Date of filing: 27.07.2021

Date of Disposal: 28.06.2023

BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 28^th DAY OF JUNE, 2023

CONSUMER COMPLAINT NO.333/2021

PRESENT:

SRI. SHIVARAMA,K:

Smt. Rekha Sayannavar: MEMBER

Sri. Patrick B. Francis,

S/o. Late. Bernard Francis,

Aged about 51 years,

R/at No.1, Sagaya Illam,

Gangamma Circle, Jalahalli,

(Sri. N. Shankar Rangareji, Advocate)

 V/s

The Coffee Board Employees Co-

Operative Housing Society Ltd.,

Rep. by its Secretary,

No.1, Dr. B.R. Ambedkar Veedhi,

(Sri. N. Nagesh and Sri. D.K. Sriramappa, Advocates)

******

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

      The complainant has filed this complaint u/s 35 (1) of the Consumer Protection Act-2019 seeking for a direction to the opposite party to allot a site measuring 30x40 feet and alternatively to refund the entire amount of Rs.7,00,000/- with interest at the rate of 24% per annum and such other relief as this commission deems fit in the circumstances of the case.

      2.  It is not in dispute that the opposite party is a registered housing co-operative society Ltd., and its main object was to acquire lands and to develop the layouts through the developers in and around Bangalore city.  Further, it is not in dispute that the complainant being a member in the society has applied for site in the year 2006 - 2007 and the complainant had paid sital deposit as per demand of the society at the rate of Rs.490/- per square feet.  Further, it is not in dispute that the complainant has filed an application seeking for an allotment of site for a dimension of 30x40 feet and had paid the entire sale consideration of Rs.7,00,000/-.  Further, it is not in dispute that the complainant had issued legal notice dated: 07.09.2013, 22.10.2013 and 01.02.2021 to the opposite party seeking to allot a site.  Further, it is not in dispute that the opponent agreed to allot residential site at Meesaganahalli village and not allotted.

2.  It is the further case of the complainant that the opponent despite of receipt of entire sale consideration amount from the complainant failed to allot a site but in the back door had allotted sites to certain chosen members.  Hence, there is deficiency of service on the part of opposite party. 

3.  It is the further case of the opponent that due to want of land the society had acquired another land at Chookanhalli village and it is under development and waiting for BAIPPA approval.  Hence, there is no deficiency of service on the part of opposite party.

      4.  To prove the case, the complainant (PW1) has filed affidavit in the form of her evidence in chief and got marked EX.P1 to P9 documents. 

5.  Counsels for both the parties have filed written arguments.

      4.   Heard the Arguments.

      5.  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 relief 

        as sought ?

     iii) What order?

 6.  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

      7. POINT NO.1:- PW1 has reiterated the fact stated in the complaint in the affidavit filed in the form of his evidence in chief.  To prove that he has paid the sale consideration of Rs.7,00,000/- PW-1 has produced Ex.P1, P3 and P5 paying in-slip and Ex.P2 letter dated: 05.01.2007 and Ex.P4 letter dated: Nil addressed by opposite party to the complainant.  Opposite party did not enter the witness box to give rebuttal evidence to the evidence of the complainant.  Hence, the oral and documentary evidence of PW-1 remained unchallenged.  

      8.  It is the contention of the learned counsel for the complainant that the opposite party being the service provider did not give the service as assured.  Contrary to that it is the contention of the learned counsel for the opponent that opposite party is not a service provider in terms of Section 2 (o) of CP Act 1986.  The object of opposite party society is to acquire lands and get the sites developed by the developers and the sites were sold for consideration.  House sites are basic for the construction of a house.  Formation of sites is required to put up house in the site.  Therefore, housing construction activity starts while applying for the sites to the society.  Hence, allotment of site comes within the meaning of housing construction.  Since, housing construction is also included within the meaning of service, we feel the opponent is a service provider as contemplated u/sec 2(o) of CP Act 1986.  Further, the present complaint is filed under CP Act 2019.  Therefore, Section 2 (42) of CP Act is also applicable.  Hence, there is no merit in the contention of the learned counsel for the opposite party.    

9.  It is the further contention of the learned counsel for the opponent that since opposite party is registered under the Karnataka Co-operative Society Act, the complaint is not maintainable.  We, feel since Section 100 of CP Act 2019 provides an additional remedy, there is no merit in the contention. 

10.  We feel there is a merit in the contention of the learned counsel for the complainant that since as assured, the site has not been allotted by the opponent, it amounts to deficiency of service as contemplated u/sec 2(11) of CP Act 2019.

11.  It is the further contention of the learned counsel for the opponent that there is a delay in approaching this commission.  The complainant had filed application u/sec 5 of limitation Act to condone the delay and the same was allowed by the order of this commission dated: 18.08.2021.  The said order has not been challenged by the opponent.  On perusal of the record it appears that on 07.09.2013 the complainant had issued notice vide Ex.P6 calling upon the opponent to allot site.  Further, in Ex.P7 letter dated: 16.09.2013 addressed by opponent to the complainant, the opponent had assured that after the approval of the plan by BIAAPA the sites would be registered.  Further, the complainant had issued notice dated: 22.10.2013 and 01.02.2021 vide Ex.P8 and P9 calling upon the opponent to allot the site.  Hence, we feel the complainant was under an anticipation that site would be allotted by the opponent.  Hence, there is no merit in the contention.  For the above said reasons, we feel there is deficiency of service.  Accordingly, we answer this point in affirmative.

      9.  Point No. 2:- Since, the complainant did not produce any documents with regard to the development been made in the layout and sites were ready for allotment, the complainant is not entitle for the register of the sale deed as sought.  Since, the opponent had retained the money of the complainant without any reason, it amounts to wrongful enrichment and the same is not permitted under the Contract Act.  Therefore, the complainant is entitle for the refund of the amount paid of Rs.7,00,000/-.  Since the opponent had used the money of the complainant, the opponent shall pay interest thereon from the date of payment till re-payment.  The interest claimed at the rate of 24% is highly exorbitant.  We feel interest at the rate of 9% would suffice.  Further, the complainant claimed Rs.10,00,000/- towards damages and a sum of Rs.1,00,000/- towards mental agony.  We feel the complainant is entitle for a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost.  The damages claimed is merged with the compensation granted towards mental agony.  Accordingly, we answer this point partly in affirmative.    

      10. POINT No.3:- In view of the discussions made above, we proceed to pass the following;

        Complaint is allowed in part.  The Opposite party is directed to refund the amount of Rs.7,00,000/- with interest at the rate of 9% per annum from the date of respective payment till realization and a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost to the complainant.

      2.  The opponent shall comply the order within 30 days from the date of order.  In case the opponent fails to comply the same within the above said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% per annum

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

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

(Dictated to the Typist to online computer and typed by him and corrected and then pronounced in the open Commission on 28^th day of June, 2023)

(Rekha Sayannvar)(SHIVARAMA, K)             

//ANNEXURE//

Witness examined from the side of complainant:

Sri. Patrick B. Francis, the complainant (PW-1).

Documents marked from the side complainant:

Witness examined from the side of opposite party:   

- Nil -

Documents marked from the side of Opposite Party:

- Nil –

(Rekha Sayannvar)(SHIVARAMA, K)