O R D E R<br /> <br /> SRI.D.KRISHNAPPA, PRESIDENT:<br /> <br /> These are the two complaints filed by different complainants, but are filed against the same common Op with similar allegations and for similar reliefs are clubbed together and are taken for disposal by a common order.<br /> <br /> Brief facts of the complaints filed by the complainants are that Op-1 is a company engaged in the business of developing and formation of layouts for distribution house sites to its members. Ops 2 to 13 are the Directors and office bearers of OP-1. That they become members of OP-1 society applied for allotment of a site to each of them measuring 30X40 at Omkar Nagar. That the 1st complainant claimed to have paid Rs.92,000/- towards sital value and Rs.2,000/- towards developmental charges, whereas the 2nd complainant claimed to have paid Rs.62,000/- towards sital value and Rs.2,000/- towards developmental charges. That Ops were conducting Lucky Dip Draw every month and the winner of the Lucky Dip Draw was not required to pay future installments towards the sital value. But they were not lucky to become winner of the draw. That Ops had also promised to issue cash certificates in a money back scheme, in that case the members were entitled to have a site as entire money back by way of cash certificate, at the end of the scheme encashable after 15 years. The Ops who have acknowledged the payment have neither allotted them a site nor issued issued cash certificates. The Ops have also not executed sale deeds by making final allotment of sites as promised. When the Ops fail to provide them sits and to execute sale deed they have even got issued legal notices to Ops who have after receipt of the same had not sent any reply. Therefore the complainants have prayed for a direction to Ops to allot them a site each measuring 30X40 at Omkar Nagar and also to award compensation of Rs.50,000/- for mental agony with interest.<br /> Ops 2 ,3 and 6 have appeared through their advocates and filed their versions. Whereas the other Ops remained absent therefore are placed exparte. Ops 2 and 3 in their version have contended that the complainants made last payments on 9-11-2006 by the 1st complainant and on 11-5-1999 by the 2nd complainant as such the complaints now brought are barred by limitation. Since OP-1 has taken decision to drop the scheme and accordingly it was dropped. Therefore the question of handing over cash certificate do not rise and said that the 1st OP company offered to allot sites measuring 30X40 by fixing its cost of Rs.1 Lakh. But the Ops have not paid or deposited the entire sale consideration therefore they were not entitled for allotment of sites. That the land owners from whom the lands were purchased have filed cases against them in O.S. 742/2006, which is pending. These Ops by denying further allegations of the complainants have prayed for dismissal of the complaints.<br /> <br /> OP-6 has filed version stating that OP-1 is a company, OP2 and 3 were managing affairs of the company as the Promoters and Directors, that he has been co-opted as per the Articles of Association. It is further contended by them since OP-1 could not acquire land in its name lands were brought in the name of Ops 2 to 4 but they have not come forward to give the lands of form layout and have stated that OP 2-4, 7 & 10 are liable and further stating that complainants have also not paid the full money have prayed for dismissal of the complaints.<br /> <br /> In the course of enquiry into the complaints, the complainants Ops 2 and 3 have filed their affidavit evidence reiterating what they have stated in their respective complaints and version. Whereas OP-6 has not filed his affidavit evidence. The complainants along with the complaints have produced copies of receipts to prove the payments made by them. Copy of application forms, copy of legal notices and a copy of brochure that OP-1 published. The counsel for OP-2 and 3 has filed a certified copy of the order sheet of O.S. No 2079/2005 and a copy of the plaint and a copy of the order sheet of O.S. No. 225/2004 and 742/2006 with a zerox copy of a plaint. We heard the counsel for the complainants and the Ops 2,3 & 6 and perused the records. <br /> <br /> On the above materials following points for determination arise.<br /> i) Whether the complainants prove that Ops have caused deficiency in their service in not allotting sites to them?<br /> ii) To what reliefs the complainants are entitled to?<br /> <br /> Our findings are<br /> <br /> Answer Point No:1 In the affirmative<br /> Answer Point No:2 See the final order.<br /> <br /> Reasons:<br /> The claim of the complainants that they became members of OP-1 Company, that the other Ops are all Directors of OP-1 has not been denied by any of these opponents. The further claim of the complainants that Ops had engaged in formation of layouts for providing sites to its members and had proposed a layout is also not denied by the Opponents. But the further claim of the complainants that they have respectively paid Rs.92,000/- towards cost of sites and Rs.62,000/- with developmental charges of Rs.2,000/- each is denied by Ops 2 ,3 & 6. Ops 2,3 &6 in their version and also in the affidavit evidence have contended that the statement of the complainants that they have paid Rs.92,000/- and Rs.62,000/- respectively towards the cost of the sites is false. But on perusal of the copies of receipts produced by the complainants they would prove that the 1st complainant has paid Rs.92,000/- to the 1st OP and similarly the 2nd complainant has paid Rs.62,000/- to the 1st OP. None of the Ops have rebutted the oral evidence and documents adduced by the complainants.<br /> <br /> Ops 2 and 3 have taken a stand as if the complainants have made last installments somewhere during year 2000 in the 1st complaint and in the year 1999 in the 2nd complaint, therefore the complaints are barred by limitation. But on going through the materials and uncontroverted allegations of the complainants and the documents before us establish that the complainants approached to Ops to provide them site had not met with any fruitful result and the opponents did not comeout with any concrete statement of either providing site or to refund their money. Therefore the complainants were made to wait by the opponents for getting reliefs by way of allotment of sites. Ops No.2,3 & 6 have contended as if they could not acquire or purchase lands in the name of OP No-1, therefore lands were purchased in the names of OP 2 to 4, 7 & 10, but later on they have not come forward to spare those lands for formation of layout. Therefore it looks that out of the moneys paid by the complainants and other members of OP-1, Ops have acquired lands in the way they wanted to as contended by OP-6 they are not now coming forward to give those lands to OP-1 for formation of layout. Therefore it is evident that the OP-1 out of the moneys that the complainants and the others paid they have utilized for their own needs and now they are taunting the complainants by not getting them reliefs. Such people can not take a plea of limitation to deprive of these complainants of their money and to deny justice to them by pleading point of limitation.<br /> <br /> Ops 2 &3 in their version and also in the affidavit evidence have contended as if that OP-1 has taken decision to drop the scheme of handing over cash certificate and have also pleaded the non-availability of sites for allotment to the complainants. The counsel appearing for Ops 2 &3 in the course of arguments submitted that there are civil litigation in respect of certain property that OP-1 acquired for formation of sites and therefore the Ops are not in a position to provide sites to the complainants. The learned counsel in this regard has produced certified copy of the proceedings pending in respect of certain acquired lands. But it is not their case that all the lands they acquired for formation of layout are entangled in a civil litigation and therefore OP-1 is not able to allot sites. During the course of arguments the learned counsel for OPs 2 & 3 was questioned to make a statement before this Forum as to the total extent of land the Ops acquired or purchased for formation of layout, whether althose lands are held up in civil litigation for which the counsel for OP2 and 3 submitted that not all the lands are involved in litigation. Then necessarily there must have been some lands left out of civil litigation and were available for formation of layout and to allot sites. The complainant has not been able to prove availability of site or sites for giving direction to the Ops to allot sites. Therefore in the absence proof to prove the availability of sites such a direction can not be granted, particularly when they did not pay the entire sites value.<br /> <br /> The complainants in their prayer have prayed for direction to Ops to allot them a site each measuring 30X40. They have also claimed for awarding market value, but when we invited the attention of the counsel for the complainants about the prayer portion, the learned counsel argued if the sites are not available and if no direction can be given for allotment of sites refund of money and compensation may be ordered to be paid to the complainants as an alternative relief. Though such prayer is not made in the prayer column, but the counsel for the complainants submitted as an alternative relief, market value of the sites could be awarded as compensation to them. But unfortunately, the complainants have not proved payment of total sale consideration of sites to the Ops and they have also not placed any materials to prove, what is the market value of the site as on this day. Therefore when the Ops have expressed their mobility to provide sites they can not escape the liability of repaying the complainants money with interest. With this, we answer Point No.1 in the affirmative and pass the following order.<br /> <br /> ORDER<br /> Complaints are allowed.<br /> Ops No.1 to 13 are held jointly and severally liable to repay the complainants money and are directed to repay Rs.92,000/- + Rs.2,000/- the developmental charges with interest at 18% p.a. from the date of respective payments until they are repaid to the first complainant. Ops No.1 to 13 shall also jointly and severally repay Rs.62,000/- + Rs.2,000/- developmental charges to the 2nd complainant with interest at 18% p.a. from the date of respective payments till that is repaid. Ops shall repay those amounts with interest within 60 days from today.<br /> Ops shall also pay cost of Rs.3,000/- each to each of these complainants.<br /> <br /> The original order shall be kept in Complaint No: 336/2009 and the copy of the same shall be kept in the another complaint.<br /> <br />