| ORDER | COMPLAINT FILED ON: 18.04.2011 DISPOSED ON: 24.10.2011 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 24th OCTOBER 2011 PRESENT :- SRI. B.S. REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI.M.MUNIYAPPA MEMBER COMPLAINT NOs. 746/2011 & 747/2011 COMPLAINT NO. 746/2011 Smt.Varsha K. Murthy, COMPLAINANTS D/o. Sri Krishnamurthy, Aged 38 years, MAA ILLU, No.3058, 9th Main, 17th Cross, BSK II Stage, Bangalore 560 070. Represented by her GPA Sri G.Krishna Murthy, S/o Late Gowraswamy Setty, Aged 69 years,MAA ILLU, No.3058, 9th Main, 17th Cross, BSK II Stage, Bangalore 560 070. COMPLAINT NO. 747/2011 Sri. Amar K.Murthy, COMPLAINANTS S/o Sri Krishnamurthy, Aged 44 years, MAA ILLU, No.3058, 9th Main, 17th Cross, BSK II Stage, Bangalore 560 070. (Adv: Sri.R.Chandranath Ariga ) V/s. OPPOSITE PARTYS 1. Amarjyothi House Building Co-op. Society Limited ®, No-40, Krishna Rao Road, Basavanagudi, Bangalore 560 004. Represented by its President. 2. Amarjyothi House Building Co-op. Society Limited ®, No-40, Krishna Rao Road, Basavanagudi, Bangalore 560 004. Represented by its Secretary. ( Adv:K.S.Venkata Ramana ) C O M M O N O R D E R SMT. M. YASHODHAMMA, MEMBER These are the complaints filed U/s. 12 of the Consumer Protection Act of 1986, by the respective complainants, seeking direction to the Opposite Party (herein after called as O.P) to refund the sital deposit paid with interest at 15% p.a. and compensation of Rs.10 lakhs and costs on the allegations of deficiency in service on the part of O.Ps. As the OPs in both the complaints are common, the questions involved, relief claimed being the same, in order to avoid repetition of facts and multiplicity of reasoning these cases stand disposed of by this common order. The brief averments as could be seen from the contents of these complaints are as under; 2. Each Complainant became the member of the O.P. house building Co-operative Society and applied for allotment of sites. O.P. promised to allot sites measuring 50 X 80 at their proposed Dommalur and Hosahalli layouts Bangalore. O.P. issued the circular dated 8/1/1982 to its members to remit 75% of the value of the site. Each complainant paid the amount on different dates to O.P. as shown in the table below. On 29/5/1982 O.P. issued another circular. O.P. having acknowledged the amount has issued the receipts. On 5/10/1993 O.P. informed these complainants that their case has been transferred to Dommalur II phase for allotment and requested to pay Rs.1,24,500/- in 4 equal installments. Complainants by their letter dated 8/10/1993 informed O.P. that an amount of Rs.45,000/- was left out and requested O.P. to make necessary entries. Since 23 years O.P. failed to allot the sites. Hence complainants requested O.P. to refund the amount on 17-12-2007. Complainant sent another letter. O.P. in its reply dated 7/1/2008, informed the complainant that they will refund the amount. On 23-3-2011 complainant got issued notice requesting O.P. to refund the amount with interest at 15% p.a. within 10 days. There was no response. Hence complainants felt deficiency in service against O.P. Under these circumstances they are advised to file these complaints and sought for the relief accordingly. For the convenience sake the amount paid by each complainant, date of payment, receipt No., date of legal notice are mentioned in the table below. Complaint No. | Amount Paid | Date of Payment | Receipt No. | Date of Notice | C.No.746/2011 | 5,530-00 10,000-00 10,000-00 10,000-00 10,000-00 950-00 45,000-00 0,30,000-00 1,21,480-00 | 12-10-81 16-02-82 08-07-82 20-09-82 03-11-82 18-04-90 30-01-93 21-10-93 | 7524 8485 9243 9401 9527 0589 7198 8470 | 23-03-2011 | C.No.747/2011 | 5,530-00 10,000-00 10,000-00 10,000-00 10,000-00 950-00 45,000-00 91,480-00 | 12-10-81 16-02-82 31-05-82 20-09-82 03-11-82 18-04-90 30-01-93 | 7527 8487 9102 9484 9526 0588 7200 | 23-03-2011 |
3. On appearance OPs filed the version. The defence set out by O.P. in both the Complaints is almost identical and the same. According to O.P. it has applied for a land with Government of Karnataka to form the layout at Challagatta Village, Dommalur 2nd phase. The Government acquired certain lands and preliminary notification was issued, same was confirmed on final notification. Pursuant to order passed U/S.16(2) of Land Acquision Act, award passed by Spl. land acquisition officer. At that time one of the landlord has challenged the acquisition proceedings before Hon’ble High Court of Karnataka in W.P.No. 15625/1987. The Hon’ble High Court in its Common order dated 18/6/1991 allowed the Writ Petition. S.L.P. preferred by O.P. dismissed on 21/2/1995 with a direction to restore the land to the land owners. O.P. made hectic attempts to recover the amount with L.A.O. There was no proper response. On 17-12-2007 complainant requested O.P. to refund the amount. On 7-1-2008 O.P. gave the reply stating O.P. is not in a position to pay the interest will only refund the sital amount. O.P. has deposited a cheque dated 28-6-2011 for a sum of Rs.1,20,000/- in C.No.746/2011 and cheque for a sum of Rs.90,000/- in C.No.747/2011 towards refund of sital deposit. As per the Judgment in AIR 2010 SC 486 developmental authorities like O.P. need not pay interest for delay or failure of the projects. O.P. is not liable to refund share amount of Rs.500/- deposited on 12-10-1981. When society is under loss as per rules 12(2) of Karnataka Co-operative Society Act. O.P. is not liable to repay the share amount. There is no deficiency in service. Among other grounds O.Ps. prayed for dismissal of the complaints. 4. To substantiate the complaint averments in C.No.747/11 complainant filed his affidavit-evidence and in C.No.746/2011 the power of attorney holder of the complainant G.Krishna Murthy filed his affidavit evidence and produced copy of G.P.A. dated 5-5-1997, circulars, receipts, letters, notice reply, postal receipts and acknowledgements. Advocate for O.P. and Complainant produced citations. Heard oral arguments from complainant side and taken as heard from O.P. side. 5. In view of the above said facts, the points now that arises for our consideration in these complaints are as under: Point No.1:- Whether the complainants have proved the deficiency in service on the part of the OPs? Point No.2:- If so, whether the complainants are entitled for the reliefs now claimed? Point No.3:- To what Order? 6. Our findings on the above points are: Point No.1:- In Affirmative. Point No.2:- Affirmative in part. Point No.3:- As per final Order. R E A S O N S 7. At the outset it is not in dispute that each one of the complainant became the member of the O.P. a House Building Co-operative Society. O.P. assured to allot sites measuring 50 X 80 ft at their proposed Dommalur and Hosahalli layout. As per the circular of O.P. each complainant paid the amount to O.P. towards sital value as shown in the table. In C.No.746/2011 complainant paid Rs.1,21,480=00 on different dates starting from 12/10/1981 to 21/10/1993. In.C.No.747/2011 complainant paid Rs.91,480/- on different dates starting from 12/10/1981 to 30/1/1993. O.P. has issued the receipts acknowledging receipt of amount. Documents to that effect are produced. Now the grievance of each complainant is though O.P. has received the amount in the year 1993 itself failed to allot the sites as assured or to refund the amount. Hence complainant approached this Forum for the necessary reliefs. 8. As against the case of the each complainant the defence of O.P. that due to legal hurdles O.P. is unable to complete the project. But O.P. has failed to substantiate the said defence by producing documents. The land acquired for the purpose of formation of layout is repossessed by the land owners in view of the quashing of the land acquisition proceedings. So the sum and substance of the defence set out by O.P. is that it is unable to complete the project due to the quashing of the land acquisition proceedings. O.P. is ready to refund the sital value but not in a position to pay interest. 9. However after filing these complaints O.P. has refunded the sital value to the complainants. In C.No.746/2011 O.P. has paid Rs.1,20,000/- vide cheque dated 28/6/2011. In C.No.747/2011 O.P. has paid Rs.90,000/- vide cheque dated 28/6/2011. Each complainant has acknowledged the receipt of cheque on 14/7/2011. According to O.P. itself acquisition proceedings were quashed and S.L.P. preferred by O.P. before Hon’ble Supreme Court came to be dismissed on 21/2/1995. When O.P. was aware of the fact that it is unable to complete the project it could have been fair on its part to refund the sital value to the complainants. No such steps are taken. Retention of amount of for more than 17 years, so as to gain wrongfully amounts to deficiency in service on the part of O.Ps. 10. In support of his arguments counsel appearing for O.P. has relied on the decision reported in AIR 2010 S.C. 486. In the above matter the Hon’ble Supreme Court has observed that possession could not be delivered in time to respondents in respect of the plots on account of the order passed by the High Court of Punjab and Haryana directing maintenance of Status quo regarding possession. Hence it was found that delay was on account of order passed by the High Court. So the question of payment of interest for such delayed possession given to the respective respondents may not arise. 11. In the present proceedings acquisition proceedings were quashed by the Hon’ble High Court of Karnataka in W.P.No.15625/1987 and the said order was confirmed by the Supreme Court in the S.L.P. preferred by O.P. on 21/2/1995. Thereafter even after lapse of 16 years of order of Supreme Court O.P. has failed to refund the amount to the complainants. Hence the principles laid down in the above case cannot be made applicable to the present proceedings. O.Ps. have refunded the amount after 16 years and after filing these complaint, hence complainants are entitled for reasonable interest. In C.No.1194/09 of B.M.Samdaria Vs. Amar Jyothi House Building Co-Op. Ltd., this Forum vide its order dated 17/8/2009 directed O.P. to refund the amount along with interest at 12% p.a. and litigation cost of Rs.1000/-. The Complainant preferred Appeal No.2855/2009 against the said order. The Hon’ble State Commission vide its order dated 17/09/2010 modified the said order by enhancing only the rate of interest from 12% p.a. to 18% p.a. In view of the same, said order is made applicable to the present complaints. Hence Complainants are entitled on the amounts refunded interest at 18% p.a. and litigation cost of Rs.2000/- each. Awarding of interest itself can be taken as compensation. Accordingly we proceed to pass the following O R D E R The complaints are allowed in part. In complaint No.746/2011 OP is directed to pay interest at the rate of 18% p.a. on the deposit amount of Rs.1,20,000/- from the date of respective payments till the date of re7fund made i.e. 14/7/2011 and pay litigation cost of Rs.2000/- to the complainant. In complaint No.747/2011 OP is directed to pay interest at the rate of 18% p.a. on the deposit amount of Rs.90,000/- from the date of respective payments till the date of refund made i.e. 14/7/2011 and pay litigation cost of Rs.2000/- to the complainant. This order is to be complied within four weeks from the date communication of this order. This original order shall be kept in the file of the complaint No.746/2011 and a copy of it shall be placed in other connected file. Send the copy of this order to both the parties free of cost. (Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 24th day of October 2011.) MEMBER MEMBER PRESIDENT Rk. COMPLAINT FILED ON: 18.04.2011 DISPOSED ON: 24.10.2011 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 24th OCTOBER 2011 PRESENT :- SRI. B.S. REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI.M.MUNIYAPPA MEMBER COMPLAINT NOs. 746/2011 & 747/2011 COMPLAINT NO. 746/2011 Smt.Varsha K. Murthy, COMPLAINANTS D/o. Sri Krishnamurthy, Aged 38 years, MAA ILLU, No.3058, 9th Main, 17th Cross, BSK II Stage, Bangalore 560 070. Represented by her GPA Sri G.Krishna Murthy, S/o Late Gowraswamy Setty, Aged 69 years,MAA ILLU, No.3058, 9th Main, 17th Cross, BSK II Stage, Bangalore 560 070. COMPLAINT NO. 747/2011 Sri. Amar K.Murthy, COMPLAINANTS S/o Sri Krishnamurthy, Aged 44 years, MAA ILLU, No.3058, 9th Main, 17th Cross, BSK II Stage, Bangalore 560 070. (Adv: Sri.R.Chandranath Ariga ) V/s. OPPOSITE PARTYS 1. Amarjyothi House Building Co-op. Society Limited ®, No-40, Krishna Rao Road, Basavanagudi, Bangalore 560 004. Represented by its President. 2. Amarjyothi House Building Co-op. Society Limited ®, No-40, Krishna Rao Road, Basavanagudi, Bangalore 560 004. Represented by its Secretary. ( Adv:K.S.Venkata Ramana ) C O M M O N O R D E R SMT. M. YASHODHAMMA, MEMBER These are the complaints filed U/s. 12 of the Consumer Protection Act of 1986, by the respective complainants, seeking direction to the Opposite Party (herein after called as O.P) to refund the sital deposit paid with interest at 15% p.a. and compensation of Rs.10 lakhs and costs on the allegations of deficiency in service on the part of O.Ps. As the OPs in both the complaints are common, the questions involved, relief claimed being the same, in order to avoid repetition of facts and multiplicity of reasoning these cases stand disposed of by this common order. The brief averments as could be seen from the contents of these complaints are as under; 2. Each Complainant became the member of the O.P. house building Co-operative Society and applied for allotment of sites. O.P. promised to allot sites measuring 50 X 80 at their proposed Dommalur and Hosahalli layouts Bangalore. O.P. issued the circular dated 8/1/1982 to its members to remit 75% of the value of the site. Each complainant paid the amount on different dates to O.P. as shown in the table below. On 29/5/1982 O.P. issued another circular. O.P. having acknowledged the amount has issued the receipts. On 5/10/1993 O.P. informed these complainants that their case has been transferred to Dommalur II phase for allotment and requested to pay Rs.1,24,500/- in 4 equal installments. Complainants by their letter dated 8/10/1993 informed O.P. that an amount of Rs.45,000/- was left out and requested O.P. to make necessary entries. Since 23 years O.P. failed to allot the sites. Hence complainants requested O.P. to refund the amount on 17-12-2007. Complainant sent another letter. O.P. in its reply dated 7/1/2008, informed the complainant that they will refund the amount. On 23-3-2011 complainant got issued notice requesting O.P. to refund the amount with interest at 15% p.a. within 10 days. There was no response. Hence complainants felt deficiency in service against O.P. Under these circumstances they are advised to file these complaints and sought for the relief accordingly. For the convenience sake the amount paid by each complainant, date of payment, receipt No., date of legal notice are mentioned in the table below. | Complaint No. | Amount Paid | Date of Payment | Receipt No. | Date of Notice | C.No.746/2011 | 5,530-00 10,000-00 10,000-00 10,000-00 10,000-00 950-00 45,000-00 0,30,000-00 1,21,480-00 | 12-10-81 16-02-82 08-07-82 20-09-82 03-11-82 18-04-90 30-01-93 21-10-93 | 7524 8485 9243 9401 9527 0589 7198 8470 | 23-03-2011 | C.No.747/2011 | 5,530-00 10,000-00 10,000-00 10,000-00 10,000-00 950-00 45,000-00 91,480-00 | 12-10-81 16-02-82 31-05-82 20-09-82 03-11-82 18-04-90 30-01-93 | 7527 8487 9102 9484 9526 0588 7200 | 23-03-2011 | 3. On appearance OPs filed the version. The defence set out by O.P. in both the Complaints is almost identical and the same. According to O.P. it has applied for a land with Government of Karnataka to form the layout at Challagatta Village, Dommalur 2nd phase. The Government acquired certain lands and preliminary notification was issued, same was confirmed on final notification. Pursuant to order passed U/S.16(2) of Land Acquision Act, award passed by Spl. land acquisition officer. At that time one of the landlord has challenged the acquisition proceedings before Hon’ble High Court of Karnataka in W.P.No. 15625/1987. The Hon’ble High Court in its Common order dated 18/6/1991 allowed the Writ Petition. S.L.P. preferred by O.P. dismissed on 21/2/1995 with a direction to restore the land to the land owners. O.P. made hectic attempts to recover the amount with L.A.O. There was no proper response. On 17-12-2007 complainant requested O.P. to refund the amount. On 7-1-2008 O.P. gave the reply stating O.P. is not in a position to pay the interest will only refund the sital amount. O.P. has deposited a cheque dated 28-6-2011 for a sum of Rs.1,20,000/- in C.No.746/2011 and cheque for a sum of Rs.90,000/- in C.No.747/2011 towards refund of sital deposit. As per the Judgment in AIR 2010 SC 486 developmental authorities like O.P. need not pay interest for delay or failure of the projects. O.P. is not liable to refund share amount of Rs.500/- deposited on 12-10-1981. When society is under loss as per rules 12(2) of Karnataka Co-operative Society Act. O.P. is not liable to repay the share amount. There is no deficiency in service. Among other grounds O.Ps. prayed for dismissal of the complaints. 4. To substantiate the complaint averments in C.No.747/11 complainant filed his affidavit-evidence and in C.No.746/2011 the power of attorney holder of the complainant G.Krishna Murthy filed his affidavit evidence and produced copy of G.P.A. dated 5-5-1997, circulars, receipts, letters, notice reply, postal receipts and acknowledgements. Advocate for O.P. and Complainant produced citations. Heard oral arguments from complainant side and taken as heard from O.P. side. 5. In view of the above said facts, the points now that arises for our consideration in these complaints are as under: Point No.1:- Whether the complainants have proved the deficiency in service on the part of the OPs? Point No.2:- If so, whether the complainants are entitled for the reliefs now claimed? Point No.3:- To what Order? 6. Our findings on the above points are: Point No.1:- In Affirmative. Point No.2:- Affirmative in part. Point No.3:- As per final Order. R E A S O N S 7. At the outset it is not in dispute that each one of the complainant became the member of the O.P. a House Building Co-operative Society. O.P. assured to allot sites measuring 50 X 80 ft at their proposed Dommalur and Hosahalli layout. As per the circular of O.P. each complainant paid the amount to O.P. towards sital value as shown in the table. In C.No.746/2011 complainant paid Rs.1,21,480=00 on different dates starting from 12/10/1981 to 21/10/1993. In.C.No.747/2011 complainant paid Rs.91,480/- on different dates starting from 12/10/1981 to 30/1/1993. O.P. has issued the receipts acknowledging receipt of amount. Documents to that effect are produced. Now the grievance of each complainant is though O.P. has received the amount in the year 1993 itself failed to allot the sites as assured or to refund the amount. Hence complainant approached this Forum for the necessary reliefs. 8. As against the case of the each complainant the defence of O.P. that due to legal hurdles O.P. is unable to complete the project. But O.P. has failed to substantiate the said defence by producing documents. The land acquired for the purpose of formation of layout is repossessed by the land owners in view of the quashing of the land acquisition proceedings. So the sum and substance of the defence set out by O.P. is that it is unable to complete the project due to the quashing of the land acquisition proceedings. O.P. is ready to refund the sital value but not in a position to pay interest. 9. However after filing these complaints O.P. has refunded the sital value to the complainants. In C.No.746/2011 O.P. has paid Rs.1,20,000/- vide cheque dated 28/6/2011. In C.No.747/2011 O.P. has paid Rs.90,000/- vide cheque dated 28/6/2011. Each complainant has acknowledged the receipt of cheque on 14/7/2011. According to O.P. itself acquisition proceedings were quashed and S.L.P. preferred by O.P. before Hon’ble Supreme Court came to be dismissed on 21/2/1995. When O.P. was aware of the fact that it is unable to complete the project it could have been fair on its part to refund the sital value to the complainants. No such steps are taken. Retention of amount of for more than 17 years, so as to gain wrongfully amounts to deficiency in service on the part of O.Ps. 10. In support of his arguments counsel appearing for O.P. has relied on the decision reported in AIR 2010 S.C. 486. In the above matter the Hon’ble Supreme Court has observed that possession could not be delivered in time to respondents in respect of the plots on account of the order passed by the High Court of Punjab and Haryana directing maintenance of Status quo regarding possession. Hence it was found that delay was on account of order passed by the High Court. So the question of payment of interest for such delayed possession given to the respective respondents may not arise. 11. In the present proceedings acquisition proceedings were quashed by the Hon’ble High Court of Karnataka in W.P.No.15625/1987 and the said order was confirmed by the Supreme Court in the S.L.P. preferred by O.P. on 21/2/1995. Thereafter even after lapse of 16 years of order of Supreme Court O.P. has failed to refund the amount to the complainants. Hence the principles laid down in the above case cannot be made applicable to the present proceedings. O.Ps. have refunded the amount after 16 years and after filing these complaint, hence complainants are entitled for reasonable interest. In C.No.1194/09 of B.M.Samdaria Vs. Amar Jyothi House Building Co-Op. Ltd., this Forum vide its order dated 17/8/2009 directed O.P. to refund the amount along with interest at 12% p.a. and litigation cost of Rs.1000/-. The Complainant preferred Appeal No.2855/2009 against the said order. The Hon’ble State Commission vide its order dated 17/09/2010 modified the said order by enhancing only the rate of interest from 12% p.a. to 18% p.a. In view of the same, said order is made applicable to the present complaints. Hence Complainants are entitled on the amounts refunded interest at 18% p.a. and litigation cost of Rs.2000/- each. Awarding of interest itself can be taken as compensation. Accordingly we proceed to pass the following O R D E R The complaints are allowed in part. In complaint No.746/2011 OP is directed to pay interest at the rate of 18% p.a. on the deposit amount of Rs.1,20,000/- from the date of respective payments till the date of re7fund made i.e. 14/7/2011 and pay litigation cost of Rs.2000/- to the complainant. In complaint No.747/2011 OP is directed to pay interest at the rate of 18% p.a. on the deposit amount of Rs.90,000/- from the date of respective payments till the date of refund made i.e. 14/7/2011 and pay litigation cost of Rs.2000/- to the complainant. This order is to be complied within four weeks from the date communication of this order. This original order shall be kept in the file of the complaint No.746/2011 and a copy of it shall be placed in other connected file. Send the copy of this order to both the parties free of cost. (Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 24th day of October 2011.) MEMBER MEMBER PRESIDENT Rk. |
