CC No.2650/2017                                                                        Date of filing:27.09.2017

                                                                                                 Date of Disposal: 09.10.2019

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 9^th  DAY OF OCTOBER  2019

CONSUMER COMPLAINT NO.2650/2017

PRESENT:

Sri    Venkatasudarshan  D.R.  B.Com,LL.M.,              …. President

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

COMPLAINANT:

Sri. K. Roopesh

S/o late Kodandarama.S, R/at

No.128/1, Anjeneya temple street,

Cubbon pete, Bangalore-560002.

 (Complainant by Sri.Mahesh .B  ,Advocate)          

 V/s

OPPONENTS:

1. The President, Karnataka

Telecom Department Employees

Co-operative society Ltd., presently at

No.30/1, 2^nd floor, Leeman’s complex,

Cunningham road, Bengaluru-560052.

2. The Secretary, Karnataka

Telecom Department Employees

Co-operative society Ltd., presently at

No.30/1, 2^nd floor, Leeman’s complex,

Cunningham road, Bengaluru-560052.

 (Opposite party by Sri.S.R. Narayanappa, Advocate)

= = = = = = = = = = = = =                                         

Written by Sri Venkatasudarshan D.R., President

              ******

// ORDER//

This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant Sri. K. Roopesh against the President and Secretary of Karnataka Telecom Department Employees Complainant-operative Society Limited praying for direction to the opposite parties to refund a sum of Rs.3,25,000/- which was deposited by the complainant for allotment of site together interest at 24% p.a. from the date of deposit till the date of realization and for payment of Rs.3,00,000/- as compensation for mental agony and deficiency in service and also to pay the cost of the litigation.

2. The brief facts of the case of the complainants are that the opposite party is a society registered under the Co-operative societies Act with the object of forming the residential sites and allot them to its members.  The complainant got himself enrolled as a member of the society by depositing a share amount of Rs.1,000/- and associated member fee of Rs.10/- on 26.04.2006.  The opposite party society has informed the complainant that it proposed to form a residential layout of Belavadi village, Mysore in the name and style of “ANANDHASAGARA LAYOUT”.  The opposite party has requested the complainant to deposit a sum of Rs.60,000/- as an advance amount for the allotment of a site measuring 30 X 40 feet which the complainant deposited under cheque No.295612 drawn on HDFC Bank, Bangalore dated 24.06.2006, for which the opposite party society has issued the receipt.

3. It is the further case of the complainant that on 15.05.2006 the 1^st installment payment of Rs.68,400/- was made.  The 2^nd instalment of another Rs.68,400/- and the 3^rd and final instalment of Rs.1,28,400/- were all paid by the complainant to the opposite parties by means of cheques on 24.05.2006, 11.10.2006 and 02.12.2008 for which the opposite party society had issued receipts.  Thus it is pleaded that the complainant has paid in all Rs.3,25,200/- being the full payment for the allotment of site measuring 30 X 40 feet.

4. It is the further case of the complainant that during the year 2007 the complainant was informed by the opposite parties about the status of the layout by stating that the land procurement and change of land used has been completed and the sanction of plans is under progress.  That status report is dated 22.12.2007.  Again in the year 2010 the opposite party has written a letter on 13.01.2010 about the further progress made in the formation of the layout.  It was informed on 26.07.2010 by the opposite parties society that MUDA has released 119 sites and the same was allotted to the members of the society.  But no site was allotted to the complainant though he was a senior member.  The complainant has hoping that he would be allotted a site by the opposite parties.  But the opposite parties have failed to allot any site.  On 06.08.2011 the complainant was informed that some more sites will be released in the month of October-2011 and that site would be allotted to the complainant without any further postponement.   But the opposite party society has failed to allot a site.

5. It is the further case of the complainant that 7 years after the depositing the entire sital value, the opposite parties have issued  a site allotment letter dated 05.10.2013 allotting site No.55, measuring 30 X 40 feet in Anandhasagara layout, 7^th phase, Belavadi village, Mysore and assured that the registration would be done immediately.  It was a provisional allotment letter.  But nothing was done.  It is stated that the complainant being fed up with the attitude of the opposite parties got issued a legal notice dated 01.08.2017 calling upon the opposite party to register the site within 15 days from the date of receipt of the notice.  The opposite parties having received the notice replied stating  same earlier reasons.  The complainant has lost the hope of getting the site registered.  He suffered lot of mental agony and harassment in the hands of the opposite parties.  The complainant is not interested in getting site registered.  He wants refund of the amount along with interest at 24% p.a. and also damages.  Contending that this act of the opposite party   amounts to deficiency in service.  Hence, the present complaint has been filed.

6.  After admitting the complaint which was filed on 27.09.2017 , the notices were ordered to be issued to the opposite parties.  Both the opposite parties have entered through an advocate and filed version.  Though the version filed is signed only by the secretary of the opposite party society i.e., opposite party No.2, a memo was filed by the advocate on behalf of opposite party No.1, who is the president of the society adopting the version filed by the secretary i.e., opposite party No.2.

7. In the version filed it is admitted that the complainant is an associate member of the society with membership No.A6662.  It is also admitted that in the year 2006 the complainant has made an application before the opposite party society seeking allotment of a site measuring 30 X 40 feet in Ananda Sagara layout.  The amount deposited by the complainant for allotment of a site as pleaded in the complaint is also not disputed.  It is contended that the opposite party Nos.1 and 2 is a registered society under Co-operative society Act and its intention was to form residential layout and allot sites to its members on the basis of seniority and in that contest the complainant has already allotted site No.55 in 7^th phase of Ananda Sagara layout, Mysore which is adjacent to Mysore ring road and 4^th stage of Vijayanagara at Mysore.  The opposite parties society is a very good organization forming several layout in Bangalore and Mysore.

8. It is denied by the opposite parties society that the society  has not allotted the site to the complainant.  The complainant himself has admitted the allotment of site to him by the opposite parties society. The complainant himself has admitted the allotment of site to him by the opposite parties society on 05.10.2013, in the above said layout in  7^th phase.  It is admitted that the opposite parties would register the sale deed in favour of the complainant after completion of the civil work.  It is denied that the layout has been completed.  It is contended that the layout work has been completed and it is ready for registration but the society is awaiting khatha certificate from the authority.  Once it gets the khatha certificate the sale deed would be executed in favour of the complainant.  It is further contended that due to comprehensive development plan the further layout work has been stopped in the year 2016.  The Government of Karnataka has proposed the comprehensive development plan and the same has been published in the Gazette on 04.02.2016 and include in MUDA.  It is contended that the complainant would get his site registered shortly.  The non-completion of the project is not in the hands of the society.  It was due to Government policies and the non-approval of the layout plan due to CDP.  It is contended that there is no intention on the part of the opposite parties society to stop the development of the project.  There is no delay or negligence on the part of the opposite parties society.  No inconvenience caused to the complainant in fact the site value became double and the complaint is benefited by this.  Hence, it is contended that there is no deficiency in service.  It is contended that as the layout is fully formed and the sites above to be allotted the question of pay interest at the rate of 24% p.a. or the payment of Rs.3,00,000/- for mental agony does not arise.  Hence, prays for dismissing the complaint.

9. When the case was set down for recording evidence.  The complainant Mr.Roopesh has filed his affidavit evidence.

10. On behalf of the opposite parties one Sri. B.S. Manjunath, the secretary of the society got himself examined by filing affidavit evidence.

11. The complainant as well as the opposite parties have filed their written arguments.  The advocate for the complainant has advanced the oral argument also.    No oral arguments advanced by the opposite parties though opportunities were granted.

12.      The points that arise for our determination are:-

(1) Whether the complainant proves that there is deficiency in service on the part of the opponents?

(2) Whether the complainant is entitled for the reliefs sought in the complaint?

13.    Our findings on the above points are:-

Point No.1:- In the affirmative.

Point No.2:- Partly in the affirmative.

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

14. Point No.1:- This is a complaint filed by the complainant Sri. K. Roopesh seeking direction to the opposite parties to refund the sum of Rs.3,25,200/- which he had paid to the opposite parties society for the purpose of allotment of site together with interest at 24% p.a. from the date of deposit till the date of realization and also to pay Rs.3,00,000/- as compensation for mental agony together with cost of litigation.  This complaint is filed on the ground that there is deficiency  in service on the part of the opposite parties society in not allotting the site even after collecting the complete sital value.

15. The burden of proving above said aspect is on the complainant.  The complainant in order to substantiate the averments made in the complaint has filed his affidavit evidence.  Since the averments made in the affidavit are nothing but the repetition of the  averments made in the complaint and as the averments made in the complaint have already been discussed in detail above, there is no need for us to again discuss on the averments made in the affidavit.

16. Further to substantiate the oral evidence which is in the form of an affidavit the complainant has produced copies of certain documents, which have not been disputed by the opposite parties society.  Annexure-A is the receipt dated 26.04.2006 issued by the society for having received Rs.1,020/- from the complainant towards membership fees.  Annexure-B is again the copy of another receipt issued by the opposite parties society to the complainant dated 26.04.2006 for having received cheque for Rs.60,000/- as site advance.  Annexure-C is the copy of the letter/ notice dated 15.05.2006 issued by the opposite parties society calling upon the complainant to make payment of Rs.68,400/- towards first instalment for allotment of a site.  Annexure-D is the receipt dated 24.05.2006 issued by the opposite parties society to the complainant for the said  sum of Rs.68,400/-.  Annexure-E is the copy of another notice dated 07.09.2006 issued by the opposite parties society to the complainant calling upon him to pay the second installment of Rs.68,400/-.  Annexure-F is the corresponding receipt issued by the opposite parties society to the complainant which is dated 11.10.2016 for having received cheque for the said amount of Rs.68,400/- towards second instalment.  Annexure-G is another receipt dated 03.12.2008 issued by the opposite parties society to the complainant for having received the cheque for a sum of Rs.1,28,400/- toward the third and final instalment of the money payable for allotment of site.  Thus in all the complaint averments that he has paid Rs.3,25,000/-, being the full value of the site to be allotted by 03.12.2008.  He became a member on 26.04.2006.  The opposite parties society is not at all disputing these documents and payments made by the complainant.   In fact, in the version and also in the affidavit evidence the opposite parties have admitted that a sum of Rs.3,25,200/- has been received by the opposite parties society from the complainant.   There are certain documents which are in the form of Annexure-H dated 22.12.2007, Annexure-J dated 13.01.2010. Annexure-K dated 26.07.2010, Annexure-L dated 06.08.2011 where by  the members including the complainant were informed about the progress made from time to time.  It is true that the provisional allotment letter was issued by allotting site No.55 Ananda Sagara layout at 7^th phase, Belavadi village, Mysore as per the letter dated 05.10.2013.  This is also not disputed by the opposite party.  The possession certificate was not issued.  In this document i.e., site allotment letter it is mentioned that the allottee has to proceed with construction of the structure within a period of 3 years from the date of issue of possession certificate.  But when the possession certificate itself is not given even till the date of filing of the complaint, this clause of “3 years” is of no significance.  It is very much pertinent to note on 17.10.2013 the society had informed the complainant about the allotment of site measuring 30 X 40 feet in Ananda Sagara layout 7^th phase with a further note that “the registration of site will be done after 3 months since the civil work is in progress.  Soon after the completion  of the civil work you will be called from our office for registration of the site”.   This period of 3 months is imposed upon the opposite parties society by itself.  Therefore it was mandatory for the society to comply the self-imposed condition.  Unfortunately no progress has been done even till 25.11.2016 which is evinced by the letter Annexure-P written by the society.  A legal notice was also sent by the complainant on 01.08.2017 as per Annexure-Q calling  upon the opposite party the president and secretary of the society to registered the site within 15 days.  By way of reply as per Annexure-R dated 10.08.2017  i.e., 11 years after booking for a plot the society informs the advocate for the complainant that the work is still in progress and the registration of the sites would be done hopefully by December-2017. 
17. Here we have to look at the plight of the complainant who had a fond hope of obtaining a plot and constructing a house of his own thereon.  But all his hopes were shattered.  He became a member of the opposite parties society in the year 2006.  He made payment promptly as and when called upon  by the opposite parties which is to  the tune of Rs.3,25,000/- during period from 26.04.2006 to 03.12.2008 which is full consideration payable for the allotment of site and registration of the same.     Even after waiting for 9 long years  the opposite parties society has not registered site and put the complainant in possession of the plot  by executing an absolute sale deed.  The reasons given for not registering the plot are not supported by any documentary evidence.  The opposite party could have produced some documents to show what  literally prevented it from proceeding with the allotment of site,  issuing of possession certificate and registration of the sale deed to the complainant.  In the absence there being no such documents produced by the opposite parties it is not possible to believe the version of the opposite parties.  That apart none of the reasons given by the opposite parties society in the version for not allotting site to complainant even after nine long years are acceptable.    This inordinate and undue delay on the part of the opposite parties certainly amounts to a serious defect, shortcoming or inadequacy in performance which amounts to deficiency of service.  Accordingly we answer point No.1 in the affirmative and in favour of the complainant.

18.  Point No.2 & 3:- In view of the finding recorded on point No.1 in favour of the complainant the next aspect  to be considered is about the entitlement of the complainant for the reliefs sought.   

19.  The complainant has sought for refund of Rs.3,25,200/- which he has paid as the price for the allotment of a site.  This claim is fully justified.  When the opposite parties society has not kept up its  promise of making an absolute  allotment of a site  as against the provisional one made and conveying its title with possession to the complainant on time, it is bound to refund the amount collected. The opposite parties society is a defaulter.  Therefore the complainant is entitle to get refund of Rs.3,25,000/- from the opposite parties society.

20.  The complainant is seeking direction to the opposite parties society to pay interest at the rate of 24% p.a. on the said amount.  The claim made by complainant for payment of interest is acceptable.  This is because the money belonging to the complainant was being paid from time to time in installment as and when called upon by the opposite parties.  The said money was lying with the opposite parties society and it is the society which enjoyed the fruits of that money.    The hard earned money to the tune of Rs.3,25,000/- belonged to the complainant was blocked in the hands of the opposite parties.  Had that money been invested in any lucrative deposits it would have yielded good income by way of interest to the complainant.  But the complainant has thus suffered monetary loss as the said money is blocked with the opposite parties.  This loss caused to the complainant has to be compensated by the opposite parties society, which can be done by paying interest on the said amount of Rs.3,25,000/-.    Therefore the society is bound to refund that amount together with interest.  If that is done the loss sustained by the complainant on account  money being blocked with the opposite party without earning any income could be compensated.  In this context it may not be due of context for us to refer to the decision of the Hon’ble State Commission West Bengal in reported in 2017(1) CLT page 368 in Deepak Mithra V/s Bhhota Naik wherein it is held.   “The imposition of interest is not a penalty or punishment at all, but is a normal accretion on capital on that in equity a person keeping the money is require to pay the interest being a normal accretion on the principal amount”.  In this judgement the Hon’ble State Commission has refered to the judgement of the Hon’ble Supreme Court in 2010(8) Supreme page 46.   In the recent decision reported in 2019(3) CPR 575 in Santhosh Kumar Kejriwal V/s LIC also the Hon’ble National Commission held the same.  It relied on the judgement of the Hon’ble Supreme court reported in II (2007) CPJ 3 (SC) wherein it is held  “It may be mentioned that there is misconception about interest.  Interest is not a penalty or punishment at all, but it is the normal accretion on capital.  For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount.  Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period.  Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B”. 

From the discussion made above, it is clear that the opposite parties are liable to pay interest on the amount of Rs.3,25,000/- to the complainant.But the question is about the rate of interest.The complainant claimed interest at the rate of 24% p.a.   It appears to us as excessive.  Under  the facts and circumstances of the case we deem it fit and proper to award interest at the rate of 15% p.a. on the sum of Rs.3,25,200/- to be calculated from 03.12.2008 (the date of last payment) till the date of actual realization.

21.  It is not uncommon for human being to dream of having his own house.  In order to realize the dream the persons like the complainant would go in search of a suitable site or a plot to purchase so that they can put up a construction of their dream house and live happily.  With such a hope the complainant herein had approached the opposite parties society, became a member and applied for allotment of site measuring 30 X 40 and started making payment from 26.04.2006 itself, i.e., the date on which he became a member and paid in all sum of Rs.3,25,200/- over a period of about 2 ½ years.  It is his hard earned money.  By making such payments to the opposite parties society the complainant kept on waiting and waiting for allotment of site.  Even after 11 long years from the date of last payment the opposite parties society has not allotted a site.  When such being the case one can imagine the harassment anxiety/concern that the complainant must have under gone coupled with physical and mental stress and strain leading to mental agony coupled with monetary loss.  Any amount of monetary compensation perhaps would not be sufficient to compensate the said mental agony which the complainant had undergone.   All these because of the attitude of the opposite parties society.  Therefore   the opposite parties society is bound to compensate the complainant for this loss.  Taking all these aspects into account we award a sum of Rs.50,000/- as compensation to be payable by the opposite parties society to the complainant. 

22. The complainant had seriously and sincerely waited for 9 long years from the date of last payment for the opposite parties society hoping that the opposite parties society would allotment him a site absolutely and execute the registered sale deed and put him in possession.  A legal notice was also sent,  but of no positive response.  Therefore the complainant perhaps loosing all hopes and confidence on the opposite parties society has filed this complaint.  To put it in other words to the conduct and the attitude of the society which has made the complainant to file this complaint by engaging the services of an advocate.  He has fought out this litigation for a period of about 2 years in order to take the case to the logical end.  Necessarily he must have incurred expenditure which also to be borne by the opposite parties.  Though the details of the expenditure incurred are not available we notionally award a sum of Rs.5,000/- being the cost of litigation.  Accordingly we answer point No.2  partly in the affirmative and proceed to pass the following order;

ORDER

     The complaint filed Under Section 12 of Consumer protection Act by Sri. K. Roopesh is allowed in part as under:-

     The complainant is entitled to get refund a sum of Rs.3,25,200/- (Three lakh twenty five Thousand only)  together with interest 15% p.a. from 03.12.2008 (the date of last payment) till the date of  actual realization from the opposite parties.

     The complainant is entitled to receive a sum of Rs.50,000/- (Fifty thousand) as compensation towards mental agony sustained by them  and also further sum of Rs.5,000/- (Five thousand) towards cost of litigation from the opposite parties.

     The opposite parties shall comply with the above direction within 30 days.

          Supply free copy of this order to both the parties.

(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on  9^th day of October  2019)                                            

  (L.Mamatha)                                 (D.R. Venkatasudarshan )      

     Member                                                    President.   

      //ANNEXURE//

Witness examined for the complainant side:

1. Sri. K. Roopesh, who being the Complainant has filed his affidavit.

Witness examined for the opponent side:

1. Sri. B.S. Manjunath, secretary of   Opposite Party No.2 has filed his affidavit.

Documents marked for the complainant side:

1. Copy of the receipt for having paid the share amount and membership dt:26.04.2006.
2. Copy of the receipt for having deposited the advance amount dt:26.04.2006.
3. Copy of notice for payment of 1^st installment dt:15.05.2006.
4. Copy of the receipt for payment of 1^st installment dt:24.05.2006.
5. Copy of the notice for 2^nd installment dt:07.09.2006.
6. Copy of the receipt  for payment  2^nd installment dt:11.10.2006.
7. Copy of the receipt for depositing the 3^rd and final installment dt:03.12.2008.
8. Copy of the layout status report dt:22.12.2007.
9. Copy of the status of progress of layout dt:13.01.2010.
10. Copy of intimation of release of sites letter dt:26.07.2010.
11. Copy of the confirmation letter dt:06.08.2011.
12. Copy of allotment letter dt:05.10.2013.
13. Copy of letter of greeting dt:17.10.2013.
14. Copy of status report of the layout dt:25.11.2016.
15. Copy of legal notice dt:01.08.2011 along with postal receipt and acknowledgement.
16. Copy of reply letter dt:10.08.2017.

Documents marked for the opponent side: