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

DATED 19^TH DAY OF AUGUST 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1.          This complaint has been filed through Power of attorney holder of the complainant under section 35 of C.P.Act 2019 (herein after referred as “Act”) against the OPs for the following reliefs.

1. Direct the OPs to allot a site measuring 30 X 40 feet in the residential called Vidhana Soudha Layout,  in Agrahara Village, Yelahanka Hobli, Bangalore North Taluk and to execute the registered sale deed thereof or alternatively to pay market value of the said site amounting into Rs.50,00,000/- + compensation to determined by the Hon’ble State Commission and also award costs of these proceedings and any other relief deemed fit in the circumstances of the case may kindly be also granted in favour of the complainant.  

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

The complainant became member of OP society from 2006.  He has obtained shares of 100 each under share certificate dated 21.09.2006.  He became the member of OP society in January 2005 by paying admission fee of Rs.500/-, share fee of Rs.1,000/- and advance amount of Rs.50,000/- for allotment of site measuring 30X40 feet.  He has paid in all Rs.15,12,000/- as could be seen in the statement issued by OP.

3.         Even though complainant paid in all Rs.15,12,000/- but OPs failed to allot the site.  The market value of the site at above said Vidhana Soudha Layout was Rs.50,00,000/-.  Therefore he request to direct the OP either to allot the site measuring 30X 40 feet or to pay market value of Rs.50,00,000/- with cost.

4.         In response to notice, OP appears and files version.  This commission has no jurisdiction to entertain the complaint and complainant was supposed to take action u/s 70 of the Karnataka Co-operative Societies act.  The claim of the complainant is for specific performance and this commission has no jurisdiction to grant this relief.

5.         The OP admits receipt of the amount.  The developer was supposed to live alternative land for the remaining extent of land.  The OP has already allotted sites to the associate members.

6.         The OP also contends that the Joint Registrar of Co-operative societies directed the developer to refund Rs.24,66,01,915/-.  This order has been challenged before the Hon’ble High Court of Karnataka in Writ Petition No.14654/2021 which is pending for consideration.  The stay order is operating.  The complainant is devoid on merits.  The OP requests to dismiss the complaint.

7.         The complainant files affidavit evidence and relied on 6 documents.  OP has filed affidavit evidence and relied on 5 documents. Heard the arguments and perused the records.

8.         The points that would arise for our consideration are as under:-

1. Whether the complainant proves deficiency of service on the part of the OP?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What  order?

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

       Point No.1:- Affirmative

      Point No.2:- Affirmative in part.

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

                                      REASONS

10.         Point No.1 AND 2:    These two points are co-related to each other.  Even though both the parties have filed their affidavit evidence in support of their respective contention.  The defence of the OP that due to pendency of writ petition the site was not allotted to the complainant.

11.         The documentary evidence produced by both the parties are not in dispute.  It is admitted and proved from Ex.P1 that the OP issued share certificate and Ex.P2 ID card of the complainant.  The payment of amount by the complainant to OP is not only proved from Ex.P3 and it is also proved from Ex.R3 statement produced by the OP that complainant has paid in all Rs.15,12,000/- on different dates.

12.         Ex.P3/R3 statement produced by the parties clearly indicates that the OP has received in all Rs.15,12,000/- from the complainant.

13.         Ex.P4 is the temporary allotment letter dated 23.02.2009, Ex.P5 and P6 are the final notice dated 25.05.2009 and 11.11.2015 issued by the OP society.

14.         It is also proved from Ex.R1 that the complainant had submitted membership application and Ex.R2 application for site.  Ex.R4 is the order passed by the Joint Registrar Co-operative Societies against the developers, but OP was not party to this proceedings.  However the OP has obtained stay order by filing writ petition No.14654/2021 as per Ex.R5.  Mere pendency of the writ petition does not help the OP to get an order of dismissal of this complaint.  It is proved that the complainant made payment from 07.01.2005 to 27.11.2013.  The Writ Petition is of the year 2021.  The OP neither allotted the site nor refunded the amount.  This act of the OP amounts to deficiency of service.

15.         Even though complainant seeks direction against the OP to allot the site this claim does not fall under the definition of service defined u/s 2(42 and sec 2(37)IIa of C.P. Act 2019. 

2(42) reads as;

“Service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

2(37) Product seller, in relation to a product, means a person who, in the course of business, imports, sells, distributes, leases, installs, prepares, packages, labels, markets, repairs, maintains, or otherwise is involved in placing such product for commercial purpose and includes-

1. ****
2. a service provider,

But does not include-

a)A seller of immovable property, unless such person is engaged in the sale of constructed house or in the construction of homes or flats;

2. ******
3. *******

16.         Even though OP invoke sec 70 of Karnataka Co-operative Societies Act and requests this Commission that this commission has no jurisdiction. But sec.100 of C.P. Act 2019 is answer to this objection. Sec.100 of C.P. Act 2019 enables the complainant to file complaint before this Commission. Therefore, the contention of OP is rejected.  This Commission has no jurisdiction to grant relief to direct OP to allot the site.  Therefore the complainant is not entitle to relief to direct OP to allot the site.  However complainant seeks an alternative relief to direct the OP to refund the site value of Rs.50,00,000/- + compensation.  The complainant has not produced any document to show that the site value measuring 30X40 feet was Rs.50,00,000/- on the date of filing of the complainant.  In the absence of material evidence with regard to the value of the site on the date of complaint, the complainant is not entitle to Rs.50,00,000/- towards value of the site and compensation.  However the complainant is entitle for refund of Rs.15,12,000/- with interest at 9% p.a., from the date of respective payment till realization in lieu of compensation.  The cost of litigation is quantified at Rs.10,000/-.

17.         POINT NO.3:     In view of the discussion referred above, the OP is liable to refund Rs.15,12,000/- with interest at 9% p.a., from the date of respective payment till realization and Rs.10,000/- as cot of the litigation to the complainant.  When we awarding interest at 9% p.a., in view of the Supreme Court of India, decision reiterated in decision reported in 2022(2) CPR 1(SC) in Civil Appeal No.6044/2019 in the matter between Experion Developers Pvt. Ltd., -vs- Sushma Ashok Shiroor  with Civil Appeal No.7149/2019 dated 07.04.2022, the complainant is not entitled to compensation separately. In the result, we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund Rs.15,12,000/- to the complainant along with interest at 9% p.a., from the date of respective payment till realization with litigation cost of Rs.10,000/- to the complainant.
3. The OP shall comply this order within 60 days from the date of this order failing which the OP shall pay interest at 11% p.a., on Rs.15,12,000/- after expiry of 60 days from this date till realization.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 19^th day of August, 2022)

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

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

HAV*