CC No.1522/2018                                      Date of filing:15.09.2018

      Date of Disposal:09.07.2019

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE9^thDAY OF JULY2019

CONSUMER COMPLAINT NO.1522/2018

PRESENT:

Sri.Venkatasudarshan  D.R.  B.Com,LL.M.,              …. PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.                              ….       MEMBER

COMPLAINANT:

Sri.K.Dasaradha Ramaiah

S/o K.Papaiah,

Aged about 49 Years,

Flat No.L3-323, Sowparnika Swastika Phase-1,

Bidaraguppe, Attibele,

Sarjapura Main Road,

Bangalore-562107.

(By Sri.Vittal B.R., Advocate)          

 V/s

OPPONENT:

Karnataka Telecom Department Employees,

Co-Operative Society Limited,

No.30/1, 2^nd Floor Leeman’s Complex,

Opposite Kareem Towers,

Cunningham Road,

Bangalore-560002.

Represented by Authorized Signatory.

(Ex-parte)

 = = = = = = = = = = = = =

Written by Sri Venkatasudarshan D.R., President

          ******

//ORDER//

This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant Sri.K.Dasaradha Ramaiah against M/s Samsung India Karnataka Telecom Department Employees Co-Operative Society Limited, Bengalurupraying for a direction todirect the Opponent to pay simple interest at 15% p.a., on the sums and from the period mentioned in the prayer column of the complaint.

2. The brief facts of the case of the complainant as per the complaint are that the Complainant being an Ex-Servicemanafter retiring from Defence services wanted to settle at Bengaluru.  On making bonafide search, he came to know about the project “AYUSHMAN BHAVA” floated by the Opponent, where sites were allotted.  The total cost of the site measuring 30 X 40 feet was Rs.6,00,000/-.  The said amount was payable at Rs.2,40,000/- and three installments of Rs.1,20,000/- each.  The Complainant was also informed by the Opponent on 04.12.2006 that the sites would be allotted by the Year 2009.  The Complainant became the Associate member of the Opponent Society by paying Rs.1,020/- towards membership fee with serial number 23393 dt.02.12.2006 and thus become eligible for allotment of a site.  He approved for site allotment also.  He sought site measuring 30 X 40 feet.  He also paid Rs.2,41,020/- on 02.12.2006 by means of a cheque drawn in favour of the Opponent.  This is towards the membership and 1^st installment. 

3. It is the further case of the Complainant that on being communicated, he paid installment amount of Rs.1,20,000/- by means of cheque dated.19.06.2007.  The next installment of Rs.1,20,000/- was also paid by cheque dated.22.12.2007.

4. The Complainant who has thus paid a sum of Rs.4,80,000/- in all kept himself waiting on the assurance that the site would be allotted in 2009.  After making the payment the Complainant visitedthe construction site several times and found that no constructions progress had ever taken.

5. After getting to know that there is no sign of allotment of site, the Complainant visited the office of the Opponent on 04.06.2016 and requested for refund of Rs.4,80,000/- with interest.  The Opponent expressed readiness to pay back the principal only but not interest and subject to the condition that the Complainant should surrender all his rights, claim and interest.  He was also told that if he was not ready to accept that condition he would get nothing. Therefore the Complainant being under distress and under the fear of losing his hard money agreed to the condition and received cheque from the Opponent only for the principal sum.  This according to the Complainant is an unfair trade practice.  Hence prays for granting the relief claimed by the Complainant, in the complaint. 

6. Along with the Complaint, the Complainant has filed an application u/s 24(A) of the Consumer Protection Act praying to condone the delay in filing the complaint.  This application was accompanied by the affidavit of the Complainantin which he has set out in detail about the cause for delay.

7. This Forum vide order in the order sheet dated 16.10.2018 has allowed the application filed for condonation of delay and condoned the delay and admitted the complaint. 

8. After admitting the complaint, the notice was ordered to be issued to the opponent.   Though the notice was served on the Opponent, the Opponent did not appear.  Hence, the Opponent was placed ex-parte vide order sheet datd.27.11.2018 and posted the case for Complainant evidence.  

9. The affidavit evidence of the Complainant was filed.

10.   Heard the arguments of the Advocate for the Complainant who filed written arguments also.

11. The points that arise for our determination are:-

(1). Whether the complainant proves that the Opponent had adopted unfair trade practice and also committed an act of deficiency in service ?

(2)Whether the complainant is entitled for the reliefs sought ?

(3)What order?

12. Our findings on the above points are:-

Point No.1:-In the Affirmative

Point No.2:-Partly in the Affirmative

Point No.3:- As per the final order for the following.

13. POINT NO.1:-The Complainant is an Ex-Serviceman.  He retired from defence service and decided to settle at Bengaluru.  He wanted to purchase a site.  On coming to know that the Opponent cooperative society is forming a layout and allotting the sites under the project called “AYUSHMAN BHAVA”.  He went there and applied for a membership and also sought allotment of a site having a dimension of 30 X 40 Feet.   It was stated that the total cost of the site was Rs.6,00,000/- the same was payable in installments.  The 1^stinstallment was Rs.2,40,000/- and the subsequent three installments were Rs.1,20,000/- each.  Having accepted the proposal, the Complainant had applied for membership by paying a sum of Rs.1,020/- together with application as per Annexure A.  He has also produced the copyof the receipt dt.04.12.2006 issued by the Opponent for having received Rs.1,020/- towards membership.  The copy of the application form for purchase of a site has also been produced and marked as Annexure-B.  The copy of the cheque for a sum of Rs.2,41,020/- which comprises of the 1^st installment of Rs.2,40,000/- and membership fee of Rs.1,020/- was also issued by the Complainant to the Opponent which is at Annexure-C.Annexure-D, D1, Annexure-E and E1 are the notices issued by the Opponent to the Complainant to make payment of 2^nd and 3^rd installments and also the corresponding receipts issued by the Opponent for having received the same.  Thus in all the Complainant claims to have paid Rs.4,80,000/- to the Opponent.  That was by 22.12.2007.  It is the case of theComplainant that to his surprise, the Opponent has not taken any positive step towards allotment of the site.    When there was no sign of getting a site from the Opponent, he thought that he could not realize his dream of building a house, so he decided to cancel his allotment and withdraw the amount.  Accordingly, he requested the Opponent to refund the sum of RS.4,80,000/- along with interest.  All these things have been clearly spoken to by the Complainant on oath in his affidavit evidence which have remained unchallenged.

14. .  It is here that the Opponent seems to have played mischief.  The Opponent having enjoyed the benefit of having a huge sum of Rs.4,80,000/- belonging to the Complainant with them should have been fair enough to return the said amount along with reasonable rate of interest so as to compensate the Complainant for the loss sustained.  This is what is expected as a gentlemen behavior or conduct from a person of ordinary prudence.  In this case, instead of conducting in such manner the OpponentSociety seems to have threatened the Complainant  of not to repaying even the principle if he were to insist interest.  Thus the Opponentcoerced the Complainant to accept only the principal amount.  It is but natural for any person like the Complainant who is in such a situation to accept the principal amount at leastmuch against his conciousas he would be under the fear of losing that also if he were to insist for interest from the Opponent which is a mighty institution.  Therefore without there being any alternative the Complainant deposes on oath in his affidavit evidence that he was compelled to receive only Rs.4,80,000/-.So, now the claim of the Complainant is only to the extent of the interest component on the said sum.  Now the point for consideration is whether the act of the Opponent amounts to unfair trade practice and also the deficiency in service. 

15. In this case, it has been the specific contention of the Complainant and also his deposition on oath that

“On 4^thJune 2016, visited office of the opponent along with a typed letter and requested for refund of the money paid in the amount of rs.4,80,000/- (rupees four lakhs eighty thousand only) along with interest for the entire period during which the opponent was holding the amount.The opponent informed that they were willing to pay actual amount without interest with a condition that all rights be surrendered.The opponent being in a superior position stated that only the principal amount would be paid and if that condition was not accepted, then nothing would be paid and will have to return empty handed.Thus being under distress and under fear of losing the hard earned money agreed and surrendered all the original documents.The opponent did not accept the copy of the typed letter instead provided a form to be filled with instruction that the copy of the form would not be given”.

16. The above averments made in the complaint and also in the affidavit evidence have remained unchallenged.  The Opponent who was a served with a notice has not appeared before the Forum to contest the case by filing version.  Non-filing of a written version by the Opponent amounts to admission of allegations made in the complaint.  This principle has been laid down in a decision reported in 2018 (1) CPR 314(NC) in M/s Singla Builders and PromotersLimited V/s Aman Kumar Garg.  So it remains established that the Opponent had coerced the Complainant to accept only the principal amount of Rs.4,80,000/- without interestcomponent by threatening that if the Complainant were to insist for interest also he would be losing the principal amount too.  This naturally, as already said keeps a person under fear of losing his hard earned money of Rs.4,80,000/-.  If he insists for interest, this sum of Rs.4,80,000/-  is certainly a huge amount for a Complainant who is a retired person being an Ex-Serviceman.  Therefore, he was constrained to accept at that moment to receive that sum of RS.4,80,000/-.  This conduct of Complainant in our view could be considered as a natural human conduct of any person under such any circumstances.  In this context, we may refer to decision of the Hon’ble National Commission in case No.522/2017 between “Vivek Kishorchandra Mehta and another V/s Puranik Builders Private Limited and another decided on 03.10.2018relied on by the Complainant wherein it is held:

“So far as the question of protest by the Complainants while receiving the amount is concerned, any protest on their part would have denied them the benefit of receiving the amount of refund and the prudence at that time demanded that they should first accept the refund and later claim for interest.Hence, both the grounds on which the complaint has been dismissed by the State Commission are not sustainable”.

17. In the light of the above it can be stated that the conduct of the Opponent in refusing to pay interest on the said sum of RS.4,80,000/- cannot be considered as a good trade practice.  It is unfair on the part of the Opponent to deny interest to the Complainant on the said sum.  This is because the Opponent had with it in its custody the said sum and enjoyed by using it for its developmental purposes and necessarily must have augmented income from that amount.  On the other hand the Complainant who is an Ex-Serviceman was denied or deprived of enjoying his hard earned money as the same was locked with the Opponent who had assured the Complainant of a good site to build a house, but failed to keep up its assurance.  When such being the case, it was the bounden duty on the part of the Opponent to pay interest to the Complainant at reasonable rate. Moreso whenthere is no document to show that the said sum of Rs.4,80,000/- by the Complainant was in full and final settlement of his claims.  Instead the Opponent by denying the interest wanted to enrich at the cost of the Complainant.   This certainly amounts to an unfair trade practice.  This also results in deficiency of service.  Accordingly, we answer point No.1 in the affirmative and infavouar of the Complainant.

18.   The finding on the point NO.1 will take us to consider as to what relief the Complainant is entitled.  The Complainant has sought for interest on the sums invested by him with the Opponent and also to pay compensation of Rs.5,00,000/- and Rs.1,50,000/- towards cost of litigation.

19. The discussion made above clearly shows that the Opponent is bound to pay interest to the Complainant.  This is plainly because the Opponent has retained a huge sum of Rs.4,80,000/-.  Considerably fora long time and got enricheditself  at the cost of the Complainant.  Hence, the Opponent is liable to pay interest.   In so far as that interest component is concerned it is relevant to refer to the judgment of the Hon’ble Supreme Court in case No.1598/2005 in Alok Shankar Pandey V/s Union of India and others decided on 15.02.2007 relied on by the ComplainantII (2007)CPJ 3 (SC) wherein it has been held:

“It may be mentioned that there is misconception about interest.Interest is not a penalty or punishment at all, but it is the normal accretion on capital.For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount.Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period.Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B”.

“In the above case that if the money is held by the Opposite Party for some time then they are liable to pay the interest to the Complainant”.

20. Keeping the above principles in mind, we deem it fit and proper to award interest at 15% p.a. on the said sum of Rs.4,80,000/- to be calculated from the dates on which each installment was received till 04.06.2016, the date on which the Opponent made payment of Rs.4,80,000/-.

21. Further coming to the aspect of payment of compensation to the Complainant.   To assess the compensation payable to the Complainant, to the factors to be taken into account are the loss and suffering coupled with pain undergone by the Complainant.  This assessment could be made looking at the conduct of the Opponent.  In this case, the conduct of the Opponent in refusing to pay interest on the said sum of Rs.4,80,000/- which belongedto Complainant and invested with the Opponent must have caused lot of pain and suffering, besides the actual financial loss.  It is his hard earned money invested with the Opponent with a hope of getting site allotted.  But the Opponent has disappointed him.   All these must have put the Complainant to lot of mental agony and harassment.  Taking all these aspects into account we deem it fit and proper to award Rs.15,000/- towards compensation for mental agony caused by the Complainant.

22. This is a case filed in the Year 2018.  Before filing this case, the Opponent has made the Complainant to run from pillar to post to get back his money.  The refusal to pay interest has been now challenged by the Complainant by filing this complaint in the Year 2018 through an Advocate and has been prosecuting this case in order to take the same to the logical end.   Necessarily the Complainant must have incurred expenses.  Therefore, we deem it fit and proper to award a sum of Rs.2,000/- towards cost of the litigation paid by the Opponent to the Complainant.   Accordingly, we answer point No.2 partly in the affirmative and in favour of the Complainant and proceed to pass the following order.

-:ORDER:-

The complaint filed by the complainant Sri.K.Dasaradha RamaiahU/s 12 of the Consumer Protection Act is allowed in part as under:

1. The Complainant is entitled to receive interest at the rate of 15% p.a. on the installments paid periodically.  Which is as under.

• Since the Complainant has already received the principal amount of Rs.4,80,000/- (Rupees Four Lakhs Eighty Thousand only) what is now payable by the Opponent to the Complainant is only the interest component on each one of the installment amount stated above, calculating at the rate of 15% p.a from the date mentioned in column No.2 till the date mentioned in the column No.5of the above table. 

2. The Complainant is also entitled to receive from the opponent a sum of Rs.15,000/- (Rupees Fifteen Thousand only) being compensation towards mental agony, loss and pain suffered by him and a further sum of Rs.2,000/- (Rupees Two Thousand only) towards cost of litigation. 
3. The Opponent shall comply with the above directions within 30 days from the date of this order. 
4. Supply free copy of this order to both the parties.

(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on 9^th Day of JULY2019)                                            

  (L.Mamatha)                                 (D.R. Venkatasudarshan )     

     MEMBER                                                    PRESIDENT

//ANNEXURE//

Witness examined for the complainant side:-

Complainant-Sri.K.Dasaradha Ramaiahhas examined in chief as PW1.

Witness examined for the opponent side: 

                   -NIL-

The Complainant produced list of documents:

1. Associated membership application Form and the payment receipt 35091.
2. Application form for Site purchase.
3. Copyof initial cheque 704027 and Bank Statement.
4. Copy f 1^st instalment notice.
5. Copy of receipt 63453 of 1^st instalment payment and Bank Statement.
6. Copy of Notice of 2^nd instalment.
7. Copy of receipt 79364 of 2^nd instalment payment and Bank Statement.
8. Copy of Bank Statement showing receipt of payment from Opponent
9. Copy of complaint No.NCH 20077.

Documents marked for the Opponent side:

                                      -NIL-

(L.Mamatha)(D.R. Venkatasudarshan)

MEMBER                                                         PRESIDENT