1. This is a Complaint presented by the Complainant against the Opposite parties under section 12 of the Consumer Protection Act, 1986 with his grievance that he was one of the applicant applied for allotment of a site measuring 30’ x 40’ to 1st & 2nd Opposite parties convinced by their advertisement in this regard and he was required to pay the sital value in installments at the rate of Rs.900/- per month for 59 months. That 3rd Opposite party was voluntarily collecting the installments as an agent of 1st & 2nd Opposite parties collected 45 installments, but have shown only 43 entries in the pass book issued by 1st & 2nd Opposite parties. That Opposite parties had assured him of allotting a site and made an entry in this regard in the pass book by 1st Opposite party on 02.10.2005, but the Opposite parties have failed to allot him a site, despite issue of a legal notice dated 07.05.2007, therefore he is entitled for allotment of a site and even as per the assurance given by 1st Opposite party in writing in that pass book and thus has prayed for a direction to the Opposite parties to allot him a site measuring 30’ x 40’ at Mysore, Mangalore Highway at Mysore by receiving the balance payments in the alternative to direct the Opposite parties to pay back Rs.40,500/- with interest at 18% p.a. and also to award a sum of Rs.50,000/- for their deficiency.<br /> 2. The Opposite parties 1 to 3 have filed their version denying that the 3rd Opposite party was collecting installments from the complainant on their behalf but admitted that the complainant has paid 45 installments, but contended that thereafter he stopped payment of the remaining installments. They further denied having given any assurance of allotting a site measuring 20’ x 30’ by making an entry in the pass book. It is further contended that the scheme was started on 15.08.1998 it was ended on 15.06.2003 and the Complainant approached them only during October 2005 by that time his membership was cancelled as he had not paid the installments continuously and their paid up amount will be refunded at the end. Denying that there is a deficiency on their part have prayed for dismissal of the complaint.<br /> 3. The 3rd Opposite party in his version admitting that he was working an agent under 1st & 2nd Opposite party for collection of premiums further admitting that the Complainant has filed an application for allotment of a site measuring 30’ x 40’, but stated that the Complainant has only paid 45 installments and failed to pay the other installments and further stated that thereafter the Complainant did not contact him and denying other allegations has prayed for dismissal of the complaint.<br /> 4. During the course of enquiry into the complaint allegations, the Complainant, the Managing Director of 1st & 2nd Opposite parties and 3rd Opposite party have filed their affidavit evidence reproducing what they have stated in their respective complaint and versions. The Complainant has produced receipts and Xerox copy of the pass book to prove the payments made by him to the 1st & 2nd Opposite parties through 3rd Opposite party. Heard the counsel for both the parties and perused the records.<br /> 5. On the above contentions, following points for determination arise.<br /> 1. Whether the Complainant proves that he had paid the entire sital value for allotment of a site, but the Opposite parties 1 & 2 have failed to allot a site to him and thereby have caused deficiency in their service?<br /> 2. Whether the complainant is entitled for the relief as prayed for?<br /> 3. What order?<br /> 6. Our findings are as under:-<br /> Point no.1 : In the Negative.<br /> Point no.2 : Answered in part in the affirmative<br /> granting alternative relief.<br /> Point no.3 : See the final order.<br /> <br /> REASONS<br /> <br /> 7. Points no. 1 & 2:- The fact that the Complainant had applied for allotment of a site measuring 30’ x 40’ to 1st & 2nd Opposite parties and that he had paid in all 45 installments at the rate of Rs.900/- per installment is not in dispute, as it has been admitted by 1st & 2nd Opposite parties not only in their version, but also in para-2 of their affidavit evidence. The Complainant has also admitted that he has only paid 45 installments and stopped thereafter. It is the contention of the Opposite parties that the Complainant who had applied for allotment of a site 30’ x 40’ by filing an application was required to pay the sital value in 59 installments at the rate of Rs.900/- per installment in order to become entitle for allotment of a site. This contention of the Opposite parties is not denied by the Complainant and these payment conditions are also found incorporated on the reverse of the application filed by the Complainant to the Opposite parties on 15.10.1998. The 1st & 2nd Opposite parties further in their affidavit evidence have stated that the member should pay the installments agreed upon continuously and those who do not pay their monthly installments continuously for a period of 3 months will be deleted from the scheme, their paid up amount will be refunded at the end of the scheme after reasonable deduction. Therefore, it has been admitted by the Complainant that he after paying 45 installments continuously stopped payment of the balance installments and thereby committed default and thus would be entitled for refund of his money only. Further, the Opposite parties in their affidavit evidence have stated that the scheme of allotment of sites was started on 15.08.1998 and closed on 15.06.2003, therefore the Complainant now who has come up with this complaint for a direction for allotment of a site after receiving the balance installments cannot pursue his grievance and thereby he would not be entitled for the said substantial relief. <br /> 8. Further, it could be seen that the 1st & 2nd Opposite parties have not allotted a site to the Complainant temporary, therefore in the absence of allotment of a site the Complainant would not become a Consumer, therefore the Complainant for a direction to allot a site is not maintainable. However, the Complainant relied upon an entry said to have been made by 1st Opposite party in the pass book on 02.10.2005 in which a writing is made to have decided to give one site measuring 20’ x 30’ after formation adjusting to whatever amount that has been paid by the Complainant, but the counsel for the 1st & 2nd Opposite parties submitted that no site measuring 20’ x 30’ is formed in the layout and layout approving authority will not and has not permitted them to form a site measuring 20’ x 30’. As such, the question of allotting a site of that dimension is impracticable, he has also argued that the scheme itself closed long back and therefore no site can be allotted now. However, it transpires from the facts of this case that the Complainant himself was in default in not performing his part of duty by paying all the 59 installments continuously and committed default. Therefore, having kept quiet for all these years, he cannot inspite of his own default attribute deficiency to the 1st & 2nd Opposite parties and seek for allotment of a site. As such, the Complainant in our view is not entitled for allotment of a site. However, he would be entitled for refund of his money.<br /> 9. The 3rd Opposite party admittedly an agent of 1st & 2nd Opposite parties collected installments from the Complainant and properly accounting by paying it to 1st & 2nd Opposite parties, therefore no deficiency could be attributed to him and no relief can be granted against him. Though, we have held that there is a default on the part of the Complainant in not paying the entire installments towards the cost of the site, but that does not mean that default will disentitle the Complainant to claim interest for his amount. The 1st & 2nd Opposite parties in their affidavit as pointed out by us, have stated that those members who have not paid 3 monthly installments continuously they will be deleted from the scheme and paid up amount will be refunded at the end of scheme after reasonable deduction. As admitted by these Opposite parties their scheme ended on 15.06.2003, but they have not chosen to refund the money of this Complainant thereafter and even after reasonable time and those Opposite parties have not offered any reasons or justification in not refunding the deposit amount of the Complainant. The Complainant has paid the last installments on 09.10.2003, therefore the total amount paid by the Complainant through 45 installments come to Rs.40,500/-. As the scheme of 1st & 2nd Opposite parties ended on 15.06.2003 the Opposite parties should have returned the money, as they have not refunded the Complainant would become entitled for interest at reasonable rate. The Complainant in the memo made a claim for payment of Rs.41,000/- which is inclusive of his membership fee, so far the payment of membership fee is concerned he can take up with the Opposite parties for getting membership cancelled by following necessary requirements. However, in this complaint he would be entitled for refund of his deposited money. With the result, we answer the above points accordingly and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed in part.<br /> 2. The 1st & 2nd Opposite parties are directed to refund a sum of Rs.40,500/- to the Complainant with 12% interest from 15.06.2003 within 60 days from the date of this order, failing which they shall pay interest at 18% p.a. from the date of this order till the date of payment.<br /> 3. The 1st & 2nd Opposite parties shall also pay cost of Rs.1,000/- to the Complainant.<br /> 4. Complaint against 3rd Opposite party is dismissed.<br /> 5. Give a copy of this order to each party according to Rules.<br />