BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

15^th DAY OF DECEMBER 2020

O R D E R

SMT.PRATHIBHA, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (hereinafter referred as OPs) with a prayer to direct OPs to allot and register the site in the name of complainant or direct the OPs to pay an amount of Rs.6,25,000/- together with interest @ 18% p.a from the date of payment till realization, to pay damages of Rs.1,00,000/- towards mental agony, torture, to pay compensation of Rs.50,000/- and such other reliefs on the allegations of deficiency in service.

2. The brief averments made in the complaint are as under:

Complainant submitted that during the year 2006 OPs allotted the membership bearing No.A-20240 in the name of complainant’s son Mr.Prajwal.  After the demise of complainant’s son the membership was transferred in complainant name being the nominee of Mr.Prajwal.  That son of the complainant had taken the membership for the purpose of getting allotment of site measuring 30x40 square feet i.e., 1200 sq. ft in Karnataka Telecom Department Layout-2 earlier named as “Ayushman Bhava” formed near Attibele-Sarjapura Road.  The details of the payment made by the complainant as follows:

Complainant further submitted that he visited the layout in the last week of November 2019 there were no developments in the layout.  OPs only intention to grab the amount for the complainant for allotment of sites at the above said project.  In the mean time for the sake of nomenclature OPs have issued provisional site allotment letter dated 22.10.2016 vide letter No.012 to the complainant and allotted the vacant intermediate residential site bearing No.292, measuring 125.44 square meters in phase-3 of Ayushmanbhava.  Based on the said provisional letter of allotment, the complainant visited the property and to his shock and surprise he noticed that absolutely there is no such site allotted to the complainant.  There were no developmental work for formation of layout in the said location.  Immediately the complainant approached the OPs and appraised the matter and requested the OPs to register the alternative site in the developed area of the layout formed by the OPs.  But inspite of repeated request the OPs have not registered the site in the name of complainant.

Complainant further submitted that the act of OPs clearly shows that the OPs intention is not to give any sites to the complainant.  OPs intention is to grab the amount.  The said act of the OPs have created a lot of mental torture and mental agony.  That due to lack of service and false assurance given by the OPs the complainant suffered a lot.  The complainant had invested his hard earned money to get a site in his son’s name.  OPs have not taken any action for handover the site to the complainant.

Complainant further submitted that after payment of entire amount very often the complainant approached the OPs for getting the site or in the alternative for return of money but all the time the OPs given false assurances to the complainant.  After lapse of several years neither the OPs returned the money nor registered the site to the complainant.  His effort to get back the amount has failed.  The act of OPs amounts to breach of trust besides mental torture and agony to the complainant.  OPs are registering the sites to the non-members by making them as members in the society by getting a huge amount from OPs instead of giving the sites to the members of the society who are waiting for their sites from a long time.  OPs are doing real estate business at the cost of members of the society.

Complainant further submitted that he repeatedly requested OPs to either pay back the amount with interest from the date of payment of each installments or register the site in favour of complainant.  Complainant requested several times but OPs did not bother to take any action in this regard.  Complainant got issued legal notice dated 12.12.2019 calling upon OPs to register the site in the name of complainant or return the amount with cost.  But OPs did not take any action in this regard.  Complainant felt deficiency in service on the part of OPs.  Left with no other option complainant filed this Complaint.    

3. Despite service of notice, one Hema R, Advocate appeared and filed memo of appearance on behalf of OPs but did not choose to file vakalath & version.  Hence OPs called out as absent and have been placed ex-parte.

4. In the course of enquiry into the complaint, the complainant has filed affidavit evidence reproducing what he has stated in his complaint.  The complainant has produced documents.  The complainant submitted written arguments.  We have heard the arguments of the complainant side and we have gone through the oral and documentary evidence of the complainant scrupulously. 

5. Based on the above materials, the following points arise for our consideration;  

1. Whether the complainant has proved that there is deficiency in service on the part of the OPs, if so, whether complainant is entitled for the relief sought for?

2. What order?

6. Our findings on the above points are as under:

Point No.1:  Affirmative in part

Point No.2:  As per the order below

REASONS

7. Point No.1:  The complainant in his affidavit evidence firmly stated that the complainant’s son Late.Mr.Prajwal has taken a membership of the OPs society for the purpose of getting an allotment of site measuring 1200 square feet in the layout “Ayushman Bhava” near Attibele-Sarjapura Road.  In this regard OPs have received an amount of Rs.6,25,000/- on different dates.  Complainant further submitted that on 22.10.2016 the OPs have issued a provisional site allotment letter No.012 and allotted the vacant intermediate residential site bearing No.292, measuring 125.44 square meters in phase-3 of “Ayushmanbhava”.  Based on the provisional letter of allotment the complainant visited the property and he noticed that there was no such site allotted and there was no developmental work in the said locality.  Immediately the complainant approached the OPs to register the alternative site in the developed area of the layout formed by the OPs.  Inspite of repeated approaches the OPs have not come forward to register the site in the complainant name.  Hence complainant issued a legal notice dated 12.12.2019 for allotment of site in the developed layout or return the amount with other costs.  The OPs neither allotted the site nor refunded the amount to the complainant.

9. To rebuttal the evidence of the complainant, the OPs have appeared before the Commission but not filed version and affidavit evidence.  In the sense the OPs have either admits the averments of complainant in toto or they have nothing to say contrary to the complainant averments.  If the matter is viewed on this line, it proves that the OPs have agreed the same impliedly.  In this regard, the decision reported in 2018(1) CPR 325 (NC) in the case of Kotak Mahindra Old Mutual Life Insurance Ltd., vs. Dr.Nishi Gupta, wherein it is held that, “non-filing of the written version amounts to admission of allegations made by the Complainant in the consumer complaint”. 

9. On perusal of the Ex-C2 to Ex-C6 it clearly shows that the complainant paid total amount of Rs.6,25,020/- to the OPs on different dates for the purpose of allotment of site in ‘Ayushman Bhava’ layout.  The details of the payment made by the complainant are as follows:

Thereafter on 22.10.2016 the OPs have issued a provisional site allotment letter to the complainant for the site bearing No.292, measuring 125.44 square meters in phase-3 of ‘Ayushmanbhava’.  The complainant alleged that there was no progress in the said layout and there was no site in the said layout.  Hence complainant sought for alternative site or refund of the advance amount paid.  It is the bounden duty of the OPs to develop the land and then issue the provisional certificate to the complainant.  Not done so there is a deficiency in service on the part of OP.  Further, the OPs neither replied to the legal notice dated 12.12.2019 issued by the complainant nor refunded the amount to the complainant. 

10. In view of the discussion made above, the complainant has invested his hard earned money to purchase the site.  Even after the acceptance of the amount from the complainant, OPs have not developed the project nor refunded the amount to the complainant.  If OPs were aware of the fact that it cannot proceed with the project could have fairly refunded the amount to the complainant.  Retention of amount for more than 10 years with an intention to make wrongful gain amounts to deficiency in service on the part of OPs.  Therefore, looking to the facts and circumstances of the case and inconvenience and mental agony undergone by the complainant due to deficiency of service on the part of the OPs, we feel it appropriate to direct the OPs to refund advance amount of Rs.6,25,000/- to the complainant together with interest at the rate of 9% p.a. from the date of actual payment till date of realization along with litigation cost of Rs.10,000/- to the complainant.  Accordingly, Point No.1 is answered Partly in Affirmative.

11. Point No.1:  In the result, for the foregoing reasons, we proceed to pass the following:

  O R D E R

The complaint filed by the complainant is allowed in part. 

OPs are directed to refund an advance amount of Rs.6,25,000/- (Six Lakhs Twenty Five Thousand Only) to the complainant together with interest at the rate of 9% p.a. from the date of actual payment till the date of realization.

OPs are further directed to pay litigation cost of Rs.10,000/- to the complainant.

This order is to be complied by the OPs within 45 days from the date of receipt of this order.

        Supply free copy of this order to both parties. 

(Dictated to the stenographer, transcribed and typed by him, corrected and then pronounced by us in the open Commission on this, the 15^th day of December 2020)

1. Witness examined on behalf of the complainant by way of affidavit:

Sri.Venkatesh Prasanna 

Documents produced by the complainant:
   

Witnesses examined on behalf of the Opposite party/s - Nil

Vln*