BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 06^th DAY OF JUNE 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to allot him a site measuring 30x40 and to pay him damages in a sum of Rs.1,00,000/- with costs.

2. The brief averments made in the complaint are as under:

That the complainant is member of OP society and applied for residential site measuring 30x40 in the proposed layout called as “NITHYANANDHA SAGARA”.  That the complainant paid total sum of Rs.3,26,220/- to OP society on various dates between 26.07.2007 to 06.04.2009 towards the total cost of the site for which OP society has issued him receipts.  Despite paying the entire consideration amount, the OP society has failed to allot him any site in the above mentioned layout.  The OP society is deferring allotment of site on one or the other pretext.  That the complainant visited the society several times and requested for allotment of site, however without any results.  That the OP society is adopting the delaying tactics in allotting the site to the complainant.  Therefore, the complaint got issued a legal notice dated 16.06.2014 calling upon the OP society to allot him a site and execute a registered sale deed within 15 days from the date of receipt of the said notice.

That the said notice has been served on the OP society on 18.06.2014 but the society failed to comply the notice.  Therefore, the complainant was constrained to file this complaint for deficiency in service on the part of the OP society.

For the aforesaid reasons, the complainant prays for an order directing OP society to allot him a site measuring 30x40 in the very same layout and register the same in his favour and also pay him damages in a sum of Rs.1,00,000/- for physical and mental pain together with cost of the proceedings.

3. In response to the notice issued the OP society entered through their advocate and filed their version contending in brief as under:

It is true that the complainant sought allotment of site measuring 30x40 in the layout called as “NITHYANANDA SAGARA” and also has paid total consideration amount.  The OP society has developed the said layout and is allotting site on the basis of seniority of the members.  That the competent authority has released 424 sites in favour of OP society and the same have been allotted to the members on the basis of the seniority.  That, the complainant will be allotted a site as per the seniority as soon as release of the second instalment of sites from the competent authority.  That due to several administrative problems, the OP society could not develop the layout on time.  That OP society will allot site to the complainant within six months.  After the approval of the layout, the OP would send a allotment letter to the complainant and also execute the registered sale deed in favour of the complainant.  That the OP society has no intention to protract the allotment of site.  That the delay is due to administrative reasons.  The OP society is not liable to pay any damages to the complainant as claimed in the complaint.  The OP society has made all the necessary efforts to complete the formation of layout and allot site to the complainant and other members.  There is no any deficiency on the part of OP society.  Therefore, OP society prays for dismissal of the complaint.

4. Subsequent to filing of the version by the OP, the complainant was called upon to submit his evidence by way of affidavit.  Accordingly, he filed his affidavit evidence reiterating the allegations made in the complaint.  Thereafter, the OP society got filed affidavit evidence of Sri.V.J.K Bhakthavatchalam, President of the said society in support of the averments made in the version.  Complainant submitted written arguments.  OP neither filed their written arguments nor submitted any oral arguments.

5. The points that arise for our determination in this case are as under:

        6. Perused the allegations made in the complaint, averments made in the version, sworn testimony of both the parties, written arguments submitted on behalf of the complainant and other materials placed on record.

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

REASONS

8.  OP society has admitted that, the complainant is member of their society and also admits that, he had applied for allotment of site measuring 30x40 in the layout being developed by them and called as “NITHYANANDA SAGARA”.  OP society also admits the receipt of entire total consideration amount paid by the complainant.

9. It is contended on behalf of OP society that, the site could not be allotted to the complainant due to certain administrative reasons.  It is averred in the version as well as in the affidavit that in all 807 sites have been formed in the said layout, out of which 424 sites have been released by the concerned authority and same have been allotted to the members on the basis of the seniority and remaining 383 sites have to be released by the competent authorities and as soon as the same are released a site will be allotted to the complainant.  It is further stated in the version as well as in the affidavit that the complainant will be allotted a site within six months.

10. The version has been filed on 22.01.2015, now we are in the month of June 2016.  Though it is promised by OP society that a site will be allotted to the complainant within six months but even after lapse of nearly 1½ year OP society has not allotted any site to the complainant.  The OP society did not place any material on record to show that the concerned authority have not yet released the remaining sites in the said layout.  The learned advocate for the complainant contended that though the remaining sites have been released by the competent authority but the OP society has deliberately did not allot site to the complainant.  As already stated above, the OP society neither filed their written arguments nor submitted any oral arguments explaining the delay in allotment of site despite an undertaking in their version that the site will be allotted to the complainant within six months.  This conduct of OP society amounts to grave deficiency in service.

11. The OP society without there being any valid cause is delaying allotment of site to the complainant.  Absolutely there is no material on record to believe that the OP society has any constrains in allotting site to the complainant.  Though the OP society has received the entire consideration amount more than six years ago, no site has been allotted to the complainant till today.  The OP society has certainly in justification in denying site to the complainant in the layout.  The OP society having promised before us to allot a site to the complainant within six months from the date of filing the version, have failed to fulfill their own promise.  The complainant has proved deficiency in service on the part of the OP society.  Therefore, the OP society has to be directed to allot a site to the complainant in the said layout within six months from the date of this order or refund the consideration amount together with interest @ 18% p.a from the date of actual receipt till the date of realization.  Further the conduct of OP society must have put the complainant to great hardship, inconvenience and mental agony therefore they have to be directed to pay compensation of Rs.25,000/- apart from litigation cost of Rs.5,000/-.

12. The order could not be passed within the stipulated time due to heavy pendency. 

13. In the result, we proceed to pass the following:   

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed.  OP society is directed to allot a site measuring 30x40 to the complainant in Nithyananda sagara layout developed by them within six months from the date of this order and execute a registered sale deed in his favour at his cost.  In default, to refund him a sum of Rs.3,26,220/- (Three Lakhs Twenty Six thousand Two hundred and Twenty Only) together with interest @ 18% p.a from the date of receipt till the date of realization.

Further OP society is directed to pay compensation of Rs.25,000/- to the complainant together with litigation cost of Rs.5,000/-.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 06^th day of June 2016)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 19.12.2014.

1. Sri.Manjunath. V

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 05.06.2015.

1. Sri.V.J.K Bakthavakchalam

Document produced by the Opposite party - Nil

MEMBER                            MEMBER                    PRESIDENT

Vln*