A housing society cannot forfeit a member's deposits based on an undertaking when it fails to execute the housing project, as such failure constitutes a deficiency in service and unfair trade practice, entitling the consumer to a full refund.

PER : HON’BLE PINKI, PRESIDING MEMBER

JUDGMENT

1. By this judgment, we shall dispose of the appeal filed by the Appellant against the impugned order dated 18.07.2016, passed by Consumer Disputes Redressal Forum-II, (South-I), Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi-110016 (hereinafter referred to as District Forum), in Complaint Case no. CC-429/2005 titled as Asha Jawatkar vs. Rudrakshi Co-operative Group Housing Society Ltd. & Ors. inter-alia praying for setting aside the order passed by the District Forum.

2. While the Appellant was Complainant before the District Forum and the Respondents were Opposite Parties before the District Forum.

3. The facts of the case as per the District Commission record are as under:

“Record reveals that the complaint was filed in the year 1995 and the same was registered as complaint No. 1311/95. The same was dismissed as non-maintainable vide order dated 22.12.1996 passed by the then President and the Members. Record further reveals that the Complainant filed A 711/1996 before the State Commission. The same was allowed vide order dated 10.09.2004. OP No.4 was proceeded exparte vide order dated 01.11.2004. Other OPs were served by way of publication in a newspaper and they were proceeded exparte vide order dated 08.02.2005. Complainant filed exparte evidence by way of affidavit. Vide order dated 30.04.05 our Predecessors allowed the complaint as discussed herein below.

Facts gathered from the complaint and the connected documents reveal that the Complainant became member of OP No.3 on the basis of newspaper advertisement put out by OP No.1 as its so-called secretary. On the promise of the flat in the proposed group housing the Complainant made initial deposit of Rs. 15,000/- in cash on 10.04.1990 and thereafter made farther payment of R 55,000/- towards the land omnes deposit apart from share money as per the details in Annexure A. She further states that these deposits were made by withdrawing funds from the Provident Fund Account of her husband on which 13% interest per annum was being credited. After applying for membership the Complainant was not aware that OP No I was totally being controlled by OP No.2 and his son OP No.3 and on the representations that the land was about to be allotted the Complainant had made payment of land money deposits but to her horror she found that allotment of land by DDA in Dwarka, Papankala Phase-I was cancelled because the OPs did not make the payment despite collecting huge amount of money from the members. Seeing that no such flat would be made available to her, the Complainant resigned from the membership and asked for refund of her deposits with interest 13% per annum. The Complainant's resignation was accepted with a great difficulty after orders were made by the Registrar of Cooperative Societies who also directed for refund of the claim amount but despite all efforts the refund was not forthcoming from OP No.2 & 3 who avoided notices/summons from the Registrar of the Cooperative Societies. The Complainant has claimed principal amount of Rs.70,000/- together with interest @ 13% per annum i.e. the same rate to which her husband would have been entitled to in the Provident Fund Account. In all she has claimed Rs.1.14.123.50upto February, 1995 apart from share money. Thereafter she has claimed interest on the principal amount @ 18% per annum for the period from March, 1995 till the actual date of payment and Rs 2 lacs towards compensation for having being deprived of the opportunity to acquire a flat for causing mental agony and pain.

This Forum vide its order dated 27.04.2005 proceeded exparte against