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

DATED 06^TH DAY OF AUGUST 2024

COMPLAINT No.437/2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. The OP at once arrange for the registration of vacant residential site bearing No.17, in phase No.8, specifically earmarked its measurement as 360 sq.mtrs, carved out of the residentially converted land, measuring 05 acres 29 guntas comprised in Sy.Nos. 237/1 and 242 of belawadi Village, Ilwala Hobli, Mysore Taluk and district and in addition to and not in lieu thereof;
2. Compensation of Rs.40,00,000/- on account of unnecessary torture, harassment, inconvenience, frustration, etc.,
3. The litigation expenses/costs, which this Hon’ble commission deems just and proper.
4. Rs.10,000/- towards cost of legal notice and other expenses.
5. Any other reliefs which this Hon’ble commission may deem fit.

2. The case set up by the complainant in brief is as under:-

The complainant agreed to become the member to the OP society vide membership No.A-6738.  After becoming a member, complainant was allotted a site measuring 50X 80 feet in the layout formed by the OP against the payment of Rs.2,01,020/- dated 17.05.2006.  The OP has further issued demand notice dated 15/17.05.2006 calling for further deposit of Rs.2,28,000/- to be made on or before 20^th June 2006. Accordingly complainant has paid the same on 19.06.2006 through cheque.

3. Complainant further submits that the OP by their circular letters dated 15.04.2008, 05.09.2008, 13.01.2010, 26.07.2010 and 06.08.2011 while blaming the government for causing inordinate delay, stated that their letter dated 22.12.2007 had the status of Anandha Sagara Mysore layout and the entire land thereof after having been converted by the concerned authorities, the project has well been received approval on 26.02.2008 in plan sanction No.64 from MUDA and the layout civil work has also commenced well ahead of time on 28.06.2008 onwards. The OPs have fixed the tentative date for completion of project as a whole as 08.12.2008 so as to start issuing site allotments to be ready for registration during November 2008 without fail.  The complainant after hearing the allotment of the site by the OPs, has made the entire balance consideration amount to the OPs by issuing demand draft on 23.10.2008 for an amount of Rs.4,56,000/-.  The complainant has totally paid Rs.8,85,020/- and waiting for registration of the site. 

4. After that the OP have started allotment of site on seniority basis and allotted a vacant residential site bearing No.17 in Phase VIII earmarking its measurement as 360 sq.feet on 21.09.2017 carved out of residentially converted land with an assurance that the site would most likely be registered in the month of March 2018.  Inspite of constant followup to get the registered sale deed the allotment of site bearing 50X80 feet was being intermittently postponed with one or the other pretext and finally on 23.05.2023 by arriving at a determined conclusion.  The OP have assured the complainant that they would at any cost registered the site without fail.  The complainant has promptly deposited the cost of the site whenever the OP have demanded for payment.  

5. As per the revised date of registration putforth as per the circular dated 23.05.2023 the OPs were supposed to have completed the entire sale transaction with due registration of absolute sale deed by 01.10.2023.  the complainant has approached the OP and made hectic demands to comply with their contractual legal obligations.  The OPs having being very quite evasive in their attitude. Hence the complainant has approached her counsel and got issued legal notice on 17.10.2023 calling upon the OPs to execute and register the absolute sale deed within a fortnight from the date of receipt of notice.

6. Inspite of service of notice the OPs have not cared to reply.  The complainant having no other option being quite unable to purchase any other site for the same amount except to insist for due registration of the existing site.  When the OPs have acted in very unprofessional and negligent manner in dealing with the case of the complainant, the complainant has filed this complaint. Hence the complainant prays for allowing the complaint.

7. After issue of notice OP appeared before this commission and filed version. The OP has admitted the membership of the complainant in their society and also the amount paid by the complainant for allotment of the site.  It is further case of the OP that he is ready to allot the site to the complainant in Ananda sagar layout, Mysore and execute the sale deed in favour of the complainant within short period if he has paid the balance amount of Rs.7,54,098/- to the society, hence the complainant is a defaulter.

8. It is further case of the OP that the complainant has applied for allotment of site measuring 50 X 80 site at a stipulated cost of Rs.410/- per sq. feet.  The cost of the said site is at Rs.16,40,000/- but the complainant has paid only Rs.8,85,020/-.  The formation of the site and layout was delayed due to many legal hurdles from government and various sanctioning authorities and also due to the difference between the land owners and the developers in execution of the sale deeds.  After completion of all the hurdles the OP society has got approved layout plan for an extent of 50 acres and it is in progress and after necessary approvals from the authority the OP society is doing the layout work. They will allot the site after formation of the residential layout to its members on the basis of seniority of the member as first cum first serve basis.  
9. This OP society have no money to refund to the complainant as the amount invested received by the OP society on the lands and development of land and formation of layout etc., they have no financial capacity to refund the amount and they have not agreed to pay any interest on the amount.  The OP society is only for allotment of site to its members and not to pay compensation and litigation expenses.  The complaint is filed after lapse of 14 years after payment and it is not maintainable.

10. The OP had denied all other allegations made in the complaint.  This OP society has fulfilled the obligations and the complainant will get the site as early as possible as per seniority basis shortly. There is no question of delay in allotting the site to the complainant as she is waited. Therefore there is no deficiency or negligence on the part of this OP. There is no cause of action to file the suit. This OP society is ready to allot the site and execute the sale deed in favour of the complainant if he pay the balance amount of Rs.7,54,980/- to the OP. Hence the OP prayed for dismissal of the complaint.

11. The complainant has filed his affidavit evidence and relies on 9 documents.  OP has also filed his affidavit evidence and relied on 3 documents.
12. Heard the arguments of both the parties and perused the written arguments and documents of the complainant.

13. The following points do arise for our consideration as are:-

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

14. Our answers to the above points are as under:

       Point No.1:  Affirmative

      Point No.2 : Party Affirmative

      Point No.3 : As per final orders

REASONS

15. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, affidavit evidence and written arguments of complainant and documents.  Even though the OP have appeared have filed their version and not lead any evidence.
16. The complainant filed her affidavit evidence and relied on Ex.P1 to P9. Ex.P1 are the copies of the receipts Ex.P2 is the copy of the copy of the demand notice, Ex.P3 is the copy of the receipt Ex.P4 is the copy of the circulars, Ex.P5 is the copy of the receipt dated 23.10.2008, Ex.P6 is the copy of the allotment letter, Ex.P7 is the rate list, Ex.P8 is the copy of the circular and Ex.P9 is the copy of the legal notice with postal receipt.

17. On the other hand OP has also filed their affidavit evidence and relied on three documents as Ex.R1 is the copy of the office memorandum dated 15.12.2011, Ex.R2 is the copy of the layout plan and Ex.R3 is the copy of the Personal ledger.

18. It is undisputed fact that the complainant became the associate member of the OP society and OP society have allotted the membership No.A-6738 measuring 50X80 feet, the complainant has paid a total consideration amount Rs.8,85,020/- as per Ex.P1 to P4.  

19. The main grievance of the complainant is that even though she has paid the entire amount to the OP in the year 2008 itself but the OP still has not formed the layout and they are postponing the registration of the site and harassing this complainant without either refunding the amount or allotting a site and thereby they have committed deficiency of service and they are making unfair trade practice on their part.  

20. On the other hand the main contention taken by the OP is that he is ready to allot the site in favour of the complainant if the complainant paid the balance amount of Rs.7,54,980/- and he is ready to execute the sale deed and put the complainant in possession of the site.

21. It is further case of the OP that they have invested the amount received by the complainant and other members on lands for development of lands, formation of layout etc., and therefore this OP society have no financial capacity to refund the amount to any of its members or to give compensation. They are only ready to allot the site within six months if the complainant has paid Rs.7,54,980/-. The complainant applied for the site measuring 50X80 feet at stipulated cost at Rs.410/- per sq.feet and the cost of the site is at Rs.16,40,000/- but the complainant has paid only Rs.8,85,020/-.  The formation of the layout was delayed due to legal hurdles from government and also the issues in relating to the land owners and the society in acquiring the land and also getting the approvals from the MUDA and other authorities.

22. The OP society is not ready to refund the amount and they are only agree to allot the site after received balance amount of Rs.7,54,980/- from the complainant.  On perusal of the documents produced by the complainant i.e., Ex.P7 the OP has fixed the rate for 50X80 feet site i.e., 4000 sq.feet at the rate of Rs.221/- per sq. feet and total purchase cost was Rs.8,84,000/-.  Ex.P7 issued by the OP and they have shown amount received in installment by them. The complainant as paid total amount of Rs.8,84,000/- in four installments.

23.   It is not the case of the OP that the site value was Rs.8,84,000/- at the time of allotment of the site in the year 2017.  Now the OP has taken the contention that the stipulated cost for site measuring 50X80 feet is Rs.410/- per sq.feet and the cost of the site is at Rs.16,40,000/-.  Except the Ex.R3 the OP have not at all produced any other document to show that they have fixed the site value of the complainant at Rs.18,40,000/- and Rs.460/- per sq.feet.  On perusal of the Ex.R3 it is clear that it is not at all bearing any date and the printout was taken by the OP according to their wish and will.  If the OP have increased or raised the value of the site nothing prevented them from informing the same to the complainant. 

24. The complainant has become the member of the society by paying the membership fee on 17,09.2006 itself as per Ex.P1.  She has made the entire payment as per the rate fixed by the OP as per Ex.P7 within 2008.  The OPs have now come up with this new contention that the cost of the site is fixed at Rs.460/- per sq.feet and total cost of the site measuring 50X80feet at Anandasagara is Rs.18,40,000/- and now they are demanding the complainant to pay an amount of Rs.7,54,980/-.  All these documents and the contention taken by the OP clearly discloses that they are not at all interested in performing their part of the obligations.  They have simply received the amount about 16 years back and now they are demanding the double the amount of the earlier cost fixed by them for site measuring 50X80 feet.  When the OP have never demanded the extra amount from the complainant, the complainant is not at all liable to pay any balance amount to the OP.  If the OP has formed the layout and really interested in safeguarding the interest of their members they would have made arrangements for allotment of the site after received the entire amount.  The conduct of the OP clearly discloses that they are practicing unfair trade practice and they have committed deficiency of service and negligence on their part.  

25. Even though the OPs have examined their witness and produced Ex.R1 to R3 they have not at all produced any document to show that they have formed the layout namely Anandasagara at Mysore in the given address and the sites are ready for allotment and they are ready to register the site allotted in favour of the complainant. Except the sketch produced by the OP as per Ex.R2, there is no other document placed before this commission to show that the OPs have formed the layout Anandasagara at Mysore and the said layout is ready for allotment of the site and for registration.  The OPs have demanding more money from the complainant without forming and completing any layout as Anandasagara and they are unable to allot any site in favour of the complainant.  The OPs are only interested in grabbing money from the public in the name of formation of layout and allotment of site. Even though they have to at all formed any layout and not at all allotting any site.

26. Under these circumstances, we feel it is necessary to allow this complaint directing the OP to refund the amount of Rs.8,85,020/- with interest @ 9% pa., from the date of respective payments till the realization of the amount.  The complainant is also entitled for litigation cost of Rs.10,000/-.  Hence we answer point No.1 in the affirmative and point No.2 party in the affirmative.

27. Point No.3:- In view the discussion referred above the complaint is liable to be allowed hence 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.8,85,020/- with interest at 9% p.a., from the date of respective payment till realization to the complainant.
3. OP is further directed to pay Rs.10,000/- to the complainant towards litigation expenses.
4. The OP shall pay this amount within three months from the date of this order in default to pay interest @ 12% p.a., on Rs.8,85,020/- from the date of payment till realization.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 06^TH day of AUGUST 2024)

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

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