BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)
DATED THIS THE 12th DAY OF JUNE, 2023
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, LADY MEMBER
CONSUMER COMPLAINT NO.190/2018
K.Vishvanatha,
S/o Babu Master,
Aged about 62 years,
Residing at No.36, 2nd Floor,
4th Cross Road, Malleshwaram
Bengaluru-560 003
….Complainant
Represented by its General
Power of Attorney,
Shri.Karthik.S,
S/o Shankar.B,
Aged about 25 years,
Residing at No.29/1, 60 feet Road,
Shivanagar, Rajajinagar,
Bengaluru-560 010
(By Sri.Kumar.M.N, Advocate)
V/s
Talacauvery House Building
Co-operative Society Ltd., (Reg.) ...Opposite Party/s
No.3/3, 2nd Floor, Vaamshuwhite
Apartment, 3rd Cross Road,
Nehru Nagara, Bengaluru-560 020
Represented by its Secretary
(By Sri.Papi Reddy, Advocate)
O R D E R S
BY SRI. RAVISHANKAR, JUDICIAL MEMBER
This complaint is filed by the complainant against the Opposite Party alleging deficiency in service in not allotting the site in favour of complainant in spite of receipt of advance amount to the tune of Rs.60,000/- . Hence prays for allotment of the site measuring 1200sq.ft. or in alternative to pay the market value of the site to the tune of Rs.35,00,000/- and also pay compensation for deficiency of service.
2. The brief facts of the complaint is that, the complainant became a member of the Opposite Party Housing Society for allotment of the site measuring 30X40sq.ft.and made an application to that effect on 3.2.2000 by paying an amount of Rs.1,110/-. After submitting the application, the complainant had paid an amount of Rs.25,000/- on 11-4-2000 and another Rs.35,000/- through cheque on 9-9-2002. The said cheque was realized, totally the complainant has paid Rs.60,000/-for allotment of the site, but the Opposite Party in spite of receipt of the entire consideration amount, they have not allotted the site in favour of complainant. In spite of repeated request also, the Opposite Party has not allotted the site, for which they issued a legal notice dated 20-2-2018 calling upon them either to allot the site or to pay the market value of the site to the tune of Rs.35,00,000/-, but the Opposite Party have not replied or allotted the site. Having no option, the complainant filed this complaint alleging deficiency in service and sought for relief as prayed above.
3. After service of notice, the Opposite Party appeared through their counsel and filed version and contended that, they are not liable to pay compensation or allot the site in favour of complainant as the dispute raised by the complainant has to be decided only under Section 70 of the Karnataka Co-operative Societies Act, 1959, hence prays for dismiss the complaint.
The complainant became a member of the Opposite Party and made initial deposit of Rs.25,000/- on 11-4-2000 and another sum of Rs.35,000/- on 9-9-2002 towards allotment of the site. The tentative sital value fixed by the Managing Committee is for Rs.1,10,000/- for a site measuring 30X40sq.ft. The complainant had not paid the full sital value as fixed by the Managing Committee within the stipulated time for claiming allotment of the site. The proposed layout in the lands at Rachenahalli, Sriramapura and Thanisandra was not materialized for the reason that the lands identified for proposed layout were notified for acquisition under the Bengaluru Development Authority Act, 1976 to form Arkavathi Layout. The complainant is also very much aware about the acquisition of the said land, which was proposed to form layout.
This Opposite Party is not in possession of the land at Rachenahalli, Sriramapura and Thanisandra. This Opposite Party has to require buying a land to form a layout and after formation of the layout, the complainant only eligible for allotment of the site. Hence, the allotment to the complainant was not made. This Opposite Party made honest efforts to acquire land at Rachenahalli, Sriramapura and Thanisandra, but all efforts are not yielded. Hence, there is no deficiency in service on their part.
The Opposite Party further contended that, since they have not formed any layout at Rachenahalli, Sriramapura and Thanisandra. The claim to the tune of Rs.35,00,000/- value of the site is not liable to payable. The complainant made this claim at imaginary basis and there is no documents to show that, the sites are valued at Rs.35,00,000/-. The complainant only claimed the such a huge amount in order to gain wrongfully from this Opposite Party. Hence, prays for dismissal of the complaint.
The Opposite Party further contended that, they have initiated the legal proceeding against the Bengaluru Development Authority with respect of the lands notified for acquisition at Venkateshapura and Sampigehalli. The litigations are still pending. Due to which they are not able to allot sites in this layout any other members and also to the complainant. They have held general body meeting and explained and appraised all the difficulties facing for not allotment of the site. The complainant is also very much aware of the said proceeding and facts. In spite of that, the complainant had filed a complaint by suppressing material facts, hence prays for dismissal of the complaint, in the interest of justice and equity.
4. The complainant filed affidavit evidence and marked documents as Exs.C1 to C7. The Opposite Party not filed any affidavit evidence.
5. The complainant filed written arguments. In spite of granting sufficient time, the Opposite Party not submitted the arguments.
6. On perusal, the following points will arise for our consideration;
(1) Whether the complainant proved deficiency in service on the part of Opposite Party?
(2) Whether the complainant is entitled to the reliefs as sought?
(3) What Order?
7. The findings to the above points are;
(1) In the affirmative
(2) In the partly affirmative
(3) As per final Order.
R E A S O N S
Point Nos. (1) & (2):-
8. On perusal of the pleadings, affidavits and documents produced by both the parties, it is not in dispute that, the complainant become a member of the Opposite Party society for allotment of the site by paying an amount of Rs.1,110/-, he also applied for allotment of the site through application and paid an amount of Rs.25,000/- on 11-4-2000 and Rs.35,000/- on 9-9-2002 through cheque. It is also not in dispute that, the site was not allotted due to acquisition by the Government of Karnataka for the formation of Arkavathi layout. Once the Opposite Parties are not able to form a layout at Rachenahalli, Sriramapura and Thanisandra, it is bounden duty of the Opposite Party to return the amount to the applicant or else to allot a site at any other layout which were formed, but the Opposite Party has not produced any materials before this Commission to show that, the they have alternatively formed any layout. In the absence of such, the complainant is entitled for refund of the entire amount paid for allotment of the site.
9. On perusal of the version filed by the Opposite Party, it is noticed that, they made an attempt to form layout at different lands, but the said formation of the layout was not intimated to the complainant. We are of the opinion that, the first option the Opposite Party has to refund the amount paid by the complainant and in the second option, a preference be given for allotment of the site in future formation, but the Opposite Party fails in either the options. As such we found it is a clear case of deficiency in service on the part of Opposite Party.
10. At the same time, the complainant had not produced any materials to show that, the proposed allotment of site in favour of complainant fetches value to the tune of Rs.35,00,000/-. Here the allotment is not at all made to the complainant, the absence of any allotment, the complainant is not entitle to claim an amount of Rs.35,00,000/- without any basis. Therefore, he is only entitle for refund of the amount of Rs.60,000/-with interest which was paid on 11-4-2000 and 9-9-2002. Further the Opposite Party is liable to pay interest on the said amount to the tune of 18% per annum as because as soon as it was came to knowledge that the said proposed layout were acquired by the Government of Karnataka/BDA, the Opposite Party are under the obligation to refund the amount paid towards allotment of the site or else to form a layout alternatively for allotment of the site to the complainant along with other members. Both tasks were not done by the Opposite Party, the complainant constrained to file a complaint before the District Commission in order to refund of his amount paid towards allotment of the site. As such the Opposite Party is directed to pay the above said rate of interest to the complainant. Further the Opposite Party is also liable to pay a compensation to the tune of Rs.3,00,000/- for deficiency of service in not returning the amount as soon as the legal notice was issued. Accordingly, the complaint is allowed and we proceed to pass the following:-
O R D E R
The complaint is allowed with cost of Rs.25,000/-
The Opposite Party is directed to pay an amount of Rs.60,000/- with interest @ 18% per annum along with compensation of Rs.3,00,000/- from the date of legal notice to the complainant within 30 days from the date of receipt of this order, failing which, further interest of 9% per annum will be levied on the both amount till realization.
Send a copy of this order to both parties.
Lady Member Judicial Member
