COMPLAINT FILED ON: 17.08.2011

DISPOSED ON: 05.12.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM AT BANGALORE (URBAN)

05^th  DECEMBER 2011

       PRESENT:- SRI.B.S.REDDY                      PRESIDENT           

                         SMT. M. YASHODHAMMA     MEMBER

                         SRI.A.MUNIYAPPA                MEMBER

COMPLAINT Nos. 1236/2011 &  1237/2011

C O M M O N O R D E R

SMT. M. YASHODHAMMA, MEMBER

These are the complaints filed u/s. 12 of the Consumer Protection  Act  of 1986  by the respective  Complainants, seeking direction to the Opposite Party (herein after called as O.P) to   register the sites or to pay the sital value, compensation of Rs.5 lakhs and  interest at 24% p.a. or in alternative to refund the amount with interest at 24% p.a. and compensation of Rs.5 lakhs towards mental agony on the allegations of deficiency in service on the part of the O.P.

          As the OP in both the complaints is common, the question involved, relief claimed being the same, in order to avoid repetition of facts and multiplicity of reasoning all these complaints stand disposed of by this common order.

2.    The brief averments as could be seen from the contents of these complaints are as under:

Each complainant became the members of the OP Society in the year 1987,  with an intention to obtain a residential sites OP informed to register the sites firstly at Nagavara then in the proposed Mookambika layout. OP accepted their membership and issued Roll numbers as shown below in the table and collected the amount from the year 1987 to 1997 and gave the pass book. Later on OP informed that sites would be registered at Hosahalli, vijayanagar, Bangalore and demanded additional amount of Rs.50,000/-.  Trusting OP  complainant paid further sum of Rs.50,000/- each.  As per the request of OP domicile certificate and affidavit furnished by each complainant.   Thereafter OP failed to register the sites in favour of the complainants.  Hence complainant get issued legal notice on 16/6/2011 calling upon OP to register the site or torefund the amount with interest at 24% p.a. within 7 days.  Inspite of service of notice there was no response.  For no fault of them complainants were made to suffer both mental agony and financial loss. For the convenience sake details of roll numbers, measurement of site, total amount paid by each complainant, date of payments and date of legal notice are noted below in the chart.

3.      It is the contention of the complainants that they have paid the entire cost of the site on different dates starting from 12/6/1987 to 20/8/1997. The counter foils of pay in slips, pass book issued by OP are produced.  OP has promised to allot a site  first at Nagawara, then at Mookamibika layout at Bannergatta road, Bangalore.  OP failed to register the sites.  OP further assured to register the sites at Hosahalli, Vijaya nagar, Bangalore and demanded additional amount of Rs.50,000/-. each complainant paid further sum of Rs.50,000/- to OP.  Though complainants became the members of OP society in the year 1987, till date OP has failed to register the sites.  There was no proper response since 24 years.  OP neither refunded the amount nor registered the sites. Hence complainants felt deficiency in service on the part of the OP. Under these circumstances they are advised to file these complaints  against OP for the necessary reliefs.

4.      On appearance OP filed the version. The defence set out in both the complaints is almost identical and same. The brief averments made in the version are as under:

5.      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 other 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. 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 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 site deposit amount and prayed for dismissal of the complaints.

6.      In order to substantiate the complaint averments, each one of these complainant filed their affidavit evidence  and produced counter foils of pay in slips, pass book issued by OP, allotment, rules, corresponds, copy of notice, postal receipts and acknowledgements.  On behalf of OP H. Srinivas, Secretary of OP society filed his affidavit evidence in support of the defence version. OP not produced any documents. Heard arguments from complainant’s side  and taken as heard from O.P. side.

7.      In view of the above said facts, the points now that arises for our consideration in these complaints are as under:

       Point No.1:-  Whether each complainant

   proved the deficiency in service

    on the part of the OP?

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

                     entitled for the relief now claimed?

       Point No.3:-  To what Order?

8.      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

9.      At the out set it is not in dispute that each complainant became the member of the OP society on the basis of the propaganda made by the OP who claims to be the house building Co-Operative society with a hope of getting a site. Front OP assured to allot a residential site measuring 30 x 40 ft.  at Nagavara, then at Mookambika layout, Bannergatta Road, Bangalore but failed to register the same.  Further OP assured to allot and register the sites at Hosahalli, Vijaya Nagar, Bangalore and demanded further sum of Rs.50,000/- each.  So paid the said amount on different dates starting from 12/6/1987 to 20/08/1997.  Totally complainant paid Rs.90,000/- and 85,000/- each respectively.  To substantiate this fact complainant have produced the pass book extract issued by OP.  OP has not disputed the fact of receipt of amount.  Now the grievances of each complainant is that though OP collected the entire sital value in the year 1987 to 97 failed to execute and register the sale deed as promised or to refund the amount.

10.    As against the case of the complainants the defence of the OP 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 complainants because the said amounts are used for paying compensation to the land owners by depositing the same with the government and for paying development expenses.

11.    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 complainants 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 complainants. 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 complainants. Having retained the amount for more than 18 years OP accrued wrongful gain to itself and thereby caused wrongful loss to the complainants.

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

13.    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.

14.    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 complainants.  Hence the principles laid down in the above case cannot be made applicable to the present proceedings.

15.    The main relief sought by each complainant is for registration of site.  OP has failed to form the layout.  On the absence of any material that the sites are readily available free from encumbrances at the disposal of OP as on today, we cannot consider the claim of the complainant for registration of sites.  Hence complainant are entitled for the alternative relief of refund of amount along with interest.  Though OP has received the entire sital deposit in the year 1987 to 1997, has failed to form the layout and failed to execute the sale deed or to refund the amount since 14 years.  This act of OP amounts to deficiency in service on the part of  we are satisfied that complainant is able to prove the deficiency on the part of OP. 

16.    In view of the order passed by the Hon’ble K.S.C.D.R.C. in Appeal No.5041/2010 dated 19/8/2011 in similar circumstances against OP modified the order passed by the first Additional District Consumer Forum in C.C.No.2201/2010  dated 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 realisation.  Hence based on the said order we are of the considered view that each complainant is entitled for refund of amount paid along with interest at 18% p.a. as compensation from the date of respective payments till realization and litigation cost of Rs.2000/-.  Accordingly we proceed to pass the following order.

ORDER

          The complaints are allowed in part.

1.      In Complaint No.1236/11 OP is directed to refund a sum of Rs.90,000/- along with interest at the rate of 18% p.a. from the  date of respective payments till the date of refund  and pay  litigation cost of Rs.2,000/- to the complainant.

2.      In Complaint No.1237/11 OP is directed to refund Rs.85,000/- together with interest at the  rate of 18% p.a. from the date of respective payments till the date of realization 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.

This original order shall be kept in the file of the complaint No.1236/2011 and copy of it shall be placed in other respective file.

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

(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   ^th day of December 2011.)

MEMBER                         MEMBER                    PRESIDENT

Rk.