Date of filing: 31.08.2016
Date of Disposal:21.10.2022
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
BENGALURU – 560 027.
DATED THIS THE 21st DAY OF OCTOBER, 2022
CONSUMER COMPLAINT NOs.1189/2016 C/w
1190/2016 & 1709/2016
PRESENT:
SRI.RAJU K.S,
SMT.REKHA SAYANNAVAR,:MEMBER
COMPLAINT NO.1189/2016
Smt.Durgakumari T.K,
W/o Dr.Balaji Singh,
Aged about 58 years,
Residing at No.73,
-
-
Bangalroe-560 040.……COMPLAINANT
Rep by Sri.M.V.Shankar, Adv.,
V/s
Omkarnagar Member Welfare Association (R),
Basavanagudi Bhavasar Chit Fund Private Limited,
No.127/5, 2nd Floor,
Surveyor Street,
Rep by its President...…OPPOSITE PARTY-1
Omkarnagar Member Welfare Association (R),
Basavanagudi Bhavasar Chit Fund Private Limited,
No.127/5, 2nd Floor,
Surveyor Street,
Rep by its Vice President...…OPPOSITE PARTY-2
Omkarnagar Member Welfare Association (R),
Basavanagudi Bhavasar Chit Fund Private Limited,
No.127/5, 2nd Floor,
Surveyor Street,
Rep by its Secretary...…OPPOSITE PARTY-3
Opposite party No.1 to 3 Rep by Sri.M.V.Raghu, Adv.,
COMPLAINT NO.1190/2016
Smt.Sujatha M.Alva,
W/o Mohandas Alva,
Aged about 54 years,
R/at No.108, Block-192,
Jeevan Mitra Apartment,
-
Bangalore-560 078.……COMPLAINANT
Rep by Sri.M.V.Shankar, Adv.,
V/s
Omkarnagar Member Welfare Association (R),
Basavanagudi Bhavasar Chit Fund Private Limited,
No.127/5, 2nd Floor,
Surveyor Street,
Rep by its President...…OPPOSITE PARTY-1
Omkarnagar Member Welfare Association (R),
Basavanagudi Bhavasar Chit Fund Private Limited,
No.127/5, 2nd Floor,
Surveyor Street,
Rep by its Vice President...…OPPOSITE PARTY-2
Omkarnagar Member Welfare Association (R),
Basavanagudi Bhavasar Chit Fund Private Limited,
No.127/5, 2nd Floor,
Surveyor Street,
Rep by its Secretary...…OPPOSITE PARTY-3
Opposite party No.1 to 3 Rep by Sri.M.V.Raghu, Adv.,
COMPLAINT NO.1709/2016
N.K.Acharya W/o late N.R.Acharya,
Aged bout 67 years,
Residing at No.413,
-
Hosur Main Road,
Opp:Biocon, Near H.P.Petrol Pump,
Hebbagodi, Kammasandra,
Bangalore-560 100.……COMPLAINANT
Rep by Sri.M.V.Shankar, Adv.,
V/s
Omkarnagar Member Welfare Association (R),
Behind Shreedhara Ashrama,
Bangalore-560 061,
Rep by its President,
Omkarnagar Member Welfare Association (R),
C/o Bhavasar Chit Fund Private Limited,
No.127/5, 2nd Floor,
Surveyor Street,
Rep by its Vice President,
Sri.M.S.Devendra Rao. ..…OPPOSITE PARTY-2
Omkarnagar Member Welfare Association (R),
No.15, Anikethana, 1st Block,
-
Kuvempu Nagara,
Mysore-570 023,
Rep by its Secretary,
Opposite party No.1 to 3 Rep by Sri.M.V.Raghu, Adv.,
//JUDGEMENT//
BY SRI.SHIVARAMA K, PRESIDENT
Even though the complainants are different in the above three cases, the opposite parties are common and the subject matter involved in the case is also common, thereby all the cases are connected together and since CC.1189/2016 is the earlier case filed, later cases are clubbed with the said case for disposal.
2. The complainants have filed the complaints for a direction to the opposite parties for refund of the amount of Rs.20,000/- received from the complainants towards the developmental charges with interest at the rate of 12% p.a. from the date of payment till the date of realization and to pay a sum of Rs.50,000/- as compensation for causing mental agony and cost of this proceedings and such other reliefs as this commission deems fit in the circumstances of the case.
3. On perusal of the records, it appears that in all the cases the complainants have filed Memo of retirement on 25.07.2019 and on 31.07.2019 the counsel was permitted to retire.
4. The opposite party no.1 & 3 in CC.1189/2016 and CC.1190/2016 have adopted the version of opposite party no.2 by filing a memo to that effect in the said cases. It is not in dispute that opposite party no.1 to 3 are represented by the President, Vice President and the Secretary of the association. Further, the office bearers in the cause title were appointed only in the Year-2014 in the Annual General Body Meeting held by the association members. Further, it is not in dispute that the complainants are also the members of the said association. Further, it is not dispute that the complainants have become the members of the association by paying Rs.200/-. Further, the complainants have paid Rs.20,000/- each to the association.
5. It is the further case of the complainants that the opposite parties association has made false promise and collected huge amount from its members and did not carry-out any developmental activities diverting the funds of the association for the personal needs of its office bearers and caused loss and hardship to its members. Further, in spite of several personal visits and the attempts been made by the complainants to take back the amount paid, the opposite parties have dragged the matter without actually not taking any steps for refund of the same and the matter was raised in the Annual General Body Meeting of the association held on 02.02.2014 and it was resolved in the meeting for refund of the amount with interest. Further, the opposite parties have refunded amount to some of its members those who are strong enough to pressurize them. Further even though the complainants have paid their share amount of Rs.20,000/- each, the opposite parties have only promised to execute the developmental activities, but dragged the matter under the guise of litigation without carrying out the works. Since the opposite parties have refunded the amount to some of the members and refused to refund the others including the complainants, this dual stand of the opposite parties amounts to unfair trade practice and also amounts to deficiency in service. Hence, the complainants have got issued legal notice seeking for refund of the amount with interest, but they gave an evasive reply.
6. It is the further case of the opposite parties that the opposite parties are part and parcel of the decisions made in the Association Annual General Body Meeting. Further, the total measurement of the area consists of 30 acres comprising various survey numbers. Further, the complainants did not become members by any force or pressure or compulsion but they became the members of the society by paying the amount of Rs.200/- voluntarily. Further, the association itself has formed for the purpose of welfare of the association members. The question of development by the opposite parties does not arise and the amount was not collected for the purpose of development or for providing any service or amenities by the opposite parties. Further no amount has been refunded to any of the members. Therefore, the amount collected from the members has been accounted in the audited accounts submitted to the AGM held in that financial year. Hence, it is sought to dismiss the complaints.
7. To prove the case, the complainants in each case have filed affidavits in the form of their evidence in chief and had produced documents. The opposite party no.1 has filed affidavit in the form of his evidence in chief and produced documents in each case.
8. Counsels for the complainants and opposite parties have filed written arguments in each case.
9. Heard the arguments.
10. The points that would arise for consideration in all cases are as under:
i) Whether the act of the opposite parties amounts to unfair trade practice ?
ii) Whether there is deficiency of service on the part of the opposite parties ?
ii) Whether the complainants are entitled for the
compensation as sought ?
iii) What order ?
11. Our findings on the aforesaid points in all cases are as follows:
Point No.1 : In negative
Point No.2 : In negative
Point No.3 : In negative
Point No.4 : As per the final order for the following;
REASONS
12.POINT NO.1 & 2 IN CC.1189/2016, 1190/2016 & 1709/2016:-
In order to avoid the repetition of facts, I have discussed both the points together. The complainants and the opposite party no.1 in each case have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief. It is the contention of the learned counsel for the opposite parties that the complaints are bad for non-joinder and mis-joinder of parties. Since the present office bearers were appointed only in the Year-2014 Annual General Body Meeting held by the Association Member and the actions initiated by previous association office bearers does not bind on the present office bearers who were recently made as office bearers by the members. We feel the complaints are not against the officer bearers personally and the complainants did not seek the liability against the office bearers personally. Even though the present office bearers were not in the picture, the complainants might have paid the amount to the association. The designation of the office bearers have continued from the date of formation of the association. Further, the association once formed continued till the date of filing the complaints and thereafter also. Hence, we feel there is no merit in the contention of the learned counsel for the opposite parties in that aspect.
13. It is the further contention of the learned counsel for the opposite parties that this commission has no jurisdiction, in view of the alternative remedy available to the complainants to agitate their right before the Registrar of Karnataka Co-operative Societies. Contrary to that, it is contended by the learned counsel for the complainants that Section-3 of Consumer Protection Act, 1986 contemplates that the jurisdiction of this commission shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Hence, the litigant can invoke the provisions of Consumer Protection Act, 1986 to agitate their right and for its redressal. In support of the contention, the counsel for the complainants relies the judgement rendered by the Hon’ble Supreme Court of India in appeals (civil) 92/1998 between the Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s M.Lalitha (dead) through Lrs and other, decided on 13.12.2003. Counsel relies the judgment rendered by Hon’ble NCDRC Revision Petition No.82 to 86/2001 decided on 13.03.2001 between Smt.Kalawati and others V/s M/s United Vaish Co-operative Thrift and Credit Society Limited. Counsel relies the judgment rendered by (2003)2 Supreme Court cases 412 between State of Karnataka V/s Vishwabharathi House Building Co-operative Society and others. In all the judgements, it is held that the remedies under the Consumer Protection Act, 1986 are in addition to and not in derogation of the remedies under other laws. Further, the forums under the Act can entertain a complaint notwithstanding concurrent jurisdiction of other forums/courts. In view of the principles laid down in the judgments cited and the facts involved in the case on hand, we feel there is no merit in the contention of the learned counsel for the opposite parties to that aspect.
14. It is the contention of the learned counsel for the complainants that the opposite parties failed to keep up its promise, thereby causing loss and hardship to the complainants and other members. Further, the opposite parties association has collected the amount from the complainants and other members towards the development of the layout with a promise to carry-out the developmental work but failed to carry-out the same and after much effort by all the members promised to refund the amount but refunded only to some members who are strong enough to pressurize them. The complainants did not get examined such members before this commission to which of the opposite parties been refunded the amount. Hence, the complainants have failed to prove the said aspect. Contrary to that, it is the contention of the learned counsel for the opposite parties that the amount collected cannot be used for development of the layout and the opposite parties did not promise to carry-out the developmental work. The complainants did not produce any documents to substantiate that the money collected was for developmental of layout. Generally, it is not the work of the welfare association to develop the layout as contended by the learned counsel for the complainants. Hence, there is no merit in the said contention of the learned counsel for the complainants.
15. It is the further case of the complainants that the opposite parties office bearers have used the money collected from the members for their personal use. It is the contention of the opposite parties that the amount collected was duly audited and it was approved in the general body meeting held in the Year- 2014 itself. Contrary to that, the complainants did not produce any documents to substantiate their contention taken. Hence, there is no merit in the said contention of complainants.
16. It is the further contention of the learned counsel for the complainants that even though demand was made for refund of Rs.20,000/- collected from the complainants, the opposite parties did not return it. On contrary to that, it is the contention of the learned counsel for the opposite parties that the amount collected from the complainants including other members was for the welfare of the members to conduct developmental and welfare activities and the association at no point of time had refunded the said amount to any of its members. Further, since there is no provision for return of the said amount collected, the question of refund does not arise. The complainants did not produce any documents to evidence that the opposite parties association had undertaken to return the said amount when demanded by the members.
17. Further, it is contended by the learned counsel for the opposite parties that the complainants are also the members of the association, unless it is resolved or decided in the annual general body meeting to refund the amount collected to the members, the complainants cannot claim for that. We feel there is merit in the contention of the learned counsel for the opposite parties since the activities of the association shall be decided in the annual general body meeting or else the activities taken by the association shall be against any law or policy or principles of natural justice. No such thing has been proved by the complainants in the case on hand.
18. It is further contended by the learned counsel for the opposite parties that some of the members have filed cases before the civil courts for recovery of the amount paid by them to the opposite parties society and the court had rejected it. In support of the contention, the counsel has produced Xerox-copy of the judgment in S.C.No.3/2016 rendered by the court of Hon’ble Prl.Small Causes and Senior Civil Judge, Mysore between M.C.Shivashankar V/s B.K.Sathyanarayana, President, Omkar Nagar Members Welfare Association and others, decided on 19th November, 2020. The court has passed the order in dismissing the suit. In view of the above reason, we feel the complainants are not entitled for refund of the amount paid by them towards opposite parties Association. Hence, the question of deficiency of service does not arise. Further, the complainants have failed to prove any type of unfair trade practice as contemplated under Section-2(1)(r) of Consumer Protection Act, 1986 and deficiency of service as contemplated under Section-2(1)(g) of Consumer Protection Act, 1986. Hence, we answer point No.1 & 2 in all the cases in negative.
19.POINT No.3 IN CC.1189/2016, 1190/2016 and 1709/2016:- In view of the discussions made above and findings given on point No.1 & 2, the complainants are not entitled for any relief sought. Accordingly, we answer this point in negative.
20. POINT IN CC.1189/2016, 1190/2016 and 1709/2016:- In view of the discussion made above, we proceed to pass the following;
-
The complaints in CC.1189/2016, 1190/2016 and CC.1709/2016 are dismissed. No order as to costs.
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, stand disposed of in terms of the aforesaid judgment.
Keep the original order in CC.1189/2016 and copy of the order in CC.1190/2016 & CC.1709/2016.
(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 21st day of OCTOBER, 2022)
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA, K)
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//ANNEXURE//
Witness examined for the complainants side:
Smt.Durgakumari T.K, the complainant has filed her affidavit in CC.1189/2016.
Sri.Sujatha M.Alva, the complainant has filed her affidavit in CC.1190/2016.
Sri.N.K.Acharya, the complainant has filed his affidavit in CC.1709/2016.
Documents marked for the complainants side in CC.1189/2016, CC.1190/2016 and CC.1709/2016:
1.Copy of the sale deed for having purchase the site in layout.
2.Copy of the receipt for having paid the developmental charges to the opposite parties.
3. Copy of the receipt for refunding the development charges to one of the member.
4. Copy of the legal notice issued to the opposite parties.
5. Copy of the reply by the opposite parties.
Witness examined for the opposite party side:
Sri.Sathyanarayana Rao, the opposite party No.1 has filed his affidavit in CC.1189/2016, CC.1190/2016 and CC.1709/2016.
Documents marked for the Opposite Party side in CC.1189/2016, CC.1190/2016 and CC.1709/2016:
1. Copy of the meeting notice dt.29.12.2016.
2. Copy of the meeting notice dt.23.06.2012.
3. Copy of the memorandum of meeting.
4. Copy of the registration certificate.
5. Copy of the Gazette Notification.
6. Copy of the audit report dt.30.11.2014.
7. Copy of the audit report dt.30.12.2015.
8. Copy of the bank statement.
9. Copy of the notice dt.19.02.2014.
10. Photos land developed by the opposite parties.
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA, K)
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