Complaint Filed on:07.05.2014

Disposed on:27.02.2015

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

AT BANGALORE URBAN

27^th DAY OF FEBRUARY 2015

                                                             PRESENT

SRI. J.N.HAVANUR                  : PRESIDENT

                            SMT. M. YASHODHAMMA    : MEMBER        

Smt. H.K. Malathi,

Aged about 46 years,

W/o. Sri. M.N. Radhakrishna,

R/at: “Lakshminarayana”, No. 1525/19/A,

9^th Main, ‘A’ Block, Rajajinagar 2^nd Stage,

Bangalore – 560 010.

(By Sri. N.G. Sreedhar & N.Ravishankar, Adv.) …..    Complainant

V/s.

The Vyalikaval House Building Co-op.

Society Ltd., Office at Sahakara Kunja,

No. 62, 7^th Main Road,

Between 8^th & 9^th Cross, Malleshwaram,

Bangalore – 560 003.                                          …..    Opposite Party

(Exparte)

                  ORDER

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed by the Complainant u/s. 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Party (hereinafter called as OP) to pay Rs.59,000/- along with interest @ 18% P.A, damages of Rs.40,000/- and cost  on the allegations of deficiency in service.

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

The Complainant with an intention to purchase a Site in the layout intended to be formed by the OP in the year 1987 has become a member of the OP Society.  OP called for Application from its members for allotment of Sites in the layout proposed to be formed at Nagawara Cholanayakanahalli, Vishwanathanagenahalli of Gangenahalli called as Chanakyapuri Layout, Bangalore.  Complainant submitted the Application and deposited a sum of Rs.28,000/- on 12.08.1987.  OP has enrolled the Complainant as its member vide membership No. SAS 541 and share allotment Account No. 15121 respectively.  On 12.08.1987 Complainant paid a sum of Rs.28,000/- to OP towards purchase of Site.  Complainant has paid additional sum of Rs.10,000/- on 10.10.1987, Rs. 6,000/- on 19.12.1987  and Rs.15,000/- on 18.10.1993 to the OP.  Totally Complainant has paid a sum of Rs.59,000/- to the OP towards allotment of Site.  OP has issued original allotment letter to the Complainant on 03.06.1988 allotting the Site at Chanakyapuri Layout, but the OP has not at all formed the said layout even after lapse of so many years.  When the OP failed to form any residential layout as per its promise, Complainant requested the OP to refund the amount paid towards sital deposit.  In spite of her several correspondences, telephone talks and personal visits, OP failed to refund the amount.  On 25.03.2002 Complainant wrote a letter calling upon the OP to refund the entire deposit amount of Rs.59,000/- and to cancel her membership and OP has acknowledged the receipt of the said letter on 29.04.2002.  OP in its reply letter dtd. 02.05.2002 has stated that due to paucity of funds they could not start the layout formation work.  The Complainant made several visits to the office of OP demanding for refund of the amount along with interest, but OP on one or the other pretext has failed to honour the legitimate request made by the Complainant, instead kept on postponing their promises to refund the amount on all such demands of the Complainant.   OP vide its letter dtd. 13.06.2002 admitted the deposit made by the Complainant and also informed that same will be refunded as soon as they receive the funds from the Government.  But, OP failed to act upon to refund the deposit amount to the Complainant.  Subsequently on 13.08.2002 Complainant wrote another letter demanding for refund of entire deposit amount as she was in dire need of amount.  OP failed to heed to the legitimate demand made by the Complainant.  On 12.06.2012 Complainant got issued another letter calling upon the OP to refund the deposit amount.  OP vide its reply letter dtd. 14.06.2012 has promised the Complainant that by the end of June 2012 they would refund the deposit amount and as soon as they get the funds, Complainant will be called to receive the amount through Cheque.  But, the promise made by the OP turned out to be false and futile assurance.  Complainant left with no other alternative got issued legal notice dtd. 06.01.2013 through her Advocate calling upon the OP to refund the amount along with interest @ 18% P.A.  OP vide its reply letter dtd. 11.01.2013 has reiterated its false promise that as soon as funds mobilized, amount will be refunded to the Complainant.  Till today OP failed to refund the deposit amount along with interest.  Hence, Complainant has come-up with the present Complaint.  

3.       After registration of Complaint, notice was sent to OP by RPAD.  In spite of service of notice, OP has not appeared before this Forum and contested the matter.  Hence OP was placed exparte and posted the case for filing the affidavit of the Complainant.

4.       So as to prove the case, Complainant has filed her affidavit by way of evidence.  Complainant has also filed written arguments.  We have heard the oral arguments of the Complainant. We have gone through the oral & documentary evidence of the Complainant meticulously.

5.       Smt. H.K. Malathi, who being the Complainant has filed her affidavit evidence in support of the complaint averments stating that in the year 1987 OP called for applications from its members  for allotting the various sites in the layout proposed to be formed by them at Nagawara Cholanayakanahalli, Vishwanathanagenahalli of Gangenahalli called as Chanakyapuri Layout, Bangalore.  Hence, Complainant submitted her Application for allotment of residential site and she deposited a sum of Rs.28,000/- on 12.08.1987.  OP has enrolled the Complainant as its member vide Membership No. SAS 541 and Share allotment Account No. 15121 respectively.  In addition, she has paid a sum of Rs.10,000/- on 10.10.1987, Rs.6,000/- on 19.12.1987 and Rs.15,000/- on 18.10.1993 to the OP towards site purchase deposit.  Thus totally Complainant has paid a sum of Rs.59,000/- to the OP towards allotment of site.  OP has issued provisional allotment letter to the Complainant on 03.06.1988.  OP has not formed the proposed Chanakyapuri Layout even after lapse of so many years.  Hence, she decided to claim refund of the entire amount paid to the OP.  She made several correspondences and personal visits claiming refund of the entire deposit amount from the OP.   Complainant wrote a letter calling upon OP to refund the amount of Rs.59,000/- due to her financial constraints and she has cancelled her membership with the OP and the OP vide its reply letter dtd. 02.05.2002 stated that due to paucity of funds OP could not start the layout formation work.  She made several visits to the office of the OP demanding to refund the entire deposit amount along with interest thereon.  OP on one or the other pretext kept on postponing its promise to refund the amount.  OP in its Letter dtd. 13.05.2002 and 13.06.2002 has admitted that her deposit amount will be refunded as soon as they receive the funds from the Government or from any other sources.  But OP did not care to refund the deposit amount to the Complainant.  On 13.08.2002 Complainant got issued one more letter calling upon the OP to refund her legitimate deposit as she was in dire need of money, but her request went in vain.  On 12.06.2012 Complainant wrote one more letter calling upon the OP to refund the amount.  Again OP vide its reply letter dtd. 14.06.2012 has stated that by end of June 2012 they would refund the deposit amount and as soon as they get funds, Complainant will be called to receive the refund amount through Cheque, but the promise made by the OP turned out to be false and futile assurance.  Hence, Complainant has been constrained to issue legal notice dtd. 06.01.2013 through her Lawyer by RAD calling upon the OP to refund the deposited amount along with interest @ 18% P.A.  OP vide its reply letter dtd. 11.01.2013 has reiterated its false promise that as soon as funds mobilized, amount will be refunded.  Till today OP did not refund the sital deposit amount to the Complainant.  Hence, she prayed to allow the complaint against the OP and to grant relief as prayed in the Complaint.

6.       The above said assertions of the Complainant have remained unchallenged.  OP has neither filed its version nor denied sworn testimony of the Complainant.  So, under the circumstances, we have no reasons to disbelieve the sworn testimony of the Complainant. 

7.       Let us have a cursory glance at the documents produced by the Complainant.  Document No. 1 is the original passbook issued by the OP to the Complainant bearing A/c. No. 15121 wherein the payment of sital  deposit amount of Rs.59,000/- is reflected in the Pass Book as on 18.10.1993.  Document No. 2 is the provisional letter of allotment of the site dtd. 03.06.1988, measuring 2400 Sft. at  Chanakyapuri Layout (Nagawara, Cholanayakanahalli, Viswanathanagenahalli of Gangenahalli Layout).  Document No. 3 is the letter of the Complainant which is duly acknowledged by the OP on 29.04.2002.  Document No. 4 is the reply of OP dtd. 02.05.2002.  Document No. 5 is the Letter of Complainant to OP seeking refund of the amount which is acknowledged by the OP on 13.05.2002.  Document No. 6 is the reply letter of the OP dtd. 13.06.2002.  Document No. 7 is the Letter of the Complainant dtd. 13.08.2002 seeking refund of amount.  Document No. 8 is also letter of the Complainant to OP.  Document No. 9 is the reply of OP dtd. 14.06.2012.  Document No. 10 is the legal notice dtd. 06.01.2013 issued on behalf of the Complainant to OP.  Document Nos. 11 & 12 are the Postal Receipt & Acknowledgement.  Document No. 13 is the reply letter of the OP.

8.       On perusal of the Complaint of the Complainant on the background of oral & documentary evidence, it is clear that the Complainant in the year 1987 has become a member of the OP Society with an intention to purchase a residential site vide Membership No. SAS 541 and share allotment Account No. 15121.  She has paid total amount of Rs.59,000/- to OP as per Document No. 1 from 12.08.1987 to 18.10.1993.  OP has issued provisional allotment letter dtd. 03.06.1988 allotting the site measuring 60’ x 40’ at Chanakyapuri Layout, Bangalore, as per document No. 2.  In spite of repeated requests and correspondences made by the Complainant as per Document Nos. C3, C5, C7 & C8 and legal notice, OP has failed to refund the amount.  OP has given false assurances through its reply letters as per Document Nos. 6, 9 & 13.  Till date OP has neither formed the layout nor refunded the amount to the Complainant.  Complainant having spent her hard earned amount of Rs.59,000/-, neither got the site from the OP nor received the refund of amount paid till date.  The act of OP in not refunding the amount in spite of repeated requests & correspondences amounts to deficiency in service on its part.  We are satisfied that the Complainant proved deficiency in service against the OP.  Under the circumstances, we are of the considered view that the Complainant is entitled for refund of Rs.59,000/- along with interest @ 12% from the date of respective deposits till realization along with litigation costs of Rs.2,000/-. Accordingly, the complaint of the Complainant is partly sustainable. In the result, for the foregoing reasons, we proceed to pass the following:

ORDER

The Complaint filed by the Complainant is allowed in part. 

OP is directed to refund Rs.59,000/- to the Complainant along with interest @ 12% P.A. from the dates of respective payments within 30 days from the date of receipt of this Order, failing which OP is directed to pay interest @ 14% P.A. on the said amount from respective dates of payments to till realization.

OP is further directed to pay Rs.2,000/- towards litigation cost to the Complainant.

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

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 27^th day of February 2015)

MEMBER                                                              PRESIDENT

SSS*

Smt. H.K. Malathi,                 

Bangalore.                                                            …..    Complainant

V/s.

The Vyalikaval House Building Co-op.

Society Limited, Bangalore

Bangalorei – 560 003.                                          …..    Opposite Party

Witness examined on behalf of the Complainant dated 26.07.2014

1. Smt. H.K. Malathi

MEMBER                                              PRESIDENT

SSS*