Date of Filing:14.07.2008<br /> Date of Order:22.05.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> <br /> Dated: 22ND DAY OF MAY 2009<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> COMPLAINT NO: 1564 OF 2008<br /> <br /> Vijayalakshmi Kallurkar<br /> W/o. Late V.N. Kallurkar<br /> R/at No. 505, Block A<br /> Sterling Park, K.G. Halli Road<br /> Sanjeevani Nagar<br /> Bangalore 560091 Complainant<br /> <br /> V/S<br /> <br /> Vishwabharathi House Building<br /> Co-operative Society Ltd., (Regd.)<br /> No. 35, Ratnavilas Road<br /> Basavangudi, Bangalore 560004<br /> <br /> Rep. by its Secretary cum<br /> President, B. Krishna Bhat Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed by the complainant Smt. Vijayalakshmi Kallurkar.<br /> The facts of the case are that complainant is wife of late Venkatesh Kallurkar. He was member of opposite party society applied for site of dimension 60X80’ in Girinagar 4th Phase, Bangalore on 29.05.1995. He had paid Rs. 3,10,000/- at the time of allotment of site. On 15.06.1996 opposite party had issued possession certificate allotting site No. 754. The complainant submitted that her husband has paid Rs. 2,50,000/- to the opposite party society but receipt has not been issued for that amount. The amount was handed over to the president of opposite party Sr. B. Krishna Bhat. Sri Venkatesh Kallurkar died on 27.1.2004 due to Cardiac arrest. In the month of January 2008 opposite party called upon the complainant to pay additional amount. Complainant has paid total amount of Rs. 5,30,000/- in addition to what was paid earlier. Opposite party executed registered sale deed on 07.02.2008 in respect of site No. 493/4 measuring 30X40’ against earlier site of 60X80’. Opposite party issued possession certificate. Opposite party did not show the location of site and site has not been demarked till today. The complainant has come to conclusion that opposite party has betrayed her trust. The conduct of the opposite party caused tremendous mental tension to the complainant. The market value of the site as on 07.02.2008 was Rs. 18,00,000/-. Therefore, the complainant prayed to direct the opposite party to hand over the possession of the site by demarcating the same and issue No Due Certificate and No Objection Certificate and to award compensation for mental agony.<br /> 2. Notice issued to opposite party. The opposite party had put in appearance through advocate and a detailed version running into 10 pages had been submitted admitting that complainant was the member of society. It is admitted by the opposite party that complainant had deposited a total sum of Rs. 8,40,601/- except the said amount opposite party has not received any amount from the complainant. The opposite party has admitted some facts and inability to allot site. The opposite party submitted that the society had approached the Hon’ble High Court of Karnataka seeking for a direction to the BDA to make bulk allotment of instant lands in its favour and various litigations are pending before court of law. The society is not in a position to form layout and allot sites to its members including the complainant. Since the matter is beyond the comprehension and control of the opposite party society the opposite party submitted that the society is ready to refund the deposit amount to the complainant. Society is not in a position to allot and put complainant in possession of site since no site is available in the layout formed by the society. Under the circumstances, the society is left with no alternative than to refund the amount of Rs. 8,40,601/- which had been paid by the complainant and opposite party submitted that they will give cheque to the complainant for the said amount.<br /> 3. Affidavit evidences are filed.<br /> 4. Arguments are heard.<br /> 5. In the light of the arguments advanced by both the counsels of parties the following point arise for consideration: <br /> Whether the complainant is entitled for the refund of the amount? If so, what would be the quantum of amount that could be awarded to the complainant?<br /> 6. During the course of argument the learned counsel for the complainant accepted and agreed for taking refund of the amount with interest and compensation. The learned counsel for the complainant argued that the present market value of the plots at the Girinagar, Bangalore is Rs. 5,000/- per sq.ft. and the opposite party society had received huge amount from the complainant and her husband and executed sale deed without delivering possession of the site and demarcating the same, thereby the opposite party society had committed fraud and cheating. The learned counsel for the complainant argued that complainant is insisting for allotment of site, however, in view of the pendency of litigations in different courts and the opposite party is not in a position to demarcate and hand over possession of the site registered in favour of the complainant, therefore, he has convinced his client to accept for the refund of amount with compensation. The learned counsel for the complainant submitted that opposite party had admitted receipt of Rs.8,40,601/-. The complainant has paid another Rs. 2,50,000/- to the president of the opposite party society Sri B. Krishna Bhat. But, unfortunately, she has no receipt to show the said payment. The learned counsel for the opposite party disputed the payment of Rs. 2,50,000/- to the President. Therefore, without there being any proof or document it is very difficult to accept the case of the complainant that she has paid Rs. 2,50,000/- to the President of the opposite party society. The opposite party society in the defence version has clearly submitted that society is ready to refund the amount deposited by the complainant and the society is not in a position to allot and put the complainant in possession of the site since, the sites are not available in the layout formed by the society. The opposite party society has clearly submitted in the version that society is left with no alternative than to refund Rs. 8,40,601/- which has been paid to society. Therefore, there is no dispute between the parties in respect of amount paid by the complainant. The complainant’s husband had become member of the society in the year 1995 itself and possession certificate was issued to him in the year 1996. Right from 1996 the deceased husband of the complainant V.N. Kallurkar has paid the amount from time to time. Agreement of sale came to be executed in the year 1999 and the opposite party society has also executed sale deed on 07.02.2008. The copy of registered sale deed is produced. In the sale deed also it is clearly mentioned that the member has paid full sale consideration amount. In the sale deed the market value of the site has been shown as Rs. 18,00,000/- as on the date of registration of sale deed. Therefore, on the facts and circumstances I feel it would be just, fair, proper and reasonable to direct the opposite party society to pay Rs. 18,00,000/- to the complainant. This amount would be quite, just, fair and reasonable because in the registered sale deed itself the market value of the site has been shown as Rs. 18,00,000/- as on the date of sale i.e. 07.02.2008. Since, the opposite party society is being directed to pay the amount of Rs. 18,00,000/- the market value shown in the sale deed, it would not be possible or proper again to grant interest on the amount paid by the complainant. This Rs. 18,00,000/- amount will meet the ends of justice. It is very unfortunate on the part of opposite party society that even after receiving huge amount from the complainant and executing sale deed the society is not in a position to identify, demarcate and hand over possession of site. However, complainant had agreed to receive the amount with compensation. The complainant has claimed Rs. 5,000/- per sq.ft. stating that the prices of the sites have gone abnormally high and it is not possible for a common man to purchase site in and around Bangalore. But in the present case the opposite party society is not in a position to hand over the possession of the site. Therefore, the opposite party society is directed to pay Rs. 18,00,000/- to the complainant. In the result I proceed to pass the following:<br /> ORDER<br /> 7. The Complaint is allowed. The opposite party society is directed to pay Rs. 18,00,000/- (market value mentioned in the sale deed) to the complainant within 30 days from the date of this order. In the event of non-compliance of the order within 30 days the above amount carries interest at 12% p.a. from the date of this order till payment / realization. <br /> 8. The opposite party society is directed to pay Rs. 3,000/- as costs of the present proceedings to the complainant.<br /> 9. Send the copy of this Order to both the parties free of costs immediately. <br /> 10. Pronounced in the Open Forum on this 22ND DAY OF MAY 2009. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br />