COMPLAINT FILED ON:01.08.2011
DISPOSED ON: 24.11.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL
FORUM AT BANGALORE (URBAN)
24th NOVEMBER 2011
PRESENT:- SRI.B.S.REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI.A.MUNIYAPPA MEMBER
COMPLAINT NO. 1441/2011, 1442/2011
& 1443/2011
COMPLAIN No.1441/2011 Mrs.Baskar Ganapayya Shetty,
COMPLAINANT No.631, First Floor,
14th Cross Road, Domlur
Layout First Stage,
Bangalore-560 071.
COMPLAIN No.1442/2011 Mr.V.R.Ravi, Major,
COMPLAINANT No.6, Ramanashree Nagar Layout,
Off.Bannerghatta Road,
Bangalore-560 076.
COMPLAIN No.1443/2011 Mrs.Malathy Prasad, Major,
COMPLAINANT No.6, Ramanashree Nagar Layout,
Off.Bannerghatta Road,
Bangalore-560 076.
(Adv:Sri.Rama R.Iyer)
V/s.
OPPOSITE PARTY The Amarjyothi House Building
Co-Operative Society Ltd.,
No.40, M.N.K.Rao Road,
Basavanagudi,
Bangalore-560 004.
Represented by its Secretary.
( Adv:K.S.Venkataramana)
O R D E R
SRI, B.S.REDDY, PRESIDENT
These complaints are filed u/s. 12 of the Consumer Protection Act of 1986, by the respective complainants seeking direction to the Op to refund the sital deposit paid with interest at 18% p.a. and compensation of Rs.1,00,000/- and expenses incurred of Rs.10,000/- on the allegation of deficiency in service on the part of the O.P.
As the Op is common in all these complaints, the questions involved and the reliefs claimed being the same, in order to avoid the repetition of facts and multiplicity of reasoning’s, these complaints are stand disposed of by this common order.
2. The brief averments as could be seen from the contents of these complaints are as under. The complainants became the members of the OP Housing Building Co-operative Society and applied for allotment of sites in the year 1984-85. They deposited the entire sital value by instalments along with layout development charges. OP has issued the receipts acknowledging the receipt of the amounts from each of these complainants. OP failed to allot the sites, the complainants requested for the refund of the amount paid, OP has not complied the demand. Thus the complainants felt deficiency in service on the part of the OP and filed these complaints seeking necessary reliefs. For the sake of the convenience, the total payments made by these complainants are shown in the table below.
Complaint Nos. | Amount Paid |
1.1441/2011 | Rs.49,027/- |
2.1442/2011 | Rs.1,18,350/- |
3.1443/2011 | Rs.1,28,100/- |
Each of these complainants have claimed interest at 18% p.a. on the above said amounts deposited with expenses of Rs.10,000/- and compensation of Rs.1,00,000/-.
3. On appearance OP filed version contending that the society is functioning under no loss, no profit basis, the complaints are barred by limitation. It applied for a land with the Government of Karnataka to form a layout at Challaghatta Village (Domlur 2nd Phase), The Government of Karnataka acquired certain lands. The owners challenged the Acquisition before the Hon’ble High Court by filing the Writ Petitions. The Hon’ble High Court allowed the Writ Petitions on 18/06/1991 quashed the Acquisition proceedings. OP preferred Special Leave Petition to Supreme Court of India, the Hon’ble Supreme Court dismissed the Special Leave Petition filed on 21.02.1995 in Civil Leave Petition (Civil) No.13339/1991 and directed to handover possession of the respective lands to their land lords. OP made efforts to get back the money which was deposited with Special Land Acquisition Officer, in spite of their sincere efforts, the Special Land Acquisition Officer, not responded properly, for some of the members OP has returned the amounts, OP has not kept any money in its account. Still the Society has to receive the balance amount from the Special LAO, it is difficult to pay the principal amount with interest. OP is ready to repay the sital deposit amount. The complainants have not turned upto receive the same. OP has refunded the amount to the complainants during the pendency of these complaints. As per the subsidiary rules of allotment of sites, the members are not entitled to claim interest on deposit in case of any refund of the amount. The Hon’ble Supreme Court held in AIR 2010 SC 486, that the Development Authorities like OP need not pay interest for the delay or failure of the projects. There is no any deficiency in service on the part of the OP. OP is not liable to refund the share amount. Hence, it is prayed to dismiss the complaint with exemplary costs.
4. The complainants, in order to substantiate complaint averments each of these complainants filed affidavit evidence. One Sri.R.Narayan Murthy filed affidavit evidence in support of the defence version.
5.During the pendency of the proceedings OP has refunded the entire sital deposits made by these complainants. The only claim regarding interest and compensation are to be considered.
6. Arguments on both sides heard.
7.Points for consideration are:
Point No.1:-Whether the complainants have proved the deficiency in service on the part of the OP in all these complaints?
Point No.2:-If so, whether the complainants are entitled for the reliefs now claimed?
Point No.3:-To what order?
8.We record our findings on the above points are:-
Point No.1:- Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
9. At the out set it is not in dispute that each one of these complainants became the members of the OP-House Building Co-Operative Society. OP assured to allot the sites to these complainants at their proposed layout at Bannerghatta Village (Domlur Phase II). The complainants deposited the entire sital value as shown in the table above. OP could not form proposed the layout on account of the land acquired for the said purpose was not made available by the Government, as the acquisition proceedings were quashed and the same was confirmed by the Hon’ble Supreme Court in Civil Leave Petition No.13339/1991 and directed to handover possession of the lands to the respective land owners. Thus the land acquired for the purpose of formation of the layout is repossessed by the land owners in view of the quashing of the land acquisition proceedings. In view of the same OP was ready to refund the sital value without any interest. After filing these complaints, OP has refunded the sital value to the complainants. According to OP its acquisition proceedings were quashed and Special Leave Petition preferred before Hon’ble Supreme Court came to be dismissed on 21.02.1995. When OP was aware of the fact that it is unable to complete the project it could have been fair on its part to refund the sital value to the complainants. No such steps were taken. Retention of the amount for more than 17 years, so as to gain wrongfully amounts to deficiency in service on the part of the OP.
10. There is no merit in the contention that these complaints are barred by limitation. When OP once accepted the sital value, till the sites are allotted and sale deeds are executed, the cause of action to claim the relief continuous to accrue.
OP has relied on the decision report in AIR 2010 SC 486 wherein it was observed that possession could not be delivered in time to respondents in respect of the plots on account of the order passed by the High Court of Punjab and Hariyana directing maintenance of statusquo regarding possession. Hence it was found that delay was on account of order passed by the High Court. So the question of payment of interest for such delayed possession given to the respective respondent may not arise.
In the present proceedings acquisition proceedings were quashed by the Hon’ble High Court and the said order was confirmed by the Supreme Court in the Special Leave Petition preferred by OP on 21.02.1995. Thereafter even after lapse of 16 years of the order of the Supreme Court, OP has failed to refund the amount to the complainants. OP is not a developing statutory authority; the principles laid down in the above case cannot be made applicable to the present proceedings. OP refunded the amount after 16 years, after filing these complaints. The complainants are entitled for reasonable interest. In complaint No.1191/2009 B.M.Samadharia V/s Amarajyothi House Building Co-Operative Society this Forum by its order dt.17.08.2009 directed the OP to refund the amount with interest at 12% p.a. and litigation cost of Rs.1,000/-. The complainant preferred appeal No.2855/2009 against the said order. The Hon’ble State Commission by its order dt.17.09.2010 modified the said order by enhancing the interest from 12% to 18% p.a. In view of the same, the said order is made applicable to the present complaints as OP is the same. Hence complainants are entitled for interest on the amounts refunded at 18% p.a. and litigation cost of Rs.2,000/-. Awarding of interest can itself be taken as compensation. Accordingly we proceed to pass the following:
O R D E R
The complaints filed by the complainants are allowed in part.
In complaint No.1441/2011 OP is directed to pay interest at the rate of 18% p.a. on the amounts of Rs.49,027/- from the date of respective payment till the date of refund made that is 24.09.2011 and pay litigation cost of Rs.2,000/- to the complainant.
In complaint No.1442/2011 OP is directed to pay interest at the rate of 18% p.a. on the amounts of Rs.1,18,350/- from the date of respective payment till the date of refund made that is 24.09.2011 and pay litigation cost of Rs.2,000/- to the complainant.
In complaint No.1443/2011 OP is directed to pay interest at the rate of 18% p.a. on the amounts of Rs.1,28,100/- from the date of respective payment till the date of refund made that is 24.09.2011 and pay litigation cost of Rs.2,000/- to the complainant.
This order is to be complied within four weeks from the date communication of this order.
Send the copy of this order both the parties free of cost.
This Original order shall be kept in the file of the complaint No.1441/2011 and a copy of it shall be placed in other complaint.
(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 24th day of November 2011.)
MEMBER MEMBER PRESIDENT
Cs.
