COMPLAINT FILED: 31-08-2009 <br /> DISPOSED ON: 11-08-2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 11TH AUGUST 2010<br /> <br /> PRESENT :- SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> COMPLAINT NO.2113/2009<br /> <br /> <br /> COMPLAINANT <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri. C.V. Giriraj,<br /> S/o. late Sri C. Gopalachar,<br /> Aged about 58 years, <br /> residing at No.115, <br /> “Akshaya”<br /> 2nd Main Road, 3rd Cross,<br /> K.H.B. Colony, 1st Stage,<br /> Basaveshwaranagar,<br /> Bangalore-560079.<br /> <br /> Advocte Sri. N.Sridhar<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTY The Vyalikaval House Building Co.Operative Society Ltd (Regd)<br /> No.100, 11th Main, 6th Cross,<br /> Malleswaram,<br /> Bangalore-560 003.<br /> <br /> Rept. by its Secretary<br /> <br /> Advocate Sri.H.Srinivasa<br /> <br /> <br /> <br /> <br /> <br /> <br /> O R D E R<br /> <br /> SMT. M. YASHODHAMMA, MEMBER<br /> <br /> 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 execute and register the Sale deed irrespect of site No. B-385 in Chanakyapuri layout at Gangenahalli, Bangalore and pay damages of Rs.5,00,000/- for acquiring any alternative property and cost on the allegations of deficiency in service on the part of the OP.<br /> <br /> 2. The brief averments made in the complaint are as follows:<br /> <br /> Lured away by the offer made by the OP who are engaged in forming of residential sites and layout complainant became the member of the OP society having membership No.6176. Complainant on various dates made the payment of Rs.85,000/- from 29.07.1984 to 27.05.2000. The pass book issued by OP is produced. On 03.06.2000 OP gave the provisional allotment letter to complainant allotting a site bearing No. B-385 measuring 1200 Sq.fts. at Chankyapuri layout, Gangenahalli, Bellary road, Bangalore. The provisional allotment letter is produced. Inspite of repeated requests OP failed to execute the Sale deed. On 22.12.2006 complainant caused the legal notice. In reply OP assured on 24.02.2007 to complete the layout work. Till date OP failed to disclose the status of his allotment. Complainant lost the confidence in OP. Though he paid entire sale consideration in 27.05.2000 itself; there is no assurance from OP regarding execution of sale deed. Hence complainant felt deficiency in service on the part of the OP. Under the circumstances he is advised file the complaint for the necessary relief’s.<br /> 3. On appearance OP filed version mainly contending that they did acquire the land for the formation of the said layout but unfortunately the said acquisition was quashed by the Hon’ble High Court of Karnataka, which was upheld by Hon’ble Supreme Court of India; OP has invested a lot in formation of the layout, paid the lump sum amount to the land owners and the developers; Due to quashing of the acquisition proceedings, society funds still lies with the land owners, in addition to that they were again put in possession of the said lands in pursuance of the orders of Hon’ble Supreme Court of India. Hence there is no deficiency in service on the part of the OP. The delay in formation of the layout is due to legal hurdles; Complainant being the member of the OP society which is a non-profit oriented society is not entitled to claim the interest. It is further contended that the complaint is hit by sec-71 of the Karnataka Co-operative Societies Act and it is also barred by time. Among these grounds OP prayed for the dismissal of the complaint.<br /> <br /> 4. In order to substantiate the complaint averments the Complainant filed his affidavit evidence and produced provisional allotment letter dated 30.10.1996, Pass Book, allotment letter, letter of OP dated 24.02.2007. On behalf of OP Sri.H.Srinivas, Secretary of OP society filed affidavit evidence. Both complainant and OP submitted written arguments. Heard oral arguments.<br /> <br /> 5. In view of the above said facts the points now that arise for our consideration in this complaint are as under;<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <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 oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- Affirmative<br /> Point No.2:- Affirmative<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 at dispute that the complainant become the member of the OP society, which is a house building co-operative society engaged in formation of layouts consisting of residential sites of various dimensions with a view to allot a same to its members. It is also not at dispute that the complainant after becoming the member in the year 1986 intended to purchase a site at Chanyakyapuri layouts Gangenahalli, Bellary road, Bangalore. The complainant in all paid Rs.85,000/- on various dates starting from 29.07.1984 to 27.05.2000. Complainant has produced pass book. There is sufficient corroboration to complaint allegations by the documentary evidence produced by the complainant.<br /> <br /> 8. It is further contended by the complainant that though he paid the sital value in the year 2000 itself, so for he is unable to get the site. OP allotted account no. 7116 Roll No.6176 but failed to allot a site and put him in possession. On 03.06.2000 OP has issued provisional allotment letter to complainant stating site no. B/385 is allotted to him. On 24.02.2007 OP issued letter to complainant stating OP had started layout work many land owners and third parties went to Court and brought stay order and OP is trying to get vacate the stay order. Inspite of repeated requests and demands OP failed to allot and register the site in favour of complainant. Thus complainant felt deficiency in service on the part of OP.<br /> <br /> 9. 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 /> 10. Complainant failed to produce any documents to show that any sites free from encumbrances are readily available at the disposal of OP. So we are unable to consider the prayer of the complainant for execution and registration of sale deed. Hence we can consider the alternative prayed for refund of amount. 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. There is a lapse of 20 years in lodging the complaint. 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 at dispute. Cause of action arose on 18.08.2009 when complainant approached Secretary of OP and Secretary failed to comply the demand. Hence complaint is within time.<br /> <br /> 11. OP having retained the said huge amount for all these 9 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 complainant that too for no fault of his. Here we find a deficiency in service on the part of the OP. Though complainant 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 /> <br /> <br /> <br /> <br /> ORDER<br /> <br /> The complaint is allowed. OP is directed to refund Rs.85,000/- together with interest at the rate of 12% p.a. from 27.05.2000 till realization, and pay Rs.2,000/- towards costs of litigation to the complainant.<br /> <br /> This order is to be complied within four weeks from the date of its communication.<br /> <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 11th day of August 2010.) <br /> <br /> <br /> PRESIDENT<br /> <br /> <br /> MEMBER MEMBER <br /> <br /> <br /> gm.<br /> <br /> <br />