Complaint filed on: 07-05-2012 Disposed on: 16-05-2013 BEFORE THE BANGALORE IV ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 C.C.No.955/2012 DATED THIS THE 16th MAY 2013 PRESENT SRI.J.N.HAVANUR, PRESIDENT SRI.H.M.SHIVALINGAPPA, MEMBER Complainant: - Sri.M.S.Nagaraja, S/o. M.S.Sharanappa, Aged about 39 years, R/at No.25/A, Krishnappa layout, RMV 2nd stage, Sanjaynagar, Bangalore-95 V/s Opposite parties: - 1. The President, Karnataka Telecom Department Employees Co-Op. Society Ltd, No.31/1, 1st Floor, 2nd Main, Vyalikaval, Bangalore-03 2. The Secretary Karnataka Telecom Department Employees Co-Op. Society Ltd, No.31/1, 1st Floor, 2nd Main, Vyalikaval, Bangalore-03 ORDER SRI.J.N.HAVANUR, PRESIDENT This is a complaint filed by the complainant against the OPs, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OPs to refund a sum of Rs.1,97,820=00 alongwith 18% interest from 6-9-2010 to till the date of realization, and to pay a sum of Rs.1,00,000=00 towards mental agony and inconvenience, and award cost of this complaint. 2. The brief facts of the complaint can be stated as under. The complainant is a resident of Bangalore and practicing as an advocate at Bangalore city. The OP has offered the complainant that, they will allot a site in the layout formed at Mysore city measuring 30X40 ft at Atmanandasagara layout by giving associate membership in the society. The complainant has considered the offer made by the OP and has become an associate member in the OP society, and thereafter, the complainant has applied for site measuring 30X40 ft at Atmanandasagara layout, Mysore city vide application dated 6-9-2010. At the time of application the complainant has paid a sum of Rs.1,97,820=00 towards the consideration amount of the site through cheque dated 6-9-2010. The OP has encashed the said cheque and issued the receipt in favour of the complainant on 23-9-2010. At the time of application for allotment of site the OP has assured that the layout by name Atmanandasagara has already completed and assured the complainant that they will allot a site within three months. At the time of filing application the complainant has already paid considerable amount towards the site as directed by the OP, but the OP has failed to allot the site as assured by them within the period of three months from the date of application. The complainant has approached the OP on many occasion personally and requested them to allot the site as assured by them, but the OP has failed to allot a site as assured by them. When the complainant has insisted the OP to allot the site, the OP told that there were no sites available in Atmanandasagara layout and assured that, they will allot a site within 3 months in the proposed Bramanandasagara layout formed by them at Mysore city. When the complainant has visited the Mysore city for verification of status of the proposed layout, there was no progress in formation of layout, and no work was started in the proposed layout. When the complainant has demanded the OP to allot a site, they are postponing the allotment of site under one pretext to another. The OP has failed to allot the site as assured by them, evenafter lapse of 1 ½ years, the complainant has caused legal notice to the OP and the OP has duly received the legal notice, but the OP has failed to comply the legal notice by giving reply. Hence, the present complaint is filed. 3. After service of notice, the OPs no.1 and 2 have appeared through their counsel. The OP no.1 has filed version and a memo has been filed by the OP no.2 adopting version of the OP no.1. 4. The OP no.1 has filed version contending that, the averment of the complainant at para no.1 to 3 is admitted, the further contention of the complainant at para no.4 that, the OPs had assured the complainant to allot the sites within three months from the date of deposit of money for the site is completely denied. The complainant has not produced any proof with regard to that assurance, so the complainant is put to strict proof of the same. The said complaint does not disclose the exact amount for which the OPs had agreed to sell the site to the complainant. The complainant has stated in the complaint that he has paid a sum of Rs.1,97,820=00 towards consideration amount of the site. Further the complainant himself has admitted in the complaint that he is still due some amount towards the site to be allotted by OP. Inspite of several reminder, the complainant has not fully paid the consideration amount. The complainant himself has been the defaulter with the OP in paying the amount and there is no deficiency on the part of the OP with regard to the allotment of the site to the complainant. The contention of the complainant that only Atmanandasagara is developed and Bramanandasagara layout is not developed is purely false. The necessary photos of the layouts will be produced at the time of evidence. The Atmanandasagara layout has been formed by the OP wherein 1682 sites have been formed and allotted 1175 sites to the members and 711 sites have already been registered to its allottees. The complainant has not fully paid the value of the site and hence he was not allotted the site at Atmanandasagara and he is ready to allot the site after the full payment of the consideration of the value of the site is paid. The layout by name Brahmanandasagara is very close to the national highway between Mysore and Mercara and it is also close to fully developed Vijayanagara layout at Mysore. The contentions of the complainant that, the OPs are postponing the allotment of the site under one or other pretext are false. The said allegation is made only to get the sympathy of this court, hence it is prayed that, the complaint is devoid of merits, so it is liable to be dismissed. 5. So from the averments of the complaint of the complainant and objection of the OPs, the following points arise for our consideration. 1. Whether the complainant proves that, the OPs are negligent and there is deficiency of service on the part of the OPs in not allotting the site to him as promised? 2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to? 3. What order? 6. Our findings on the above points are; Point no.1: In the Affirmative Point no.2: The complainant is entitled to refund of Rs.1,97,820=00 alongwith 16% interest from the date of payment within 30 days from the date of this order, failing which, the OPs shall pay the said amount to the complainant with 18% interest from the date of the payment to till the date of realization alongwith cost of Rs.5,000=00 Point no.3: For the following order REASONS 7. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced documents as annexure-A to D. On the other hand, one Bhakthavachalam who being the President of the OP society has filed his affidavit by way evidence on behalf of the OP society and produced no documents. We have heard the arguments of both parties, and we have gone through the oral and documentary evidence of both sides scrupulously. 8. One M.S.Nagaraja, who being the complainant has filed his affidavit by way of evidence that, he is a residing at Bangalore and practicing as an advocate in Bangalore city. The OP has offered him to allot a site in the layout formed at Mysore city measuring 30X40 ft at Atmanandasagara layout by giving associate membership in the society. He has considered the offer made by the OP and has become an associate member in the OP society, and thereafter, he has applied for site measuring 30X40 ft at Atmanandasagara layout, Mysore city vide application dated 6-9-2010 by paying Rs.1,97,820=00 through cheque bearing no.523837 dated 6-9-2010. The OP has encashed the said cheque and issued the receipt dated 23-9-2010. At the time of his application the OP has agreed to allot the site at the rate of Rs.271=00 per sq. ft. and considering the offer made by OP, he has paid substantial amount to the OP. At the time of application for allotment of site the OP has assured that the layout has already been completed and assured that, they will allot a site within 3 months, but the OP has failed to allot the site within 3 months. In this regard, he personally approached the OP on many occasions and requested him to allot the site. Though he was ready to pay the balance amount towards the site, the OP has failed to allot the site, when he insisted the OP to allot the site, the OP started saying that there were no sites available in Atmanandasagara layout and assured that, the site will be allotted within 3 months in the proposed Bramanandasagara layout formed by them. When he visited the city for verification of status of the proposed layout by name Brahmanandasagara layout there was no progress in formation of layout, and no work was started in the proposed layout. The OP went on postponing the matter under one or the other pretext. The OP has failed to allot the site after lapse of 1 ½ years, he has caused legal notice to the OP calling upon him to refund the amount paid by him alongwith 18% interest and the OP has received the notice, but failed to comply the notice. Since the OP has failed to allot a site as assured, so he has committed the deficiency of service, so the present complaint is filed, so he prays to pass an order as prayed for. 9. By a careful reading of the complaint and evidence of the complainant as mentioned above, it is explicitly clear that, the complainant has tendered his evidence in accordance with the averment of the complaint. Let us have a look at the relevant documents of the complainant, so as to know whether the oral testimony of the complainant is supported by documentary evidence or not. The complainant has produced an application for associated membership and that application goes to show that, the complainant has submitted an application to become a member of the OP society by paying Rs.1020=00. Document no.2 is the copy of application form given by the complainant to OP for purchase of the site measuring 30X40 sq. ft. in Atmanandasagara layout, Mysore by paying Rs.1,97,820=00. Document no.3 is the copy of cheque issued by the complainant dated 6-9-2010 in the name of the OP for Rs.1,97,820=00. Document no.4 is the copy of receipt issued by the OP dated 23-9-2010 in the name of the complainant for having received Rs.1,97,820=00 towards advance amount of site measuring 30X40 sq. ft. Next document is the copy of legal notice issued by the complainant dated 29-3-2012 through his lawyer in the name of President and Secretary of the OP calling upon them to refund Rs.1,97,820=00 alongwith 18% interest from 6-9-2010 and also notice charge, as the OP has failed to allot a site. Remaining documents of the complainant are the copies of acknowledgement card for having served the notice on the OP. 10. By a careful reading of the oral and documentary evidence of the complainant, it is no doubt true that, the oral evidence of the complainant that, after becoming the member of the OP society, he credited the amount Rs.1,97,820=00 towards allotment of site measuring 30X40 sq. ft. in the layout formed by the OP by name Atmanandasagara layout, and inspite of making several requests, the OP did not allot the site to him stands corroborated by annexure-A to D of the complainant. 11. Let us have look at the evidence of the OP. One Bhakthavachalam, who being the President of OP society has deposed in his evidence that, the complainant has became an applicant for allotment of site, but his contention he would be allotted a site within three months from the date of payment is not admitted. The complainant has stated that, he has deposited a sum of Rs.1,97,820=00 towards the allotment of site at Atmanandasagara layout near Mysore city. Because of the fact that, he has not paid the balance amount towards the consideration of the price of the agreed site, he is not allotted a site so far. The contention of the complainant that, he was assured a site at Atmanandasagara is also true but because of the laps on the part of the complainant for not having deposited the balance amount, he was not allotted a site. His contention that, he was ready to pay the balance amount but the OP failed to allotee the site despite of several demands is not true. Because the complainant did not deposit the balance amount in time, all the sites at Atmanandasagara were allotted and the complainant was assured for the allotment of site at Bramanandasagara layout. The said Brahmanandasagara formed is very close to the National Highway; it is situated near fully developed Vijayanagara layout at Mysore. No materials are produced by the complainant to show that, the proposed Bramanandasagara layout is not developed. The complainant has admitted in his evidence that, he has not paid the entire sale amount and so his contention that he is entitled to the interest at 18% p.a. on the amount paid by him from 6-9-2010 till the date is not tenable. Several times it is made clear that, the complainant will be allotted the site after full payment. The complainant has not established any deficiency of service on the part of the OP, so the case of the complainant be dismissed. 12. As can be seen from the material on records that, the OP did not venture to produce any documentary evidence to support the evidence of the President of the OP. In the absence of the producing any documentary evidence, it is not justifiable to place reliance on the oral testimony of the President of OP as gospel truth, and accordingly the oral testimony of the President of OP is unworthy of acceptance. 13. Looking to the case of the complainant, on the back ground of the oral testimony and documents of the complainant placed before this forum, it is made explicitly clear that, the complainant has paid Rs.1,97,820=00 towards the allotment of site measuring 30X40 sq. ft in the layout formed by the OP, and the OP has issued receipts for having received the amount in the name of complainant dated 23-9-2010. Till this date, the OP has neither allotted the site to the complainant nor refunded the amount to the complainant, for the reasons best known to the OP. Atleast the OP should have called upon the complainant to pay the balance amount of the site and get the allotment of site. No such sincere efforts were made by the OP from 23-9-2010 to till the receipt of legal notice of the complainant. Since, the OP has neither allotted the site nor refunded the amount to the complainant, so the complainant is justified in approaching this forum seeking relief under the Consumer Protection Act. The complainant who knocks the door of this forum seeking relief has proved with convincing material evidence that, the OP is negligent and there deficiency of service on the part of the OP in not allotting the site to the complainant, though the complainant has requested the OP to allot a site to him, and accordingly, we answer this point in a affirmative. 14. The complainant has paid Rs.1,97,820=00 to the OP towards allotment of site, as per the receipt issued by OP. The said amount is lying with the OP since 23-9-2010. The OP has neither allotted the site nor refunded the said amount to the complainant as on this date. Since the OP has not rendered any service to the complainant after taking the amount of Rs.1,97,820=00. So the complainant is entitled for refund the said amount from the OP, the OPs have kept the amount of the complainant without showing any progress in the development or formation of site as promised, so the OP is liable to pay interest to the complainant at the rate of 16% per annum on the said amount from the date of receipt of the amount i.e. 23-9-2010 within 30 days from the date of this order, failing which, the OP shall pay the said amount to the complainant with 18% interest per annum on the said amount from the date of receipt of the amount to till the date of realization. The OP is further directed to pay Rs.5,000=00 to the complainant towards cost of litigation, and accordingly, we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order. ORDER The complaint of the complainant is partly allowed. The OPs are directed to refund Rs.1,97,820=00 to the complainant with 16% interest per annum on the said amount from the date of payment, within 30 days from the date of this order, failing which, the OPs shall pay the said amount to the complainant alongwith 18% interest per annum on the said amount from the date of payment to till the date of realization. The OPs are further directed to pay Rs.5,000=00 to the complainant towards cost of litigation. Supply free copy of this order to both parties. Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 16th day of May 2013. MEMBER PRESIDENT |
