IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 400/09 DATED 08.01.2010<br /> ORDER<br /> <br /> Complainant Ankaiah, S/o Siddaiah, <br /> R/at Anuvalu Village, <br /> Heeremaralli Post, Pandavapura Taluk, Mandya District.<br /> <br /> (By Sri. J.M.Aiyanna, Advocate)<br /> <br /> Vs. <br /> Opposite Party The Secretary, <br /> The South Western Railway Employees House Building Co-operative Society Ltd., Mysore (North), Railway Buildings, Irwin Road, Mysore.<br /> <br /> (By Sri. N.S.Basappa, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 30.0.2009<br /> Date of appearance of O.P. : 16.11.2009<br /> Date of order : 08.01.2010<br /> Duration of Proceeding : 1 MONTHS 23 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint, seeking directions to the opposite party to convey the site allotted to him by executing registered sale deed by putting him in actual possession thereof or in the alternative to allot and convey available site near to the site that is allotted having similar value. Further, a sum of Rs.50,000/- towards mental agony, hardship and loss and such other reliefs that, the Forum deems fit.<br /> <br /> 2. In the complaint it is alleged that, the complainant is working in the South Western Railways. The opposite party society has been registered for the purpose of formation of residential layout and allotment of sites to the members. On 23.09.1992, communication was addressed to the complainant informing formation of layout by the society. Accordingly, the opposite party allotted site No.471 measuring 30’ x 40’ to the complainant. On 02.02.1995, opposite party informed the complainant that, fifth installment payable amounting to Rs.10,000/- is due. By the said intimation, opposite party has acknowledged receipt of earlier payment made to the extent of Rs.16,000/- towards site allotted. On 19.12.1996, opposite party sent notice to the complainant, calling upon to remit Rs.12,787/- on or before 15.01.1997 intimating that process of registration of the sites in favour of the respective allottees would commence from the Month of February 1997. Opposite party also acknowledged the receipt of Rs.22,000/- from the complainant towards value of the site. The complainant remitted Rs.10,000/- on 19.10.1998, Rs.5,000/- on 20.09.2004. Another notice was sent to the complainant by the opposite party on 20.05.2006, calling upon to pay the final installment amounting to Rs.8,527/- on or before 20.06.2006. Accordingly, on 19.06.2006, the complainant has remitted Rs.8,530/-. Till this date, in spite of having made the payments, the site has not been provided. The complainant repeatedly approached the opposite party, calling upon it to discharge its part of obligation. The opposite party put forth one or the other excuses regarding procedure or requirements to execute sale deed. The complainant went on believing the words of the opposite party. Out of curiosity, the complainant obtained encumbrance certificate pertaining to the site allotted to him and shocked to find that, it was sold to third party, in spite of the fact that, the complainant has paid entire consideration. The act of the opposite party conveying the said property to third party amounts to gross deficiency in service as well as Unfair Trade Practice. The complainant has incurred financial loss as well as mental agony. He issued notice dated 29.07.2009 calling upon the opposite party to execute the sale deed as per the allotment. On 19.08.2009, opposite party sent untenable reply and on 19.09.2009 a cheque for Rs.45,530/- was sent to the complainant, intimating that the amount that, the complainant had paid is being returned. The opposite party failed to provide any satisfactory reason for return of the said amount. Also, there is no legal termination of the contract. The allotment of the site in favour of the complainant continues. The allotment of the site in favour of the third person is illegal, null and void. Moreover, the opposite party has indulged in mal-practice. On these grounds it is prayed to allow the complaint.<br /> <br /> 3. In the version, the opposite party has admitted that, the complainant is it’s member, a site measuring 30 ‘ x 40’ was allotted to the complainant and that the complainant has made various payments, which is narrated in detail in paragraph 12. It is contended that, the complainant in response to the notice though paid Rs.8,530/- on 19.06.2006, not fully complied with the request and demand. Except making payment, the complainant did not choose to get the site registered in his favour, which was allotted to him. Hence, opposite party society is not responsible or liable for the willful default committed by the complainant. It is stated that, the complainant has made irresponsible statement with oblique motive to file false complaint. It is stated, after making payment, the complainant did not turn before the society to get the site registered in his favour and hence, without any other alternative remedy, the opposite party refunded the amount to the complainant on 19.09.2009. It is contend that, the complainant to cause injury, inconvenience and agony to the opposite party has filed false complaint. It is contend that, provisional allotment was made in favour of the complainant, but possession was not handed over. It is stated that, the averment made by the complainant in the complaint that the opposite party society indulged in mal practice, is most true and false. Also, it is contended that, this Forum lacks jurisdiction to deal with above allegations. It is contended that, in the Board Meeting held on 10.11.2008, the opposite party society took decision to cancel the allotment of the site of the complainant and other four persons and allotted to other eligible members. The site bearing No.471 has been allotted in favour of the member T.S.Rajanna as per the letter dated 15.04.2009. Said Rajanna sold the site in favour of Smt.Shwetha. It is also contended that, false and frivolous complaint is filed and it is hopelessly barred by limitation. Also, it is contended that, the complainant is due to the opposite party society in a sum of Rs.5,000/- towards site maintenance and development charges. Also, it is contended that, no site is available at the disposal of the opposite party for allotment to it’s members. On these grounds, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the facts alleged in the complaint, the complainant has filed his affidavit whereas Secretary of the opposite party has filed her affidavit. Both parties have produced several documents. We have heard the arguments of both the learned advocates for the complainant and opposite party and perused the entire records.<br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> 6. Our findings are as under:-<br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- The fact that, the complainant is member of the opposite party House Building Co-operative Society and that a site measuring 30’ x 40’ was allotted, is admitted. The opposite party tried to contend that, in the allotment letter site number was not mentioned. It is true, in the allotment letter site number was not mentioned, but only measurement is mentioned. Reason is not mentioned by the opposite party for non-mentioning the number of the site in the allotment letter. But, may be because layout was not ready at that time. The allotment letter is dated 23.09.1992. However, there are several letters or notice of the opposite party to the complainant, calling upon to pay the subsequent installments, wherein the site No.471 is specifically mentioned. Hence, one fact is clear that, site No.471 was allotted by the opposite party to the complainant.<br /> 8. From time to time, the complainant has made various payments to the opposite party society towards site, which fact is admitted and the details of the payments with dates are mentioned in paragraph 12 of the version as under:-<br /> Date Receipt No. Amount in Rs.<br /> 25.04.1989 1,000.00<br /> 19.05.1992 1020 1,000.00<br /> 11.06.1992 1028 6,000.00<br /> 14.01.1992 1593 6,000.00<br /> 19.01.1993 1939 2,000.00<br /> 20.04.1995 3911 6,000.00<br /> 19.10.1998 10,000.00<br /> 20.09.2004 4110 2,787.00<br /> 2,213.00<br /> 19.06.2006 020 6,530.00<br /> 19.06.2006 020 2,000.00<br /> TOTAL 45,530.00<br /> <br /> Hence, since from the year 1989 the complainant commenced making payment towards the site till the year 2006.<br /> <br /> 9. The complainant has alleged that, the opposite party society did not execute registered sale deed in spite of the entire price of the site was paid. In paragraph 5 of the version, it is contended by the opposite party that, the complainant has not fully complied with the “lawful” request and demand made by the opposite party society under the notice dated 20.05.2006. Hence, the question would be what was “lawful” request and demand made by the opposite party as per the said notice.<br /> <br /> 10. The notice dated 20.05.2006 is produced by the complainant as well as opposite party. In this notice, which is at Annexure -4 of the complaint, the subject is towards registration of the site. In the notice, the fact that site No.471 was allotted to the complainant is mentioned and certain other earlier correspondence is stated. At the end of the letter, the opposite party society has called upon the complainant to pay the amount due in a sum of Rs.8,527/- before 20.06.2006 and get the sale deed registered. On 19.06.2006, the complainant has paid the amount demanded by the said letter. Said payment is a day earlier to the time limit prescribed by the opposite party society. That payment is admitted by the opposite party society.<br /> <br /> 11. As noted above, the opposite party contend that, as per the notice referred to above, the complainant did not fully comply with the “lawful” request and demand made by the opposite party. The only demand made by the said letter by the opposite party from the complainant was payment of the amount within the stipulated time. Admittedly, that has been complied with by the complainant. What were other “lawful” request and demand, cannot be made out from the said letter. When the complainant has paid the amount of the site, then the duty is costed upon the opposite party society to execute the registered sale deed as per the terms and conditions. Learned advocate for the opposite party vehemently argued that, the complainant after making payment did not come forward to get sale deed registered. All along the complainant has alleged in the complaint and stated in the affidavit that he made repeated requests to the opposite party society to execute registered sale deed, but for the one or the other reason that was postponed. When the complainant aspiring for a site commenced making payment of the amount to the opposite party society in the year 1989 and as per the letter of the opposite party, the complainant made payment on 19.05.2006, the submission of the learned advocate that, the complainant did not come forward to get the sale deed execute, cannot be believed. No sane person having paid such huge amount that too entire price of the site, will not keep quite without demanding execution of the sale deed.<br /> <br /> 12. As noted above, when the complainant has paid the entire price of the site, duty is costed upon the opposite party society to execute registered sale deed. Of course, there is nothing on record as to who shall bear the cost of registration of the sale deed. Let us take that, the purchaser complainant has to bear all the expenses. It is not at all the case of the opposite party society that, the complainant in spite of the intimation did not come forward to pay the stamp duty and registration charges. Moreover, payment of stamp duty and registration charges will come after draft sale deed is ready. The opposite party society has to execute the sale deed in favour of the complainant. Hence, first of all the opposite party society has to furnish draft sale deed to the complainant and then question will arise for registration. Nowhere the opposite party society has stated that draft sale deed in favour of the complainant was prepared and it’s copy was sent to the complainant or the fact that draft sale deed is ready, was intimated to the complainant, calling upon him to pay the necessary charges and get it registered. Considering these facts, we found no substance in the contention of the opposite party that, the complainant did not fully comply with the “Lawful” request and demand made by the opposite party society. Consequently, the further contention of the opposite party that, complainant committed default cannot be believed.<br /> <br /> 13. As noted above, the complainant commenced making payment towards the site in the year 1989. From the documents even produced by the opposite party society, it appears registration of the sites commenced only in the year 1997 that is after about 8 years from the first payment made by the complainant and 6 years from the date of allotment of site by the opposite party to the complainant. At the cost of repetition, from the year 1997 till 2006 the complainant has made payment towards price of the site within the stipulated period by the opposite party society. Hence, deficiency in service on the part of the opposite party has been established by the complainant.<br /> <br /> 14. Further contention of the opposite party is that, certain members committed default in payment of the installments towards price of the site and hence, the opposite party society in the Board Meeting decided to cancel the allotments to the respective members. The present complainant is one of the members whose site has been cancelled. First of all, as noted above, admittedly within the stipulated date, the complainant has paid the entire amount towards the cost of the site. Xerox copy of the resolution of the opposite party society is produced. In this resolution, reason for cancellation of the allotment of the sites mentioned is that, the respective members have not responded despite sending intimation to pay the balance amount and get the site registered. Here, we are not concerned in respect of other members. So far concerned to the present complainant, even the opposite party society has admitted that within the stipulated date, the complainant has paid the amount that was demanded by the letter. When admittedly, the present complainant has paid the entire amount within the stipulated time, the reason mentioned in the said resolution that the complainant despite intimation sent to his address did not pay the amount and get the sale deed registered, is false or incorrect. Further more, it is important to note that, it appears there were some more cases against the present opposite party society by other aggrieved members and the opposite party itself has produced Xerox copy of order of this Forum dated 30.10.2009 in CC 292/09. In this order, the observation made by this Forum in CC 149/09 dated 18.08.2009 has been quoted, which is reads thus:<br /> “It is the contention of the complainant that, the opposite party had no power at all the cancel the allotment. For the opposite party copy of the resolution, as well as the resolution book are produced. A meeting was held on 30.09.2007. On page 25 of the book the proceedings are commenced. The learned counsel for the complainant pointed out page No.32. He submitted that, at the end of first paragraph there is insertion regarding cancellation. The learned counsel pointed out all the pages in respect of the proceedings of said date and pointed out that, after each agenda and writing of the proceedings a line or sentence is left, where as on page 32, there is no blank sentence and in fact earlier a sentence was left blank but utilizing that blank sentence, addition has been made and thereby said resolution so for concerned to cancellation is fabricated. On keen observation, the submission appears to be true. Firstly, in the earlier pages as well as in the subsequent pages in between the each agenda and the writings, a line is left blank, where as only on page 32 there is no blank line. Secondly, we can find little difference in the ink of the said insertion and the remaining writings on the said page. Likewise, in between the letters or words comparing to other writings in the said page, one can find difference that, in the added or inserted portion, in between the letters or words, as usual there is no spacing. Considering this, we are of the opinion that, said sentence has been inserted or added subsequently.<br /> There is one more resolution book and that was also produced by the opposite party but latter keeping Xerox copy that has been taken back. Advocate for the complainant in respect of this resolution book also submitted that, few sheets in the book have been added or replaced. The relevant resolution is dated 10.11.2008. On page 136 disputed fact is pointed out. At serial No.7 there was some writing that, all members had paid entire cost of the site and had obtained possession etc., But that is scored and below it, seventh agenda or paragraph is again written. Here, it is mentioned that, the members name mentioned therein have not paid the amount and hence, allotment has been cancelled and the same should be allotted to other eligible members. Reading the said agenda or resolution, as written already there was cancellation of the allotment. Past tense is used. So also specifically it is mentioned, the sites in respect of which allotment has been cancelled, are to be distributed to eligible members. That was the agenda in the meeting. Thus as mentioned therein allotment was cancelled. Hence the question would arise when actually the allotment was cancelled, in the letter produced by the opposite party at serial No.31 dated 20.05.2006, it is stated as already informed allotment will be cancelled and the site would be given to eligible member if the amount shown therein is not paid. In the resolution dated 30.09.2007 on page 32 the inserted portion is to be held that, the members informed the meeting to cancel the allotment who have not got registered and that was agreed.”<br /> <br /> Hence, apart from the fact that, the complainant has paid the amount well in time, the resolution that the opposite party society rely upon to contend that the allotment has been cancelled by passing a resolution, said resolution is tampered or manipulated. <br /> <br /> 15. The complainant has alleged that even though the site has been allotted by the opposite party to him, the opposite party has allotted the said site to the third party in spite of the fact that, entire consideration amount was received by the opposite party. Hence, the complainant has alleged that, the act of the opposite party amounts to deficiency in service and also unfair trade practice and that the opposite party has indulged in malpractice. In this regard, the opposite party in the version at paragraph 8 has contended that said allegation is most untrue and false statement and that this Forum lacks in jurisdiction to deal with above allegation. Since, the opposite party has contended that this Forum has no jurisdiction to consider the allegation of the complainant regarding unfair trade practice, first of all, let us consider, whether Forum has got jurisdiction to deal with the matter of unfair trade practice.<br /> <br /> 16. Under sub section (r) of section 2 of the C.P.Act unfair trade practice is defined, which means a trade practice which for the purpose of promoting the sale, use or supply of any goods or for the provision of any service adopts any unfair method or deceptive practice…………….. Under section 14 of the C.P.Act, this Forum has got power to deal with and pass appropriate order in connection with unfair trade practice. Amongst other sub sections, sub section ‘f’ of section 14 specifically deals with the matter. Hence, the contention of the opposite party society that this Forum lacks in jurisdiction to deal with the allegation of the complainant, is without any substance. Hence, now we have to proceed to consider whether the opposite party society has adopted any unfair method and unfair or deceptive practice in providing service to the complainant.<br /> <br /> 17. As considered here before, within stipulated time the complainant paid the entire amount that he was liable to pay. In spite of it, the opposite party has not executed registered sale deed in respect of the site allotted to the complainant. In the complaint, the complainant has sought a direction to the opposite party to execute registered sale deed in respect of the site that was allotted. In this regard, the opposite party has contend that, the site came to be allotted to one Sri.T.S.Rajanna as per the allotment letter dated 15.04.2009 and registered sale deed dated 18.04.2009 has been executed and thereafter said T.S.Rajanna has sold the said site to one Smt.Shwetha. Hence, the learned advocate argued that, the said prayer of the complainant cannot be granted.<br /> <br /> 18. On the point noted in the above paragraph, firstly the complainant has all along contended that, the opposite party society has allotted the site in the year 1992 and he has paid the entire sale consideration. Hence, the complainant contend that, his right over the said site will subsist. The allotment letter is as good as an agreement entered into between the Housing Society and the complainant regarding sale of the said site. Unless and until, the agreement or allotment is legally and validly terminated, the right of the agreement holder subsist. In spite of existence of such an agreement or allotment if the owner of the property sells said property to the third party, the agreement holder has got priority to get the property. In the case on hand, even though the opposite party society has alleged that, it has cancelled the allotment of the site to the complainant by passing the resolution, firstly, the reason assigned therein that the complainant did not pay the entire amount in respect of the site is false or incorrect and secondly, the said resolution itself as observed in earlier case by this Forum has been tampered. In fact that aspect has been confirmed by the Hon’ble State Commission in an appeal. Hence, the claim of the complainant that still his right subsist, cannot be brushed aside.<br /> <br /> 19. Further it is relevant to note that, even though admittedly opposite party had sent letter to the complainant, calling upon to pay the balance amount and within the stipulated time, on 19.06.2006, the complainant deposited the entire amount with the opposite party, the opposite party society kept quite years together and only by the allotment letter dated 15.04.2009, the site in question came to be allotted to T.S.Rajanna. The opposite party society by the said allotment letter dated 15.04.2009 informed T.S.Rajanna to credit price of the site amounting to Rs.2,06,850/- and to get the site registered. On the very next day, possession certificate dated 16.04.2009 has been issued by the opposite party society. The allotment letter is at page 37 and the possession certificate at page 38 of the documents produced by the opposite party. Then, on second day, the opposite party society has executed registered sale deed dated 18.04.2009 in favour of T.S.Rajanna. As noted here before, the complainant initially paid the amount in the year 1989 aspiring for site, which was allotted in the year 1992 and as per the demand made by the opposite party, the complainant paid the amount till the year 2006 for a period of about 17 years and in spite of payment of entire price of the site, the complainant did not get the registered sale deed. But, the opposite party society allotted the site to T.S.Rajanna on 15.04.2009, handed over possession of the site on the very next day on 16.04.2009 and on second day that is on 18.04.2009 executed the registered sale deed. On the third day of allotment, opposite party executed the sale deed in favour of T.S.Rajanna whereas at the cost of repetition, the complainant after allotment of the site in the year 1992 went on making payment as demanded by the opposite party society for a period of about 14 years till 2006, but sale deed was not executed. In spite of taking 14 years in case of complainant that after payment of full price, the opposite party did not execute registered sale deed whereas in case of T.S.Rajanna on the third day, of allotment of letter itself executed registered sale deed. Also, it is relevant to note that, at page 40, the opposite party has produced Khata extract in respect of the site in question in favour of T.S.Rajanna. It is dated 16.06.2009. It is much earlier to the registered sale deed. The opposite party has also produced tax paid letter dated16.06.2009. Said T.S.Rajanna paid the tax two days earlier to the sale deed itself. Not only this, in the letter regarding payment of tax, there is mention that, as per challen No.183854 dated 15.06.2009 the tax has been credited. It goes to show that even prior to taking possession and so also, the sale deed, the tax has been paid. From these facts and the documents, it is crystal clear that, the opposite party has indulged in unfair trade practice and rightly the complainant has termed the act of the opposite party as mal practice. Also, it is relevant to note that, in the sale deed in favour of the T.S.Rajanna there is specific recital that T.S.Rajanna had submitted an application to the society for allotment of site for construction of own house. Said T.S.Rajanna through general power of attorney holder has sold the said site in favour of one Shewtha Kumari by the registered sale deed dated 01.08.2009. Though, T.S.Rajanna has executed sale deed through power of attorney holder in favour of Shwetha Kumari nearly after about 3 ½ months from the date he got the sale deed in his favour, the GPA who has executed the said sale deed was registered on 18.04.2009 itself. That fact is mentioned in the sale deed in favour of Shwetha Kumari. Not only that, on the said date, GPA was executed, but stamp duty and registration charges amounting to Rs.22,205/- was paid at the time of registration of the power of attorney holder itself. As noted above, opposite party society has executed sale deed in favour of T.S.Rajanna on 18.04.2009 and on the same day, T.S.Rajanna executed registered power of attorney holder in favour of one Nithin who has executed sale deed in favour of Shetha Kumari. Hence, further this fact crystallized that on the date of sale deed in favour of T.S.Rajanna, power of attorney holder was executed, establish that everything was pre planned. <br /> <br /> 20. As per the letter of the opposite party and other material on record, the entire cost of the site was Rs.45,530/- for which amount the complainant was entitled for sale deed. The opposite party society has executed sale deed in favour of T.S.Rajanna for a sum of Rs.2,06,850/-. In turn, said T.S.Rajanna has sold the site within few months for a sum of Rs.2,96,000/-. As noted above, prima-facie everything was pre planned and arranged. Under the circumstances, can it not be said as unfair trade practice or mal practice?<br /> <br /> 21. In paragraph 10 of the version, the opposite party has contended that the complainant is due in a sum of Rs.5,000/- towards site maintenance and development charges, which was communicated to the complainant and for non-payment of that amount, sale deed could not be registered. But, as noted here before, in the letter dated 20.05.2006, the opposite party society demanded only Rs.8,527/- and that was paid well in time. Moreover, there is no cogent evidence on record to show that in fact opposite party called upon the complainant to pay said amount of Rs.5,000/-. As noted earlier, when the complainant has paid huge amount since 1989 towards site that was allotted to him, if really the opposite party society had called upon the complainant to pay the alleged development charges, the complainant could have paid. Moreover, when long back sites have been formed and allotted to various persons, there is no question of payment of development charges as contended in the version.<br /> <br /> 22. At the end of paragraph 12 of the version, the opposite party has stated that, as long back as on 19.09.2009, the opposite party society has returned the amount to the complainant by way of cheque, which has been received on 01.10.2009. On receipt of the said amount, the complainant has filed frivolous complaint. But, it is definite and specific case of the complainant that, he sent legal notice dated 29.07.2009 to the opposite party society calling upon to execute registered sale deed and firstly, the opposite party sent reply dated 19.08.2009 and thereafter another communication on 19.09.2009 with the cheque for Rs.45,530/-. Hence, said cheque even was not sent by the opposite party while replying the notice of the complainant. Moreover, the complainant has returned the said cheque to the opposite party. The complainant has not at all encashed the said cheque. That fact is stated by the complainant in his affidavit. The opposite party has not mentioned about sending back the said cheque by the complainant. Simply, opposite party has contended that, the cheque it had sent to the complainant has been received by him. Returning back the said cheque is not mentioned either in the version or in the affidavit. It is not at all the case of the opposite party that, the complainant has not sent back the cheque. Under the circumstances, it is clear that, in fact, the complainant has not received the amount.<br /> <br /> 23. All along, the opposite party has contended that the complainant has made irresponsible statement and has filed false and frivolous complaint and that complainant is defaulting member and even it has gone to the extent of disputing the jurisdiction of this Forum to deal with the allegation of the complainant regarding unfair trade practice. In fact, as noted here before, the opposite party society has indulged in unfair trade practice, also a mal practice and it has tampered or concocted, the resolution regarding cancellation of the site allotted to the complainant without any justifiable grounds.<br /> <br /> 24. Learned advocate for the opposite party submitted that in the earlier case, copy of which is produced by the opposite party, this Forum though had directed to allot a site to the applicant in that case, as could be same from the records, the site that was allotted to the complainant is not available and hence, no such direction can be granted. For this extend, under the circumstances, for various reasons, we agree that the submission of the learned advocate that unless and until the sale deeds in favour of T.S.Rajanna and Shwetha are set aside in accordance with law, no direction could be given to the opposite party to allot the very site to the complainant. So also, said T.S.Rajanna and Smt.Shwetha are not before this Forum and in their absence, affecting their rights no adverse orders could be passed by this Forum. In view of the further submission made by the learned advocate that even for allotment of alternative site, no site is available, from the evidence on record, we are unable to find out that any site is available with the opposite party society to allot to the present complainant. Under the circumstances, only just order that we can pass to direct the opposite party to refund the amount with interest as well as compensation. So also, opposite party having indulged in unfair trade practice, taking into consideration of entire facts and the circumstances, we also feel it just and necessary to direct the opposite party to pay substantial amount to the Legal Aid Account of this Forum. <br /> <br /> 25. Lastly, in the version opposite party has contended that, the complaint is time barred. We have considered here before, the entire facts and the evidence in detail. Considering the same as well as the fact that, during the year 2009 itself, the opposite party had refunded the amount to the complainant, which is further returned by the complainant to the opposite party. We are of the opinion that, the complaint is well in time.<br /> <br /> 26. Accordingly, our finding is partly in affirmative.<br /> <br /> 27. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite party is hereby directed to refund the amount that it has received from the complainant from time to time with interest at the rate of 18% p.a. from the respective dates noted below, within a month from the date of this order.<br /> <br /> Date Receipt No. Amount in Rs.<br /> 25.04.1989 1,000.00<br /> 19.05.1992 1020 1,000.00<br /> 11.06.1992 1028 6,000.00<br /> 14.01.1992 1593 6,000.00<br /> 19.01.1993 1939 2,000.00<br /> 20.04.1995 3911 6,000.00<br /> 19.10.1998 10,000.00<br /> 20.09.2004 4110 2,787.00<br /> 2,213.00<br /> 19.06.2006 020 6,530.00<br /> 19.06.2006 020 2,000.00<br /> TOTAL 45,530.00<br /> 3. Further, the opposite party is hereby directed to pay a sum of Rs.25,000/- to the complainant, the compensation towards mental and inconvenience, within a month from the date of this order, failing which the amount shall carry interest at the rate of 10% p.a. <br /> 4. Also, the opposite party is hereby directed to credit a sum of Rs.1,00,000/- to the Legal Aid Account of this Forum, within a month from the date of this order, failing which the amount shall carry interest at the rate of 10% p.a. till remittance.<br /> 5. Further, opposite party shall pay a sum of Rs.3,000/- to the complainant towards cost of the proceedings.<br /> 6. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 8th January 2010)<br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />