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

DATED 03^RD DAY OF FEBRUARY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the Ops to refund the amount paid by me for allotting a plot with interest at 12%.
2. Or to allot the said plot as agreed in the Aero City Project only.
3. Direct the OPs to pay damages of Rs.1,00,000/-
4. Direct the OPs to pay Rs.50,000/- for the trauma have undergone in the means of mental agony, torture etc.,
5. Direct the OPs to pay Rs.50,000/- for deficiency of service.

2. The case set up by the complainant in brief is as under:-

The complainant house building contractor as an tile laying work executed by him and one of his friend took him to the OP society and on his advise he has become the member of the OP society. After becoming the member of the said society election was conducted and members were elected and nominated the OP1 and 2 as President and Secretary of the society. In the year 2016 the OPs have declared to open housing project in the name of the society on Telecom Aerocity Project.

3.       It is further case of the complainant that the complainant was also become the member of the society and invested all his savings to buy a plot in the said project. After registration and enrollment he was given a number to buy the plot in the project for a dimension measuring 30 X 40 sq.feet for Rs.5,70,000/- only.

4.       Accordingly the complainant has paid the first installment amount of Rs.1,52,000/- on 15.05.2014 and second installment of Rs.1,50,000/- on 16.03.2015 and third installment on 16.08.2016 for an amount of Rs.1,50,000/- through cheques. The secretary of the OP society issued a notice on 15.05.2020 demanding this complainant to pay the fourth installment of Rs.1,20,000/-.  After that the complainant enquired with the OP society and demanded them to show the plots which they have developed but the OPs have delayed to take the complainant to the said land.

5.       After that the complainant continuously visited the OP society but the same went in vein. The office bearers remained absent and the staff started neglect his words and pretend that the office bearers are not in the office.  After enquiry from other sources the complainant came to know that the OP society does not exist in Bangalore. There upon again he went to the office of the OPs and insisted them to show the developed plot and the plot allotted to him. At that time the OP office bearers have threatened him and try to through him out of their office with the help of security guards.  The OP officers have swindled the entire amount of all the persons who have registered in their society for allotment of plot.

6.       When the OPs office remained locked and they are not available for contact, the complainant got issued a personal notice on 16.01.2023 and also 20.02.2023. He has not received any reply.  After that he has also got issued another notice through RPAD, which was served on them. Inspite of service of notice the OPs have neither refund the amount nor allotted any site. Hence the complainant has filed this complaint.

7.       After issue of notice OP appeared and filed their version. The OPs have admitted about the project and the membership of the complainant and the amount paid by the complainant from 2014 till 2016 amounting to Rs.4,52,000/-.  

8.       The specific contention taken by the OP is that there is no deficiency of service caused by them. The project is at the ending stage and at the stage of allotment of sites to its members, but the complainant has not made the payments in time and violated the bye-laws. The entire amount collected by the members of the society has been invested for the development of formation of layout namely Aerocity, the complainant is a defaulter and has not paid the last installment. Hence the complainant has no right to claim for the plot. He has sought for repayment of the amount.  As per the resolution passed in the AGM which was unanimously accepted by all the members of the society, the applicant who is the member has to wait for 300 days from the date of application for refund of the amount.  The complainant without waiting for 300 days has filed this complaint seeking the remedy. There is no cause of action to file the complaint and the cause of action stated is created and concocted. At the time of filing the version itself these OPs have issued demand draft of Rs.4,50,000/- to the complainant before this commission, but the complainant refused to receive the same. Hence the OP prayed for dismissal of the complaint.

9.       The complainant has filed his affidavit evidence and relies on 09 documents.   Official of the OP has filed his affidavit evidence and relied on 03 documents.

10.    Heard the arguments of advocate for both parties. Perused the documents.

11.    The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

12.   Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

13.    Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence and documents filed by both the parties.

14.     In order to prove his contention the complainant filed his affidavit evidence and relied on Ex.P1 to P9. On the other hand in order to prove their contention the secretary of the OP has filed affidavit and relied on Ex.R1 to R3.

15.     It is undisputed fact that the complainant agreed to purchase a site measuring 30X40 feet in the proposed layout of the OPs namely Telecom Aerocity Project for a total consideration amount of Rs.5,70,000/-. They have collected three installments amounting to Rs.4,52,000/- from the complainant from 2014 till 2016.  The OP have issued Identity Card as Ex.P1 and they have also issued the receipts as Ex.P2 to P4.  After that the OPs have demanded the complainant to pay the fourth installment amounting to Rs.1,20,000/- by issuing notice as per Ex.P5 dated 15.05.2020. At that time the complainant came to know from other sources that the OP society is not at all in existence and they have not at all purchased any land for formation of sites as agreed by them. Hence he has got issued notice to the OPs to refund the amount as Ex.P.6 to P8 on 16.01.2023, 20.02.2023 and 13.03.2023 and the notices were served on the OP but the OPs have never complied with the demand of the complainant for refund of the amount.

16.     On the other hand, the only contention taken by the OP is that the complainant is a defaulter and he has not paid the final installment and hence as per the bye-law the complainant is not entitle for allotment of site. The secretary of the OP society has filed his affidavit evidence and also produced Ex.R1 i.e, Provisional Seniority List of the society and Ex.R2 is the copy of the approved plan and also society bye-laws as Ex.R3.

17.     It is their contention that even though there are more than 454 members in their society and majority of the members become defaulters and they have not paid the installments regularly. Hence there is a delay in formation of the layout. As per the resolution passed in the society in the AGM the member who wants refund of the amount have to wait 300 days from the date of demand. The complainant has requested for the demand in January 2023 and he has to wait till the completion of 300 days. Instead of waiting he has filed this complaint.

18.     It is pertinent to note here that at the time of filing of their version on 14.09.2023 before this commission have offered Rs.4,52,000/- claimed by the complainant through cheque but the complainant refused to receive the cheque and the same was returned to the OPs.

19.     Admittedly the complainant even though he is ready to pay the fourth installment to get the site the OPs are not ready to allot the site and they are offering only refund of the amount.  The complainant refused to pay the fourth installment after coming to know that the OPs have not at all formed any layout and sites and there is no existence of the OP society.  When the OPs have offered the refund amount for Rs.4,52,000/- to the complainant at the time of filing the version on 14.09.2023 the complainant would have received the amount on 14.09.2023 itself by continuing the complaint in respect of other reliefs. Instead of receiving the amount the complainant refuse to receive the amount. Hence we feel it is not necessary to award interest on the amount from 14.09.2023 till date.

20.     The OPs have retained the amount without allotting the site and without formation of the site and without refunding the amount till the filing of this complaint for more than 10 years. When the OPs were unable to allot any site in the said layout they would have refunded the amount in favour of the complainant.  The complainant has to approach this Commission to recover of the amount and also with a fond hope to get a site in the said layout formed by the OPs. The OPs have made the complainant to move from piller to post to get the refund of the amount.  The complainant has invested the amount with a fond hope to get the site and construct a house.  In view of the none allotment of the site and none refund of the amount, the complainant has suffered mental agony and harassment and also financial loss and thereby the OPs have committed deficiency of service and also unfair trade practice on their part. Hence the complainant is entitled for the relief. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

21.    Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund Rs.4,52,000/-  to the complainant with interest at 12% p.a., from the date of respective payment till 14.09.2023.
3.  OP is further directed to pay compensation of Rs.1,00,000/- with litigation expenses of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 14% p.a. after expiry of 60 days on Rs.4,52,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 03^RD day of FEBRUARY 2024)

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

Documents produced by the representative of opposite party – R.W.1;