COMPLAINT FILED: 23.02.2011
DISPOSED ON: 08.06.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
8th DAY OF JUNE-2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO. 356/2011
Complainant | Smt.Janaki Nagaraj B.R W/o G.V.Nagaraj, Aged about 60 years, R/a No.29/1, 2-C Main Road, Doopanahalli, Vasanthappa Garden, HAL Second Stage, Bangalore-560 038. Advocate :C.S.Shankar Rao and other V/s. |
OPPOSITE PARTIES | 1. The Vyalikaval House Building Co-operative Society Limited, Regd.Off No.100, 11th Cross, 6th Main, Malleswaram Bangalore -560 003, Presently Conducting Business at No.62, 7th Main Road, 8th and 9th Cross, By Side of Jupiter Nursing Home, Malleswaram, Bangalore-560 003, Represented by its President. 2. The Vyalikaval House Building Co-operative Society Limited, Regd.Off:No.100, 11th Cross, 6th Main, Malleswaram, Bangalore-560 003, Presently Conducting Business at No.62, 8th and 9th Cross, By side of Jupiter Nursing Home, Malleswaram, Bangalore-560 003. Represented by its Secretary. Advocate:K.S.Venkataramana |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
1. This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Parties to register the site allotted or alternatively to refund the sital amount paid along with interest at 24% p.a. and compensation of Rs.5,00,000/- towards mental agony, loss and hardship suffered by the complainant on the allegations of the deficiency of service on the part of the opponents.
2. The brief averments made in the complaint are as follows:
The complainant became a member of the opponent-society under the scheme for allotment of site situated at Chanukyapuri Layout, Nagavara Cholanayakanahalli and Viswanathangenalli of Gangenahalli and paid a sum of Rs.58,000/-on different dates from 19.06.1985 to20.01.1994. The opponent issued a pass book and also assured to issue an original allotment letter to the complainant. The opponent failed to fulfill its assurance. In spite of repeated requests, when the opponent failed to refund the amount, the complainant got issued a legal notice on 14.09.2010. The opponent on 23.09.2010 replied that it has lost about 850 ares of acquired land due to the order of the Supreme Court. The opponent has requested Government to allot alternative land and the Government is likely to allot 200 acres of land. After allotment same will be informed to the complainant. Alternatively, the opponents ready to refund the amount after recovering the compensation amount paid to the land lords. Hence the complainant felt deficiency in service. Hence this complaint.
3. On appearance OP filed the version mainly contending that the OP approached the State Goverenment to initiate acquisition proceedings invoking the Land Acquisition Act which involves Gazatte Notification Under Section-4(1) to hold enquiries of the land owners under Section 5(A) to issue final notification Under Section6(1) of the Act and thereafter to pass award granting compensation to the land owners under section 9 and 10 of the Act. The award includes two types; one being CONSENT OF THE LAND OWNERS AND THE OTHER ONE BEING GENERAL AWARD. After completing the procedure the State Government will handover the possession of the lands to the opponent-society. The time consumed to complete the acquisition process was 3 to 4 years. The entire acquisition cost including payment to land owners conversion charges and all other expenses incurred should be paid by the society to the Government. At that time some of the land owners challenged acquisition. Unfortunately, the acquisition proceedings were set aside and notification quashed by the Hon’ble High Court. The opponent preferred SLP before Hon’ble Supreme Court in the year 1991. The Hon’ble Supreme Court confirmed the order of the High Court on 21.02.1995 and directed to return the land to the land owners. The Government will deduct 22% of the amount towards administrative heads. Thus the opponent faced hardship and not in a position to pay interest on the deposit made by the members. The Hon’ble Supreme Court held in AIR 2010 SC 486 that developmental authorities need not pay interest for delay or failure of projects if there is interference by the orders of the courts. The complainant approached this Forum after 10 years for refund of deposit amount. Hence claim is barred by time. However with great difficulty the opponent is paying the principle amount to the complainant. Among other grounds OP prayed for dismissal of the complaint with directions to the complainant to receive the sital deposit amount.
4. In order to substantiate the complaint averments, complainant filed her affidavit evidence and produced the copy of the pass book issued by the opponent, allotment rules circular, correspondences, legal notice and reply letter. On behalf of the opponent Srinivas H. Secretary filed affidavit evidence, in support of the defence version. The opponent has not produced any documents. Heard arguments from both complainant and opponent side.
5 In view of the above said facts, the points now that arise for our consideration in this complaint are as under:
Point No.1:- Whether the complainant has
proved the deficiency in service
on the part of the OP?
Point No.2:- If so, whether the complainant is
entitledfor the relief now claimed?
Point No.3:- To what Order?
6. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:
Point No.1:- In Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
7. At the outset it is not in dispute that the complainant became the member of the opponent-society on the basis of the propaganda made by the opponent who claims to be the house building Co-operative Society with a hope of getting a site. The opponent accepted her membership and issued account No.12454 and roll No.SAS 289. The opponent also issued acknowledgement for having received the affidavit and domicile certificate from the complainant. The opponent assured to allot a residential site situated that Chanakyapur Layout Nagavara Cholanayakanahalli and Vishwanathangenalli of Gangenahalli. The complainant paid a sum of Rs.58,000/- on different dates from 19.06.1985 to20.01.1994. To substantiate this fact complainant has produced, counter foils of pay in slip, and pass book issued by OP. The OP has not disputed receipt of amount. Now the grievance of the complainant is that though OP has collected the entire sital value and membership fees failed to register the site as promised or to refund the amount.
8. As against the case of the complainant the defence of the opponent that due to legal hurdles it is unable to complete the project and whatever amount they have received from the members is paid to the developers and deposited towards compensation payable to landlords with the Government etc., But, the opponent has failed to substantiate the said defence by producing documents. The land acquired for the purpose of formation of layout is repossessed by the land owners, in view of the quashing of the land acquisition proceedings, so the sum and substance of the defense setout by the opponent is that it is unable to complete the project due to the quashing of the land acquisition proceedings. It is unable to refund the sital value to the complainant because of the said amounts are used for paying compensation to the land owners by depositing the same with the Government and for paying development expenses.
9. On the close scrutiny of the defence setout by the opponent it can be made out that the opponent collected the amount towards sital value from the complainant with a promise that it should complete the project and register the site but project could not be completed on account of acquisition being quashed. When the opponent was aware of the fact of that it is unable to complete the project it could have been fair on its part to refund the sital value collected from the complainant. No such steps are taken. Hence, we find deficiency in service on the part of the opponent in not refunding the sital value to the complainant. Having retained the amount for more than 17 years, the Op accrued wrongful gain to itself and thereby caused wrongful loss to the complainant.
10. We are unable to accept the defence of the OP that the complaint is barred by limitation. When once the OP accepted the deposit to towards sital value with a promise to allot a site to the complainant, till OP allot and registered the sale deed recurring cause of action will accrue to the complainant.
11. In support of his arguments counsel for the OP has produced the citation reported in AIR-2010 Supreme Court-486 in Civil Appeal No.433, 4335 and 4336 of Punjab Urban Planning and Development Authority and another V/s Daya Singh. In the above matter, the Hon’ble Supreme Court has observed that possession could not be delivered in time to respondents in respect of the plots on account of the Order passed by the High Court of Punjab and Hariyana directing maintenance of statuesque regarding in position. Hence it was found that delay was on account of the Order passed by the High Court. So the question of payment of interest for such delayed possession given to the respective respondence may not arise at all and directed the National Commission to take up the issue and decide the same on facts before passing the final order.
12. In the present proceedings acquisition proceedings were quashed by the Hon’ble High Court of Karnataka in WP.No.17429 to 17493/96 and the said Order was confirmed by the Hon’ble Supreme Court in the SLP filed by the OP. Thereafter even after lapse of many years of the order of the Supreme Court, the OP has failed to refund the amount to the complainant. Hence, the principle laid down in the above case cannot be made applicable to the present proceedings.
13. In this case on 21.05.11 OP tendered the cheque dt.20.05.11 for a sum of Rs.58,000/- towardsrefund of deposit and membership fees. The complainant has not received the said cheque. Cheque is in the file and having validity. Since, the OP has refunded the sital deposit after 17 years and after filing this complaint, the complainant is entitled for reasonable interest and compensation. As in the earlier proceedings of similar nature interest has been awarded at 12% p.a. The relief claimed by the complainant is for registration of site allotted or in alternative to refund the amount along with interest at 24% p.a. and compensation of Rs.5,00,000/-. Since OP has failed to form the Layout such relief for registration of site cannot be granted. Hence, the complainant is entitled for the alternative relief of refund of amount with interest at the rate of 12% p.a. and the compensation of Rs.50,000/- towards escalation costs. Accordingly, we proceed to pass the following:
O R D E R
The complaint is allowed in part.
(a) It is ordered to handover the cheque for Rs.58,000/- to the complainant available in the records issued by OP infavour of complainant towards refund of the principle amount.
(b) OP is directed to pay interest at the rate of 12%p.a. on the deposit amount from the date of respective payments till the date of refund made i.e., 20.05.2011 along with compensation of Rs.50,000/- and litigation costs of Rs.1,000/- to the complainant.
(c)This order is to be complied within four weeks from the date of this order.
(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 08th day of June 2011.)
MEMBER MEMBER PRESIDENT
CS.
COMPLAINT FILED: 23.02.2011
DISPOSED ON: 08.06.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
8th DAY OF JUNE-2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO. 356/2011
Complainant | Smt.Janaki Nagaraj B.R W/o G.V.Nagaraj, Aged about 60 years, R/a No.29/1, 2-C Main Road, Doopanahalli, Vasanthappa Garden, HAL Second Stage, Bangalore-560 038. Advocate :C.S.Shankar Rao and other V/s. |
OPPOSITE PARTIES | 1. The Vyalikaval House Building Co-operative Society Limited, Regd.Off No.100, 11th Cross, 6th Main, Malleswaram Bangalore -560 003, Presently Conducting Business at No.62, 7th Main Road, 8th and 9th Cross, By Side of Jupiter Nursing Home, Malleswaram, Bangalore-560 003, Represented by its President. 2. The Vyalikaval House Building Co-operative Society Limited, Regd.Off:No.100, 11th Cross, 6th Main, Malleswaram, Bangalore-560 003, Presently Conducting Business at No.62, 8th and 9th Cross, By side of Jupiter Nursing Home, Malleswaram, Bangalore-560 003. Represented by its Secretary. Advocate:K.S.Venkataramana |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
1. This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Parties to register the site allotted or alternatively to refund the sital amount paid along with interest at 24% p.a. and compensation of Rs.5,00,000/- towards mental agony, loss and hardship suffered by the complainant on the allegations of the deficiency of service on the part of the opponents.
2. The brief averments made in the complaint are as follows:
The complainant became a member of the opponent-society under the scheme for allotment of site situated at Chanukyapuri Layout, Nagavara Cholanayakanahalli and Viswanathangenalli of Gangenahalli and paid a sum of Rs.58,000/-on different dates from 19.06.1985 to20.01.1994. The opponent issued a pass book and also assured to issue an original allotment letter to the complainant. The opponent failed to fulfill its assurance. In spite of repeated requests, when the opponent failed to refund the amount, the complainant got issued a legal notice on 14.09.2010. The opponent on 23.09.2010 replied that it has lost about 850 ares of acquired land due to the order of the Supreme Court. The opponent has requested Government to allot alternative land and the Government is likely to allot 200 acres of land. After allotment same will be informed to the complainant. Alternatively, the opponents ready to refund the amount after recovering the compensation amount paid to the land lords. Hence the complainant felt deficiency in service. Hence this complaint.
3. On appearance OP filed the version mainly contending that the OP approached the State Goverenment to initiate acquisition proceedings invoking the Land Acquisition Act which involves Gazatte Notification Under Section-4(1) to hold enquiries of the land owners under Section 5(A) to issue final notification Under Section6(1) of the Act and thereafter to pass award granting compensation to the land owners under section 9 and 10 of the Act. The award includes two types; one being CONSENT OF THE LAND OWNERS AND THE OTHER ONE BEING GENERAL AWARD. After completing the procedure the State Government will handover the possession of the lands to the opponent-society. The time consumed to complete the acquisition process was 3 to 4 years. The entire acquisition cost including payment to land owners conversion charges and all other expenses incurred should be paid by the society to the Government. At that time some of the land owners challenged acquisition. Unfortunately, the acquisition proceedings were set aside and notification quashed by the Hon’ble High Court. The opponent preferred SLP before Hon’ble Supreme Court in the year 1991. The Hon’ble Supreme Court confirmed the order of the High Court on 21.02.1995 and directed to return the land to the land owners. The Government will deduct 22% of the amount towards administrative heads. Thus the opponent faced hardship and not in a position to pay interest on the deposit made by the members. The Hon’ble Supreme Court held in AIR 2010 SC 486 that developmental authorities need not pay interest for delay or failure of projects if there is interference by the orders of the courts. The complainant approached this Forum after 10 years for refund of deposit amount. Hence claim is barred by time. However with great difficulty the opponent is paying the principle amount to the complainant. Among other grounds OP prayed for dismissal of the complaint with directions to the complainant to receive the sital deposit amount.
4. In order to substantiate the complaint averments, complainant filed her affidavit evidence and produced the copy of the pass book issued by the opponent, allotment rules circular, correspondences, legal notice and reply letter. On behalf of the opponent Srinivas H. Secretary filed affidavit evidence, in support of the defence version. The opponent has not produced any documents. Heard arguments from both complainant and opponent side.
5 In view of the above said facts, the points now that arise for our consideration in this complaint are as under:
Point No.1:- Whether the complainant has
proved the deficiency in service
on the part of the OP?
Point No.2:- If so, whether the complainant is
entitledfor the relief now claimed?
Point No.3:- To what Order?
6. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:
Point No.1:- In Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
7. At the outset it is not in dispute that the complainant became the member of the opponent-society on the basis of the propaganda made by the opponent who claims to be the house building Co-operative Society with a hope of getting a site. The opponent accepted her membership and issued account No.12454 and roll No.SAS 289. The opponent also issued acknowledgement for having received the affidavit and domicile certificate from the complainant. The opponent assured to allot a residential site situated that Chanakyapur Layout Nagavara Cholanayakanahalli and Vishwanathangenalli of Gangenahalli. The complainant paid a sum of Rs.58,000/- on different dates from 19.06.1985 to20.01.1994. To substantiate this fact complainant has produced, counter foils of pay in slip, and pass book issued by OP. The OP has not disputed receipt of amount. Now the grievance of the complainant is that though OP has collected the entire sital value and membership fees failed to register the site as promised or to refund the amount.
8. As against the case of the complainant the defence of the opponent that due to legal hurdles it is unable to complete the project and whatever amount they have received from the members is paid to the developers and deposited towards compensation payable to landlords with the Government etc., But, the opponent has failed to substantiate the said defence by producing documents. The land acquired for the purpose of formation of layout is repossessed by the land owners, in view of the quashing of the land acquisition proceedings, so the sum and substance of the defense setout by the opponent is that it is unable to complete the project due to the quashing of the land acquisition proceedings. It is unable to refund the sital value to the complainant because of the said amounts are used for paying compensation to the land owners by depositing the same with the Government and for paying development expenses.
9. On the close scrutiny of the defence setout by the opponent it can be made out that the opponent collected the amount towards sital value from the complainant with a promise that it should complete the project and register the site but project could not be completed on account of acquisition being quashed. When the opponent was aware of the fact of that it is unable to complete the project it could have been fair on its part to refund the sital value collected from the complainant. No such steps are taken. Hence, we find deficiency in service on the part of the opponent in not refunding the sital value to the complainant. Having retained the amount for more than 17 years, the Op accrued wrongful gain to itself and thereby caused wrongful loss to the complainant.
10. We are unable to accept the defence of the OP that the complaint is barred by limitation. When once the OP accepted the deposit to towards sital value with a promise to allot a site to the complainant, till OP allot and registered the sale deed recurring cause of action will accrue to the complainant.
11. In support of his arguments counsel for the OP has produced the citation reported in AIR-2010 Supreme Court-486 in Civil Appeal No.433, 4335 and 4336 of Punjab Urban Planning and Development Authority and another V/s Daya Singh. In the above matter, the Hon’ble Supreme Court has observed that possession could not be delivered in time to respondents in respect of the plots on account of the Order passed by the High Court of Punjab and Hariyana directing maintenance of statuesque regarding in position. Hence it was found that delay was on account of the Order passed by the High Court. So the question of payment of interest for such delayed possession given to the respective respondence may not arise at all and directed the National Commission to take up the issue and decide the same on facts before passing the final order.
12. In the present proceedings acquisition proceedings were quashed by the Hon’ble High Court of Karnataka in WP.No.17429 to 17493/96 and the said Order was confirmed by the Hon’ble Supreme Court in the SLP filed by the OP. Thereafter even after lapse of many years of the order of the Supreme Court, the OP has failed to refund the amount to the complainant. Hence, the principle laid down in the above case cannot be made applicable to the present proceedings.
13. In this case on 21.05.11 OP tendered the cheque dt.20.05.11 for a sum of Rs.58,000/- towardsrefund of deposit and membership fees. The complainant has not received the said cheque. Cheque is in the file and having validity. Since, the OP has refunded the sital deposit after 17 years and after filing this complaint, the complainant is entitled for reasonable interest and compensation. As in the earlier proceedings of similar nature interest has been awarded at 12% p.a. The relief claimed by the complainant is for registration of site allotted or in alternative to refund the amount along with interest at 24% p.a. and compensation of Rs.5,00,000/-. Since OP has failed to form the Layout such relief for registration of site cannot be granted. Hence, the complainant is entitled for the alternative relief of refund of amount with interest at the rate of 12% p.a. and the compensation of Rs.50,000/- towards escalation costs. Accordingly, we proceed to pass the following:
O R D E R
The complaint is allowed in part.
(a) It is ordered to handover the cheque for Rs.58,000/- to the complainant available in the records issued by OP infavour of complainant towards refund of the principle amount.
(b) OP is directed to pay interest at the rate of 12%p.a. on the deposit amount from the date of respective payments till the date of refund made i.e., 20.05.2011 along with compensation of Rs.50,000/- and litigation costs of Rs.1,000/- to the complainant.
(c)This order is to be complied within four weeks from the date of this order.
(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 08th day of June 2011.)
MEMBER MEMBER PRESIDENT
CS.
COMPLAINT FILED: 23.02.2011
DISPOSED ON: 08.06.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
8th DAY OF JUNE-2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO. 356/2011
Complainant | Smt.Janaki Nagaraj B.R W/o G.V.Nagaraj, Aged about 60 years, R/a No.29/1, 2-C Main Road, Doopanahalli, Vasanthappa Garden, HAL Second Stage, Bangalore-560 038. Advocate :C.S.Shankar Rao and other V/s. |
OPPOSITE PARTIES | 1. The Vyalikaval House Building Co-operative Society Limited, Regd.Off No.100, 11th Cross, 6th Main, Malleswaram Bangalore -560 003, Presently Conducting Business at No.62, 7th Main Road, 8th and 9th Cross, By Side of Jupiter Nursing Home, Malleswaram, Bangalore-560 003, Represented by its President. 2. The Vyalikaval House Building Co-operative Society Limited, Regd.Off:No.100, 11th Cross, 6th Main, Malleswaram, Bangalore-560 003, Presently Conducting Business at No.62, 8th and 9th Cross, By side of Jupiter Nursing Home, Malleswaram, Bangalore-560 003. Represented by its Secretary. Advocate:K.S.Venkataramana |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
1. This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Parties to register the site allotted or alternatively to refund the sital amount paid along with interest at 24% p.a. and compensation of Rs.5,00,000/- towards mental agony, loss and hardship suffered by the complainant on the allegations of the deficiency of service on the part of the opponents.
2. The brief averments made in the complaint are as follows:
The complainant became a member of the opponent-society under the scheme for allotment of site situated at Chanukyapuri Layout, Nagavara Cholanayakanahalli and Viswanathangenalli of Gangenahalli and paid a sum of Rs.58,000/-on different dates from 19.06.1985 to20.01.1994. The opponent issued a pass book and also assured to issue an original allotment letter to the complainant. The opponent failed to fulfill its assurance. In spite of repeated requests, when the opponent failed to refund the amount, the complainant got issued a legal notice on 14.09.2010. The opponent on 23.09.2010 replied that it has lost about 850 ares of acquired land due to the order of the Supreme Court. The opponent has requested Government to allot alternative land and the Government is likely to allot 200 acres of land. After allotment same will be informed to the complainant. Alternatively, the opponents ready to refund the amount after recovering the compensation amount paid to the land lords. Hence the complainant felt deficiency in service. Hence this complaint.
3. On appearance OP filed the version mainly contending that the OP approached the State Goverenment to initiate acquisition proceedings invoking the Land Acquisition Act which involves Gazatte Notification Under Section-4(1) to hold enquiries of the land owners under Section 5(A) to issue final notification Under Section6(1) of the Act and thereafter to pass award granting compensation to the land owners under section 9 and 10 of the Act. The award includes two types; one being CONSENT OF THE LAND OWNERS AND THE OTHER ONE BEING GENERAL AWARD. After completing the procedure the State Government will handover the possession of the lands to the opponent-society. The time consumed to complete the acquisition process was 3 to 4 years. The entire acquisition cost including payment to land owners conversion charges and all other expenses incurred should be paid by the society to the Government. At that time some of the land owners challenged acquisition. Unfortunately, the acquisition proceedings were set aside and notification quashed by the Hon’ble High Court. The opponent preferred SLP before Hon’ble Supreme Court in the year 1991. The Hon’ble Supreme Court confirmed the order of the High Court on 21.02.1995 and directed to return the land to the land owners. The Government will deduct 22% of the amount towards administrative heads. Thus the opponent faced hardship and not in a position to pay interest on the deposit made by the members. The Hon’ble Supreme Court held in AIR 2010 SC 486 that developmental authorities need not pay interest for delay or failure of projects if there is interference by the orders of the courts. The complainant approached this Forum after 10 years for refund of deposit amount. Hence claim is barred by time. However with great difficulty the opponent is paying the principle amount to the complainant. Among other grounds OP prayed for dismissal of the complaint with directions to the complainant to receive the sital deposit amount.
4. In order to substantiate the complaint averments, complainant filed her affidavit evidence and produced the copy of the pass book issued by the opponent, allotment rules circular, correspondences, legal notice and reply letter. On behalf of the opponent Srinivas H. Secretary filed affidavit evidence, in support of the defence version. The opponent has not produced any documents. Heard arguments from both complainant and opponent side.
5 In view of the above said facts, the points now that arise for our consideration in this complaint are as under:
Point No.1:- Whether the complainant has
proved the deficiency in service
on the part of the OP?
Point No.2:- If so, whether the complainant is
entitledfor the relief now claimed?
Point No.3:- To what Order?
6. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:
Point No.1:- In Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
7. At the outset it is not in dispute that the complainant became the member of the opponent-society on the basis of the propaganda made by the opponent who claims to be the house building Co-operative Society with a hope of getting a site. The opponent accepted her membership and issued account No.12454 and roll No.SAS 289. The opponent also issued acknowledgement for having received the affidavit and domicile certificate from the complainant. The opponent assured to allot a residential site situated that Chanakyapur Layout Nagavara Cholanayakanahalli and Vishwanathangenalli of Gangenahalli. The complainant paid a sum of Rs.58,000/- on different dates from 19.06.1985 to20.01.1994. To substantiate this fact complainant has produced, counter foils of pay in slip, and pass book issued by OP. The OP has not disputed receipt of amount. Now the grievance of the complainant is that though OP has collected the entire sital value and membership fees failed to register the site as promised or to refund the amount.
8. As against the case of the complainant the defence of the opponent that due to legal hurdles it is unable to complete the project and whatever amount they have received from the members is paid to the developers and deposited towards compensation payable to landlords with the Government etc., But, the opponent has failed to substantiate the said defence by producing documents. The land acquired for the purpose of formation of layout is repossessed by the land owners, in view of the quashing of the land acquisition proceedings, so the sum and substance of the defense setout by the opponent is that it is unable to complete the project due to the quashing of the land acquisition proceedings. It is unable to refund the sital value to the complainant because of the said amounts are used for paying compensation to the land owners by depositing the same with the Government and for paying development expenses.
9. On the close scrutiny of the defence setout by the opponent it can be made out that the opponent collected the amount towards sital value from the complainant with a promise that it should complete the project and register the site but project could not be completed on account of acquisition being quashed. When the opponent was aware of the fact of that it is unable to complete the project it could have been fair on its part to refund the sital value collected from the complainant. No such steps are taken. Hence, we find deficiency in service on the part of the opponent in not refunding the sital value to the complainant. Having retained the amount for more than 17 years, the Op accrued wrongful gain to itself and thereby caused wrongful loss to the complainant.
10. We are unable to accept the defence of the OP that the complaint is barred by limitation. When once the OP accepted the deposit to towards sital value with a promise to allot a site to the complainant, till OP allot and registered the sale deed recurring cause of action will accrue to the complainant.
11. In support of his arguments counsel for the OP has produced the citation reported in AIR-2010 Supreme Court-486 in Civil Appeal No.433, 4335 and 4336 of Punjab Urban Planning and Development Authority and another V/s Daya Singh. In the above matter, the Hon’ble Supreme Court has observed that possession could not be delivered in time to respondents in respect of the plots on account of the Order passed by the High Court of Punjab and Hariyana directing maintenance of statuesque regarding in position. Hence it was found that delay was on account of the Order passed by the High Court. So the question of payment of interest for such delayed possession given to the respective respondence may not arise at all and directed the National Commission to take up the issue and decide the same on facts before passing the final order.
12. In the present proceedings acquisition proceedings were quashed by the Hon’ble High Court of Karnataka in WP.No.17429 to 17493/96 and the said Order was confirmed by the Hon’ble Supreme Court in the SLP filed by the OP. Thereafter even after lapse of many years of the order of the Supreme Court, the OP has failed to refund the amount to the complainant. Hence, the principle laid down in the above case cannot be made applicable to the present proceedings.
13. In this case on 21.05.11 OP tendered the cheque dt.20.05.11 for a sum of Rs.58,000/- towardsrefund of deposit and membership fees. The complainant has not received the said cheque. Cheque is in the file and having validity. Since, the OP has refunded the sital deposit after 17 years and after filing this complaint, the complainant is entitled for reasonable interest and compensation. As in the earlier proceedings of similar nature interest has been awarded at 12% p.a. The relief claimed by the complainant is for registration of site allotted or in alternative to refund the amount along with interest at 24% p.a. and compensation of Rs.5,00,000/-. Since OP has failed to form the Layout such relief for registration of site cannot be granted. Hence, the complainant is entitled for the alternative relief of refund of amount with interest at the rate of 12% p.a. and the compensation of Rs.50,000/- towards escalation costs. Accordingly, we proceed to pass the following:
O R D E R
The complaint is allowed in part.
(a) It is ordered to handover the cheque for Rs.58,000/- to the complainant available in the records issued by OP infavour of complainant towards refund of the principle amount.
(b) OP is directed to pay interest at the rate of 12%p.a. on the deposit amount from the date of respective payments till the date of refund made i.e., 20.05.2011 along with compensation of Rs.50,000/- and litigation costs of Rs.1,000/- to the complainant.
(c)This order is to be complied within four weeks from the date of this order.
(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 08th day of June 2011.)
MEMBER MEMBER PRESIDENT
CS.
