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

DATED 27^TH DAY OF JULY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This  complaint has been  filed  under section 35 of C.P.Act, 2019 (herein after referred as “ACT”) seeking direction against the OPs to refund site deposit amount of Rs.13,20,000/- with interest at 18% p.a. and sum of Rs.50,000/- towards compensation.

2.The case of the complainant in brief is as under:

In the years 2005, OPs invited applications from the employee’s of MCECHS  and general public for allotment of sites. Accordingly, the complainant has applied for site measuring 60X40ft.  with construction. He paid Rs.2,25,000/- on 29.03.2005, Rs.2,25,000/- on 03.08.2005, Rs.3,06,000/- on 21.11.2008, Rs.2,16,000/- on 12.01.2013 and Rs.3,48,000/- on 20.09.2013, but OPs neither allotted the site nor refunded the amount. Therefore, the complainant called upon the OPs to refund his amount on 03.11.2020. Due to failure on the OPs, this complaint is filed.

3. In response to the  notice, OPs appeared  and filed version. The contention of the OPs that OPs society is registered society and represents all the capacities of the Societies Act. They admit that  the complainant become the member of the society and applied for allotment of the site measuring 40X60ft. In the annual general body meeting on 23.09.2018 the sites measuring 40X60 ft.  have been allotted  upto membership no.10874A. Sites have been allotted on the basis of seniority. The present complaint is not maintainable. One of the member of the OPs society had filed complaint no.595/2020 before the IIAddl. District Consumer Disputes Redressal Commission seeking allotment of site damages and other reliefs. The said complaint came to be dismissed on 16.02.2021 that sale of land simpliciter  was not a consumer dispute. Therefore, present complaint is not maintainable. OPs request to dismiss the complaint.  

4. The complainant files his affidavit evidence and relies  on 07 documents. Affidavit evidence of OP-2 has been filed and 03 documents have been marked.

5.          Heard the arguments. We  perused records.

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

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

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

       Point No.1 & 2:-Affirmative in part.

      Point no.3:-As per the final order.

REASONS

8. Point No.1&2:. At the first instance, we would like to refer the admitted facts. The complainant applied for allotment of site measuring 60X40ft. by paying in all of Rs.13,20,000/- under annexure-A1 to A6 receipts of different dates. Annexure-A7 postal acknowledgement of OP-2. The payment of Rs.13,20,000/- to the OPs is not in dispute.

9. Exhibit-R1 is the copy of the affidavit of the complainant before the OPs society and Exhibit-R2 is membership application of the complainant. The complainant made payment of Rs.2,26,530/- on 29.03.2005, the membership no.10874A has been allotted to the complainant. According to the OPs, the sites have been allotted to the persons who applied for sites measuring 60X40ft. till the membership no.10874A, but no allotment letter issued infavour of the complainant.

10. It is one of the contention of the OPs that the complaint is not maintainable. As  complaint is for sale simpliciter. OPs relied on the judgment of Hon’ble Supreme Court of India reported in 2014(14)SC cases 773 in the matter between Ganesh Lal V/so Shyam and order of the II Addl. District Consumer Commission in CC no.595/2020.

11. We carefully perused both orders. In the first decision the complaint was only to execute registered sale deed in respect of plot In the second order the complainant by name N.S.Anil Kumar against the present OPs for allotment of site. Under such circumstances, Hon’ble Supreme Court of India and Hon’ble II Addl. District Consumer Commission opinioned that the complaint for sale simpliciter was not maintainable. But in this case, the complainant is not seeking  allotment of site or for execution of sale deed of the plot. The complainant seeks relief of refund of his amount of Rs.13,20,000/- with interest. Therefore, the decision Hon’ble Supreme court of India and order of 2^nd Addl. District Consumer Commission are  not applicable to the present case on hand.

12. The OPs also pressed into service under section 21(42) of C.P.Act, 2019 which speaks about service. According to this provision service may include housing construction. It is true that the complainant had applied for allotment of the plot and not for housing construction. It is relevant to note that even though the complainant applied for allotment of the plot, plot cannot be utilized without necessary service of roads, drainage and street lights. Therefore, OPs not right in saying that  is not service to the complainant. Admittedly after receipt of Rs.13,20,000/- OPs neither allotted plot nor come forward to refund  money. Therefore, OPs are liable to refund Rs.13,20,000/-.

13. Even though the counsel for complainant relys on 02 decisions of Hon’ble Supreme Court of India in a) Civil Appeal no.92/1998 between Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s M.Lalitha & others, b) Decision of Hon’ble National Consumer Disputes Redressal Commission between M/s Madhu Builders & Developers V/s Ashok, Hind Co-op Housing Society.

14. The 1^st decision is in respect of remedy before Forum is  available. The complaint before the District Consumer Commission was maintainable. In the 2^nd decision, both the parties are bound by the terms of transaction. But in this case, there is no contract between the complainant and OPs. The decision of Hon’ble National Commission and  another decision Rajastan High court are not applicable to the present case in hand.

15. The complainant claims interest at 18% p.a. on Rs.13,20,000/- and compensation of Rs.50,000/-. But there is no privity of contract between them   for payment of interest at 18% P.A. Under such circumstances, we award interest at 9% P.A. on Rs.13,20,000/- from the date of respective payments till realization as compensation. Therefore, the complainant is not entitled to separate amount under the head of compensation.  Our reasons  are supported by decision of Hon’ble Supreme court of India reported in (II)(2022)CPR(1) in the matter between Experian Developers Pvt.Ltd., V/s Sushma Ashok Shiroor. Accordingly, the OPs are liable to refund Rs.13,20,000/- with interest at 9% P.A from the date of respective payments till realization.

16. Point no.3: In view of the discussions referred above, the complaint requires to be allowed in part. The OPs are liable to refund Rs.13,20,000/- (Rs.Thirteen Lakhs Twenty Thousand Only) with interest at 9% P.A. from the date of respective payments till realization and Rs.10,000/-(Rs.Ten Thousand only) towards cost of litigation. Accordingly, we proceed to pass the following

O R D E R

1. The complaint is allowed in part against OPs.
2. The OPs shall refund Rs.13,20,000/-(Rs.Thirteen Lakhs Twenty Thousand only) with interest at 9% P.A. from the date of respective payments till realization and pay  Rs.10,000/-(Rs.Ten Thousand only) towards cost of litigation.
3. The OPs shall comply this order within 60 days from this date, failing which OPs shall pay interest at 11% P.A. on Rs.13,20,000/- after expiry of 60 days till realization.
4. Furnish the copy of this order to both the parties and return extra pleadings with documents to the parties.  

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 27^th  day of July, 2022)

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

Documents produced by the representative of opposite parties