Date of filing : 03.11.2010
Date of Order: 26.02.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20
Dated: 26TH DAY OF FEBRUARY 2011
PRESENT
Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President
Smt. D. LEELAVATHI, M.A.LL.B, Member
Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member
COMPLAINT NO.: 2513 OF 2010
S. Sunanda
W/o. S.R. Subbarao
R/at No. 314, “Kavery”, Vidyapeetha Road
C.K. Achukattu, B.S.K. III Stage, III Phase
Bangalore 560 085 Complainant
COMPLAINT NO.: 2514 OF 2010
Bharathi Raghavendra
R/at No. 635, 1st Block, 2nd Stage
Upstairs, Rajajinagar
Bangalore 560 010 Complainant
COMPLAINT NO.: 2515 OF 2010
Gopalakrishna Gupta
S/o. H.C. Sambamurthy Setty
R/at No. 353, “Parimala”, 2nd Main
IV Stage, BEML Layout
Rajarajeshwari Nagar
Bangalore 560 098 Complainant
COMPLAINT NO.: 2516 OF 2010
P. Mahabaleshwara Herle
R/at F-2, Windsor Heritage
6th Cross, Pai Layout
Hulimavu Main Road
Off: Bannerghatta Road
Bangalore 560 075 Complainant
V/S
The Vyalikaval House Building
Co-operative Society Limited
No. 110, 6th Main, 11th Cross
Malleswaram, Bangalore 560 003
Rep. by its Secretary Opposite party
ORDER
By the President Sri. S.S. Nagarale
These four complaints are clubbed together for passing common order since the opposite party in all the complaints is one and the same and the question of law and facts involved are one and the same. Therefore, these four complaints could be conveniently disposed off by passing common order.
The respective parties have filed complaint under section 12 of the Consumer Protection Act, 1986 against the opposite party seeking refund of the amount with interest and compensation. The complainant Smt. Sunanda in C.C. No. 2513/2010 has paid in all Rs. 85,000/- right from 1986 to 1993 on four dates under receipts passed by the opposite party. The complainant Smt. Bharathi in complaint No. 2514/2010 has paid Rs. 100/- on 06.09.1989 and Rs. 360/- on 06.09.1989 under two different receipts and Rs. 5,000/- was paid vide receipt No. 422 dated 03.02.1990. In this way the total amount paid by the complainant is Rs. 5,460/-. The complainant Gopalkrishna Gupta in complaint No. 2515/2010 has paid in all Rs. 15,000/- to the opposite party for allotment of site and the complainant Mahabaleshwara Harle in complaint No. 2516/2010 has paid Rs. 87,000/- right from 1984 to 1994 on various dates under receipt passed by the opposite party. The complainants have submitted that opposite party failed to allot the site as per the promise. Therefore, the complainant suffered loss and injury. They are entitled for damages. Opposite party neither allotted site nor refunded amount to the complainants. Therefore, the complainants prayed that opposite party be directed to refund the amount with interest and compensation.
2. The opposite party has filed defence version stating that the acquisition proceedings were set aside and notifications were quashed by court. The Supreme Court also confirmed the order of High Court in CLP. There was direction to the Government to return lands to the land owners. In this way the society was put in an embarrassing situation. The members who had deposited the amounts have been informed that amount deposited shall not earn interest. The Supreme Court has held in a ruling reported in AIR 2010 SC 486 that developmental authorities need not pay interest on the deposit amount for the delay or failure of the projects. Complainants have approached the court claiming refund of the deposited amount after lapse of more than 10 years. Claim is barred by time. Therefore, the opposite party has prayed to dismiss the complaint.
3. Respective parties have filed affidavit evidence. The complainants have filed documents.
4. Arguments are heard.
5. The points for consideration are:
1. Whether the complainants are entitled for refund of the amount paid by them?
2. Whether the complainants are entitled for past interest on the amount paid by them?
3. Whether the complainants have proved deficiency of service on the part of opposite party?
6. There is no dispute whatsoever between the parties that respective complainants have made payment to the opposite party for allotment of sites. The complainants have produced documents and receipts to show that they have made payments to opposite party. Opposite party never disputed payments made by the complainants. It is also admitted fact that society has not allotted sites to the complainants. It is also admitted fact that society has not refunded the amounts received from the complainants. Therefore, the complainant having waited for several years with a hope that they may get sites, ultimately, chosen to file the complaints seeking refund of the amount paid by them with interest. The opposite party society has pleaded that due to various litigations in Hon’ble High Court and Supreme Court in respect of acquisition of lands the society was not able to get the possession of land for development. Therefore, project was not carried out and sites were not formed and society was not in a position to allot sites to the members. So under these circumstances it is the duty and obligation of the opposite party society to refund the amount received from respective complainants. To refund the amount also there is no dispute because the society having received the amount is bound to refund the same. The only point of dispute is regarding payment of interest on the refund amount. The opposite party society submitted that complainants are not entitled to claim interest on the refund amount since there was no agreement between the parties for payment of interest. The complainants are members of opposite party society and society is not bound to pay interest. The advocate for the opposite party submitted that developmental authorities need not pay interest on the deposit amount for the delay or failure to form the layout if there is interference by the orders of the court as held recently in AIR 2010 SC 486 by the Hon’ble Supreme Court. The learned advocate submitted that Registrar of Co-operative Societies has also passed order recently that the house building co-operative society need not pay interest on the refund amount and the depositors are not entitled for interest. The Hon’ble High Court of Karnataka also in a recent judgement passed against Karnataka Judicial Employees House Building Society also held that society need not pay past interest to the depositors / members since there was no agreement for payment of interest between the members and the society. Therefore, in view of the recent judgements and in view of all these things the complainants are not entitled for interest. Since, the complainants have not been allotted sites and amount also not refunded to them, therefore, it is a continuing cause of action and complaints cannot be held as barred by time. The society having failed to allot sites and also failed to refund the amount even though the complainant requested the society several time, therefore, it amounts to deficiency of service on the part of opposite party. Taking into consideration of all the facts and circumstances of the case it is just, fair and reasonable to order the opposite party society to refund the amount received from the respective complainants. The complainants are definitely entitled for the interest on the deposit amount from the date of filing complaint till the date of refund / realisation. On the facts and circumstances of the case granting interest at 12% p.a. on the refund amount would be just, fair and reasonable. In the result I proceed to pass the following:
ORDER
7. All the four complaints are allowed. The opposite party is directed to refund the following amounts to the respective complainants.
Sl. No. | Complaint No. | Complainant Name | Amount (in Rupees) |
1. | CC/2513/2010 | Smt. S. Sunanda | 85,000/- |
2. | CC/2514/2010 | Smt. Bharathi Raghavendra | 5,460/- |
3. | CC/2515/2010 | Sri Gopalakrishna Gupta | 15,000/- |
4. | CC/2516/2010 | Sri P. Mahabaleshwara Herle | 87,000/- |
8. The complainants are entitled for interest on the above amount at 12% p.a. from the date of filing complaint till the date of refund / realisation.
9. The respective complainants are entitled for Rs. 2,000/- each as costs of the present proceedings from the opposite party.
10. The opposite party is directed to comply the order within 60 days from the date of this order.
11. Keep the copy of the order in connected case files.
12. Send the copy of this Order to both the parties free of costs immediately.
13. Pronounced in the Open Forum on this 26TH DAY OF FEBRUARY 2011.
Order accordingly,
PRESIDENT
We concur the above findings.
MEMBER MEMBER
