Complaint filed on: 21-10-2010

                                                      Disposed on: 09-02-2011

BEFORE THE BANGALORE IV ADDITIONAL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.2421/2010

DATED THIS THE 9^th FEBRUARY 2011

PRESENT

SRI.D.KRISHNAPPA., PRESIDENT

SRI.GANGANARASAIAH, MEMBER

SMT. ANITA SHIVAKUMAR. K, MEMBER

Complainant: -             

                                                Narayana Bhat Kekanaje,

                                                No.568, 2^nd Main Road,

                                                2^nd Phase, 6^th Block,

                                                BSK 3^rd stage, Bangalore-85

V/s

Opposite party: -

                                                Secretary,

                                                Vishwa Bharathi House Building

                                                Co-operative Society,

                                                No.35, Ratna Vilas Road,

                                                Basavanagudi, Bangalore- 04

O  R D E R

SRI. D.KRISHNAPPA., PRESIDENT.,

          The grievance of the complainant against the opposite party [herein after called as OP] in brief is, that he became a member of the OP society in the year 1980 by paying membership fee of Rs.101.62 paise. The OP society earlier was called Writers and Artists House Building Co-operative Society. Then on 28-8-1980 he paid Rs.2,000/- as advance for the 4^th phase layout of Vishwa Bharathi International Complex Layout. On 10-7-1980 he was allotted a site bearing No.252 measuring 60 X 80 feet at a total cost of Rs.26,667/-. Thereafter he paid Rs.2,000/-, Rs.500/-, Rs.5000/-, Rs.500/- and certain payments subsequently and in all paid Rs.2,80,000/- to the OP society. But the OP has failed to allot a site therefore has prayed for a direction to the OP to register a site of 4^th phase, VHBCS in his favour and also award damages.

          2. OP has filed his version through their advocate by denying that the complainant is a member of the OP society and also receipt of certain payments made by the complainant on different dates. It is further contended by him on verification of the records available in their society, there are no such details/reference, acknowledgement regarding alleged membership of the complainant and payments made. The OP has also denied allotment of any site on the agreed rate of Rs.26,667/-, he has further denying receipt of monies under receipt No.255, 92, 12, 4374, further repeated there are no such documents evidencing receipt of those payments. He has further denied payments of Rs.20,000/- on 3-5-1999, Rs.30,000/- on 5-11-2007, Rs.60,000/- on 3-11-2007 and stated that receipts of those amounts stand in the name of Vishwabharathi Housing Project, which is nothing to do with the OP society and all those receipts are created in collusion with the then president B.Krishna Bhat and therefore they are not binding on them and the OP society is not liable under those receipts. The OP further denying allotment of any site has stated that no such layout had been formed and available. Thus the question of allotting a site to the complainant as claimed by him do not arise and denying all the allegations of the complainant has stated that the president was not authorized to receive any money from the member and denying their liability has prayed for dismissal of the complaint.

          3. In the course of enquiry into the complaint, the complainant and the OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant alongwith the complaint has produced Xerox copies of receipts under which he claim to have made those payments, copy of membership receipt and copy of intimation of site allotment dated 10-7-1980. The OP has not produced any documents. We have heard the complainant who is in person and counsel for the OP and perused the records.

          4. On the above contentions following points for determination arise.

1)     Whether the complainant proves that he has in all paid Rs.2,80,000/- to the OP society and that OP had allotted him a site No.252 measuring 60 X 80 feet of 4^th phase, Vishwa Bharathi Housing Complex Layout and the OP has caused deficiency in not registering that site in his favour?

2)     To what reliefs, the complainant is entitled to?

5. Our findings are as under:

Point no.1: Answered in part in the affirmative   

Point no.2: See the final Order

REASONS                   

          6. Answer on Point No.1:  The complainant by producing a copy of receipt dated 12-6-1980 claimed to have become a member of the OP society by paying membership fee of Rs.101.62 paise. The counsel for the OP has disputed this receipt by further contending that on verification, they did not find this complainant as a member of the OP society and receipt of this money in the society. But the learned counsel did not dispute that this receipt was issued on behalf of the OP society with its seal. Further the learned counsel for the OP has not disputed that as on that date the secretary was in working in the OP society was authorized to enroll members. Therefore the objection of the OP that the complainant has not became a member of the OP society cannot be heard.

          7. The complainant further invited our attention to other receipt dated 6-6-1982 under which  he is shown to have paid Rs.500/- through a cheque, Rs.90,000/- on 5-11-2007 through a DD, Rs.2,000/-, Rs.500/- on 28-8-1980, Rs.5000/- on 30-10-1980 and to intimation of site allotment letter dated 10-7-1980. The learned counsel for the OP, in the course of arguments referring to the version he has filed, argued that even these payments are not accounted in the society, therefore those payments cannot be considered as payments to the OP society. Again it is necessary to refer to these receipts, and payments made through cheques and DD. We had even questioned the advocate for the OP, as these payments are made through cheques and DD, the OP could have verified whether the cheques and DD are enchased on behalf of the OP society or not and to make categorical statement before this forum. For that OP has not placed any materials to show as to whose account those payments are appropriated. Further the OP has not denied when these payments were received by the OP society a particular secretary was working and signatures found in these receipts are stated as signatures of the secretary.

          8. The complainant in addition to these payments has produced copy of receipts dated 5-11-2007 for Rs.60,000/-, dated 5-11-2007 for Rs.30,000/- and another receipt dated 5-11-2007 for Rs.90,000/- and one more receipt dated 3-5-1999 for Rs.20,000/- and stated that these payments are also made to the OP society. But as admitted by him these receipts are issued by Vishwabharathi Housing Project. The OP has taken a contention that this Vishwabharathi Housing Project has nothing to do with the OP society and it was managed by one B.Krishna Bhat and OP is not answerable and liable under these receipts. In the course of arguments, we questioned the complainant as how he took these different receipts which do not go together with the receipts of the OP society, for which the complainant submitted that the then president of Vishwabharathi Housing Project collected those money towards miscellaneous expenditure. However, the complainant has not been able to substantiate that these payments made in favour of Vishwabharathi Housing Project have anything to do with the OP society and that OP is liable to account for it. The complainant has not made the person who received those payments as party to this complaint. Therefore as rightly contended by the OP, he cannot be called upon to account for the payments received under these receipts.

          9. The OP has contended that 4^th phase Vishwabharathi Housing complex layout has not at all been floated and is in existence. The learned counsel for him argued that all these documents have been set up by the then president of the OP society namely B.Krishna Bhat in collusion to unnecessarily fashion on liability to the OP. However, the complainant has not been able to rebut the contention of the OP and to substantiate the existence of such Housing Complex Layout for providing him a site. It is the complainant’s own case that value of a site was fixed tentatively as Rs.26,667/- if that was so why and how he made Rs.2,80,000/- as against that amount, in the absence of any demand is a doubtful issue. However, on considering all these materials, we find that the transaction of the complainant with the then president of OP society has not been fully fair and is not a foot proof. In the course of arguments, it was made out that certain assets of OP society earlier headed by B.Krishna Bhat are in the hands of the present OP. Therefore certain payments made by the complainant in favour of the OP society during the presidentship of B.Krishna Bhat cannot be denied. Thus the OP for those amounts paid to the OP society is liable. In the course of arguments the complainant as alternative prayed for refund of money. Considering this we partly allowed the complaint and we answer point No.1 partly in the affirmative and pass the following order:

ORDER

Complaint is allowed in part. OP is directed to repay Rs.98,000/- paid to OP society to the complainant within 60 days from the date of this order with interest at 15% per annum from the date of the complaint till the date of repayment.

OP shall also pay cost of Rs.2,000/- to the complainant.

Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 9^th February 2011.

Member                         Member                  President