Date of filing:  22.08.2017

Date of Disposal: 20.04.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,      BENGALURU – 560 027.

DATED THIS THE 20^TH DAY OF APRIL, 2023

CONSUMER COMPLAINT NO.2374/2017

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Smt. Jayanthi Shetty,

W/o. Late Balbadra Shetty,

Aged About 72 Years,

R/at: “Kalyan”, No.4-19/2,

Shree Devi College Road,

Ballalbagh, Mangaluru.

Rep. by GPA Holder

Dr. Ashwin C. Shetty,

Aged About 40 years,

S/o. Chandrashekar Shetty,

R/at: No.004, Archana Apartment,

Spring Field, Chilimbi,

(Rep by Sri. G.Giriyappa, Advocate)

M/s. Syndicate Bank Retired,

Employers Welfare Society,

Rep. by its General Secretary,

D.No.98/5, 1^st Floor, 1^st Main,

Tank Bund Road, Marenahalli,

(behind New BMTC Bus Stand),

(Rep. by Sri.Seshu V, Advocate)

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

01.    The complainant has filed this complaint Under Section 12 of the Consumer Protection Act, 1986 seeking for a direction to the opposite party to pay the interest amount of Rs.5,14,800/- at the rate of 12% per annum from 2006 to 2017 on the principal amount of Rs.3,90,000/- till the realization and such other relief as this Commission deems fit in the circumstances of the case.

02.    The complainant is represented by her GPA holder.  It is not in dispute that, the complainant has obtained membership in the opposite party-society in the year 2006 and had paid admission amount of Rs.2,000/- and opposite party had offered a site at residential layout scheme at Bidadi measuring 30 X 40 feet situated at Bangalore-Mysore Highway.  Further it is not in dispute that, the complainant had invested a sum of Rs.3,90,000/- towards site booking scheme.  Further it is not in dispute that, subsequently the complainant and opposite party had agreed for a settlement and opposite party had returned the site deposit amount of Rs.3,90,000/- vide cheque No.345704, dated: 07.08.2016.  Further it is not in dispute that, interest has not been paid on the amount deposited by the complainant towards the site.

03.    It is the further case of the complainant that, the total interest at the rate of 12% per annum from 2006 to 2017 of Rs.3,90,000/- for 11 years comes to Rs.5,14,800/-.  Further there was mutual understanding that, opposite party shall pay the interest at the rate of 12 per annum, but opposite party did not pay it.  Hence the complainant got issued legal notice dated: 13.04.2017 and 04.05.2017.  In-spite of that, opposite party did not pay the interest.  Hence the complaint came to be filed.

04.    It is the further case of the opposite party that, there was delay of 28 days in making the second instalment by the complainant and second instalment was paid on 28.06.2006.  Further opposite had clearly sent letter dated: 21.05.2006 stating that, second instalment amount shall not be sent until she hears from the opposite party.  Further it is stated in the letter that, instalment received by the Waitlist candidates will be credited to their respective account and it does not carry any interest at the time of refund.  Further even though the 3^rd instalment was due on 31.07.2006 the complainant made the same on 11.10.2006.  Further the opposite party – society is a non-profit organization working for the welfare of the members and has deployed funds collected in the project taken on behalf of the members.  Further the developer has cheated the society and the management committee has initiated arbitration proceedings and at there the developer had put a compromise settlement and the society had called for special AGM and took the consent of all the members to proceed further.  Subsequent to the 9^th AGM which was held on 03.07.2016 opposite party had sent letter to all its wait listed members and to the complainant dated: 13.07.2016 stating to take back the money deposited and the complainant gave her consent in a letter dated: 29.07.2016 that, she was agreeable to take back her booking amount in instalment basis.  Hence the opposite party had refunded the amount through cheque dated: 07.08.2016.  Hence the complainant is not entitle for interest and sought to dismiss the complaint.

05.    To prove the case, the complainant has filed affidavit in the form of her evidence in chief and has produced documents.  The Authorized Signatory of opposite party (RW.1) has filed affidavit in the form of his evidence and has produced documents.

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

  (1) Whether there is deficiency of service on the part of the opposite party?

  (2) Whether the complainant is entitle for the 

      relief sought ?

      (3) What order ?

07.    Our findings on the aforesaid points are as follows:-

Point No.1:    In affirmative

Point No.2:    Partly in affirmative

Point No.3 :    As per the final order

for the following:-

REASONS

08.    POINT NO.1 & 2:-  The complainant and the Authorized signatory of opposite party have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief. 

09.    The complainant has produced the Xerox copy of the minutes of the 9^th annual general body meeting of opposite party held on 03.07.2016.  In which it is stated that, before the Arbitrator the Developer has agreed to refund the amount received with 12% interest for the exchange of agricultural lands held by the nominees and the final settlement proposal before the arbitrator was on 12.08.2016.  Further the complainant has produced a letter dated: 07.08.2016 issued by opposite party, in which it is stated that, opposite party has enclosed cheque for Rs.3,90,000/- in favour of the complainant along with the said letter.  Hence one thing is clear that, before the closing of the case before the Arbitrator opposite party had refunded the amount.  However the Arbitration was in between the opposite party and the Developer.  Contrary to that, counsel for opposite party has filed Xerox copy of the Arbitration award passed on 12.01.2017.

10.    The question is whether the complainant is entitle for interest.  In the letter dated: 07.08.2016 addressed to the complainant by the opposite party it is stated that, cheque for Rs.3,90,000/- has been enclosed and the same is in full and final settlement of all the claims of the complainant over the site booking amount.  We feel the say of the opposite party in the letter with regard to full and final settlement is one sided and an unilateral one.  Hence it cannot be said that, on the basis of the said letter the complainant had waived the interest and opposite party is not liable to pay interest.  According to the opposite party the complainant’s application was under wait listed candidates and instalments received by the wait listed candidates will be credited to their respective accounts and it does not carry any interest at the time of refund.  In support of the same opposite party did not produce any documents.

11.    According to the complainant she has paid the first instalment of Rs.75,000/- on 01.05.2006, second instalment of Rs.1,25,000/- on 22.07.2006 and last instalment of Rs.1,90,000/- was paid on 04.11.2006.  Further the refund of the said total sum amount was made through cheque on 07.08.2016.  Hence about 10 years the money of the complainant was with the opposite party.  According to the opposite party it has invested the money collected from the members towards the development of the project.  Admittedly residential site has not been given to the complainant.  The opposite party did not produce any document to say that, the complainant had waived the interest.  We feel since the opposite party had used the money of the complainant towards the development of the project and since the site has not been given, the complainant is entitle for interest over the said amount paid.  In the event the interest is not allowed it amounts to allowing the opposite party to have a wrongful gain and the same is not permitted under the Indian Contract Act.  Even in-spite of notice been issued by the complainant, opposite party did not pay interest.  Hence we feel the non-action of the opposite party amounts to unfair trade practice within the meaning of Section 21 of Consumer Protection Act.  Hence we answer the point in the affirmative.

12.    POINT NO.2:-     The complainant claimed interest at the rate of 12% per annum.  We feel the said rate of interest is an exorbitant one and it would suffice if 9% interest per annum is granted.  Hence the opposite party has to pay interest on the amount of Rs.3,90,000/- from the date of respective payment till realization.  Further even though the complainant has paid the amount for the site, the opposite party has failed to accommodate a site and failed to pay the interest on the amount paid.  Hence the complainant was put under mental agony during the said period.  Hence the complainant is entitle for a sum of Rs.20,000/- towards mental agony.  Further the act of opposite party made the complainant to get issued legal notice and to file the present case.  Hence the complainant is entitle for a sum of Rs.10,000/- towards litigation cost.  Accordingly we answer point No.2 partly in affirmative.

13.    POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-

ORDER

The complaint is allowed in part.

The opposite party is directed to pay the interest at the rate of 9% per annum on the amount of Rs.3,90,000/- from the date of respective payment been made to the opposite party till the payment of Rs.3,90,000/- been made.

Further the opposite party is directed to pay to the complainant a sum of Rs.20,000/- towards mental agony and damages and a sum of Rs.10,000/- towards litigation cost.

The opposite party shall comply the order within 30 days.   In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 20^th Day of April, 2023)                                             

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainant side:

Dr. Ashwin C. Shetty, GPA holder of complainant has filed affidavit in the form of her evidence in chief.

Documents submitted by the complainant side:

1. Copy of GPA
2. Application form for booking of residential sites
3. The membership and site booking No.
4. Copy of Membership along with site booking receipt.
5. Copies of site booking payment receipts in 3 installments
6. Copy of opposite party letter dt.07.02.2006.
7. Copy of rules and regulations of Syndicate Retired Employees Housing scheme
8. Office copy of legal notice
9. Postal receipt and acknowledgment
10. Reply letter of Opposite party

Witness examined for the opposite party side: 

Sri. S.L. Naik, the authorized signatory of opposite party has filed affidavit in the form of his evidence in chief.

Documents submitted by the Opposite Party side:

1. Copy of Registration Certificate of the society under the Karnataka Societies Registration Act – Document No.1.

2. Copy of Arbitration Settlement award with proceedings dt.12.01.2017 – Document No.2.

3. Copy of Letter dt.01.04.2006 sent to complainant – Document No.3.

4. Copy of letter dt.21.05.2006 sent to complainant – Document No.4

5. Copy of letter dt.13.07.2016 sent to complainant – Document No.5.

6. Copy of letter dt.29.07.2016 written by complainant to opposite party – Document No.6.

7. Copy of letter dt.01.08.2016 written by complainant to OP – Document No.7.

8. Copy of letter dt.07.08.2016 sent to complainant by OP – Document No.8.

9. Copy of the RPAD acknowledgement dt.13.08.2016 – Document No.09.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•