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

DATED 21^st DAY OF APRIL 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This complaint has been filed under Section 35 of C.P.Act, 2019 (herein under referred as an Act) for the following reliefs against the OPs:-

(a) Direct the OPs to deliver possession of the allotted site admeasuring 2400 sq.ft. (60 x 40) at Bannerghatta Housing project or any other project undertaken by society or in the alternative

(b) Refund the entire amount of Rs.40,332/- with interest at 18% with monthly rests compounded from the date of payment till settlement and

(c) Direct the OPs to pay the complainant nominal damages calculated on cost escalation, present acquisition value of Rs.20,00,000/- within pecuniary jurisdiction of this commission (forum) towards waiting period in lieu of non-allotment of site coupled with mental agony.

(d) Direct the OPs to pay the complainant the cost of proceedings and

(e) Any other orders.

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

The complainant being the member of OP No.1 society has paid in all Rs.40,332/- on different dates.  The OP No.1 society issued allotment letter dated 31.05.1986 in respect of site measuring 40 x 60 ft.  The OPs have collected the cost of site, service/incidental charges, layout charges and other charges from the complainant.  But, they failed to deliver the possession of the site.  The OPs have committed deficiency in service.  Hence, this complaint.

3. In response to the notice, the OP No.1 failed to appear before this Commission and placed exparte.  OP Nos.2 and 3 appeared through their counsel and filed version.  The complaint against OP Nos.2 and 3 is not maintainable.  The OP Nos.2 and 3 are not discharging in any service for consideration.  Hence, the complaint against OP Nos.2 and 3 is not maintainable.  OP No.2 was formed for the benefit of the staff of the Syndicate Bank and same is succeeded by OP No.3. OP Nos.2 and 3 have been established to Education Institutions, to assist and provide poor students all education help, established hospital, running crèches for the development of backward areas etc.,  The complainant has directly paid the amount to OP No.1.  OP Nos.2 and 3 are only mediators.  The Government of Karnataka is a necessary party in the entire proceedings. They requests to dismiss the complaint.

4. The complainant files his affidavit evidence and relies on 11 documents.  The affidavit of representative of OP No.2 has been filed and OP No.2 relies on 3 documents.  Heard the arguments of both sides and perused the records.

5. The following points arise for our consideration:-

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

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

       Point No.1:  Partly in the affirmative.

      Point No.2:- Partly in the affirmative.

      Point No.3: As per final orders

REASONS

7. Point Nos.1 and 2:  The allegations made by the complainant against OP Nos.2 and 3 have been denied.  According to the OP Nos.2 and 3 they were only acted as mediators and they have not received any consideration for service and complainant has paid entire consideration to the OP No.1. 
8. The complainant in support of his contention, relies on affidavit evidence and documentary evidence. The documents produced by the complainant are not in dispute.
9. The complainant has produced bunch of receipts under Ex.P.1.  They indicate that the complainant has paid Rs.1,100/- towards life membership fee, Rs.500/- towards incidental/service charges to OP No.2 and complainant has paid Rs.250/- to OP No.3 towards housing project, Bengaluru.  But, complainant ahs made payment of Rs.8,000/-, Rs.6,000/-, Rs.6,472/-, Rs.6,000/- and Rs.18,000/- under different receipts including Ex.P.2 to OP No.1.  OP No.1 has issued the Ex.P.2 provisional allotment letter in respect of site measuring 2400 sq.ft.  There is no reference about total sale consideration of this site.  The entire complaint and evidence of the complainant remains silent about total value of the site provisionally allotted to the complainant.  When the complainant is silent about total price of the site, he is not entitled to relief of possession of the site.  It is not the case of the complainant that whatever amount he has paid to OP No.1 is in respect of total sale consideration.  The complainant has addressed Ex.P.3 letter about payment of Rs.6,472/- to OP no.1.  It is true that OP No.3 has addressed Ex.P.4 letter dated 14.02.1986 with regard to the site. Similarly, the OP Nos.2 and 3 have made correspondence as per Ex.P.5 to Ex.P.8 with complainant.  But, OP Nos.2 and 2 neither collected the cost of the site nor signatories to the allotment letter.
10. This complaint is preceded Ex.P.9 legal notice dated 29.06.2020, Ex.P.10 dated 11.08.2020 and Ex.P.11 dated 05.11.2020.  Ex.P.9 is addressed to OP No.1 only.  Ex.P.10 is addressed all the OPs.  Ex.P.11 is the reply of OP Nos.2 and 3.
11. The representative of OP No.2 categorically deposed that OP No.2 has created only for the purpose of establishment of Educational Institutions and undertaken other charitable work. Ex.R.1 is the authoriozation letter issued to R.W.1.  Ex.R.2 indicates that OP No.2 society has been registered under the provisions of Karnataka Societies Registration Act, 1960.  Ex.R.3 is the By-law showing the objects of OP No.2 society.  OP No.2 society has been established with an intention to provide educational institutions, run reading room, library, assists the poor and needy students and provide scholarship, stipend etc., OP No.2 society has not been established with an intention to provide sites.  Similarly, OP No.3 is not the institution which is responsible either recipient of the amount from the complainant towards site or promises to allot the site.
12. The advocate for the OP Nos.2 and 2 placing the reliance on the following orders, vehemently argues that OP Nos.2 and 3 are not necessary parties.

1. Appeal No.1600/ 2006 in the matter between Ananth Shankarbhat Kanat Vs. Vyalikaval House Building Co-operative Society Limited and another in Hon’b;e Kartanaka state Consumer Disputes Redressal Commission, Bengaluru dated 10.05.2007.
2. CC No.397/2005 in the matter between Dr.R.Kamalaksha Shenoy Vs Vayalikaval House Building Co-operative Society Ltd., and two others in District Consumer Redressal Forum at (Urban) Bengaluru, dated 27.07.2005.
3. CC No.624/2013 in the matter between M.Nanjundappa Vs. Vayalikaval House Building Co-operative Society Ltd., and two others in District Consumer Redressal Forum at (Urban) Bengaluru, dated 06.07.2013.
4. CC No.1584/2006 in the matter between Prema N.Swamy Vs. Vayalikaval House Building Co-op. Society Ltd., and another in Bengalore IV Additional District Consumer Disputes Redressal Forum dated 20.07.2006.
5. CC No.1196/2003 in the matter between Vijay Krishna Pahwa Vs. Vyalikaval House Building Co-operative Society Ltd., and another in IV Additional District Consumer Disputes Redressal Forum, Bengaluru dated 20.01.2004.

13. We carefully perused the facts and ratio involved in the above decisions.  The OP Nos.1 and 2 were parties to the above proceedings.  But, ultimately all the complainants were partly allowed particularly against OP No.1 – Vyalikaval House Building Co-operative Society.
14. The complainant in the absence of total value of the site and in the absence of payment of entire sale consideration is not entitled to possession of the site measuring 2400 sq.ft.
15. The complainant alternatively claims refund of Rs.40,332/- which has been proved that the complainant has made this payment only to OP No.1 towards part of the cost of site.  Therefore, OP No.1 alone is liable o refund Rs.40,332/-.
16. The complainant seeks interest at 18% p.a. with monthly rests on Rs.40,332/- and compensation of Rs.20,00,000/-.  Even though, in above referred cases, the interest came to be awarded between 9 to 14% p.a.  But, in the year 2021/2022, the Hon’ble Supreme Court of India categorically ruled that awarding of interest at 9% p.a. from the date of payment till realization is proper.  Under such circumstances, the complainant is not entitled any amount towards compensation. 
17. Point No.3:- Having regard to the discussion referred above, the complaint requires to be allowed in part against OP No.1 only and complaint requires to be dismissed against OP Nos.2 and 3.  The OP No.1 is liable to refund Rs.40,332/- with interest at 9% p.a. from the date of respective payment till realization and Rs.1,000/- towards cost of litigation.   We proceed to pass the following 

  O R D E R

1. The complaint is allowed in part against OP No.1.
2. The complaint is dismissed against OP Nos.2 and 3.
3. The OP No.1 shall refund Rs.40,332/- with interest at 9% p.a. from the date of respective payment till realization with cost of litigation Rs.1,000/- to the complainant. 
4. The OP No.1 shall comply this order within 45 days from this date, failing which, the OP No.1 shall pay interest at 12% p.a. on Rs.40,332/- after expiry of 45 days till realization.
5. 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 April, 2022)

Documents produced by the Complainant which are as follows:-

Documents produced by the  Nos.2 and 3 which are as follows:-