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

DATED 21^st DAY OF APRIL 2022

                              ORDER

SRI H.JANARDHAN, MEMBER:

1. This complaint is filed under section 35 of C.P.Act, 2019 seeking reliefs against the OPs.

a) To direct the Opposite parties to allot a site measuring 40X60ft. in the layout formed by OP in favour of the complainant or alternatively refund the deposit made towards site amount of Rs.86,140.50ps along with interest 18% p.a. and award compensation of Rs.5,00,000/- towards deficiency of  service on the part of OP and such other reliefs as this commission deems fit.

2. The case of complainant in brief is as under.

The present complainant’s mother Smt.Indira. K. Avnekar became the member of OP-1 with an intention to have site and own site property in Bengaluru. The complainant’s mother paid the site deposit to the OPs from time to time as and when demanded by the OP to a total sum of Rs.86,140.50Ps to OP. After accepting above payment from complainant’s mother, OPs issued receipts for the same. Complainant’s mother applied for allotment of site measuring 40X60 ft. layout formed by the OP’s in Sarakki layout and paid site deposit, but so far OPs have not allotted any site to the complainant’s mother and fails to intimate regarding any specific and particular site for her. Further more OPs fails to allot site inspite of after lapse of considerable time. The complainant’s mother demanded OPs to refund  amount remitted by her towards cost of site together with interest and authorized present complainant to collect the payment/cheque from the OP as per letter dt. 09.09.2005, which was received and acknowledged by the OPs on 15.09.2005, but OPs fails to refund the amount to the complainant or to her mother. Subsequently, complainant’s mother Smt. Indira.K.Avnekar died and the complainant succeeded to the estate of her mother. The complainant had intimated the fact of death of her mother to the OPs and demanded for allotment of site to her or alternatively refund the amount deposited with interest, but the OPs fails to allot site in her favour during her lifetime or subsequently on her death in favour of the complainant or refund the site deposit amount to the complainant’s mother or to the complainant inspite of repeated requests and demands made by the complainant.  Further more the complainant was anxiously awaiting for allotment of site since 1985 and the total remitted amount of Rs.86,145.50Ps for the period from 01.02.1985 to 30.06.1993, but inspite of lapse of 35 years after  became a member by the complainant’s mother  or after demise to the complainant. Being aggrieved by the act of the OPs, the present complainant got issued legal notice on 15.12.2020 demanding OP to either allot site measuring 40X60 ft. in any of the layout formed by them in her favour or alternatively for refund of amount of Rs.86,140.50Ps with interest at 18% p.a. compensation of Rs.5,00,000/- for the loss of money,  interest, hardship and mental agony suffered by the complainant.

Despite receipt of legal notice, OPs neither replied to the notice nor complied the demands of complainant or refunded site deposit  with interest and compensation to the complainant. Hence, the said complaint is filed for the said act of OPs.

3. After receipt of notice, OPs appeared through their counsel and filed version, OPs contended that OP society is functioning under no loss no profit basis in terms of the principles laid down in the Co-operative movement and OP society is not selling any house, site for consideration beyond the cost.  The OP contended that the complainant is not a member of the society, further her mother was the member of the society and OP society is duly registered as a Co-operative society under the Karnataka Co-operative Societies Act, 1959.  More ever, the claim is hopelessly barred by limitation. Complainant had made sital deposit of Rs.85,850/- from 01.02.1985 to 30.06.1993 on various dates. The claim for refund after 28 years of the alleged deposit is not maintainable. The OPs contended that the present complaint filed by the complainant  on behalf of  mother  deposited amount of Rs.85,850/-  towards sital deposit, her mother passed away and complainant become successor without produced  necessary documents to that effect and the site supposed to be formed at Sarakki layout, for which the  society applied for a land before Government of Karnataka has acquired certain lands in Kottanur village and Vasanthapura village of Bengaluru south Tq. Accordingly, notification was issued on 11.12.1986 and same was confirmed on final notification dt.11.01.1988, award was passed by Special Land Acquisition Officer on 03.12.1989. At that particular point of time one of the land lord has challenged the acquisition proceedings in Hon’ble High Court of Karnataka in W.P.No.15625/1987 and similarly various other petitioners pertaining to the different lands in and around Bengaluru have also preferred the writ petition for the same reliefs before the Hon’ble High court of Karnataka and thereby Hon’ble High Court clubbed together and heard the arguments on behalf of both the sides and passed  order commonly on 18.06.1991 by allowing  the Writ petition and quashing the writ proceedings. Then the parties preferred Special Leave Petition to Supreme Court, Wherein Supreme court of India have dismissed  the Special Leave Petitions  filed  by the societies on 21.02.1995, particularly in Civil leave petition No.13339/1991 and “directed that as a result of quashing the land acquisition proceedings as aforesaid the possession of the land shall be restored to the respective land owners irrespective of the fact whether they had challenged the acquisitions of their lands or not”, whereby Special Land Acquisition Officer handed over the possession of the respective land to their land lords and collected the compensation amount from the owners and the said report was filed before the Hon’ble High Court of Karnataka on 07.07.2000 in WP no.26916/1997.

4. Further more the OP made hectic efforts to get back the money which was deposited with Special Land Acquisition Officer, for which Special Land Acquisition officer not properly responded, thereby the OP was constrained to file a writ petition seeking directions from the Hon’ble High Court to release amount, which was with Special Land Acquisition Officer in W.P.26916/1997 clubbed with 32890/1997. Pursuant to orders of Hon’ble High Court, the Special Land Acquisition officer directed the OP to execute an Indemnity Bond and the OP society has executed an Indemnity Bond against which the Special Land Acquisition  issued a letter dt.07.04.2015 by releasing amount of Rs.12,25,141/- against the deposit of Rs.3.00 crores and odd. The Special Land Acquisition Officer have shown an expenditure against the deposited amount of OPs Rs.33,80,000/- towards audit fee, establishment charges and publication charges etc. Further, Special Land Acquisition Officer  kept the money of deposit by OP from 1986 onwards while returning the amount, they have deducted certain charges on the head of their establishment that comes to the tune of 10% of the entire deposit and certain deposit money was of the members.

5. Further,  OP society is yet to receive the balance amount from Special Land Acquisition officer and the Special Land Acquisition officer has deducted certain amount under various expenditure heads, it is difficult for the society to pay the principal amount with interest for the reason there is no developmental activities  pursuant orders of Hon’ble Supreme Court of India.  Hence, OPs contended that when a situation of interference of Hon’ble Courts, the Hon’ble Supreme court of India has passed a judgement in AIR 2010 SC 486, that Development authorities like OP did not pay interest for the delay caused or failure of the projects. The present case in the hand is also similar to that of the case in Supreme Court of India, whereby the OP is not liable to pay interest on the sital deposit.  Hence, OP is not  guilty of rendering any deficiency of service or negligence or including untrade practice and prays to dismiss the complaint with exemplary costs.

6. The stage was given for affidavit evidence of complainant, affidavit evidence of complainant is not filed. Hence, complainant fails to lead evidence. The OP has filed affidavit evidence, RW1 is examined and Exhibits R1 to R3 are marked.

7. Heard arguments of OP. Arguments of complainant is taken as nil.

8.  The following points arises for our consideration.

1. Whether complainants proves deficiency of service/negligence on the part of the OP?

2. Whether the complainants are entitled to the reliefs mentioned in the complainant?

3. What Order?

9. Our answer to the above points are as under

Point No.1 & 2: Affirmative in part.

        Point No.3: As per final order.

                                REASONS

10. Point No.1 & 2: It is admitted by both parties that complainant’s mother was member of the OP society and remitted amount for the membership and after becoming member of the OPs, the complainant’s mother had applied for site measuring 40X60ft. And even though the complainant’s mother had paid sum of Rs.86,140/- on various dates from 01.02.1985 to 30.06.1993. The complainant’s mother died on 24.06.2009. After the death of mother, the present complainant made correspondence with the OPs demanding OPs to allot the site in favour of the complainant.  

                The present complainant not produced any document to show she is daughter of Smt.Indira.K.Avnekar. Section 15 of Hindu Succession Act, speaks about succession in the case of female Hindus; (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,- (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband, (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father and (e) lastly, upon the heirs of the mother.

                Complainant also made request to refund of amount, in the event fails to allot the site in her favour with interest at 18% p.a. The present complainant made several correspondence with the OPs to get refund of the amount or in alternative allot site to complainant, but OP had not responded for the same and even the complainant got issued legal notice, for which the OP did not respond for the same. Further more the complainant mother has made payment in the year 1985 and final payment made in the year 1993. When the complainant’s mother was still alive during that time. However, the complainant’s mother died on 26.04.2009 till that time OP had not allotted any site to the complainant and had made correspondence with the complainant to pay extra amount and remit the same to maintain seniority. However, the complainant submits no development works was made by the OP. The complainant has not made any payment to the OP. The OP has taken the contention that complaint is barred by limitation. Further OP relied upon the decision in Case of Sathish Kumar Panda V/s United Limited reported in III (2015) CPJ 440, wherein it is held that buyer of house has recurring  cause for filing the complaint for  non delivery of possession of flat/site. In this context, the present complaint filed by the complainant is well within time. The OP by way of filing version admitted booking of the site and also amount paid to the OPs by the complainant’s mother. In this context, the complainant has produced document for the payment of amount by them. For non allotment of site OPs have specifically contending that the land owners have approached the Hon’ble High Court for  acquisition of the land, where the OPs could not  commence the project. The said Writ Petition came to be allowed and acquisition proceedings quashed. As against the same the OPs preferred Special Leave Petition before the Hon’ble Supreme court of India and same was also dismissed holding that  “we directed that as a result of quashing the land acquisition proceedings as aforesaid the possession of the land shall be restored to the respective land owners irrespective of the fact whether they had challenged the acquisitions of their lands or not, whereby Special Land Acquisition Officer handed over the possession of the respective land to their land lords and collected the compensation amount from the owners” and the said report was filed before the Hon’ble High Court of Karnataka on 07.07.2000 in WP no.26916/1997. There after OP made hectic efforts to get back the amount which was deposited with Special Land Acquisition Officer. Now the point arise for consideration is by demands made so for and paid by the complaint is concerned. The complainant is not entitled interest for advance as subsidiary  rules of OP society as per clause-8 the member is not entitled for interest on deposit amount in case of the any refund of deposit of sital amount and also Rule 12(2) of the Karnataka Co-operative societies Act 1960 for share of Rs.25/- that the Hon’ble Supreme court in catena of  decision held  the  terms and conditions of contract can be only interpreted, but cannot be altered or replace the new terms and conditions of the contract. In this context, by invoking clause-8 of OP society and Rule 12(2) of Karnataka Co-operative societies Act, 1960. We constrained to accept the contention taken by the complainant and directing the OP to refund the advance amount paid by the complainant along with cost of litigation of Rs.5,000/-.  Accordingly, we answer-1 in the affirmative.

9.Point No.2: The complainant had paid court fee of Rs.2,000/- for filing the present complaint  and taken assistance of the advocate  on her behalf to contest the case and claims compensation of Rs.5,00,000/- which is unreasonable. The complainant has suffered for the delay as OP being the society delay is not due to the act of the OP. Hence, complainant is not entitled for compensation and award Rs.5,000/- towards cost of litigation will meet in the ends of justice.  However, furthermore the present complainant is not filed any evidence to show that she is the daughter of the complainant and OP is further direct to obtain succession certificate from the present complainant and direct the OPs jointly and severally to remit amount of Rs.86,140.50Ps and cost of Rs.5,000/- towards litigation .

10.Point No.3:- In the result, we pass the following order :

ORDER

1. Complaint is allowed in part.
2.  The OPs are jointly and severally liable to remit amount of Rs.86,140.50Ps to the complainant  by obtaining succession certificate from the present complainant.
3.  The OPs are jointly and severally liable to pay  Rs.5,000/- towards as cost of litigation.
4.  The OPs shall comply this order within 60 days from this date. 
5.  Furnish the copy of this order to both the parties.

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Commission on this 21^st day of April, 2022).

         (RENUKADEVI DESHAPANDE)   (H.JANARDHAN)   (K.S.BILAGI)

    MEMBER                               MEMBER          PRESIDENT

Documents produced by the Complainant which are as follows:-

Documents produced by the OPs which are as follows:-

      (RENUKADEVI DESHAPANDE)     (H.JANARDHAN)   (K.S.BILAGI)

    MEMBER                               MEMBER         PRESIDENT