The Vyalikaval House Building. Co Oparative Society Ltd, V/S K. Ganesh Somayaji, - Consumer Court Case

Karnataka

Bangalore Urban

cc/2010/444

K. Ganesh Somayaji, - Complainant(s)

Versus

The Vyalikaval House Building. Co Oparative Society Ltd, - Opp.Party(s)

S. Ravishankar.

08 Mar 2010

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. cc/2010/444

K. Ganesh Somayaji,						...........Appellant(s)
Vs.
The Vyalikaval House Building. Co Oparative Society Ltd,						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

COMPLAINT FILED: 02-03-2010 DISPOSED ON: 29-06-2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 29th JUNE 2010 PRESENT:- SRI. B.S.REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI.A.MUNIYAPPA MEMBER COMPLAINT Nos. 443,444/10, 3052/09 COMPLAINT NO.443/10 COMPLAINANT Sri. K.Manjunath R. Hegde, S/o Ramachandra G. Hegde, Aged about 62 Years, R/at No.12, 2nd Main, 2nd Stage, AECS Layout, Bangalore 560 074. COMPLAINT NO.444/10 COMPLAINANT Sri. K. Ganesh Somayaji S/o Subraya Somayaji Aged about 63 years, R/at No. 17, Opposite to Reliance Fresh, KHB Main Raod, Adarshnagar, R.T. Nagar Post, Bangalore-560 032 Advocate S.Ravishankar V/s. OPPOSITE PARTY The Vylikaval House Building Co-operative Society ltd., No.100, 11th Cross, 6th Main, Malleswaram, Bangalore-560 003 Represented by its Secretary Advocate Shivaramaiah COMPLAINT NO.3052/09 COMPLAINANT Smt. N.R.Lalithamma, D/o Rangaswamy Iyengar, Aged about 77 years, R/at No. 252, V Main, Vyalikaval, Bangalore-560 003 Advocate D S Jayaraj V/s. OPPOSITE PARTY The Vylikaval House Building Co-operative Society ltd., No.62, between 7th Main & 9th Cross, Next to Jupiter Nursing Home, Malleswaram, Bangalore-560 003 Advocate Shivaramaiah O R D E R SMT. M. YASHODHAMMA, MEMBER The complainants filed these complaints U/s. 12 of the C.P. Act of 1986 seeking direction against Opposite Party (herein after called as OP) in C Nos.443/10, 444/10 to refund whatever amount paid by them along with compensation of Rs.4 lakhs. In C.No.3052/09 complainant sought allotment and registration of the site, on failure to pay compensation of Rs.15 lakhs and Rs. 2.5 lakhs towards mental agony on the allegations of deficiency in service. Since O.P in all the complaints is common, the question involved, relief claimed being the same, in order to avoid the repetition of facts and multiplicity of reasonings, these cases are stand disposed by this common order. The brief averments as could be seen from the contents of these complaints are as under: These complainants became the members of the OP Society since 1986. OP formed a residential sites at their Chanakyapuri layout Nagawara. OP accepted their membership and collected the amount from the year 1984 to 1994 as shown below in the chart. Thereafter OP failed to register the sites in favour of these complainants. For no fault of them; complainants were made to suffer both mental agony and financial loss. For the convenience sake details of membership account no. measurement of site, amount paid by each complainants, date of payments are noted below in the chart. SL. No. Complaint No. Membership Account No. Provisional allotment letter dates Site measure- ment Amount Paid Date of payments 1) 443/10 6168 17.12.86 30 X 40 48,000/- 20.07.84 to 19.09.94 2) 444/10 3756 08.12.86 40 X 60 38,000/- 18.01.88 to 05.11.93 3) 3052/09 1038 13.02.88 30 X 40 36,000/- 07.04.87 to 05.11.93 3. Though each one of these complainants have paid the huge amount towards sital value in the year 1993-94, they were unable to reap the fruits of their investments because of the hostile attitude of the O.P. The repeated requests and demands made by the complainants to allot sites and register in their favour went in futile. Thus these complainants felt deficiency in service on the part of the OP. As such they are advised to file these complainants and sought for the reliefs accordingly. 4. On appearance OP filed version. The defense set out by OP in all the complaints are identical and same. The brief averments made in the version are as under: OP did acquire the land for the formation of the said layout but unfortunately the said acquisition was quashed by the Honble High Court of Karnataka, which was upheld by the Honble Supreme Court of India. OP has invested a lot in formation of the layout, paid the lumpsum amount to the land owners and the developers; due to quashing of the acquisition proceedings, Society fund still lies with the land owners. In addition to that they were again put in possession of the said lands in pursuance of the orders of Honble Supreme Court of India. Hence there is no deficiency in service on the part of the OP. The delay in formation of the layout is due to legal hurdles. Complainants are the members of the OP Society which is a non profit oriented Society, is not entitled to claim interest. It is further contended that the complainants are hit by Section 71 of Karnataka Co-Op. Society Act and are also barred by time. Among these grounds O.P prayed for dismissal of these complaints. 5. In order to substantiate the complaints averments the complainants filed their affidavit evidence and produced the documents. OP has also filed the affidavit evidence. Both the parties submitted their written arguments. Then heard the oral arguments of both the sides. 6. In view of the above said facts, the points now that arise for our consideration in these complaints are as under: Point No. 1 :- Whether the complainants have proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether these complainants are entitled for the reliefs now claimed? Point No. 3 :- To what Order? 7. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. 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 outset it is not at dispute that these complainants became the Members of the OP Society with a hope of getting a site. OP has also received the amounts from the year 1984 to 1994, issued cash receipts. Further OP issued provisional allotment letter to these complainants in the years 1986 & 1988 itself by allotting a site at their Chanakyapuri layout at Nagavara, Cholanayakanahalli and Vishwanathana gondahalli of Gangenahalli side. Roll No, provisional allotment letter dates, measurement of sites, Amount paid by these complainants, date of payments are mentioned in the Chart noted. Now the grievances of these complainants is that though OP collected the membership fees failed to execute and register the Sale deed as promised or to refund the amounts. On the plain reading of the defence set out by OP it can be made out that due to legal hurdles it is unable to complete the project and what ever the amount they have received from these complainants is paid to the land owners and developers. The land acquired for the purpose of formation of layout is repossessed by the land owners in view of 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 because of the quashing of the land acquisition proceedings. It is unable to refund the sital value to the members because the said amounts is lying with the land owners. 9. On the close scrutiny of the defence set out by OP it can be made out that OP admits its fault in not completing the project and not registering the sites in favour of these complainants even after receipt of entire sital value. Hence we find the deficiency of service on the part of the O.P. When OP is aware of the fact that it is unable to complete the project, it would have been fair on its part atleast to refund the sital value to its members, but no such steps are taken. The approach of the OP does not appears to be fair and honest. Having retained the huge amount for all these years OP accrued wrongful gain to itself thereby caused wrongful loss to these complainants that too for no fault of them. The hostile attitude of the OP must have naturally caused both mental agony and financial loss to these complainants. OP cannot wash of its hands by taking defence of legal hurdle or quashing of the acquisition proceedings. 10. Further the defence of the OP that there was no commitment to allot or even time frame to offer any site to these complainants has no basis. With regard to the point of limitation when once OP accepts the sital value with a promise to allot sites to these complainants till OP allot and execute the sale deed recurring cause of action will accrue to these complainants. 11. In C.No.3052/09 complainant has not produced any documents to show that sites free from litigations are available at the disposal of the OP as on today in certain layout formed by OP which is duly approved by the statutory authorities. Hence the question of issuance of direction to allot site and register it does not arise. These complainants cannot be kept waiting indefinitely in the fond hope of allotment and registration of the site. Under these circumstances complainants are entitled for certain reliefs. In our view justice will be met by directing OP to refund whatever amount it has received from these complainants with interest and litigation cost along with some compensation towards mental agony and monetary loss suffered by each one of these and complainants. With these observations we answer point no.1 and 2 accordingly proceed to pass the following. ORDER The complaints are allowed. 1. In complaint No.443/10 OP is directed to refund Rs.48,000/- together with interest at the rate of 9% p.a. from 19.09.1994 till realization and pay a compensation of Rs.50,000 and litigation cost of Rs.1,000/- to the complainant. 2. In Complaint No.444/10 OP is directed to refund Rs.38,000/- together with interest at the rate of 9% p.a. from 05.11.1993 till realization and pay a compensation of Rs.50,000 and litigation cost Rs.1,000/- to the complainant. 3. In complaint No. 3052/09 OP is directed to refund Rs.36,000/- together with interest at the rate of 9% p.a. from 05.11.1993 till realization and pay a compensation of Rs.50,000 and litigation cost Rs.1,000/- to the complainant. This order is to be complied within four weeks from the date of its communication. This original order shall be kept in the file of the Complaint No.443/10 and copy of it shall be placed in other respective files. (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 29th day of June 2010.) MEMBER MEMBER PRESIDENT gm.

COMPLAINT FILED: 02-03-2010 DISPOSED ON: 29-06-2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 29th JUNE 2010 PRESENT:- SRI. B.S.REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI.A.MUNIYAPPA MEMBER COMPLAINT Nos. 443,444/10, 3052/09 COMPLAINT NO.443/10 COMPLAINANT Sri. K.Manjunath R. Hegde, S/o Ramachandra G. Hegde, Aged about 62 Years, R/at No.12, 2nd Main, 2nd Stage, AECS Layout, Bangalore 560 074. COMPLAINT NO.444/10 COMPLAINANT Sri. K. Ganesh Somayaji S/o Subraya Somayaji Aged about 63 years, R/at No. 17, Opposite to Reliance Fresh, KHB Main Raod, Adarshnagar, R.T. Nagar Post, Bangalore-560 032 Advocate S.Ravishankar V/s. OPPOSITE PARTY The Vylikaval House Building Co-operative Society ltd., No.100, 11th Cross, 6th Main, Malleswaram, Bangalore-560 003 Represented by its Secretary Advocate Shivaramaiah COMPLAINT NO.3052/09 COMPLAINANT Smt. N.R.Lalithamma, D/o Rangaswamy Iyengar, Aged about 77 years, R/at No. 252, V Main, Vyalikaval, Bangalore-560 003 Advocate D S Jayaraj V/s. OPPOSITE PARTY The Vylikaval House Building Co-operative Society ltd., No.62, between 7th Main & 9th Cross, Next to Jupiter Nursing Home, Malleswaram, Bangalore-560 003 Advocate Shivaramaiah O R D E R SMT. M. YASHODHAMMA, MEMBER The complainants filed these complaints U/s. 12 of the C.P. Act of 1986 seeking direction against Opposite Party (herein after called as OP) in C Nos.443/10, 444/10 to refund whatever amount paid by them along with compensation of Rs.4 lakhs. In C.No.3052/09 complainant sought allotment and registration of the site, on failure to pay compensation of Rs.15 lakhs and Rs. 2.5 lakhs towards mental agony on the allegations of deficiency in service. Since O.P in all the complaints is common, the question involved, relief claimed being the same, in order to avoid the repetition of facts and multiplicity of reasonings, these cases are stand disposed by this common order. The brief averments as could be seen from the contents of these complaints are as under: These complainants became the members of the OP Society since 1986. OP formed a residential sites at their Chanakyapuri layout Nagawara. OP accepted their membership and collected the amount from the year 1984 to 1994 as shown below in the chart. Thereafter OP failed to register the sites in favour of these complainants. For no fault of them; complainants were made to suffer both mental agony and financial loss. For the convenience sake details of membership account no. measurement of site, amount paid by each complainants, date of payments are noted below in the chart. SL. No. Complaint No. Membership Account No. Provisional allotment letter dates Site measure- ment Amount Paid Date of payments 1) 443/10 6168 17.12.86 30 X 40 48,000/- 20.07.84 to 19.09.94 2) 444/10 3756 08.12.86 40 X 60 38,000/- 18.01.88 to 05.11.93 3) 3052/09 1038 13.02.88 30 X 40 36,000/- 07.04.87 to 05.11.93 3. Though each one of these complainants have paid the huge amount towards sital value in the year 1993-94, they were unable to reap the fruits of their investments because of the hostile attitude of the O.P. The repeated requests and demands made by the complainants to allot sites and register in their favour went in futile. Thus these complainants felt deficiency in service on the part of the OP. As such they are advised to file these complainants and sought for the reliefs accordingly. 4. On appearance OP filed version. The defense set out by OP in all the complaints are identical and same. The brief averments made in the version are as under: OP did acquire the land for the formation of the said layout but unfortunately the said acquisition was quashed by the Honble High Court of Karnataka, which was upheld by the Honble Supreme Court of India. OP has invested a lot in formation of the layout, paid the lumpsum amount to the land owners and the developers; due to quashing of the acquisition proceedings, Society fund still lies with the land owners. In addition to that they were again put in possession of the said lands in pursuance of the orders of Honble Supreme Court of India. Hence there is no deficiency in service on the part of the OP. The delay in formation of the layout is due to legal hurdles. Complainants are the members of the OP Society which is a non profit oriented Society, is not entitled to claim interest. It is further contended that the complainants are hit by Section 71 of Karnataka Co-Op. Society Act and are also barred by time. Among these grounds O.P prayed for dismissal of these complaints. 5. In order to substantiate the complaints averments the complainants filed their affidavit evidence and produced the documents. OP has also filed the affidavit evidence. Both the parties submitted their written arguments. Then heard the oral arguments of both the sides. 6. In view of the above said facts, the points now that arise for our consideration in these complaints are as under: Point No. 1 :- Whether the complainants have proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether these complainants are entitled for the reliefs now claimed? Point No. 3 :- To what Order? 7. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. 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 outset it is not at dispute that these complainants became the Members of the OP Society with a hope of getting a site. OP has also received the amounts from the year 1984 to 1994, issued cash receipts. Further OP issued provisional allotment letter to these complainants in the years 1986 & 1988 itself by allotting a site at their Chanakyapuri layout at Nagavara, Cholanayakanahalli and Vishwanathana gondahalli of Gangenahalli side. Roll No, provisional allotment letter dates, measurement of sites, Amount paid by these complainants, date of payments are mentioned in the Chart noted. Now the grievances of these complainants is that though OP collected the membership fees failed to execute and register the Sale deed as promised or to refund the amounts. On the plain reading of the defence set out by OP it can be made out that due to legal hurdles it is unable to complete the project and what ever the amount they have received from these complainants is paid to the land owners and developers. The land acquired for the purpose of formation of layout is repossessed by the land owners in view of 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 because of the quashing of the land acquisition proceedings. It is unable to refund the sital value to the members because the said amounts is lying with the land owners. 9. On the close scrutiny of the defence set out by OP it can be made out that OP admits its fault in not completing the project and not registering the sites in favour of these complainants even after receipt of entire sital value. Hence we find the deficiency of service on the part of the O.P. When OP is aware of the fact that it is unable to complete the project, it would have been fair on its part atleast to refund the sital value to its members, but no such steps are taken. The approach of the OP does not appears to be fair and honest. Having retained the huge amount for all these years OP accrued wrongful gain to itself thereby caused wrongful loss to these complainants that too for no fault of them. The hostile attitude of the OP must have naturally caused both mental agony and financial loss to these complainants. OP cannot wash of its hands by taking defence of legal hurdle or quashing of the acquisition proceedings. 10. Further the defence of the OP that there was no commitment to allot or even time frame to offer any site to these complainants has no basis. With regard to the point of limitation when once OP accepts the sital value with a promise to allot sites to these complainants till OP allot and execute the sale deed recurring cause of action will accrue to these complainants. 11. In C.No.3052/09 complainant has not produced any documents to show that sites free from litigations are available at the disposal of the OP as on today in certain layout formed by OP which is duly approved by the statutory authorities. Hence the question of issuance of direction to allot site and register it does not arise. These complainants cannot be kept waiting indefinitely in the fond hope of allotment and registration of the site. Under these circumstances complainants are entitled for certain reliefs. In our view justice will be met by directing OP to refund whatever amount it has received from these complainants with interest and litigation cost along with some compensation towards mental agony and monetary loss suffered by each one of these and complainants. With these observations we answer point no.1 and 2 accordingly proceed to pass the following. ORDER The complaints are allowed. 1. In complaint No.443/10 OP is directed to refund Rs.48,000/- together with interest at the rate of 9% p.a. from 19.09.1994 till realization and pay a compensation of Rs.50,000 and litigation cost of Rs.1,000/- to the complainant. 2. In Complaint No.444/10 OP is directed to refund Rs.38,000/- together with interest at the rate of 9% p.a. from 05.11.1993 till realization and pay a compensation of Rs.50,000 and litigation cost Rs.1,000/- to the complainant. 3. In complaint No. 3052/09 OP is directed to refund Rs.36,000/- together with interest at the rate of 9% p.a. from 05.11.1993 till realization and pay a compensation of Rs.50,000 and litigation cost Rs.1,000/- to the complainant. This order is to be complied within four weeks from the date of its communication. This original order shall be kept in the file of the Complaint No.443/10 and copy of it shall be placed in other respective files. (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 29th day of June 2010.) MEMBER MEMBER PRESIDENT gm.