KNK PROMOTERS & DEVELOPERS vs S.N. PADMINI

This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 by the opposite party (OP) builder/developer against the impugned order dated 19.3.2010, passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (hereinafter referred as ''State Commission''), in Appeal No.2470/2009, KNK Promoters & Developers vs. S.N. Padmini, vide which, while dismissing the appeal, the order passed by the District Consumer Disputes Redressal Forum, Bangalore dated 26.6.2009 in consumer complaint no.2403 of 2008, filed by the present respondent, allowing the said complaint, was upheld.

Briefly stated, the facts of the case are that the respondent/complainant became a member of a scheme formulated by the OP developer under which, a site measuring 60 ft. x 40 ft. valued at Rs.1,10,800/- was to be given to the complainant by the OP builder, inclusive of development charges. It has been stated that the complainant deposited a total amount of Rs.81,000/- in monthly instalments upto 4.8.1998 with the developer. However, the OP instead of completing the project, starting selling the sites to non-members for higher consideration, which amounted to alleged deficiency in service on their part. The complainant issued a legal notice dated 9.7.2008 to the opponent for allotment of site, stating that the complainant was ready to pay the balance amount, if payable. However, on the failure of the OP builder to allot her the site, the consumer complaint dated 17.11.2008 was filed, seeking directions to the OP to allot 60 ft x 40 ft. site in their residential layout and also to pay damages of Rs.10 lakhs with further interest @ 18% per annum.

The complaint was resisted by the OP builder by filing a written reply before the District Forum, in which they stated that the complaint was barred by limitation, having been filed after more than 18 years of the booking. Moreover, the complainant had become a member of the scheme on 8.6.1996 and the duration of the scheme was 48 months only. The complainant failed to make payment of the balance monthly instalments, although an opportunity was provided to her to remit the balance amount, alongwith registration charges and get the site registered on or before 30.4.2004. The OP stated that their staff had gone to the house of complainant''s daughter a number of times, requesting her to make payment of the balance amount, but the same was not paid. There was, therefore, no cause of action for the complainant to file the said complaint, which should be dismissed.

The District Forum, after considering the averments of the parties, directed the OP as follows: "The Opposite party is directed to refund Rs.81,000/- (Rupees eighty one thousand) to the complainant alongwith an interest at 12% p.a. on the respective amount from the respective date of payment, till refund. In addition to the same, the opposite party shall pay a sum of Rs.1,00,000/- (Rupees one lakh) to the complainant by way of compensation and another sum of Rs.5,000/- (Rupees five thousand) by way of cost of litigation. The opposite party is granted 30 days time from this date to comply this order."

The OP builder as well as the complainant challenged the said order by way of appeals before the State Commission. The appeal filed by the OP builder was dismissed, vide impugned order dated 19.3.2010, while the appeal filed by the complainant was dismissed vide order dated 27.9.2010, which reads as follows: "When there is neither the sale of the plot nor refund of the consideration received, then the cause of action for a complaint remains continuous till compliance or refusal. If we take from the date of refusal, this complaint is filed within the limitation period. No doubt, as per the terms of the scheme, the membership stands terminated without any notice in the event of non-payment of three consecutive instalments. But nothing prevented the appellant to terminate her membership and refunded the amount paid by her immediately. Instead of refunding the amount, they remained silent all these years. They have retained the said amount with them without any justification. Since there is no site available for sale in that layout at present and since there is no evidence produced by the respondent to show that sites are available for sale in that layout, we are of the view that the DF is right in directing the OP/appellant to refund the amount paid by the respondent."

During arguments before me, the learned counsel for the petitioner stated that the consumer complaint was clearly barred by limitation and is liable to be dismissed on this ground alone. However, as admitted by the complainant, the payment of last instalment was made in the year 1998, but the legal notice dated 9.7.2008 was also issued after a lapse of 10 years. It had been amply made clear by the petitioner before the consumer fora below that they had provided a number of opportunities and made many attempts to ensure that the balance amount was paid by her, but still the said amount was not paid. There was no justification, therefore, for allowing the said complaint and directing them to refund the money, alongwith interest of 12% p.a. as well as compensation of Rs.1 lakh.

The learned counsel for the respondent, however, stated that the OP builder had not made cancellation of the allotment made in their favour so far. In fact, they were interested to sell the property to some other party, because it would fetch a higher price than that at which the property was sold to the complainant. The order passed by the consumer fora below were, therefore, in accordance with law and should be upheld.

The first issue that requires consideration in the case is whether the consumer complaint in question was barred by limitation or not. The facts as stated and admitted by both the parties indicate that a total amount of Rs.81,000/- was deposited by the complainant with the OP builder for purchase of property measuring 60 ft. x 40 ft. at a total cost of Rs.1,10,800/-. It is also stated by the complainant in the consumer complaint itself that the payment of instalments was made upto 14.8.1998 only. It is also stated further that when the complainant learnt that the OP was selling property to non-members at higher price, she sent a legal notice dated 9.7.2008 for allotment of site, which shows that the said legal notice was issued after a span of about 10 years. Thereafter, the consumer complaint dated 7.11.2008 was filed, seeking directions to the OP to provide the property to her. It is very clear, therefore, that the complainant did not take any steps for a long period of 10 years for obtaining the said property from the OP builder. On the other hand, the case of the OP builder is that they made various attempts to get payment of the balance instalments from the complainant, but they failed to pay the said amount to them. The OP builder further stated in their reply before the District Forum that one of their field staff, Mr. Manohar had repeatedly gone to the house of the complainant''s daughter during the years, 2000-2006 and requested her to make payment of the balance amount. However, they did not make such payment, despite such requests. This version of the OP has not been denied by the complainant anywhere, neither the complainant had offered any explanation as to why they did not make payment of the balance amount.

On the other hand, the OP builder has also not been able to explain as to why they were keeping and enjoying the money deposited by the complainant all these years. They could have cancelled the allotment made in favour of the complainant and made attempts to return the money deposited in terms of the agreement/understanding between the parties, but they did not do so. Since, the part amount deposited by the complainant has been lying with the OP for all these years, it would not be justified to conclude that the complaint is barred by limitation. This is, therefore a case of continuing cause of action, because the OP builder had no right to forfeit the money deposited by the complainant.

The next point for consideration is, whether the compensation awarded by the consumer fora below is justified, based on the facts and circumstances of the case. The District Forum allowed the consumer complaint, giving directions to the OP to refund the amount of Rs.81,000/- deposited by the complainant alongwith interest @ 12% p.a. on that amount from the date of payment till refund. They also directed the OP to pay a sum of Rs.1 lakh as compensation and another sum of Rs.5,000/- as litigation cost. Although, the State Commission put their seal of affirmation on the said order of the District Forum, it is held that the grant of interest @ 12% p.a. on the deposited amount for all these years as well as amount of Rs.1 lakh as compensation shall amount to providing double compensation to the complainant. It has been amply made clear that the property could not be provided to the complainant for their failure to deposit the balance instalments to the OP. The OP has also stated categorically that they made a number of attempts to obtain the balance amount from the complainant, but they failed to do so. In the light of these facts, I do not find any justification on the part of the consumer fora below to have awarded 12% p.a. interest on the deposited amount as well as compensation of Rs.1 lakh to the complainant. The direction to award compensation of Rs.1 lakh is, therefore, ordered to be set aside, but the rest of the directions given in the impugned order are retained. This petition is, therefore, partly allowed and the orders passed by the consumer fora below are modified to the extent that the petitioner shall make the refund of the deposited amount of Rs.81,000/- to the complainant alongwith interest @ 12% p.a. from the date of deposit till payment, within a period of 8 weeks from today. There shall be no order as to costs.