Sri M.C.DEVAKUMAR,

     Member

1. The Complainant Mrs. Shanthi has filed the complaint under section 12 of the CP Act 1986 alleging deficiency in service and unfair trade practice by the opposite party society represented by its secretary and seeking direction to allot a site measuring 40 X 60 feet in their layout by name Athmananda Sagara and to execute registered sale deed, to pay compensation of Rs.4,00,000/- for having caused mental trauma inordinate delay etc., with cost of the proceedings Rs.25,000/- and such other reliefs.

2.     The complainant submit that, he being an aspirant of purchase of site measuring 40 X 60 feet at Athmanandasagara layout, Mysure developed by the opposite party, he became a member of opposite party society on payment of the membership of Rs.1,020/- the opposite party society allotted the membership number as A-24153.  Subsequently he has paid Rs.1,20,000/- on 23.01.2007 towards allotment of a site mentioned above.  On 12.04.2007 he had deposited a sum of Rs.1,36,800/-.  Later on 18.09.2007, he had deposited a sum of Rs.1,36,800,  in all total sum of Rs.3,94,620/- has been deposited with the opposite party society.  While accepting the aforesaid amount opposite party has assured to develop, allot and execute all the relevant registered deed of conveyance would be done soon and possession of the said site would be handed over.

3.      Despite the payment of a substantial amount towards the allotment of site, the opposite party failed to allot the site in favour of the complainant till October 2019.  He learnt that the opposite party is executing the sale deed in favour of other members of the society by overlooking his seniority, even though he was ready and willing to get the sale deed executed in his favour  which is alleged as unfair trade practice.  Thereby he caused a legal notice on 22.01.2020 to the opposite party, but there was no response.  Hence, the complaint.

4.      The opposite party filed its written version and submitted that the society is registered under the Karnataka Co-operative Society Act 1959.  Further the opposite party also admitted the membership of the complainant in the year 2007.  The opposite party has raised objections that the complaint is not maintainable under the C.P. Act.  Thereby urged  the complaint is to be dismissed as not maintainable.  Further the opposite party submitted that  the payment of the amount by the complainant which is towards the advance amount for the allotment of site.  The complainant has paid the amount way back in the year 2007 thereby the complaint is barred by time as such prays for dismissal of the complaint.  Further the opposite party contended that in absence of execution of agreement, the complainant has no right to demand for allotment of a site and  the value of the site is increased due to development of the Mysore city, thereby the value of the property is enhanced.  The complainant has not paid the balance tentative consideration towards allotment of the site.  As such they have not allotted the site.  Hence, prays for dismissal of the complaint.

5. The complainant proved his contention by filing his affidavit evidence along with the documents marked as Exhibit P.1 to 7 and also filed the written arguments along with citation.

6.  After perusal of the records the matter is set down for orders.

7. The points that would arose for our consideration are as under:

1. Whether the complainant establishes the deficiency in service and unfair trade practice by the opposite party society and thereby he is entitled for the reliefs sought?

2. What order?

8. 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 ::

9. Point No.1:-  The counsel for the complainant contended that the complainant has paid Rs. 3,94,620/- towards allotment of a site measuring 40 X 60 feet developed by the opposite party society near Yelawala, Mysore Taluk in the year 2007.  The amount has been paid as fixed by the opposite party society while receiving the advance amount and later the complainant has paid entire amount to the opposite party society and eagerly waited for many long years anticipating the allotment of site developed by opposite party society, but the opposite party society has failed to allot the site in favour of the complainant.  Legal notice was also not replied by the opposite party which  caused mental agony, hardship to the complainant.  Hence, filed the complaint seeking reliefs.

10. The complainant also relied on the order passed by the Hon’ble National Commission reported in 2020 CJ 367 (NC) wherein the Hon’ble Commission held that upon failure to give the possession of the plot (site) is continuous wrong and constitutes a recurrent cause of action as such as long as the possession is not delivered to buyers, they have every right to approach the consumer courts seeking reliefs.  In view of the above, the counsel contended that the complaint is maintainable.

11. The opposite party has filed 4 IAs under section 26 of the C.P. Act and prayed for dismissal of the complaint as not maintainable, as barred by limitation.  The said IA’s were  came to be dismissed by this Commission on 18.12.2020 by imposing cost of Rs.10,000/- for having filed the frivolous applications with an ill intention of protracting the proceedings without allotting a site in favour of the complainant and to defeat his lawful right.  Further the opposite party counsel remained absent and not filed his written arguments and also not addressed oral arguments.  The opposite party has not paid the cost imposed on it, by this Commission, while disposing off the said IA’s.

12. With the above observations, we are of the opinion that  the opposite party society has failed to allot a site in favour of the complainant despite the payment, withholding the same has committed deficiency in service and unfair trade practice, thereby the opposite party society is liable to allot a site measuring 40 X 60 feet and execute Registered Sale Deed in favour of the complainant.  Further, the opposite party society is liable to pay the cost and compensation for the delay and for retention of the amount paid by the complainant within any valid reasons, which ultimately caused mental agony, hardship, etc.,.  Accordingly point No.1 answered partly in the affirmative.

13.  Point No.2:- In view of the above discussions, the complaint filed by Smt. Shanthi deserves to be allowed in part. Hence we proceed to pass the following:

:: ORDER ::

1. The complaint is allowed in part.
2. The opposite party society is hereby directed to allot a site measuring 40 X 60 feet in their Athmanandsagara layout, Yelawala, Mysore taluk in favour of the complainant and execute the registered Sale Deed and handover the possession with all the relevant documents within 60 days from the date of this order.
3. The opposite party society shall pay damages of Rs.1,00,000/- for having caused mental agony, harassment, hardship etc.,  Further the opposite party shall pay  cost of Rs.10,000/- towards cost imposed for having filed frivolous application, within 60 days from the date of this order.
4. The opposite party society shall pay Rs.5,000/- towards cost of this proceedings to the complainant within 60 days from the date of this order.
5.  Furnish the copy of order to both parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Commission on this the   12^th   May 2021)