Date of filing: 14.02.2022

                                                               Date of Disposal:09.01.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 9^th DAY OF JANUARY, 2023

CONSUMER COMPLAINT NO.36/2022

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

S/o Ramarao,

Aged about 66 years,

R/at No.103, Sadashiva Niwas Apartment,

Model House Street, N.R.Colony,

Bengaluru-560 004.

Rep by his power of Attorney Holder,

S/o K.Sreepathy Rao,

Aged about 73 years,

R/at No.102 Shiva Shree Gardens Block II,

R.R.Nagar, Bangalore-560 098.……COMPLAINANT

Rep by Sri.Rohit K.Reddy, Advocate

The BEML Employees Co-operative Society Limited,

Bangalore Complex,

Having Office at New Thippasandra Post,

Bengaluru-560 075,

Rep by its General Secretary.……     OPPOSITE PARTY

Rep by Sri.M.Sreekantaiah, Advocate

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint under Section-35 of Consumer Protection Act, 2019 seeking for a direction to the opposite party to allot residential plot/site in favour of the complainant in respect of vacant residential site and alternatively to refund the entire site deposit amount of Rs.7,40,000/- together with interest @ 21% p.a., from the date of payments till the date of actual payment and such other reliefs as this commission deems fit in the circumstances of the case.

 2. It is not in dispute that the opposite party is a registered Employee’s Co-Operative Society under the provisions of KCS Act, 1959 and Rules, 1960.  Further, it is not in dispute that the main object of opposite party society is to acquire lands, for formation of layouts and to distribute sites to its members on deposit as per seniority list duly approved by the Registrar of Co-operative Societies and also to provide credit facilities as loans to them.  Further, it is not in dispute that the complainant has become the member of opposite party-society and he has totally remitted a sum of Rs.7,40,000/- on different dates being part of site value.

3. It is the further case of the complainant that in spite of several continuous follow ups and requests, opposite party society has failed to allot the site and to execute the sale deed in favour of the complainant as promised.  Hence, the complainant got issued legal notice dt.21.12.2021 seeking for allotment of site or to cancel his allotment application and to issue the refund of the site deposit amount along with interest.  For that the opposite party has issued a reply dt.05.01.2022 stating that “a plot/site will be allotted as per the seniority list and the serial number of the complainant was 590”.   Since the complainant lost the faith of allotment of plot and fed-up with the services of the opposite party society, the present complaint came to be filed.

4. It is the further case of the opposite party that due to covid-19 and also due to some legal hurdles, the opposite party society could not allot the site to the remaining members of the society.  Further, the opposite party society never registered sites to non-members as alleged in the complaint.  Further, there is no pre-condition or contract between the complainant and the opposite party society for claiming interest at 21% p.a. Further, because of some legal hurdles there was delay but the same was not an intentional one and which was beyond the control of opposite party society and since legal hurdles were solved and project was completed a site measuring 30 X 40 feet will be allotted to the complainant, if he remits the balance amount of the site as fixed by the board of management of opposite party society.  Hence, it is sought to dismiss the complaint. 

5. To prove the case, the power of attorney holder of complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P4 documents.  The Secretary of opposite party-society (RW1) has filed affidavit in the form of his evidence in chief and got marked EX.R1 & R2 documents. 

6. Counsels for both parties have filed written arguments with citations.

7. Heard the counsel for the complainant.

         8. The points that would arise for consideration are as under:

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

   ii) Whether the complainant is entitled for the 

    compensation as sought ?

    iii) What order ?

   9.   Our findings on the aforesaid points 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

10.POINT NO.1:- The power of attorney holder of complainant(PW1) and Secretary of opposite party(RW1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief. The complainant has produced Power of attorney vide EX.P1.  There is no dispute with regard to the deposit of Rs.7,40,000/- by the complainant before opposite party.  In support of the oral evidence, the complainant has produced EX.P2 the receipts (3 in numbers) issued by the opposite party for having deposited the amount by the complainant.  The said receipts are sufficient to hold that the complainant had deposited the above said amount with the opposite party.  It is also written in the receipts that the said deposit was towards site. On perusal of the receipts, it appears that the initial deposit was made on 19.10.2006 and the last deposit on 08.04.2009.  According to PW1, he was expected the registration of the sale deed and even though he used to continuously follow up the status of his allotment of site, the opposite party society got on postponing the same on one or the other pretext by giving evasive replies.  In spite of that the opposite party did not allot the site. 

11. According to RW1, the opposite party society has taken up 10^th ‘A’ Stage in about 150 acres at Bengaluru North Taluk during the year 2005-06 for formation of layout but it is not yet completed due to some legal hurdles and could not formed layout and allotted sites to all the members.  Further, as soon as the layout is completed it would allot the site to its members on seniority basis.    Further, due to Covid-19 and due to some legal hurdles the society could not form the layout and not allotted the sites to the members.   I feel once the deposit is taken, it is the duty of the opposite party-society to allot the site in favour of the members.  It is also contended by the learned counsel for the complainant that in similar cases filed against the opposite party, this court and Hon’ble State Commission had given a finding that there was deficiency of service on the part of the opposite party.  Even though the complainant had issued legal notice to the opposite party vide EX.P3 dt.21.12.2021 seeking to execute the sale deed or to return the amount paid, the opposite party did not comply the demands rather had issued a reply dt.05.01.2022 vide Ex.P4 saying its difficulties to allot the site. 

12. It is the contention of the learned counsel for the complainant that the “cause of action remains continuous till allotment of site or refusal”.  In support of the contention, the counsel for the complainant relies the judgment rendered by Hon’ble NCDRC in Revision Petition No.1058/2014, dt.18.02.2014 in between Ravi Developments V/s Mr.Jayantibhai V.Ranka.  Further, counsel relies the judgment rendered by Hon’ble NCDRC, dt.01.02.2018 in between Saroj Kharbanda V/s Bigjo’s Estates Limited.  It is held in the said judgment that it is a well-established principle that even if the complainant had failed to deposit further amount with the opposite party builders, the later had no right to forfeit the amount deposited with them.   In view of the principles laid down in the said judgment and facts involved in the case on hand, we feel there is deficiency of service on the part of the opposite party. Accordingly, we answer this point in affirmative.

13.POINT No.2:- The complainant claimed seeking direction to the opposite party to allot the site.  Since as per the say of the opposite party, the layout has not been formed, the opposite party cannot be directed to allot the site in favour of the complainant.  Further, the complainant did not produce any documents to substantiate that the sites are ready to execute the sale deed to the complainant. The complainant alternatively sought refund of the deposited amount of Rs.7,40,000/-.  The opposite party is not supposed to keep the money of the complainant without any reason.  Hence, the opposite party shall return the said amount of Rs.7,40,000/-.  The complainant claimed interest at the rate of 21% p.a. from the date of payment. 

14. In support of the contention with regard to the interest to be awarded counsel for the complainant relies the judgment rendered by Hon’ble NCDRC in CC No.709/2015, dt.27.07.2016 in between Munish Aggarwal and another V/s Unitech Reliable Projects Private Limited.  In the said case, the complainants have formed a residential plot and the opposite party has failed to offer possession of the flat booked by them, though more than three years from the committed date of possession have already expired.    In the circumstances, the Hon’ble NCDRC directed the opposite party to refund the principal amount paid with interest at the rate of 18% p.a. 

15. Further, counsel relies the judgement rendered by Hon’ble KSCDRC in Complaint No.22/2012 dt.12.11.2013 in between N.S.Balakrishna V/s The BEML Employees Co-operative Society Limited.  The facts of the case in the cited judgment and the facts of the case are similar.  In the circumstances, the Hon’ble State Commission has directed to refund the amount paid with interest at the rate of 18% p.a. from the date of respective payments.  Further, the counsel relies the judgment rendered by Hon’ble KSCDRC in Complaint No.246/2016, dt.03.11.2017 in between Dr.Girish Krishnamurthy V/s BEML Employees Co-operative Society Limited.  The facts of the case in the cited judgment and the facts of the case are similar.  In the circumstances, the Hon’ble State Commission has directed the opposite party to refund the amount paid with interest at the rate of 12% p.a.  Further, in the similar said facts the Hon’ble NCDRC in Revision petition No.477/2019 against the present opposite party has passed an order to refund the amount deposited with interest at the rate of 12% p.a.

          16. Contrary to that the learned counsel for the opposite party has relied the judgment rendered by Hon’ble State Commission in Appeal No.659/2021.  The said case is also against the present opposite party.  In the said case Hon’ble State Commission has directed to refund the amount deposited with interest at the rate of 9% p.a., from the date of deposit.  By taking note of the principles laid down in the judgment cited by both the counsels and facts of the case involved, we feel the complainant is entitled for interest at the rate of 9% p.a. from the date of actual payment till realization.  Further, the complainant claimed a sum of Rs.1,00,000/- towards deficiency of service and Rs.50,000/- towards mental agony and a sum of Rs.50,000/- towards cost of litigation.  We feel the complainant is entitled for a sum of Rs.20,000/- towards mental agony and deficiency in service and a sum of Rs.10,000/- towards litigation expenses.  Accordingly, we answer this point partly in affirmative.

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

The complaint is allowed in part.

The opposite party is directed to pay a sum of Rs.7,40,000/- with interest at the rate of 9% p.a. from the date of actual payment till realization and a sum of Rs.20,000/- towards deficiency of service and mental agony sustained by the complainant and a sum of Rs.10,000/- towards litigation cost. 

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

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

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 9^th day of January, 2023)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

Witness examined for the complainants side:

Sri.S.Gururaju, Power of attorney holder of the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Power of attorney executed by the complainant.
2. Three Original receipts No.5884 dt.19.10.2006, No.626 dt.16.07.2008 and No.2175 dt.08.04.2009.
3. Office copy of the legal notice dt.21.12.2021 with RPAD receipt.
4. Reply letter dt.05.01.2022 with postal cover.

Witness examined for the opposite party side: 

Sri.H.S.Ravi Prasad, Secretary of the opposite party-society has filed his affidavit.

Documents marked for the Opposite Party side:

1. Office copy of the legal notice dt.21.12.2021.

2. Office copy of the reply dt.05.01.2022.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•