COMPLAINT FILED:25.07.2011

DISPOSED ON:25.01.2012.

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

25^th DAY OF JANUARY 2012

       PRESENT :-SRI. B.S.REDDY                  PRESIDENT                        

                         SRI.A.MUNIYAPPA                   MEMBER              

O R D E R

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint U/s. 12 of the Consumer Protection Act of 1986 seeking direction against the Opposite Party (herein after called as O.P) to refund an amount of Rs.36,000/- being the amount deposited towards allotment of a site, along with interest at 21% p.a. and to pay sum of Rs.25,000/- as compensation for the mental agony on the allegations of deficiency in service on the part of OP.

2.         The brief averments made in the complaint are as follows:

The complainant applied for allotment of site with OP by paying an amount of Rs.36,000/- in instalments commencing from 06.01.1985 to 31.10.1994, towards allotment of site. OP has acknowledged the receipt of the said amounts in the account Roll No.10045. OP confirmed the allotment of site in the Chanakyapuri (Kempapura Agrahara layout), through a letter of allotment dt.28.03.1998, wherein the complainant was allotted a site bearing No.362, measuring about 1200 square feet. OP did not allot the site as promised. The complainant came to know that the sites formed in the layout are being allotted to other persons who were not even members of the society. The complainant approached OP requested to register the site, but OP has not responded for the same. Finally the complainant requested OP on 19.06.2010 to refund the said amount of Rs.36,000/- with interest by addressing a letter. OP has issued the reply for the said letter on 16.07.2010 assuring the refund of the amount but in spite of the same OP has failed to do the needful. The complainant’s hard earned money has been blocked with the OP without fetching any returns or interest. OP having received a huge and substantial amount, put to the complainant to irreparable loss and injury. Hence, the complaint.

3. On appearance OP filed version contending that the lands in different villages identified by the OP-Society were acquired by the Government in favour of the OP. At the time of passing award, some of the land owners had challenged the acquisition before the High Court, the Acquisition proceedings were set aside. The OP-Society went up in Special Leave Petitions before the Hon’ble Supreme Court in CLP 12/04-107/91 and the same was dismissed on 21.02.1995 confirming the Order of the Hon’ble High Court. OP-Society had invested huge money on the process of acquisition. OP has to get back the money from Government. It is reliably learnt that the Government will deduct nearly 22% of the amount towards Administrative heads and the OP has to make good the deficit amount even if the money is received by the OP from the Government. The site aspiring members who had deposited amount have been informed that site deposit amount shall not earn interest and it was through a Circular dt.31.12.1984. As per the ruling reported in AIR 2010 AC 486 the Developmental Authorities need not pay interest on the deposit amount for the delay or failure of the projects if there is interference by the orders of the courts. OP had to face interim order and final orders from the year 1986 till 1995 and the result is loosing the entire project by the orders of the Courts. There is no deficiency of service on the part of the OP. The complainant has approached this Forum for refund of the amount after lapse of more than 10 years and the claim is barred by time. Op is ready to refund the sital deposit without interest and compensation. Hence it is prayed to dismiss the complaint with costs.

4. In order to substantiate the complaint averments, complainant filed affidavit evidence. The Secretary of OP filed affidavit evidence in support of the defence version.

5. The complainant filed written arguments. Arguments on both sides heard.

6. In view of the above said facts the points now that arise 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 record our findings on the above points are:

              Point No.1:- 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 at dispute that the complainant became member of OP-Society. On the basis of the propaganda made by OP, who claims to be the house building co-operative society with a hope of getting a site, deposited total amount of Rs.36,000/- towards sital value, in instalments commencing from 06.01.1985 to 31.10.1994. OP confirmed the allotment of site in Chanakyapuri (Kempapura Agrahara Layout), through a letter of allotment dt.28.03.1998, wherein the complainant was allotted a site bearing No.362, measuring 1200 sq.ft. Subsequently, OP could not complete the project and registered the site as the acquisition proceedings for acquiring certain lands by the Government for OP-society, were challenged before the High Court and the Acquisition proceedings were quashed. The OP-Society went up in Special Leave Petitions before the Hon’ble Supreme Court and the same was also dismissed on 21.02.1995 confirming the Order of the Hon’ble High Court. When OP was not able to form the layout and register the site in favour of the complainant, soon after dismissal of the SLP before the Supreme Court it would have been fair enough on the part of the OP in refunding the amount received towards sital value. We are unable to accept the defence of the OP that the entire amount received from the members towards allotment of sites is deposited with the Government towards cost of the Acquisition lands and that amount is still held up in the Government. To substantiate that defence OP has not produced any material. The act of OP in not refunding the sital value deposited, even after the land acquisition proceedings were quashed by the Hon’ble High Court, confirmed by the Apex Court, amounts to deficiency in service on the part of OP.

9.We are unable to accept the defence of the OP that the complaint is barred by limitation. When once OP has accepted the deposit towards sital value with a promise to allot a site to the complainant till OP allot and register the sale deed or refund the sital value deposited, recurring cause of action will accrue to the complainant.

10.The principles laid down in AIR 2010 Supreme Court Phase-486 Punjab Urban Planning and Development Authority and another V/s Daya Singh on which OP had relied upon in support of the contention that OP is not liable to pay interest cannot be applied to the facts of the case. In the said decision it was observed that possession could not be delivered in time to respondents in respect of the plots on account of the Order passed by the High Court of Panjab and Hariyana directing maintenance of Statu-sco regarding possession. Hence it was found that delay was on account of the Order passed by the High Court. So the question of payment of interest for such delayed possession may not arise at all and directed the National Commission to take up the issue then decide the same on facts before passing the final order. In this case, OP is not a Statutory Development Authority. The acquisition proceedings were quashed long back, even after lapse of many years of the order of the Apex Court dismissing SLP, OP has failed to refund the amount to the complainant. Hence, the principles laid down in this above ruling cannot be made applicable to the present proceedings. Taking into consideration of all the facts and circumstances, we are of the view that OP is liable to pay interest at 18% p.a. by way of compensation from the date of respective payment, till the date of realization and refund the amount received from the complainant. Accordingly we proceed to pass the following:

O R D E R

        The complaint filed by the complainant is allowed in part.

OP is directed to refund an amount of Rs.36,000/- with interest at 18% p.a. from the date of respective payments, till the date of realization and pay litigation cost of Rs.2,000/- 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 25^th day of JANUARY-2012.)

MEMBER                                                                   PRESIDENT

Cs.