Vyalikaval hosing soc. V/S elizabath sabastain - Consumer Court Case

Karnataka

Bangalore Urban

CC/08/2563

elizabath sabastain - Complainant(s)

Versus

Vyalikaval hosing soc. - Opp.Party(s)

keshava

07 Feb 2009

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/08/2563

elizabath sabastain						...........Appellant(s)
Vs.
Vyalikaval hosing soc.						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

COMPLAINT FILED: 26.11.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 07th FEBRUARY 2009 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 2563/2008 COMPLAINANT Smt. Elizabeth Sabastian, W/o. Sabastian, Aged about 55 years, R/o No. B-4, Raviudaya Apartment, Opposite to St. Josephs Primary School, Jayalakshmipura, Mysore 12. Advocate (Shanmukhappa) V/s. OPPOSITE PARTY Vyalikaval House Building Co-operative Society Ltd., No. 100. 11th Cross, 6th Main, Malleshwaram, Bangalore 560 003. Represented by its Secretary. Advocate (Shivaramaiah) O R D E R This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant, directing the Opposite Party (herein after called as O.P) to allot a site or in the alternative refund the sital value and for such other reliefs on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant with a fond hope of building his own house at Bangalore, thought of becoming member of the OP house building co-operative society, who is engaged in formation of residential sites and also allotting the said sites to its members. Thus complainant became the member of the OP society in the year 1984. He had applied for an allotment of a site at Billekahalli on Bannerghatta Road measuring 30 X 40 feet. In that regard OP allotted him the Account No. 4335 Roll No. 2091. Complainant paid in all Rs.53,000/- up to November 1993. To his utter shock and surprise there were no developmental activities at all. OP has not formed the layout, sites are not demarked and identified, there were no amenities as promised. Complainant on enquiry came to know that the land acquired by the OP for the formation of the layout under the acquisition proceedings has been quashed. Complainants repeated requests and demands to allot him a site and register the said site have gone in vain. Complainant felt that in a nearest future he is not going to get any site because OP is not going to form any layout as promised. Thus the complainant again felt the deficiency in service on the part of the OP. For no fault of his, he is made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the relief accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to the OP they 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 Honble Supreme Court of India. OP has invested a lot in formation of the layout, paid the lump sum amount to the land owners and the developers. Due to quashing of the acquisition proceedings, society funds 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. Complainant being the member of the OP society, which is a non-profit oriented society, is not entitled to claim the interest. It is further contended that the complaint is hit by sec-71 of the Karnataka Co-operative Societies Act and it is also barred by time. Among these grounds, OP prayed for the dismissal of the complaint. 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced certain documents. OP has also filed the affidavit evidence. Then the arguments were heard. 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order? 5. 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:- Affirmative Point No.2:- Affirmative Point No.3:- As per final Order. R E A S O N S 6. At the outset it is not at dispute that the complainant become the member of the OP society, which is a house building co-operative society engaged in formation of layouts consisting of residential sites of various dimensions with a view to allot the same to its members. It is also not at dispute that the complainant after becoming member in the year 1984 intended to purchase a site at Billekahalli on Bannerghatta Road. Complainant in all paid Rs.53,000/- up to November 1993. OP has not disputed the fact of receipt of the said amount. The documents to that effect are produced by the complainant. There is a sufficient corroboration in between the oral evidence and the documentary evidence produced by the complainant. 7. It is further contended by the complainant that though he paid the sital value in the year 1993 so for so good he is unable to get the site. OP allotted him Account No. 4335, Roll No. 2091, but failed to allot a site and put him in possession. His repeated requests and demands went in vain. Thus complainant felt the deficiency in service on the part of the OP. 8. As against this consistent and unimpeachable evidence of the complainant, OP has come up with the defence that though they acquired required quantity of land, the said acquisition proceedings were quashed by the Honble High Court of Karnataka and it is upheld by the Honble Supreme Court of India. The lands were restored to the possession of the land owners. Soon after the acquisition of the said lands OP has paid the lump sum amount to the land owners and developers, that too in crores. Though the acquisition is quashed, but that money still lies with the land owners and the developers. 9. OP is making hectic efforts to recover the said amount paid to the land owners as compensation, but it is unable to recover the entire amount. It is further contended that there are so many legal hurdles, suites have been filed by the land owners, as such OP is unable to form the said layout within a reasonable time. Though OP has contended much about the legal battle, long standing litigation, orders from the Honble Apex Court, but no such documents are produced to substantiate the said defence including the payment of huge amount to the land owners. 10. Under the circumstances the bare contention of the OP appears to be defence for defence sake. It is further alleged by the OP that the complaint is hit by sec-71 of Co-operative Societies Act. We do not find any force in the said contention. It is further alleged that the complaint is barred by time, there is a lapse of 16 years in lodging the complaint. When OP has received the sital value, till it allots a site to the complainant, complainant will accrue the recurring cause of action. The fact that complainant paid the sital value is not at dispute. The fact that he is making repeated requests and demand every now and then is also not at dispute. 11. OP having retained the said huge amount for all these 20 years without registering the site and putting the complainant in possession has accrued the wrongful gain to itself and thereby caused wrongful loss to the complainant, that too for no fault of his. Here we find a deficiency in service on the part of the OP. Though complainant invested his hard earned money to acquire a site of his own, but his dreams are shattered. OP has not formed the layout and there are no sites available at the disposal of the OP to allot the same to the complainant. It is not known whether in the nearest future OP is able to acquire the land and will form the said layout as promised. Complainant cannot be kept waiting indefinitely. In the interest of justice, we find it is a fit case to direct the OP to refund the sital value with interest and costs. Accordingly we answer point nos.1 and 2 in affirmative and proceed to pass the following: O R D E R The complaint is allowed. OP is directed to refund Rs.53,000/- together with interest at the rate of 12% p.a. from December 1993 till realization and also pay a cost of Rs.2,000/- to the complainant. This order is to be complied within 4 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 07th day of February 2009.) MEMBER MEMBER PRESIDENT p.n.g.

COMPLAINT FILED: 26.11.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 07th FEBRUARY 2009 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 2563/2008 COMPLAINANT Smt. Elizabeth Sabastian, W/o. Sabastian, Aged about 55 years, R/o No. B-4, Raviudaya Apartment, Opposite to St. Josephs Primary School, Jayalakshmipura, Mysore 12. Advocate (Shanmukhappa) V/s. OPPOSITE PARTY Vyalikaval House Building Co-operative Society Ltd., No. 100. 11th Cross, 6th Main, Malleshwaram, Bangalore 560 003. Represented by its Secretary. Advocate (Shivaramaiah) O R D E R This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant, directing the Opposite Party (herein after called as O.P) to allot a site or in the alternative refund the sital value and for such other reliefs on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant with a fond hope of building his own house at Bangalore, thought of becoming member of the OP house building co-operative society, who is engaged in formation of residential sites and also allotting the said sites to its members. Thus complainant became the member of the OP society in the year 1984. He had applied for an allotment of a site at Billekahalli on Bannerghatta Road measuring 30 X 40 feet. In that regard OP allotted him the Account No. 4335 Roll No. 2091. Complainant paid in all Rs.53,000/- up to November 1993. To his utter shock and surprise there were no developmental activities at all. OP has not formed the layout, sites are not demarked and identified, there were no amenities as promised. Complainant on enquiry came to know that the land acquired by the OP for the formation of the layout under the acquisition proceedings has been quashed. Complainants repeated requests and demands to allot him a site and register the said site have gone in vain. Complainant felt that in a nearest future he is not going to get any site because OP is not going to form any layout as promised. Thus the complainant again felt the deficiency in service on the part of the OP. For no fault of his, he is made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the relief accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to the OP they 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 Honble Supreme Court of India. OP has invested a lot in formation of the layout, paid the lump sum amount to the land owners and the developers. Due to quashing of the acquisition proceedings, society funds 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. Complainant being the member of the OP society, which is a non-profit oriented society, is not entitled to claim the interest. It is further contended that the complaint is hit by sec-71 of the Karnataka Co-operative Societies Act and it is also barred by time. Among these grounds, OP prayed for the dismissal of the complaint. 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced certain documents. OP has also filed the affidavit evidence. Then the arguments were heard. 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order? 5. 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:- Affirmative Point No.2:- Affirmative Point No.3:- As per final Order. R E A S O N S 6. At the outset it is not at dispute that the complainant become the member of the OP society, which is a house building co-operative society engaged in formation of layouts consisting of residential sites of various dimensions with a view to allot the same to its members. It is also not at dispute that the complainant after becoming member in the year 1984 intended to purchase a site at Billekahalli on Bannerghatta Road. Complainant in all paid Rs.53,000/- up to November 1993. OP has not disputed the fact of receipt of the said amount. The documents to that effect are produced by the complainant. There is a sufficient corroboration in between the oral evidence and the documentary evidence produced by the complainant. 7. It is further contended by the complainant that though he paid the sital value in the year 1993 so for so good he is unable to get the site. OP allotted him Account No. 4335, Roll No. 2091, but failed to allot a site and put him in possession. His repeated requests and demands went in vain. Thus complainant felt the deficiency in service on the part of the OP. 8. As against this consistent and unimpeachable evidence of the complainant, OP has come up with the defence that though they acquired required quantity of land, the said acquisition proceedings were quashed by the Honble High Court of Karnataka and it is upheld by the Honble Supreme Court of India. The lands were restored to the possession of the land owners. Soon after the acquisition of the said lands OP has paid the lump sum amount to the land owners and developers, that too in crores. Though the acquisition is quashed, but that money still lies with the land owners and the developers. 9. OP is making hectic efforts to recover the said amount paid to the land owners as compensation, but it is unable to recover the entire amount. It is further contended that there are so many legal hurdles, suites have been filed by the land owners, as such OP is unable to form the said layout within a reasonable time. Though OP has contended much about the legal battle, long standing litigation, orders from the Honble Apex Court, but no such documents are produced to substantiate the said defence including the payment of huge amount to the land owners. 10. Under the circumstances the bare contention of the OP appears to be defence for defence sake. It is further alleged by the OP that the complaint is hit by sec-71 of Co-operative Societies Act. We do not find any force in the said contention. It is further alleged that the complaint is barred by time, there is a lapse of 16 years in lodging the complaint. When OP has received the sital value, till it allots a site to the complainant, complainant will accrue the recurring cause of action. The fact that complainant paid the sital value is not at dispute. The fact that he is making repeated requests and demand every now and then is also not at dispute. 11. OP having retained the said huge amount for all these 20 years without registering the site and putting the complainant in possession has accrued the wrongful gain to itself and thereby caused wrongful loss to the complainant, that too for no fault of his. Here we find a deficiency in service on the part of the OP. Though complainant invested his hard earned money to acquire a site of his own, but his dreams are shattered. OP has not formed the layout and there are no sites available at the disposal of the OP to allot the same to the complainant. It is not known whether in the nearest future OP is able to acquire the land and will form the said layout as promised. Complainant cannot be kept waiting indefinitely. In the interest of justice, we find it is a fit case to direct the OP to refund the sital value with interest and costs. Accordingly we answer point nos.1 and 2 in affirmative and proceed to pass the following: O R D E R The complaint is allowed. OP is directed to refund Rs.53,000/- together with interest at the rate of 12% p.a. from December 1993 till realization and also pay a cost of Rs.2,000/- to the complainant. This order is to be complied within 4 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 07th day of February 2009.) MEMBER MEMBER PRESIDENT p.n.g.