BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 27^TH DAY OF JULY 2022

ORDER

SRI.H.JANARADHAN, MEMBER

1. This complaint filed by the complainant under section 35 of C.P. Act, 2019 seeking reliefs for directing the OP to pay  amount of Rs.4,81,020/- along with 18% p.a. interest, pay Rs.1,00,000/- towards mental agony and cost of litigation and such other reliefs.

2.The brief facts of the complaint are  as follows:

The complainant  being  the member of the OP society had applied for site in the OP society and having paid Rs.4,81,020/- in the year 2012 and the complainant has made application for the allotment of site measuring 30X40 ft. in the Ayushman Bhavan layout in the year June 2011. Subsequently, in the month of August 2011 and 2012 he had made payment of Rs.4,81,020/-. The OP society had acquired certain lands for the development of layout in the various parts of Karnataka. OP society announced that after developing said Ayushman bhavan layout at Bidaraguppe village, Attibele hobli, Surjapur road and assured that OP would take approval from the BMRDA within 2-3 years. The layout would be developed  and would be ready for registration. After which the complainant repeatedly visited the OP office for allotment  of the site, but OP informed the  complainant  that it would obtain BMRDA approval vide no.UDD/173/BRM/2006 and assured all the formalities would be completed and the site will be allotted. Again there was no action by the OP. After frequent requests  of the complainant OP society on 23.12.2016 admitted there is delay in delivery of sites as the land in which sites would be developed in the subject matter of the litigation. OP again made communication  on 05.02.2020, assuring that they would be complete  pending layout on or before September 2020, but till today OP has neither performed their part of duty by developing the layout nor allotted the site. Even the complainant had made substantial payments to the OP, waited for more than 9 years for the development of the layout. Though the complainant waited till 2020 there was no further progress. Finally, the complainant got issued legal notice on 04.02.2021 to the OP and alleged deficiency in service on the part of the OP and filed the present complaint.

3.  After receipt  of notice, OP appeared through their counsel and filed vakalath, but inturn not filed version. The version of the OP is taken as not filed.

4.  The complainant lead his  affidavit evidence and got marked exhibits A1 to A10.

5.   The complainant filed written  arguments.

6.  The following points arise for our consideration.

1. Whether complainants prove deficiency of service/negligence on the part of the OPs?

2. Whether the complainants are entitled to the reliefs mentioned in the complainant?

3. What Order?

7. Our answer to the above points are as under:

Point No.1:- Affirmative in part.

Point No.2:- Affirmative in part

Point no.3:- As per the final order.

REASONS

8. Point Nos.1&2 :. On perusal of  pleadings and evidence of the parties, it is proved that the complainant became the member of OP society as per annexure-A2 and have paid an amount of Rs.4,81,020/- in the year 2011 and 2012 itself. Subsequently, the complainant had made application to the OP for allotment of the site measuring 30X40ft. in the Ayushman Bhavan layout in the year 2011 and the application filed by the complainant can be seen in exhibit A3 of the complaint and have made payment to the OP regarding above said site as per exhibit A6. Subsequently, after receiving the payments,  the OP goes on assuring the complainant that they are forming layout in the Ayushman Bhavan layout, Bidaraguppe village, Sarjapura road, Athibele hobli and kept assured that they are getting approval of BMRDA within two to three years and further communication was also made by the OP regarding status of the site as per Annexure A8. Further, the complainant followed up with the OP for allotment of site, but OP kept on saying that they are going to allot the site after getting approval from the BMRDA and subsequently, the complainant came to know that there is pending litigations in  the above said layout and communication was also made by the OP regarding the same. The OP was not able to perform its part of duty of allotment of site. The OP had not developed the  layout and made complainant to wait for 09 years, but OP had not shown  any progress even after laps of 9 years. Finally when the complainant  followed up with OP and requested the OP either to allot the site or refund the amount, but the OP was not able to get the approval from the competent authority and kept hard earned money of the complainant for  more than 09 years amounts to deficiency of service. When the OP was not able to allot the site, in that event the OP  would have refunded the amount to the complainant, but OP had kept hard earned money of the complainant is nothing but unfair trade practice. When the complainant had proved deficiency of service on the part of OP for non-payment of the sital amount is unfair trade practice performed  by the OP. In the reported decision of the Hon’ble Supre Court of India in Alok Shank Pande V/s Union of India and other (II)(2007)CPJ(C)SC is held that the interest is not penalty nor punishment  at all, but normal accretion of capital with equity and the  person keeping money is required to pay interest being normal accretion of the principle amount. When the above citation, the OP had kept hard earned money of the complainant, they have to pay interest. In the above points we deem that OPs are liable to refund amount of Rs.4,81,020/- along with interest at 9% p.a.  as held by other judgments of Hon’ble Supreme Court of India. When the interest is awarded at 9% p.a. awarding compensation does not arise as it is included  in awarding the interest. Further the complainant  has engaged service of advocate for conducting case. For such being the case the cost of litigation is quantified at Rs.10,000/-. Further, to keep time frame on the OPs for compliance of the order. We deem that 60 days time is sufficient  to comply the said order.

9. Point no.3:-.  Accordingly, we proceed to pass the following

O R D E R

1. The complaint is allowed in part.
2. The OPs are directed to refund Rs.4,81,020/- to the complainant from the date of respective payment till realization  along with interest at 9% p.a. and pay  Rs.10,000/- as cost of litigation.
3. The Ops  shall comply this order within 60 days from this date, failing which the OPs shall pay interest at 12% p.a. on Rs.4,81,000/- after expiry of 60 days till realization.
4. Furnish the copy of this order to both the parties and return extra pleading and documents to the parties.

• Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 27^thday of July, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 : Nil