COMPLAINT FILED ON: 13.04.2010

DISPOSED ON: 28.02.2011

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

28^TH FEBRUARY 2011

       PRESENT :- SRI. B.S.REDDY                PRESIDENT                        

                         SMT. M. YASHODHAMMA    MEMBER    

                         SRI.A.MUNIYAPPA               MEMBER              

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Parties (herein after called as O.P) to refund Rs.75,472/- along with interest at rate of 21% p.a. i.e. Rs.15,848.10 per year multiplied by 23 years totally Rs.4,39,940/- with future interest and costs on the allegations of deficiency in service.

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

          Complainant became the member of the OP-1 society under the scheme for allotment of residential site measuring 50 x 80 ft. Complainant paid the sital value of Rs.75,472/- in six instalments from 09.03.1985 to 04.04.1994 i.e. Rs.20,000/- on 09.03.1985, Rs.10,472/- on 15.04.1986 Rs.10,000/-, on 15.11.1986, Rs.15,000/- on 04.04.1988 Rs.2,000/- on 15.03.1994 paid to OP2 and Rs.18,000/- on 04.04.1994 totally Rs.75,472/- paid to OP-1 & 2.  The receipts issued by OPs are produced.  OP-1 has issued provisional allotment letter to the complainant dated 15.04.1986 allotting a site measuring 4000 Sq. ft. Situated at Bannergatta housing project consisting of Devana chikkanahalli, Kodi Chikkanahalli, Honga Sandra, Arekere villages.  OP-1 assured the complainant that site would be allotted in due course; complainant waited for long time. Complainant made regular correspondences with OPs right from the year 1984 regarding the allotment of site, requesting OP-1 for allotment of site but there was no response. After waiting for more than 20 years, Complainant got issued a legal notice on 04.03.2006 calling upon OP-1 to hand over the site; as per the terms of the allotment. In reply OP-1 has stated that it has lost it lands due to Judgement of the Hon’ble Supreme Court. And Hon’ble High Court of Karnataka has passed some orders; as per the said orders the Government of Karnataka has to allot 200 Acres of land to the OP-1 society and OP-1 is pursuing the government for early allotment of land. After the allotment of land the members would be informed by the society with regard to refund. The land acquisition officer has not yet recovered the amount of compensation which was paid to the landlords and society is trying to mobilise the funds. As soon as OP gets sufficient funds the refund will be made accordingly.  Complainant got issued another legal notice dated 02.12.2009 to OP-1 seeking for refund of the amount with interest within 10 days but there was no response from OP-1.  Inspite of lapse of 23 years still OPs are making false assurances that it would allot site or refund the amount with interest.  Inspite of repeated requests and correspondences when OPs failed to refund amount or to allot site as assured. Complainant felt deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint for necessary relief’s.

3.      On appearance OP-1 filed the version mainly contending that OP-1 made bonafide attempts to acquire 249 acres of land to form the layout same; could not be completed in view of the Stay Order granted by the Hon’ble High Court of Karnataka in W.P. No.8872/1986. OP has deposited Rs.71,99,565/- towards conversion fine establishment and audit charges. Rs.37,15,675/- towards land value of general award amount and Rs.1,50,07,839/- towards land value of consent award. Final notification has been set aside by Hon’ble High Court of Karnataka in W.P. No.17429 to 17493/1986. On 18.06.1991. SLP preferred by OP-1 dismissed by Hon’ble Supreme Court. In Revision State ordered to restore the land to the respective land owners; Acquisition was struck down by Hon’ble Supreme Court. Process of land acquisition comprises of many stages; Many landlords obtained stay for acquisition proceedings. Acquisition stopped. The complaint is barred by limitation. Question of paying interest will not arise. OP-1 exhausted all its funds. OP-1 is liable to pay only interest at the rate of 6% p.a. from the date of complaint as held in R.P.No.565/2002 as per order of the NCDRC in Amar Jyothi House Building Co-operative Society’s case. Among other grounds OP-1 prayed for dismissal the complaint.

4.      On appearance, OP-2 filed the version admitting the fact that OP-1 is a house building Co-Op society formed under the name and style Vyalikaval house building Co-Op society as correct. The object of the society was to allot residential sites to the applicants on obtaining membership in association with Indraprastha welfare society is denied by OP-2. It is contended by OP-2 that it is only a charitable society and members have joined to it for charitable purposes.  Complainant became the member of OP-1 under the scheme for allotment of site made in the year 1986 is not within the knowledge of OP-2. Till date OP-2 has received only Rs.1,000/- from the complainant towards donations and charitable purposes of OP-2. OP-2 is not discharging any services for consideration.  Hence complainant is not consumer. Syndicate Bank Staff willing was forming for the benefit all the staff of this Syndicate Bank.  It was the predecessor of OP-2. It ceased to exist in 1998 and the same was changed to that of OP-2.  The OP-2 is not a housing society it is a social service organization. Complainant sought help of OP-2 and joined as member with a intention to render social services to the public at large. The members of the OP-2 including complainant were very keen on acquiring housing sites at Bangalore. Members jointly decided that OP-2 should undertake housing activities with respect to welfare of its members. The complainant admitted in his complaint that OP-2 was only liasoning officer between members and OP-1 towards allotment of sites OP-2 was never involved in information or procuring site as described by the complainant.  The owners of the lands have not returned advance amount given by the OP-1. The said amount for the advance payment received by OP-1 from its members including complainant. There has been no proper response from government. The government is yet to initiate any process to recover said amount from the landlord and remit the same back to OP-1.  OP-2 is nowhere liable to pay compensation to the complainant and nor provide him with any site. OP-2 was only helping the complainant and infact it has not collected any amount from complainant towards the site advance. The amount collected in favour OP-1 was directly remitted to OP-1. Complainant has any dispute, same has to be sorted out with OP-1 and government of Karnataka.  The donation received by are subject to condition that the amounts so received shall form part of the corpus of the society and cannot be refunded and shall be spent for the social and welfare activities as mentioned in its memorandum. Among other grounds OP-2 prayed to dismissal the complaint.

5.      In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced receipt issued by OP, correspondences, provisional allotment letter, receipt issued by OP-2, copy of the legal notice, copy of the reply, copy of the legal notice dated 04.03.2006 and 16.02.2008 and 01.12.2009. On behalf of OP H.Srinivas, Secretary of OP society filed his affidavit evidence and produced any document. On behalf of OP-2 U.S.A Nayak, Secretary of OP-2 society filed his affidavit evidence and not produced any documents. OP-1 & 2 submitted their written arguments. Heard oral arguments from the complainant and taken as heard from OPs side.

6.      From the above pleadings the points now that arise for our consideration in this complaint are as under:

  Point No.1:- Whether the complainants have proved

                     the deficiency in service on the part

                       of the OPs?

Point No.2 :- If so, whether the 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 affidavit and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on the above points are:

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 in dispute that the complainant became the member of the OPs on the basis of the propaganda made by the OP-1 who claims to be the House building Co-Op society, with a hope of getting a site.  OP-1 assured to allot a residential site measuring 50 x 80 fts. situated at Bannegatta Housing Project consisting of Devana Chikkanahalli, Kodi Chikknahalli, Honga Sandra, Arekere Villages.  Complainant paid entire sital value of Rs.73,472/- in six instalments on various date from 09.03.1985 to 04.04.1994 to OP-1. The receipts issued by OP-1 are produced.  Further OP-1 issued provisional allotment letter to the complainant dated 15.04.1986 allotting a site measuring 4000 Sq.ft. at the above mentioned project.  OP-1 has not disputed the fact of receipt of the amount.  The documents to that effect are produced by the complainant. Now the grievance of the complainant is that though OP-1 collected the entire sital value and membership fees failed to execute and register the sale deed as promised or to refund the amount.

9.      As against the case of the complainant the defence of the OP-1 that due to legal hurdles it is unable to complete the project and whatever amount they have received from the complainant is paid to the developers and deposited towards compensation payable to landlords with the government etc. but OP-1 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-1 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 security of the defence set out by OP-1 it can be made out that OP-1 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-1 was aware of the fact that it is unable to complete the project, it would 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-1 in not refunding the sital value to Complainant. The approach of the OP-1 does not appear to be fair and honest. Having retained huge amount for all these years, OP1 accrued wrongful gain to itself and thereby caused wrongful loss to the complainant that too for no fault of him. The hostile attitude of the OP-1 must have naturally caused both mental agony and financial loss to the complainant.  OP-1 cannot wash of its hands by taking defence of legal hurdles of quashing of acquisition proceedings.

11.     We are unable accept the defence of the OP-1 that the complaint is barred by limitation. When once OP-1 accepted the deposit towards sital value, with a promise to allot site to the complainant, till OP-1 allot and execute the sale deed, recurring cause of action will accrue to the complainant.

12.    OP-1 has made the complainant to wait for more than 16 years.  Though complainant has invested his hard earned money to acquire a site of his own but his dreams remained unfulfilled.  OP-1 has not formed the layout and there are no sites available at the disposal of the OP-1 to allot the same to the complainant. Relief claimed by the complaint is for refund of amount with interest at 21 % p.a. for 23 years. Complainant has not claimed damages or compensation.  Hence same cannot be granted.  Since payment of Rs.2,000/- made to OP-2 is towards donations. Hence complainant cannot claim refund of the same.

13.    In our view the complainant is entitled for refund of amount deposited. Interest claimed at the rate of 21% p.a. on the deposited amount is on higher side. OP-1 could not complete the project of forming the layout and allot the sites for the reason the acquisition proceedings acquiring the lands for formation of layout was quashed.

14.    From facts and circumstances it is clear that complainant is entitled for reasonable interest on the sital value paid by the complainant. As in the earlier proceedings of similar nature against the OP-1 interest has been awarded at 12% p.a. Under these circumstances we are of the view that the ends of Justice would be met by directing OP-1 to refund the amount with 12% p.a. and litigation cost of Rs.1,000/- to the complainant.  Accordingly we proceed to pass the following:

ORDER

          The complaint is allowed in part.  OP-1 is directed to refund Rs.73,472/- together with interest at the rate of 12% p.a. from the respective date of payments till realization and litigation cost of Rs.1,000/- to the complainant. 

          Complaint against OP-2 is dismissed.

This order is to be complied within four weeks from the date of its communication.

(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 28^th day of February 2011.)

                                                  PRESIDENT

MEMBER                                          MEMBER             

gm.