Date of Filing:12/02/2016

Date of Order:30/07/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 30^TH DAY OF JULY 2018

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.244/2016

Vs

ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This Complaint is filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service and direct O.P to return the amount of Rs.7,80,000/- along with interest @ 24% per annum from 13.3.2006 till the date of realization being the amount paid to purchase the site, further a sum of Rs.2,50,000/- towards compensation for mental agony, and harassment, Rs.2,00,000/- towards deficiency in service, Rs.25,000/- towards cost of litigation and such other reliefs as this Hon’ble Forum deems fit. 

2.     The brief facts of the complaint are that; the complainant became a member of the O.P society by paying Rs.2,000/- towards membership fee on 13.3.2006 and applied for the site to be formed by the O.P.  Afterwards he paid on different dates a sum of Rs.7,80,000/- as mentioned hereunder:

3.     The O.P assured him that they would form a residential layout in about 65 acres and would distribute the same to the members. Inspite of waiting for many years O.P has not perform its duty  in formation of the layout, distribution of the site and allotting and registering the same in his favour.  When contacted, O.P gave different reasons on each time and that there was some litigation pending between the O.P and the land owners and developers.  O.P did not take concrete steps to form the layout. It has done nothing for all these years.  There is a dispute between the O.P and the developer and according to O.P there is an arbitration case wherein O.P has claimed Rs.83,53,67,999/- from the developer. Inspite of waiting for so many years, O.P has not carried-out its responsibility in forming the site and distributing the same. He has lost all hopes. Inspite of several correspondences O.P has not either allotted the site and register in his name nor has refunded the amount paid and hence there is deficiency in service on the part of the O.P and hence the complainant. It is also stated that similar cases against O.P were instituted in Com.No.760/2013, 766/2013 and 767/2013  and the same was allowed by this Forum and refund was ordered and hence the complainant prayed to allow the complaint.

4.     Upon  service of notice, O.P appeared before the forum through its advocate and filed its version and contended that the complainant is not a consumer and the service rendered by O.P society is not a service, that there is no deficiency in service and complaint is barred by limitation and  hence not maintainable and liable to be dismissed. No notice prior to the filing of the complaint has been issued.  O.P. has denied the allegation made against it parawise.

5.     It is further contended that the complainant became member of the society on 13.3.2006 by paying the relevant fee and also applied for a site measuring 40X60 and also admitted that a sum of Rs.7,80,000/- has been paid on  13.3.2006 Rs.1,50,000/-, 9.6.2006 Rs.2,50,000/- 11.9.2006 total Rs.3,80,000/-. O.P entered into several agreement with one Mr.Thimmegowada of M/s S.P. Developers for development of  sites in an area of 40 acres at Bidadi.   The O.P has sent communication letter to its member informing them the development of the society.  On 10.04.2014 and 29.4.2014 the complainant was informed by way of communication that the managing committee has taken decision to take legal action against said developer as he did not develop the land and formed the site. The complainant was also informed that the managing committee decided to initiate arbitration proceedings and claimed a sum of 83,53,67,999/- for the loss suffered by it and also for the alternate reliefs of 312 crores. Complainant has also participated in the meetings of the society. It is false to allege that O.P with sufficient knowledge is purposefully causing delay in farming sites and delivering the same. Complainant has not paid any remuneration or charges to the O.P and service provided by O.P is free of cost.  The complaint referred in the complaint though decided have been appealed before the State Commission. One Hon’ble Justice G.Pathri Basavana Gowda was appointed as arbitrator and the matter is pending decision by the arbitrator  The managing committed has not misused the fund and there need not be any apprehension about the amount paid by the complainant. The General Body Meeting has decided not to refund the amount to its member and insisted the Managing committed to complete the project at the earliest. To return or refund the amount to the members will defeat the aim and object of the society and has adverse interest of majority of members. The society is not doing any business and not getting any profits. It  is not liable to pay interest on the amount paid by the complainant and also not liable to pay the compensation or damages as claimed.  There is no willful and intentional delay on its part and hence on all these grounds prayed this Forum to dismiss the complaint.

6.     In order to substantiate the case, the complainant’s G.P.A Holder i.e Marcel Cyril Pinto by filing his affidavit evidence himself and also O.P filed his affidavit evidence. Heard the arguments. The following points arise for our consideration:-

                        1)   Whether the complainant has proved

     deficiency in service on the part of the

     Opposite Party?

2)  Whether the complainant is entitled to     

     the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT 1     :    In the Affirmative.

POINT 2     :    Partly in the affirmative

                        for the following:

REASONS

POINT No.1:-

8.     On perusal of the pleadings of the parties it becomes clear that the complainant became the member of the O.P who undertook to develop the land with the help of the developer to develop the residential site for which the complainant by paying the requisite amount sought for allotment of the same. The O.P has admitted in the version itself regarding receipt Rs.7,80,000/ from the complainant on different dates. On perusing the tenor of the version and the contentions and the minutes of the General Body Meetings proceedings produced by the complainant and O.P that it becomes clear that O.P could not form the site due to the differences between the O.P and developer.

9.     It is well settled that by the decisions rendered by National Consumer Commission and Hon’ble Supreme Court of India that a person who has become member of the society which has undertaken to form the layout or develop the lands to form the sites is a consumer and the society is a service provider and their exists relationship and the complaint before the forum  is maintainable. In view of this, the contention that complainant is not a consumer that O.P is not a service provider cannot be accepted.

10.   The other contention of the O.P is that the complaint is barred by limitation.  O.P himself has stated that on 10.04.2014 and on 29.4.2014 the managing committee decided to take legal action against the developer as he did not do anything regarding developing the land into residential sites and the same was communicated to the complainant.   When this taken in to consideration, it become clear that only on 10.04.2014 and on 29.04.2014 complainant came to know that O.P has not formed the sites and there is litigation between the O.P and the developer. When this is taken in to consideration, since the complaint is filed before this Forum on 12.2.2016 this complaint is filed within time as prescribed under Section 24-A of the Consumer Protection Act.

11.   Having received a substantial amount from the complainant, O.P could not form the sites, distribute the same among its members and register the same.  Though O.P has attributed the same to the developer, still the liability is on the O.P which has not carried-out its responsibility and hence there is deficiency in service in not getting the sites formed and distributing the same to the complainant. Hence we answer Point No.1 in the Affirmative.

POINT NO.2:

12.   In the result, complainant is bound to get the refund of the amount which he has paid for purchasing  the site with O.P along with 12% per annum. Complainant has also claimed Rs.2,50,000/- towards mental harassment and Rs.2,00,000/- towards deficiency in service. No substantial evidence has been placed to prove the same.  On the other hand no doubt for having waited for 12 years by paying Rs.7,80,000/- without getting a site would put the complainant in a mental tension and anxious moments and also made him to loose mental peace and harmony  as he has paid the hard earned money to the society without getting the site which shattered his dream of constructing own house and living therein. Hence we are of the opinion that if a sum of Rs.75,000/- towards the physical and mental harassment if ordered would be sufficient to compensate him regarding damages and for deficiency in service. The act of the O.P made the complainant to file the complaint before this forum by engaging advocate for whom complainant has to pay his professional fee and also incur expenses in attending the forum’s hearing and also in obtaining relevant and required documents to prove the complaint. Hence we are of the opinion that if a sum of Rs.10,000/- towards litigation expenses and other ancillary expenses if awarded would meets the ends of justice. Hence, we answer Point No.2 Partly in the Affirmative and pass the following:

ORDER

1. The complaint is hereby partly allowed with cost.

2. O.P. i.e.  Syndicate Bank Retired Employees Welfare Society Represented by its President/Authorized Signatory is hereby directed to pay a sum of Rs.7,80,000/- along with interest at 12% per annum from 11.9.2006 the date on which last payment to O.P was made till payment of the full amount.

3. Further O.P. hereby directed to pay Rs.75,000/- towards damages to the complainant and Rs.10,000/- towards cost of the litigation expenses.

4.  The O.P is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 30^th Day of JULY 2018)

MEMBER                        PRESIDENT

*RAK

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

CW-1: Smt. Tina Pearl D’Souza – Complainant

  Marcel Cyril Pinto – GPA Holder of the complainant.

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1: Copy of the Membership Receipt and payment of fees.

Doc.No.2: Copy of the Rules and Regulations of the O.P.

Doc.No.3: Copy of the Receipt issued by the O.P.

Doc.No.4: Copy of the paid receipts.

Doc.no.5: Copy of the communication of parties.

Doc.No.6: Copy of the assuring communication.

Doc.No.7: Copies of various communications between parties.

Doc.No.8: Copies of various communications between parties.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Ramachandra Reddy Vice President of O.P.

Copies of Documents produced on behalf of Opposite Party/s

- Nil -

MEMBER                        PRESIDENT