Karnataka

Kolar

CC/28/2016

Sri.I.Gopala Krishna Gowda - Complainant(s)

Versus

The President, Earth Movers Employees House Building Co-Operative Society Limited. - Opp.Party(s)

Sri.N.Jayaprakash

27 Feb 2017

ORDER

Date of Filing: 02/05/2016

Date of Order: 27/02/2017

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 27^th DAY OF FEBRUARY 2017

PRESENT

SMT. PRATHIBHA.R.K., BAL LLM, PRESIDENT

SMT. A.C. LALITHA, BAL., LLB           ……  LADY MEMBER

 

CONSUMER COMPLAINT NO :: 28 OF 2016

Sri. T.Gopalakrsine Gowda,

Aged About 59 Years,

S/o. Thimme Gowda,

BEML Employee,

Vide B-No.532-20186,

BEML, K.G.F.

 

R/at: No.254, II Type,

BEML Nagar & Post,

K.G.F.                                                        ….  COMPLAINANT.

(Rep. by Sriyuth. N.Jayaprakash, Advocate)

 

- V/s -

(1) The President,

 

(2) The Secretary,

 

Earth Movers’ Employees House

Building Co-operative Society Limited,

Old Tiles Factory Extension,

Railway Station Road,

Kolar-563 101.

(Rep. by Sri. A.Lakshmi Narayana, Advocate)     …. OPPOSITE PARTIES.

 

-: ORDER:-

 

BY SMT. PRATHIBHA.R.K., PRESIDENT

01.   The complainant having submitted this complaint Under Section 12 of the Consumer Protection Act, 1986 has sought, relief of issuance of directions to the Ops to refund the advance amount of Rs.80,000/- with interest at the rate of 18% per annum from 21.11.2011 till realization along with compensation and costs.

 

02.   The facts in brief:-

(a)    The contention of the complainant is that, the OP-society has given an advertisement stating that, since 20 years they are forming a residential layout of 1^st and 2^nd stage and allotted the sites to the members.  The Ops have also given an assurance to form a 3^rd stage layout in 16 acres of land at Kolar-Bethamangala Road, at the distance of 01 K.M. from National High Way at Kolar.  The Ops have invited members to register their names in their society for purchase of sites for the advance amount of Rs.1,00,000/- for the sites measuring 30 ft. x 40 ft, Rs.1,25,000/- for site measuring 30 ft x 50 ft. and Rs.2,00,000/- for the site measuring 40 ft x 60 ft at the rate of 280/- per square feet and process of registration of sites will be commencing from 10.02.2011. 

 

(b)    The complainant further submitted that, believing the advertisement the complainant has registered his name as member of the OP-society and paid an amount of Rs.80,000/- by way of cash and also paid share fee and entrance fee of Rs.1,055/- for the site measuring 30 ft x 40 ft in the proposed 3^rd stage layout.  The Ops have issued receipt for the above said amount dated: 21.11.2011 vide receipt bearing No.2730 in favour of the complainant. 

 

(c)    The complainant alleged that, the complainant visited the Ops office by demanding to allot a site or to repay the advance amount along with interest, but the Ops with an intention to wrongful gain have not allotted the sites to the complainant as per their advertisement.  Hence the Ops have committed breach of trust and contract.  Hence complainant issued legal notice dated: 19.02.2016 and the same were served to both OP Nos.1 & 2, but the OP Nos.1 & 2 intentionally avoided to receive the same.  Hence complainant approached this Hon’ble Forum seeking above set-out reliefs.

 

(d)    Along with the complainant the complainant has filed copies of the following list of documents:-

(i) Copy of the receipt dated: 21.11.2011 vide No.2730.

(ii) Copy of the legal Notice dated: 19.02.2016

(iii) Copy of the postal acknowledgement duly signed by the OP-1.

(iv) Copy of the unserved RPAD cover addressed to the OP-2.

 

03.   In response to the notice issued from this Forum, counsel for Ops had appeared and filed its version resisting the claim of the complainant in toto:-

 

(a)    The brief contention of the Ops in their version is that, the Ops have issued a broacher stating that, it is proposed to form a 3^rd stage layout in Kolar-Bethamangala Road at a distance of 01 KM from National Highway at Kolar and invited the members to register their names in the Society for purchase of sites by paying an advance amount.  The Ops further contention is that, the complainant in his complaint has wrongly stated that, the process of registration of site will be commenced from 10.02.2011.  But they have assured allotment of sites will only commence after completion purchase of lands for formation of layout, conversion of lands for non-agricultural purpose, obtaining permission from various Government authorities and after full development of layout, the sites will be allotted based on the seniority as per KCS Act & Rules 1959. 

 

(b) The Ops further submitted that, the complainant had paid Rs.80,000/- including the share fee and the site could not be allotted since the work is in progress and the formalities as stated above is under process and the site will be allotted to the complainant on completion of the above works.  The Ops further submitted that, the complainant is not entitled for refund of site deposit amount which has been deposited by the complainant to get a site in 3^rd stage of EMEHBCS Limited.  The Ops further submitted that, the OP society is non-profit organization allotting sites to its members without any profit No loss basis to benefit its members and the board of directors of the society are elected among the members.  Hence prayed for dismissal of the complaint.

 

04.   On 23.08.2016 counsel for complainant has filed affidavit evidence of complainant by way of examination-in-chief.  On 07.10.2016 counsel for OP filed questionnaire to PW-1/complainant.  On 02.11.2016 counsel for complainant filed answers to the questions by way of affidavit.  On 07.12.2016 one Sri.M.Venkate Gowda, The President of EMEHBC-Society, has filed his affidavit evidence on behalf of OP Nos.1 & 2.

 

05.   On 26.12.2016 counsel appearing for complainant has filed written arguments and on 06.01.2017 counsel appearing for Op Nos. 1 & 2 has filed Memo praying to treat the version filed by them earlier as their written arguments.  Heard oral arguments on behalf of complainant’s side.

 

06.   Therefore the points that do arise for our consideration in this case are:-

(A) Whether the OP Nos.1 & 2 are guilty of deficiency in service?

(B)  Whether the complainant is entitled for the reliefs sought for in the complaint?

(C) What order?

07.   Findings of this District Forum on the above stated points are:-

POINT (A) & (B):- In the Affirmative

POINT (C):-  As per the final order

for the following:-

 

REASONS

POINT (A) & (B):-

08.   Admittedly the opposite parties have invited members to register their names in the Society for purchase of proposed sites in the 3^rd stage layout in 16 acres of land at Kolar-Bethamangala Road, at the distance of 01 K.M. from National High Way at Kolar.  It is also an admitted fact that, the complainant has deposited an advance amount of Rs.80,000/- to the Ops-society by way of cash and also paid Rs.1,055/- towards share fee and entrance fee for the allotment of site measuring 30 ft x 40 ft in the 3^rd stage layout.    The contention of the complainant is that, the Ops are not allotting the sites and also not returning the deposited amount.  On the contrary, the Ops submission is that, the work is in progress and the site will be allotted to the complainant after obtaining permission from the concerned Government authorities and after full development of layout, the sites will be allotted based on the seniority basis as per KCS Act & Rules 1959. 

 

09.   Further Ops have submitted that, they are making all efforts to see that the 3^rd stage shall be formed at the earliest and the allotment of sites shall be carried-out to the members who were deposited the amount.  Hence they are not possible to refund the amount to the complainant at this stage.  To substantiate this contention, the Ops have not produced any documents to show that, the work is under progress in the proposed 3^rd stage layout in 16 acres of land at Kolar-Bethamangala Road, at the distance of 01 K.M. from National High Way at Kolar.  Hence in the absence of any documentary evidence we cannot come to any conclusion based on the oral submissions made by the Ops without produced any cogent evidence. 

 

10.   Hence there is deficiency in service on the part of the Ops-Society by not allotting the sites from 21.11.2011.  Hence it is just and proper to direct the Ops-society to refund the advance amount paid by the complainant.  Since there has been steep appreciation in the market value of the land and the complainant cannot hope to get a comparable location of site for the said price which the Ops had agreed. Hence we award 18% interest for the payable amount from 21.11.2011 till realization and to pay compensation of Rs.10,000/- with costs of Rs.5,000/- which shall meet the ends of justice.

 

POINT (C):

11.   We proceed to pass the following:-

ORDER

01.   For foregoing reasons the complaint stands allowed with costs of Rs.5,000/- against OP Nos.1 & 2 as hereunder:-

 

(a)    The OP Nos. 1 & 2 both jointly and severally are liable to refund back the advance amount of Rs.80,000/- to the complainant along with interest at the rate of 18% per annum from 21.11.2011 till realization and compensation of Rs.10,000/- to the complainant.

 

(b)    The OP Nos.1 & 2 are hereby directed to comply the above said order within 30 days from the date of receipt of this order/acknowledgment. 

 

02.   Send a copy of this order to both parties free of cost

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 27^th DAY OF FEBRUARY 2017)

 

 

 

LADY MEMBER                                                      PRESIDENT