COMMON ORDER

SRI. B.S.REDDY, PRESIDENT

These are the complaints filed U/s. 12 of the Consumer Protection Act of 1986, by the respective complainants seeking direction against OPs to refund the stital value deposited with interest at 18% p.a. and to pay compensation of Rs.1,00,000/- to each with the costs of the proceedings.

Since OPs are common in all these complaints, the questions involved and the relief’s claimed are similar, in order to avoid the repetition of facts and multiplicity of reasoning’s all these complaints are stand disposed of by this common order.

2. The case of the complainants to be stated in brief is that:

OP-1 being the Developer represented by its Joint Managing Directors OP 2 and 3, launched a scheme of providing residential sites to its members on 50 equal monthly instalments basis, each EMI at Rs.1,950/- p.m. These complainants became members of OP1 and each of them paid initial advance of Rs.5,000/- towards booking, OP accepted the amount and issued the receipts, allotted sites stated to have been formed in “OM SAI NAGAR” layout OPs issued the receipts acknowledging receipt of EMIs and advance amount paid towards initial booking. The complainants in complaint Nos.2364/2010, 2365/2010, 2366/2010 and 2367/2010 each deposited total amount of Rs.1,02,500/- including the initial booking amount of Rs.5,000/- and the complainant in complaint No.2369/2010 deposited total amount of Rs.79,100/- including the initial booking advance of Rs.5,000/. Though the complainants were ready to get the sale deeds executed in respect of the sites allotted and requested several times to OPs to fulfill the obligation and execute the sale deeds, but OP did not come forward to execute the sale deeds. When the complainants visited “OM SAI NAGAR” situated at Mahanthalingapura, Bannerghatta Road, near Jigani Industrial Estate, Anekal Taluk, Bangalore Rural District, they came to know that without taking permission and land conversion order from the concerned authority of Government of Karnataka. OPs have formed the layout, the said layout is unauthorized and the same is not formed in accordance with law. Without taking prior permission and approval from concerned authority to form a layout OP had collected entire amount from complainants and issued the allotment letters in respect of the sites. The complainants requested OPs either to execute the sale deeds in respect of the sites allotted or refund the amount with interest at 18% p.a. but OP has not complied their demand. The complainants got issued legal notice demanding the OPs either to execute the sale deeds or to refund the amount received, but OPs have not replied for the said notice. Thus the complainants felt deficiency in service on the part of the OPs filed these complaints seeking necessary relief’s.

3. On appearance OPs filed version contending that the complaints are barred by limitation, as the scheme started in the year 1997 and completed in December-2001. The complainants have not performed their duties/obligations, as per terms and conditions and they have committed default in not approaching the OPs, in spite of repeated requests and demands to get the sale deeds registered. OPs have formed the layout in the name and style ‘SRI.OM SAI NAGAR’ by forming the sites of various dimensions and in order to enable the purchasers, OPs have made certain schemes for its members subject to certain terms and conditions. According to Clause-7 of the terms and conditions of the Scheme in the event of members committing default in payment of any three instalments, they are liable for disqualification at the discretion of the Management and the amounts paid by them will be refunded without interest after forfeiting the initial payment of Rs.5,000/- and 30% of the paid up instalments. The allegation that without taking permission and land conversion order OPs have formed a layout is false hence denied. In spite of calling the complainants to co-operate for getting registration of the sites allotted, they did not contact the OPs got the sites registered in their names. Now the Government of Karnataka has stopped the registration of the revenue sites. Hence OPs are not in a position to register the sites allotted to complainants. Immediately after the Government of Karnataka permits for registration, OPs will register the sites in favour of the complainants. In fact OPs have obtained conversion order, plan approval from competent local authority and the registered the sites in favour of the members who complied with the terms of the contract. The Government issued fresh guidelines to get permission from BMRDA and other authorities as per new CDP plan. Till now the revised CDP plan has not come into force. OPs are not responsible for the delay in registration of sites. It is only on the part of change in Government regulation the OPs have not able to register the sites. Hence, the OPs are not liable to pay any interest or damages for insufficiency in service. Hence, it is prayed to dismiss the complaints.

4. The complainants in order to substantiate complaint averments each of them filed affidavit evidence and produced documents. OP2 as a Joint Managing Director of OP1 filed affidavit evidence in support of defence version and produced documents like conversion order, layout plan, membership conditions, copies of two sale deeds and tax assessment register extract.

5. Both the parties filed written arguments.

6.  Arguments on both sides heard.

7. Points for consideration are:

       Point No.1:- Whether the complainants proved the          

                          deficiency in service on the part of

                            the OPs?

 Point No.2:-  Whether the complaints are barred

                    by limitation?

 Point No.3:- Whether the complainants are entitled

                   for the reliefs now claimed?

       Point No.4:- To what Order?

8.  We record out findings on the above points:

Point No.1:- In Affirmative.

Point No.2:- Negative,

Point No.3:- Affirmative in part.

Point No.4:- As per final Order.

R E A S O N S

At the outset it is not in dispute that these complainants became the members of OP1 with a fond hope of getting each site measuring 30 X 40 at “OM SAI NAGAR” layout formed by OPs situated at Mahanthalingapura, Bannerghatta Road, near Jigani Industrial Estate, Anekal Taluk, Bangalore Rural District. Initially these complainants paid advancae booking amount of Rs.5,000/- each and OPs accepted the amounts and issued the receipts by allotting the sites. The complainants in complaint No.2364/2010 to 2367/2010 each deposited total amount of Rs.1,02,500/- including the initial booking amount of Rs.5,000/- and the complainant in complaint No.2369/2010 deposited total amount of Rs.79,100/- including the initial booking advance of Rs.5,000/-. The grievance of the complainants is in spite of their repeated requests and demands OPs failed to fulfill its obligation and execute the sale deeds in respect of sites allotted. The complainant in complaint No.2369/2010 was prepared to pay the balance sital value and get the sale deed registered. OPs failed to comply the demand, even the complaints demanded for refund of the amount paid with interest, got issued the legal notices, OPs neither replied for the notices nor complied the demands. Thus the complainants are seeking for refund of the sital value with interest at 18% p.a.

9. OPs have produced the conversion order, approved layout plan copy and copies of the sale deeds dt.10.10.2003 in support of its defence that after obtaining the conversion order and approval of the layout plan from local authority they have executed the sale deeds in respect of the sites formed in the said layout called “OM SAI NAGAR”. OPs have not produced any material to show that these complainants were informed about the approved plan of the layout and to get the registered sale deeds in respect of the sites allotted. Without there being any material regarding the intimation given to the complainants, we are unable to accept the defence of the OPs that in spite of repeated requests and demands the complainants failed to come forward to get the sale deeds executed. Admittedly now OPs are not in a position to execute the sale deeds as the Government of Karnataka banned the registration of the sites and issued fresh guidelines to get permission from BMRDA and other authority as per new CDP plan, as stated at Para-12 of the version of OPs. In view of the same, the complainants could not get the registered sale deeds, as OPs have not obtained permission from BMRDA and other authorities as per new CDP plan. Even as per the defence version till now the revised CDP plan has not come into force. The complainants cannot be made to wait indefinitely till OPs obtains permission from BMRDA and revised CDP plan coming in force, to get the sale deeds executed. When OPs are unable to execute the sale deeds it would have been fair on their part in refunding the amount. In spite of repeated requests and demands and issue of legal notice, OPs failed to refund the amount with interest, the same amounts to deficiency in service on the part of the OPs.

10. In similar complaint filed against the same, OPs in respect of the same project before the first Additional District Forum in complaint No.1209/2010, the complaint has been allowed with a direction to refund the amount deposited with interest at 12% p.a. As against the said order OPs preferred Appeal No.4156/2010 before the Hon’ble State Commission, the said Appeal has been dismissed at the stage of admission. The complainants have produced certified copies of the orders passed in the complaint and the appeal. Under these circumstances, we are of the view that the complainants are entitled for refund of the amount deposited with interest at 12% p.a. from the date of last instalment paid till the date of realization along with litigation cost of Rs.1,000/- in each case.

11.There is no merit in the contention of the OPs that these complaints are barred by limitation, as the complaints are not filed within 2 years from the date of last instalment paid by each of these complaints. The Hon’ble State Commission in Appeal No.4156/2010 negatived the contention the OPs with regard to the limitation observing that the contention that the complaint is barred by limitation cannot be acceptable. As there is recurring cause of action and deficiency of service rendered by OPs in not executing the sale deeds nor refunding the money with interest, these complainants have paid the monthly instalment on various dates. In our view when once OPs have accepted the amounts towards costs of the sites allotted, till OPs execute the sale deeds or refund the amount paid recurring cause of action arises to the complainants. The complainants got issued legal notices dt.27.07.2010 demanding OPs to refund the amount paid with interest, OPs neither replied for the notice nor complied the demand. Therefore the cause of action has arisen for filing these complaints when the OPs failed to comply the demand in refunding the amount as demanded in the legal notices. The complaints are filed within 2 years from the date of issue of legal notices. Under these circumstances, we are of the view that the complaints are not barred by law of limitation. Accordingly, we proceed to pass the following:

O R D E R

The complaints filed by the complainants are allowed in part.

1. In complaint No.2364/2010 OPs are directed to refund an amount of Rs.1,02,500/- with interest at 12% p.a. from 26.12.2001 the last date of payment of instalment till the date of realization and pay litigation cost of Rs.1,000/- to the complainant.

2. In complaint No.2365/2010 OPs are directed to refund an amount of Rs.1,02,500/- with interest at 12% p.a. from 12.06.1997 the last date of payment of instalment till the date of realization and pay litigation cost of Rs.1,000/- to the complainant.

3. In complaint No.2366/2010 OPs are directed to refund an amount of Rs.1,02,500/- with interest at 12% p.a. from 10.07.1997 the last date of payment of instalment till the date of realization and pay litigation cost of Rs.1,000/- to the complainant.

4. In complaint No.2367/2010 OPs are directed to refund an amount of Rs.1,02,500/- with interest at 12% p.a. from 26.12.2001 the last date of payment of instalment till the date of realization and pay litigation cost of Rs.1,000/- to the complainant.

5. In complaint No.2369/2010 OPs are directed to refund an amount of Rs.79,100/- with interest at 12% p.a. from 18.11.1999 the last date of payment of instalment till the date of realization and pay litigation cost of Rs.1,000/- to the complainant.

 OPs to comply the order within four weeks from the date of this order.

This original order shall be kept in the file of the complaint No.2364/2010 and a copy of it shall be placed in other respective files.

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

(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  26^th day of SEPTEMBER– 2011.)

MEMBER                                                                 PRESIDENT

CS.,