BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 21^st DAY OF SEPTEMBER 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

In all these four complaints though the complainants are different but the OP is one and the same and the issues involved are also similar.  Therefore, all these cases are taken up together for disposal by this common order.

2. These complaints have been filed by the complainants U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to refund the advance amount paid by them towards purchase of the sites together with compensation, damages and litigation cost.

3. The brief averments made in the complaint No.667/2015 are as under:

The OP is society registered in a Karnataka Co-operative Societies Act with an object of forming layouts in the land situated at Bangalore and invited the applications from its members who desire to own sites.  The father of the complainant Sri.H.K Venugopal who was willing to purchase a site had deposited with OP a sum of Rs.10,000/- on 21.12.1993 as initial payment towards the cost of the allotment of site.  The OP acknowledged the receipt of the said amount and also made necessary entries in the pass book in this regard.  The OP wrote letter dated 19.01.1994 to the father of the complainant and other members requesting them to make payment as mentioned thereon and in the said letter the OP had agreed to allot a site as early as possible and also regretted for delay in allotment of sites.  The OP failed to allot the site as assured to father of the complainant inspite of receiving the earnest money and also subsequent payments made.  Inspite of repeated requests made by the father of the complainant, the OP failed to allot any site by putting forth relying excuses.

When the complainant demanded to refund of the advance amount paid, the OP failed to refund the amount and in the mean time the said H.K Venugopal expired and the complainant being the only legal heir of the deceased allottee has filed the present complaint.  That there is deficiency in service on the part of the OP.  The OP despite collecting the necessary amount from the complainant failed to allot the site and also failed to refund the advance amount when demanded without valid reasons.  Therefore, the complainant got issued a legal notice dated 26.11.2014 and despite the said notice, the OP neither complied the demand made in the said notice nor replied to the said notice.  The conduct of OP has resulted in financial loss, mental agony, stress and sufferings to the complainant.  Therefore, the complainant prays for an order directing the OP to refund a sum of Rs.10,000/- together with interest @ 18% p.a from the date of payment till the date of realization, Rs.10,000/- towards mental agony, stress, Rs.10,000/- towards damages and Rs.10,000/- towards litigation costs.

4. The brief averments made in the complaint No.668/2015 are as under:

The mother of the complainant Smt.H.K Yashoda, who was willing to purchase a site had deposited with the OP a sum of Rs.10,000/- on 16.05.1989, Rs.5,000/- on 16.04.1991, Rs.10,000/- on 08.11.1992, Rs.10,000/- on 12.11.1992 and a sum of Rs.10,000/- on 07.12.1993 in all Rs.45,000/- towards the cost of the allotment of site.  The OP acknowledged the receipt of the said amount and made necessary entries in the pass book regarding the receipt of the said amount.  The OP wrote a letter dated 17.05.1989 to mother of the complainant and the other members requesting them to make payment as mentioned thereon and had agreed to allot a site as early as possible and also regretted for delay in allotment of site.  The OP had issued a provisional letter of allotment of site dated 22.04.1991 to the mother of the complainant intimating allotment of site measuring 1200 sq. ft at Visweswarayanagar Layout, Kodichikkanahalli, Devarachikkanahalli, Arakere & Hongasandra of Bannerghatta Road, Bangalore in favour of the complainant’s mother.  The OP inspite of the initial deposits made failed to execute the registered sale deed in favour of mother of the complainant by putting forth lame excuses.

When OP failed to execute the registered sale deed, the mother of the complainant demanded refund of the advance amount paid towards allotment of site but the OP failed to refund the amount.  In the mean time Smt.H.K Yashodha expired and the complainant being only the legal heir of the deceased allottee has filed the present complaint.  There is a deficiency of service on the part of the OP.  The OP has failed to settle the legal claim of the complainant despite repeated requests which amounts to deficiency in service.  The non allotment of the site also amounts to deficiency in service.  Therefore, the complainant got issued a legal notice to the OP.  The OP neither complied with the demand made in the legal notice nor replied the same.  Therefore, the complainant prays for an order directing the OP to refund Rs.45,000/- to the complainant together with interest @ 18% p.a from the date of payment till the date of realization, Rs.10,000/- towards mental agony, stress, Rs.10,000/- towards damages and Rs.10,000/- towards litigation cost. 

5. The brief averments made in the complaint No.692/2015 are as under:

The complainant who was willing to purchase a site from the OP society deposited a sum of Rs.43,000/- on 31.01.1985 as initial payment towards cost of allotment of site.  The OP issued a pass book and made necessary entries in the pass book regarding the receipt of the said amount.  The OP had issued a provisional letter of allotment of site dated 23.09.1986 to the complainant informing her about the allotment of site measuring 40x60 feet at Mookambika Layout, Bangalore.  The OP had also written a letter dated 21.12.1987 to all the members requesting them to make payment as mentioned thereon and in the said letter OP agreed to allot a site as early as possible.

The OP however failed to allot the site as assured to the complainant despite deposit of earnest money and subsequent payments made by her.  The repeated requests made by the complainant fell on deaf ears.  Therefore, the complainant demanded for the refund of the advance amount paid by her but the complainant failed to comply the same which amounts to deficiency in service on the part of the complainant.  The OP on one or the other pretext failed to allot the site as well as refund the money received from the complainant.  Therefore, the complainant got issued a legal notice dated 09.10.2014 through her advocate to the OP but the OP neither replied to the said notice nor complied the demands made therein.  Therefore, the complainant has prayed for an order directing the OP to pay her a sum of Rs.43,000/- together with interest @ 18% p.a from the date of payment till the date of realization, Rs.10,000/- towards mental agony, stress, Rs.10,000/- towards damages and Rs.10,000/- towards litigation cost.

6. The brief averments made in the complaint No.693/2015 are as under:

The complainant who was willing to purchase a site had deposited a sum of Rs.43,000/- on 30.01.1985 as initial payment towards cost of the allotment of site, for which OP issued a pass book by making necessary entries thereon.  The OP had issued a provisional letter of allotment of site dated 23.09.1986 to the complainant informing him about the allotment of site measuring 40x60 feet at Mookambika Layout, Bangalore.  The OP had also written a letter dated 21.12.1987 to all its members requesting them to make payment as mentioned thereon and also agreed to allot site as early as possible.  However, the OP failed to allot any site to the complainant as assured.

Despite repeated requests made by the complainant, the OP failed to allot any site to the complainant inspite of receiving necessary advance consideration amount.  Therefore, the complainant decided to ask for refund of consideration amount and accordingly requested OP to refund the advance amount.  Inspite of repeated requests for refund of the money the OP failed to refund the advance amount to the complainant.  Therefore, the complainant got issued a legal notice on 09.10.2014 to the OP through his advocate.  The OP inspite of service of legal notice failed to comply the demand made therein and also in not refunding the advance amount to the complainant amounts to deficiency in service.  Therefore, the complainant prays for an order directing the OP to refund him a sum of Rs.43,000/- together with interest @ 18% p.a from the date of payment till the date of realization, Rs.10,000/- towards mental agony and stress, Rs.10,000/- towards damages and Rs.10,000/- towards litigation cost.

7. Despite service of notice in all these cases, the OP failed to appear and was placed ex-parte.

8. Thereafter the complainant in all these 4 cases filed their affidavit evidence and also written arguments.

9. Perused the allegations made in the complaint, the affidavit evidence filed by the complainants, written arguments and various documents filed by each of the complainants in support of their respective cases.

10. One Sri.H.V Prashanth the complainant in complaint No.667/2015 and 668/2015 claims to be the only legal heir to his parents Sri.H.K Venugopal and Smt.H.K Yashodha.  He has produced the copies of death certificates in respect of H.K Venugopal and H.K Yashodha issued by the Bangalore Mahanagar Palike to substantiate the death of his both parents.  The said Sri.Prashanth H.V has also produced the copy of an affidavit sworn before the notary stating that his father H.K Venugopal died on 15.03.1999 and mother Yashodha H.K died on 06.08.2007 and he is the only issue to his parents and he alone inherited all the properties belonging to his parents.  We have no reasons to disbelieve the claim of the said Prashanth H.V.  The OP also did not appear and contested the claim made by the said Sri.Prashanth H.V.  More over the said person is in possession of all the relevant documents pertaining to both these cases.  Since the Prashanth H.V is the only legal heir to his father H.K Venugopal and mother H.K Yashodha, he is entitled to initiate the present proceedings against the OP for the reliefs sought in these complaints.

11. The complainant has produced the copy of letter dated 19.01.1994 issued by the OP calling upon the members to pay additional amount indicated in the said letter towards development charges.  The complainant has produced the copy of the bank challan dated 21.12.1993 to substantiate that his father H.K Venugopal paid a sum of Rs.10,000/- towards the allotment of site to the OP.  He has also produced the copy of the legal notice dated 26.11.2014 issued to OP, so also the copy of the postal acknowledgement in proof of service of the said notice to OP.  In his affidavit evidence the complainant reiterated the allegations made in the complaint.  The affidavit stands unchallenged and we have no reasons to disbelieve the evidence lead in by the complainant and the documents produced by him.

12. In regard to the case of his mother the said Sri.Prashanth H.V produced the copies of bank challans to substantiate the payment made by his mother towards allotment of site in favour of the OP.  He has also produced the copy of the provisional letter of allotment of site dated 22.04.1991 issued by the OP in favour of his mother.  He has also produced the copy of the legal notice got issued by him to the OP and the tracking report issued by the post master to show the service of the said notice on OP.  In the affidavit evidence, the complainant has reiterated the allegations made in the complaint.  As already stated above, the OP despite service of notice did not appear and contest the claim made by the complainant.  We have no reasons to disbelieve the sworn testimony of the complainant so also the documents relied upon by him.

13. The conduct of OP in failing to refund the advance amount paid by Sri.H.K Venugopal and Smt.H.K Yashodha despite repeated requests made by them and a legal notice got issued by their legal heir, amounts to deficiency in service.  The OP has absolutely no reason to with-hold the advance amount paid by the above mentioned members despite their repeated requests and their legal notice.  Therefore, the OP has to be directed to refund the said advance amount together with interest @ 18% p.a from the date of payment till the date of realization.

14. The complainant in complaint No.692/2015 Smt.B.R Usha, to substantiate the allegations made in the complaint filed her affidavit evidence reiterated the allegations made in the complaint.  She also produced the copy of the letter dated 23.09.1986 offer of allotment of site in Mookambika Layout issued by OP in her favour in which the OP has acknowledged the receipt of Rs.43,000/- from the complainant towards the site measuring 40x60 feet and requested the complainant to arrange for remitting of the balance amount of Rs.1,000/- within 30 days from the receipt of the said communication.  It is submitted that despite the willingness of the complainant to remit the balance amount of Rs.1,000/- the OP failed to execute the sale deed in respect of the site in favour of the complainant.

15. When the OP failed to execute the registered sale deed within the time stipulated she demanded the OP to refund the advance consideration amount.  However, the OP failed to respond to her requests and went on seeking time on one or the other pretext.  The OP is duty bound to refund the advance amount to the complainant.  The conduct of OP in failing to refund the advance amount, amounts to deficiency in service.  Therefore, the OP has to be directed to refund the said advance amount of Rs.43,000/- to the complainant together with interest @ 18% p.a.

16. The complainant in complaint No.693/2015 in his affidavit evidence reiterated the allegations made in the complaint.  He has also produced the copy of the letter of allotment of site in Mookambika Layout dated 23.09.1986 issued by the OP allotting him a site measuring 40x60 feet and calling upon the complainant to pay the balance amount of Rs.1,000/- within 30 days from the date of said letter to get the sale deed executed.  The complainant has also produced the copy of the letter dated 24.03.1988 issued by the OP in which the OP has undertaken to refund the advance amount to the complainant in lum-sum or in two or three instalments after 3 months.  However, it is apparent that the OP has failed to refund the advance amount to the complainant as promised by them.  The OPs have also failed to refund the said amount despite service of notice dated 09.10.2014, the copy of which is produced by the complainant.  The conduct of OP certainly amounts to deficiency in service.  Therefore, OP shall have to be directed to refund the advance amount of Rs.43,000/- to the complainant together with interest @ 18% p.a from the date of payment till the date of realization.

17. The conduct of OP in not refunding the advance amount to each of the complainants despite their promise to do so for the last more than two decades must have put the complainants to great hardship, inconvenience and mental agony.  Therefore, the OP shall have to be directed to pay compensation of Rs.10,000/- to each of the complainants together with litigation cost of Rs.3,000/-.

18. In the result, we proceed to pass the following:    

  O R D E R

The complaints filed by the complainants U/s.12 of the Consumer Protection Act, 1986 are allowed in part.

 The OP in complaint No.667/2015 is directed to refund a sum of Rs.10,000/- to the complainant Sri.Prashanth H.V together with interest @ 18% p.a from the date of payment till the date of realization and to pay compensation of Rs.10,000/- for the deficiency in service on their part together with litigation cost of Rs.3,000/-.

The OP in complaint No.668/2015 is directed to refund a sum of Rs.45,000/- to the complainant Sri.Prashanth H.V together with interest @ 18% p.a from the date of payment till the date of realization and to pay compensation of Rs.10,000/- for the deficiency in service on their part together with litigation cost of Rs.3,000/-.

The OP in complaint No.692/2015 is directed to refund a sum of Rs.43,000/- to the complainant Smt.B.R Usha together with interest @ 18% p.a from the date of payment till the date of realization and to pay compensation of Rs.10,000/- for the deficiency in service on their part together with litigation cost of Rs.3,000/-.

The OP in complaint No.693/2015 is directed to refund a sum of Rs.43,000/- to the complainant Sri.B.N Ramesh together with interest @ 18% p.a from the date of payment till the date of realization and to pay compensation of Rs.10,000/- for the deficiency in service on their part together with litigation cost of Rs.3,000/-.

The OP shall comply the order passed by this Forum within six weeks from today.

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

This original order shall be kept in the file of the complaint No.667/2015 and a copy of it shall be placed in other connected files.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 21^st day of September 2015)

MEMBER                            MEMBER                    PRESIDENT

Vln*