BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.70/2018

DATED ON THIS THE 13^th July 2018

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

                     2) Sri. Devakumar.M.C.                  

                                                B.E., LLB., PGDCLP   - MEMBER

Sri H.M.SHIVAKUMARA SWAMY,

President

1.     This complaint is filed for a direction to the opposite party to refund a sum of Rs.14,00,000/- with interest at 24% p.a. from 09.01.2013 till payment and also to direct the opposite party to refund Rs.3,200/- being the membership fee with interest and compensation and litigation expenses.
2.     The brief facts alleged in the complaint are that the opposite party is a registered society, the complainant being a government servant became a member of opposite party society by paying membership fee on 14.10.2012.  The opposite party promised that it would allot the site in 6 months from the date of payment of consideration.  Believing the same and with an intention to get site measuring 40 x 60 ft., the complainant paid a sum of Rs.8,00,000/- on 14.10.2012 and another sum of Rs.6,00,000/- was paid on 09.01.2013, totally he has paid Rs.14,00,000/- to the opposite party society.
3.     Even after lapse of 4 years, the opposite party society has not allotted the site as per promise.  The complainant considering the failure of opposite party in non-allotment of site as requested for refund of amount with interest.  On request, the complainant has given a letter on 18.06.2016 to the opposite party.  In spite of several requests, the opposite party did not refund the amount with interest.  Hence, a legal notice was issued on 15.11.2017 and this complaint is filed for deficiency of service on the part of opposite party and reliefs sought for.
4.      Opposite party appeared and filed the following version:- The allegations of the complainant are not correct.  It is not correct to say that the complainant has applied for site measuring 40 x 60 ft., on the other hand, he has applied for 50 x 80 ft. site.  It is admitted that the complainant has paid Rs.14,00,000/- and he is still due in a sum of Rs.5,20,000/- and the same has not been paid.  The complainant has not completed and fulfilled all the formalities as per the instructions.  Thereby, it is not admitted that the society has not allotted site as promised. As per seniority list approved by concerned authorities, site has been allotted and registered to its members.  There is no failure in non-allotment of the site on the part of opposite party.  The delay in non-allotment of site to the complainant is due to the above said reason, it is not intentional. It is admitted that the complainant has given a letter for refund of amount with interest.  The society is ready to return the amount received and share amount also since the amount is already invested by the society, it is not ready to pay the interest or compensation.  Accordingly, the opposite party sought for dismissal of this complaint.
5.     On the above contention, this matter is set down for evidence.  During evidence, complainant has filed his affidavit evidence and further evidence closed.  On behalf of opposite party society, Secretary of opposite party society has filed his affidavit evidence and further evidence closed.  After hearing both sides, this matter is set down for orders.
6.    The points arose for our consideration are:-

1. Whether the complainant establishes that there is deficiency of service on the part of opposite party in not allotting the site, thereby complainant is entitled for the reliefs?
2.  What order?

7.    Our findings on the aforesaid points are as follows:

Point No.1 :- Partly in the affirmative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

8.    Point No.1:- It is not in dispute that the complainant became a member of opposite party society and he has paid Rs.14,00,000/- to the opposite party during January 2013 itself.  In spite of the payment, the opposite party did not allot the site and case of opposite party is that the complainant has applied for site measuring 50 x 80 feet and not 40 x 60 feet as claimed.  Thereby, the complainant is still due for a sum of Rs.5,20,000/- for site measuring               50 x 80 ft.  Thereby, the complainant himself has not fulfilled the formalities as per instructions and not paid the entire consideration relating to the site measuring 50 x 80ft.  As such, the opposite party has not allotted the site for non-payment of the remaining amount and the opposite party is ready to refund the amount paid towards sital value and also Rs.3,200/-, but not the interest or compensation as claimed by the complainant.  Now, the Forum has to assess whether complainant is entitled for interest to the amount paid by him and also compensation and such other reliefs, since the complainant has paid total sum of Rs.14,00,000/- prior to 09.01.2013 itself even in 2018 there is no progress in allotting the site.  The opposite party society has taken a contention stating that complainant has not applied for                40 x 60 ft. site instead he has applied for 50 x 80 ft.  Thereby, complainant has to pay the remaining balance of Rs.5,20,000/- for allotment of site and his name will not find place in seniority list since there is amount due from him. 
9.    Ofcourse, the amount remitted by the complainant is totally Rs.14,00,000/- if there is any due towards the sital value, the opposite party society ought to have given a letter to the complainant to pay the remaining balance towards site measuring 50 x 80 ft., in spite of letter dated 08.06.2016 and letter dated 12.02.2017, the opposite party has not refunded the amount.  Thereby, this Forum finds that the opposite party has made use of the amount paid by the complainant for improvement of the layout and not allotted the site to the complainant amounts to deficiency in service on the part of opposite party. In the circumstances, no more the complainant is not expected wait for allotment of site.  Thereby, this Forum finds that it is a fit case for refund of the amount paid by the complainant with interest and also compensation and litigation expenses.   Hence, point No.1 is answered partly in the affirmative.
10. Point No.2:- In view of the findings recorded on point No.1, opposite party is liable to refund Rs.14,00,000/- deposited by the complainant with interest at 18% p.a. from the last payment i.e. 09.01.2013 till payment.  The opposite party is also liable to pay compensation of Rs.50,000/- and litigation expenses of Rs.2,000/- to the complainant.  Hence, we pass the following order:-

:: O R D E R ::

1. The complaint is allowed in part.
2. The opposite party is hereby directed to refund Rs.14,00,000/- + Rs.3,200/- = 14,03,200/- to the complainant with interest at 18% p.a. from 09.01.2013 till payment.
3. The opposite party is directed to pay compensation of Rs.50,000/- along with litigation expenses of Rs.2,000/- to the complainant within 45 days from the date of this order.  Failing which the opposite parties shall pay interest at 12% p.a. on the said total sum of Rs.52,000/- from the date of this complaint i.e. 03.02.2018 till payment.     
4. In case of default to comply this order, the opposite party to undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
5. Give the copies of this order to the parties, as per Rules.