COMPLAINTS FILED ON:11.01.2011

DISPOSED ON:02.01.2012

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

2^nd DAY of JANUAR-2012

  PRESENT:-  SRI. B.S. REDDY                       PRESIDENT

                      SRI. A. MUNIYAPPA                      MEMBER

COMPLAINT Nos.65/2011, 66/2011

O R D E R

SRI. B.S. REDDY, PRESIDENT

The complainants in both these complaints filed U/s. 12 of the Consumer Protection Act of 1986 are seeking direction against the OP to allot the sites alternatively to refund the amount deposited towards the cost of the site and to award damages of Rs.20,000/- and further to pay interest at the rate of 18% p.a. on the allegation of deficiency in service on the part of the OP.

2. Since Op is common in both these complaints, the questions involved and the reliefs claimed being the same, in order to avoid the repetition of facts and multiplicity of reasoning’s, these complaints are stand disposed of by this common order.

3. The case of the complainants to be stated in brief is that:

The respondent being a registered Housing Society engaged information and development of residential sites for its members in and around Bangalore proposed to form layout in and lands Sy.No.24/5 to 88/5, Vishwanathanaganahalli and Kodigehalli, by acquiring the lands. The lands were acquired for the purpose of formation of the layout. These complainants with an intention to get the sites became the members of OP-Society and each of them paid Rs.36,000/- towards allotment of the site on various dates from 01.06.1998 till 18.10.1993. OP has issued the receipts, OP formed the layout but instead of allotting the sites to its members, the sites were sold to one K.Srinivasan under the registered sale deed dt.01.01.2004, in respect of site No.412, who is not at all the member of Op-Society. Though OP collected the entire cost of the sites but failed to allot the sites. The complainants got issued legal notice dt.25.11.2010 calling upon OP to refund the amount, OP in spite of service of notice neither complied the demand nor replied the notice. Hence, the complainants felt deficiency in service on the part of the OP and filed these complaints.

4. On appearance OP filed version with identical contentions in both these complaints. It is contended that the lands in different villages were acquired by the Government in favour of OP-Society for forming the layout. Some of the land owners challenged the acquisition proceedings before the Hon’ble High Court, the acquisition proceedings were set aside. OP preferred Special Leave Petitions before the Hon’ble Supreme Court against the order of the High Court in the year 1991 but the Hon’ble Supreme Court confirmed the order of the High Court on 21.02.1995. The OP has invested the huge amount on the lands acquisition. OP has the get back the money from the Government. The Government will deduct nearly 22% of the amount towards administrative heads. OP has to make good the deficit amount even if the money is received from the Government. The site aspiring members who had deposited the amount have been informed that site deposit amount shall not earn interest through a circular dt.31.12.1984. The Hon’ble Supreme Court has held in AIR 2010 SC 486 that 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. The society has to face interim order and final orders from the year 1986 till 1995 and the result is loosing the entire project by orders of the courts. The complainants have approached this Forum claiming refund of the amount after lapse of more than 23 years, the claim is barred by time. Hence, it is prayed to dismiss the complaints.

5.During the pendency of the proceedings in complaint No.65/2011 OP has refunded an amount of Rs.25,000/- through cheque on 17.08.2009. The earlier cheque issued for Rs.56,231/- was bounced and the said cheque has been produced with Memo on 20.07.2011. In complaint No.66/2011 OP has refunded the amount of Rs.56,231/- to the complainant on 29.06.2011 through cheque dt.11.02.2011.

6.In order to substantiate complaint averments each of these complainants filed affidavit evidence. The Secretary of the OP-Society filed affidavit evidence in support of the defence version.

7. Arguments on both sides heard.

8. Points for consideration are:

Point No.1:- Whether the complainants proved

                       proved the deficiency in service on the

                        part of  the OP?

     Point No.2:- Whether the complainants are entitled

                 for the reliefs now claimed?

   Point No.3:- To what Order?

9. We record out findings on the above points:

   Point No.1:- Affirmative

          Point No.2:- Affirmative in part.

          Point No.3:- As per final Order.

R E A S O N S

10.At the out set it is not in dispute that each of these complainants became members of the OP-Society with a hope of getting a residential site and deposited Rs.36,000/- the entire costs of the site on various dates in between 01.06.1988 to 18.10.1993 under various receipts. The documents produced by these complainants reveal that Op has issued site intimation letters dt.21.07.2001. The copy of the pass book produced reveals the payments made by these complainants towards the cost of the site. On 01.06.1988 an amount of Rs.5,000/- has been deposited, on 08.03.1989 an amount of Rs.21,000/- has been deposited by each of these complainants. Further the complainant in complaint No.65/2011 has deposited Rs.5,000/- each on 06.11.1993 and 17.02.1994 in all Rs.36,000/-. The complainant in complaint No.66/2011 has deposited further sum of Rs.10,000/- on 18.10.1993. OP was unable to form any layout as the lands acquired for the project were not available as the acquisition proceedings were quashed by the Hon’ble High Court and the same was confirmed by the apex Court in the year 1995. When OP was not able to form any layout and allot the sites, it would have been fair enough on its part to refund the amount deposited by these complainants. In spite of receipt of the legal notice from these complainants OP neither complied the demand nor replied for the notice. Without acquisition of the lands and forming the layout duly approved by statutory authorities, OP ought not to have received the amount towards the cost of the site from these complainants. The act of OP neither forming any layout and allotting the sites nor refunding the amount deposited by these complainants, amounts to deficiency in service on its part.

11. There is no merit in the contention of the OP that these complaints are barred by limitation. When once OP accepted the deposits towards sital value with a promise to allot a site to the complainant, till OP allot and register the sale deeds recurring cause of action will accrue to the complainants.

12.The contention of the OP that on the basis of the principles laid down in AIR-2010 Supreme Court 486 page 486 Punjab Hariyana Planning and development Authority and Another V/s. Daya Singh. OP is not liable to pay interest cannot be accepted. OP is not a statutory developing authority. The Hon’ble Supreme Court set aside the acquisition proceedings and the same was confirmed by the Apex Court in the year 1995. Since then OP failed to refund the amount to the complainants. In the above said case, the Apex Court 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 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. In this case OP has received the entire sital deposit from 1988 to 1994 but failed to form any layout and execute the sale deeds or refund the amount. We are unable to accept the contention that the amount deposited towards acquisition of the lands still lies with the Government. OP has not produced any material to substantiate the said fact. Since no layout has been formed, OP cannot be directed to execute the sale deeds in respect of the sites. The complainants are entitled for the alternative relief for refund of the amount. The Hon’ble State Commission in Appeal No.5041/2010 dated 19/08/2011, in similar circumstances against the same OP allowed interest at 18% p.a. from respective date of payments, till the date of realization. Under these circumstances, we are of the considered view that each of these complainants are entitled for interest at the rate of 18% p.a. as compensation from the respective date of payments till the date of realization along with cost of Rs.2000/-.

12.In complaint No.65/2011 an amount of Rs.25,000/- has been refunded on 17.08.2011. In complaint No.66/2011 an amount of Rs.56,231/- has been refunded to the complainant on 29.06.2011. After giving deduction for these payments, the complainants would be entitled for the balance amount. Accordingly, we proceed to pass the following:

O R D E R

The complaints filed by the complainants allowed in part.

In complaint No.65/2011 OP is directed to refund an amount of Rs.11,499/- with interest at 18% p.a. on the amount of Rs.36,499/- from the respective date of payments till 17.08.2011 and interest at 18% p.a. from 18.08.2011 on the amount of Rs.11,499/- till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.

In complaint No.66/2011 OP is directed to pay interest at the rate of 18% p.a. on the amount of Rs.36,000/- from the respective date of payments , till 29.06.2011. After giving deduction of Rs.56,231/- on the total amount worked out till 29.06.2011, on the balance if any OP is directed to pay interest at 18% p.a. from 30.06.2011 till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.

OPs to comply the order within four weeks from the date of this order.

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

This original order shall be kept in the file of the complaint No.65/2011 and a copy of it shall be placed in other complaint.

(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 2^nd day of  JANUARY– 2011.)

MEMBER                                                           PRESIDENT

Cs.