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

DATED 4^th DAY OF APRIL 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This complaint has been filed under Section 35 of C.P.Act, 2019 (herein under referred as an Act) for the following reliefs against the OP:-

(a) To pay a sum of Rs.7,80,000/- with interest at the rate of 18%.

(b) To compensate towards the legal costs by imposing penalty interest at the rate of 18%.

(c) To pay a sum of Rs.2,00,000/- towards damages for the false assurances and fraudulent and unfair trade practice.

(d) Pass such other order.

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

The complainant wanted to purchase site measuring 50 x 80 ft. from the OP and paid Rs.1,50,000/- on 18.09.2002, Rs.2,00,000/- on 06.03.2003, Rs.2,30,000/- on 19.04.2004 and Rs.2,00,000/- on 30.08.2004 as an employee of BEML and member of OP society.

3. The complainant came to be retired on 08.02.2007 and there was no communication from the OP about allotment of site. On 11.09.2017, 04.06.2018, 10.03.2020 and 15.02.2021, he made requests by addressing the letter to the OP to refund his amount.  Despite legal notice dated 03.05.2021, the OP failed to return his amount of Rs.7,80,000/-.  This act of the OP amounts to deficiency of service.  Hence, this complaint for refund of the amount, compensation and interest.

4. In response to the notice, the OP appears and files version.  The OP contends that the President is not person to sue or to be sued on behalf of the OP society in view of Section 29-G(4)(j) of KCS Act.  The only Chief Executive Officer of the Co-operative Society is the person to sue and to be sued.  The complaint is mis-conceived and not tenable.  The OP is tried to allot the site by forming the layout.  But, BDA has acquired entire lands at 9^th Stage by issuing a notice.  The complaint is barred by limitation.  The Government of Karnataka has taken decision during 2011 that 40% of the development land shall be given to OP and remaining 60% of the developed land shall be given to the BDA.  Therefore, no deficiency of service on the part of OP.  Therefore, OP requests to dismiss the complaint.

5. The complainant has filed affidavit evidence and relies on 17 documents.  The OP has filed affidavit evidence of its President and relies on 4 documents.  Heard the arguments and perused the records. 

6. The following points arise for our consideration:-

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

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

       Point No.1:  In the affirmative.

      Point No.2:- Partly in the affirmative.

      Point No.3: As per final orders

REASONS

8. Point Nos.1 and 2:  The OP referring Section 29-G(4)(J) of Karnataka Co-operative Societies Act contends that the Executive Officer of the society shall be sue and to be sued and complaint against the OP represented by the President is not maintainable.
9. The OP has referred above provision by producing Ex.R.1 and Ex.R.2.  We carefully perused this provision which contemplate that Chief Executive shall be the Chief Administrative Officer of the society and shall be sued and his authorized person who signed the documents for the society.  But, OP has not produced any documents to show that there is a post of Chief Executive Administrative Officer of the OP society.  Therefore, this provision is not applicable.
10. The payment of Rs.7,80,000/- by the complainant on different dates is not in dispute.  The documents produced by the complainant are not in dispute.  Ex.P.1 is the application submitted by the complainant for allotment of site measuring 50 x 80 ft. along with Rs.1,50,000/- for which OP has issued the receipt as per Ex.P.2.  The documents of payment of subsequent amount of Rs.2,00,000/-, Rs.2,30,000/- and Rs.2,00,000/- has been proved through Ex.P.3 to Ex.P.7.  The complainant by issuing Ex.P.8 to Ex.P.15 from time to time called upon the OP to allot site or refund the amount.  Despite receipt of legal notice, the OP neither allotted the site nor refunded the amount.  It is true that the complainant made payment between 2002 to 2004.  But, the complainant made repeated requests either for allotment of the site or for refund of the amount.  The OP has taken the contention that the government issued notice in the year 2011 that only 40% of the area acquired was available for the OP.  Despite receipt of Ex.R.4, the OP neither allotted the site nor refunded the amount of Rs.7,80,000/-.
11. The payment of amount of Rs.7,80,000/- and non-refund of Rs.7,80,000/- is not in dispute.  The Op has set up untenable contention to refuse to refund of Rs.7,80,000/-.  The non-refund of Rs.7,80,000/- amounts to deficiency of service on the part of the OP.
12. The complainant seeks interest at 18% p.a. from the date of payment till realization and Rs.2,00,000/- as compensation.
13. The counsel for the OP placing the reliance on the order of Hon’ble State Commission in Appeal No.659/2021 and order of this Commission in complaint No.691/2020 vehemently argues that even after this Commission chooses to award interest, the interest at 18% cannot be awarded.  The complainant cannot claim interest as well as compensation.  The claim of the complainant interest at 18% p.a. is exorbitant.  In view of the above two orders, complainant is entitled to interest at 6% p.a. on Rs.7,80,000/- from the date of respective payment till realization.  It is necessary to impose a time limit for refund of this amount.  The interest is awarded as compensation.  Therefore, complainant is not entitled to separate compensation.
14. Point No.3:- Having regard to the discussion referred above, the complaint is requires to be allowed in part.  The OP is liable to refund Rs.7,80,000/- with interest at 6% p.a. from the date of respective payment till realization and Rs.10,000/- towards cost of litigation.  If the OP failed to refund Rs.7,80,000/- with interest within 30 days, the OP is liable to pay interest at 9% p.a. on Rs.7,80,000/- after expiry of 30 days till realization. We proceed to pass the following 

  O R D E R

1. The complaint is allowed in part.
2. The OP shall refund Rs.7,80,000/- with interest at 6% p.a. from the date of respective payment till realization with cost of litigation Rs.10,000/- to the complainant. 
3. The OP shall comply this order within 30 days from this date, failing which, the OP shall pay interest at 9% p.a. on Rs.7,80,000/- after expiry of 30 days till realization.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 4^th April, 2022)

Documents produced by the Complainant which are as follows:-

Documents produced by the OP which are as follows:-