O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> These two complaints are filed by different complainants against same op with a similar allegation and for similar reliefs are therefore taken together for disposal by a common order to avoid repetition of certain common facts.<br /> <br /> The brief facts of the complaints filed by these complainants are, that in response to the scheme floated by the Op for formation of layout called Visveshwarayanagar Layout at Arakere, Devarachikkanahalli and at other different places. They applied for allotment of a site each measuring 40’ X 60’ and first complainant had made a total payment of Rs.59,000/- where as the second complainant paid total payment of Rs.53,000/- towards cost of the site. The Op had promised to execute registered sale deed after issue of provisional allotment letter allotting a site each in their favour. That they have also made additional payment as demanded by the Op but the Op thereafter despite requests postponed execution of sale deed. Then during March 2010 they received letters from the Op offering to allot sites in the layout called PSRICON VALLEY on Anekal Indlavada Road 7 Kms away from Anekal Town at Rs.650/- per sq. ft. That they had become members for allotment of sites in Visveshwarayanagar and not in the layout proposed at Anekal. Despite issue of legal notice to the Op neither he allotted sites in terms of the provisional allotment letter nor refund money, Op has not responded and therefore have prayed for a direction to Op to allot site in the layout where the provisional allotment letter was issued or in the alternative to return their money with interest @ 24% p.a from the date of payment and to award compensation with costs.<br /> <br /> The Op though had appeared through his advocate in both these cases later on has neither filed version nor affidavit evidence. The Op was at the first instance was placed ex-parte and that order of ex-parte was set aside by filing an IA on payment of cost of Rs.5,000/- in the first complaint and Rs.1,000/- in the second complaint. However, the Op had not paid cost and not filed version and affidavit.<br /> <br /> In the course of enquiry into the complaint, the complainants have filed affidavit evidences reproducing what they have stated in their respective complaints. Complainants have produced copies of pass book issued by Op containing payments made by them, copy of provisional allotment letter order issued and a copy of circular issued by the Op offering sites at Anekal Taluk with a copy of legal notice they got issued. We have heard the counsel for complainants and perused the records. Counsel for the Op has filed written arguments.<br /> <br /> As stated above, Op has not filed version and affidavit evidence. The complainants in support of their complaints have filed their affidavit evidence in which they have reiterated payments of Rs.59,000/- and 53,000/- made by them to the Op towards cost of the site. Complainants have also produced provisional allotment letters issued by the Op. The counsel appearing for the Op in the written arguments filed has not denied that these complainants became their members paid the amounts as stated above and they were issued with the provisional allotment letters allotting sites at Visveshwarayanagar layout near Kodichikkanahalli and other Villages. As there is no denial of these facts and on the oral document evidence we hold that these complainants have paid Rs.59,000/- and Rs.53,000/- respectively to the Op towards allotment of site each in their favour. <br /> <br /> The counsel for the Op in his written arguments has contended as if lands acquired on behalf of Op society was questioned before the Hon’ble High Court which has quashed the acquisition and it has been confirmed by the Hon’ble Supreme Court. Therefore, they were deprived of land and formation of layouts, therefore for non-availability of land they could not provide sites to the complainants. They have not yet received money invested by them for acquisition of land though the Hon’ble Supreme Court has directed the land lords to whom payments were made to refund money on redelivering possession of the lands. The Op further contending that there is no deficiency on their service but for non-availability of the acquired lands they could not pursue the layout and under these circumstances, they cannot be saddled the liability to pay interest and further contending that complaints are barred by limitations has prayed for dismissal of the complaint. But neither Op nor their advocate have filed any documents to prove that lands acquired by them for formation of Visveshwarayanagara layout has been quashed by the Hon’ble High Court is confirmed by the Hon’ble Supreme Court so as to hold that this Op was prevented from formation of layout for want of land and therefore that non-providing of sites to the complainants would not amounts to deficiency. In the absence of any such pleading, affidavit evidence and relevant documents that all the lands acquired by the Op have gone out of their hands by virtue of Order of the Hon’ble High Court of Karnataka and the Hon’ble Supreme Court of India we cannot agree with Op in toto. Even otherwise, if the acquisitions of lands for formation layout was quashed it was within the knowledge of Op who ought to have refunded the deposits money of complainants to avoid hardship to the complainants and also their liability to pay interest. The OP despite receipt of legal notice has not shown his earnestness in resolving the dispute. Therefore, omissions of the Op and its inaction in this regard would amounts to deficiency in his service. <br /> <br /> No doubts the complainants had paid certain costs of the proposed site and they were issued provisional allotment letters also during the year 1987 in the first complaint and in the year 1986 in the second complaint. In these provisional allotment letter themselves Op has stated that their layout plan submitted to BDA would be approved the near future and as soon as he received the approval of BDA they will issue possession certificate. Therefore, complainants because of promise made by the Op in the provisional allotment letter kept watching and awaiting communications of the Op with an eager to acquire a site through the Op. Op who had promised to provide a site each on the approval of BDA never informed the complainants in any way until this complaint is filed. Therefore, the complainants who are at the receiving end could not have done anything in the circumstances of the case but to wait to hear communications of the Op. The Op after keeping the complainants in darkness with promises cannot take a plea of limitation and to deny his liability. Thus considering all these aspects of this matter and also considering the fact that the complainants have not proved availability of sites in the custody of the Op for allotting sites in favour of complainants, we find it just and appropriate to direct the Ops to refund their money with interest. Op as referred to above, have failed to prove that they lost land by virtue of orders of the Hon’ble High Court and the Hon’ble Supreme Court by quashing acquisition. The Op has also not assigned any reason in having not refunded the money despite demands for all these years. The Op who has made use of complainants money all these years was in an advantageous position and invested their money in the real estate business and would earn profits. Therefore, they can not escape the liability of paying interest. Hence, we hold that complaints are to be allowed and we pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaints are allowed.<br /> <br /> Op is directed to refund Rs.59,000/- to the first complainant and Rs.53,000/- to the second complainant with interest @ 16% p.a from the date of respective payments those amounts are refunded.<br /> <br /> Op shall also pay cost of Rs.3,000/- each to each of these complainants.<br /> <br /> The original order shall be kept in complaint No:1206/2010 and the copy of the same shall be kept in the remaining complaint<br /> <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 25th August 2010<br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />