COMPLAINTS FILED ON:19.10.2011

DISPOSED ON:19.04.2012.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

19^th DAY OF APRIL-2012

  PRESENT:-  SRI. B.S. REDDY                   PRESIDENT       

                      SRI.A.MUNIYAPPA                     MEMBER              

COMPLAINT Nos.1911 & 2201/2011

COMMON ORDER

SRI. B.S.REDDY, PRESIDENT

Both these complaints U/s. 12 of the Consumer Protection Act of 1986 are filed by the respective complainants seeking direction against the Opposite Party (herein after called as O.P) to execute the sale deed in respect of residential site formed at “Visweswarayanagar Layout” II Stage, Bilekahalli, Bannerghatta Road Side, Bangalore South or to give any other alternative undisputed site or to refund the advance amount of Rs.22,000/- with interest at 24% p.a. and compensation of Rs.5,00,000/- in complaint No.1911/2011.

In complaint No.2201/2011 the complainant is seeking direction against the OP to refund an amount of Rs.59,000/- with interest at 18% p.a. and to pay compensation of Rs.5,00,000/- on the allegation of deficiency in service.

Since Op is common in both these complaints, the questions involved and the relief’s claimed being similar in nature, in order to avoid the repetition of facts and multiplicity of reasoning’s both these complaints are stand disposed of by this common order.

2. In complaint No.1911/2011 the case of the complainant is that he became member of OP-Society and applied for allotment of site at “Visweswarayanagar Layout” and OP has allotted the site, the complainant had paid Rs.22,000./- towards part payment. OP has issued the Provisional Allotment letter of site dt.02.11.1989 allotting site measuring 4000 sq.ft in “Visweswarayanagar Layout”, II Stage at Bilekahalli, Bannerghatta Road Side, Bangalore South, Bangalore. OP in the Provisional Letter of allotment informed the complainant to pay the balance of Rs.68,000/- at the time of registration and they are yet to register the site.     Op is postponing the registration of the sale deed at one or other reason without assigning valid reasons. The complainant demanded OP to register the site or refund the amount with interest. The Legal notice was issued on 04.08.2011, OP neither complied the demand nor replied for the notice. Hence the complaint.

3. In complaint No.2201/2011, the GPA Holder of Sri Sri 1008 Satyatma Teertha Swamiji, filed the complaint stating that one Smt.Sudha Suresh had applied for a site from the OP-Society by paying an amount of Rs.59,000/-. As she was leaving the country, she requested for transfer of the payment to the name of Sri Sri. 1008 Satyatma Teertha Swamiji, Uttaradi Math. The Society agreed to the request and transferred the membership vide Account No.19865 SAS number 383. Even after decades, the site has not been allotted. The legal notice dt.09.11.2011 was issued seeking refund of the amount with interest at 18% p.a. and compensation of Rs.5,00,000/-. OP had replied on 11.11.2011 stating that the Government is likely to allot alternative land and that the Society is facing financial problem, as soon as they receive money, they will refund the amount. If the site has been allotted, the site value would have been appreciated hugely and would have given immense benefit; huge loss has been suffered besides mental stress in view of inordinate delay and deficiency in service on the part of the Society.   The OP-Society is liable to pay interest.   Thus the complaint.

4. On appearance OP filed version taking similar contention in both these complaints. It is contended that the Op-Society has done its best and diligently prosecuted all legal avenues available for the purpose of acquiring the lands for formation of layout and for distribution of sites among its members. Even the acquisition was notified the same could not be completed in view of the acquisition proceedings being quashed by the Hon‘ble High Court of Karnataka and the same confirmed by the Hon’ble Supreme Court of India in CLP 12/04-107/91 on 21.02.2005 confirmed the Order of the High Court. The Society has to get back the money from the Government. It is reliably learnt that the Government will deduct nearly 22% of the amount towards administrative heads and the Society has to make good the deficit amount even if the money is received from the Government. The Society is not in a position to pay interest on the site deposit amount to the members. The site aspiring members who had deposited amount have been informed through a Circular dt.31.12.1984 that site deposit amount shall not carry interest. The Hon’ble Supreme Court held in AIR 2010 SC 486 that the Developmental Authorities need not pay the interest on the deposit amount for the delay or failure of the projects if there is interference by the orders of the Courts. The present case is similarly placed. The society had to face interim order and final orders from the year 1986 till 1995 and the result is losing the entire project by Orders of the Courts. There is no deficiency of service on the part of the Op-Society. The complaints are barred by limitation. Hence, it is prayed to dismiss the complaints.

5.               In order to substantiate the complaint averments, the complainant in complaint No.1911/2011 filed affidavit evidence. The GPA Holder filed affidavit evidence in complaint No.2201/2011.

6.                Arguments from complainants side heard, OP side taken as heard.

7.               Points for consideration are:

    Point No.1:-  Whether the complainants proved the          

                        deficiency in service on the part of

                          the OP?

      Point No.2:- Whether the complainants are entitled

                   for the reliefs now claimed?

    Point No.3:- To what Order?

8. We record out findings on the above points:

              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 outset it is not at dispute that the complainant in complaint No.1911/2011 became the member of OP-Society and deposited an amount of Rs.22,000/- for allotment of site at “Visweswarayanagar Layout”  and OP issued the Provisional Allotment letter on 02.11.1989. The balance amount payable was Rs.68,000/- at the time of registration of the site. Similarly in complaint No.2201/2011 an amount of RS.59,000/- was deposited by Smt.Sudha Suresh for allotment of site with OP as she was the member and later the same amount has been transferred along with membership to the name of Sri. Sri. 1008 Satyatma Teertha Swamiji, Uttaradi Math, Shankarapuram, Bangalore. OP was unable to form any layout and allot the sites as assured on account of the acquisition proceedings of the lands for formation of the layout were quashed and the same were confirmed by the Hon’ble Supreme Court in CLP No.12/04-107/91 in the year 1995. When OP was not in a position to form the layout and allot the sites it would have been fair enough on its part to refund the amount received from these complainants. The main defence of the OP is due to legal hurdles it was unable to complete the project and whatever the amount has been received from its members is deposited with the Government towards compensation payable to the landlords, but OP has failed to substantiate the said defence by producing documents. The act of OP in not refunding the amount received from these complainants even after lapse of about 17 years of quashing the acquisition proceedings amounts to deficiency in service on the part of the OP.

10.   We are unable to accept the defence of the OP that the complaints are barred by limitation. When once OP accepted the deposit towards sital value with a promise to allot sites to the complainants, till OP allot and register the sale deeds recurring cause of action will accrue to the complainants.

11.   The principles laid down in AIR-2010 Supreme Court 486 Punjab Urban Planning and Development Authority and another V/s Daya Singh cannot be made applicable to the facts of the case in support of the Ops contention that interest cannot be awarded on the amount to be refunded. In the said case the Hon’ble High Court observed that possession could not be delivered in time to the respondents in respect of the plots on account of the order passed by the High Court of Punjab and Hariyana 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.   

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 Hon’ble Supreme Court in the year 1995 in C.L.P.No.12/04-107/91. Thereafter even after lapse of many years of the order of Supreme Court OP has failed to refund the amount to the complainants. Thus the principles laid down in the above ruling cannot be made applicable to the facts of this case.

12.   The relief claimed by the complainant in complaint No.1911/2011 for allotment of site cannot be considered as there exists no any approved layout with available sites, as the acquisition proceedings have been quashed in respect of the lands proposed to be acquired for formation of the layout. Hence the complainants are entitled for refund of the amount paid with interest at 18% p.a. as compensation from the date of respective payments, till realization and along with litigation cost of Rs.2,000/-. The Hon’ble State Commission in Appeal No.5041/2010 dt.19.08.2011 in similar complaint against the same OP modified the Order passed by the 1^st Additional District Consumer Forum in CC.No.2201/2011 to refund the amount paid towards sital value together with interest at 18% p.a. from the date of respective payments, till realization. In view of the said order we are of the considered view that the complainants are entitled for interest at 18% p.a. on the amount deposited. 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.1911/2011 Op is directed to refund an amount of Rs.22,000/- with interest at 18% p.a. from 05.11.1989 till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.

In complaint No.2201/2011 Op is directed to refund an amount of Rs.59,000/- with interest at 18% p.a. from the respective date of payments, till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.

OP to comply the order within four weeks from the date of this order.

This original order shall be kept in the file of the complaint No.1911/2011 and a copy of it shall be placed in other complaint.

Send the copy of this order to 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 19^th day of April-2012.)

MEMBER                                                   PRESIDENT

CS.,