Date of filing:  05.08.2019

Date of Disposal: 06.06.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,      BENGALURU – 560 027.

DATED THIS THE 06^th DAY OF JUNE, 2023

CONSUMER COMPLAINT NO.1271/2019

PRESENT:

SRI.RAJU K.S,

Smt. K. Sunanda,

W/o. H.Venkatesh,

Aged aboutYears,

R/at: No.339, 1^st Floor,

Kundalahalli, Marathahalli Post,

(Rep by Sri. Manu Shankar S.S, Advocate)

- V/s -

M/s. The Bangalore City

Co-operative Housing Society Limited,

No.2, Seetapathi Agrahara,

Ragavendra Matta Road,

Bangalore-560 002.

Rep. by its President

K.C. Vijayakumar.

(Rep. by Sri.Srinivas B.S, Advocate) 

//JUDGEMENT//

BY SRI. SHIVARAMA K, PRESIDENT

01.    The complainant has filed this complaint under section 12 of the Consumer Protection Act, 1986 for a direction to the opposite party to execute a sale deed in respect of site No.146 or alternatively to refund the total sale consideration amount of Rs.3,00,000/- and such other reliefs as this Commission deems fit in the circumstances of the case.

02.    It is not in dispute that, the opposite party is a Co-operative Housing Society and the complainant was a member in the said society.  Further it is not in dispute that, in the year 1989 itself, the complainant has paid advance booking of Rs.20,000/- towards sale consideration.  Further it is not in dispute that, in total the complainant had paid a total sale consideration of Rs.3,00,000/-. Further it is not in dispute that, the opposite party offered to sell a new site bearing No.33 at Tavarekere Village, Magadi Taluk, measuring 30 X 40 feet in lieu of the original site allotted to the complainant measuring 60 X 40 feet.

03.    It is the further case of the complainant that, since from 2004 opposite party did not execute the sale deed in respect of the allotted site in favor of the complainant. Further the complainant through a letter dated:18.09.2015 had requested the opposite party to execute the sale deed as per the allotment letter dated: 28.01.2014, but the opposite party postponed the same on one or the other pretext.  Hence the complaint came to be filed.

04.    It is the further case of the opposite party that, the opposite party had informed the complainant that, site No.99 has been deleted by BDA for civic amenities.  Further opposite party is ready and willing to allot site No.33 in lieu of original site allotted to the complainant and this fact has been brought to the notice of the complainant.  In-spite of that, the complainant not approached the opposite party for getting sale deed registered.

05.    To prove the case, the complainant (PW-1) has filed affidavit in the form of her evidence in chief and got marked EX.P.1 to EX.P.5 documents.  The Secretary of opposite party (RW-1) has filed affidavit in the form of her evidence in chief and got marked EX.R.1 to EX.R.4 documents.

06.    Counsels for both the parties have filed their respective written arguments.

07.    Heard the counsels for both the parties.

08.    The points that would arise for consideration are as under:-

  (1) Whether there is deficiency of service on the part of the opposite party?

  (2) Whether the complainant is entitle for the 

      relief sought ?

      (3) What order ?

09.    Our findings on the aforesaid points are as follows:-

POINT NO.1:-  In affirmative

POINT NO.2:-  Partly in affirmative

POINT NO.3:-  As per the final order

 for the following:

REASONS

10.    POINT NO.1:-  Since opposite party has taken a contention in the version that, till the date of version filed it was ready to give alternative site at Magadi Taluk. Further, since the complainant was under an expectation and impression that, the opposite party would allot the site as assured, there is no delay in approaching this Commission.

11.    PW-1 and RW-1 have reiterated the fact stated in their respective pleadings.  In EX.P.11 it appears that, opposite party had allotted Site No.99 measuring 30 x 40 feet in the newly formed Vajrahalli - Raghuvanahalli Layout.  Further as per EX.P.13 the complainant addressed a letter dated: 16.04.2004 to allot an alternate site since it was informed by the opposite party that site number has been deleted. Further, similar type of letters were also been addressed to the opposite party vide EX.P.14 dated: 10.03.2012, vide EX.P.15 dated: 03.07.2013 and vide EX.P.17 dated 19.07.2013.  Further vide EX-P.19 dated: 28.01.2014 opposite party had allotted Site No.146 measuring 12 X 9 meters situated at Doddamarenahalli.  EX.P.21 and EX.P.22 are the letters dated: 18.09.2015 and 11.08.2016 addressed by the complainant to opposite party regarding non allotment of alternative site bearing No.146.  EX.P.23 is the notice dated: 18.03.2019 issued to opposite party seeking to execute sale deed or to return the sale consideration of Rs.3,00,000/-  paid.

12.    It is the contention of opposite party that, it was ready to execute the sale deed in respect of site No.33 at Tavarekere and the site No. 146 has been absorbed while laying road at Doddamarenahalli as per EX.R.1.

13.    It is the contention of the learned counsel for the complainant that, as per the Circular dated: 15.10.1989 and 25.10.1989 the provisional cost of site measuring 40 x 60 was Rs.20,000/-.  Further the measurement of Site No.146 is reduced to, in total 300 Sq. meters and the same is situated at Magadi Taluk. Since the complainant had booked the plot in the year 1989 and it was assured to allot in Bangalore City, but opposite party allotted the site in Magadi Taluk, there is deficiency of service on the part of the opposite party. We feel there is merit in the contention.  Hence, there is deficiency of service on the part of opposite party within the meaning of section 2(1)(g) of the Consumer Protection Act, 1986.  Hence, we answer this point in affirmative.

14.    POINT NO.2: Since the complainant is not happy with the allotment of site in No.33 at Magadi Taluk and the site No.146 at S.L.N. City in Doddamarenhalli Village is not available and the complainant did not prove the existence of the said site in No.146.  Hence the opposite party cannot be directed to execute the sale deed in respect of the said site. The complainant sought alternatively for refund of Rs.3,00,000/- paid towards sale consideration.  We feel the complainant is entitled for the same. Further the complainant sought interest at the rate of 10% per annum.  We feel the same is highly exorbitant one. It is the further contention of the learned counsel for the opposite party that there is no provision in the Bye-law to pay interest and there was no agreement in between the parties with regard to the interest thereby the opposite party is entitled to pay interest. We feel since, the opposite party has retained the  money of the complainant and did not return the same it amounts to unlawful enrichment which is not permitted under the contract Act.   Hence,  the  interest at the rate of 9% per annum from the date of payment would suffice in the circumstances of the case. Further the complainant claimed Rs.5,00,000/- as compensation. Since from 1989 the complainant was under expectation of the site in the Bangalore city itself, but the same has not been provided by the opposite party as per the assurance made by them.  Hence, the complainant was put to mental torture. Therefore, the complainant is entitled for the sum of Rs.20,000/- towards mental agony.  Further the act of opposite party made the complainant to get issued legal notice vide EX.P.23 and to approach 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 the point partly in affirmative.

15.    POINT NO.3:-  In view of the discussions made above we proceed to pass the following order:-

ORDER

01.       The complaint is allowed-in-part.

02.       The opposite party is directed to pay a sum of Rs.3,00,000/- to the complainant with interest at the rate of 9% per annum from the date of payment till realization and to pay a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost. 

03.       The opposite party shall comply the order within 30 days.  In case opposite party fails to comply the order within the above said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% per annum from the date of order till realization.

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

05.       Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.

(Dictated to the Stenographer, transcripted and typed by her, corrected and then pronounced in the Open Commission on 06^th Day of JUNE 2023)                                             

• RAJU K.S)                                    (SHIVARAMA. K)    

     MEMBER                                       PRESIDENT

//ANNEXURE//

Witness examined for the complainant side:

Smt. Sunanda, the complainant (PW-1) has filed affidavit in the form of her evidence in chief.

Documents got marked for complainant side:

1. Copy of membership card bearing No.L.F40/141 – EX.P.1.
2. Copy of share certificate dt.31.03.1989 – EX.P.2.
3. Copy of circular dt.15.10.1988 – EX.P.3.
4. Copy of circular dt.25.10.1989 – EX.P.4.
5. Copy of two receipts No.3709 dt.05.03.1989 & No.4298, dt.23.08.1992 – EX.P.5.
6. Copy of circular dt.24.12.1993 – EX.P.7.
7. Copy of receipt No.2763 dt.13.03.1994 – EX.P.8.
8. Copy of affidavit – EX.P.9.
9. Receipt No.6009, dt.14.02.1996 – Ex.P.10.
10. Copy of circular dt.24.04.1999 – Ex.P.11.
11. Copy of receipt No.0215, dt.06.02.2002 – EX.P.12.
12. Copy of letter dt.16.04.2004 – Ex.P.13.
13. Letter dt.10.03.2012 – Ex.P.14.
14. Letter dt.03.07.2013 – EX.P.15.
15. Copy of receipt No.8354, dt.19.07.2013 – EX.P.16.
16. Letter dt.19.07.2013 – Ex.P.17.
17. Copy of cheque No.241330 – EX.P.18.
18. Copy of allotment letter dt.28.01.2014 – EX.P.19.
19. Copy of circular dt.05.02.2016 – Ex.P.20.
20. Copy of letter dt.18.09.2015 – EX.P.21.
21. Copy of letter dt.11.08.2016 – Ex.P.22.
22. Copy of legal notice dt.18.03.2019 – EX.P.23.
23. Postal receipt – EX.P.24.
24. Postal acknowledgment – EX.P.25.

Witness examined for the opposite party side: 

Smt. Bharathi, Secretary of opposite party (RW-1) has filed affidavit in the form of her evidence in chief.

Documents got marked for the Opposite Party side:

1. Board resolution dt.26.02.2014 – Ex.R.1.
2. Allotment letter dt.27.03.2014 – Ex.R.2.
3. Copy of approved plan of site No.33 – Ex.R.4.
4. CD report – EX.R.4.

• RAJU K.S)                                (SHIVARAMA. K)    

             MEMBER                                      PRESIDENT

ARN