.P.Act 2019.   Accordingly, we answer point No.1 in affirmative. 

21.POINT No.2 IN CC.302/2021, 303/2021, 305/2021, 306/2021, 307/2021 & 366/2021:-  

In all cases the complainants have sought for a direction to the opposite parties to allot the sites as well as refund of sale consideration paid.   We feel the complainants are not entitled for both the reliefs.  Further the complainants did not produce any documents with regard to the formation of the sites by the opposite parties.  Hence, the complainants are not entitled for a direction to the opposite parties to allot the sites. 

22. Further the complainants in all cases have sought for refund of the sale consideration with interest at the rate of 12% p.a.  We feel interest at the rate of 12% p.a. is an exorbitant one and interest at the rate of 9% p.a. would meet the interest of justice.  The complainants were permitted to file joint petition by the order of this commission dt.25.04.2022 in the concerned cases. The complainants are entitled for the sale consideration paid to the opposite parties.   Further the complainants are entitled for a sum of Rs.15,000/- towards mental agony and Rs.10,000/- towards litigation cost in each cases.

23. In CC.302/2021, the complainants in total sought for refund of the sale consideration of Rs.35,22,850/- with interest.   In CC.303/2021, the complainants in total sought for refund of the sale consideration of Rs.28,80,000/- with interest. In CC.305/2021, the complainants in total sought for refund of the sale consideration of Rs.7,83,000/- with interest. In CC.306/2021, the complainants in total sought for refund of the sale consideration of Rs.23,40,000/- with interest. In CC.307/2021, the complainant sought for refund of the sale consideration of Rs.11,70,000/- with interest. In CC.366/2021, the complainants in total sought for refund of the sale consideration of Rs.41,46,800/- with interest.  Hence, we feel the complainants are entitled for the said amount with interest.  Accordingly, we answer this point partly in affirmative. 

24.  POINT NO.3:- In view of the discussion made above, we proceed to pass the following;

The complaint in CC.302/2021, 303/2021, 305/2021, 306/2021, 307/2021 and CC.366/2021 are allowed in part.

The opposite party no.1 to 3 are jointly and severally liable to discharge the order passed by this Commission. 

In CC.302/2021 the opposite parties No.1 to 3 are directed to refund a sum of Rs.8,00,000/- to the                         1^st complainant, Rs.8,11,200/- to the 2^nd complainant, Rs.7,70,450/- to the 3^rd complainant and Rs.11,41,200/- to the 4^th complainant along with interest at the rate of 9% p.a. from the date of payment made till realization. 

In CC.303/2021 the opposite parties No.1 to 3 are directed to refund a sum of Rs.13,20,000/- to the 1^st complainant, Rs.15,60,000/- to the 2^nd complainant along with interest at the rate of 9% p.a. from the date of payment made till realization. 

In CC.305/2021 the opposite parties No.1 to 3 are directed to refund a sum of Rs.7,83,000/- to the complainant along with interest at the rate of 9% p.a. from the date of payment made till realization. 

In CC.306/2021 the opposite parties No.1 to 3 are directed to refund a sum of Rs.11,70,000/- to each of the complainants along with interest at the rate of 9% p.a. from the date of payment made till realization. 

In CC.307/2021 the opposite parties No.1 to 3 are directed to refund a sum of Rs.11,70,000/- to the complainant along with interest at the rate of 9% p.a. from the date of payment made till realization. 

In CC.366/2021 the opposite parties No.1 to 3 are directed to refund a sum of Rs.25,48,800/- to the                1^st complainant, Rs.15,98,000/- to the 2^nd complainant along with interest at the rate of 9% p.a. from the date of payment made till realization.

The opposite parties No.1 to 3 are directed to pay a sum of Rs.15,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost in each cases.

The opposite parties shall comply the order within 30 days.  In case, the opposite parties fail to comply the order within the said period, the above said amount of Rs.25,000/- carries interest at the rate of 9% p.a. from the date of order till realization in all the cases.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Keep the original order in CC.302/2021 and copy of the order in CC.303/2021, CC.305/2021, CC.306/2021, CC.307/2021 & CC.366/2021.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 22^nd day of July, 2022)                                            

•  RAJU K.S)                                        (SHIVARAMA, K)    
•  

//ANNEXURE//

Witness examined for the complainants side:

Sri.M.C.Guttal, the complainant has filed his affidavit in CC.302/2021.

Sri.Muddeeregowda, GPA holder of the complainants has filed his affidavit in CC.303/2021.

Smt.Bhavani Irappa Lachyan, the complainant has filed her affidavit in CC.305/2021.

Sri.S.Shashiranjan Das, 1^st complainant has filed his affidavit in CC.306/2021.

Sri.Mruthyunjaya C Guttal, GPA holder of the complainant has filed his affidavit in CC.307/2021.

Smt.H.S.Jaya, the 2^nd complainant has filed her affidavit in CC.366/2021.

Documents marked for the complainants side in CC.302/2021:

1. Twenty Five payment receipts.

2. Copy of the legal notice dt.22.02.2021.

3. Three original postal receipts.

4. Three original postal acknowledgements.

Documents marked for the complainants side in CC.303/2021:

1. True copy of the GPA dt.16.04.2021.

2. Nine payment receipts.

2. Copy of the legal notice dt.22.02.2021.

3. Three original postal receipts.

4. Three original postal acknowledgements.

Documents marked for the complainants side in CC.305/2021:

1. Copy of the legal notice dt.22.02.2021.

2. Three original postal receipts.

3. Three original postal acknowledgements.

Documents marked for the complainants side in CC.306/2021:

1. Copy of the legal notice dt.22.02.2021.

2. Three original postal receipts.

3. Three original postal acknowledgements.

4. Ten receipts.

Documents marked for the complainants side in CC.307/2021:

1. Notarized copy of the GPA dt.24.03.2021.

2. Five payment receipts.

3. Copy of the legal notice dt.22.02.2021.

4. Three original postal receipts.

5. Three original postal acknowledgements.

Documents marked for the complainants side in CC.366/2021:

1. Notarized copies of the receipts.

2. Acknowledgement of Kotak Mahindra Bank dt.12.11.2016.

3. Notarized copy of two DD bearing No.594493 and 595082 dt.16.06.2015 and 02.02.2016.

4. Copy of the legal notice dt.31.03.2021.

5. Three original postal receipts.

6. Three original postal acknowledgements.

Witness examined for the opposite party side: 

Documents marked for the Opposite Party side:

•  RAJU K.S)                                           (SHIVARAMA, K)    
•