COMPLAINT FILED: 25.11.2010
DISPOSED ON: 20.04.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
20TH APRIL 2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO. 2639/2010
Complainant | Sri.S.Shankaranarayana Udupa, W/o Late S.Srinivasa Udupa, Aged about 61 years, Residing at No.48, “Skanada” 18th Cross, 12th Main, Muthyalanagar, Bandappa Garden, Mathikere Post, Bangalore-560 054. Advocate: Vittal Setty P. V/s. |
OPPOSITE PARTY | The Vyalikaval House Building Co-operative Society Ltd., No.62, 7th Main, Malleshwaram, Bangalore-560 003. Advocate: K.S. Venkata Ramana |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to refund Rs.37,500/- along with interest at 24% p.a. from 12.07.1981 till date of realization together with compensation on the allegations of deficiency in service on the part of the OP.
2. The brief averments made in the complaint are as follows:
Complainant became the member of the OP Society under the scheme for allotment of site measuring 30 x 40 situated at Chanakyapuri layout, Nagavara, Cholanayaknahalli and Vishwanathanagenahalli of Ganganehalli and paid a sum of Rs.37,500/- on different dates from 12.07.1981 to 08.11.1999. The OP issued the certificate acknowledging the amount dated 26.06.2006 and also issued provisional allotment letter dated 28.11.1986. Inspite of repeated requests when OP failed to refund the amount complainant got issued legal notice through his advocate on 22.08.2010. Inspite of service of notice there was no response. Hence complainant felt deficiency in service. Under these circumstances he is advised to file this complaint for the necessary reliefs.
3. On appearance OP filed the memo along with a cheque dated 04.01.2011 for a sum of Rs.37,612/- towards refund of membership fees. Complainant received the cheque on 21.01.2011 without prejudice to his right to claim other amounts.
4. On appearance OP filed the version mainly contending that OP approached the state government to initiate acquisition proceedings invoking the land acquisition Act. Which involves gazette notification u/s 4(1) to hold enquiries of the land owners u/s. 5-A and to issue final notification u/s 6(1) of the Act and thereafter to pass award granting compensation to the land owners u/s 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 lands to OP. Time spent for 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 acquisition proceedings were set aside and notification quashed by the Hon’ble High Court. OP preferred S.L.P 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 OP 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; Complainant approached this forum after 10 years. Hence claim is barred by time. Among other grounds OP prayed for dismissal of the complaint.
5. In order to substantiate the complaint averments, complainant filed his affidavit evidence and additional affidavit evidence and produced copy of the receipts, passbook issued by OP allotment rules circular, correspondences and legal notice provisional allotment letter dated 28.11.1986, certificate issued by OP dated 26.06.2006 admitting the payment of amount of Rs.37,500/- from the complainant. On behalf of OP Srinivas H., Secretary of OP filed affidavit evidence in support of the defence version and not produced any documents. Heard the argument from both complainant and OP side.
6. In view of the above said facts the points now that arises 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
entitled for the relief’s now claimed?
Point No. 3 :- To what Order?
7. 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:
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
8. At the out set it is not in dispute that the complainant became the member of the OP society. On the basis of the propaganda made by the OP who claims to be the house building Co-Operative society with a hope of getting a site. OP assured to allot a residential site measuring 30 x 40 ft. situated at Chanakyapuri layout Nagavara, Cholanayakanhalli and Viswanathanagenahalli of Gangenahalli and paid a sum of Rs.37,500/- on different dates from 12.07.1981 to 08.11.1999. To substantiate this fact complainant has produced the membership certificate, receipts and pass book issued by OP. Further OP also issued provisional allotment letter dated 28.11.1986 allotting a site measuring 1200 Sq. ft. at the above mentioned project. OP has not disputed the fact of receipt of amount. Now the grievance of the complainant is that though OP collected the entire sital value and membership fees, failed to execute and register the sale deed as promised or to refund the amount.
9. As against the case of the complainant the defence of the OP that due to legal hurdles it is unable to complete the project and whatever the amount they have received from the members is paid to the developers and deposited towards compensation payable to landlords with the government etc. But OP 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 defence set out by OP 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.
10. On the close scrutiny of the defence set out by OP it can be made out that OP collected the amount towards sital value from the complainant with a promise that it would complete the project and register the site but project could not be completed on account of the acquisition being quashed. When OP was aware of the fact that it is unable to complete the project, it could have been fair on its part to refund the sital value collected to the complainant. No such steps are taken. Hence we find deficiency in service on the part of the OP in not refunding the sital value to the complainant. Having retained the amount for more than 12 years OP accrued wrongful gain to itself and thereby caused wrongful loss to the complainant.
11. We are unable to accept the defence of the OP that the complaint is barred by limitation. When once OP accepted the deposit towards sital value with a promise to allot a site to the complainant, till OP allot and register the sale deed recurring cause of action will accrue to the complainant.
12. The relief claimed by the complainant is for refund of amount with interest at 24% p.a. and compensation. In our view complainant is entitled for refund of amount deposited. Interest claimed at the rate of 24% p.a. on the deposit is on higher side. OP could not complete the project of forming the layout and register the site for the reason that the acquisition proceedings acquiring the lands for formation of layout was quashed.
13. On appearance Op tendered the cheque dated 04.01.2011 for a sum of Rs.37,612-45 towards refund of deposit and membership fees. Complainant received the said cheque on 21.01.2011 reserving liberty claim other reliefs. Since complainant has received the deposit refund amount after more than 12 years and after filing this complaint, he is entitled for a reasonable interest; on the sital value paid by the complainant. As in the earlier proceedings of similar nature against OP interest has been awarded at 12% p.a. Under these circumstances we are of the considered view that complainant is entitled for interest at the rate of 12% p.a. from the date of respective payments till the date of refund made i.e. 21.01.2011 and litigation cost of Rs.1,000/-. Accordingly we proceed to pass the following:
ORDER
The complaint is allowed in part. OP is directed to pay interest at the rate of 12% p.a. on 37,500/- from the date respective payments till the date of refund made i.e. 21.01.2011 and pay litigation cost of Rs.1,000/- to the complainant.
This order is to be complied within four weeks from the date of its communication.
(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 20th day of April 2011.)
PRESIDENT
MEMBER MEMBER
gm.
