Date of Filing:10/03/2011

        Date of Order:10/05/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  10^th DAY OF MAY 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO. 491 OF 2011

Smt. B.M. Gayathri,

W/o. Late. R. Chidananda Murthy,

No.264, 1^st Main, 3^rd Cross,

Sanjay Nagar,

BANGALORE.                                                                      ….  Complainant.

V/s

The Secretary,

The Vyalikaval House Building

Co-operative Society Limited,

No.100, 6^th Main, 11^th Cross,

Malleshwaram,

Bangalore-03.                                                                    …. Opposite Party.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay Rs.19,50,000/-, are necessary:-

          One Sri. M. Shanmukha Swamy, brother of Sri. Late. R. Chidananda Murthy who is none other than the husband of the complainant was the member of the opposite party Since 1983 he has paid Rs.26,000/- to get a site from the opposite party.  The provisional allotment of site has been made in his name on 28.05.1987.  Sri. M. Shanmukha Swamy transferred his membership and rights under the membership to the complainant’s husband on 03.07.1992 which was accepted by the opposite party.  The husband of the complainant died in the year 1999 and after his death membership has been transferred in the name of the complainant as per the request letter dated: 09.08.1999.  Even after that no possession of any site has been given.  Whenever the complainant approached the opposite party was postponing the event on one pretext or the other.  Hence a notice was issued to the opposite party on 22.04.2010.  The opposite party sent a reply on 16.07.2010 expressing its inability to allot a site since the Government has taken back the 20 acres of land and the opposite party has made a fresh request to the Government to allot alternative land, and if that is allotted in that they will allot a site.  The complainant made enquiries and learnt that the opposite party is collecting higher sums from non-members and allotting sites.  Hence the complainant has issued a notice to the opposite party on 03.09.2010 asking the opposite party to reimburse the amount with interest.  Even then the opposite party has not cared to comply with it.  The complainant had approached the Honorable State Commission in Complaint No.22/2011.  Wherein it was ordered to represent the complaint before the District Forum.  Hence the complaint.

2.       In this case the notice is served on the opposite party, but opposite party did not thought upon contesting the proceeding till date.  The learned counsel for the complainant submitted that the complaint and documents be read as evidence.  Hence arguments were heard.

3.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether there is any deficiency in service on the part of the opposite party?
2. What Order?

4.       Our findings are:-

Point (A)        :           In the Positive.

Point (B)        :           As per the final Order

                             for the following:- 

-:REASONS:-

Point A & B:-

5.       Reading the complaint in conjunction with the documents on record, it is established that Sri. M.Shanmukha Swamy was the member of the opposite party, he had paid Rs.26,000/- to the opposite party who issued a provisional allotment of a site order dated: 28.05.1987.  In spite of that there is no site in fact has been allotted either to Shanmukha Swamy or anybody.  Subsequently Sri. Shanmukha Swamuy transferred his rights to have the site as well as the membership to his brother Sri. R. Chidananda Murthy and it has been regularized by the opposite party on the letter of Shanmukha Swamy dated: 03.07.1992.  Sri. Chidananda Murthy had paid the full amount to Sri. Shanmukha Swamy.  Sri. Chidananda Murthy died in the year 1999, and the complainant made a request letter to the opposite party on 09.08.1999 seeking change of the membership from the name of Sri. Chidananda Murthy to her name as she is the sole legal representative, that was accepted by the opposite party and the membership has been transferred.  Subsequently the complainant became the member of the opposite party.  The opposite party did not handover the site nor formed any layout, but went on postponing the event on one ground or the other.  Hence the complainant has issued a notice to the opposite party on 22.04.2010.  To that the opposite party on 16.07.2010 has replied thus:-

With reference to your notice on behalf of your client Smt. B.M. Gayathri, dated: 22.04.2010, received on 21.06.2010, we write to inform you that the society had lost 20 acres of land at Hosahalli out of 40 acres.  Hence we could not allot the site to more that 350 members.  We have requested the previous Government to allot alternate land.  But not allotted, we have also requested the present Government to allot alternate land.  The Government is agreed to allot 200 acres of alternate land since we have lost 208 acres at Nagawara and Kodigehalli.  We are awaiting Government orders in this regard.  After allotment of alternate land we will inform all the members.  The same may be communicated to your client.

That is to say the land which was meant for forming the layout was over by the Government and they are unable to make layout, handover possession of the same to anybody and only on the alternative grant if given to the opposite party by the Government, they will in a position to allot a site.

6.       Subsequently to 16.07.2010 as no site was given, no allotment was made the complainant wrote to the opposite party on 03.09.2010 asking the opposite party to pay her money with interest.  To that on 15.09.2010 the opposite party has replied stating that there is no by law or agreement is there to pay the interest and the Apex Court has held that no interest is liable to be paid and the opposite party is ready to refund the amount.  In spite of that letter dated: 15.09.2010 the opposite party has not cared to repay the amount paid by the complainant.  It is nothing but deficiency in service.

7.       Keeping others money with it on the promise of allotting sites and earning interest, earning the property without repaying it certainly amounts to unfair trade practice and deficiency in service.  If any money had been invested in any land by the complainant it could have fetched 10 times or 100 times what she has invested.  Hence under these circumstances if we direct the opposite party to pay interest at the rate of 12% per annum as compensation on Rs.26,000/- from 03.08.1992 until payment along with Rs.26,000/- we think that will meet the ends of justice.  Hence we hold the above points accordingly and proceed to pass the following:-

-: ORDER:-

1. The Complaint is Allowed-in-part.
2. The opposite party is directed to pay a sum of Rs.26,000/- to the complainant together with interest thereby at the rate of 12% per annum from 03.08.1992 until payment within 30 days from this order.
3. The opposite party is also directed to pay Rs.2,000/- to the complainant towards cost of this litigation.
4. The opposite party is directed to send the amount as stated at Serial Nos. 2 and 3 to the complainant by DD through RPAD and submit the compliance report to this Forum with necessary documents within 45 days.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 10^th Day of May 2011)

MEMBER                                  MEMBER                           PRESIDENT