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

C.C.No.730/2012

DATED THIS THE 25^th JUNE 2013

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.M.SHIVALINGAPPA, MEMBER

Complainant: -             

                                                Smt.Honnamma,

                                                W/o. N.Muddappa,

                                                Aged about 71 years,

                                                Residing at No.1649,

                                                Nagappa block, Srirampura,

                                                Bangalore-21

V/s

Opposite party: -          

Sri Vinayaka Housing Co-operative

Society Ltd,

C/o. Sri Krishnarajendra Charitable

Trust, Palace compound,

Jayamahal Road,

Opposite Darga, Bangalore- 06 

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OP, under section 12 of the Consumer Protection Act, praying to pass an order, directing the OP to refund site deposit amount of Rs.18,000=00 alongwith interest at 24% per annum from the date of deposit and to pay Rs.50,000=00 as compensation for mental suffering, agony, trauma and Rs.3,000=00 towards cost of litigation and other miscellaneous expenses.

2. The brief facts of the complaint can be stated as under.

The OP is a Registered Co-operative Society under the provision of Co-operative Societies Act with object to acquire land and form layout and allot sites to the members of society. The complainant had applied for a site in the layout of OP in Hebbal-Kempapura, Bangalore north taluk and she had paid a sum of Rs.18,000=00 as site deposit in the following manger.

1.     On 23-9-1984 a sum of Rs.2,000=00 vide receipt no.1310

2.     On 29-9-1984 a sum of Rs.1,000=00 vide receipt No.1428

3.     On 31-8-1987 a sum of Rs.15,000=00 vide receipt No.3494 respectively

The OP society had assured to complainant the particular spot of site will be allotted within a period of six years maximum from the date of first payment which meant the complainant would be allotted a site in the year 1990. But even as on the date there has been no information in respect of such promised site allotment to the complainant, the complainant has personally approached on many occasions regarding the allotment of sites, but the office bearers of the OP have given evasive reply and failed to give satisfactory answers to the enquiry of the complainant. On 10-6-2011 the complainant has approached the OP to refund the site deposit of Rs.18,000=00 alongwith accrued interest as on this date. On 28-7-2011 the OP society has given reply stating that there is no provision to pay interest in their byelaw, and as such the question of paying interest on site deposit does not arise. The complainant has issued a legal notice through his counsel on 25-2-2012 calling upon to make the site deposit amount a sum of Rs.18,000=00 alongwith accrued interest within 15 days from the date of receipt of this notice. On 28-2-2012 the OP society has given very strange reply stating that it will not be possible to give any interest on site deposit and the amount of site deposit will be returned after ascertaining the details from site deposit ledger. Since the BBMP authorities have taken over the premises of the society due to expiry of lease period and they will be able to verify the details once the society premise is restored to them. The strange stand taken by the OP society is self contradictory and the complainant loosing her peace, besides having under gone heavy mental trauma, tension and agony. The OP is not forming such promised layout and allotting a site to the complainant nor paying the site deposit amount alongwith interest to the complainant and this itself amounts to deficiency of service. The OP is bound to pay site deposit amount Rs.18,000=00 alongwith interest from the date of deposit till realization, damages and cost. Hence, the present complaint is filed.

3. After service of the notice, the OP has appeared through its counsel and filed version, contending interalia as under:

It is true that, the complainant was a member of the OP society and OP has also admitted the payment of Rs.18,000=00 by the complainant towards site deposit. The society allots the sites on the basis of seniority in the layout formed by it. However, it is incorrect to allege that the society had assured the complainant that a site will be allotted at a particular spot within a period of six years from the date of first payment. It is further denied that, the office bearers of the society went on giving evasive replies as and when the complainant approached them personally. The sites are allotted on seniority basis and there is no occasion for the society to assure any individual member of any special status. It is true that, the complainant approached the society for the refund of the amount deposited by her, but it is incorrect to state that the society assured to refund the amount together with interest. The society is not a financial institution to pay the interest. It is true that, the complainant has given a letter dated 10-6-2011, the said letter is duly replied by the society stating that, the byelaws of the society do not provide for the payment of interest to the members. It is voluntary act on the part of the complainant to become the member of the society and as such all the members including the complainant are bound by the byelaws of the society, the society is not a commercial organization and functions on the basis no loss, no gain. Many times due to non-availability of lands to the extent of requirement there will be delay in allotment of sites to the members. However this is not a ground to demand for the interest. Previously, the society had invested a huge amount for acquiring lands at Hebbal-Kempapura village. Unfortunately, the transaction was involved in litigation. The litigation ran for several years and the sale transaction could not be completed. In the process, the society suffered a huge financial loss. Inspite of such a precarious position the new board of directors who took charge on 24-3-2010 notified its members that all the members to register their names who wish to get a site and to pay a sum of Rs.2,50,000=00 for the allotment of the site and it was also informed that the money already paid by them will be adjusted towards the cost of the site. However, the complainant did not contact them; the society is also trying its best to secure more lands and to form a layout in order to allot sites to its members. The complainant is not a showing any inclination to get a site allotted in her favour which is available. If a member of the society is not interested in the site, the society can refund the deposit without interest and subject to necessary deductions for which the society is entitled to. The society is making all its pragmatic efforts to acquire lands and to form layouts. In this regard, the society has tied up with a reputed developer by Nambiar Builder Pvt. Ltd and arrangements are made to allot available sites in a layout formed at Narayan Ghatta village, Anekal Road, Bangalore. The society is prepared to allot a site in the said layout provided the complainant pays sale consideration amount and bear registration charges, if the complainant does not want the site the society is prepared to refund the amount paid by her without any interest. The registered office of the society is seized by the BBMP under the provisions of Karnataka unauthorized occupation Act with all fixtures, furniture, records insides the building. The society has filed an appeal in MA no.33/2011 before the Hon’ble City Civil Court and the same is pending consideration. Since all the records are inside the building it has become very difficult for the society to carry on its work. Having come forward to collect back the initial deposit on her own, now it is not open for the complainant to make untenable allegations against the society. It is true that the complainant got issued a legal notice and the same was duly replied. The sites are allotted on first come first basis; the members are expected to wait till their term comes. The complaint is bereft of merits, motivated and a speculative one and it is liable to be dismissed with cost. The complaint is not maintainable and it is hit under section 24 of CP Act.  The complaint is not filed well within time and it is liable to be dismissed. Hence it is prayed to dismiss the complaint with cost, in the interest of justice and equity.

4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.

1.                           Whether the complainant proves that, the OP is negligent and there is deficiency of service on the part of the OP in not returning the site deposit amount alongwith interest?

2.                           If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?

3.                           What order?

5. Our findings on the above points are;

          Point no.1:  In the affirmative

Point no.2:  The complainant is entitled to

                   Rs.18,000/-alongwith 16% interest

p.a. on the said amount from the date

of respective payment, within 30 days

from the date of this order, failing which,

                   the OP shall pay the said amount to the

Complainant with 18% interest p.a. from the date of respective date to till the date of realization and to pay cost of Rs.7,500=00 towards cost of litigation.

          Point no.3:  For the following order

REASONS

          6. So as to prove the case, the complainant has filed her affidavit by way evidence and produced five copies of documents with list dated 3-4-2012. On the other hand, one Subbaraju, who being the secretary of the OP society has filed his affidavit on behalf of the OP and produced no documents. We have heard the arguments of both sides, and we have gone through the oral and documentary evidence of both parties in between line. 

7. One Honnamma, who being the complainant has stated in her affidavit that, she has applied for a site in the layout of OP and paid a sum Rs.18,000=00 as site deposit in the following manner, on 23-9-1984 a sum of Rs.2,000=00 vide receipt no.1310, on 29-9-1984 a sum of Rs.1,000=00 vide receipt No.1428, and on 31-8-1987 a sum of Rs.15,000=00 vide receipt No.3494 respectively. The OP society had assured to her that particular spot of site will be allotted within a period of six years maximum from the date of first payment i.e. 23-9-1984, which meant she would be allotted a site in the year 1990. But even as on the date there has been no information in respect of allotment of particular site to her. She has personally approached on many occasions regarding the allotment of sites, but the office bearers of the OP gave an evasive reply and failed to give satisfactory answers. On 10-6-2011 she has approached the OP to refund the site deposit of Rs.18,000=00 alongwith interest as on this date. On 28-7-2011 the OP society has given reply stating that there is no provision to pay interest as per the byelaw, so the question of paying interest on the site deposit does not arise. She has issued a legal notice on 25-2-2012 calling upon the OP to pay a sum of Rs.18,000=00 alongwith interest within 15 days from the date of receipt of this notice. On 28-2-2012 the OP society gave reply stating that it will not be possible to give any interest on the site deposit and the said deposit amount will be refunded, after ascertaining the details from site deposit ledger. Since the BBMP authorities have taken over the premises of the society and they will be able to verify the details once the society premises is restored, and due to strange stand taken by the OP society, she has lost her peace, and has undergone heavy mental trauma, tension and agony. Since, the OP has neither allotted a site nor paid the site deposit amount alongwith interest, so there is deficiency of service on the part of the OP. The OP is bound to pay site deposit amount alongwith interest from the date of deposit to till the date of realization. Hence, the present complaint is filed, so the complaint be allowed and pass an order as prayed for.  

8. By a careful reading of the averment of complaint and evidence of complainant as mentioned above, it is made clear that, the complainant has tendered her evidence in accordance with the averment of the complaint. Let us have a look at the relevant documents of complainant, so as to know whether the oral evidence of complainant is supported by documentary evidence or not. Annexure-A of the complainant is the copy of letter of complainant dated 10-6-2011 addressed to OP praying to refund her amount of Rs.18,000=00 alongwith 24% interest per annum, since she was not keeping good health and she has to meet her medical expenditure, she has lost receipts during the transit, she has submitted her affidavit in this regard and that affidavit is enclosed to the application. Annexure – B is the copy of letter from the Secretary of the OP dated 28-7-2011 stating that, if the complainant is not interested in the site please let them know they will process the refund of site deposit, for the time being, they are not accessible to their records, since the BBMP has locked their society premises. Annexure-C is the copy of legal notice of the complainant issued to OP dated 25-2-2012 calling upon the OP to refund the site deposit amount of Rs.18,000=00 alongwith 24% interest per annum within 15 days, failing which, she will take legal action against the OP. Annexure-D is the copy of acknowledgement card signed by OP. Annexure-E is the copy of letter of OP dated 28-2-2012 stating that, the society is not a commercial organization to give any interest on the deposit, so it is not possible to give any interest on the site deposit amount, since the BBMP has taken over the premises of the society and they will be able to verify the details once the society premises is restored.

9. The oral evidence of the complainant that, after receiving the amount, the OP has neither allotted a site nor refunded the amount to her is corroborated by correspondences made between the complainant and OP produced by the complainant as annexure-A to E.

10. At this stage, it is relevant to have a look at the material evidence of the OP. One M.A.Subbaraju, who being the secretary of OP society has stated in his affidavit that, the society is making all its pragmatic efforts to acquire lands and to form layouts. In this regard, the society has tied up with a reputed developer and made arrangements to allot available sites.  The society is ready to allot a site in the layout of the OP provided the complainant pays sale consideration amount and bear registration charges, if the complainant does not want the site the society is prepared to return the amount without any interest. The complaint is not within time, so the complaint be dismissed with cost.

11. So from the material evidence placed before the forum, it is made unambiguously clear that, the OP has not produced any documentary evidence, but in the evidence, the OP has admitted that, the society has received the amount from complainant and OP is ready to pay the site amount to the complainant without any interest. Since the OP did not produce any documentary evidence. The testimony of the secretary of OP deserves no much relevance. But from the version and evidence of the secretary of OP society, onething is manifest that, the OP has admitted the receipt of the money from the complainant, but defence of the OP is that, the OP is ready to refund the site amount but not interest. So taking into consideration, the oral and documentary evidence of complainant and defence of OP with regard to payment of site amount without any interest, onething is made clear that, as on this date, the OP has neither allotted the site to complainant nor refunded the amount without any justifiable grounds. It is no doubt true that, the complainant has paid the amount Rs.18,000=00 on different dates i.e. on 23-9-1984 a sum of Rs.2,000=00 vide receipt no.1310, on 29-92-1984 a sum of Rs.1,000=00 vide receipt No.1428, and on 31-8-1987 a sum of Rs.15,000=00 vide receipt No.3494. The payment of Rs.18,000=00 made by the complainant has not been denied by the OP. On the other hand, the only defence is that, the OP is ready to refund the site amount but not interest. The counsel for the complainant has relied on the following authority:

IV (2005) CPJ 51 (NC) – Juliet V.Quadros –vs- Malti Kumar and ors.

“(i) Consumer Protection Act, 1986 – Sections 2 (1) (g) and 21 (b) – Housing – Contractor – Possession not delivered – Huge amount paid- Money not refunded despite demand – Deficiency in service proved – Cause of action continuous – Complaint not barred by limitation – Refund of deposited amount with interest @ 12% p.a. directed”.

          12. The Hon’ble National Commission has made clear in the said citation that, the complaint of the complainant is not barred by limitation and cause of action continues and the Hon’ble National commission has ordered for refund of deposited amount with interest. So taking the present case on hand, on the back ground of guidelines of the said decision, it is disclosed that, the OP has not denied the receipt of the site amount paid by the complainant, but the only defence of the OP is that, the society is ready to pay the site amount without interest. The act of the OP in not refunding the site amount till this day tantamounts to negligence and deficiency of service on the part of the OP. 

13. So looking to the present case on hand, on the back ground of the said decision, we are of the view that, the present complaint of the complainant is sustainable and case of the complainant is not barred by limitation and till the allotment of site or refund of amount alongwith interest the cause of action continues, and accordingly, we hold that, the case of complainant is very much maintainable, and it is not barred by limitation as contended by OP in the version of OP. Looking at the case of the complainant, on the back ground of oral and documentary evidence of the complainant and citation of the Hon’ble National Commission as mentioned supra and defence of OP with regard to refund of site deposit amount, it is explicitly clear that, the complainant who come to forum seeking relief has proved her case with convincing material evidence that, the OP is negligent and there deficiency of service on the part of the OP in not refunding the site amount alongwith interest, and accordingly, we answer this point in a affirmative.

14. In view of our affirmative finding on point no.1, the complainant is entitled for refund of Rs.18,000=00 from the OP alongwith 16% interest per annum from the date of respective payment within 30 days from the date of this order, failing which, the OP shall pay the said amount to the complainant alongwith 18% interest per annum from the date of payment to till the date of realization. The OP is further directed to pay Rs.7,500=00 to the complainant towards cost of litigation, and accordingly, we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainant is partly allowed. The OP is directed to refund Rs.18,000=00 to the complainant alongwith 16% interest per annum on the said amount from the date of respective payment, within 30 days from the date of this order, failing which, the OP shall pay the said amount to the complainant alongwith 18% interest per annum from the date of respective date to till the date of realization.

          The OP is further directed to pay Rs.7,500=00 to the complainant towards cost of litigation.

          Supply free copy of this order to both parties.  

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this the 25^th day of June 2013).

MEMBER                                 PRESIDENT