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

DATED 15^TH DAY OF JUNE 2023

ORDER

SMT. K. ANITA SHIVKUMAR, MEMBER

Complaint filed U/S 35 of Consumer Protection Act 2019, claiming direction to OP to repay an amount of Rs.13,21,530/- with interest at the rate of 18% per month [i.eRs.43,32,931.08], from date of respective deposits till the payment of such other relief.

2. Brief facts of this case are as follows:-

Complainant is potential member of OP society that is Ministry of Communication Employees Co-operative Housing Society limited bearing membership No. 11095A and the complainant has paid all the relevant charges including admission fee, share fee, share amount and etc. Subsequently complainant has applied for allotment of site in the purchased layout formed by OP society measuring 40*60 by paying necessary charges. After considering the request of the complainant OP considered the same, accordingly complainant has paid sum of Rs.2,25,000/- through cheque dated 02.04.2005 bearing No.015455 at the State Bank of Mysore. After the receipt of said cheque amount, OP has issued acknowledgement on 08.06.2005. There-after complainant has paid sum of Rs.2,25,000/- on 05.09.2005 and again paid sum of Rs.3,06,000/- on 06.05.2009 towards the sital value for allotment of a site by OP society.

3. Complainant stated that OP society has issued the notice dated 24.12.2012 sought for the further payment by complainant towards purchase of land and development charges and requested to pay sum of Rs.2,16,000/- on or before 31.01.2013. As per the said notice complainant paid Rs.2,16,000/- on 31.01.2013. OP has further issued notice calling upon complainant to pay Rs.3,48,000/- accordingly complainant has paid Rs.3,48,000/- on 23.10.2013.

4. Complainant alleged that OP has once again issued notice on 31.07.2021 calling upon complainant to pay revised site cost from Rs.645/- to Rs.880/- without disclosing any information about the proposed layout, survey numbers of layout is formed, survey number of which the site is going to allot and approved layout plan.

5. Complainant further alleged that OP is keep on issuing notice for further payment but not disclosed any information about the formation of layout and allotment of site. Complainant stated that he has already paid entire sital value of Rs.13,21,530/-. Hence complainant is requesting for allotment of site or alternatively repayment of amount with interest. Complainant has issued legal notice on 19.05.2022 which was duly served on OP. OP neither replied to the said notice nor taken any further steps for allotment of site. Hence complainant approached this commission for the relief.

6. OP made its representation through its counsel and filed version on behalf of OP. In the version, OP denied all the allegations made in the complaint and stated that society is established for the purpose of converting the land and formed sites for the purpose of allotting sites to its members. Accordingly complainant has become member of the society to get the allotment of site from OP society. OP further stated that society has converted the land for the purpose forming the site at bagalur and Bangalore north taluk. Accordingly formed the layout after obtaining the approval and permissions from the authorities. OP contends that complainant has complied for the allotment of site measuring 40*60 dimension in membership No. 11095A. He further contends that the sites allotted based on the seniority, the complainant yet to wait for his seniority for the allotment of site. OP assures in his version that society is functioning for allotment of site to its members as earlier as possible by complying with all required norms and working to the best of its ability. Hence OP stated that there is no deficiency of service on the part of society in allotting the site and paid for dismissal of this complaint.

7. Both the parties filed their affidavit evidence, reiterated as stated in the complaint and version respectively. Complainant filed 9 documents in support of his evidence, which are marked as Ex.P.1 to Ex.P.9. Subsequently OP filed 2 documents in support of its version which are marked as Ex.R.1, R.1(a) and Ex.R.2, R.2(a) and R.2(b). Both the counsels filed written arguments. OP counsel filed citations. We perused the documents on record.

8. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant has proved the deficiency of service on the part of OP?

ii) Whether complainant is entitled for the relief?

iii) What order?

9.  Our answers to the above points are as follows:-

Point No.1:- In the affirmative

Point No.2:- Partly affirmative

Point No.3:- As per the final order

REASONS

10. Point No.1:- OP has formed housing co-operative society with an objective of developing the land to form the layout for its members to allot sites. Complainant is also become an associate member of said housing co-operative society with a membership No.11095A having dream of site at Bangalore. For that he paid Rs.13,21,530/- towards sital value in 5 installments, which is not disputed and receipts issued by OP evidenting the payments. Complainant has paid sum of Rs.2,26,530/- as first installment which commenced from 25.06.2005. Subsequently complainant has paid Rs.2,25,000/- on 05.09.2008, Rs.3,06,000/- on 06.05.2009, Rs.2,16,000/- on 13.01.2013 and Rs.3,48,000/- on 23.10.2013, which are at Ex.P.1 to Ex.P.7. After the receipt of 3 installments OP issued notice on 24.12.2012 to complainant to pay Rs.2,16,000/- and issued notice again on 31.07.2021 calling upon the complainant to pay revised site cost that is from Rs.645/- to Rs.880/-. Complainant allegation is that OP has not disclosed any information about proposed layout, survey number in which the layout is formed and the survey number of which site is going to allot to complainant. Without any relevant information with regard to the site and layout, OP keep on demanding the huge amount from the complainant which became Rs.13,21,530/-. Even after the receipt of Rs.13,21,530/- OP did not disclosed any information about the layout and site again sent notice to complainant demanding money as it is revised site cost which is at Ex.P.8, is not fair. When the OP has received the site cost since from 2005 as not disclosed anything, keeping the complainant in dark. It was bonafide responsibility of OP to inform its members at least about the status of development and the permissions from the authorities. Therefore complainant has issued legal notice on 19.05.2022 to OP requesting to allot the site or refund the amount paid with interest at the rate of 21% per annum. The legal notice was duly served on OP. OP neither replied to the legal notice nor allotted the site as he claimed. OP has taken stand that OP has already formed layout near Bagalur and Bangalore north taluk, OP is going to allot the site to the members based on the seniority. OP admitted that complainant is a associate member of the society who is eligible to get allotment according to his seniority. OP stated that he is ready to allot the site or if in case the complainant is opting to withdraw deposit, OP has to deduct 10% from the amount paid as per the agreement.

11. On perusal of the pleadings of OP, OP has stated that the annual general body meeting was held, the sites measuring 40*60 dimension even allotted up to the membership No.11070A on seniority basis. The said condition was agreed by the complainant at the time of opting membership. OP also stated that the said society is ready to allot the site on seniority basis.

12. As stated by OP supra OP is going to allot the site to complainant in the next forthcoming layout. In our considered view complainant has paid since 2005 and waited till now believing the assurances of OP, is went in vain. Hence in our considered view, complainant has invested money 18 years back, which is not short one. It shows OP unnecessarily dragged the mater taking shelter under allotment is “on seniority basis” and trying to show he is responsible. But it is not acceptable. If at all OP allotted the site on ‘seniority basis’, complainant could have construct his own house and spent almost 10 years of stay. On the other hand, OP has not produced the list of members to prove the complainant’s seniority. In our view, no developer takes 18-20 years to form layouts and allot site to the investors. It exhibits his negligence attitude towards complainant and deficiency of service on the part of OP.

13. Complainant claimed for refund of money for which OP is ready to refund. Therefore complainant is entitled to get refund. On the above reasons we answer Point No.1 in affirmative.

14. Point No.2:- As the complainant claimed Rs.13,21,530/- with 18% interest per month, i.e Rs.43,32,931/-. OP has no objection to refund the amount, by deducting 10% paid amount as complainant agreed to the terms and conditions. But when the OP, himself has not abide by his own terms and conditions, OP has no rights to insist the same to complainant. Hence, OP is not eligible to deduct 10% from the amount paid. Hence complainant is entitled to get entire amount with interest. But complainant paid amount in 5 installments on different dates. Hence, interest imposed from the date of respective payments, in place of 18% per annum claimed in the complaint, which seems to be exorbitant. Hence complainant is entitled to get refund of sum of Rs.13,21,530/- with interest at the rate of 12% per annum, since 18% per month is exorbitant which he claimed. For the foregoing reasons we answer Point No.2 is partly affirmative.

13. Point No.3:- In view of the discussion referred above, we proceed to pass the following:-

ORDER

1. Complaint filed under Consumer Protection Act 2019, is partly allowed.
2. OP is directed to refund sum of Rs.13,21,530/- to the complainant with interest at the rate of 12% per annum from the date of respective payments within 45 days from the date of order failing which OP shall pay interest at the rate of 14% per annum on Award amount from the date of order till realization.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 15^th day of JUNE, 2023)

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

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