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 /> 2. Smt.Y.V.Uma Shenoi,<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 328 & 329/09 DATED 02.11.2009<br /> COMMON ORDER<br /> <br /> Complainant in C.C.328/2009<br /> <br /> <br /> Complainant in C.C.329/2009 N.Shantha, <br /> W/o Late B.M.Hanumanthappa, No.113, 6th Main, 5th Block, Jayanagar, Bangalore.<br /> Tilak.H., <br /> S/o Late B.M.Hanumanthappa,<br /> No.113, 6th Crosss, 5th Block, Jayanagara, Bangalore.<br /> Rep. by GPA Holder, N.Shantha<br /> (By Sri C.M. Advocate)<br /> <br /> Vs. <br /> Opposite Party in both cases is same 1. M.Sanjeevashetty, President,<br /> 2. Subhashini.B.N., Secretary<br /> Sri Ramakrishna House Building Co-operative Society (South), Sri Lakshinarasimha Complex, No.40/1, 4th Main Road, V.V.Mohalla, Mysore-02.<br /> (By Sri K.R.S. Advocate)<br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaints : 01.09.2009<br /> Date of appearance of O.P. : 23.09.2009<br /> Date of order : 02.11.2009<br /> Duration of Proceeding : 1 MONTH 9 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. In both the cases, opposite parties are common. The facts alleged in the complaints and the contentions of the opposite parties in the versions are similar. Hence, for convenience, both the cases are being disposed off by the common order.<br /> <br /> 2. The complainants have filed the complaint under section 12 of the Consumer Protection Act against the opposite parties, seeking direction to refund Rs.4,51,000/- the advance paid towards site along with interest at the rate of 18% p.a. and further, a sum of Rs.50,000/- compensation towards mental agony and cost of the proceedings.<br /> <br /> 3. In both the complaints, the respective complainants have alleged that, on 24.10.2006 they became members of the opposite party society, paying requisite fees and share amount. On 01.11.2006, they paid first installment of Rs.2,40,000/-, on 29.10.2007 second installment of Rs.1,10,000/- and on 19.11.2008 Rs.1,00,000/- the third installment to the opposite party society. Last installment only is to be paid. As assured by the opposite party society, in spite of lapse of two years, no layout has been developed, except fixing board. There is no development. The complainants lost faith in the opposite parties. Ultimately, on 12.08.2009, complainants wrote to the opposite parties to refund the amount with interest. The opposite parties replied, stating that, there is no provision for payment of interest. It is alleged that, the opposite parties failed to allot the sites as promised and also, failed to develop the layout. Hence, there is deficiency in service on the part of the opposite parties. On these grounds, it is prayed to refund the advance paid with interest and compensation of Rs.50,000/-.<br /> <br /> 4. The opposite parties in both the cases in their version, have contended that first opposite party is the President and second opposite party is the Secretary. But, the complainants have not made the society as party. On this ground, the dispute is not maintainable. It is denied that, the opposite parties assured to allot the site within 2 years, as alleged. It is contended that process of formation of housing sites is very very lengthy and time consuming. Stating so, the procedure has been narrated in detail. Further, it is stated that, the society has taken all necessary steps and moved the concerned authorities to form layout. Further, it is contend that, there is no privity of contract to pay interest by the society to the complainants. Also, it is contend that, the amount that was received by the opposite parties from the complainants, is invested in the project. Opposite parties are able to form sites, within a span of six months. Certain other allegations made in the complaints are denied. Hence, it is prayed to dismiss the complaints.<br /> <br /> 5. To prove the facts alleged in the complaints, the respective complainants have filed their affidavits and further, the first opposite party President has also filed his affidavit. Both the parties have produced certain documents. We have heard the arguments of both the learned advocate for the complainants and opposite parties and perused the entire records.<br /> <br /> 6. Now, the points for our consideration are as under.<br /> 1. Whether the complainants have proved any deficiency in service on the part of opposite parties and that they are entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 7. Our findings are as under:-<br /> Point no.1 : Partly in the affirmative.<br /> Point no.2 : As per the order.<br /> <br /> <br /> <br /> REASONS<br /> <br /> 8. Point no. 1:- The fact that the complainants are members of the housing society and that they have paid three installments towards allotment of site is admitted. Even, the opposite parties are good enough to submit that, they are ready to refund the advance paid by the complainants. However, they contend that, the society is not liable to pay interest on the said amount.<br /> <br /> 9. Hence, the main dispute between the parties is payment of interest. The opposite parties contend that, the amount that they have received from the complainants has been invested in the project. Hence, it is clear that, the society has utilized the amount of the complainants in its project, let it be for acquisition of land or related matter. Hence, the society is liable to pay interest.<br /> <br /> 10. The learned advocate for the opposite parties argued at length, pointing out the lengthy process of formation of layout and hence, he submits the society may complete the formation of layout, within 6 months. In this regard, the learned advocate taken us to the steps that the society has taken in the process. But, the fact remains that, even though the complainants paid the first installment in the year 2006, as could be seen from the photographs produced by the complainants, except the board of the society, there is no development. Under these circumstances, the complainants claim that they have lost faith in the opposite parties and hence, they have sought refund of the amount.<br /> <br /> 11. Advocate for the complainants has produced copy of the order of this Forum in CC 213/09 dated 20.08.2009. Wherein, under similar set of facts, the complaint has been allowed and the opposite parties have directed to refund the amount with interest at the rate of 18% p.a. Considering the entire facts, there are no good reasons to take contrary view.<br /> <br /> 12. In the versions, opposite parties have taken a contention that, the complainants ought to have made the society as party. Technicality speaking, it is true society is also a proper party. In the case hand, the President and the Secretary of the society are the opposite parties. Of course, in the cause title, their individual names are stated. But, in reality, the reliefs sought by the complainants is not in individual capacity of the said persons, but as Present and Secretary of the society. Hence, considering the object of the Consumer Protection Act, under the circumstances, such technicalities may not be made much.<br /> <br /> 13. Advocate for the complainants submitted that, in respect of delayed payment, the society charges interest at the rate of 18% p.a. Hence, learned counsel submits at the same rate interest may be ordered.<br /> <br /> 14. Accordingly, our finding is partly in affirmative.<br /> 15. Point No. 2:- From the discussions made above and conclusion arrived at, we pass the following order: <br /> ORDER<br /> <br /> 1. Both the complaints are allowed.<br /> 2. The opposite parties are hereby directed to refund a sum of Rs.4,51,000/- to each complainants with interest at the rate of 18% p.a. from the respective dates of payment of the amount by the complainants mentioned below, within 60 days from the date of this order, till realization.<br /> Case No. Date Receipt No. Amount<br /> CC 328-09 24.10.2006 2040 1,000/-<br /> 01.11.2006 2610 2,40,000/-<br /> 29.10.2007 4098 1,10,000/-<br /> 19.11.2008 6501 1,00,000/-<br /> TOTAL 4,51,000/-<br /> CC 329-09 24.10.2006 2041 1,000/-<br /> 01.11.2006 2611 2,40,000/-<br /> 29.10.2007 4099 1,10,000/-<br /> 19.11.2008 6502 1,00,000/-<br /> TOTAL 4,51,000/-<br /> <br /> 3. Further, the opposite parties to pay Rs.2,000/- to each of the complainants towards cost of the proceedings.<br /> 4. The original order shall be kept in CC-328/2009 and the Xerox copy in CC-329/2009.<br /> 5. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 2nd November 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> <br /> (Shivakumar.J)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br />