SRI. MARUTHI VADDAR

        MEMBER

     This complaint has been initiated u/s 35 of the Cp Act 2019 by the Complainant H.N.Bharathi R/o Hosabandikeri Mysuru against the             opposite party No.1.and 2 The president, and the secretary Madhuvana House Building Co-operative Society ltd., Mysuru alleging                   deficiency of service praying this commission directing the opposite party to register the site No.2 measuring 40x60 as according to the            allotment letter dated.17.12.1990 in 1^st stage Block No.78 Madhuvana layout situated at Srirampura Village Mysuru taluk and to pay              compensation of Rs.4,00,000/- for causing inordinate delay and Rs.30,000/- as costs of the proceeding. and to grant such other reliefs as          the Hon’ble court deems fit under the circumstances of the case in the interest of Justice and Equity.

1. Brief facts of the complaint is as here under:-

     It is stated in the Complaint that, the opposite parties are in the business of procuring of land forming them into residential layout with           all    the basic amenities and providing it to their customers named as “MADHUVANA LAYOUT” at Srirampura village, Mysuru taluk.        With an intention of buying a residential plot out of her hard earned money the complainant became the member of the opposite party and      paid the total value of Rs.37,240/- for 40x60 feet plot on 15-12-1990. The opponents have acknowledged the receipt of the said amount        by way of issuing cash receipt as “site deposit for 40x60”. in receipt No.8435 and have issued allotment letter.

2. It is further stated that after payment of the amount and receiving allotment letter, the complainant toiled to the office of the opposite party on several times every now and then. But the opposite party have kept on assuring that the site will be registered shortly and having being delaying by one or other pretext.  Hence the Complainant has filed the present complaint after issuing legal notice.
3. After registration of the complaint, notice was order to be issued to the opposite party and in response to the notices opposite parties appeared through their counsel and have filed the version contending that the complaint filed by the complainant against the opposite party is not maintainable either in law or on facts and the same is liable to be dismissed in limine. The complainant is not a consumer as contemplated in the act, as she is owning house property in the name of her husband at Hosabandikeri Mysuru. The complainant failed to file the affidavit to the effect stating that she or her family not owning site or house at Mysuru. In view of the same the complainant herself disable from seeking registration of the site in her favour as the same is barred under the by law No. 9(a) of the opposite party.
4.      It is further contended that the complainant is owning her property in the name of her husband Sri.Nanjundaswamy who himself, the well known developer and is the president of reputed and well-known SBM house Building co-operative society Mysuru and the complainant also member of the society. In view of the same opposite party forfeited the amount deposited by the complainant and violating the bye-Law and suppressing the truth. Being the developer and owning several sites and layouts, the complainant never turned up seeking for site. Consequently, the site allotted to the Complainant has been cancelled and allotted to the land owner as land loser site. Even otherwise the MUDA specifically bars the allotment of the site in this respect.
5.      The opposite party further contended that the complaint is barred by limitation as the complainant had to file complaint on or before 15/12/1992. But apparently filed after lapse of 27 years cannot be entertained. Hence prayed to dismiss the complaint with exemplary costs.
6.      The complainant filed her affidavit evidence and the same  was taken as pw.1 and got marked the documents as Ex.p1 to p8. On the other hand the opposite party filed their affidavit evidence and the same was taken as RW.1 but has produced one document.
7. Heard the arguments of the Complainant.

8. . Now the points that arise for the consideration of this commission are:-  

1.Whether the complainant proves the alleged deficiency of service on the part of the opposite party and thereby she is entitled to the relief as sought?

 2.What order?

9.Our findings on the aforesaid points are as follows:

   Point No.1:-  Partly  affirmative;

   Point No.2 :- As per  the final order for the following

:: R E A S O N S ::

10. Point No.1:-  To prove her case, the complainant has filed her affidavit evidence and reiterated the averments of the complaint in her                 affidavit. It is the case of the complainant that, with an intention to buying a residential plot out of her hand earned money the                           complainant became the member of the opposite party society and has paid the total value of Rs.37,240/- for 40x60 feet plot, on 15-12-            1990. The opposite parties have acknowledged the receipt of the said amount by way of issuing cash receipt as “site deposit for 40x60” in      receipt NO.8435 and have issued allotment letter. The said evidence of the complainant was enunciated with Ex.p1 and p2 where in it             was clearly mentioned in Ex.p1 about the amount covered as Rs.37,240/- receipt No.8435 bearing the name of the opposite party and in            Ex.p2, the site No. is 2 measuring 40x60dt.17.12.1990.

11.   It is further case of the complainant that after payment of the amount and receiving allotment letter, the complainant toiled to the office of the opposite party on several times but the opposite party kept on assuring that the site will be registered shortly and having been delayed by saying one or other pretext. Hence she got issued legal notice as per Ex,p3 on 20-10-2019 calling upon the opposite party to execute Reg. sale deed in favour of the complainant. EX.p4 is the postal receipt Ex.p5 are the unserved postal cover issued to 1^st opposite party.Ex.p6 is the postal acknowledgments having been served on the opposite party No.2 Ex.p7 is the original receipt for having made the payment of Rs.37,240/-, Ex.p8 the original allotment letter. Inspit of the service of the legal notice opposite parties did not execute the sale deed.

       According to the opposite parties, the complainant is not a consumer as she is owning house property in the name of her husband at                  Hosabandikeri Mysuru. The complainant has to file affidavit to the effect statingthat she or her family not owning site or house at                     Mysuru as per bye law 9(a) of the opposite parties. the husband of the complainant is a well known developer and is the president of the           reputed and well known SBM House building Co-operative society and the Complainant is also one of its member. For suppressing the           truth opposite party has forfeited the deposited amount of the complainant. Being the developer and owning several sites and layouts the          complainant never turned up seeking for site. Consequently the site allotted to the complainant was cancelled and allotted to the land               owner as land loser site. Even otherwise MUDA specifically bars the allotment of the site in this respect. The complaint is barred by                 limitation as the complainant has to file on or before 18/12/1992. The same is not maintainable.

        After looking into the rival contentions of both parties and pleadings and documents submitted by them, it is observed that there is no             dispute with regard to the payment of site amount and the receipt between the parties, but the only dispute is with regard to the execution          of the sale deed. The complainant paid the said amount of Rs.37,240/- in the year 1990. But as per opposite party she has to declare that          she has not owing any site or house in and around Mysuru as per opposite parties. Further opposite parties contends that the complainant           is having site and layouts in Hosabandikeri Mysuru her husband is the president of well known SBM Co-operative society and the                 complainant is one of its member and hence the complainant never turned up seeking for site. Consequently the site allotted to the                      complainant was cancelled and has been allotted to the land owner as land loser site. The said contention of the opposite parties is not           fruitful as the complainant paid the amount of Rs.37,240/- in the year 1990 to the opposite party for the said plot. But the opposite parties         have dodging the matter by saying one or other pretext. If the complainant paid the said amount to any other developer, the matter would         have been different and if she deposited the said amount in any other bank etc the said amount will carry more interest. The act of the               opposite parties in forfeiting the complainant deposited amount is arbitrary and unjustified. It is the bounden duty of the opposite parties             to execute regd sale deed or refund the amount with interest. One should not enrich himself from the amount of the others. As the o                   pposite parties have already stated that the site was already issued to land owner as land loser site. Hence it would meet the ends of                  justice if the opposite parties are directed to refund the amount with interest from the date of deposit. Hence we answered this point as              partly affirmative.

12. .Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

The complaint of the complainant is allowed in part. The opposite parties are liable to refund the amount of Rs.37,240/- with interest at 10% p.a from the date of the deposit within the month from the date of the order failing which the said amount will carry 12% p.a. interest till its payment.

The opposite parties are liable to pay Rs.25,000/- for causing inordinate delay and Rs.5,000/- towards the costs of the proceeding within two months from the date of this order in default the said amount of Rs.25,000+5,000=30,000 will carry interest at 8% p.a from the date of the order till its payment.

The complainant is at liberty to take necessary action u/s 72 of the cp act 2019 for the non compliance of this order by opposite party.

Supply free copies of the order to both the parties.

          (Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Commission on this the            21^st April 2023)