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

DATED 20^TH DAY OF OCTOBER 2023

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. Hold the OP guilty of deficiency of service and direct the OP to allot the site/plot to the complainant.
2. Direct the OP to pay a sum of Rs.12,80,000/- as refund of sale consideration amount with 24% p.a., and further interest @ 24% p.a., till payment by the OP to the complainant.
3. To pay a sum of Rs.1,00,000/- as compensation for the inconvenience, hardship, humiliation, agony, trouble;
4. Grant cost of this complaint.
5. Grant such other reliefs.

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

The complainant approached the OP to buy a residential flat in the project titled Telecom Nest measuring 60 X 40 feet. The OP had informed the complainant to become a member of the society and then apply for plot/site. Accordingly the complainant membership was registered vide bearing No.1066 and OP issued share certificate to the complainant. The complainant has deposited initial payment of Rs.6,00,000/- dated 20.05.2017 and Rs.6,80,000/- on 06.12.2017 through two DDs. Totally complainant has paid a sum of Rs.12,80,000/- to the OP.  The OP issued letter dated 06.12.2017 confirming that site/plot measuring 60X40 feet is allocated to the complainant.

3. The complainant further submits that despite repeated demands and reminders the OP has not been able to allocate the site number or share details in regard to the same and have been dodging the issue by one or the other pretext without any reasonable cause or excuse. The OP has only made false promises and never gave any constructive information to the complainant. Hence complainant got issued legal notice dated 15.07.2022 calling upon the OP to register the plot/site. The OP replied to the said legal notice admitting the facts of the case.  The OP had motivated and forced knowingly well that they do not possess the layout and lured the complainant to invest the huge amount of Rs.12,80,000/-. Hence the complainant has filed this complaint.
4. After issue of notice OP appeared through their counsel. Though sufficient time was given to the OP to file version, they have not filed the version in time. Hence OP has filed IA seeking permission to file version. Since the OP has filed the version after lapse of 45 days, this commission has no power to accept the version. Hence this commission has rejected the application and version filed by the OP.
5. The complainant has filed his affidavit evidence and relies on 10 documents. 
6. Heard the arguments of advocate for the complainant. 

7. 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?

8. 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

9. Point No.1 AND 2: Perused the complaint, affidavit evidence of complainant, written arguments and documents submitted by the complainant. OP has not filed any version and not led any evidence and hence the allegations in the complaint and the documents filed by the complainant remained unchallenged. There is no reason to disbelieve the complaint and the documents filed by the complainant.
10. The complainant filed his affidavit evidence and relied on Ex.P1 to P10. Ex.P1 is the copy of share certificate, Ex.P2 and 3 is the copy of the payment receipts, Ex.P4 is the copy of the confirmation letter, Ex.P5 is the copy of the legal notice, Ex.P6 is the copy of the postal receipt, Ex.P7 is the copy of the postal tracking consignment and Ex.P8 is the copy of the reply notice, Ex.P9 is the copy of the membership receipt and Ex.P10 is the copy of the ID card.
11. It is undisputed fact that the complainant became the associate member of the OP society and paid advance payment of Rs.12,80,000/- in two different dates for the allotment of site measuring 60’X40’ in the project namely Telecom Nest formed by the OP.  The OP has agreed to allot the site by completing the project.  Inspite of received the substantial sale consideration amount in the year 2017 itself the OP have not at all completed the project till today.  When the complainant has issued the legal notice the OP has also issued a reply admitting the transaction.
12. The OP has taken the contention that they have entered into MOU with one M/s Devi Infra and land developers, Bangalore on 05.08.2016 to procure lands and form residential layouts and sites for allotment to the members of the society.  The said developer has to acquire 70 acres of lands in Devanahalli Taluk, Bangalore rural district, for formation of residential layout after taking necessary permission from BIAPPA and they have collected Rs.1,87,00,000/- from this OP for development of the said project. After that they utterly failed to take up the project. Under these circumstances they are unable to allot the site to its members.  The said developers have neither returned the amount nor formed the layout. In view of this there is a delay in the formation of the layout.  They have further replied that they will allot the site for a reasonable price as promised and delay is due to bonafide reasons.
13. It is clear from the above reply issued by the OP as Ex.P8 on 04.08.2022 they have not at all formed residential layout till today and they are dragging the matter for one or the other reason.  If the complainant has invested the amount with any other society or the developer he would have got the residential site and he would have constructed the house and residing with his family members as per his dreams. In view of the delay in completing the project the complainant has lost hope.  The OP has to refund the advance amount paid by the complainant when they are unable to form the layout as per the assurance given by them to its members. They cannot keep the amount for an unlimited period without allotting the sites. The OP have neither returned the amount nor allotted the site and thereby caused deficiency of service and also unfair trade practice on their part. The complainant cannot wait for an indefinite period for the allotment of site by the OP.

14.  Under these circumstances, the complainant has sustained mental agony, financial loss and he was made to approach the Commission by filing this complaint.  Therefore the complainant has clearly established the deficiency of service and hence he is entitled for the relief claimed in the complaint. Hence we answer point No.1 in the affirmative and point No.2 partly in the affirmative.

15. Point No.3:- In view of the discussion referred above the complaint is liable to be allowed with direction to the OP to refund the advance amount of Rs.12,80,000/- with interest at 12% p.a., from the date of respective payment till realization and further OP is directed to pay the compensation of Rs.1,00,000/- with Rs.10,000/- litigation charges to the complainant within three months from the date of this order. Hence  we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to return the advance amount of Rs.12,80,000/- with interest at 12% p.a., from the date of respective payment till realization.
3. OP is further directed to pay the compensation of Rs.1,00,000/- with Rs.10,000/- litigation charges to the complainant.
4. The OP shall comply this order within 60 days from this date of this order, failing which the OP shall pay interest at 15% p.a., after expiry of 60 days on Rs.12,80,000/- 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 20^TH day of OCTOBER, 2023)

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

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