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

DATED 17^TH DAY OF SEPTEMBER 2022

ORDER

SRI.H.JANARDHAN, MEMBER

1. This complaint has been filed under section 35 of C.P.Act,2019 relief against OPs with a direction to OP to refund sum of Rs.93,43,320/- from the return of investment bond i.e. share certificate, recurring deposits, fixed deposit bond and Kanva Suvarna Nidhi Deposit bond and additional amount of Rs.37,90,000/- collected in the name of sale agreement along with interest at 18%PA and pay a sum of Rs.5,00,000/- towards damages for causing mental agony and distress, trauma, inconvenience and hardship due to the deficiency of service and unfair trade practices and pay cost of Rs.25,000/- towards cost of litigation    and pass such other reliefs.

2. The brief facts of the complaint are as under:

The complainants in the month of October 2017 came in contact with OPs by one regional Sales manager Srikantaiah and has purchased share certificates, recurring deposits andfixed deposits and there after the complainant purchased share certificate of Rs.1000/-, Recurring deposit with OP institution and has invested Rs.2,00,000/-and also complainant no.2 wife of complainant no.1 also have taken share certificate in the OP institution and have deposited sum of Rs.5,00,000/- in Fixed deposit. Again in the month of July 2018 General Manager of the OP institution motivated the mind of complainants to invest more money in F.D. as they were giving high rate of interest and the complainants motivated by the words of the AGM of OP. The complainants trusting the office bearers words again complainant no.1 further invested Rs.2,00,000/- Rs.20,000/-, Rs.5,00,000/-, Rs.3,00,000/- and Rs.24,00,000/- in Fixed deposit in the year 2019. The complainant no.2 has also invested Rs.5,00,000/- on 02.08.2018 and both complainant no.1 & 2 have invested Rs.99,000/- in share certificates and have issued share certificate bonds to both complainants. The complainants both husband and wife invested Rs.48,93,000/- by way of recurring deposit, share certificates and fixed deposits in the Kanva Suvarna Nidhi Deposit schemeand complainants were getting interest on the Fixed deposits, but during the month of July 2019, the OPs have stopped paying monthlyinterest. As such the complainant no.1 visited the OP society and asked the OP why interest on Fixed deposits has not been paid, but the AGM of the OP society convinced and clarified thatfinancial audit is going on and interest will be paid in the month of October 2019. Again the complainants waited till October 2019, but interest not paid. Again in the month of November 2019 visited OP society, but again they stated they will pay interest in the month of December 2019. Again complainant no.1 visited the OP society and demanded for payment entire amount deposited by them. Again the OP AGM hadassured that entire amount will be settled after discussing the same in the board meeting and take decision to return entire amount invested by the complainants along with interest. But the complainants followed up till December 2019 and also telephoned to the OP society, but OP society were unable to return the money invested by them. The managing director/proprietor N.Nanjundaiah decided to provide complainants a plots developedby N.Nanjundaiah under Kanva Developers in the project Garden city phase-III and promised to register in the name of complainant no.1 in return for the deposit money and they also advised to bring allthe deposit bonds, share certificates etc. for sale agreement procedure. As directed by the OP society, the complainant no.1 submitted entire bonds, receiptsand the OP chairman and managing director made conditional offer to complainants no.1 to pay further amount of Rs.37,90,000/- in addition to the deposit amount including interest at Rs.55,53,241/-. Initially complainant did not agree, but later on additional amount of Rs.37,90,000/- deposited with the OP. After receiving the said amount N.Nanjundaiah, Chairman & Managing Director promised to register the sale agreement in the name of complainant no.1 for 07 plots each measuring 30X40 ft. at Hongasandra village, Garden city project, III phase. After receipt of the additional amount, the OP failed to execute sale agreement and also there was no response from the OP and assured the complainants that they are going to register the said plots after getting permission from the RERA and after which the Covid-19 was announced and assured the complainant no.1 that after Covid-19 they are going to execute registered sale deed and after relaxation of lockdown they executed the sale agreement, but till today OP1 has not come forward to execute sale deed nor refunded the amount to the complainantsand finally the complainants got issued legal notice on 15.04.2021 demanding the OPs to refund entire amount of Rs.93,43,320/- including additional payment of Rs.37,90,000/- with interest, but there was no response from the OPs. Being aggrieved by said act of the OPs, the complainants have filed thiscomplaint.

3. After service of notice, OPs have not appeared inspite of paper publication. Hence, OPs are placed exparte .  

4. The complainant-1 has filed his affidavit evidence and got marked exhibits P1 to P30 .

5.      Heard arguments complainants. Perused documents.

6.      The points that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OPs?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

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

       Point No.1:- Affirmative in part.

      Point No.2:- Affirmative in part.

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

REASONS

8.  Point No.1 & 2: On perusal of the pleadings, it is relevant that the complainants have become the members of the OP society and share certificates have been issued by the OP society as per exhibit P2 and they have taken fixed deposits with OP society as per exhibits P5 to P12. After receiving fixed deposits with the OPs, the OPs have also given bond in favour of the complainants and also said bonds have been received by the complainants, which has been admitted by the complainant to show that they have invested said amount in the OP society. After investing the said amount with the OP instituion, OPs were regular in making payment of interest to the fixed deposits, but best known to the OP, OPs have stopped making payment of interest to the complainants. When the complainants went to ask the OPs as to why the interest has not been made regularly in the month of July-2019, the OP institution had stated that they are conducting financial audit in the office and they are going to pay interest in the month of October 2019. Again the complainant waited till November 2019, but interest not paid. Again in the month of December 2019  the complainants visited OP society sought for interest. Once again gave evasive reply  by the OP and sought time for payment. The complainant  came to know that there were some problems in the OP society. As such sought for the refund of the fixed deposit amount.  However, the Managing Director/Proprietor N.Nanjundaiah, finally convinced  the complainants that he is going to provide 07 plots to the complainants each measuring 30X40 ft. in sy.no.18/1, 18/3,21/1, 32/8, 34/1, 34/2, 17, 31/1, 37,38,39,18/2, 18/5 at Hongasandra village developed by N.Nanjundaiah under Kanva Developers of OP institution of Garden city, phase-III. The said N.Nanjundaiah, proprietor/ president assured the complainants that he is going to execute registered sale agreement in favour of complainant no.1 and forced complainant no.1 to bring all the fixed deposits bonds and share certificates which were deposited by both complainant no.1 & 2 and also assured them  to adjust the said amount  to execute registered sale agreement. After the assurance, the complainants brought all the fixed deposits along with share certificates  which were issued by OP society and surrendered  fixed deposits, share certificates with OP and got converted the said amount towards advance amount to the sale agreement to the tune of Rs.37,90,000/-, but the complainants were not interested towards said assurances and they have to secure the fixed deposits amount with the OPs finally made  up their mind to make additional amount of Rs.37,90,000/-. After receiving the said amount the OPs have reverted back to make registration to execute sale agreement. After that the complainants have followed up with the OP, but till today OPs have not come forward to execute sale agreement.

9. Though the OPs institution finally said the fixed deposits which was deposited come under KPID Act and said amount shall be recovered from the said courts, however under Consumer Protection Act, as per section 100 is special remedy available to the complainants to seek relief with the authority of the said act. Under section 100 of the Consumer Protection Act, 2019, reads thus “ Act not in derogation of any other law: The provisions of this act shall be in addition to and not in derogation of the provisions of any other law for the time being”. The complainants can seek relief under the said section. After  OP-1 receiving entire amount from the complainants, OP-2 has recovered the amount deposited by the complainants and the said amount has been encashed by the OP-1. As such it is liability of the OP-1 to refund amount to the complainants  also part of the consideration received towards registration of sale agreement. OP-2, who being the society have reverted the said amount to OP-1.  Hence, complainant against OP-2 is dismissed. After which, OP-1 has entered into agreement  with the complainant for agreement of sale on 25.01.2020 and  from which the complainants are entitled for interest.  The OP-1 has made the complainants to run from pillar to post and also OP, has kept hard earned money of the complainant with the OP-1 which is nothing but unfair trade practice  and non repayment of said amount in favour of the complainants is also nothing but deficiency of service on the part of the OP-1. Hence, we answer Point no.1 & 2 in the affirmative.

10.  Point no.3:- The complainants have availed service of an  advocate to conduct the case before this commission. Hence, we deem is fit to award an amount of Rs.20,000/- towards  cost of litigation. Further, it is proper to fix time limit to comply the above said order. Hence, we fix 60 days for compliance of above said order. For the for going reasons,  Accordingly, we proceed to pass the following 

O R D E R

1. The complaint is allowed in part against OP-1 and complaint against OP-2 is dismissed.
2. OP-1 is  directed to refund a sum of Rs.93,43,320/- along with interest at 9% p.a. from the date of agreement of sale i.e. 25.01.2020 till realization along with litigation cost of Rs.20,000/-.
3. The OP shall comply this order within 60 days from this date and failing which the OP-1 shall pay interest at 11% p.a. on Rs.93,43,320/- after expiry of 60 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 17^th  day of September, 2022)

Documents produced by the Complainant-PW.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :  Nil.