COMPLAINTS FILED ON: 03.07.2010

DISPOSED ON:18.10.2011

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

18^th DAY of OCTOBER 2011

  PRESENT:-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER

                     SRI.A.MUNIYAPPA                          MEMBER              

COMMON ORDER

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 against the Opposite Party (herein after called as O.P) to allot residential site and execute the sale deed in respect of sites measuring 30 X 40 feet situated ‘BEML SHIRDI SAI Layout’ Bangalore, to pay compensation of Rs.10,00,000/- to each of these complainants towards mental agony and to grant such other reliefs as this Forum may deem fit in the facts and circumstances of the case and costs of the proceedings.

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

2. The case of the complainants to be stated in brief is that:

OP being a registered Association, had introduced a Housing Scheme for providing House Sites for the needy members of the Association, under the Project ‘BEML SHIRDI SAI Layout’ Residential Layout at Medahalli, Seegehalli, near K.R.Puram, Bangalore. The complainants being attracted by the said Housing Scheme enrolled the name of each of them with the OP in respect of the said Scheme. As per the demand of the Op, the complainants agreed for payment of Rs.1,68,000/- towards the cost of residential plot measuring 30 X 40 Sq. ft., in the said layout. The details of the payments made by each of the complainants towards the sital value and the date of the payment, the total costs of the sites are as shown in the chart below:-

Thus these complainants deposited part of the sale consideration as shown in the above chart but Op has not allotted any sites to the complainants. OP kept silent over the matter in spite of the requests made by these complainants to allot the sites and execute the sale deeds. The complainants got issued legal notices calling upon OP to execute the sale deeds. Op even after receiving the legal notice failed to execute the sale deeds. The cause of action arose on the date issue of legal notices and when OP after receiving the notices failed to execute the sale deeds. The complainants felt deficiency in service on the part of OP and filed these complaints.

3. On appearance OP filed version by taking identical contentions in all these complaints. It is contended that the complainants have paid only initial deposit towards the costs of the site, they never paid any other amount towards instalments of tentative cost of Rs.1,68,000/- for each of the sites. The complainants remained silent despite receipt of demand notice issued by OP for the payment of balance. The price of the site was approximate, tentative and not final price, the complainants are only a prospective applicants, the final notice for balance payment of instalments were sent for which, the complainants have not responded and paid any instalments. Hence, the complainants failed to fulfill their part of obligation to comply with final demand notice of balance payments of instalments, as such, they have committed default, there is no deficiency of service on the part of the OP. After lapse of more than 2 years from the accrual cause of action, the complainants in order revive the cause of action had sent the alleged notice. OP denies the receipt of notice. The complainants are well aware of the fact that, the OP Welfare Association is concerned with upliftment of the down trodden members by providing residential sites through developer on “No-Profit No Loss” basis, as such the OP is not involved in any commercial transaction of profit making venture. The complainants are making false in corrected statements, misleading statements they are liable to be imposed punitive damages for false and misleading statements. The complaints are barred by limitation, no explanation is explicit from the records to condone the delay. There is no cause of action under the act, as such the complaints are misconceived, groundless and unsustainable in law are liable to be dismissed.

It is stated that certain owners of land in which these complainants were allotted the sites filed Civil Suits before the Senior Division Civil Judge, Deevanhalli. In view of the said litigation, OP was compelled to defend the interest of its members and as such had to engage service of legal experts in defending them, thereby incurred huge expenses. The sites in the land proposed to be allotted are seized and subject matter of civil litigation, the complaints deserves to be dismissed. The complainants are defaulters in payment of the instalments as per the demand notices, there is no deficiency of service on the part of the Op, as such complaints are not maintainable. Hence, it is prayed to dismiss the complaints.

4. The complainants in order to substantiate complaint averments each of the complainants filed affidavit evidence. The President of OP Association R.Sampath filed affidavit evidence in support of defence version and produced documents.

5. OP filed written arguments.

6.  Arguments on both sides heard.

7. Points for consideration are:

       Point No.1:- Whether the complaints are barred

                           by limitation?

       Point No.2:-  Whether the complainants proved the          

                          deficiency in service on the part of

                            the OP?

 Point No.3:- Whether the complainants are entitled

                   for the reliefs now claimed?

       Point No.4:- To what Order?

8.  We record out findings on the above points:

Point No.1:- Negative.

        Point No.2:- Affirmative,

        Point No.3:- Affirmative in part,

        Point No.4:- As per final Order.

R E A S O N S

Earlier the series of complaints filed against the same OP in respect of project ‘BEML, BHIM RAO NAGAR’, Residential Layout at Raghuvanahalli Village in Bangalore south Taluk are disposed of by this Forum, 3^rd and 4^th District Forums Bangalore. The Appeals preferred against those orders are also disposed of by the Hon’ble State Commission. The defence in regard to the limitation to entertain the complaints are already decided in the earlier complaints. These complainants deposited part of the sital value on the various dates as shown in the above chart. As the OP failed to form any layout and allot the sites to the complainants, the legal notices dt.22.04.2010 and 23.03.2010 were issued to the OP demanding to execute the sale deeds by allotting the sites failing which the complainants would initiate the appropriate legal proceedings. As per the complainants the cause of action for these complaints arose on the dates of issue of legal notices and failure of OP in not complying the demand, as such the complaints are filed within period of 2 years from the date of cause of action.

9. The learned counsel for the OP contended that OP issued demand notice to all of these complainants demanding to pay the balance sital value, the complainants failed to pay the balance amount. The cause of action for the complaints arose on receipt of demand notices from the OP and failure of the complainants to deposit the balance sital value. The demand notices were issued in the year 1997, 2000 and 2003, as such the complaints are barred by limitation. In support of this contention reliance was placed on the principles laid down in 2001(II) CPJ 427 Kamalesh Kumari and another V/s Union of India and 1993 (III) CPJ  Gujrat Housing Board V/s M/s Datamia Amritlal. The copy of the judgment in complaint No.739/2007 on the file of 4^th Additional District Forum which was dismissed on the point of limitation is produced. In our view, the cause of action for filing these complaints arose when the complainants got issued legal notices and OP failed to comply the demands of the complainants. In 2005 CTJ NCDRC 499 Julite Quadrej V/s Miss. Malathi Kumar, the Hon’ble National Commission held that when there is neither sale or refund of money nor out right refusal, the cause of action remains continuous. As in these cases OP has not refused to allot and execute the sale deeds in respect of sites nor refunded the amount received from these complainants, hence cause of action remains continuous. Therefore,  we are of the view that the cause of action arose to these complainants when OP failed to comply the demands of the complainants as shown in the legal notices, the complaints are within two years from the date of cause of action, the complaints are not barred by limitation.

10. Though OP has received part of sital value as shown in the above chart but failed to form any layout, on the ground that the owners of the lands proposed to be purchased wherein the sites are to be formed and allotted to these complainants, filed Civil Suits in O.S.No.19/1998, 1950/2006 and 03/2005, 497/2006 on the file of Civil Judge, Senior Division, Devanahalli, as pleaded at Para-18 of the version. When OP was unable to form any layout by acquiring the land, it would have been fair enough on its part to refund the amount deposited by these complainants. The relief claimed for allotting the sites and executing the sale deeds cannot be considered for the reason that OP has not at all formed any layout and no sites are available at its disposal. Though these complainants have not sought specific relief for refund of the amount deposited by way of alternative relief but the prayer in the complaints to grant such other relief’s as this Forum deem fit enables to consider the refund of the amount deposited. The copy of the judgment in Appeal Nos.1051 to 1077/2007 clubbed with Appeal Nos.1132 to 1139/2007 of the Hon’ble State Commission reveals that the complainants who deposited entire sale consideration for the sites were awarded interest at 18% p.a. on the amount deposited from the respective dates of payments till the date of realization and compensation of Rs.2,00,000/-. This Forum disposed of complaint Nos.1502, 1508, 1510, 1511, 1513, 1516 to 1524 & 2594/2010 on 28.06.2011 directing OP to refund the amounts deposited with interest at 18% p.a. from the date of respective payments till the date of realization and to pay compensation of Rs.2,00,000/- to each of the complainants who have deposited the entire sital value and Rs.1,00,000/- compensation to the complainants who have deposited part of the sital value along with litigation costs of Rs.5,000/-. As in these cases, the complainants have deposited only part of the sital value as such each of these complainants are entitled for refund of the amounts with interest at 18% p.a. with compensation of Rs.1,00,000/- each and litigation costs of Rs.5,000/-. The act of OP in not forming any layout and allotting the sites to these complainants nor refunding the amount received towards part of sale consideration amounts to deficiency in service on its part.

11. These complainants have not come forward to pay the balance sital value for the reason that OP has not at all formed any layout. The principles laid down in III (2006) CPJ 380 (NC) Shankar Lal Gupta V/s Avas Aukt and another relied upon by the learned counsel for the OP cannot be made applicable to the facts of the case for the reason that OP has not formed any layout to allot the sites to the complainants. Hence the complainants have not deposited the balance consideration.

12. In complaint No.1506/2010 the complainant has deposited total amount of Rs.75,000/-. OP has issued two cheques each for Rs.25,000/- dt.11.12.2004 and 16.09.2005 towards refund. Out of those two cheques one cheque bearing No.124191 dt.11.12.2004 for Rs.25,000/- has been passed and the another cheque No.140886 dt.16.09.2005 is not at paid as per the letter issued by Andra Bank. Thus only an amount of Rs.25,000/- has been refunded, the balance of Rs.50,000/- is still due to the complainants. Accordingly, we proceed to pass the following:

O R D E R