BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 07^th DAY OF OCTOBER 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainants through their power of attorney holder have 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 them a sum of Rs.4,24,670/- together with interest @ 15% p.a, compensation of Rs.2,00,000/- towards deficiency of service together with cost of litigation.

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

That one Sri.M.S Nagendra, who was the son of first complainant and husband of second complainant was a member of M/s.Viswabharathi House Building Co-operative Society Ltd., Bangalore and his membership number is 2764.  That the said M.S Nagendra died on 18.01.2009, leaving behind the complainants as his only legal representatives to succeed to his estate.  After becoming the member of the OPs society, the said M.S Nagendra applied for a site in the layout formed by OPs society for which he was asked to pay certain amount towards sale consideration of the site to be allotted in his favour and accordingly he paid a sum of Rs.5,000/- on 26.11.1980, Rs.11,670/- on 30.04.1988.  The OP society has issued necessary receipts for having received the above said amount.  That OP society allotted a site bearing no.222, measuring 40x60 in the IV Phase of layout in favour of M.S Nagendra.  That again in the year 1999 the said M.S Nagendra was asked to deposit another sum of Rs.48,000/- by the OP Society and accordingly he deposited the said sum on 07.07.1999, for which a receipt has been issued and during the said period a new site bearing No.1820 was allotted in the IV phase of Viswabharathi Housing complex.  That even after receiving the said amount, OP society did not put the said M.S Nagendra in possession of the said site by executing necessary registered sale deed inspite several approaches and requests.

Thereafter, OP society again demanded the said Nagendra to pay a further sum of Rs.3,80,000/- to enable them to execute the registered sale deed in his favour and put him in possession of the said site.  That since the said Nagendra was in need of site to put up a house and believing the words of OP, he paid further sum of Rs.3,80,000/- on 02.11.2007 under three separate receipts.  That the said M.S Nagendra, thus in all paid a sum of Rs.4,24,670/- in favour of OP during the period between 1980 and 2007, however no site was registered in his name and he was not put in possession of the same.  His desire to acquire and take possession of the site was not at all fulfilled even after a period of 18 to 20 years and till his demise on 18.01.2009.  That after the demise of Nagendra, the complainants who are the only legal heirs are not interested in owning any site in the name of any one of them.  In the mean while OP put a notice in leading newspapers including Sunday Times of India dated 26.07.2009 stating that those who are not interested in waiting for allotment of site can take back the amounts paid by them towards the value of the site.  That in pursuance of the same complainants requested OPs through their letter dated 13.04.2011 to refund the said sum of Rs.4,24,670/- together with interest @ 15% p.a from the dates of respective payment made by late M.S Nagendra.  That the OPs neither replied to the said letter nor complied with the demands made in the said letter.  Therefore, the complainants got issued a legal notice dated 29.09.2011 by RPAD calling upon the OPs to pay them a sum of Rs.4,24,670/- together with interest @ 15% p.a.  That the said notice was though acknowledged by the OPs but they failed to comply the demand made therein.  Therefore, the complainants having no other choice have approached this Forum.

3. OP-1 entered their appearance through their advocate and filed their version contending that the complaint is false and frivolous and filed with malafide object.  That the complainants on the basis of created and fabricated documents have filed this complaint.  That there are no records traceable in the society to show that late M.S Nagendra was member of the society with membership number 2764.  That there are no records to show any receipt of membership or any other amount from the said M.S Nagendra.  That the society never received sum of Rs.5,000/- on 26.11.1980, Rs.11,670/- on 30.04.1988, Rs.48,000/- on 07.07.1999, Rs.1,80,000/- on 02.11.2007 and Rs.1,20,000/- on 02.11.2007 as alleged by the complainant.  That it could be seen in the head note of the alleged receipts that the receipts stands in the name of “Vishwabharathi Housing project”, Girinagar, Bangalore-85 which is nothing to do with OP society.  That the alleged receipts produced by the complainants are created in collusion with the then president namely B.Krishna Bhat.  That there are no any records traceable in the society showing the receipt of any money from the said M.S Nagendra.  The complainants have no locus-standi to file any complaint on the basis of concocted and fabricated receipts.  That the OP society neither allotted site No.222 nor site no.1820 in favour of said M.S Nagendra.  That the OP society has never received any letter dated 13.04.2011 or 29.09.2011 from the OPs demanding refund of the amount in question.  That the above said Sri.B.Krishna Bhat indulged himself in misappropriation of the funds of the society.  Therefore, he was disqualified/removed from the post of president of OP society on enquiry held by Joint Registrar of Co-operative Society.  That in view of the nature of activities conducted in the OP society, the complainant does not become ‘consumer’ as defined under Consumer Protection Act.  That the present complaint is also not maintainable in view of relief available under the Co-operative Societies Act.  That as per the bye-laws of the society, receipt for any payment shall have to be sign and issued by the Secretary only.  Therefore, the receipts issued by the then President are not valid and the amount under said receipts was never received by the OP society.

For the reasons stated above, OP-1 prays for dismissal of the complaint.

4. In response to the notice, OP-2 entered his appearance through his advocate and filed his version stating that he is not an officer of Vishwabharathi House Building Co-operative Society Ltd., as he has resigned to the post of President with effect from 17.08.2009.  He further contended that a new managing committee is elected to the society and this OP has no power or authority to carry out orders, if any, passed by this court.  Therefore, the complaint as against this OP be dismissed.

5. The points that arise for our determination in this case are as under:

        6. The power of attorney holder of complainant filed his affidavit evidence to substantiate the averments made in the complaint reiterating the allegations as to whatever alleged in the complaint.  OP-1 also filed his affidavit evidence in support of the averments made in the version.  Written arguments have been submitted by the complainant.  The complainant has produced relevant documents in support of the allegations made in the complaint.  Perused the materials placed on record.

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

REASONS

8.  The complainants produced the relevant documents issued by the competent authority to show that the complainant No.1 is the mother and the complainant No.2 is the wife of deceased M.S Nagendra.  As could be seen from the copy of family tree produced, the power of attorney holder is none other than the father of deceased M.S Nagendra.  The complainant has produced the death certificate of deceased M.S Nagendra to show that, he died on 18^th January 2009.  Copy of the power of attorney executed by both the complainants is also produced.

9. The complainants have produced receipt dated 26.11.1980 issued by OP-1 in favour of M.S Nagendra for having accepted Rs.5,000/- towards membership fee.  Under said receipt the deceased M.S Nagendra has been allotted membership number 2764.  The copy of the receipt is at annexure-C.  On 30.04.1988 OP society has received a sum of Rs.11,670/- from M.S Nagendra under a receipt at annexure-D in which it has been mentioned that he has been allotted site no.222, measuring 40x60 in phase-IV.  Annexure-E is the copy of receipt dated 07.07.1999 under which a sum of Rs.48,000/- has been received by Vishwabharathi Housing Project under the signature of the then President (OP-2), however the site allotted to M.S Nagendra has been shown as 1820.  The copy of the receipt at annexure-F discloses that, OP-1 has received a sum of Rs.1,80,000/- towards part consideration of the site allotted to deceased M.S Nagendra in phase IV of the Housing Project.

10. Under receipt dated 02.11.2007 and 02.11.2007 M.S Nagendra has paid Rs.1,20,000/- and Rs.60,000/- towards allotment of site in his favour.  OP-2 who was subsequently arrived as one of the OP did not deny the genuineness any of the receipts issued in favour of M.S Nagendra and produced by the complainants in this case.  OP-1 at one stage claims that, the receipts issued under head note ‘Vishwabharathi Housing Project’ are in no way connected to OP-1 society and the amount paid under the said receipts has not been accounted to OP-1 society.  However OP-1 also does not admit the receipt at annexure-C, D and F which have been issued under the head note of ‘Vishwabharathi House Building Co-Operative Society Ltd’.  OP-1 claims that, they are not able to trace any records pertaining to the membership of the M.S Nagendra in their account books.  Having said that, OP-1 states that, since the said M.S Nagendra did not pay the balance amount, he has no right to claim refund of the money already paid by him.  OP-1 blows hot and cold at the same time.  OP-1 did not produce the account books of the society to substantiate their contention that the amount paid under any of the receipts produced by the complainants has been accounted in the account books of the society.  It is also pertinent to note that, in several meeting notices the copies of which have been produced by the complainant, the IV phase of layout of OP-1 society has been referred to as IV phase of Vishwabharathi Housing Project (VHP) thereby indicating that the OP-1 society was referring the IV phase of the layout as IV phase of Vishwabharathi Housing Project.  In the past also the OP-1 society raised similar objections in good number of similar complaints filed on the file of this Forum and the Additional Forums.  However such contentions have been over ruled by this Forum and other Additional Forums and the complaints have been allowed directing refund of advance consideration paid by several ‘consumers’.  The complainants have also produced copy of order dated 22^nd November 2011 passed by this Forum in complaint no.2581/2010.

11. The various documents placed on record and the failure of OP-1 to substantiate their contention certainly goes to establish that deceased M.S Nagendra during his life time paid a sum of Rs.4,24,670/- towards consideration of site allotted to him in phase IV of the housing project undertaken by OP-1.  As already stated above, OP-2 in his version did not deny moneys paid by late M.S Nagendra towards allotment of site bearing No.222.  Thus, it is established by the complainants that, deceased Nagendra during his life time paid a total sum of Rs.4,24,670/- towards consideration of site allotted to him to the OP-1 society.  OP-1 society published a public notice in Sunday Times of India dated 26.07.2009 informing the members that those members who are not willing to wait for allotment of site may claim refund of the money already paid by them.  In pursuance of the said public notice, complainants sought refund of the advance amount paid by them to OP-1 society.  However, for one or the other reasons the payment was deferred.  Ultimately the said M.S Nagendra died on 18.01.2009.  After his demise, the complainant wrote letters to OP-1 asking for refund of the money paid by deceased M.S Nagendra.  OP-1 neither replied to the said notice nor complied the demand made therein.  Therefore, the complainants have caused legal notice.  Despite acknowledging the legal notice, OP-1 failed to comply the demand made in the notice thereby forced the complainants to approach the Forum.  The conduct of OP-1 in refusing to refund the money paid by deceased M.S Nagendra amounts to grave deficiency of service.  The said conduct of OPs must have put the complainants to great hardship, inconvenience and mental agony.  OPs have no valid justification to retain the said amount with them when the complainants have sought refund in pursuance of their own public notice.  Therefore, the OPs have to be directed to refund the said amount of Rs.4,24,670/- to the complainants together with interest @ 15% p.a.  Further the OPs have to be directed to pay compensation of Rs.1,00,000/- towards deficiency of service resulting in great hardship, inconvenience and mental agony to the complainants together with litigation cost of Rs.10,000/-.

12. We don’t find any merits in the contention of the OP-1 that the complainants are not ‘consumers’ as defined under Consumer Protection Act.  In a cases of this nature the District Forums, Hon’ble State Consumer Disputes Redressal Commission and Hon’ble National Commission have held that the complainants under given circumstances are ‘consumers’ as defined under the Consumer Protection Act and the District Forums, Hon’ble State Consumer Disputes Redressal Commission and Hon’ble National Commission have jurisdiction to entertain the complaints, so filed.

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

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

  O R D E R

The complaint filed by the complainants U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs are jointly and severally directed to refund a sum of Rs.4,24,670/- (Four Lakh Twenty Four Thousand Six Hundred and Seventy only) to the complainants together with interest @ 15% p.a from the date of actual receipt till the date of realization.  Further the OPs are directed to pay compensation of Rs.1,00,000/- (One Lakh Rupees) to the complainants apart from litigation cost of Rs.10,000/- (Ten Thousand only).

OPs shall comply this order within four weeks from the date of communication.  

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 07^th day of October 2016)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainants dated 19.01.2013 and additional affidavit evidence dated 26.07.2014.

1. Sri.M.N Sunder Raj.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party/s dated 02.03.2012.

1. Sri.H.V Vadhiraj.  

Document produced by the Opposite party:

MEMBER                            MEMBER                      PRESIDENT

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