Date of Filing:17.07.2009<br /> Date of Order: 19.11.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 19TH DAY OF NOVEMBER 2009<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> COMPLAINT NO: 1687 OF 2009<br /> <br /> Savitri Raghuram<br /> W/o. L.C. Raghuram<br /> R/at B1-602, White House Apartments<br /> 6th Main, R.T. Nagar<br /> Bangalore 560 032<br /> Rep. by her Power of Attorney holder<br /> L.C. Raghuram Complainant<br /> V/S<br /> 1. Swagriha Builders & Developers<br /> No. 163, 9th Main, RMV Extension<br /> Bangalore 560 080<br /> <br /> 2. Lokappa Gowda<br /> Chief Executive Officer<br /> Swagriha Builders & Developers<br /> No. 163, 9th Main, RMV Extension<br /> Bangalore 560 080 Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed by the complainant seeking refund of Rs. 68,000/- with interest and compensation.<br /> The facts of the case are that opposite party No. 1 is a partnership firm. Opposite party contacted complainant and promised that they will allot a site measuring 2400 sq.ft. for a consideration of Rs. 2,12,500/- at a residential layout “Green Nest” at Vajarahally village. The complainant had given advance of Rs. 14,000/- on 15.04.1996. The parties entered into agreement of sale dated 12.08.1996. After signing the agreement complainant has paid an aggregate amount of Rs. 54,000/- from 1997-1998 totally in 10 installments. The complainant went with the entire money and was ready and willing to perform her part. The complainant and her husband went to inspect the site and they were shocked to see that there has not been any development at all with respect to land. The opposite parties admitted there was dispute with the Karnataka Industrial Area Development Board. The opposite party wanted a letter of proof from the allottees and they took the letter from the complainant. Opposite parties have admitted that they are liable to pay Rs. 68,000/- with interest. As per clause 8 of the agreement of sale opposite parties are liable to pay interest at 18% p.a. if they fail to carry out all formalities. Complainant is a senior citizen. She has sent legal notice to the opposite parties. Despite notice opposite party did not care to settle the due amount. Hence, the complaint for deficiency in service on the part of opposite parties.<br /> 2. After admitting the complaint notice issued to opposite parties. Opposite party No. 1 & 2 appeared through counsel and submitted defence version admitting that complainant has paid Rs. 14,000/- as stated in para 5 of the complaint. Opposite parties have also admitted that complainant has paid Rs. 68,000/- as stated in para 6 of the complaint. The opposite parties have also admitted agreement of sale entered into between the parties. It is admitted by the opposite parties that they have received Rs. 68,000/-. The opposite parties have taken contention that complaint is barred by limitation. The opposite parties submitted in their version that if the Hon’ble forum comes to a conclusion that and going to award any compensation to the complainant same may be awarded for making payments to the opposite parties after getting compensation from the land acquisition officer. The land in question has been acquired by KIADB and opposite party has filed writ petition before the high court. The proceeding before the Land Acquisition Officer is still pending. <br /> 3. Since, the payment and almost all facts are admitted filing of evidence have dispensed with and arguments are heard. <br /> 4. The points for consideration are:<br /> 1. Whether there is deficiency of service on the part of opposite party?<br /> 2. Whether the complainant is entitled for refund of amount with interest?<br /> <br /> 5. I have gone through the complaint allegations, defence version and documents. By the pleadings of the parties it is very clear that complainant has paid Rs. 14,000/- on 15.04.1996 including registration of membership. This amount has been paid through D.D. to the opposite parties. Thereafter, the complainant has paid Rs 54,000/- in 10 installments from 1997-1998. The parties have entered into agreement of sale on 12.08.1996. The complainant has produced copy of agreement of sale and receipt for Rs. 14,000/-. The complainant has also produced receipts to show that she has in all paid Rs. 54,000/- to the opposite parties. The complainant has also produced letter of the opposite party and the membership application and also the brochure of the opposite parties. As regards payments made by the complainant there is absolutely no dispute. The opposite party has clearly admitted in the version the payment made by the complainant. It is the case of the opposite parties that since the land in question was acquired by KIADB the layout could not be formed and there was litigation pending in Hon’ble High Court of Karnataka and also before Land Acquisition Officer. In view of pendency of litigation the opposite parties are not in a position to form layout and allot sites to the its members. Therefore, the only remedy available to the complainant is to get the refund of amount with interest, since, the opposite parties have received the amount from the complainant towards allotment of site and it has failed to allot the plot as per the agreement for so many reasons. Therefore, the opposite party is bound to refund the amount. Under the facts and circumstances of the case grant of interest at 10% p.a. would be just, fair and reasonable. This will meet the ends of justice. The opposite parties have taken defence that complaint is barred by time. This defence is not available to the opposite parties because it is continuation of cause of action. Till allotment of site and registration of the same the cause of action will continue. The complainant had demanded the opposite parties to allot site and execute sale deed. But the opposite parties could not allot the site due to so many reasons. Therefore, there is no question of bar of limitation in this case. The complaint is maintainable. It is just, fair and reasonable to order the opposite parties to refund the amount with interest. In the result I proceed to pass the following:<br /> ORDER<br /> 6. The complaint is allowed. The opposite parties are directed to refund Rs. 68,000/- to the complainant along with interest at 10% p.a. from 15.09.1998 (last date of payment) till payment / realization.<br /> 7. The complainant is also entitled for Rs. 2,000/- as costs of the present proceedings from the opposite parties.<br /> 8. Send the copy of this Order to both the parties free of costs immediately. <br /> 9. Pronounced in the Open Forum on this 19TH DAY OF NOVEMBER 2009. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br /> <br />