FILED ON: 27.10.2009<br /> DISPOED ON: 30.09.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 30th SEPTEMBER 2010<br /> <br /> PRESENT :- SRI. B. S. REDDY PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> COMPLAINT No.2506/2009<br /> <br /> <br /> COMPLAINANT<br /> <br /> <br /> 1.Sri. Anil Parameswar Bhat,<br /> S/o Parameswar A Bhat,<br /> Aged about 40 years,<br /> R/at C/o G.A. Bhat,<br /> No.214/24, 1st A Cross,<br /> Silver Oak Street,<br /> Puttenahalli,<br /> J.P. Nagar, 7th Phase,<br /> Bangalore – 560 078.<br /> <br /> 2.Parameswar A Bhat,<br /> S/o Late Ananth M. Bhat,<br /> Aged about 40 years,<br /> R/at C/o G.A. Bhat,<br /> No.214/24, 1st A Cross,<br /> Silver Oak Street,<br /> Puttenahalli,<br /> J.P. Nagar, 7th Phase,<br /> Bangalore – 560 078.<br /> <br /> <br /> Advocate: Sri Prabhakar<br /> <br /> <br /> V/s.<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> OPPOSITE PARTY<br /> The Vyalikaval House Building Co-operative Society Ltd.,<br /> No.100, 11th Cross, <br /> 6th Main, Malleswaram,<br /> Bangalore – 560 003.<br /> <br /> Rep: by its Secretary.<br /> <br /> Advocate: Sri. Shivaramaiah<br /> <br /> O R D E R<br /> <br /> SMT. M. YASHODHAMMA, MEMBER<br /> <br /> <br /> This is a complaint filed under section 12 of CP Act 1986, by the complainant seeking direction against Opposite Party (herein after called as O.P) to refund Rs.1,14,000/- with interest at 21% p.a., from 20.10.1982 with compensation of Rs.5,00,000/- and costs of Rs.25,000/- on the allegations of deficiency in service on the part of the OP. <br /> <br /> 2. The brief averments made in this complaint are as fallows: <br /> <br /> Complainant’s father Sri. Parameshwar A Bhat was the associate member of the OP society in the year 1982 had deposited Rs.27,000/- with the OP’s society. OP has issued F.D. receipt in favour of the complainant’s father. Thereafter complainant’s father applied for a site measuring 60’ X 40’ with the OP in the year 1982. OP allotted a site measuring 60’ X 40’ through role No.2719 in favour of complainant’s father in 1984. OP issued a provisional allotment letter of site on 29.10.1987. On request made by OP to deposit further amount of Rs.15,000/- and Rs.18,000/- on 07.10.1994. Complainant’s father deposited balance amount from 1982 to 1994 which comes to total of Rs.1,14,000/-. Inspite of repeated requests to OP; OP failed to register the site. Hence complainant’s father due to old age and ill health requested OP to transfer the membership in favour of complainant. After transfer of membership complainant visited and requested OP to register the allotted site. OP went on postponing it. Hence complainant caused legal notice on 25.02.2009. OP gave the vague reply on 13.03.2009 even after 20 years OP failed to register the site. Hence complainant felt deficiency in service on the part of the OP. Under these circumstances he is advised to file this complaint for the necessary reliefs. <br /> <br /> 3. On appearance, OP filed the version mainly contending that OP made bonafide attempts to acquire 249 acres of land to form the layout same could not be completed in view of the stay order granted by the Hon’ble High Court of Karnataka in W.P. No.8872/1986. OP has deposited Rs.71,99,565/- towards conversion fine establishment and audit charges. Rs.37,15,675/- towards land value of general award amount and Rs.1,50,07,839/- towards land value of consent award. Final notification has been set aside by Hon’ble High Court of Karnataka in W.P. No.17429 to 17493/1986 on 18.06.1991. SLP preferred by OP dismissed by Hon’ble Supreme Court. In Revision State Commission ordered to restore the land to the respective land owners; Acquisition was struck down by Hon’ble Supreme Court process of land acquisition comprises of many stages; many landlords obtained stay for acquisition proceedings, acquisition stopped. The complaint is barred by limitation. Question of paying interest will not arise. OP exhausted all its funds. OP is liable to pay only interest at 6% p.a. from the date of complaint. In R.P. No.565/2002 as per order of the NCDRC in Amar Jyothi House Building Co-operative Society’s case. Among other grounds OP prayed to dismissal the complaint. <br /> <br /> 4. To substantiate the complaint averments, 2nd complainant filed his affidavit evidence and produced pass book issued by OP. FD receipt, provisional allotment letter, Counter file dated 05.05.1994 and 07.10.1994, copy of the legal notice and reply notice, 5 numbers of letters issued by OP. On behalf of OP H. Srinivas, Secretary of OP society filed his affidavit evidence. OP has not produced any documents. Both complainants and OP submitted their written arguments. Then heard the oral arguments. On 25.06.2010 Mr. Parameshwar A. Bhat filed IA u/o-6 R-17 to implead himself as a complainant NO.2 who was a member of OP and transferred his membership infavour of his son i.e. complainant No.1. OP recorded the name of the complainant No.1 in its ledger and issued a letter of transfer of membership but complainant No.2 lost the said letter in transit; IA allowed father of the complainant no.1 impleaded as complainant No.2 in the proceedings. Amended complaint filed. OP did not file any additional version. Heard the arguments from the both sides. <br /> <br /> 5. From the above pleadings; the points now that arise for our consideration are as under: <br /> <br /> Point No.1:- Whether the complainants have proved <br /> the deficiency in service on the part <br /> of the OP?<br /> <br /> Point No.2 :- If so, whether the complainants are <br /> entitled for the reliefs now claimed?<br /> <br /> Point No.3 :- To what Order?<br /> <br /> <br /> 6. We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on the above points are:<br /> Point No.1:- In Affirmative.<br /> <br /> Point No.2:- Affirmative in part.<br /> <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 7. At the outset it is not in dispute that the complainant’s father Parmeshwar Anant Bhat i.e complainant No.2 became the member of the OP in the year 1982. Later on Parmeshwar Anant Bhat due to old age transferred his membership in favour of the complainant No.1. Complainant No.2 deposited Rs.27,000/- with OP society. OP issued FD receipt for a sum of Rs.27,000/- in favour of complainant No.2. The copy of the FD receipt is produced. Later on complainant No.2 applied for a site measuring 60’ X 40’ in the year 1982. OP allotted a site measuring 60’ X 40’ through role No.2719 in the year 1984 in favour of complainant No.2. The copy of the allotment letter is produced. As per the demand made by OP complainant No.2 deposited balance amount of Rs.15,000/- and Rs.18,000/- on 05.05.1994 and 07.10.1994 and totally deposited Rs.1,14,000/- with OP from the year 1982 to 1994. Inspite of repeated requests and demands OP failed to register the site. Hence complainant felt deficiency in service on the part of the OP.<br /> <br /> 8. As against the case of the complainant OP has come up with the defence that though they acquired required quantity of land, the said acquisition proceedings were quashed by the Hon’ble High Court of Karnataka and the same was upheld by the Hon’ble Supreme Court of India. The lands were restored to the possession of the land owners. Soon after the acquisition of the said lands OP has paid lump sum amount to the land owners and developers that too in crores. Though the acquisition is quashed but that money still lies with the land owners and the developers. OP is making efforts to recover the said amount paid to the land owners as compensation but it is unable to recover the entire amount. It is further contended that there are so many legal hurdles. Suits have been filed by the land owners as such OP is unable to form the said layout within reasonable time. In our view though OP has contended much about the legal battle, long standing litigation, orders from the Supreme Court, but no such documents are produced to substantiate the said defence including the payment of huge amount to the land owners.<br /> <br /> 9. Under the circumstances the bare contention of the OP appears to be defence for defence sake. It is further alleged by the OP that the complaint is hit sec-71 of Co-operative Societies Act. We do not find any force in the said contention. It is further alleged that the complaint is barred by time. When OP has received the sital value with a promise to allot a site, till it allots a site to the complainant, and executes sale deed recurring cause of action will accrue to the complainant. The fact that complainant paid the sital value and he is making repeated requests and demand every now and then is not in dispute. Cause of action arose on 25.02.2009 when complainant No.1 gave the legal notice to be OP to register the site or to return the amount OP failed to comply the demand. Hence complaint is within time. <br /> <br /> 10. OP having retained the said huge amount for all these 16 years without registering the site and putting the complainant in possession has accrued the wrongful gain to itself and thereby caused wrongful loss to the complainants that too for no fault of their. Here we find a deficiency in service on the part of the OP. Though complainant No.2 invested his hard earned money to acquire a site of his own but his dreams are shattered. OP has not formed the layout and there are no sites available at the disposal of the OP to allot the same to the complainant. It is not known whether in the nearest future OP is able to acquire the land and will form the said layout as promised. Complainant cannot be kept waiting indefinitely. In the interest of justice, we find it is a fit case to direct the OP to refund the sital value with interest and costs. Accordingly we proceed to pass the following:<br /> <br /> ORDER<br /> <br /> The complaint is allowed. OP is directed to refund Rs.1,14,000/- together with interest at the rate of 9% p.a. from 07.10.1994 till realization, and pay Rs.2,000/- towards costs of litigation to the complainants.<br /> <br /> This order is to be complied within four weeks from the date of its communication.<br /> (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 30th day of September 2010.) <br /> <br /> <br /> PRESIDENT<br /> <br /> <br /> MEMBER MEMBER <br /> <br /> <br /> gm.<br /> <br /> <br />