BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 13^th DAY OF JUNE 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to pay him interest on a sum of Rs.5,50,000/- @ 24% p.a amounting to Rs.6,60,000/- and compensation of Rs.3,20,000/- together with litigation cost.

2. The brief averments made in the complaint are as under:

That the complainant is retired employee of BEML Limited and a member of OP society.  In pursuance of circular dated 29.11.2002 issued by the OPs society inviting the members to apply for site.  He submitted application for a site measuring 30x50 at 10^th Stage, BEML Layout, Halagavaderahalli, Kengari Hobli, Bangalore South and initially paid a sum of Rs.85,000/- as first instalment on 26.12.2002.  Subsequent to his retirement in the year 2002, the complainant did not get any communication from Society.  Therefore, he personally went to the office of the OP and made enquires and was given to understand that the OPs are acquiring 30 acres of land for the purpose of forming a residential layout and stated that the complainant will be allotted a site in the same within a period of one year.  That the complainant waited patiently for one year.  As there was no correspondence or letter from OPs again he visited the office of OPs in the month of June 2004 and was informed that a layout plan has been submitted to the BDA for approval and as soon as the same is obtained, the site will be allotted and he was asked to pay second instalment.  Accordingly the complainant waited for communication from the OPs.  When he did not get any response from OPs, he approached the OPs and demanded to refund the advance amount that he has paid as first instalment.  However he was promised allotment of alternative site at 10-A Stage and was asked to wait for another four months.  Believing the OPs, he again waited for some more time.  That on the promise made and in pursuance of the circular issued by the OPs, the complainant paid second instalment of Rs.75,000/- on 18.09.2007 and subsequently paid another sum of Rs.3,35,000/- in 5 instalments between 18.09.2007 to 15.07.2011.  Even thereafter the OPs failed to allot him any alternate site.

On 29.06.2011 the complainant was sent with an invitation to participate in auction of corner site at 10^th Stage, 2^nd Phase to be held on 17.07.2011 and was called upon to pay Rs.10,000/- as security deposit for participating in the auction.  However the auction did not take place and was cancelled.  The complainant has already paid a sum of Rs.5,40,000/- to the OPs towards allotment of the said site.  Thereafter, the complainant demanded the OPs in the second week of August 2011 for refund of the entire sital value but they went on postponing the refund on one or the other pretext.  Therefore, the complainant got issued a legal notice dated 02.06.2012 calling upon the OPs to refund him entire sital value.  In response to the said notice, the OPs sent a reply notice enclosing cheque dated 09.06.2012 drawn on State Bank of India, Bangalore for a sum of Rs.5,50,000/- and the complainant accepted the cheque towards partial satisfaction as the said amount did not include interest, damages and compensation.  Thereafter, the complainant issued rejoinder dated 22.06.2012.  In response to the said rejoinder, the OPs sent a reply notice dated 29.06.2012 stating that the complainant is not eligible for second site since he has been allotted a site by the OPs.  The OPs till today have not paid him the interest on the said amount of Rs.5,50,000/- despite holding the said amount with them for several years and also have failed to pay him damages/compensation etc.

For the aforesaid reasons, the complainant prays for an order directing the OPs to pay him interest on the said sum of Rs.5,50,000/- for the period OPs retained with them and for compensation of Rs.3,20,000/- with litigation cost.        

3. In response to the notice issued, OPs entered their appearance through their advocate and filed their version contending in brief as under:

It is true that, the complainant is a member of OPs society and the society published circular dated 29.11.2002 inviting the members to apply for site.  That as per model byelaw 10(a) of society and as per the provisions of Rule 10(3) of BDA (Allotment of Sites) Rules, 1984 the complainant is ineligible for allotment of another site from OP society since he has already been allotted a site in his name.  The complainant knowing fully well that he is ineligible to get a second site applied for a second site at 10^th Stage, BEML Layout by suppressing the fact that he has already been allotted a site.  The letter dated 29.06.2011 has been sent to complainant oversight.  That the OPs in response to the legal notice dated 02.06.2012 got issued by the complainant sent a reply notice dated 09.06.2012 enclosing a cheque for a sum of Rs.5,50,000/- dated 09.06.2012 drawn on State Bank of India, Jeevan Bheema Nagar Branch, Bangalore which the complainant received and encashed.  The OPs have sent a suitable reply dated 29.06.2012 to the rejoinder dated 22.06.2012 sent by the complainant.  There is no any resolution passed in the OP society to allot second site to its members.  The complaint is barred by limitation.  The complaint is not maintainable since the OPs society has already refunded a sum of Rs.5,50,000/- to the complainant by cheque dated 09.06.2012.  There is no privity of contract between the complainant and the OPs to pay interest.  The complainant is neither entitled for interest or compensation so also the litigation cost as claimed in the complaint.

For the reasons stated, the OPs pray of dismissal of the complaint.

4. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

        5. The complainant to substantiate the allegations made in the complaint submitted his evidence by way of affidavit reiterating the allegations made in the complaint.  The OPs in support of the averments made filed affidavit evidence of their Secretary Sri.T Ravi Kumar.  Both the parties have submitted their written arguments apart from producing various documents.

6. Perused the allegations made in the complaint, averments made in the version, sworn testimony of both parties, written arguments, documents produced by both sides and other materials placed on record.

7. Our answer to the above issues are as under:

REASONS

8.  It is not in dispute that, the complainant is member of OP BEML Employees Co-operative Society Ltd.  It is also not in dispute that, a circular was issued by the OP society dated 29.11.2002 calling upon the interested members of the society to apply for a site in 10^th Stage BEML Layout being developed at Halagevaderahalli, Kengari Hobli, Bangalore south.  OP admits of having received first instalment of Rs.85,000/- on 26.12.2002 from the complainant.  It is also not in dispute that, subsequently the complainant paid a sum of Rs.3,35,000/- in 5 instalments in all amounting to Rs.5,40,000/- towards purchase of site in the above mentioned layout being developed by the OP Society.  It is also admitted by the OP society that, the complainant in response to the invitation to participate in the auction of corner/odd site at 10^th Stage, 2^nd Phase, deposited security deposit of Rs.10,000/- expressing his readiness to participate in the auction but the said auction was cancelled.  Thus, the complainant paid a total sum of Rs.5,50,000/- to the OP society on various dates as is evidenced from the admissions made by the OPs as well as the receipts produced by the complainant. 

9. Admittedly the OP society did not allot any site to the complainant as requested by him and also did not refund the amount of Rs.5,50,000/- paid by him on various dates despite his repeated demands.  The OP society has refunded the said sum of Rs.5,50,000/- to the complainant by way of cheque dated 09.06.2012 that too in response to the legal notice got issued by the complainant.  No reasons have been assigned by the OP society for withholding the said huge sum of Rs.5,50,000/- with them for all these years.

10. OPs in their version and in their affidavit evidence contended that the complainant suppressing the fact that he has been already allotted a site by the OP society applied for second site to which he is not entitled as per model byelaws of the society as well as the BDA rules.  Therefore, the advance amount paid by him has been refunded to him promptly as soon as the same was demanded by him.  Thus, it is contended by the OPs that, since the complainant is not entitled for a second site, the amount paid by him has been refunded immediately.  Therefore they are not liable to pay any amount in absence of any contract to that effect and also compensation, litigation cost etc.  The complainant asserted that OP society despite knowing the fact that he has been allotted a site already invited him to apply for another site.  Accordingly, he applied for another site on 26.12.2002 by paying initial deposit of Rs.85,000/-.  As already stated above, the OPs admits the receipt of Rs.85,000/- as first instalment from the complainant on 26.12.2002.  Furthermore the OPs also admits a demand notice sent to the complainant for payment of balance instalment.  However they contend that the said notice has been sent to him by oversight.  However the fact remains that in response of such demand notice the complainant has paid a sum of Rs.3,35,000/- in 5 instalments beginning from 18.09.2007 to 15.07.2011.  The question now is as to why the OP society invited the complainant to apply for a site, despite the fact that, he is not eligible for second site as per their model bye-law No.10(a) and Rule 10(3) of BDA (Allotment of Sites) Rules, 1984.  The conduct of OP society in accepting the first instalment of Rs.85,000/- in the month of December 2002 and subsequently accepting a sum of Rs.3,35,000/- in 6 instalments between 18.09.2007 to 15.11.2011 strengthens the allegations of the complainant that on making enquire by the complainant and several other members the OP society had agreed to allot them second site in 10^th Stage.  If at all the complainant was not eligible for second site nothing prevented the OPs to refund him the very first instalment they have received from him immediately informing him that he is not eligible for second site as per their bye-law.  The OP society suppressed from the complainant that he is not eligible for second site as per bye-law and made him to pay huge amount of Rs.5,50,000/-.  The OP society is not at all justified in retaining the said huge amount of Rs.5,50,000/- with them if  at all they were not willing to allot him a second site.  Therefore, OP society shall have to be directed to pay interest @ 9% p.a on the amount received from the complainant from the respective date of receipt till the date they refunded the amount to the complainant.  The OP society has made the complainant to visit their office frequently from the month of December 2002 to June 2012 despite the fact that, he is not eligible for second site thereby causing him great hardship, inconvenience and mental agony for which they have to be directed to pay compensation of Rs.10,000/-.  The conduct of OP society in accepting huge sum of Rs.5,50,000/- from the complainant for allotment of site and thereafter refunding the said amount on the ground that he is not eligible for second site certainly amounts to deficiency in service.

11. The order could not be passed within the stipulated time due to heavy pendency.

12. In the result, we proceed to pass the following:

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs.1 & 2 are jointly and severally directed to pay interest @ 9% p.a for a sum of Rs.5,50,000/- from the date of actual receipt till 09.06.2012 and to pay compensation of Rs.10,000/- together with litigation cost of Rs.5,000/-.

This order is to be complied within six weeks from the date of communication of this order.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 13^th day of June 2016)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainant dated 02.05.2013.

1. Sri.G.S Ramagond.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite parties 1 & 2 dated 04.06.2013.

1. Sri.T.Ravi Kumar.  

Documents produced by the Opposite parties.1 & 2:

MEMBER                            MEMBER                       PRESIDENT

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