O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> <br /> The grievance of the complainant against the Op in brief is, that she became a member of first Op housing co-operative Society who had invited application for allotment of site. That she on 18/05/2009 applied for allotment of a site measuring 30’ X 40’ for consideration of Rs.6,12,000/-. On the request of the Ops to pay Rs.1,95,000/- as initial deposit she paid that advance amount to Ops on 17/06/2009 and obtained receipt. Thereafter, despite approaching the Ops for allotment of site they went on giving vague replies. Therefore, she sent a registered letter on 21/12/2009 to the Ops to refund her money. But they have not responded till date. Therefore attributing deficiency to the Ops has prayed for a direction to them to execute a sale deed in respect of site or to pay present market value of the site besides ordering to pay compensation of Rs.50,000/- for mental agony and cost.<br /> <br /> Ops appeared through their advocate filed version on behalf of Op No.1 with a memo on behalf of Op No.2 adopting version of Op No.1 on behalf of Op No.2. In the version, the Ops admitted that the complainant was a member of Op No.2 society and its directors were trying to identify lands suitable for formation of layout and that one Vasudev, the brother of the complainant was their auditor who introduced one Annegowda, the Partner of Lolitha Developers as a developer who demanded Rs.2.00 lakhs to provide them all necessary legal documents of certain lands then they decided to form layout on Kaderanahalli Village, Nelamangala road as first stage and Thavarekere Village as second stage and that Annegowda who offered to identify lands did not do it but cheated them. That complainant deposited Rs.1,95,000/- through her brother Vasudeva and that complainant has paid that amount to developer Annegowda who has signed the voucher and denying that they have received an advance from the complainant have contended that when they proposed to give complaint against the complainant and her brother to the Police they requested them not to do so and they will settle the matter amicably but did not do and therefore by further stating that complaint is not maintainable have prayed for the dismissal of the complaint.<br /> <br /> In the course of enquiry into the complaint, the complainant has filed affidavit evidence, whereas the Ops who were required to pay cost of Rs.2,000/- for the delay in filing their version neither paid the cost nor have come forward to file their affidavit evidence as such Ops have not filed their affidavit evidence. The complainant along with the complaint has produced a publication issued by the Op No.1 calling for applications, a copy of receipt issued by the Secretary of Op No.1 on receipt of Rs.1,95,000/- and copy of the letter she had addressed to Op. Counsel for the Op has produced a payment voucher to show as if this complainant had paid Rs.1,95,000/- to M/s. Lolitha Developers. Counsel for the complainant has filed written argument which is nothing but reproduction of the complainant’s evidence. <br /> <br /> We have gone through the materials placed before us and on the basis of which following points for determination arise.<br /> <br /> 1. Whether the complainant proves that she has paid an advance amount of Rs.1,95,000/- to first OP and that Ops thereafter have failed to provide either site to her or in not refunding the advance money.<br /> 2. To what Order the complainant is entitled to?<br /> <br /> <br /> Our findings are as under:<br /> <br /> Point No.1: In the affirmative<br /> Point No.2: See the final order<br /> <br /> REASONS:<br /> <br /> Answer on point No.1: On going through the rival contention of the parties there is no dispute in these Ops had floated a Housing Co-Operative Society and is evident from the hand bill produced by the complainant, they had invited applications for becoming members for allotment of sites.<br /> <br /> The complainant has produced a copy of the receipt dated 17/06/2009 which shows that the Secretary of Op No.1 has received Rs.1,95,000/- as advance for allotment of a site, Ops have not denied the genuineness of this receipt. The complainant had also issued a notice to the President of Op No.1 on 21/12/2009 to refund her money since she has not been allotted a site. But the Ops have not denied receipt of this letter also. Ops though have produced a voucher claiming as if this complainant had paid that advance amount to M/s. Lolitha Developers but it is a Xerox copy found to had been prepared in the office of Op No.1. This Xerox copy do not indicate that the amount was paid by the complainant directly to that developer. It looks that Op No.1 alleged to had paid Rs.1,95,000/- to the developers towards purchase of land for which they cannot connect the complainant. Thus the claim of the complainant her evidence and the document she has produced unerringly prove that Op No.1 Society by its Secretary after receipt of Rs.1,95,000/- towards allotment of a site issued it and thereafter kept silent in not refunding the amount despite demand. It is further found that Op No.1 Society without even acquiring any land floated a scheme for formation of layout and called for deposit which amounts to unfair trade practice. The first Op Society in our view cannot escape from his liability to repay the advance amount paid by the complainant. The complainant has made the housing co-operative society as Op No.1 representing by his President and Secretary of the Society as Op No.2. The President of the society found to have not in any way personally involved except in his official capacity and not even a signatory to the receipt issued to the complainant. Therefore, President can not be personally held as liable. Therefore, Society represented by its Secretary is held as liable to re-pay the complainant’s money. Evidence of complainant has not been submitted by filing counter affidavit by Ops. Hence we accept the case of the complainant. With this, we answer point No.1 in the affirmative and pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaint is allowed. Op No.1, Society represented by its Secretary is held as deficient in not refunding the complainant’s money is therefore directed to refund of Rs.1,95,000/- to the complainant with interest @ 16% p.a from the date of deposit to till the date of payment.<br /> <br /> Ops society shall also pay cost of Rs.3,000/- to the complainant. <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 8th July 2010.<br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />