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

DATED 27^th DAY OF JULY 2023

ORDER

SMT. K. ANITA SHIVAKUMAR, MEMBER

Complaint filed U/S 35 of Consumer Protection Act 2019, seeking direction to OP’s to allot the site in favour of complainant or to pay the present market value of the site, to pay sum of Rs.10,00,000/- towards damages and mental agony and hardship caused from the deficiency of service on the part of OP and such other reliefs.

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

OP’s being office bearers of ITI Employees Housing Co-operative Limited which is registered with Co-operative registrar Bangalore. OP’s have called for the members to enroll in the said society, who will get membership in the said society and also they are eligible to purchase the site in the layout which will be formed and developed by OP’s at Nagarur, Nelamangala Talk, Bangalore Rural. OP’s also represented to distribute the sites to the members of society. As per the notification dated 28.11.2004, the complainants became member of OP Society on 29.12.2011 by paying the cash of Rs.110/- towards subscription/membership fee. OP has issued receipt vide No.7885 on the payment of membership fee. Complainant also stated that on the same date that is 29.12.2011 complainant had issued post dated cheque No.150384 for Rs.6,00,000/- dated 03.01.2012 to the OP’s. Subsequently OP’s have presented the said cheque and the amount and also issued receipt No.7087 dated 29.12.2011 after the encashment of Rs.6,00,000/- from the complainant. OP’s also issued site deposit book on 09.02.2012, mentioned the site measurement of 30*50 feet in favour of complainant. Complainant further submits that he approached OP at their office frequently which requested to allot the site from past 11 years but OP did not entertain his request and he utterly ignored.

3. Complainant further stated that on, 05.10.2022 and 23.11.2022 complainant visited the office of OP’s and requested the same but OP’s did not agree to allot the site in the said layout. Complainant alleged that OP’s have received the entire amount of RS.6,00,000/- from the complainant and issued the receipts on account of receipt of amount but OP did not bother to allot the site as he assured. Even OP’s are not properly responding to the complainant since 11 years, complainant is approaching and demanding the same but OP did not bother even after receipt of entire sital value. Hence complainant alleged that the deficiency of service on the part of OP’s by keeping the amount since 2011, not allotting the site as he agreed upon. Complainant caused legal notice through his counsel to OP’s on 27.10.2022 which was duly served on OP’s. OP’s did not respond to the legal notice and he come forward to allot the site. Hence complainant approached this commission for the reliefs he sought above.

4. Notice sent to OP’s No.1&2, which were duly served on them. But OP’s did not appear before this commission on the date of appearance. They remained absent. Hence OP No.1&2 placed Ex-parte.

5. The case set down to adduce affidavit evidence of complainant. Complainant filed his affidavit evidence, reiterated as stated in the complaint, filed 5 documents which are marked as Ex.P1 to Ex.P5. Heard counsel for complainant and we perused the materials on record.

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

i) Whether the complainant proves the deficiency of service on the part of OP’s?

ii) Whether complainant is entitled for the relief?

iii) What order?

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

Point No.1:- In  affirmative

Point No.2:- Partly affirmative

Point No.3:- As per the final order

                   REASONS

8. Point No.1:- Upon going through the pleadings of complainant OP has assured the members that they will purchase land and develop a layout at Nagarur near Nelamangala Taluk, Bangalore Rural and they will distribute the sites to the members of the society. According to the representation made by OP’s, believing that complainant also become member of the OP society by paying Rs.110/- vide receipt No.7085 dated 29.12.2011 issued by OP which is at Ex.P2. On the same day with intention to buy a site in Bangalore, complainant decided to invest money towards buying a site from the OP society trusting the representation of OP. Complainant paid Rs.6,00,000/- by way of post dated cheques dated 29.12.2011, the same has encashed by OP and issued receipt bearing No.7087 which is at Ex.P4. OP has also issued the site deposit book to the members of the society which discloses the complainant is eligible to get measuring 30*50 feet site at payment of Rs.6,00,000/-. The pass book of site issued on 09.02.2012, after the issuance of receipt that is on 03.01.2012. The documents placed by complainant are clear that payment and site allotment measuring 30*50 feet in favour of complainant is assured by OP’s.

9. After the payment of entire sital value complainant approached OP’s office frequently and requested them to allot the site as they assured but OP’s ignored the request of complainant as complainants stated that recently he visited on 05.10.2022 and 23.11.2022 to OP’s office and request for the allotment of site. OP’s not only refused and ignored his request and also expressed that the site will not be allotted in the said layout. Complainant after hearing the representation of OP’s, has caused legal notice to OP’s calling upon them to allot the site in favour of complainant within 15 days from the date of receipt of the notice. But OP’s neither replied to the legal notice which were duly served on them nor come forward to comply the claims of the complainant. It clearly shows the deficiency of service on the part of OP’s by misrepresenting before the public and collected the huge amount in the year 2011 and kept quite without allotting the site to the complainant and also not responding to the complainant’s request, made him to undergo mental sufferings and hardship. Hence OP is liable to compensate the same to the complainant. Documentary evidences of complainant placed before this commission are unchallenged and OP is neither defended his case nor placed any evidences. For the foregoing reasons we answer Point No.1 in affirmative.

10. Point No.2:- Complainant believing the representation of OP invested Rs.6,00,000/- on 29.12.2011, hoping to get 30*50site at Nagarur, Nelamangala Taluk, Bangalore Rural and waited for 11 years of long time is not fair. OP made him to wait for 11 years and caused deficiency of service and keeping him in dark without any development of layout and allotment of site in favour of him. Since he paid entire sital value on single payment and OP retained huge amount of complainant, is unjust and unfair. Hence OP is liable to allot the site measuring 30*50 at the said layout. Alternatively complainant is also claiming for refund of money at the rate of present market value for the said site. Hence OP’s are directed to allot the site measuring 30*50 in favour of complainant. Complainant further claims damage towards mental agony and hardship that caused by the OP, seems to be exorbitant. Considering the delay in allotting the site by OP is not just 11 years but in respect of land value and the sites appreciation price gone to very high, which are not in reachable to the middle class families. With this, in our considered view complainant is entitled to get Rs.3,00,000/- as compensation for the mental agony and he aggrieved by the OP’s act. Complainant further entitled for cost of litigation of Rs.10,000/-. For the foregoing reasons we answer Point No.2 in partly affirmative.

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

ORDER

1. Complaint filed U/S 35 is allowed in part.
2. OP No.1&2 jointly and severally liable to allot the site measuring 30*50 feet at Nagarur layout, near Nelamangala Taluk, Bangalore Rural OR alternatively, OP’s are liable to pay present market value of the site in the said layout within 60 days from the date of the order.
3. OP is liable to pay Rs.3,00,000- towards compensation and Rs.10,000/- towards cost of litigation within 60 days from this day, failing which OP’s shall pay interest at the rate of 10% per annum on present market value of the site and 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 27^th day of JULY, 2023)

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

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

NIL