CC No.122.2017

Filed on:24.01.2017

Disposed on:22.01.2018

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 22^nd DAY OF JANUARY 2018

CONSUMER COMPLAINT NO.122/2017

PRESENT:

 Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

         PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                       MEMBER

                                    V/S

ORDER

BY SMT.L.MAMATHA, MEMBER

1. This Complaint was filed by the Complainant on 24.01.2017 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to refund the amount paid without the delay with an interest of 24% from the date of payment of advance of Rs.2,00,000/-. To pay Rs.10,000/- towards the cost litigation, to pay sum of Rs.2,90,000/- as an addition compensation for the inconvenience and mental agony and other reliefs.   

2. The brief facts of the complaint as under:

In the complaint, the Complainant states that the Opposite Party is engaged in the activity of providing the House sites to its members.  The Complainant is a member of the Opposite Party having Membership No.047 vide receipt No.557 dt.09.09.2008.  The Complainant had applied for allotment of site from the Opposite Party in a hope that the Opposite Party would allot a site with a good and valid title.  The Complainant has paid a sum of Rs.2,00,000/- towards the allotment of site.  The Complainant invested hard earned money and unable to reap the fruit of investment because of the unfriendly and uncooperative attitude of Opposite Party.  Inspite of huge amount of payment made by the Complainant, till date the site allotment or any other information has not been conveyed.  Many number of visits has been made by the Complainant to the office of Opposite Party.  Nothing progressive has happened.  Thus the Opposite Party has been received, betrayed and put the Complainant in huge financial loss and inconvenience.  There is a total deficiency in the service and non-co-operation on the part of the Opposite Party and having received huge amount of Rs.2,00,000/- in the Year 2008, the Opposite Party has not allotted a proper house site even a delay of 8 long years, though sites were available in the layout.  If the allotment was made at that time, the market rate of the site would have been increased substantially, and the Complainant would have earned good value for the site.  But on the account of the deficiency of the service of the Opposite Party, the Complainant has been deprived from the profit and suffered from mental agony and irreparable loss.  The dispute between parties is a ‘Consumer’ dispute as defined under Consumer Protection Act.  On account of deficiency in service and irreparable attitude of the Opposite Party, the Complainant got issued Legal Notice on 06.11.2016.  Hence, this complaint.

3. In response to the notice, the Opposite Party put their appearance through their Counsel and filed their version.  In the version pleaded that the entire complaint are totally incorrect and is hereby denied as false and the Complainant is strict to proof of the same.  The Opposite Party is not a Housing Society and it is an Association and it has formed a residential layout and allotted to its members and hence there is no question of profitable business or transaction.  The Complainant is a member of the Opposite Party Association and she has paid Rs.2,00,000/- towards the allotment of site in 2^nd Phase proposed Layout and hence the proposed layout is not yet completed, the Complainant is not entitle to seek refund of amount from the Opposite Party.  As such the present complaint is not maintainable.  There is no deficiency in service on the part of the Opposite Party and it is assured that the site will be allotted in the proposed layout to the Complainant without fail immediately after completion of the legal process and layout formation. Therefore, the Opposite Party is not liable to pay the amount to Complainant and since Opposite Party is ready and willing to allot the site in her favour.  The complaint is Pre-mature one and there is no cause of action for the complaint and there is no deficiency in service.  The prayer for an additional compensation for the inconvenience and mental agony cannot be considered at this stage and when the Opposite Party is ready to allot the site the question of granting such relief does not arise at all.  No such notice has been served on the Opposite Party as alleged by the Complainant hence the statutory notice has not been complied.  If at all the Complainant is not ready to wait for formation of proposed layout then the Opposite Party will refund the deposited principle amount without interest within the time frame since there is no fault committed by the Opposite Party.  Hence prays to dismiss the complaint.
4. The Complainant, Smt.Latha R has filed her affidavit by way of evidence and closed her side.  On behalf of the Opposite Party, the affidavit of one Sri.B.M.Nataraj has been filed.   Heard the argument of Complainant.

5.  The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party ?

2. If so, to what relief the Complainant is entitled?

6.  Our findings on the above points are:-

                POINT (1):- Affirmative

                POINT (2):- As per the final Order

REASONS

7. POINT NO.1:- As looking into the averments of the Complainant and also version filed by the Opposite Party, it is not in dispute that the Complainant is a member of the Opposite Party’s Association.  This fact is supported by the membership No.047 vide receipt No.557 Complainant had applied for allotment of site from the Opposite Party and paid a sum of Rs.2,00,000/- towards the allotment of site on 09.09.2008.  But the Opposite Party failed to allot a site and also information has not been conveyed.  The Complainant visited Opposite Party’s Office many times but Opposite Party kept on postponing by giving one or other reason.  The Complainant spend her hard earned money to purchase the site to herself and her family and having been swayed by the advertisement and promises made by the Opposite Party.  But the Opposite Party failed to perform his good service to the Complainant.  The Complainant is living in rental house since from 2008 by paying Rs.12,000/- p.m.  She was not able to construct the own house due to the deficient act of the Opposite Party.  Because Opposite Party till today not allot the site infavour of the Complainant to construct the house.   If the allotment was made at that time, the registration charges would have been low at that time but now it is increased more.  Since from 2008 till today Complainant visited Opposite Party’s office regularly.  But they assured false promises.  On 06.11.2016 Complainant issued notice to Opposite Party to refund the advance amount with interest effect from that date of payment, the said notice served to Opposite Party.  Even after receipt of notice, the Opposite Party neither replied the notice nor refund the advance amount.
8. The defence of the Opposite Party is that the entire complaint is totally incorrect.  It is true that the Complainant is a member of the Opposite Party Association and she has paid Rs.2,00,000/- towards the allotment of site in 2^nd phase proposed layout and hence the proposed layout is not yet completed,  the Complainant is not entitle to seek refund of amount from the Opposite Party.  As such the present complaint is not maintainable.   It is assured that the site will be allotted in the proposed layout to the Complainant without fail immediately after completion of the legal process and layout formation.  Therefore, the Opposite Party is not liable to pay the amount to the Complainant and since Opposite Party is ready and willing to allot the site in her favour.  The complaint is premature and there is no cause of action for the complaint.  The prayer for an additional compensation for the inconvenience and mental agony cannot be considered at this stage and when the Opposite Party is ready to allot the site, the question of granting such relief does not arise at all.  No such notice has been served on the Opposite Party as alleged by Complainant, hence the statutory notice has not been complied.  If at all the Complainant is not ready to wait for formation of proposed layout, then the Opposite Party will refund the deposited principle amount without interest within time frame, since there is no fault committed by the Opposite Party.  Thereby there is no deficiency of service on the part of the Opposite Party.  On the other hand, the Complainant argued that the Opposite Party is an Association engaged in the activity of providing house sites to its members. The Complainant is a member of Opposite Party. Her membership No.047.  The Complainant applied for allotment of site from Opposite Party with a hope that Opposite Party would allot a site with a good and valid title and paid Rs.2,00,000/- on 09.09.2008.   But the Opposite Party till today not allot the site.  The Complainant spend her hard earned money.  Due to deficient act of Opposite Party Complainant suffered mental agony and financial loss.  If the allotment was made at that time, the registration charges would have been low at that time but now it is increased more.  The Opposite Party in their version agreed that he has received amount.  But till today not allot the site.  This is purely amounts to deficiency of service to the Consumer. 

9.   With this arguments no doubt the Complainant is a member of Opposite Party Association and paid Rs.2,00,000/- on 09.09.2008.  Though the Complainant is paid her hard earned money with hope that the Opposite Party would allot site with a good and valid title.  But till today the Opposite Party did not allot site.  Already 10 years over.   If the allotment was made at that time the registration charges would have been low at that time.  But now it is increased more.  It is not proper to accept the contention put forth by the Opposite Party.  As rightly argued by the Complainant even though Complainant requested Opposite Party either to allot site or refund amount.  But Opposite Party failed to comply the same.  This clearly shows that there is deficiency of service on the part of the Opposite Party.  As a result, the Complainant sustained mental agony and financial loss, since from the Opposite Party delayed to allot site.  Thereby, it clearly goes to show that the act of the Opposite Party is amounts to deficiency of service.  Hence, this point is held in the affirmative. 

10.  POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is allowed holding that there is deficiency of service on the part of the Opposite Party.

The Opposite Party is directed to refund Rs.2,00,000/- along with interest at 18% p.a. from the date of payment till the date of realization. 

The Opposite Party is directed to pay a sum of Rs.2,00,000/- as compensation to the Complainant for causing mental agony. 

The Opposite Party is further directed to pay a sum of Rs.5,000/-towards cost of this litigation to the Complainant.

The Opposite Parties are directed to pay aforesaid amount within 45 days from the date of this order.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 22^nd day of January 2018).

        MEMBER                                           PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Smt.Latha R, who being the Complainant has filed her affidavit.

 List of documents filed by the Complainant:

1. True copy of the receipt issued by the Opposite Party
2. Office Copy of the Notice
3. True Copy of the postal acknowledgment

Witness examined on behalf of the Opposite Parties:

1. Sri.B.M.Nataraj, President of Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

                             Nil

MEMBER                                                             PRESIDENT