Karnataka

Bangalore 4th Additional

CC/14/1101

Sri. Venkatapathy T. k. - Complainant(s)

Versus

The commissioner Bangalore Development Authority - Opp.Party(s)

Srinivasamandiram

03 Apr 2018

ORDER

Complaint filed on: 18.06.2014

                                                      Disposed on: 03.04.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1101/2014

DATED THIS THE 03^RD APRIL OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Sri.Venkatapathy.T.K,

no.29/30, 3^rd cross

3^rd main, Hanumagiri

Nagar, Chikkallasandra, Subramanyapura Post, Bengaluru

 

By Adv.Sri.A.M.Gajendra     

 

V/s

Opposite party/s

Respondent/s:-

 

The Commissioner,

Bangalore Development Authority,

T.Choudaiah Road,

Bengaluru

 

By Adv.Sri.Narendra Gowda

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party (herein after referred as Op) seeking issuance of direction to pay a sum of Rs.5 lakhs with interest at 18% till the date of payment. Further direct them to pay damages, cost and to pass such other reliefs deem fit for which the Complainant is entitled to.

 

          2. The brief facts of the case of the Complainant are that, Op is a body incorporated under Bangalore Development Authority Act rendering services of acquiring lands with prior sanction from the government, forming layouts, allotting/distributing/auctioning sites of various dimensions to eligible persons. The Op has an obligation to meet the ever growing demand for viable housing plots and to achieve systematic growth of the city of Bengaluru. The Op had acquired lands, formed sites made allotments and distributed sites of varying sizes and dimensions. The Op had issued advertisement dtd.20.09.13 through various newspapers on an “As Is Where Is Basis” calling for interested persons being citizens of India to participate and bid for sites formed and formed out of sy.no.17 and 18 of Vasantpura in BSK V stage. Pursuant to the said notification, Complainant being a permanent resident of Bengaluru had participated by duly complying with all requirements as set by Op, and duly participated in the said e-auction and bid for a sum of Rs.68,700/- per sq.meter having selected the site no.87 (hereinafter referred as the said site) mentioned at sl.no.61 of the auction notification for its location, Vastu and marketable title believing the details as contained in the said auction document. The Op after completion of the process of e-auction had declared Complainant as the successful bidder with respect to the said site. In compliance with the terms as set out in the auction advertisement Complainant deposited 25% of his bid amount for the said site and confirmed his intention to buy the said site. The Complainant further submits that, on 28.10.13 the Op has issued a communication confirming the winning bid for the said site measuring 74.49 sq.mtrs for a total sale consideration of Rs.51,17,463/- further reiterating the terms & conditions governing the e-auction vide notification dtd.20.09.13. On 28.10.13 when Complainant received communication, he has alienated, terminated and rearranged his interest in various investments, forgoing various benefits and incentives in order to meet the financial requirements of the bid in the auction and had started to make necessary arrangements to meet the legal and financial targets. The Complainant further submits that, vide letter dtd.19.11.13 the Op informed him that an error has been committed by it in proper identification of the site, its measurements extent and total extent of the site no.86 falling in 5^th stage, BSK as identified in notification dtd.20.09.13. The Op has in the said letter dtd.19.11.13 further raised an illegal demand of Rs.16,01,397/- alleging that the real extent of the site no.87 was 23.31 sq.mtrs over and above what was earlier stated. The Complainant further submits that, this error was result of deliberate maladministration and perhaps also other unlawful acts causing injury to him. And the effort made by the Complainant towards making necessary arrangements has been upset due to the alleged error in the advertisement. The Complainant had brought the issue to the notice of the in-charge employees of the Op both orally and by means of legal notice dtd.12.05.14 in writing. The Complainant further submits that, it has not only harmed Complainant personally but the injury to the public is far more grievous when the feeling of helplessness of an ordinary citizen succumbs to the pressure of undesirable functioning of the Op. The treatment given to Complainant is absolutely unbearable, leading to mental agony and financial losses amounting to Rs.5 lakhs in course of the initial deposit of Rs.4 lakhs as EMD, subsequently payment of 25% of the bid value and expenses incurred in making necessary arrangements towards remaining sale consideration as per the bid terms & conditions. The Complainant further submits that, he made several requests to Op to arrange for damages in lieu of error in e-auction notification. However Op on one pretext or the other has declined to pay damages of Rs.5 lakhs. The retention of Rs.4 lakhs and 25% of the bid value for a period of more than 3 months and finally the unwillingness to even acknowledge their illegal, arbitrary conduct is opposed to law. Hence prays to allow the complaint

 

3. On receipt of the notice, Op did appear and filed version denying to pay the interest on the deposited amount. The sum and substance of the version of the Op are that, Op had issued a notification dtd.20.09.13 and issued advertisement in various newspapers announcing 105 sites of various dimension in the different layouts of BDA for e-auction including the said site. The Op further submits that, The Complainant had participated in the e-auction by depositing Rs.4 lakhs as initial deposit and bid for said site measuring 74.49 sq.mtr and he was the highest bidder. The Complainant being highest bidder was informed through email to deposit 25% of the sital value within 3 days from the closing date in terms of BDA Act. Accordingly the highest bidder has deposited a sum of Rs.8,79,366/- being the25% of the sital value on 10.10.13 excluding Rs.4 lakhs already paid. The Op further submits that, the auction confirmation committee in its meeting held on 26.10.13 by circulation among other cases had confirmed the auction sale of the said site in favour of the Complainant and confirmation letter was sent on 28.10.13 to pay sum of Rs.37,86,922/- being the 75% of the total site value of Rs.51,17,463/- within 45 days from the date of confirmation letter. The Op further submits that, the Executive Engineer, South Division, BDA in his report dtd.11.10.13 has reported that, at the time of proposing the site in question the site was covered with anthills and with 8 to 13 feet tall shrubs, hence the site could not be measured properly. Since the site has now been cleared and the correct measurement of site is taken and revised correct dimension report was furnished. As per the revised C.D. report the site dimension excessed to 23.31 sq.mtr and the total extent is 97.80 sq.mtr and the total cost of the site was worked out to Rs.67,18,860/-. Accordingly the Complainant was informed on 19.11.13 to pay the revised cost of the site. The Op further submits that, in reply to letter dtd.19.11.13, the Complainant in his letter dtd.30.11.13 had expressed his inability to pay the revised site value, therefore requested to refund Rs.12,79,366/- being the 25% of the site value already paid to BDA. As there was no provision to pay interest, Rs.12,79,366/- was refunded and the same has been acknowledged by the Complainant and the auction sale has been cancelled. The Complainant in his letter dtd.24.01.14 has requested the BDA to pay interest at 21% on the amount refunded to him. His request has been rejected vide office letter dtd.11.02.14. As the sites are auctioned on “As Is Where Is Basis”, there is no deficiency of service rendered to the auction site purchaser/Complainant. Hence prays for dismissal of the complaint.

         

          4. The Complainant to substantiate his case filed affidavit evidence and produced documents as Annexure A to G. Finance Member of BDA filed affidavit evidence and not produced any documents. Written arguments filed by Complainant only. We have gone through the available materials on record. Heard.

  

5. The points that arise for our consideration are:

1. Whether is there any deficiency of service on the part of Op, if so, whether the Complainant entitled for the relief sought for ?  
2. What order ?

                   

           

 

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

 

Point no.1: In the Affirmative  

Point no.2: As per the final order for the following

 

REASONS

 

          7. Point no.1:  Ongoing through the available materials on record, Op has admitted the contents of para 3 to 6 of the complaint. Only grievance of the Complainant is that, Op though returned his deposited amount, did not pay the interest on it. In this context, the say of the Op is at para 3 to 5 of its version stating that there is no provision to pay the interest on Rs.12,79,366/- which is the 25% of the sital value which has been refunded vide cheque no.953234 and acknowledged by the Complainant on 10.01.14 and the auction sale has been cancelled. As to know, whether, non-paying interest on the said amount paid by the Complainant is amounts to deficiency of service is the question that crops up for our consideration. In the similar type of case, the Hon’ble National Commission in the decision reported in III (2017) CPJ 57 NC in the case of Syndicate Bank & Ors v. Professor K. Venkeshwara Rao, wherein it is held as under:

Consumer Protection Act, 1986 – Sections 2(1)(g), 14(1)(d), 21(a)(ii) – Auction – Cancellation – wrong information in auction notice by bank – deficiency of service – State Commission allowed complaint – hence appeal – Complainant has suffered in whole process of auctioning as he was declared successful bidder, but he could not get sale deed executed in spite of payment of total bid amount in time – Even though there was some less area in plot, but Complainant never asked for cancellation of auction – Auction proceedings were vitiated by fact that auctioned plot did not have exact area that was mentioned in auction notice and Complainant did not give his response to two options sent by bank in writing – No deficiency in cancelling auction proceedings – Complainant deserves compensation for harassment and mental agony that he has faced due to deficiency on part of bank that appellants wrongly mentioned area of auction property in auction notice – As interest has already been awarded on amount deposited by the Complainant, Complainant has been appropriately compensated so far as money aspect is concerned – Rs.50,000/- awarded for harassment and mental agony.

 

8. In the instant case, Op has not specifically informed the exact measurement of the site. If the measurement found to excess, before the auction, it ought to have been get it ascertained and called for the auction. In that event, Complainant would think over the matter. When such being the fact, act of the Op subsequently cancelling the auction and returned the money deposited by the Complainant without interest is amounts to deficiency of service. In this view of the matter, we come to the conclusion that, Complainant is entitled to get interest at the rate of 12% p.a. on the refunded amount of Rs.12,79,366/- from the date of its deposit to till the date of refund. In the light of the decision cited supra, we fixed Rs.10,000/- towards litigation expenses and further a sum of Rs.50,000/- towards compensation for mental agony. Accordingly we answered the point no.1 in the affirmative

 

9. Point no.2: In view of findings on point no.1, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is hereby allowed.

 

          2. Op is directed to pay interest at the rate of 12% p.a. on the refunded amount of Rs.12,79,366/- from the date of its deposit to till the date of refund. 

 

3. Op is also directed to pay Rs.10,000/- being the litigation expenses and Rs.50,000/- towards compensation for mental agony.

 

          4. Op is directed to comply this order within six weeks from the date of receipt of this order, failing which, the Complainant is at liberty to have the redress as per law.

 

 

 

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer in the open forum and pronounced on 03^rd April 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.Venkatapathy.T.K. who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Annex.A	Advertisement
Annex.B	Auction notification declaring the bid of Complainant as winning bid
Annex.C	Bank challan
Annex.D	Communication dtd.11.02.14
Annex.E	Letter dtd.19.11.13
Annex.F	Legal notice dtd.12.05.14
Annex.G	Original Postal receipt

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.K.N.Gangadhar, who being the Finance Member of BDA was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

NIL -

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT