CC No:1547/2014

 Filed on 02.09.2014

Disposed on 11.04.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 052

DATED THIS THE 11^th DAY OF APRIL 2016

CONSUMER COMPLAINT NO.1547/2014

PRESENT:

Sri. H.S.Ramakrishna,  B.Sc., LL.B.

                                    PRESIDENT

                        Smt. L. Mamatha, B.A., (Law), LL.B.

                        MEMBER

                                                        V/S

ORDER

BY SRI H.S. RAMAKRISHNA, PRESIDENT

1.         This is a complaint filed by the Complainant against the Opposite Party under Section-12 of the Consumer Protection Act, 1986, praying to pass an order directing the Opposite Parties to take the remaining installment amount and allot the site measuring 40 x 60 feet.  In the event of failure to allot the site, refund the deposited amount along with interest at 21% p.a. from the date of payment of the total amount.  Further prays to direct the Opposite Parties to pay Rs.10,00,000/- as compensation for the mental agony caused to the Complainant.

2.         The brief facts of the Complaint can be stated as under:

In the complaint, the Complainant alleged that the Complainant become the associate member in the Opposite Party Society on 15.03.2008.  On the same day paid a sum of Rs.1,20,000/- as the advance for the allotment of site measuring 40 x 60 feet.  On 15.09.2008 the Opposite Party Society send a letter to the Complainant asking the Complainant to pay first and second installment for the allotment of site which is to be formed in Athmanandasagara Layout, Mysore.  The paid the second and third installment on 23.09.2008 and 27.07.2009 for a sum of Rs.1,36,800/- each.  So far the Complainant has paid a sum of Rs.3,93,600/- to the Opposite Party Society for the allotment of site.  On 25.09.2009, the Complainant received a letter from the Opposite Party Society that the Town Planning Deputy Director, Mysore Urban Development Authority had released 732 sites out of the total 1217 approved sites as per the approved layout plan and it will be released to the eligible valuable members based on their seniority.  After receiving the said letter, the Complainant visited the Opposite Party office to know about the status of the layout, intimation with regard to his last installment amount and allotment of the site, but till today the staff of the Opposite Parties giving unrelated reasons and avoiding straight answers to the Complainant.  The enquiry by the Complainant to give the copy of the allottees of the sites in the abovesaid Athmanandasagara Layout, Mysore has fallen in the deaf ears of the Opposite Parties.  The Complainant with no other alternative has written two letters dt.05.03.2013 and 03.07.2014 to the Opposite Party Society requesting them to take the final installment and allot the site in his name.  Inspite of the letters, the Opposite Parties have neither cared to reply to the letters, nor comply with the same.  The act of not taking the final installment and allotting the site to the Complainant by the Opposite Party Society amounts to deficiency in service.  The allotment of sites to the new members avoiding the seniority of the Complainant amounts to unfair trade practice.  Hence, this complaint.

            3.         In response to the notice, the Opposite Party Society put their appearance through their counsel and filed their version.  In the version pleaded that the complaint is not maintainable either in law or on facts.  The same is mis-conceived and devoid of merits.  The Complainant has paid only part of the cost of the site value to be allotted in favour of the Complainant by the Opposite Party Society.  The Opposite Party Society after acquiring the land, it has converted for residential purpose for the competent authorities and after necessary approvals from the authority, the Opposite Party Society has formed the residential layout at Mysore known at “Atmananda Sagara Layout”.  After formation of the residential layout, the sites have been allotted to its members purely on the basis of seniority of the members as first come first serve basis.  The Opposite Party has already allotted sites formed in the said layout to its members purely on the basis of seniority.  In so far in the bigger dimension like 40 x 60 feet, the authority is yet to be released.  The Complainant’s seniority is 1166 and the sites allotted to its members totally 252 sites in the said layout.  In the second release of the sites by the authority, he will get the site allotted when his turn comes and his seniority is nearby and the site is yet to be allotted.  The entire layout was completed and a civic amenities and road facilities have been formed and the authority is yet to release the sites for allotment to the Opposite Party Society.  The Atmananda Sagar layout is almost completed and the contention of the Complainant is imagination.  The registration of the sites already commenced and the Opposite Parties Society has allotted and registered the sites to its members.  The Complainant will also be getting the same shortly.  The Complainant has sent a letter on 03.07.2014, seeking information and the Opposite Party Society and the society was also informed the progress of the layout and assured that he will get the site at an early date.  If the Complainant is particular in respect of site measuring 40 x 60 feet, he has to wait for few more days or as and when the Opposite Party Society allots the said measurement site.  Further, it is informed that the Opposite Party Society will intimate the provisional allotment letter within short period of time.  The residential layout was usually time consuming task involving several aspects of taking approval from the government authorities, investing huge sums for acquisition of the lands, obtaining necessary approvals from the concerned authorities and thereafter making payment of relevant charges.  Hence, the formation of the layout and for allotting site could not be completed within stipulated period and reasonably takes more than 5 to 6 years.  The delay is not on the part of the Opposite Party Society and absolutely there is no delay and the Opposite Party Society has not caused any inconvenience to the Complainant.  The Opposite Party Society has fulfilled the obligations and the Complainant will get the sites as early as possible as per the seniority basis shortly.  Even today, the Complainant has not paid full value of the site, he has paid only three installments and remaining two installments are still due from the Complainant.  Therefore, there is no question of delay in allotting the site to the Complainant.  If the Complainant has paid the full value of the site and he has waited, he will be getting the site surely.  But, he has not completed his part of obligation.  Therefore, there is no deficiency on behalf of the Opposite Party Society.  Hence, prays to dismiss the complaint.

4.         In support of the complaint, the complainant has filed affidavit by way of evidence.  For the Opposite Party one Sri B.S. Manjunath, Secretary of the Opposite Parties has filed his affidavit by way of evidence.  Heard the arguments of both the parties.

5.         Now the points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties?
2. If so, to what relief the Complainant is entitled?

6.         Our findings on the above points are:-

                        POINT (1):-  Affirmative

                        POINT (2):-As per the final Order

REASONS

7.         POINT NO. 1:-         As looking into the averments made in the complaint and also the version filed by the Opposite Parties, it is not in dispute that the Complainant become the associate member in the Opposite Party Society and made an initial deposit of Rs.1,20,000/- and in total the Complainant has paid Rs.3,93,600/- for the allotment of site in Athmananda Sagar Layout, Mysore.  Further to substantiate this fact, the Complainant in his sworn testimony reiterated the same and also produced the receipts.  Under receipt No.82147 dt.15.03.2008 and the Opposite Party Society received a sum of Rs.1,21,026/-, under receipt No.97695 dt.27.07.2009 the Opposite Party Society received a sum of Rs.1,36,800/- and under receipt No.86969 dt.23.09.2008 the Opposite Party Society received a sum of Rs.1,36,800/- from the Complainant, in total the Opposite Party Society received a sum of Rs.3,93,600/- from the Complainant as an advance for the allotment of site measuring 40 x 60 feet from the Complainant in Athmananda Sagar Layout, Mysore.  This evidence of the Complainant remains unchallenged.  To disbelieve the same, nothing was on record, therefore it is proper to accept the contention of the Complainant that being an associate member of the Opposite Party Society paid a total sum of Rs.3,93,600/- as advance towards allotment of site measuring 40 x 60 feet in the proposed layout of Athmananda Sagar Layout in Mysore.

8.         It is the further case of the Complainant that on 25.09.2009 he received a letter from the Opposite Party Society intimating that Town Planning Deputy Director, Mysore Urban Development Authority had released 732 sites out of the total 1217 approved sites as per the approved layout plan and it will be released to the eligible valuable members based on their seniority.  After receiving the said letter, the Complainant visited the Opposite Party office to know about the status of the layout, intimation with regard to his last installment amount and allotment of the site, but till today the staff of the Opposite Parties giving unrelated reasons and avoiding straight answers to the Complainant.  The Complainant sent letters dt.05.03.2013 and 03.07.2014.  In these letters, the Complainant demanded the Opposite Parties to give opinion regarding the allotment of site at Athmananda Sagar Layout in Mysore and also in the letter clearly mentioned that inspite of several phone calls and visits, the Opposite Parties failed to give any opinion regarding the development of the site.  To disbelieve this fact, there is no contra evidence and this evidence of the Complainant is not challenged.  Apart from that if the Opposite Party Society is in touch with the Complainant and they give feedback about progress of the Athmananda Sagar Layout in  Mysore, the Opposite Party Society ought to have give reply to the notice dt.05.03.2013 and 03.07.2014 sent by the Complainant.  But the Opposite Party Society have not issued any reply, therefore, it is proper to accept the contention of the Complainant that Opposite Party Society fails to receive final installment from the Complainant and allot the site in Athmananda Sagar Layout in Mysore.  Even though the Complainant paid advance amount of Rs.3,93,600/- in the year 2008, till this date the Opposite Party Society fails to allot the site and also Opposite Party utilizing the said amount for their beneficiary purpose of making layout.  This is also further clear as looking into the letter addressed by the Opposite Parties to its members dt.25.09.2009.  This letter is addressed by Sri V.J.K. Bakthavakchalam, President of the Opposite Party Society to the members informing the members about change of the office of the Opposite Party that MUDA released 732 sites as against 1217 sites.  Inspite of releasing 732 sites by MUDA without valid reason, the Opposite Parties fail to allot the site to the Complainant inspite of issuing advance amount of Rs.3,93,600/-.

9.         The defence of the Opposite Party is that Opposite Party Society is already allotted the sites formed in Athmananda Sagar Layout in Mysore to its members purely on the basis of seniority.  In so far in the bigger dimension like 40 x 60 feet, the authority is yet to be released.  The Complainant’s seniority is 1166 and the sites allotted to its members totally 252 sites in the said layout.  In the second release of the sites by the authority, he will get the site allotted when his turn comes and his seniority is nearby and the site is yet to be allotted and also take a defence that the Complainant has sent a letter on 03.07.2014 seeking information and the Opposite Party also informed the progress of the layout and assured that he will get the site at an early date if the Complainant is particular in respect of the site measuring 40 x 60 feet.  He has to wait for few more days or as and when the Opposite Party Society allots the site measurement site.  He has paid 3 installments and remaining 2 installments are still due from the Complainant.  Therefore, there is no question of delay in allotting the site.  To substantiate this defence, Sri B.S. Manjunath, Secretary of the Opposite Party Society filed affidavit and reiterated the same.  But except the interested version of Sri B.S. Manjunath, there is no cogent evidence to accept the defence of the Opposite Parties that the Opposite Party Society allotted the site to the members purely on the basis of seniority.  If it is so, in the event of allotment of site by the Opposite Party Society purely on the basis of the seniority, the Opposite Party Society ought to have furnished some material evidence in support of that defence, but the Opposite Party Society have not placed any evidence to substantiate their defence.  So also, except the interested version of Sri B.S. Manjunath, the Opposite Party Society have not placed any piece of evidence to show that Complainant’s seniority is 1166 and sites allotted to the members totally 252.  Thereby, the Opposite Parties failed to substantiate the defence as taken by them in their version.  Further absolutely there is no evidence to accept the interested testimony of Sri B.S. Manjunath, the Complainant is still due to pay two installments.  Nodoubt, the Complainant himself in their complaint clearly stated that one more installment has been paid and inspite of his best efforts to pay the remaining installment, the Opposite Party Society have not ready to receive the same, therefore, it is not the mistake of the Complainant and absolutely there is no evidence to believe in the defence of the Opposite Parties that Complainant is still due to pay installments.  On the other hand, from the receipts produced by the Complainant, it clearly goes to show that the Complainant has paid all the installments except the third installment.  As per the letter dt.05.03.2013 and 03.07.2014, in these letters the Complainant clearly mentioned that in the office of the Opposite Party intimated that the balance third installment can be paid at the time of registration.  So only due to that assurance, the Complainant has not paid the third installment.  If this fact is false and the Complainant falsely sending the letters dt.05.03.2013 and 03.07.2014, there is no truth in that letters.  The Opposite Parties ought to have give reply to these letters denying this fact, but there is no such reply, thereby it is proper to accept the contention of the Complainant that the officials of the Opposite Party office intimated the Complainant to pay the balance third installment at the time of registration, due to that reason only the Complainant has not paid the third installment and in reality the Complainant is not due to pay any installments.  Thereby, it falsifies the defence taken by the Complainant.

            10.      So from the material available on record and evidence placed by the Complainant, it is crystal clear that even though the Opposite Party Society received a sum of Rs.3,93,600/- as advance for the allotment of site measuring 40 x 60 feet in Athmananda Sagar Layout, Mysore in the year 2008 itself, till this day fails to allot the site in favour of the Complainant and also keep this amount with them utilizing for their purpose clearly goes to show that there is deficiency in service on the part of the Opposite Party Society.  Hence, this point is held in the affirmative.

11.      POINT NO.2:-          In view of the finding on Point No.1, we proceed to pass the following;

ORDER

The Complaint is allowed holding that there is deficiency in service by the Opposite Party.  The Opposite Party is directed to refund a sum of Rs.3,93,600/- to the Complainant along with interest at 18% p.a. from 27.07.2009, till the date of this Order.  The Opposite Party is further directed to pay a sum of Rs.2,00,000/- as compensation for the mental agony and Rs.5,000/- towards costs of this litigation to the Complainant.  The Opposite Party is granted 45 days time from this date to comply this Order.  Failing which, the aforesaid amount shall carry interest at 18% p.a. from the date of this Order, till the date of realization.

 Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 11^th day of April 2016).

       MEMBER                                                                               PRESIDENT

CC. NO.1547/2014

LIST OF WITNESSES AND DOCUMENTS

Witnesses not examined, but affidavit of the witnesses is filed, as follows;

1. Sri L. Shashidhar has filed his affidavit for Complainant.
2. Sri B.S. Manjunath, Secretary filed his affidavit for the Opposite Parties.

List of documents filed by the Complainant :

1. The receipt dt.15.03.2008.
2. The notice for payment of 2^nd and 3^rd installment
3. The receipts dt.27.07.2009, 23.09.2008.      
4. Copy of the letter dt.25.09.2009, 05.03.2013 and 03.07.2014.
5. Copy of the postal receipts and acknowledgements.

List of documents filed by the Opposite Parties :

NIL

MEMBER                                                                               PRESIDENT