Date of Filing:01/08/2015
Date of Order:03/05/2016
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated: 03TH DAY OF MAY 2016
PRESENT
SRI.SYED ANSER KHALEEM, B.SC., B.Ed.,LL.B.,PRESIDENT
SMT.BHARATI.B.VIBHUTE, B.E(I.P.) LL.B., MEMBER
COMPLAINT NO.1421/2015
Smt. Nirmala M.N.,
Wife of H.A. Radha Krishna,
Aged about 51 years,
Resident of b-708,
Gopalan Jewels,
Kanakpura Main Road,
Bengaluru-560 062. Complainant
V/s
The Syndicate Bank Retired
Employees Welfare Society,
No.98/5, First Floor, 1st Main,
1st Cross, Tank bund Road,
(Behind New BMTC bus Stand),
Marenahalli, 9th Block, Jayanagar,
Bangalore-560 041.
Represented by its President. Opposite Party
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This complaint is filed U/S 12 of the Consumer Protection Act, 1986 against the opposite party (hereinafter referred in short as Op) alleging deficiency in service on the part of the O.P and prays for direction to the O.P to pay a sum of Rs.7,80,000/- along with interest at the rate of 12% per annum from 14.11.2006 till the date of realization and also claiming compensation of Rs.50,000/- for suffering mental agony, harassment etc along with cost of proceedings.
2. The facts in brief is that, the O.P. being the Syndicate Bank Retired Employees Welfare Society undertakes the development of the Housing layout and to allot sites to its members. Accordingly, O.P. invited applications for booking of residential sites in the layout to be formed by the O.P. on Bangalore-Mysore Main State High way near Bidadi Taluk. The complainant became the member of the O.P and booked the residential sites and thereby O.P. allotted the membership bearing No.Sy/46/06 and also allotted the site booking No.Sy./SB/09/06. The sale consideration was fixed for Rs.7,80,000/-. Accordingly, on 3.3.2006 the complainant was paid installments of Rs.1,50,000/-, Rs.2,50,000/-, Rs.2,00,000/- and Rs.1,80,000/- through cheques on different dates and all the said amount were encashed by the O.Ps. Accordingly O.P. issued receipts for the acknowledgment of the amount received. The O.P promised to develop the said layout at the earliest and communication in this regard were made between the parties. However, the O.P did not developed the said layout as promised. The O.Ps informed the complainant that the managing committee has decided to take legal action against the developer since he has not stick on to his commitments with the society and therefore the O.P has initiated Arbitration proceedings against the developer. Further the society of O.P suffered loss due to defective title and pending litigation. Hence the complainant lost all trust in the O.P. and also as she noticed that no positive result in future and investing her money in stake. Hence the complainant alleged that O.Ps are committed deficiency in service. Hence this complaint.
3. Upon issuance of notice, O.P appeared through their counsel and filed its version. In the version O.P contended that, the complaint is not maintainable either in law and the same is liable to be dismissed. The complainant is not a consumer as per 2(1) (d) of the Consumer Protection Act and contended that, there is no deficiency on their part. The O.P. admitted that their society is registered and its Registration No.BLU.S-1132-2005-06 with the object of provide various welfare measures including the development housing layout project and thereafter allotting sites to its members. Accordingly, O.P. invited applications for the layout to be formed. However, O.P. promised that a Housing Layout would be formed and the sites will be allotted on first come first serve basis within 8 months as claimed by the O.P. in its rules and regulations. The O.P. admitted that the complainant is a member of the O.P. society and have membership No.046. The O.P. also admitted payments made by the complainant towards the site property in question. The O.P. contended that they have entered into various agreements with a certain developer by name Sri Thimmegowda, M/s SPR Developers. The developer is not able to get the lands converted for the various reasons and to implement the project. It is true that, the managing committee has decided to take legal action against the developer since he has not lived up to his commitments with the society and therefore O.P. has initiated Arbitration proceedings and accordingly have prayed in the said Arbitration proceedings for various reliefs against the developer including directing to the developer for executing sale deeds in respect of the suit schedule property therein in favour of the society as also for refund of Rs.86,53,67,999/- for loss suffered by the society due to defective title and pending litigation or in the alternative pay an amount of Rs.312 crores to the society is true. The O.P. contended amount collect from its members and utilize the same to purchase the land in the area Bidadi and to develop the land by forming layout to allot sites to its members. Further due to non-cooperation of the developer even after receipt of the amount from the society formation of layout and allotment of sites to its members has been delayed. Hence the society invoked Arbitration clause referred in the MOU and MOA and requested an appointment of Hon’ble Justice G.Patri Basavana Goud (Rtd) as the sole Arbitrator and the dispute is pending before the arbitrator, the fact of Arbitration also intimated to all the members. The managing committee keeping all the accounts and transactions and regularly audited by the auditors and auditor’s report is published at Annual General Body Meeting, Managing committee has not misused funds of the society. If the return or refund made to the members would defeat the aim and objective of the society and aspirations of the members in getting sites and it is adverse to the interest of the majority of the interest of the members. If the amount is ordered to returned, it will cause hardship to majority members aspiration to get sites and would put their interest in jeopardy. The society is doing best efforts best sites as allotted as early as possible. On the other grounds O.P prays for dismissal of the complaint.
4. To substantiate the above case, both the parties have filed their respective affidavit evidence along with documents. We have heard the arguments.
5. On the basis of pleadings of the parties, the following points will arise for our considerations are:-
(A) Whether the complainant has proves
deficiency in service on the part of the O.P?
(B) Whether the complainant is entitled to the
relief prayed for in the complaint?
(C) What order?
6. Our answers to the above points are:-
POINT (A) & (B): In the affirmative.
POINT (C): As per the final order
for the following:
REASONS
POINT (A) & (B):-
7. On perusing the pleadings of both the parties, it is an undisputed fact that, the complainant is the member of the O.P and paid Rs.7,80,000/- in order to purchase the site property in question from the O.P.
8. The grievance of the complaint is that, though complainant paid required amount to the O.P. but the O.P. did not stick on to its promise in allotting the sites. Further the complainant states that, there is no sign of any developmental work in the proposed site layout to be form by the O.P. Hence she sought for refund of the amount.
9. Per-contra, O.P. admitting the transaction with the complainant and contended that, there is a dispute between the developer who failed to stick on to his promise and thereby the matter is delayed in carrying out the formation of the layout. Also contended that, the delay is due to pending litigation and also on initiation of Arbitral proceedings against the builder and for the loss suffered by the society due to defective title and pending litigation, the O.P also sought for alternative relief for payment of an amount of Rs.312 Crores to the society. The O.P. also contended that, due to non-cooperation of the developer even after receipt of the amount from the society formation of layout and allotment of sites to its members has been delayed.
10. It is worth to note that, the complainant become the member of the O.P. only on relying on the O.P. society and with a fond of hope and with utmost faith, the complainant paid the amount to the O.P. Hence it is obligation on the O.P to give clear titled property to the complainant by valuing the hard earned money of the complainant. The law will not permit to have a cake and eat it too. The money is with the O.P. only and the complainant made out several correspondences with the O.P. and the O.P. is quoting several reasons for causing the delay to implement the project and it is nothing to do with the complainant. Obviously, money is also not returned and site is also not registered and made the complainant to wander from pillar to post. The O.P contention is that they are doing free service to its members, whereas on the contrary the O.P received consideration amount of Rs.7,80,000/- from the complainant and the O.P argument doing free service is lame of strength and holds no water. On the basis of available evidence on record the complainant proved deficiency in service on the part of the O.P.
11. Furthermore, as per the saying of the O.P. due to pending litigations they are unable to implement the project. On looking into the grounds agitated by the O.P, the complainant obviously suffered mental agony and no one can predict the result of the proceedings and the due course of law will take its own action and for which complainant should not be made suffered. When the formation of layout is not feasible in view of defective title and the hence, the complainant rightly claiming the refund of the amount from the O.P. with interest. It is worth to note that, the complainant being a retired employee of the Syndicate Bank and paid her/his hard earned money to the OP in order to purchase the site property and for the reasons with all frustrations and the circumstances push down the complainant to sought for refund of the amount. Furthermore, if the complainant invested her hard earned money in any nationalized bank or any property, it may earn more interest or she would get the property for the said amount. On account of not verifying the title deeds and without any forethought and the O.P. engaged the service of defective builder and failed to implement the project and it is purely a mistake of the O.P and the complainant is innocent. Hence the complainant should not be suffered. In the attendance circumstances of the case and on foregoing reasons, we deem it just and proper to direct O.P to pay a sum of Rs.7,80,000/- along with interest at the rate of 12% per annum from the date of payment till the realization of the amount along with the cost of Rs.2,000/-. Accordingly, we answer these Points in the affirmative.
POINT (C):
12. On the basis of the findings given above on the point No.(A) and (B) and in the result, we proceed to pass the following:-
ORDER
- The complaint is allowed in part with cost.
- The O.P. i.e. The Syndicate Bank Retired Employees Welfare Society represented by its President/authorized signatory is hereby directed to pay a sum of Rs.7,80,000/- along with interest at the rate of 12% per annum from the date of payment till the realization to the complainant.
- Further O.P. is hereby directed to pay Rs.2,000/- as cost of the proceedings.
- The O.P is hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this Forum within 45 days from the date of receipt of this order.
- Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 03th Day of May 2016)
MEMBER PRESIDENT
*Rak
