COMPLAINTS FILED ON:17.01.2012

DISPOSED ON:13.04.2012.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

13^th DAY OF APRIL-2012

  PRESENT:-  SRI. B.S. REDDY                   PRESIDENT       

                      SRI.A.MUNIYAPPA                     MEMBER              

COMPLAINT Nos.122/2012

O R D E R

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint Under Section-12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Party (herein after called as O.P) to allot a site measuring 40 X 60 feet or to refund the sital deposit of Rs.54,000/- with interest at 18% p.a. along with costs of the proceedings on the allegations of deficiency in service on the part of the OP.

2. Though OP was duly served and the counsel has undertaken to file Vakalath, but the counsel has not filed the Vakalath and version.  

3. The complainant filed affidavit evidence to substantiate complaint averments.

4. Arguments from complainant’s side heard.

5.We have gone through the complaint averments, the documents produced and affidavit evidence of the complainant. The case of he complainant is that she became member of OP-Society under Roll No.SAS.2813, A/c No.15803. The complainant applied to the OP-Society on 26.02.1988 for a residential site measuring 40 X 60 feet in the proposed layout to be formed at Gangenhalli and deposited total sum of Rs.54,000/- towards the cost of the site. OP issued Provisional Allotment Letter dt.26.02.1988. The complainant’s husband was working in Military Engineer Services under Ministry of Defence and was moving all over India. Her mother was in constant personal touch with the President of the OP about allotment of the site. The President of OP kept on getting assurances that the layout would be formed soon. During the complainant’s visit in 1995 to the spot she found that nothing about the layout then she sought for refund of the amount and OP refused to repay the same. Thereafter she approached the District Consumer Disputes Redressal Forum in complaint No.641/1995. The Forum dismissed the complaint holding that the complaint is not maintainable. However now it is stated that the Consumer Forums can entertain complaints of this nature and the Forum has adjudicated number of cases concerning this Society. After the complainant returned to settle down in Bangalore in 1998 she visited the spot to know the progress of the formation of the layout and found that the layout being formed during 2006/2007. She was eagerly waiting to hear from the OP-Society regarding the allotment of site. She was shocked to see a hand bill advertising sale of plots to public in the same layout by a private party as per Annexure-III refers.  On further enquiry the complainant came to know that the private party was the Joint Developer of the Op-Society and could sell its portion in open market. The complainant also came to know that some members of the Society had also been allotted site in the same layout. The complainant wrote a letter on 26.06.2008 requesting either to allot the site or to return the deposit with interest at 18% p.a. In the reply OP-Society informed the complainant that some disputes are being sorted out in court and she should wait for some time. The reply is at Annexure-5. Since the complainant could not get any response from Society she wrote another letter dt.28.03.2011 to return the deposit amount with interest at 18% p.a. OP-Society replied on 12.04.2011 offering to return the amount without any interest or wait till some time as Government has promised to provide some land. Annexutre-7 is the reply. Even after 23 years the Society has not been able to allot the site, the amount of Rs.54,000/- is lying with OP since 26.02.1988. The said amount has been utilized by the Op. The complainant and her husband are of an advanced age they are not in a position to wait indefinitely for allotment of a site and also need the financial resources for their retired life. In similar cases interest has been awarded at   18% p.a. this complaint has been lodged within 2 years from the date of cause of action arose on 12.04.2011 when OP replied to the last letter of the complainant dt.28.03.2011. We perused the reply of OP dt.12.04.2011 for the letter of the complainant dt.28.03.2011. As per that reply letter OP has stated that they have lost about 182 acres of land due to litigation by land lords. Hence, they could not allot the sites to all the members. They have requested the Government to allot alternate land and they are waiting the Government Order. If the complainant wants to refund the amount, they would refund the amount, there is no provision to pay interest and also there is no agreement for interest to be payable. It is stated that soon after the receipt of the funds OP would refund the amount.

            In spite of reply admitting liability to refund the amount OP has not taken any steps till date. When OP was unable to form the layout and allot the site, it would have been fair enough on its part to refund the amount received from the complainant towards the cost of the site. The earlier complaint filed in complaint No.641/1995 was dismissed. On the ground that the complaint is not maintainable. The dismissal of the said complaint is not a bar to file the present complaint as the earlier complaint was not decided on merits. Such nature of disputes were not considered as the disputes under the provisions of the Consumer Protection Act, hence the earlier complaint was dismissed. Subsequently series of complaints filed against the same Op in respect of similar disputes is being allowed with a direction to refund the sital value received. The complainant has produced copy of the Order in complaint No.31/2009 where in, the complaint against the same Op by other member was allowed with a direction to refund the amount with interest at 18% p.a. The copy of the other order passed in complaint No.351/2009 also reveals complaint being allowed refunding the amount with interest at 18% p.a. against the same Op.

6. There is no reason to disbelieve the unchallenged affidavit evidence of the complainant and documents produced. The very fact of OP not filing the version leads to draw inference that Op is admitting the claim of the complainant. The complainant is entitled for refund of the amount with interest at 18% p.a. by way of compensation. Accordingly, we proceed to pass the following:

O R D E R

        The complaint filed by the complainant is allowed.

Op is directed to refund an amount of Rs.54,000/- with interest at 18% p.a. from 26.02.1988, till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.  

This order is to be complied within four weeks from the date of its communication.

Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 13^th day of APRIL-2012.)

MEMBER                                               PRESIDENT

Cs.