Sri.D.Krishnappa,<br /> President<br /> <br /> COMMON ORDER IN CC 141 and 142/07<br /> <br /> <br /> 1. Though these two Complaints are separate, but are against the same Opposite party involving common question of fact and law, therefore are taken together for disposal by a common order.<br /> <br /> 2. The brief facts of the Complaint allegations are that the Complainants became members of the Opposite party Housing Co-operative Society and applied for allotment of sites measuring 50’ x 80’ in Srirampura Layout for which the Opposite party assured to allot sites within 3 months, but they have failed to allot since 13.12.1989. Thereafter, they approached the Opposite party several times with written representations dated 02.12.2002, 19.03.2005, 18.06.2005, 18.07.2005, 10.06.2006 and 17.03.2007, but the Opposite party has not allotted sites. That they have in all paid Rs.63,440/- each of the above two cases and they have also paid the full share amount of their membership, but despite that the Opposite party has not allotted sites to them and therefore have prayed for a direction to the Opposite party to refund their paid amount of Rs.63,440/- each in the above two cases, award Rs.30,000/- towards compensation for mental agony and harassment and to award cost of Rs.2,500/- each.<br /> <br /> 3. The Opposite party has filed version raising several contentions, but the material objection of the Opposite party is that it had enhanced the membership fee to Rs.1,000/- and called upon the Complainant to pay the enhanced membership and to pay the balance amount of sital value, but the Opposite party has committed default and therefore, they not entitled for any interest and further contended that it has repaid the entire deposit amounts paid by the Complainants and because of the default on the part of the Complainants it is not liable to pay interest and therefore has prayed for dismissal of the Complaint.<br /> <br /> 4. In the course of enquiry, the Complainants have filed their affidavit evidence and one M.S.Shrenika, the Asst. Secretary of the Opposite party has filed his affidavit evidence in both the cases. The Complainants and the Opposite party have by reiterating what has been stated by them in their respective Complaints and versions have filed their affidavit evidence. The Complainant has produced the share certificates, a pass books issued by the Opposite party and copies of certain correspondences the Complainants made with the Opposite party. Heard the Complainants and the advocate for the Opposite party and perused the records. <br /> <br /> 5. On the above contentions, following points for determination arise.<br /> <br /> 1. Whether the Complainants proved that the Opposite party after receipt of Rs.63,440/- in each of these cases promised to allot a them sites measuring 50’ x 80’ in Srirampura Layout, but neither allotted the sites, nor refunded the amounts and thereby have caused deficiency in their service?<br /> 2. Whether the Complainants are entitled for the relief sought for?<br /> 3. What order?<br /> 6. Our findings are as under:-<br /> Point no.1 : In the affirmative.<br /> Point no.2 : In the affirmative.<br /> Point no.3 : See the final order.<br /> <br /> REASONS<br /> <br /> 7. Points no. 1 & 2:- The claim of the Complainants that they were the members of the Opposite party House Building Co-operative Society paid Rs.63,440/- each to the Opposite party, that the Opposite party promised to allot them one site each in Srirampura Layout, Mysore, has not been disputed by the Opposite party. The Opposite party has denied the allegation of the Complainant that it assurance to allot sites remained only in the air. The Opposite party in the version and also in the affidavit though has contended that the Complainants did not pay the enhanced share value, therefore they did not become qualified members but that has been falsified by the affidavit of the Complainants who have in para-4 of their affidavits categorically stated that on 04.03.2003 they paid the share of Rs.1,000/- and that has not been controverted. But when the Opposite party filed the version in both the cases stated to have repaid the entire deposit amount paid by the Complainant towards allotment of site, on 23.07.2007 and 23.08.2007 by tendering cheques for Rs.30,000/- and 33.440/- each to the Complainants. The Complainants have conceded the receipt of the cheques and full satisfaction of the advance amount they had paid to the Opposite party. With this, the dispute remains between the parties with regard to the payment of interest on those deposits from the dates of those payments till the refunds are made. Since, the Complainants insisted upon awarding interest against the Opposite party on the deposits they made to the Opposite party, we are required to examine the liability of the Opposite party for payment of interest on the deposits made by the Complainant to the Opposite party.<br /> <br /> 8. The Complainants in their Complaints and affidavits have categorically stated that the Opposite party had collected entire amount with an assurance that sites would be allotted to them within 3 months, but neither allotted nor refunded their money. The Complainants have referred to certain letters they addressed to the Opposite party starting from 02.10.2002 till 17.03.2007. The Opposite party has not denied the receipt of these letters nor denied its liability to pay interest on these deposits by sending reply to those letters. The Complainant in CC 142/07 even produced a refund token issued by the Opposite party to her on 30.08.2005 and also a post card received from the Opposite party to prove that, the Opposite party who had even promised to refund the money during August 2005 had not repaid till the filing of this case and invited our attention to the contents of the post card, the Opposite party written to her in which the Opposite party has contended due to certain unavoidable reasons they have stopped refunding the amount and again start refunding the amount from January 2006. But even thereafter also it is noticed that the Opposite party did not refund the money due to the Complainants. The letters addressed by the Complainants to the Opposite party even during 2005-06 and 2007 demanding repayment of the money have also not been cared and the Opposite party never bothered to send reply to those letters either offering to refund the money due to the Complainants or stating that they are not liable to pay interest. Therefore, admittedly when Opposite party received substantial amounts from the Complainants and promised to allot sites, and when failed to allot sites to the Complainants and retains the money without any excuse, the Opposite party cannot escape it’s liability to pay interest on those deposits. Therefore, we hold that the Complainants are entitled for interest on the deposits made by them with the Opposite party and thus we further hold that the Opposite party did not keep up it’s promise therefore cannot escape from the liability of paying interest and thereby has caused deficiency in its service. With the result, we answer points no.1 & 2 in the affirmative and we pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaints are allowed.<br /> 2. The Opposite parties are held jointly and severally liable to pay interest on the deposits made by the Complainants as per the table enclosed to this order from the date of those respective deposits till 23.07.2007.<br /> 3. The Opposite party is also directed to pay cost of Rs.1,000/- to each of the Complainant. <br /> 4. Give a copy of this order to each party according to Rules.<br />