Date of Filing:09.06.2022

Date of Disposal:23.05.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SRI RAMACHANDRA.M.S,  PRESIDENT

1. The complainants files a complaint with this Commission under Section 35 of the Consumer Protection Act of 2019 with a direction to OP to repay a sum of  Rs.4,68,000/- along with interest at 21% p.a. and pay Rs.1,00,000/- for deficiency of service, Rs.50,000/- for  mental agony and harassment, Rs.50,000/- for legal expenses and such other reliefs.

2.   The following are the complaint's key facts: 

This is the case of the complainant that the complainant is the member of the OP Housing Co-Operative Society and he approached the OP with an intention to purchase a plot measuring 40X60ft. in 9^th stage, Hennur, Bengaluru, where the OP has proposed to form residential layout and the complainant has also paid a total sale price of Rs.4,68,000/- on several occasions as the sital value fixed by OP Society.Despite of the receipt of the entire sital value OP has failed to allot site to the complainant as promised and all the effort made by complainant in getting allotted a plot and registered sale deed of the same went in vain without any fruitful result since OP society have not given any heed to the words of the complainant. Further the complainant with no other go got issued a legal notice dt.25.04.2022 to OP seeking the allotment of the site or cancel his allotment application and refund of sital deposit value. Despite of that the OP has dodged the matter by assigning one or another reason and there by the OP has delayed the allotment of the site as agreed. It is also alleged by the complainant that after the much efforts the OP has refused to allot the site to the complainant by assigning reasons that there is no provision in the byelaw of the OP society for allotment of the 2^nd site to the complainant. By this act and action of the OP society clearly attracts the deficiency in service on the part of the OP society. For which the complainant prays the refund of the entire amount along with compensation and the present complaint came to be filed by seeking some relief. Aggrieved by the act of the OP, the complainant filed present complaint.

3. Notice to OP-duly served, represented by counsel and filed written version and chief examination affidavit and also produced relevant documents in support of their pleadings.

4.  The complainant filed chief-examination affidavit along with relevant in support of his contention.

5.  Heard arguments. The matter is reserved for order.

6.  The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency in service on the part of the OP as alleged in the complaint and there by prove that he is entitle for the relief sought?
2. What order?

7. The findings on the above points are as under:

Point No.1               :       Partly in Affirmative

Point No.2               :       As per final order

REASONS

8. POINT NO.1:-  That the complainant is the member of the OP Housing Co-operative Society and he approached the OP with an intention to purchase a plot measuring 40X60ft. in 9^th stage, Hennur, Bengaluru, where the OP has proposed to form residential layout and the complainant has also paid a total sale price of Rs.4,68,000/- on several occasions as the sital value fixed by OP Society.  It is apparent from the perusal of all the records and documents produced that the complainant has paid the total price to the plot amounting to Rs.4,68,000/-.  Despite of the receipt of the entire site value OP has failed to allot site to the complainant as promised. Upon which the complainant has made all the effort to get allotment of the site. Despite of that the OP has dodged the matter by assigning one or another reason and there by the OP has delayed the allotment of the site as agreed. It is also alleged by the complainant that after the much efforts the OP has refused to allot the site to the complainant by assigning reason that there is no provision in the byelaw of the OP society for allotment of the 2^nd site to the complainant. It is their specific contention that when the OP has already allotted one site to the complainant, the question of allotting 2^nd site to the complainant is not permissible as per the byelaw of the OP society. Upon which the complainant alleged the deficiency in service on the part of the OP society. It is specifically alleged by the complainant that despite of knowing that there a bar in the byelaw of the OP society that the complainant is not eligible to get allotment of the 2^nd site from the OP society, Why the OP has collected amount for the allotment of the site. By this act and action of the OP society it attracts the deficiency in service on the part of the OP society. For which the complainant prays the refund of the entire amount along with compensation and the present complaint came to be filed by seeking some relief.

9. The OP represented by counsel has filed written version and also chief examination affidavit by reiterating the contention of the version statement. Their specific defence to the claim of the complainant is OP society has barred the allotment of the 2^nd site to any member of the society. Since, this complainant has already got the allotment of the site, the question of allotting 2^nd site is not tenable under the provisions of byelaw of the OP society. When such being the position, the OP has refused to allot the 2^nd site to the complainant and when the delay of the OP society has categorically denied for the allotment of the 2^nd site to the complainant. The OP specifically admitted that the complainant is only entitled to receive site value which has been paid by complainant for the allotment of the 2^nd site. By denying any deficiency on their part they pray for dismissal of the complaint.

10. On perusal of the complainant chief examination affidavit and by considering the admission of the OP society in the version statement, when the OP has clearly and categorically admitted the receipt of sum of Rs.4,68,000/- from the complainant for the allotment of the 2^nd site. This transaction and receipt of the said amount is clearly and categorically admitted by the OP. In view of the admission from the OP side with respect to the receipt of the above said amount, the question arises for consideration is that whether the OP is liable to pay compensation for the alleged deficiency in their service. Here, it is observed that even though there is bar in the byelaw of the OP society that the any member is not permitted to get the allotment of the 2^nd site in the OP society. When there is a clear bar in the byelaw of the OP society, why the OP has collected an amount of Rs.4,68,000/- from the complainant. When the OP knows that complainant has already got an allotment of site from their society. This fact needs to considered seriously that knowing fully well that  when there is no provision for the allotment of 2^nd site to the complainant on the receipt of sital value from the complainant, that itself shows that OP society has rendered the deficient service to the complainant and the receipt of sum of Rs.4,68,000/- from the complainant  and keeping that amount till this date that itself shows that the OP society have rendered careless and negligent service during the course of complainant transaction with the OP society. All these facts clearly goes to show that knowing fully well the OP society have collected a sum of Rs.4,68,000/- from the complainant. This act and omission of the OP clearly attracts deficiency in service on their part, for which they are held liable to refund the said amount to the complainant along with other reliefs granted in the complaint. In view of the above discussion, the Point No.1 we answer Partly in Affirmative.

11. POINT NO.2:- In the result, we passed the following:

                           ORDER

1. Complaint is allowed in part.
2. The OP is   directed to refund Rs.4,68,000/- along with interest at the rate of 10% p.a. from the last date of payment i.e. 29.07.2004   till refund is made  to the complainant.
3. The OP is   further directed to pay a sum of  Rs.50,000/- as compensation towards deficiency of service and Rs.10,000/- towards litigation   charges. OP fails to comply the order within 45 days from the date of order, compensation amount and cost of litigation shall carry interest at 6% p.a. for non-compliance of the order.
4. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 23^th May 2023)

(RAMACHANDRA M.S.)

PRESIDENT

       (NANDINI H KUMBHAR)             (CHANDRASHEKAR S.NOOLA)       

                 MEMBER                                        MEMBER

Witness examined on behalf of the complainant by way of affidavit: Mani.M.-who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit: Sri H.S.Ravi Prasad

Documents produced by the OP:

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*