COMPLAINT FILED ON:29.08.2011
DISPOSED ON:11.11.2011.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
11th DAY OF NOVEMBER- 2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI.M.MUNIYAPPA MEMBER
COMPLAINT NO. 1615/2011
COMPLAINANT | Smt.Rukmini Rajgopal D/o Late M.C.Rajagopal, No.124, “Rukmini”, 6th Cross, Vyalikaval, Palace Orchards, Bangalore-560 003, Roll No.M-343, Account No.8583. In person. V/s. |
OPPOSITE PARTY | The Manager, The Vyalikaval House Building Co-operative Society Ltd, No.62, 7th Main, Malleshwaram, Bangalore-560 003. (Adv: Sri.K.S.Venkataramana). |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
This is a Complaint filed by the Complainant U/S. 12 of Consumer Protection Act of 1986 seeking direction against Opposite parties (herein after called as O.Ps) to refund Rs.85,000/- paid towards sital deposit with interest at 18% p.a and compensation of Rs.50,000/- and costs on the allegations of deficiency in service on the part of OP.
2. The brief averments made in the complaint are as follows:
Attracted by the propaganda made by OP, the complainant became the member of OP society in the year 1984, under the scheme for allotment of a site measuring 1200- sq.ft. at Gangenahalli, Chanakyapuri layout. OP accepted the membership of the complainant and allotted Roll No as M-343 and account number as 8583. Complainant paid Rs.85,000/- for OP on different dates starting from 17/08/1984 to 23/10/2000. The pass book issued by OP is produced. On 24/10/2000 OP issued intimation of allotment letter informing the complainant that site No.B-277, measuring 1000 sq.ft situated at Gangenahalli, Chanakyapuri Layout has been decided to allot in favour of the complainant. Even after lapse of decade OP failed to handover the possession. In spite of repeated requests OP failed to respond. Hence complainant got issued legal notice requesting OP to refund the amount along with interest at 18% p.a. OP in its reply dt.23.07.2011 agreed to refund only the amount but not the interest. Hence complainant felt deficiency in service against OP. Under the circumstances, she is advised to file this complaint against OP for the necessary relief’s.
3. On appearance OP filed the version mainly contending that
OP could not purchase the lands, under the prevailing laws. OP has to approach the state government to initiate land acquisition proceedings which involves gazette notification U/s. 4(1) of the Act to hold enquiries of the land owners U/s. 5-A of the Act and to issue final notification U/s. 6(1) of the act and thereafter to pass award granting compensation to the land owners u/s. 9 and 10 of the act. One being consent of land owners and another being the general award. After the procedure the state government will hand over possession of the land to society within 3 to 4 years. The entire cost including payment to land owner and conversion charges and another expenses incurred should be paid by the society to the government. The land acquired by the government in favour of the society was challenged by the land owners before the High Court. Unfortunately acquisition proceedings were set aside and notification were quashed. The Appeal preferred by OP before Hon’ble Supreme Court confirmed the order of the high court. Further directed the government to return the lands to land owners. OP has to get back the money from the Government. The Government will deduct 22% of the amount towards Administrative heads. Hence OP is not in a position to pay the interest to its members. In AIR 2010 SC 486 it was held that developmental authorities need not pay interest on the deposit amount for the delay or failure of the projects due to the order of the courts; The claim is barred by time. Among other grounds OP prayed for a direction to the complainant to receive the sital deposit amount and prayed for dismissal of the complaint.
4. In order to substantiate the complaint averments, complainant filed her affidavit evidence and produced original pass book, notice, reply letter, site allotment intimation letter. On behalf of OP Srinivas H, Secretary filed his affidavit evidence in support of its defence version.
5. Heard arguments from complainant side and taken as heard from OP side.
6. In view of the above said facts the points now that arise for our consideration in this complaint are as under:
Point No.1:- Whether the complainant
proved the deficiency in service
on the part of the OP?
Point No.2:- If so, whether the complainant is
entitled for the reliefs now claimed?
Point No.3:- To what Order?
7. In view of the reasons given by us in the following paragraphs our findings on:
Point No.1:- In Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
At the out set, it is not in dispute that the complainant became the member of Op housing society with a hope of getting a site OP accepted the membership of the complainant and issued Roll No.M-343 and account No.8583. OP assured to allot a site bearing No.B.277 measuring 1200 sq.ft. Situated at Gangenahalli, Chanakyapuri layout. Complainant paid Rs.85,000/- to OP towards sital value on different dates starting from 17.08.1984 to 23.10.2000. To substantiate this fact complainant has produced the original pass book issued by OP. Op issued intimation of allotment letter dt.24.10.2000 to the complainant. In spite of repeated requests and service of legal notice OP failed to handover the possession or to refund the amount. Hence complainant approached this Forum for the necessary reliefs.
8. As against the case of the complainant the defence of the OP that due to legal hurdles it is unable to complete the project and whatever the amount they have received from the members is paid to the developers and deposited towards compensation payable to landlords with the government etc. But OP has failed to substantiate the said defence by producing documents. The land acquired for the purpose of formation of layout is repossessed by the land owners in view of the quashing of the land acquisition proceedings. So the sum and substance of the defence set out by OP is that it is unable to complete the project due to the quashing of the land acquisition proceedings. It is unable to refund the sital value to the complainant because of the said amounts are used for paying compensation to the land owners by depositing the same with the government and for paying development expenses.
9. On the close scrutiny of the defence set out by OP it can be made out that OP collected the amount towards sital value from the complainant with a promise that it would complete the project and register the site but project could not be completed on account of the acquisition being quashed. 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 collected to the complainant. No such steps are taken. Hence we find deficiency in service on the part of the OP in not refunding the sital value to the complainant. Having retained the amount for more than 11 years OP accrued wrongful gain to itself and thereby caused wrongful loss to the complainant.
10.We are unable to accept the defence of the OP that the complaint is barred by limitation. When once OP accepted the deposit towards sital value with a promise to allot a site to the complainant, till OPs allot and register the sale deed recurring cause of action will accrue to the complainant.
11.In support of his arguments counsel appearing for OP has relied on Order reported in AIR 2010 Supreme Court 486 in Civil Appeal No. 433, 4335 and 4336/2004 of Punjab Urban Planning and development Authority and Another V/s. Daya Singh.
In the above matter the Hon’ble Supreme Court has 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 Haryana directing maintenance of status quo regarding possession. Hence it was found that delay was on account of the order passed by the High Court. So the question of payment of interest for such delayed possession given to the respective respondents may not arise at all and directed the National Commission to take up the issue then decide the same on facts before passing the final order.
12.In the present proceedings acquisition proceedings were quashed by the Hon’ble High Court of Karnataka in W.P. No.17429 to 17493/1986 and the said order was confirmed by the Supreme Court in the Special Leave petition filed by OP. Thereafter even after lapse of many years of the order of the Supreme Court OP has failed to refund the amount to the complainants. Hence the principles laid down in the above case cannot be made applicable to the present proceedings.
13.The relief claimed by the complainant is for refund of amount paid with interest at 18% p.a. and compensation of Rs.50,000/- and cost. In view of the order passed by the Hon’ble Karnataka State Consumer Disputes Redressal Commission in Appeal No.5041/10 dt.19.08.2011 in similar circumstances against Op, modified the order passed by the first Addl District Consumer Forum in C.C.No.2201/2010 dt.16.11.2010 to refund the amount paid towards sital value together with interest at 18% p.a. from the date of respective payments till realization. Hence based on the said order we are of the considered view that complainant is entitled for refund of amount paid along with interest at 18% p.a. as compensation from the date of respective payments till realization and litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following:
ORDER
The complaint is allowed in part.
OP is directed to refund Rs.85,000/- along with interest at the rate of 18% p.a from the date of respective payments till realization and pay litigation cost of Rs.2,000/- to the complainant.
This order is to be complied within four weeks from the date of its communication.
Send the copy of this order both the parties free of cost.
(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 11th day of November 2011.)
MEMBER MEMBER PRESIDENT
CS.
