IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> <br /> 2. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 213/09 DATED 20.08.2009<br /> ORDER<br /> <br /> Complainant M.V.Krishna, S/o K.Vasu, No.112, L-9, 2nd Cross, Tank Road, N.R.Mohalla, Mysore. Rep. by its GPA Holder M.V.Dayananda, S/o K.Vasu, No.112, L-9, 2nd Cross, Tank Road, N.R.Mohalla, Mysore.<br /> <br /> (INPERSON)<br /> <br /> Vs. <br /> Opposite Party 1. M.Sanjeeva Shetty, President, <br /> 2. B.N.Shubhashini, Secretary,<br /> Both are working at Sri.Ramakrishna Gruha Nirmana Saharakara Sangha Ltd. (South), Sri Lakxhminarasimha Complex, No.40/1, 4th Main Road, V.V.Mohalla, Mysore-02.<br /> (By Sri. P.D.Medappa, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 17.06.2009<br /> Date of appearance of O.P. : 10.07.2009<br /> Date of order : 20.08.2009<br /> Duration of Proceeding : 1 MONTH 10 DAYS<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint against the opposite parties seeking a direction to refund a sum of Rs.5,01,250/- along with 18% interest and further, it is prayed for Rs.50,000/- towards mental agony and the cost of the proceedings. <br /> <br /> 2. It is alleged that, the opposite party society offered to allot sites to the members and as such, paying Rs.1,150/-, the complainant become the member. On 11.11.2006, the complainant paid first installment of Rs.2,40,000/- raising loan from the bank. Further, complainant paid second installment of Rs.1,10,000/- on 15.12.2007 and Rs.1,00,000/- on 19.11.2008. Last installment was to be paid at the time of registration of the sale deed. The opposite parties failed to develop the layout, except putting board in the land. The opposite parties did not satisfactorily answer the complainant. Ultimately, complainant decided to seek refund of the amount paid and sought refund of the amount with interest. The opposite parties by letter dated 30.05.2009, sent two cheques, one for Rs.4,50,000/- and another for Rs.1,000/- in favour of the complainant. The opposite parties did not pay the interest. Hence, the complainant returned the said cheques to the opposite parties and thereafter, the opposite parties have not made any payment to the complainant. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. In the version, the opposite parties have admitted that complainant had paid the amount who was member and on request of the complainant, the amount was refunded through cheques. There is no bylaw for payment of interest. Other allegations that the opposite parties did not develop the layout etc., is denied. Hence, it is prayed to dismiss the complaint. <br /> <br /> 4. For the complainant, his power of attorney holder has filed his affidavit and produced certain documents with list. On the other hand, President of the opposite party society has filed affidavit, wherein the facts with the reference to the version are narrated. Also, it is stated that the opposite party society moved the concerned authorities, seeking permission etc., For the opposite parties, also certain documents with list are produced. We have heard the arguments and perused the material on record.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in the service on the part of the opposite parties and that he is entitled to any amount?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- So far, concerned to refund of the amount that has been paid by the complainant to the opposite parties, there is no dispute. Only dispute is payment of interest.<br /> <br /> 8. The opposite parties dispute payment of interest mainly on the ground that there is no bylaw to that effect. Also, it is the contention of the opposite parties, that the amount collected from the members has been invested by the opposite party society in acquiring the land and other activities, and hence, the society is not liable for payment of interest.<br /> <br /> 9. Even though, the complainant has not pointed out that there is any provision under the bylaw of the opposite party society regarding payment of interest, it is relevant to note that in the letter or notice dated 03.09.2007 produced by the opposite party at serial number 2 of the list, amongst other facts, it is mentioned that in case, the installment or installments are not paid by the members to the society, interest at the rate of 18% will be levied. Hence, one point is clear that in case of delayed payment of the amount by the members of the society, the society was collecting interest at the rate of 18% p.a. When that is so, the contention of the opposite party society, that because there is no bylaw for payment of interest, it is not liable to pay interest that it has to refund to the members, is not just and proper. <br /> <br /> 10. Considering the facts, the amount that was paid by the complainant to the opposite party society has been utilized by the society to acquire the land. When that amount has been used by the society, the contention that it is not liable to pay interest is unreasonable.<br /> <br /> 11. It is the cost of the complainant that he had raised loan from bank and had paid installment to the opposite party society. So, complainant must have paid interest to the bank. Hence, claim of interest by the complainant is just and reasonable.<br /> <br /> 12. Learned advocate for the opposite parties has relied upon in all six rulings. First ruling is reported in IV (2006) CPJ 314. In this ruling, the Hon’ble National Commission has held that no interest can be claimed. In that case, flat was allotted to the complainant and the complainant defaulted in payment of the installments. Thereafter, there was full and final settlement for particular sum between the parties. In view of those facts, particularly there was full and final settlement for particular amount, it has been held that no interest can be claimed. But, such are not the facts of the case on hand. Second ruling is reported in I (2008) CPJ 415. In this case also, there was full and final settlement between the parties, and even acknowledgement was issued by the complainant and hence, it is held that dispute cannot be re-opened. Third ruling is reported in III (2009) CPJ 65. The Hon’ble Hariyana State Commission has held that the allottee surrendered the site on the ground of non-providing the necessities like School, Shopping Centre, Telephone Exchange, Post Office etc., In view of the facts of that case, the authority had deducted 10% of the total price of the flat. Next ruling is reported in III (2006) CPJ 76. The Hon’ble U.P. Commission in this ruling has held that since installments were not paid in time, interest cannot be awarded. As regards, the facts of the case on hand, that is not the contention of the opposite parties. Next ruling is reported in AIR 1996 (SC) 1981. In that case, allottee after payment of some installments, informed in capacity to pay balance installments, but that is not the case on hand. Last ruling is reported in I (2006) CPJ 284. The Hon’ble Delhi State Commission has held that interest and compensation, both cannot be awarded. Thus, these rulings will not help the opposite parties to hold that no interest can be awarded.<br /> <br /> 13. Before concluding in the prayer column, the complainant has prayed for refund of Rs.5,01,250, the amount that the complainant has paid to the opposite parties. But, in fact, complainant has paid in all three installments, first one Rs.2,40,000/-, second one Rs.1,10,000/- and third one Rs.1,00,000/-. The total would be only Rs.4,51,000/- + share certificate Rs.1,000/- and not Rs.5,01,250. <br /> <br /> 14. Considering the facts, evidence and the discussion made here before, we find deficiency in service on the part of the opposite parties and that the complainant is entitled to Rs.4,51,000/- with interest at the rate of 18% p.a. on the respective dates of payment of the installments made by the complainant, till realization. Accordingly, we answer point no.1 in the affirmative. <br /> <br /> 15. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is allowed.<br /> 2. The opposite parties are hereby directed to pay a sum of Rs.4,51,000/- to the complainant with interest at the rate of 18% p.a. from the respective dates of the payment of the installments made by the complainant to the opposite party as noted below, within 60 days from the date of this order, till realization.<br /> Sl. No. Date of installment Amount<br /> 1. 11.11.2006 1,000.00<br /> 2. 11.11.2006 2,40,000.00<br /> 3. 15.12.2007 1,10,000.00<br /> 4. 19.11.2008 1,00,000.00<br /> <br /> 3. Further, the opposite parties are hereby directed to pay Rs.2,000/- to the complainant towards cost of the proceedings.<br /> 4. Give a copy of this order to each parties according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 20th August 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />