COMPLAINTS FILED ON:24.08.2011

DISPOSED ON:27.03.2012.

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

27^th DAY OF MARCH-2012

  PRESENT:-  SRI. B.S. REDDY                       PRESIDENT

                     SRI. A. MUNIYAPPA                      MEMBER                         

      COMPLAINT No.1571/2011

O R D E R

SRI. B.S. REDDY, PRESIDENT

The complainant filed this complaint U/s 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Party (herein after called as O.P) to allot the site or in the alternative to refund the entire money received with interest at 18% p.a. on the allegations of deficiency in service on the part of the OP. 

2. In the complaint, it is stated that OP proposed to offer a Membership to the complainant in their Society and assured site measuring 60 X 40 feet at Sarakki Layout proposed to be formed and fixed the price of the site at Rs.24,000/- and collected Rs.5,027.50/- under two separate Receipts dt.26.03.1985 and dt.17.07.1985. Further at the request of the OP, the complainant paid further sum of Rs.13,000/- on 15.10.1985 and Rs.10,360/- dt.05.12.1986. OP by letter dt.16.01.1987 directed the complainant to pay an additional charges of Rs.8,000/- and the complainant paid the same. In spite of payment of entire sital value as well as the additional charges including the interest on the delayed payment, the OP failed to allot the site at Sarakki Layout. But instead the OP had requested the complainant to pay additional Rs.40,000/- towards additional cost of the site and accordingly the complainant paid the sum of Rs.40,000/- under two receipts No.3417 and 3973. In spite of receipt of the entire sital value, OP did not choose to allot the site. The complainant in all paid sum of Rs.74,107.50/- being the value of the site as claimed by the Op. OP did not choose to allot the site, the complainant had been requesting the OP to allot the site or to return the money with interest. OP failed to comply the demand, the complainant got issued legal notice dt.12.07.2011 to the OP, OP received the said notice but failed to comply with the Notice and failed to reply the same. Hence the complaint.

3.On appearance OP filed version stating that OP is functioning under No Loss No Profit basis in terms of the Principles laid down in the Co-operative movement and as such, the OP is not selling any house sites for consideration beyond the cost. The claim is barred by limitation. The complainant made last sital deposit of Rs.20,000/- on 31.05.1991. The claim for refund after 20 years is not maintainable. It is admitted that the complainant has deposited Rs.72,000/- towards the sital value. Op applied for land before Government of Karnataka and Government acquired certain lands, preliminary notification was issued on 04.08.1986 and the same was confirmed on final notification dt.30.07.1987 and award was passed on 14.03.1989. At that particular point of time one of the land lords has challenged the acquisition proceedings in Hon’ble High Court of Karnataka in W.P.No.15625/1987. Similarly, various other petitioners pertaining to other lands also preferred the Writ Petition, the Hon’ble High Court of Karnataka clubbed all the matters and allowed the Writ Petitions on 18.06.1991 quashing the acquisition proceedings. Being aggrieved by the said order, Op preferred S.L.P.No.13339/1991 and the same was dismissed on 21.02.1995. OP made hectic efforts to get back the money which was deposited with Spl. Land Acquisition Officer, in spite of their sincere efforts the Spl.Land Acquisition Officer not responded properly; OP filed Writ Petition No.26916/1997 to release the amount, Pursuant to orders passed by the Hon’ble High Court, the Spl. Land Acquisition Officer, directed the Op to execute an Indemnity Bond and OP has executed the Indemnity Bond and the said land acquisition Officer issued letter dt.20.09.2000 by releasing an amount of Rs.12,25,141/- against the deposit of Rs.2.00 Crores and odd. The Spl. Land Acquisition Officer shown an expenditure against the deposited amount to an extent of Rs.33,80,000/- towards audit fee, establishment charges and publication charges etc. Further, the Spl. Land Acquisition Officer kept the money of deposit by OP from 1986 onwards, while returning the amount, they have not given any interest on the deposit amount, on the other hand they have deducted certain charges that comes to the tune of 10% of the deposit when that being so, some of the members have filed complaints before the Consumer Redressal Forums. The Hon’ble Forum ordered for repayment. Accordingly, against the availability of amounts in the Society, returned to the respective members, thereby Society has not kept money in its account not even a single day after received from the LAO. OP is yet to receive the balance amount from the Spl. LAO, Spl. LAO has deducted certain amount under various expenditure heads, it is difficult for the Society to pay the principal amount with interest. As per Clause-8, of the subsidiary rules of allotment of sites in OP-Society, the member is not entitled to interest on deposit, in case of any refund of deposited sital amount. In AIR 2010 SC 486, the Hon’ble Supreme Court held that the Developmental Authorities like OP need not pay interest for the delay or failure of the projects. The present case in hand is also similar to that of the case before Supreme Court of India, Op is not liable to pay interest on the sital deposit. The complainant has also deposited a share amount of Rs.500/- on 26.03.1985, and the Op is not liable to refund the same. Hence, it is prayed to dismiss the complaint with exemplary costs.

4. During the pendency of the complaint, OP issued cheque towards refund of an amount of Rs.72,000/-on 06.01.2012, the complainant has received the same without prejudice to his rights to claim balance with interest and compensation.

5. Both parties have filed affidavit evidence.

6. The complainant filed Written Arguments.

7. Arguments on both sides heard.  

8. Points for consideration are:

      Point No.1:- Whether the complainant has proved           

                          the deficiency in service on the part

                           of the OP?

Point No.2:- If so, whether the complainant is

                   entitled for the relief now claimed?

      Point No.3:- To what Order?

9. We record our findings on the above points are:

      Point No.1:- Affirmative.

             Point No.2:- Affirmative in part.

             Point No.3:- As per final Order.

R E A S O N S

10. At the outset it is not at dispute that the complainant became member of OP on the assurance that he would be allotted a site measuring 60 X 40 feet at Saraki layout proposed to be formed and Op has totally collected an amount of Rs.72,000/- towards cost of the site from the complainant on various dates from 26.03.1985 to 31.05.1991. OP could not form any layout and allot the site as assured to the complainant, as the acquisition proceedings were quashed by the Hon’ble High Court in W.P.No.15625/1987 and the same being confirmed in S.L.P. preferred before the Hon’ble Supreme Court in S.L.P.No.13339/1991.

11. During the pendency of this proceedings, OP has refunded the sital deposit of Rs.72,000/- to the complainant through cheque on 24.10.2011. Now the claim remains to be decided with regard to the interest to be awarded on the said sital deposit. When the OP was unable to form the layout on account of the acquisition proceedings being quashed and the same being confirmed in S.L.P. preferred and the said S.L.P was dismissed on 21.02.1995, it would have been fair enough on the part of the Op to refund the said amount to the complainant. Op has not produced any material to show that the entire amount collected from its members is being deposited with the Government towards the cost of the land acquisition and the said amount is still lying with the Government and part of the same has been refunded. The act of OP in not refunding the amount even after the acquisition proceedings were quashed amounts to deficiency in service on its part.

12. In similar complaints against the same Op in complaint No.746 & 747/2011 disposed off on 24.10.2011 interest at the rate of 18% has been awarded from the date of respective deposits till the date of realization based on the judgment of the Hon’ble State Commission in Appeal No.2855/2009 wherein the interest awarded by this Forum at 12% p.a. was enhanced to 18% p.a. OP has not preferred Appeal against the said orders and in Execution Petitions OP has made part payment of the amounts awarded towards interest. Thus the judgment in complaint No.746 and 747/2011 has become final and the same is to be followed in order to maintain consistency in awarding the interest. Under these circumstances, we are of the view that OP is liable to pay interest at 18% p.a. from the respective date of payments, till the date of refund made to the complainant.

13. The principles laid down in AIR 2010 SC page 486 cannot be made applicable to the facts of the case for the reason that in the present proceedings acquisition proceedings were quashed in W.P.No.15625/1997 and the said Order was confirmed by the Hon’ble Supreme Court in S.L.P. preferred by OP on 21.02.1995. Even after lapse of more than 17 years of the Order of the Supreme Court OP has failed to refund the amount to the complainant. The amount has been refunded after filing this complaint.

14. There is no merit in the contention that the complaint is barred by limitation. When once OP accepted the sital deposits, till the site is allotted or the amount is refunded recurring cause of action arises to claim the relief’s. Under these circumstances, we are of the view that the complainant is entitled for interest at 18% p.a. along with litigation cost of Rs.2,000/-. Awarding of interest is to be taken as compensation. No layout has been formed by OP hence the relief seeking direction in allotting the site cannot be considered.  Accordingly we proceed to pass the following:    

O R D E R

The complaint filed by the complainant is allowed in part.

Op is directed to pay interest at the rate of 18% p.a. on the sital deposit amount of Rs.72,000/- from the date of respective payments till the date of issue of cheque towards the refund of the amount i.e., 24.10.2011 and pay litigation cost of Rs.2,000/- to the complainant.

This order is to be complied within four weeks from the date of its communication.

Send copy of this order to both the parties free of costs.

 (Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 27^th day of March-2012.)

MEMBER                                                        PRESIDENT

Cs.