C.P. Yogeshwar. V/S Smt. Nethra.S, - Consumer Court Case

Karnataka

Bangalore Urban

CC/09/2518

Smt. Nethra.S, - Complainant(s)

Versus

C.P. Yogeshwar. - Opp.Party(s)

31 Oct 2009

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. CC/09/2518

Smt. Nethra.S,						...........Appellant(s)
Vs.
C.P. Yogeshwar.						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

COMPLAINTS FILED: 27.10.2009 DISPIOSED ON: 22.02.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 22ND FEBRUARY 2010 PRESENT :- SRI. B.S. REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NOS.2517 & 2518/2009 COMPLAINT NO.2517/09 COMPLAINANT COMPLAINT NO.2518/09 COMPLAINANT Smt. Chaitra. S., W/o Vibhucharan, Aged about 29 years, R/at Bhagyashree, No.964/A, 15th Cross, Ramanujaru, Mysore 570 004. Smt. Nethra. S., W/o Raghunandan, Aged about 26 years, No.642, 3rd Cross, Kempegowda Extension, Banashankari 3rd Stage, 3rd Phsase, Bangalore 560 085. Advocate: Smt. Vidya Jahagirdar V/s. OPPOSITE PARTY C.P. Yogeshwar, Managing Director, Megha City Developers and Builders Pvt. Ltd., No.1, Chandraloka, 5th Cross, 2nd Main, Bangalore 560 009. Advocate: Sri R.Tharesh O R D E R SRI. B.S. REDDY, PRESIDENT Both these complaints are filed by the respective complainants U/s. 12 of the Consumer Protection Act of 1986, each seeking direction against the Opposite Party (herein after called as O.P) to pay an amount of Rs.74,450/- with interest at 18% p.a. from the date of payment i.e., 14.06.1995 till the date of realization and to pay compensation of Rs.2,00,000/- with litigation costs. 2. OP is common in both these complaints, the nature of reliefs claimed and the questions involved for determination are common. In order to avoid repetition of reasonings and duplication of facts; both these complaints are disposed of by this common order. 3. The case of the complainants to be stated in brief is that they became the members of the OP company and each paid an amount of Rs.48,000/- in monthly installments of Rs.800/- from 14.06.1995 to 07.02.2000 towards the sital value of the sites to be allotted. In addition to that they have also paid Rs.7,450/- towards registration fee, Rs.12,000/- developmental charges and Rs.3,000/- other miscellaneous charges. Thus the complainants claimed each for refund of Rs.74,450/- from OP. OP after receipt of the entire amount failed to register the sites or return the amount received. The original receipts are lost; hence the copies of the same are produced. The affidavits are filed regarding the loss of the receipts before the OP seeking with request letter for refund of the amount; OP has not refunded the amount. Inspite of several visits to its office, legal notice got issued, demanding to refund the amount was not replied. Hence the complainants felt deficiency in service on the part of the OP and filed the complaints seeking the reliefs stated above. 4. On appearance, OP filed the version contending that on account of certain legal hurdles, the layout could not be formed. The area where the proposed layout is it comes within the purview of Bangalore Mysore Infrastructure Corridor area Planning Authority (BMICAPA) and therefore the Revenue Department sought no objection from BMICAPA for conversion of agricultural land into non-agricultural purposes. BMICAPA has issued letter to the effect that the land in question cannot be converted for non-agricultural purposes. Further the OP purchased some conversion lands, but the said lands are notified by KIADB for the purpose of industrial development; preliminary notification dated 19.12.1998 is issued. In view of all these circumstances OP could not form layout and allot the sites. OP has made arrangement to refund the advance amount and has communicated to all its members to receive back their advance paid. The complainants instead of approaching the OP for refund approached this Forum by filing these complaints. OP is ready and willing to refund the advance amount paid by the complainants. The interest which the complainants seeking cannot be granted for the reasons that OP company as invested the amount received from the complainants towards the land and huge investment of OP is held up in Civil litigation and the acquisition proceedings and OP is not liable to pay the interest / damages as claimed by the complainants. The cause of action for filing the complaints arose in the year 2000. From the last date of payment of the installment, the complainants have not taken any steps within 2 years; hence the complaints are liable to be dismissed on these grounds. Hence it is prayed to dismiss the complaints. 5. The complainants in order to substantiate the complaint allegations filed affidavit evidence and produced the documents. OP also filed affidavit evidence. The arguments heard on both sides. 6. In view of the above said facts, the points now that arise for our consideration: Point No.1:- Whether the complainants have proved the deficiency in service on the part of the OP? Point No.2:- If so whether the complainants are entitled for the reliefs claimed? Point No.3:- To what Order? 7. We have gone through the pleadings of the parties, the documents produced and affidavit evidence, arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- Affirmative. Point No.2:- Affirmative in part. Point No.3:- As per final Order. R E A S O N S 8. At the outset it is not at dispute that the complainants became the members of the OP company and each of them paid an amount of Rs.48,000/- in monthly installments of Rs.800/- from 14.06.1995 to 07.02.2000 towards the sital value of the sites to be allotted. Further in addition to the sital value they have also paid Rs.4,450/- towards registration fee, Rs.12,000/- towards developmental charges and Rs.3,000/- towards other miscellaneous charges. Thus the complainants claims each for refund of an amount of Rs.74,450/- from the OP; as OP failed to register the sites or refund the amount received. 9. The affidavit evidence of these complainants and documents produced, clearly goes to show that OP has received entire sital value, failed to register the sites or even failed to refund the amount received. Thus the complainants felt deficiency in service on the part of the OP. OP is not denying the fact of receipt of the sital value and other charges claimed by these complainants. The main defence of the OP is that the proposed layout to be formed comes within the purview of Bangalore Mysore Infrastructure Corridor area Planning Authority (BMICAPA) and therefore the Revenue Department sought no objection from BMICAPA for conversion of agricultural land into non-agricultural purposes, but BMICAPA issued letters stating that the lands in question cannot be converted for non-agricultural purposes. Thus OP could not get the order of conversion in respect of agricultural lands. Further some of the lands which are converted for non agricultural purposes purchased by the OP are notified for the purposes of Industrial Development by KIADB and preliminary notification has been issued. Thus in view of all these legal hurdles OP could not form layout and allot the sites these complainants. In view of the same in our view the complainants are justified in demanding for refund of the amount paid. OP is ready and willing to refund the advance amount, but with regard to the interest claimed; it is contended that OP is not liable to pay interest and damages as huge amount is held up in the civil litigation and in the acquisition proceedings. 10. In our view OP without the lands being converted and layout formed has received the advance amount from these complainants and utilized the same for his own purposes by way of investment in purchasing the lands. The complainants cannot be deprived of interest on the amount paid; OP is liable to pay reasonable rate of interest at 12% p.a. 11. There is no merit in the contention that the complaints are barred by time. When OP has accepted the membership of the complainants and received the sital value in the year 2000; failed to complete the project in time and register the sites in favour of the complainants; the complainants will get a recurring cause of action. Under these circumstances the defence of the OP regarding limitation appears to be baseless. 12. We are satisfied that the complainants are able to prove the deficiency in service on the part of the OP. OP having retained the said amount without registering the sites and putting the complainants in possession of the sites for all these years accrued wrongful gain to self and caused wrongful loss to the complainants that too for no fault of them. Merely because the complainants have not produced the original documents; interest cannot be denied on the amount paid. OP is not denying the fact of receipt of the amount. Under these circumstances the complaints are to be allowed in part. Accordingly we proceed to pass the following: O R D E R Both the complaints allowed in part. OP is directed to refund Rs.74,450/- with interest at 12% p.a. from March 2000 till realization and pay a litigation cost of Rs.1,000/- to each of these complainants. This order is to be complied within four weeks from the date of its communication. Send the copy of this order to both the parties free of cost. This original order shall be kept in the file of the complaint No.2517/2009 and a copy of it shall be placed in complaint No.2518/2009. (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 22nd day of February 2010) MEMBER MEMBER PRESIDENT Snm:

COMPLAINTS FILED: 27.10.2009 DISPIOSED ON: 22.02.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 22ND FEBRUARY 2010 PRESENT :- SRI. B.S. REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NOS.2517 & 2518/2009 COMPLAINT NO.2517/09 COMPLAINANT COMPLAINT NO.2518/09 COMPLAINANT Smt. Chaitra. S., W/o Vibhucharan, Aged about 29 years, R/at Bhagyashree, No.964/A, 15th Cross, Ramanujaru, Mysore 570 004. Smt. Nethra. S., W/o Raghunandan, Aged about 26 years, No.642, 3rd Cross, Kempegowda Extension, Banashankari 3rd Stage, 3rd Phsase, Bangalore 560 085. Advocate: Smt. Vidya Jahagirdar V/s. OPPOSITE PARTY C.P. Yogeshwar, Managing Director, Megha City Developers and Builders Pvt. Ltd., No.1, Chandraloka, 5th Cross, 2nd Main, Bangalore 560 009. Advocate: Sri R.Tharesh O R D E R SRI. B.S. REDDY, PRESIDENT Both these complaints are filed by the respective complainants U/s. 12 of the Consumer Protection Act of 1986, each seeking direction against the Opposite Party (herein after called as O.P) to pay an amount of Rs.74,450/- with interest at 18% p.a. from the date of payment i.e., 14.06.1995 till the date of realization and to pay compensation of Rs.2,00,000/- with litigation costs. 2. OP is common in both these complaints, the nature of reliefs claimed and the questions involved for determination are common. In order to avoid repetition of reasonings and duplication of facts; both these complaints are disposed of by this common order. 3. The case of the complainants to be stated in brief is that they became the members of the OP company and each paid an amount of Rs.48,000/- in monthly installments of Rs.800/- from 14.06.1995 to 07.02.2000 towards the sital value of the sites to be allotted. In addition to that they have also paid Rs.7,450/- towards registration fee, Rs.12,000/- developmental charges and Rs.3,000/- other miscellaneous charges. Thus the complainants claimed each for refund of Rs.74,450/- from OP. OP after receipt of the entire amount failed to register the sites or return the amount received. The original receipts are lost; hence the copies of the same are produced. The affidavits are filed regarding the loss of the receipts before the OP seeking with request letter for refund of the amount; OP has not refunded the amount. Inspite of several visits to its office, legal notice got issued, demanding to refund the amount was not replied. Hence the complainants felt deficiency in service on the part of the OP and filed the complaints seeking the reliefs stated above. 4. On appearance, OP filed the version contending that on account of certain legal hurdles, the layout could not be formed. The area where the proposed layout is it comes within the purview of Bangalore Mysore Infrastructure Corridor area Planning Authority (BMICAPA) and therefore the Revenue Department sought no objection from BMICAPA for conversion of agricultural land into non-agricultural purposes. BMICAPA has issued letter to the effect that the land in question cannot be converted for non-agricultural purposes. Further the OP purchased some conversion lands, but the said lands are notified by KIADB for the purpose of industrial development; preliminary notification dated 19.12.1998 is issued. In view of all these circumstances OP could not form layout and allot the sites. OP has made arrangement to refund the advance amount and has communicated to all its members to receive back their advance paid. The complainants instead of approaching the OP for refund approached this Forum by filing these complaints. OP is ready and willing to refund the advance amount paid by the complainants. The interest which the complainants seeking cannot be granted for the reasons that OP company as invested the amount received from the complainants towards the land and huge investment of OP is held up in Civil litigation and the acquisition proceedings and OP is not liable to pay the interest / damages as claimed by the complainants. The cause of action for filing the complaints arose in the year 2000. From the last date of payment of the installment, the complainants have not taken any steps within 2 years; hence the complaints are liable to be dismissed on these grounds. Hence it is prayed to dismiss the complaints. 5. The complainants in order to substantiate the complaint allegations filed affidavit evidence and produced the documents. OP also filed affidavit evidence. The arguments heard on both sides. 6. In view of the above said facts, the points now that arise for our consideration: Point No.1:- Whether the complainants have proved the deficiency in service on the part of the OP? Point No.2:- If so whether the complainants are entitled for the reliefs claimed? Point No.3:- To what Order? 7. We have gone through the pleadings of the parties, the documents produced and affidavit evidence, arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- Affirmative. Point No.2:- Affirmative in part. Point No.3:- As per final Order. R E A S O N S 8. At the outset it is not at dispute that the complainants became the members of the OP company and each of them paid an amount of Rs.48,000/- in monthly installments of Rs.800/- from 14.06.1995 to 07.02.2000 towards the sital value of the sites to be allotted. Further in addition to the sital value they have also paid Rs.4,450/- towards registration fee, Rs.12,000/- towards developmental charges and Rs.3,000/- towards other miscellaneous charges. Thus the complainants claims each for refund of an amount of Rs.74,450/- from the OP; as OP failed to register the sites or refund the amount received. 9. The affidavit evidence of these complainants and documents produced, clearly goes to show that OP has received entire sital value, failed to register the sites or even failed to refund the amount received. Thus the complainants felt deficiency in service on the part of the OP. OP is not denying the fact of receipt of the sital value and other charges claimed by these complainants. The main defence of the OP is that the proposed layout to be formed comes within the purview of Bangalore Mysore Infrastructure Corridor area Planning Authority (BMICAPA) and therefore the Revenue Department sought no objection from BMICAPA for conversion of agricultural land into non-agricultural purposes, but BMICAPA issued letters stating that the lands in question cannot be converted for non-agricultural purposes. Thus OP could not get the order of conversion in respect of agricultural lands. Further some of the lands which are converted for non agricultural purposes purchased by the OP are notified for the purposes of Industrial Development by KIADB and preliminary notification has been issued. Thus in view of all these legal hurdles OP could not form layout and allot the sites these complainants. In view of the same in our view the complainants are justified in demanding for refund of the amount paid. OP is ready and willing to refund the advance amount, but with regard to the interest claimed; it is contended that OP is not liable to pay interest and damages as huge amount is held up in the civil litigation and in the acquisition proceedings. 10. In our view OP without the lands being converted and layout formed has received the advance amount from these complainants and utilized the same for his own purposes by way of investment in purchasing the lands. The complainants cannot be deprived of interest on the amount paid; OP is liable to pay reasonable rate of interest at 12% p.a. 11. There is no merit in the contention that the complaints are barred by time. When OP has accepted the membership of the complainants and received the sital value in the year 2000; failed to complete the project in time and register the sites in favour of the complainants; the complainants will get a recurring cause of action. Under these circumstances the defence of the OP regarding limitation appears to be baseless. 12. We are satisfied that the complainants are able to prove the deficiency in service on the part of the OP. OP having retained the said amount without registering the sites and putting the complainants in possession of the sites for all these years accrued wrongful gain to self and caused wrongful loss to the complainants that too for no fault of them. Merely because the complainants have not produced the original documents; interest cannot be denied on the amount paid. OP is not denying the fact of receipt of the amount. Under these circumstances the complaints are to be allowed in part. Accordingly we proceed to pass the following: O R D E R Both the complaints allowed in part. OP is directed to refund Rs.74,450/- with interest at 12% p.a. from March 2000 till realization and pay a litigation cost of Rs.1,000/- to each of these complainants. This order is to be complied within four weeks from the date of its communication. Send the copy of this order to both the parties free of cost. This original order shall be kept in the file of the complaint No.2517/2009 and a copy of it shall be placed in complaint No.2518/2009. (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 22nd day of February 2010) MEMBER MEMBER PRESIDENT Snm: