BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 31^ST DAY OF AUGUST 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

(a) Direct the Ops to specify the date when they commit to hand over of possession and compensate the complainant for the loss caused due to the delay in allotting the site as promised by the opponents;

or

 (b) Direct the Ops to pay the claimed amount of Rs.3,76,110/- along with 16 years interest as on today.

(c) Direct the Ops to pay the damages, mental agony, harassment.

(d) To pay the cost of litigation payable to the advocate amount of Rs.25,000/-

(e) To award cost of this complaint.

(e) Pass such other direction that this Hon’ble Commission deems fit to grant in the interest of justice and equity.

2. The case set up by the complainant in brief is as under:-

The complainant was in search of a residential site to construct a house thereon was attracted by the advertisement and offer given by the Ops and he became the member of the OP society and booked a site bearing No.96, formed in Sy.No.94/1, 96/1 measuring 30X 40 feet in all measuring 1200 sq. feet for a total consideration of Rs.3,76,110/-. Out of the said sale consideration amount the complainant has paid the entire amount from 29.08.2006 till 06.10.2007.  The allotment certificate was also issued to the complainant on 08.06.2013.

3. The complainant being a innocent purchaser has waited for more than 16 years. Even though the OP have agreed to allot the site within one year from 08.09.2006. The Ops after received the entire consideration amount are prolonging the allotment by giving one or the other reason. Surprisingly the opponents have allotted site at Mallapura project between 2006 to 2013 for some other persons without considering any seniority of the complainant and others for allotments.  The Ops are still insisting to pay the installments without allotting the site.  Aggrieved by the same the complainant has also lodged a complaint before the Joint Secretary of Co-operative societies stating about the breach of trust and inconvenience created by the Ops.
4. On several times the complainant has requested the Ops to refund the amount or to get register the site in his name but the Ops went on postponing the same for one or the other pretext with malafide intention. When the Ops have not responded to the request made by the complainant he got issued legal notice on 02.11.2022. Inspite of that the OP neither issued any reply notice nor complied the request of the complainant. Hence the complainant has filed this complaint.
5. In response to the notice, even though the OP has appeared before this Commission, but failed to file the version and lead evidence.
6. The complainant has filed his affidavit evidence and relies on 13 documents. 
7. Heard the arguments of advocate for the complainant. Perused the written arguments filed by the complainant.
8. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

9. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

10. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint and documents 1 to 13. Even though OP have appeared before this commission have neither filed version nor adduced any evidence. Hence OPs neither challenged the allegations made in the complaint and also documents and they remained unchallenged. There is no reason to disbelieve the evidence and the documents produced by the complainant.

11. The complainant in order to prove his contention has filed his affidavit evidence reiterated all the allegations made in the complaint.

12. The complainant has produced the copy of the special notice as document NO.1 issued by the OP and the document NO.2 the site allotment letter in order to establish that he has become the member of the OP society and they have allotted a site bearing NO.96 formed in Sy.No.94/1, 96/1 at Mallapura Village, Talakaverinagar, Kasaba Hobli, Nelamangala Taluk, measuring 1200 sq. feet.  The complainant has produced Ex.P3 to P7 to show that he has paid the entire sale consideration amount of Rs.3,76,110/- with membership fee to the OP society.  The complainant has also produced the copy of the complaint lodged by him before the Joint Registrar of Cooperative societies as Ex.P8.  ExP9 is the another complaint filed by the complainant before the registrar of Co-operative societies.  The complainant has also produced the copy of the legal notice dated 02.11.2022 for having issued notice to the Ops through RPAD, the notice was returned unserved and he has produced the undelivered postal cover as Ex.P12 and P13.

13. It is clear from the above documents and averments made in the complaint and the affidavit that the complainant has paid the entire sale consideration amount of Rs.3,76,110/- in the year 2007 itself and he has waited for allotment of site and to get the site registered in his name for more than 16 years.  As per the allotment letter the OP has undertaken that they will allot the site within one year from 08.09.2006.  Even after received the entire sale consideration amount, the OP has neither allotted the site nor refunded the amount. In the mean time, the Ops have allotted the sites at Mallapura Project between 2006 to 2013 for some other members without considering the seniority of the complainant for allotment of site. The Ops used to give evasive reply when the complainant has approached them and requested them on several times for allotment of the site or refund of the amount. Inspite of the request and also issue of legal notice the Ops have never bothered to comply the demands of the complainant and it amounts to deficiency of service and negligence and unfair trade practice.  

14. The complainant has waited for more than 16 years with a fond hope that the Ops will allot the site and he may construct the house according to his wish and will and he will reside in the said house with his family members. When the Ops have failed to allot the site the complainant was disappointed and suffered financial loss and also mental agony. In view of this the complainant has clearly established the deficiency of service and also the mental and financial loss suffered by him in view of the unfair trade practice practiced by the Ops in allotment of site. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

15. Point No.3:- In view the discussion referred above the complaint has sought for a direction to the Ops to direct them to specify the date for handing over possession and compensate the complainant for the loss caused due to delay in allotting the site as promised by them or in the alternative direct the Ops to refund the amount of Rs.3,76,110/- along with 16 years interest and for cost and damages with litigation expenses. Under these circumstances we feel it is necessary to direct the Ops to allot the site and hand over the possession of the site to the complainant if the sites are available or in the alternative to refund the amount to the complainant of Rs.3,76,110/- with interest at 10% p.a., from the date of respective payment till realization. The complainant is also entitled for compensation of Rs.1,00,000/- for the delay, mental agony and harassment suffered by him with litigation expenses of Rs.10,000/- to the complainant. we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. Ops are directed to allot the site and hand over the possession of the site to the complainant if the sites are available or in the alternative to refund the amount of Rs.3,76,110/- with interest at 10% p.a., to the complainant from the date of respective payment till realization.
3. Ops are also directed to pay compensation of Rs.1,00,000/- for the delay, along with litigation expenses of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.3,76,110/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 31^ST day of AUGUST, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL