Complaint filed on: 28-09-2010
Disposed on: 14-01-2011
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.2220/2010
DATED THIS THE 14th JANUARY 2011
PRESENT
SRI.D.KRISHNAPPA., PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Sri.N.A.Ashok Kumar,
Aged about 67 years,
Son of late N.Krishnaiah setty,
Residing at No.10,
Sri Lakshmi Nilaya,
Balaji Koil Street, Civil Station,
Bangalore-42
V/s
Opposite party: -
The Amara-Jyothi House Building
Co-operative Society Limited,
No.40, MNK Rao Road,
Basavanagudi, Bangalore – 04
Represented by its Secretary
O R D E R
SRI. D.KRISHNAPPA., PRESIDENT.,
Brief facts of the complaint filed the complainant against the opposite party [herein after called as Op] are, that he in response to the publication of notice issued by the OP to become a member for allotment of sites. He become a member and applied for allotment of site measuring 40ft X 60ft and paid in all Rs.1,03,180/- starting from 6-7-1988 till 20-11-1993. Thereafter, he made several demands and requests to allot a site, but the OP did not respond. Having waited for such a long time, find no other way, he got issued legal notice to the OP on 2-7-2010 calling upon the OP either to allot a site or to refund his money with interest at 24% per annum. OP has not complied the notice, therefore has prayed for a direction to the OP to either allot a site or to refund his money with interest as prayed.
2. OP has appeared through his advocate and filed version, admitting the membership of the complainant in the society, has stated that the complainant has deposited Rs.99,350/- and this complaint is filed for refund of amount after 17 years and therefore complaint is barred by limitation. OP referring to the acquisition of certain lands in Kothanur and other villages and preliminary notification was issued on 4-8-1986 has stated acquisition was quashed by the Hon’ble High Court of Karnataka in W.P.No.15625/1987, on challenging the acquisition then mater was taken to the Hon’ble Supreme Court in special leave petition No.13339/1991 which was dismissed with a direction to hand over possession of the acquired lands to the respective land owners. That their money paid to the LAO was held up and referring to writ petition filed before the Hon’ble High Court of Karnataka for a direction to refund the deposited money and subsequent writ petition filed to get back money from the LAO and has also referred to the order of the Hon’ble High Court for refund of money and consequent contempt proceeding for having not refunded the deposited money. Further stated because of the order of quashing the acquisition of land, they have not been able to get the land or the money paid by them. It is further stated having regard to these facts, they are not liable to pay interest on the complainant’s money and therefore, denying any deficiency at their end has prayed for dismissal of the complaint.
3. In the course of enquiry into the complaint, the complainant and OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant alongwith the complaint has produced copies of receipts for having made payment to the OP and copy of legal notice he got issued to the OP demanding refund of money. OP has produced copies of acquisition proceedings, judgment of the Hon’ble High Court of Karnataka, copy of the judgment of the Hon’ble Supreme Court and a decision of the Hon’ble High Court. Counsel for the complainant has filed written arguments. We have heard the counsel for OP and perused the records.
4. On the above contentions following points for determination arise.
1) Whether the complainant proves that the OP has caused deficiency in his service in not refunding the money paid by him?
2) To what reliefs, the complainants are entitled to?
5. Our findings are as under:
Point no.1: In the affirmative
Point no.2: See the final Order
REASONS
6. Answer on Point No.1: On perusal of the rival contentions, we do not find much dispute between the parties, with regard to this complainant having had became a member of OP society seeking allotment of a site. The complainant has produced documents to proves that he in all had paid Rs.1,03,180/- on different dates towards cost of sites. OP though has stated that the complainant has paid Rs.99,350/- but has not denied the documents filed by the complainant in proof, the total amount paid by the complainant. Hence, the complainant could be conveniently be said to had paid a total sum of Rs.1,03,180/- towards the cost of site.
7. OP without disputing the purpose for which the amount was paid by the complainant and also admitting that they have not allotted site to the complainant, contended that the lands acquired on their behalf for formation of layout was quashed by the High Court and the order was confirmed by the Hon’ble Supreme Court and they have delivered back possession of the lands to the respective land lords. The complainant is not denying the litigations that crop up and this OP losing the lands. OP has also referred to a decision of the Hon’ble High Court of Karnataka and a decision of the Hon’ble Supreme Court quashing acquisition. We also find the order of the Hon’ble High Court in W.P. No.26916/1997 and other connected matter where direction was given to the land acquisition officer to refund the OP’s money. But as contended by the OP and his counsel, it appears that the OP has not been able to get beck his entire money he has paid to the land acquisition officer as consideration for acquisition of land. The learned counsel for the OP even during arguments submitted that even till date, they have not been able to get back their money from the land acquisition officer and therefore, they were not able to refund the complainant’s money. This submission of the counsel for the OP has not been contraverted by counsel for the complainant. Therefore, it is manifest from this fact that objective of the OP to provide site to its members was defeated by quashing acquisition proceedings. It is also undisputedly established that compensation they had deposited with the land acquisition officer has not been fully repaid to them. Therefore under these circumstances as held by the Hon’ble High Court in a decision reported in AIR SC 2010 page 486, the OP cannot be burdened with payment of interest on the amount paid. Further the contention of the OP that claim of the complainant is barred by limitation cannot be accepted, because as admitted by the OP himself the issue of providing site or refund of money has been under litigation since several years and it is not ended even as on today. Therefore the complainant who was and has been touch with the OP for one or the other reliefs has been made to wait, that being so, the OP cannot take the defence of limitation to deny the complainant’s money.
8. The complainant it is found except through a legal notice dated 2-7-2010 had not demanded for repayment of deposited money. Therefore the complainant, in our view is entitled for interest on the money paid by him from the date such demand till the date of payment. With this we hold that the complaint deserves to be allowed and accordingly we answer point No.1 in the affirmative and pass the following order.
ORDER
Complaint is allowed. OP is directed to refund Rs.1,03,180/- with interest at 15% per annum from 2-7-2010 till the date of payment and OP shall refund that money with interest within 60 days from the date of this order.
OP shall also pay cost of Rs.3,000/- to the complainant.
Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 14th January 2011.
Member Member President
