BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 23^rd DAY OF MAY, 2023

CONSUMER COMPLAINT NO.930/2019

PRESENT:

SRI.RAJU K.S,

MRS.REKHA SAYANNAVAR, : MEMBER

Smt. Usha Vijayan,

Aged about 70 years,

Wife of Vijayan,

Residing at Chereyathu House,

Kunnakura Post,

Vadakar, Calicut District,

Now residing at C/o Naveen V.Das,

9317, Mayers Conyon,

Dr.Plano Texas,

USA 75025,

Represented by her

General Power of Attorney

Sri Dass.V.K.S,

Aged about 70 years,

S/o Late Kunjikutty Vinayam,

R/at No.35/519J, Y.M.J West Lane,

North Janatha Road,

Palavivattam Post,

Kochi – 682 025.

…… COMPLAINANT

(Rep by Sri.S.K.Srinivas, Adv.)

V/s

Bharath Multi State Housing

Co-op Society Ltd.,

No.950, 3^rd Floor,

Dr.Shivaram Karanthnagar,

Bengaluru – 560 077,

Represented by its

Chief Executive Officer.

…… OPPOSITE PARTY

******

//JUDGEMENT//

BY SRI.SHIVARAMA.K, PRESIDENT

1. The complainant has filed this complaint under Section 12(1) of Consumer Protection Act, 1986 for a direction to the opposite party to refund a sum of Rs.20,00,000/- with interest  and such other reliefs as this Commission deems fit in the circumstances of the case.

2. Even though opposite party has served with the notice, the opposite party remained absent.

3.  Initially, on 02.01.2021 this Commission has dismissed the complaint.  Subsequently, the said order has been set aside by the Hon’ble State Commission in Appeal No.105/2021 and remanded the case for fresh disposal and directed to transfer the said case to the Principal District Commission, Bangalore Urban for disposal.  Thereafter, as per the order in Transfer Application No.03/2022 of the Hon’ble State Commission on 10.02.2022 by exercising the powers vested U/s.48 of Consumer Protection Act 2019, transferred the case to 3^rd Addl. District Consumer Disputes Redressal Commission to decide the complaint in accordance with law.

4. It is the case of the complainant that opposite party had introduced housing scheme i.e. Development of residential layout at Chikkaballapura in the year 2014 and got it published and advertised by various methods to the general public.  One Malathy Jayaraman has become the member of opposite party in the year 2014.  She had deposited a sum of Rs.16,26,010/- with opposite party towards allotment of site and had paid membership fee and opposite party had acknowledged the receipt of the said amount.  Further, the said Malathy Jayaraman had assigned her right and interest in respect of allotment of site in favour of the complainant and on the representation been given by the complainant, the opposite party had accepted her request and transferred her rights in favour of the complainant on records.  The complainant had deposited the said sum of Rs.16,26,010/- towards allotment of site in her favour and even after 4 years the opposite party did not allot the site in favour of the complainant.  Hence, the complaint came to be filed.

5. To prove the case, the GPA holder of the complainant (PW1) on 08.01.2020 has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P5 documents and on 29.09.2021 has filed one more affidavit in the form of his evidence in chief.  Further, complainant got examined the witness as PW2.  

6. The counsel for the complainant has filed written arguments with citations.   

7. The points that would arise for our consideration are as under:

1. Whether the complainant proves the deficiency of service on the part of the opposite party?

2. Whether the complainant is entitled for the relief as sought?

3. What order?

8. Our findings on the aforesaid points are as follows:

1. POINT NO.1: In affirmative
2. POINT NO.2: Partly in affirmative
3. POINT NO.3: As per the final order for the following;

9. POINT NO.1:-     Complainant’s Power of Attorney Holder (PW1) has reiterated the fact stated in the complaint in the affidavit filed in the form of his evidence in chief.  To prove that PW1 is a GPA holder, has produced Ex.P1 Power of Attorney and Ex.P2 Special Power of Attorney.  Further, with regard to payment of Rs.16,26,010/- the opposite party had issued receipt dated 02.09.2014 vide Ex.P3.  Further, in the back of the receipt, the opposite party had endorsed that the right of allotment has been transferred in favour of the complainant.  Ex.P4 is the letter issued by Malathy Jayaraman to the opposite party requesting to transfer the allotment of site in favour of Mr.Naveen Dass.  In the said letter, the opposite party had made an endorsement that as per request, the allotment of site from Mrs.Malathy Jayaraman has been transferred in favour of Mrs.Usha Vijayan by accepting the request.

10. It is the contention of the learned counsel for the complainant that the complainant had contacted and requested the opposite party on several occasions for allotment of site or refund the amount deposited by her and opposite party had postponed the same on the ground that a criminal case filed by opposite party against one H.G.Vijaya Kumar U/s.138 of NI Act and pleaded its inability to arrange the funds.  Later on, the complainant had learnt that the said case was disposed of on 11.05.2018 and directed the said Vijaya Kumar to pay a sum of Rs.55,00,000/- to opposite party.  Even after the said order, the complainant had requested to allot the site or to refund the amount in the second week of August 2018.  But opposite party refused to allot the site or refund the amount.  Further, the complainant got issued legal notice dated 25.09.2018 vide Ex.P5 to opposite party seeking for refund of the amount.  The said notice was sent by registered post and served on opposite party as per Ex.P5(a) & (b).  Inspite of that the amount has not been paid.  One B.S.Vijayalakshmi (PW2) has stated in her evidence that since her son Naveen V Dass was not a member of the opposite party society, the opposite party has transferred the allotment of site from Malathy Jayaraman in favour of the complainant.

11. The evidence adduced by PW1 & 2 through affidavits has not been challenged by the opposite party.  It is the further contention of the learned counsel for the complainant that even though the amount was paid on 02.09.2014 the opposite party had been continuously promised to allot the site and the complainant was expecting the allotment of the site and till the delivery of the possession there is a continuous cause of action.

12. In support of the contention, the counsel relies the judgement rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi reported in IV (2022) CPJ 284 (NC) in the matter between Niraj Kumar Pant & Anr. vs. Emaar MGF Land Limited.  The facts of the said case is that the complainant had purchased flat which was booked on 15.12.2010 and allotment letter was issued on 24.03.2011 and by which date the complainant had deposited the price of the flat and delivery of possession was promised to be offered within 36 months from start of construction with a grace period of 3 months and as the construction on site was commenced in June 2012, possession was offered by September 2015.  In the circumstances, it is held that opposite party cannot expect complainant to wait indefinitely for possession to be offered.  In case of an unreasonable delay in offering possession, complainant cannot be compelled to accept possession at a belated stage and is entitled to seek refund of amount paid with compensation.  Further, counsel has also relied the judgement rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi reported in IV (2022) CPJ 341 (NC) in the matter between Binoy Somaia vs. Vatika Land Base Pvt. Ltd.  In the said judgement it is held that the Appellant cannot wait for indefinite time as he had invested heavy amount with intention to get possession of plot on time.  Hence, opposite party was directed to refund the entire amount paid by the complainants.

13. In the case on hand, even though the payment was made in the year 2014, the opposite party neither allotted the site nor refunded the amount paid.  Hence, the complainant was waiting for the plot in question.  Hence, delay would not come in the way in approaching this Commission.  Therefore, there is a deficiency of service on the part of the opposite party for the reasons stated above.  Hence, we answer the point No.1 in affirmative.

14. POINT NO.2:-    The complainant claims a sum of Rs.20,00,000/- which includes deposit amount of Rs.16,26,101/-.  Further, Ex.P3 receipt indicates the receipt of a sum of Rs.16,25,000/- towards the plot.  Complainant has not produced any document issued by opposite party with regard to any other sum was paid to opposite party.  An amount of Rs.10/- was the admission fee and Rs.1,000/- was the share amount.  We feel that the complainant is entitled for refund of Rs.16,25,000/-.  Without any reasons, the opposite party had used the money of the complainant for his own purpose.  Hence, the opposite party has to pay interest on the said amount.  We feel interest @ 9% p.a. would be suffice in the facts and circumstances of the case.  Hence, the complainant is entitled for interest @ of 9% p.a. on the amount of Rs.16,25,000/- from 02.09.2014 till realization.  Further, since the complainant has waited for long time she has undergone mental agony.  Hence, the complainant is entitled for a sum of Rs.20,000/- towards mental agony.  Further, the act of the opposite party made the complainant to got issued notice vide Ex.P5 through Advocate and approached this Commission for the relief in question.  Hence, the complainant is entitled for a sum of Rs.10,000/- towards litigation cost. Accordingly, we answer Point No.2 partly in affirmative.   

15. POINT NO.3:-     In view of the discussion made above, we proceed to pass the following;

The complaint is allowed in part.

The opposite party is directed to pay a sum of Rs.16,25,000/- (Rupees Sixteen Lakhs Twenty Five Thousand only) with interest @ of 9% p.a. from 02.09.2014 till realization to the complainant.

Further, the opposite party is also directed to pay a sum of Rs.20,000/- (Rupees Twenty Thousand only) towards mental agony and a sum of Rs.10,000/- (Rupees Ten Thousand only) towards litigation cost.

The opposite party shall comply the order within 30 days from this date.  In case, the opposite party fails to comply the same within the said period, the said amount of Rs.30,000/- (Rupees Thirty Thousand only) carries interest @ of 9% p.a. from the date of order till realization. 

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the complainant.

   (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 23^rd day of May, 2023)

(REKHA SAYANNAVAR)          (RAJU K.S)             (SHIVARAMA, K)    

                                 //ANNEXURE//

Witness examined for the complainant’s side:

• GPA Holder of the complainant has filed his affidavit.

Documents marked for the complainant side:

1. General Power of Attorney.
2. Special Power of Attorney.
3. Receipt dt.02.09.2014 issued by opposite party Society and endorsement.
4. A letter dt.25.05.2017 from Smt.Malathi Jayaraman to the Chairman of the opposite party Society.
5. Copy of the legal notice dt.25.09.2018.
6. Postal receipt and postal acknowledgement.

Witness examined for the opposite party side: 

Documents marked for the Opposite Parties side:

(REKHA SAYANNAVAR)          (RAJU K.S)              (SHIVARAMA, K)