Karnataka

Kolar

CC/141/2023

Mr.Ashwin.V - Complainant(s)

Versus

M/s. Health And Family Welfare Department Employees - Opp.Party(s)

Sri.B.Kumar

27 Feb 2024

ORDER

Date of Filing: 10/11/2023

Date of Order: 27/02/2024

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES, KOLAR – 563 101.

Dated:27^th DAY OF FEBRUARY 2024

SRI. SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT. SAVITHA AIRANI, B.A.L., LL.M., …..LADY MEMBER

CONSUMER COMPLAINT NO:141/2023

Mr. Ashwin. V.

S/o Venkatesh,

Aged about 38 years,

R/at Door No. 288,

Near Someshwara Swamy Temple,

Kolar.

(Rep. by Sri. B. Kumar, Advocate)                   ….  Complainant.

 

                                                                                                                - V/s –

 

Ms. Health and Family Welfare Department Employees,

House Building Co-operative Society Limited,

Yashodha Archade, #2014,

New No.D6, 2^nd Floor,

Seebaiah Road, Devaraja Mohalla,

Msore-570 001.

Rep. by its President,

Sri. Shankar Naik.

(Rep. by Sri. Lankesh L, Advocate)               ……Opposite Party.                                                                   

         

 

-: ORDER:-

 

BY SMT.SAVITHA AIRANI, LADY MEMBER.,

1)  The complainant has filed this complaint under section 35 of the Consumer Protection Act 2019 against the Opposite party alleging deficiency in service and pray for direction to the OP to refund the amount of Rs.7,68,000/-that was paid by the complainant along with interest @ 12% P.a and Rs.20,000/- towards traveling and conveyance and also Rs.50,000/-towards shock and mental agony and grant such other reliefs as it deem fit under the circumstances of the case.

2)  The Brief Facts of the complaint is that, the OP has published formation of sites in the layout called as HEALTH CITY IVC ROAD  and the proposed layout is just behind Bangalore Doddaballpura road near Purvankara Provident residential apartment and opposite to Century Edem Villa Project and is 29 km from Vidhanasoudha which is next to Max worth residency layout about 10 Km away from Airport entrance, the Op has given wide publication through pamphlet their intention to purchase the lands in and around Thindlu Village, Kundana Hoble Devenahalli Taluk Bangalore Rural District for the purpose of formation of residential sites.

3)  Further complainant stated that, the Op had announced the site for sale measuring 30X40 ft. per square feet of Rs.640/- and total amount of site is Rs.7,68,000/- payable 30% Down payment, first installment and second installment 25% each and 20% last installment.

4) Further complainant stated that, he being member of the society has booked a sit measuring 30X40 for a sum of Rs.7,68,000/- payable in four installment to the OP and the OP has undertaken to deliver possession of the above said site during the 2018 and complainant paid  to OP as shown below:

Sl.No.	DATE	PAYMENTS
01	01/08/2014	Rs. 2,31,560/-
02	05/11/2015	Rs. 1,92,000/-
03	18/04/2017	Rs. 1,92,000/-
04	06/02/2018	RS. 1,53,600/-

 

5)  Further stated that, the Op has failed to allot the site till date to the complainant and OP had issued final notice on 23/11/2022 demanding a sum of Rs.72,000/- on or before 31/12/2022.  Failure to pay the same the complainant will lose the eligibility for seniority and the account will be suspended as per law.  Further complainant visited several times to the office at Bangalore as well as at Mysore and that, they have miserably fail to allot any site in spite of payment of entire amount as mentioned in the Pamphlet and have not cared to allot the site as undertaken.  Hence this complainant.

6) Upon admission of the complaint under in pursuance of the notice issued to the OP and the OP filed its version.  In the version it is contended that, the complainant did not make payment at once and he makes payment as per his whims and fancy. The Op contented that Op doing the social service not for profit basis so the Op did not caused any deficit of service.  Further Op contended that, the Op paid entire collected amount to builder which amount collected from the complainant. Op is depending on his developer in allotting sites to its members, but his builder failed to complete the project within time bound.  So OP failed to allot sites to its members.

7)  Further Op contended that, Op issued the letter at the time of booking the site, in that letter clearly mentioned that, no interest will be paid for any withdrawals of the site advance.  Hence complainant has no right to seek any interest from them.  Op further contended that, they doing social service by provide residential sites to its members not for any commercial business.  And all the other allegations which are not specifically traverse and baseless as false.  Hence OP prays to dismiss the complaint with cost.

8) In order to prove the case of the complainant and the complainant filed her affidavit evidence and also filed supporting documents.  Whereas the OP despite opportunity failed to file its affidavit evidence and hence evidence of OP is taken as not filed.

9)  On the basis of the pleadings averred and the available evidence placed on record, the following points will do arise for our consideration.

1) Whether the complainant proves that the Op is deficient in his service?

2) Whether the complainant is entitled for the relief as sought in the compliant?

3) What Order?

Heard the arguments of the complainant and perused the evidence placed on record. Op and his counsel are absent and no representation made on his behalf and hence arguments of Op taken as heard. 

Our findings to the above points are as follows.

POINT NO (1):- In the Affirmative.

POINT NO (2):- In the Affirmative.

POINT NO (3):- As per the final order for the following.

 

                                            REASONS

10) POINT No. (1) & (2):- On perusing the pleadings of the complainant, these two points are interlinked to each other and for the sake of brevity and for convenience we have taken up together these points for discussion.

 

11) On perusing the pleadings of the parties it is not in dispute that, the complainant in order to purchase the site property in the layout formed by the Op situated at Thindlu Village, Kundana Hoble Devenahalli Taluk Bangalore Rural District, accordingly complainant booked the site property as per the instructions of the Op that the complainant paid total amount of Rs.7,68,000/- that the complainant alleged that, though complainant paid entire amount to the OP but the OP failed to allot the site property as agreed.  However, the Op issued notice dated 23/11/2022 and demanded excess amount of Rs.72,000/- and asked to pay on or before 31/12/2022, which leads to filing of this complaint.

Per contra, though OP filed its version the complainant did not make payment at once and he makes payment as per his whims and fancy.  The Op doing the social service not for profit basis so the Op did not caused any deficit of service.  The Op paid entire collected amount to builder which amount collected from the complainant. Op is depending on his developer in allotting sites to its members, but his builder failed to complete the project within time bound. So Op failed to lot sites to its members.   At the time of booking the site, in that letter clearly mentioned that no interest will be paid for any withdrawals of the site advance. Hence complainant has no right to seek any interest from them.

12)  In order to prove the case of the complainant, complainant deposed in the affidavit evidence that he had booked the site property with the Op and as per the direction of the complainant was paid in toto Rs.7,68.000/-on different dates shown below:

 

Sl.No.	DATE	PAYMENTS
01	01/08/2014	Rs. 2,31,560/-
02	05/11/2015	Rs. 1,92,000/-
03	18/04/2017	Rs. 1,92,000/-
04	06/02/2018	RS. 1,53,600/-

 

In order to substantiate the above payments made by the complainant through cheques and produced the copies of  Receipt  issued by the Op on perusal of the Receipt No.11904 dated 01/08/2014 for a sum of Rs.2,31,560/-, Receipt No.1795 dated 05/11/2015 for a sum of Rs.1,92,000/-, Receipt No.4207 dated 18/04/2017 for a sum of Rs.192,000/-,Receipt No.4912 dated 06/02/2018 for a sum of Rs.1,53,600/-.  The copies Receipts disclosed that the complainant duly made all payments shown in the Documents No. 8 to the Op in order to get site property.

13)  It is worth to note that, the Op did not denied the booking of the site property and payments made by the complainant to them.  But op failed to file its evidence.  As per the evidence place on record and in absence of any rebuttable evidence, we have no hesitation to accept the evidence of the complainant.

14)   Further on perusal of the Documents 5 Final Notice sent by the Op dated 23/11/2022, It discloses that, the Op once again sent the  notice demanding excess payment of Rs.72.000/- contrary to agreed terms.  Further the complainant during the course of arguments it is submitted that, though the Op collected the site amount but till today not formed any site layout and demanding excess payment by issuing notice.  On perusal of the payment mode it referred as payment chart it discloses amounts of payment of installments and the site property consideration is Rs.7,68,000/- Whereas the Op demanding excess payment from the complainant contrary agreed sale consideration and it obviously an unfair trade practice as well as it amounts to deficiency in service.

15)  Further Op did not palace any evidence to show that they already formed the layout.  Op simply said that, the Op doing the social service not for profit basis so the Op did not caused any deficit of service to complainant.  The Op paid entire collected amount to builder which amount collected from the complainant. Op is depending on his developer in allotting sites to its members, but his builder failed to complete the project within time bound. So Op failed to lot sites to its members.  The Op said that the complainant has no right to seek the interest because, at the time of booking the site, in that letter clearly mentioned that no interest will be paid for any withdrawals of the site advance. But the complainant did not withdraw his advance amount from the Op.  But the Op failed to allot the site as agreed. That the Op cannot keep hard earned money of the complainant like having a cake and eat it too.

16)  Under the circumstances we deem it just and proper to refund the entire amount of Rs.7,68,000/- to the complainant.  Further if the complainant invested that amount in any bank it earn interest and hence Op is liable to pay the interest at the rate of interest and hence Op is liable to pay interest at the rate of 7.5 % from the date of deposit of last installment that is from the 06/02/2018 till its realization of the amount.  Accordingly we answered the Point (1) & (2) are in the affirmative.

17)  POINT NO. (3):- On the basis of the answering the points No. (1) & (2) and the reasons assigned thereon, we proceed to pass the following.

ORDER

1. The Complaint is hereby allowed with cost.
2. The OP (i.e Ms. Health and Family Welfare Department Employees House Building Co-operative Society Limited) is directed to pay a sum of Rs.7,68,000/- along with interest @ 7.5% P.a from the date of last deposit of the amount (i.e. from the date 06/02/2018) till realization of the amount.
3. Further OP is directed to pay Rs.5,000/- towards the cost of the proceedings.
4. Further the OP is directed to submit the compliance report within 45 days.
5. Send a copy of this order to both the parties to the proceedings at free of cost.

 

    (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 27^th DAY OF FEBRUARY 2024)

 

 

            MEMBER                                PRESIDENT