COMPLAINT FILED ON:01.12.2010.

   DISPOSED ON:18.11.2011.

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

^{18th DAY OF NOVEMBER- 2011}

  PRESENT :- SRI. B.S. REDDY                        PRESIDENT

                     SMT. M. YASHODHAMMA                 MEMBER                   

                     SRI.M.MUNIYAPPA                           MEMBER

       COMPLAINT NO. 2669/2011

O R D E R

SMT. M. YASHODHAMMA, MEMBER

          This is a Complaint filed by the Complainant U/S. 12 of Consumer Protection Act of 1986 seeking direction against Opposite party (herein after called as O.Ps) to allot and register a site or to refund the amount paid along with bank rate of interest and compensation of 20 lakhs on the allegations of deficiency in service on the part of OP.

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

Attracted by the scheme offered by OP complainant became the member of OP House Building Co-op. Society.  OP accepted the membership of the complainant and issued   Roll No.4217 to the complainant.  Complainant paid Rs.1000/- on 26/7/1983 and Rs.20,000/- on 30/6/1990 towards a residential site measuring 1200 Sq.fts. at their proposed Hosahalli layout to be formed by OP.  OP through its letter dated 21/12/1993 demanded the complainant to pay additional sum of Rs.10,000/- as development charges.  Complainant paid Rs.10,000/- on 29/12/1993.  Totally complainant paid Rs.31,226/- to O.P.  O.P. issued the receipts acknowledging the receipt of amount.  OP failed to allot the site as assured inspite of receipt of entire sital value.  Hence on 9/10/2000 complainant personally visited the president of OP.  The president requested the complainant to wait for some more time due to pendency of Court proceedings.  Complainant requested to refund the amount.  OP informed that there was no site. On 24/7/2002 complainant got issued legal notice calling upon OP to allot  a site within two weeks.  OP in its reply dated 21/8/2002 informed the complainant to proceed under Karnataka Co-op. Society Act.  Again on 24/4/2004 complainant wrote a letter to OP to refund the amount along with interest.  There was no response.  Hence complainant filed O.S.No.17921/2005 before the Hon’ble City Civil Court Bangalore on 18/11/2005.  Complainant withdrawn the said suit on 9/8/2010 with a liberty to file a fresh proceedings against OP.  Inspite of repeated requests when OP failed to allot the site or to refund the amount, Complainant felt deficiency in service against OP.  Under the circumstances he is advised to file this complaint against OP for the appropriate relief.  

3. On appearance   OP filed the version mainly contending   that

    OP could not purchase the lands, under the prevailing laws. OP has to approach the state government to initiate land acquisition proceedings which involves gazette notification U/s. 4(1) of the Act to hold enquiries of the land owners U/s. 5-A of the Act and to issue final notification U/s. 6(1) of the act and thereafter to pass award granting compensation to the land owners u/s. 9 and 10 of the act. One being consent of land owners and another being the general award. After the procedure the state government will hand over possession of the land to society within 3 to 4 years.  The entire cost including payment to land owner and conversion charges and another expenses incurred should be paid by the society to the government.  The land acquired by the government in favour of the society was challenged by the land owners before the High Court. Unfortunately acquisition proceedings were set aside and notification were quashed.  The Appeal preferred by OP before Hon’ble Supreme Court confirmed the order of the high court.  Further directed the government to return the lands to land owners. OP has to get back the money from the Government. The Government   will   deduct   22%   of   the   amount towards Administrative heads. Hence OP is not in a position to pay the interest to its members. In AIR 2010 SC 486 it was held that developmental authorities need not pay interest on the deposit amount for the delay or failure of the projects due to the order of the courts; The claim is barred by time. Among other grounds OP prayed for a direction to the complainant to receive the sital deposit amount and prayed for dismissal of the complaint.

4. In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced copy of the receipts, affidavit, correspondences, legal notice, dated 24/7/2002 and 18/11/2005, reply of OP.  Copy of IA and order sheet in O.S.No.17921/2005, proceedings of the Government of Karnataka.  Order of BDA, paper cuttings. On behalf of OP Srinivas H, Secretary filed his affidavit evidence in support of the defence version.  Both complainant and OP filed written arguments. Heard arguments from Complainant side and taken as heard from OP side.

5. In view of the above said facts the points now that arises for our consideration in this complaint are as under:

               Point No.1:-  Whether the complainant

    proved the deficiency in service

    on the part of the OP?

Point No.2:-   If so, whether the complainant is

                     entitled for the reliefs now claimed?

      Point No.3:-  To what Order?

7. In view of the reasons given by us in the following paragraphs our findings on:

Point No.1:- In 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 in dispute that the complainant became the member of OP house building Co-op. society with a hope of getting a site. OP accepted the membership of the complainant and issued Roll No.4217. OP assured to allot a site measuring 1200 sq.ft. at their proposed Hosahalli layout.  Complainant paid Rs.31,226/- to OP on different dates starting from 7/7/1983 to 29/12/1993.  To substantiate this fact complainant has produced the receipts issued by OP.  Inspite of repeated requests and service of legal notice; OP failed to allot and register the site or to refund the amount. Hence complainant approached this Forum for the necessary reliefs.

9. As against the case of the complainant the defence of the OP is that due to legal hurdles it is unable to complete the project and whatever the amount they have received from the members is paid to the developers and deposited towards compensation payable to landlords with the government etc. But OP has failed to substantiate the said defence by producing documents. The land acquired for the purpose of formation of layout is repossessed by the land owners in view of the quashing of the land acquisition proceedings.  So the sum and substance of the defence set out by OP is that it is unable to complete the project due to the quashing of the land acquisition proceedings.  It is unable to refund the sital value to the complainant because of the said amounts are used for paying compensation to the land owners by depositing the same with the government and for paying development expenses.

10. On the close scrutiny of the defence set out by OP it can be made out that OP collected the amount towards sital value from the complainant with a promise that it would complete the project and register the site but project could not be completed on account of the acquisition being quashed. When OP was aware of the fact that it is unable to complete the project, it could have been fair on its part to refund the sital value collected to the complainant. No such steps are taken. Hence we find deficiency in service on the part of the OP in not refunding the sital value to the complainant. Having retained the amount for more than 18 years OP accrued wrongful gain to itself and thereby caused wrongful loss to the complainant.

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

12.In support of his arguments counsel appearing for OP has  relied on Order reported in AIR 2010 Supreme Court 486 in Civil Appeal No. 433, 4335 and 4336/2004 of Punjab Urban Planning and development Authority and Another V/s. Daya Singh.

        In the above matter the Hon’ble Supreme Court has 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 Punjab and Haryana directing maintenance of status quo 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 given to the respective respondents 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.

13.In the present proceedings acquisition proceedings were quashed by the Hon’ble High Court of Karnataka in W.P. No.17429 to 17493/1986 and the said order was confirmed by the Supreme Court in the Special Leave petition filed by OP. Thereafter even after lapse of many years of the order of the Supreme Court OP has failed to refund the amount to the complainant.  Hence the principles laid down in the above case cannot be made applicable to the present proceedings.

14.Along with version OP has deposited a cheque dated 4/1/2011 for a sum of Rs.31,226/- towards refund of sital value in favour of complainant, but complainant refused to collect the same.  Now the said cheque which is available in the file is in lapsed condition.

15.The main relief claimed by the complainant is for  allotment and registration of site.  OP has failed to form the layout.  In the absence of any materials that the layout is formed conversion order and sanction plan has been obtained from statutory authorities.  Vacant sites are available free from encumbrances as on today at the disposal of OP, we cannot consider the relief claimed by the complainant for registration of sale deed.  Hence complainant is entitled for the alternative relief of refund of amount paid with interest at 18% p.a. as compensation and cost. In view of the order passed by the Hon’ble Karnataka State Consumer Disputes Redressal Commission in Appeal No.5041/10 dt.19.08.2011 in similar circumstances against OP has modified the order passed by the first Addl District Consumer Forum in C.C.No.2201/2010 dt.16.11.2010 to refund the amount paid towards sital value together with interest at 18% p.a. from the date of respective payments till realization. Hence based on the said order we are of the considered view that complainant is entitled for refund of amount paid along with interest at 18% p.a. as compensation from the date of respective payments till the date of deposit of cheque i.e. 5/1/2011 and litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following:

ORDER

          The complaint is allowed in part. 

OP is directed to refund Rs.31,226/- along with interest at the rate of 18% p.a from the date of respective payments till  the date of cheque deposited i.e. 5/1/2011 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 the copy of this order to both the parties free of cost.

(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 18^th day of November 2011.)

MEMBER                         MEMBER                  PRESIDENT                   

RK.