BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 24^TH DAY OF JANUARY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the Ops to refund the advance amount of Rs.5,42,573/- with interest at 18% on the said amount from the date of payment of the entire claim amount with interest.
2. Award damages of Rs.15,00,000/- to the complainant payable by the OP towards the loss and mental agony caused to the complainant.
3. Direct the OP to pay Rs.50,000/- towards expenses incurred.
4. Direct the OP to pay the costs of the proceedings.
5. To pass such other relief as this Hon’ble court deems fit.

2. The case set up by the complainant in brief is as under:-

Based on the advertisement given by the OP in the internet, newspapers etc., and based on the assurances and promises made by the OP on 27.06.2016, the OP agreed/opted to purchase a site in the layout formed by the OP with the name and style Telecom Green City.  The complainant became a member of the OP society for which they issued an Identity card with membership bearing No.294, on 27.06.2016.  the OP assured the complainant that they will allot a site in their project Telecom Green City measuring 40X60 feet, totally measuring 2400 sq.feet and demanded the complainant to pay Rs.5,42,573/- towards allotment of site in their project.

3. The complainant has paid Rs.5,42,573/-  through two cheques dated 27.06.2016. in lieu of the said payment the OP issued a receipt bearing No.323.

4. Further complainant submits that since 2016 the complainant has been continuously following up with OP seeking for allotment of site from their end but till date they have neither have refunded the said sum. The complainant has approached them many times with regard to allotment and in view of non allotment of site, the complainant issued letter dated 16.12.2022 seeking for refund of the deposit amount, for which the OP has acknowledged the receipt of the said letter but failed to refund the said sum.  Hence complainant issued legal notice dated 27.01.2023 seeking for refund of the deposit amount with interest at 18% p.m., within seven days along with damages of Rs.15,00,000/-, but the OP has not come forward to refund the said sum. Hence this complaint.

5. After issue of notice OP appeared and filed their version. It is the case of the OP that the complaint filed by the complainant is not maintainable either in law or on facts and the complaint is barred by limitation and the same is liable to be rejected.

6. It is further case of the OP that in the application it is clearly mentioned in terms and conditions Point No.5 that my application for allotment of site in the society is subject to approval of membership/associate membership by the society and clearance of land by BDA/BMRDA/BIAAPA and subject to availability of site.  We society is not given specific time to allot the site the complainant has to keep strict proof of the same.  Due to covid pandemic up to two years society is not able to get any approvals from the government of Karnataka and concerned government authorities.

7. It is further case of the OP that they have already entered into MOU on 05.04.2017 with Sri.Ganesh Developers about 50 acres land acquired for the development and to allot the sites to the member of the society based on the seniority list. Due to covid pandemic to get government approvals delayed. Therefore they are not liable to pay any damages or compensation to the complainant. The prayer sought by the complainant is misconceived as the OP have executed the MOU to acquire the land around total 50 acres and it’s on the progress to get the approval once they get the approval from the government site will be allotted based on the byelaws and who is fulfilled the payment terms as per the society byelaws, therefore they are not liable to pay any damages to the complainant and hence prays for dismissal of the complaint.

8. The complainant has filed his affidavit evidence and relies on 06 documents.   Official of the OP has filed his affidavit evidence and relied on 03 document.

9. Heard the arguments of advocate for the complainant.     Though sufficient time was given to the OP to address their arguments they have not appeared. Hence arguments of the OP is taken as nil.
10. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

11. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

12. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence and documents filed by both the parties.

13. It is clear from the complaint and the documents that the complainant impressed by the advertisements given by the Ops agreed to purchase site in the layout formed by them Telecom Green City.  The complainant has become the member of the society bearing No.294, on 27.06.2016. As per the assurance given by the complainant that they will allot the site in their project measuring 40X 60 feet totally measuring 2400 sq. feet have demanded the complainant to pay the advance amount.  The complainant has totally paid an amount of Rs.5,42,573/- on 27.06.2016.  The complainant has been continuously following up with the OP seeking for allotment of site but till today they have neither allotted the site in favour of the complainant nor refunded the amount.

14. Subsequently complainant has also got issued legal notice dated 27.01.2023 seeking for refund of the deposit amount. Inspite of service of the same they have not complied the demand made by the complainant.

15. In support of her contention the complainant has filed the affidavit evidence reiterated all the allegations made in the complaint and also produced ID card with membership, Receipt for having paid the amount, Copy of the Letter sent by the complainant to the OP,  Copy of the legal notice, postal receipt and acknowledgement.

16. On the other hand, the OPs have admitted about the membership of the complainant and also the advance amount paid by the complainant. The only contention taken by the OP is that as per the terms and conditions in the application for allotment submitted by the complainant the allotment of site in the society is subject to approval of membership by the society and clearance of land by BDA/BMRDA/BIAAPA and subject to availability of site. This OP society has not given any specific time to allot site to the complainant. Due to covid pandemic the society was not unable to get any approvals from the government authorities.  They have entered into MOU on 03.05.2017 with one Ganesh Developers for forming sites in 25 acres of land and also for formation of sites in 100 acres of land. The formation of layout is in process and they will allot the sites to the members based on the seniority list. Hence they are not liable to pay any compensation or damages to the complainant.

17. In support of their contention the Secretary of the OP filed affidavit evidence and also relied on Ex.R1 to R3 the three MOU entered in favour of Sri.Ganesh Developers in order to form the layout.
18. The complainant admittedly has paid the advance amount of Rs.5,42,573/- on 27.06.2016 itself.  There was no covid pandemic at the time of booking of the site by the complainant. The covid 19 problem started only in the year 2020. Even though the OPs have received the amount from the purchasers like complainant in the year 2016 itself they are unable to form the sites till today and even today they are not ready to allot any site in favour of the complainant. The complainant being a purchaser of the site cannot wait for an indefinite period after paying substantial amount to the OPs. It is the duty of the OPs to call the public for purchase of the sites after completion of all the formalities to form the layout.  The OPs without even obtaining any authority from the concerned department or approval from the concerned department have simply issued paper publications and advertisements stating that they will form the layout and allot the sites and collected huge amount.  The complainant has already waited from 2016 till today for more than 7 years on the fond hope that the OPs may allot the sites and she may construct the house in the said site according to her wish and will.  When the OPs failed to allot the site, the complainant is disappointed and sustained mental trauma and financial loss. The OPs cannot keep the amount without allotting the site for an unknown period. The complainant has clearly established the deficiency of service and unfair trade practice on the part of the OPs.  Hence the complainant is entitled for the relief claimed in this complaint. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

19. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund the deposit amount of Rs.5,42,573/- to the complainant with interest at 10% p.a., from the date of payment till realization.
3. OP is further directed to pay compensation of Rs.1,00,000/- with litigation expenses of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.5,42,573/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 24^TH day of JANUARY 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;