COMPLAINTS FILED ON: 03.07.2010

DISPOSED ON: 28.06.2011

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

28^TH JUNE 2011

  PRESENT:-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER

                     SRI.A.MUNIYAPPA                          MEMBER 

COMPLAINT No. 1502/2010 

COMMON ORDER

SRI. B.S.REDDY, PRESIDENT

The complainants filed these complaints U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Parties (herein after called as O.Ps) to allot the sites and execute the sale deed in favour of the complainants and to pay compensation of Rs.10,000,00/- to each with costs of the proceedings on the allegations of deficiency in service on the part of the OPs. 

OPs are common in these complaints, points for consideration, the relief claimed being the same, in order to avoid the repetition of facts and multiplicity of reasoning’s, these complaints stand disposed of by this common order.

The brief averments, as could be seen from the contents of         these complaints, are as under:

2.   The OP-1 is a registered association. OP2 is the President of the said Association. These complainants became the members of the Housing Scheme introduced by OPs under the project “BEML, BHIM RAO NAGAR”, Residential Layout at Raghuvanahalli, Bangalore-560 049. The complainants applied for residential sites measuring 30 X 40Sq. Ft., each by making certain payments for allotment of the sites. The OPs failed to keep up their promise as failed to allot the sites and execute the sale deeds in favour of these complainants. The complainants got issued legal notice calling upon the OPs to execute the sale deeds. But OPs replied that no sites are available in the said layout.  The complainants claims that even after lapse of 15 years of receipt of sale consideration the act of OPs in not allotting the sites and executing the sale deeds clearly amounts to deficiency of service on the part of the OPs. The total cost of each site measuring 30 X 40 Sq. Ft., was of Rs.67,200/-.

3.   The amounts stated to have deposited by each of the complainants is as under:-

The complainants felt deficiency of service on the part of the OPs and approached this Forum with these complaints seeking the relief’s stated above.

4.   On appearance, OPs filed joint version by taking identical contention in all these complaints. It is admitted that OPs agreed to provide residential sites to the complainants in their proposed project and it is also admitted that each of these complainants have paid the amounts for allotment of sites. It is contended that the complainants ought to have approached the civil court if they had any grievances against the OPs. The OPs association is running on ‘no profit no loss’ basis, the OPs allotted sites to its members provisionally before forming the layout who have paid the part of the payment. After accepting the provisional allotment the members paid the balance amount within the stipulated period, most of these complainants did not come forward the deposit the balance sital value, their provisional allotments came to be cancelled with prior notice. The sites proposed to be sold to the complainants came to the allotted to the next needy member (First come first serve basis). The complainants were issued notice demanding to pay the balance sital value, they have not shown any interest, the provisional allotment was cancelled and the said sites were allotted and registered in the name of of needy members. No sites are available in the layout. The OPs association issued a General Bulletin dt.08.11.2001 informing the members that no intermediate sites available in the first phase and the availability of corner sites and eligible members requested to opt for the same immediately. The OPs association while executing the sale deeds in favour of its members informed the members to pay the development charges. The members who have not been allotted with the sites, OP decided to refund the amount on the request of the members by deducting of 10% of the deposit amount to meet the expenses incurred. The complainants have not approached OP at any point of time seeking refund of the amount nor have they given any representation till Aug-2010. The deposit amount received from each of the members was meant for the association to invest the same for acquiring lands. The amount collected from the members is not kept in any fixed deposit to earn interest. The deposit amount paid by the members has already been invested by the association in the form of payment of advance to the land owners and for formation of layout, the said amount paid by these complainants is not conditioned by repayment with interest. OP association is not liable to refund the advance amount with interest. From the year 1999 these complainants never approached the OP for payment of remaining sital valued and the registration charges nor seeking for refund of the sital deposit even though the OPs have sent many letters to the complainants. The complainants have not issued any notice before these complaints which is a condition precedent to file the complaints. There is no deficiency in service on the part of the OPs. Ops are not liable to pay any compensation to the complainants. The complaints are barred by limitation. Hence, it is prayed to dismiss the complaints with exemplary costs.

5.   The complainants in order to substantiate the complaints averments each of these complainants filed their affidavit evidence and produced documents. The Assistant Secretary of OPs association filed affidavit evidence in support of defence version and produced documents. The documents referred to as EX.R1 to R14 in the affidavit are not marked and only some documents produced, not all the documents. The complainants produced the copy of the Order dt.19.06.2008 in Revision Petition No.3558 to 3561/2008 of the Hon’ble National Consumer Disputes Redressal Commission in respect of the same project against same OPs, wherein the Hon’ble National Commission confirming the orders of the State Commission with regard to refund of the amount with interest at 18% p.a. modified the compensation payable from Rs.25,000/- to Rs.2,00,000/- in respect of the complainants who have paid the full consideration for the sites. Further produced copy of the orders passed in complaint No.1023/2009 on the file of 4^th Additional District Forum allowing the complaint directing. OPs to allot the site and copy of the order in Appeal No.3333/2009 on the file of Hon’ble State Commission, wherein the order of the District Forum was confirmed and Appeal was dismissed.

6.OPs produced copies of orders in Special Leave Petition Nos.7825/2010 to 7828/2010, 11330 to 11333/2009, the copy of the orders in Revision Petition No.117/2010, copy of the Orders in S.L.P No.16727/2010, the copy of the Order in Revision Petition No.720/2010 Hon’ble National Commission, copy of the sale deed dt.30.06.2010.

7. Arguments on both sides heard. Points for consideration are:

       Point No.1:- Whether the complainants proved the          

                          deficiency in service on the part of

                            the OPs?

Point No.2:- Whether the complainants are entitled

                   for the reliefs now claimed?

        Point No.3:- To what Order?

8.  We record out findings on the above points:

Point No.1:- Affirmative.

Point No.2:- Affirmative in part.

Point No.3:- As per final Order.

 R E A S O N S

9.    Series of complaints filed against the same OPs in respect of the same project are already disposed-off earlier by 3^rd and 4^th Additional District Forums. The appeals preferred against those orders are also disposed-off by the Hon’ble State Commission. The contentions taken in these complaints in the defence version were the contention taken in the earlier complaints. The defence regard in the limitations and jurisdiction of the Forum to entertain the complaints are already decided in the earlier complaints against the OPs.

10.   These complainants became the members of the OPs association under their project “BEML, BHIM RAO NAGAR”, Residential Layout at Raghuvanahalli Village, in Bangalore South Taluk and applied for the allotment of the sites by depositing the amounts as shown in the above chart. OPs association failed to allot and register the sites in favour of these complainants. The complainants were constrained to cause a legal notice to the OPs association to execute the sale deeds. But OPs failed to fulfill its obligation. Thus the complainants felt deficiency in service on the part of the OPs and approached this Forum for the relief’s stated above.

11.   OPs in their version admitted that these complainants became the members and applied for the sites by paying the amounts as shown in the above chart. The main defence that the complaints are barred by limitation cannot be accepted for the reasons that there is no any clear cut refusal on the part of the OPs in allotting the sites. In view of the same, as per the principles laid down in 2005 CTJ NCDRC 499 Julite Quadrej V/s Miss. Malathi Kumar, wherein it was held that when there is neither sale nor refund of money, nor out right refusal, the cause of action remains continuous. For the notices issued before filing these complaints OPs not complied the demand. Therefore, the cause of action arose to these complainants to file the complaints and the complaints are filed within the period of two years from the date of cause of action.

12.   Each of these complainants deposited the sital value as shown in the chart above, except the complainants in complaint No.1510/2010 and complaint No.1522/2010, the other complainants have deposited part of the sital value only those two complainants have deposited entire sital value of Rs.67,200/-. OPs not produced any materials to show that demand notice to pay balance amounts is served on these complainants. The act of OPs neither in allotting the site and registering the same in favour of the complainants nor refunding the amount with interest amounts to deficiency in service on their part.

13.   The complainants have sought the reliefs, directing the OPs to allot the sites measuring 30 X 40 feet and to execute the sale deeds in favour of each of these complainants. The defence of the OPs is that no sites are available and OPs are unable to allot any site and execute the sale deeds. OPs produced the copy of the layout plan and the list of site holders to show that all the sites totally 711 formed in the layout has been allotted and registered in favour of the allottees. The complainants who have paid the part of the sital value failed to pay the balance sital value and the complainants who have paid the entire sale consideration failed to approach the OPs and get the sale deeds executed. As there are no sites available in the layout formed, OPs cannot be directed to allot the site and execute the sale deeds in favour of the complainants.

14.   The learned counsel for the complainants produced the copy of the orders passed in complaint No.1023/2009 on the file of 4^th Additional District Forum and copy of the orders in appeal No.3333/2009 on the file of Hon’ble State Commission, wherein the OPs were directed to allot the site in the layout in favour of the complainant and the same is being confirmed by the Hon’ble State Commission. On the basis of the said order, it is contended that the sites are available in the layout, OPs are to be directed to allot the sites and execute the sale deeds in favour of these complainants. In our view except that complaint No.1023/2009 in all other complaints, OPs are directed to refund the amount with interest and pay compensation. In that complaint also the complainant was called upon to get the registered sale deed by paying the registration fee as he had paid the entire sale consideration, and further the complainant was called upon to submit the Cast Certificate but there was no material to show that communication was received by the complainant considering the facts and circumstances and there was no defence with regard to non-availability of sites, under such circumstances, OPs were directed to allot the site and execute the sale deed. In these complaints only two of the complainants have deposited the entire sital value, the other complaints have deposited part of the amount from time to time. In complaint No.1511/2010 the complainant has produced the receipts only to an extent of Rs.34,100/- as such is entitled for refund of that much of amount and other complainants are entitled for refund of the deposited amounts. OPs cannot be directed to allot the sites and execute the sale deeds in favour of these complainants, without there being any material that sites are available in the layout.

15.   The complainants have produced copy of the letters addressed by OPs to its members dt.26.09.2006 wherein it is informed that one Shanthi Kumar, the then President of the association has allotted the sites in favour of his Daughter and son (Serial Nos.9 and 10) and other relatives at serial Nos.11to 14 and copies of the sale deeds are produced to show that fraudulently the sites are allotted and registered sale deeds are executed by the then President. Thus, it is contended that the sites are sill available in the said layout as those sale deeds are to be cancelled. In our view, unless the sale deeds executed in favour of the members are cancelled on the ground of fraudulent transactions, it cannot be said that sites are available to allot the same to the complainants. Under these circumstances, we are of the view that the complainants are not entitled for the reliefs directing the OPs to allot the sites and execute the sale deeds.

16.   The Hon’ble National Commission in Revision Petition Nos.3558/2008 to 3561/2008 enhanced the compensation up to Rs.2,00,000/- to the complainants we have paid the full consideration and Order of the District Forum and State Commission allowing the complaints with direction to refund the amounts with interest at 18% p.a. was confirmed. OPs have filed SLP No.11330/2009 to 11333/2009 before the Hon’ble Supreme Court and the matters are pending. The Order of the National Commission awarding compensation of Rs.2,00,000/- to the members who have paid the full sital value is to be followed by this forum. So far as the complainants who have paid the part of the sital value are to be awarded compensation of Rs.1,00,000/-, as the same amount was awarded by the 3^rd Additional District Forum in Complaint No.363/2009. Accordingly we proceed to pass the following:     

O R D E R