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

DATED 21^st DAY OF MAY 2022

ORDER

SRI.SHIVARAMA.K, PRESIDENT

1. The complainant has filed this complaint under Section 35 of C.P.Act, 2019 for a direction to the OPs to refund the amount in deposit of Rs.10,85,020/- with  interest at the rate of 8% p.a. from the date of last and final deposit till realization and a sum of Rs.1,00,000/- towards mental agony in the form of compensation and such other reliefs.

2. It is not in dispute that the OP No.1 is the President and OP No.2 is the Secretary of Housing society.  Further, it is not in dispute that the complainant had applied for purchase of the site in the proposed layout, the OPs intended to form the layout at Huyilalu Village, Ilwala Hobli, Mysuru Taluk, Mysuru District in the name and style  Nithaanandha Sagara Layout.  Further, it is not in dispute that the complainant had made application to purchase site measuring 50 x 80 ft. in the proposed layout and the complainant had paid first installment of Rs.4,29,020/- on 25.01.2008 and a sum of Rs.2,28,000/- as second installment by way of DD on 16.02.2008.  Further, it is not in dispute that the complainant had paid further sum of Rs.4,28,000/- by way of a cheque dated 03.03.2009 towards final installment.  Hence, in total, the complainant had paid Rs.10,85,020/-.  Further it is not in dispute that the complainant had issued legal notice dated 15.11.2018 seeking for refund of the amount paid by the complainant with interest at the rate of 18% p.a.

3. It is the further case of the complainant that the complainant had received a letter dated 25.09.2009 from the OPs intimating about change of address of the society and had intimated about the layout status and in the letter it was disclosed that as per the approved layout plan total number of sites were 791 and out of that only 474 sites have been released in the first list by the MUDA and the complainant would be intimated the next list of allotment by the MUDA.  Further after 2009, the complainant did not receive any information with regard to the release of sites by MUDA.  But, on 06.08.2011, the complainant had received a letter from the OP Nos.1 and 2 informing the regret in non-allotment of sites at Mysuru and all sites would be released in the proposed layout in the month of October, 2011.

4.  Further, the complainant had made the payment with a fond hope of purchasing the site as he was the resident of Mysuru.  Further, even though, the OPs have received the legal notice, not replied nor allotted the site as assured by them. Further  the complainant had received a letter dt.14.12.2018 to wait for two months from the date of letter and the opponents are going to allot the site as assured. Since the site not being allotted the present complaint came to be filed.

5. It is the case of the OPs other than the admission made stated above, in the year 2008, the OP society had performed the Bhoomi Pooja in the said layout and processed to acquire land and registered the land around 250 acres and remaining 50 acres under agreement stage.  Due to the difference in between the land owners and developers, the execution of the sale deed were delayed.  Further, OPs had applied for conversion for change of land to MUDA for dong the layout work.  Further, the OPs were ready to give site as per the wished of the Board of Directors and have no any malafide intention of cheating the members of the society.  Further, the OPs have no money to refund to the complainant as they have invested the money on the lands purchased to form layout.  Further, complainant had approached this Commission after 11 years from his last payment.  Hence, the complaint is not maintainable.  Further, OPs have no intention to stop development of the project.  Further, the site value of the said layout is more than 2 times over and above the deposited amount.  Further, the OP society had fulfilled the obligations and the complainants will get the site as early as possible as per seniority basis shortly.  Hence, there is no deficiency of service from the side of the OPs.  Further, the OPs are ready to execute the sale deed in favour of the complainant within three months, if he pays balance amount of Rs.2,96,000/. Hence,  sought to dismiss the complaint.

6. To prove the case of the complainant, he has filed affidavit in the form of his evidence in chief and produced documents.  The representative of OPs society is examined as RW1 and got marked Ex.R.1 document. 

7. Heard the arguments.

8. On the basis of the pleading of the parties and the reliefs sought, the point that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OPs?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

9. Our answer to the above points are as under:

       Point No.1:-  In affirmative.

      Point No.2:- Partly in affirmative.   

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

REASONS

10. Point Nos.1 and 2: In order to avoid the repetition of facts and as both the points are interlinked, both the points are taken together for discussion.  The complainant and OP(RW1) have filed their respective affidavits in the form of their evidence in chief and they have reiterated the facts stated in their respective pleadings in the affidavit filed.  To substantiate that the complainant had filed application for the site and become the member of OP society, he has produced Document No.1 xerox copy of the application dated 24.01.2008 submitted before OP society.   Document No.2 is the Xerox copy of the application for purchase of site submitted by the complainant.  Document No.3 is the receipt dated 25.01.2008 issued by OP society for having received Rs.4,29,020/- from the complainant.  Document Nos.4 to 7 are the notice issued by the OPs seeking to pay installment amount and the receipts issued by the OP society for having collected the installment amount from the complainant.  This fact has not been disputed by the OPs.

11. It is the contention of the learned counsel for the complainant that even though the complainant has sought for allotment of site for the dimension of 50 x 80 ft. and the OPs have assured for the same and had received the consideration  for the said dimension of site for an eye wash, the OPs had issued a letter dated 14.12.2018 wide document A-16 informing the complainant to wait for two months from the date of the letter for the allotment of site and they have not got the sufficient site of 50X80ft. dimension in a approved plans and they are unable to allot the site.  In the notice issued by the OPs vide Document No.4 dated 07.02.2008 calling the complainant to pay the installment amount for the  dimension of the site, it  is mentioned as 50 x 80 ft. and in Document No.2  the application form for purchase of site also the dimension of site is mentioned as 50 x 80 ft.  Therefore, the OPs had received the site value on the dimension of site measuring 50 x 80 ft.  Since, the Ops did not allot the site and refund the amount of deposit, we feel there is deficiency of service on the part of OPs as contemplated under Section 2(11) of C.P.Act, 2019.
12.   It is the further contention of the learned counsel for the complainant that even though the complainant had become the member of the OPs society on 24.01.2008 and had paid the first installment of Rs.4,29,020/- as per the receipt issued by OP vide document A-3 dt.25.01.2008, the OPs so far not allotted the site.  It is the contention of the OPs as stated in the version that in view of number of  legal hurdles from the Government of Karnataka and various sanctioning authorities, the layout project work could not be completed and it has been delayed.  Further, the paper works with the Government of Karnataka and other authorities are under process.  We feel this itself indicates that the OPs were not ready to allot the site on the date of complaint as sought by the complainant.
13. It is the further contention of the OPs as averred in the version that the cost of the site has been increased and the complainant did not pay the difference value and had paid only Rs.10,84,000/- and site of the cost was Rs.13,80,000/-.  If that being said fact, the OPs should have issued notice to the complainant calling upon the complainant to pay still more amount.  Hence, we feel there is no merit in the said contention.
14. The OPs had produced Ex.R.1 ledger extract indicating the calculation made by the OPs on the site and the amount paid by the complainant.  For the reasons stated above, there is no merit in Ex.R.1 calculation.  The complainant has sought for refund of the deposit to the tune of Rs.10,85,020/-.  We feel since the complainant had paid the said amount, she is entitled for the same.  Further, the complainant claimed interest at the rate of 8% on the said amount.  It is the contention of the OPs that since there is no fault of the OPs, the complainant is not entitled for interest at the rate of 8% p.a.  We feel, the OPs are not entitled to become rich in the money of others.  Therefore, the OPs shall  pay interest on the said amount and the interest at rate of 8% p.a. is not a huge one.  Therefore, the complainant is entitled for the interest at the rate of 8% p.a. from the date of final deposit made i.e. on 05.03.2009 the receipt being issued by the OPs vide document A-7 for having received Rs.4,28,000/- through DD dt.03.03.2009 vide Document No.7 till realization.  Further, the complainant claimed Rs.1,00,000/- towards mental agony which the complainant has undergone.  The OPs should have allotted the site immediately after the last installment amount being received and immediately thereafter the complainant had issued legal notice dated 17.11.2018. In spite of that, the OPs did not allot the site rather issued letter dt.14.12.2018 vide document A-6 to wait for another two months. Therefore, it appears that the complainant had sustained mental agony and made the complainant to file present case.  Hence, we feel the complainant is entitled for a sum of Rs.20,000/- towards mental agony undergone and legal expenses met.  Accordingly, we answer the point No.1 in affirmative and point No.2 partly in affirmative.
15. Point No.3:- In view of the discussions made above, we proceed to pass the following 

O R D E R

1. The complaint is allowed in part.
2. The OPs are directed to pay a sum of Rs.10,85,020/- to the complainant with interest at the rate of 8% p.a. from 05.03.2009  till realization. 
3. Further, the OPs are directed to pay a sum of Rs.20,000/- to the complainant towards cost of litigation and mental agony undergone.
4. The OPs shall comply the order within 30 days from the date of this order.
5. In the event of OPs fail to pay the said amount of Rs.20,000/- within 30 days from date of order, the same shall carry interest at the rate of 8% p.a. from the date of order till realization.

6. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 21^st day of May, 2022)

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

Documents produced by the representative of opposite party – R.W.1 are as follows: