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 and  the OPs intended to form a 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 15.04.2019 seeking for refund of the amount paid by the complainant with interest at the rate of 8% 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 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. Further, since the OPs did not allot the site and there was no correspondence from the OPs, the complainant had written a letter to the Hon’ble Prime Minister of India on 21.03.2018 by mentioning her grievance and in turn Chief Secretary, Government of Karnataka, Bengaluru had received a letter from office of the Hon’ble Prime Minister to take appropriate action and report the same to the office by its letter dated 27.03.2018.

4. It is  further contended that at the shock of complainant, the OPs had issued the provisional site allotment letter dated 24.05.2018 allotting  the vacant residential site bearing No.243, Phase No.3, measuring 360 sq.mtrs and the said measurement of site was contrary to the original site value received from the complainant.  Further, the complainant was  aged about 74 years and she was senior citizen on the date of filing the complaint.  Further, the complainant had made the payment with a fond hope of purchasing the site as she 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.  Hence, the present complaint came to be filed.

5. It is the case of the OPs  other than the admission made stated above, that 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 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 seniority of the complainant by  the Board of Directors and have not 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 her 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 site of the OPs.  Further, the OPs are ready to execute the sale deed in favour of the complainant within three months, if she pays balance amount of Rs.2,96,000/-. Hence sought to dismiss the complaint.

6. To prove the case of the complainant (PW1), she has filed affidavit in the form of her evidence in chief and got marked Ex.A.1 to Ex.A.11 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.  PW1 and 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 had become the member of OP society, she has produced Ex.A.1 xerox coy of the application dated 24.01.2008 submitted before OP society.   Ex.A.2 is the Xerox copy of the application for purchase of site submitted by the complainant.  Ex.A.3 is the receipt dated 25.01.2008 issued by OP society for having received Rs.4,29,020/- from the complainant.  Ex.A.4, Ex.A.5, Ex.A.6 and Ex.A.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 in the dimension of 50 x 80 ft. and the OPs have assured for the same and had received consideration  for the said dimension of site, for an eye wash, the OPs had issued a provisional site allotment letter dated 24.05.2018 for the vacant residential site measuring only 360 sq.mt. Ex.A.8 is the Xerox copy of the said provisional site allotment letter.  In the said letter, it is stated that measuring 360 sq.mtr of residential site has been allotted in favour of the complainant.  We feel, the said provisional site allotment letter is contrary to the assurance made by the OPs and the amount is received.  In the notice issued by the OPs vide Ex.A.4 dated 07.02.2018 calling upon the complainant to pay the installment amount for the dimension of the site is mentioned as  50 x 80 ft. and Ex.A.2 is the application form for purchase of site, in which  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.   50 x 80 ft. comes to 4000 sq. ft.  and 360 sq. mtr comes to 3875 sq.ft. Therefore, the measurement of the site mentioned in Ex.P.8 is less than the site measurement, the complainant sought and initially the OPs assured.  Hence, we feel there is deficiency of service on the part of OPs as contemplated under Section 2(11) of C.P.Act, 2019.
12.  OP 1 & 2 are represented the housing society. The complainant has become the member of the society with a fond hope of getting a site and had paid consideration. Hence, the opponent society had agreed to give service for the consideration received. Hence, we feel the complainant is a consumer within the meaning of section 2(7) of C.P.Act, 2019.  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/- on the said day itself, the OPs so far not allotted the site.  It is the contention of the OPs as stated in the version that in view of the legal hurdles from the Government of Karnataka and various sanctioning authorities, the layout project work could not be completed for so many reasons and it has been delayed.  Further, the paper works with the Government of Karnataka and other authorities are under process.  This itself indicates that the OPs were not ready to allot the site on the date of complaint.
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 ought to have paid the difference value but 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 had 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 should 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 06.03.2009 the receipt being issued by the OPs for having received Rs.4,28,000/- through cheque vide Ex.A.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 the provisional site allotment letter was issued on 24.05.2018 and thereafter made the complainant to issue legal notice dated 15.04.2019, in spite of that, the OPs did not allot the site.  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.  Accordingly, we answer the point No.1 in the affirmative and point No.2 partly in the 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 06.03.2009  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: