State Consumer Disputes Redressal Commission
Chirugudu Kalpana, W/O Ch. Ravi Kumar vs Narne Constructions Pvt. Ltd, on 9 July, 2012
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT : HYDERABAD. CC 70 /2009 & CC 71/2009 CC 70/2009; Between : Chirugudu Kalpana, W/o Ch. Ravi Kumar Aged about 33 years, Occupation, household, R/o plot no.725, 21st Main, 19th cross, Sector II HSR Layout, near Water Tank, Bangalore Rep- by: her GPA Holder Sri J. Srinivas Rao, S/o. Gurumurthy, aged about 61 years, Occ:Retd Government employee R/o plot no. B207, Sri Sai Rajendra Prestige, H.No 10-2-276m Street No.5 West Maredpally, Secunderabad-500 026 . Complainant And Narne Constructions Pvt. Ltd, 10 Gunrock Enclave, Secunderabad- 500 009,rep.by its chairman Opposite party Counsel for the Appellant : M/s. Chavali Ramanand Counsel for the Respondent : M/s.K.R. Koteswara Rao CC 71/2009 Between: Chirugudu Kalpana, W/o Ch. Ravi Kumar Aged about 33 years, Occupation, household, R/o plot no.725, 21st Main, 19th cross, Sector II HSR Layout,near Water Tank, Bangalore Rep- by: her GPA Holder Sri J. Srinivas Rao, S/o. Gurumurthy, aged about 61 years, Occ:Retd Government employee R/o plot no. B207, Sri Sai Rajendra Prestige, H.No 10-2-276m Street No.5 West Maredpally, Secunderabad-500 026 . Complainant And Narne Constructions Pvt. Ltd, 10 Gunrock Enclave, Secunderabad- 500 009,rep.by its chairman Opposite party Counsel for the Appellant : M/s. Chavali Ramanand Counsel for the Respondent : M/s. K.R. Koteswara Rao Coram : Sri R. Lakshminarasimha Rao . Honble Member
AND Sri T.Ashok Kumar Honble Member Monday, the Nineth Day of July Two Thousand Twelve Oral Order : ( As per Sri T. Ashok Kumar, Honble Member) * * *
1). These complaints are files by the same complainant against the same Opposite party in respect of plot nos.480 and 162 of Central Park, Phase III, situated in survey no. 218/9 (P), Kondapur village, Serilingampally Mandal, R.R District. Since similar facts, defence and law are involved in both the cases we intend to dispose of both the cases by a common order as under:
2). The brief facts of the complaint in CC 70/2009 are as under:
Having attracted with the advertisement of the OP the complainant became subscriber vide membership No. 30830 to purchase plot no.480 admeasuring 300 sq.yards in Central park, Phase III, situated in survey no. 218/9(P), Kondapur Village, Serilingampally Mandal, RR district for a total cost of Rs. 4,08,000/- in the month of July, 1988 and the complainant paid initially Rs.1,15,000/- and agreed to pay Rs.35,000/- by the end of August,1988 and remaining amount of Rs.2,58,000/- in 18 monthly equal instalments @ Rs. 14000/- per month commencing from September,1988 till December,2000 and the balance of Rs. 6000/- in the subsequent month. The complainant also paid membership fee of Rs.500/- so also total cost of plot as per payment schedule and then OP executed an agreement of sale in the month of January, 2001 in favour of the complainant in respect of the said plot wherein it was agreed to execute the sale deed in due course after making all the requisite developments of road, drainages, avenue plantation, street light etc. In spite of repeated request made by the complainant OP dodged the issue on one pretext or the other and postponed execution of the sale deed. Thereafter OP addressed a letter dt. 21.05.2009 to the complainant informing that there are some disputes regarding the property and proposed either to pay the amount received by them along with interest @ 9% PA or execute a registered sale deed for some other plot situated in east city Bibinagar lake of Nalgonda District. The complainant enquired into the matter and came to know that there were no disputes with any third parties or the government and since the prices of the lands raised steeply since 1998, OP did not execute registered sale deed in favour of the complainant. The market value of the complainants plot as on 01.08.2009 was more than Rs. 90 Lakhs and the complainant is bound to pay the said amount along with interest. Deliberately and with malafide intention to defraud the complainant and to make unlawful gain OP evaded to execute sale deed. The plot at East city is not comparable with that of the plot at Central park Phase iiii IN ANY MANNER and therefore the complainant is not interested to have an alternate plot. The complainant cannot be made to suffer for no fault on her side. The acts of OP amount to deficiency in service and hence the complaint to direct the OP to execute sale deed in respect of plot 480 aforesaid or alternatively to pay a sum of Rs.90 lakhs being the market value of the complainants plot as of now along with subsequent interest @ 36% per annum from 01.08.2009 till the date of actual payment, Rs. 5 lakhs towards compensation for mental agony etc and costs of the litigation.
3). OP filed counter opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts of the counter are as under:
The complainant has no locus standi as she is neither consumer nor the OP company is a service provider. The relief seeking a direction for execution of a sale deed is a pure case of specific performance of contract and declaration and therefore the complaint has to approach competent civil court for specific performance if at all there is breach of contract but not by way of consumer dispute and therefore consumer complaint is liable to be dismissed and this commission has become quorum non judis. In spite of repeated reminders the complainant did not clear the accrued and outstanding dues and get the plot registered in her name. The complainant was informed about development and revised registration charges, registration and ULC charges and also as to the cause of delay in obtaining HUDA approval but she did not pay the developmental charges etc. As per the directions of HUDA the OP had undertaken many additional works that is elaborate rain harvesting net work created to ensure recharging of ground water levels and deployed qualified and well experienced horticulturist and carried out land skapping parks and well planned high catching parks so also deployed personnel to guard them from illegal encroachment and thus incurred huge expenses. But in spite of the request made by the OP the complainant did not pay the developmental charges to OP. Therefore OP also offered a similar size plot in another venture but the complainant did not accept the same. There are no tenable grounds to allow the complaint and thus prayed to dismiss the complaint.
4) In the additional Version the OP contended that the complainant is a resident of Banglore and joined as member in the venture of OP to purchase plots referred to in the present complaint and CC 71/2009 only for resale to third parties at higher rate after increase of the rates of the plot for profit and thus the complaint is not a consumer and does not come under the purview of the C.P Act.
5) The complainant filed rejoinder and contended that the plots were purchased by her for herself and for the enjoyment of her relatives and therefore she comes within the meaning of consumer and that she is not intending to do any real estate business to earn profits and alternatively also contended that even assuming without admitting that if she sells the plots at some later stage the same would not be with a profit motive and it does not amount to commercial purpose and thus prayed to allow the complaint.
6) In CC 71/2009, the facts are similar and plot number is 162 admeasuring 300 sq. yards in Central Park Phase III situate in survey no. 218/9 (T), Kondapur Village, Serilingampally Mandal, R R District. Total cost of the plot is Rs.
22,50,000/- and initial payment is Rs. 11,50,000/- remaining amount of Rs. 11,100/- to be paid in four quarterly equal instalments of Rs.
3 lakhs each commencing from November, 2005 and last instalment in December, 2006 and that she paid entire cost. The defense, rejoinder and prayer are similar to that of the earlier case.
7). In CC 70/2009 bothsides filed evidence affidavits reiterating their respective pleadings and Ex. A1 to A16 were marked on behalf of the complainant and Ex. B1 to B5 were marked for the OP.
8). In CC 71/2009 both sides filed evidence affidavits reiterating their respective pleadings and Ex.A1to A12 were marked on behalf of the complainant and Ex.B1 to B3 were marked for the Op.
9) Heard both sides with reference to their respective contentions in detail and further written arguments submitted by OP in both the cases.
10) Now the points for consideration in both the cases are
i) Whether the State Commission has jurisdiction to entertain the complaint.
ii) Whether there is deficiency in service on the part of OP and if so whether the complainants are entitled for the reliefs as prayed for?
11) Point No.1:
The first foremost objection raised by the OP is that the complaint does not fall under the provisions CP Act and therefore the State Commission has not jurisdiction to entertain contractual obligations and grant the relief in the nature of specific performance and that such powers are conferred on the competent civil court only and therefore the this Commission has become Quorum non judicis. Whereas the complainant contends that since OP offered its service to sell developed plot in her favour she is consumer and the OP is service provider. In several decisions of the Honble Supreme Court of India and Honble National Commission held that the development of land for purpose of selling it as plots and house sites after duly adding value by way of providing infrastructure, obtaining lay outs and other permissions from the local government etc. constitutes by itself a kind of service and in that view of the matter when a person purchases a plot from the developer he not obly purchased the plot but also the service associated with it. The decision of Supreme Court in Fakir Chan Gulati Vs. Uppal Agencies Pvt. Ltd.
Reported in 2008 (4) CPR 449 (SC) supports the said proposition. In a very recent decision dated 10.05.2012 the Honourable Supreme Court of India in Civil appeal Nos. 4432 4450 of 2012 arising out of SLP nos. 3499 - 3517 of 2011 in between M/s. Narne Construction (P) Ltd etc and Union of India and amp ors, etc held confirmed the said view. Therefore, the objection of OP with regard to jurisdiction aspect holds no water and hence the issue no.1 is decided in favour of the complainant and against the OP.
12) It was held that since the complainant purchased a plot from the OP/developer he comes within the meaning of a consumer. Further, the Honble High Court of A.P. in Batch of writ petition nos.
28246 of 2009 etc. vide orders dated 13.08.2010 reported in 2011 (1) ALT 702 Division Bench between Narne Constructions Private Ltd Vs. Union of India, represented by its Secretary, Ministry of Consumer Affairs, Food and Distribution, New Delhi and others held that consumer Fora do not suffer lack of jurisdiction to entertain complaints in such matters. Therefore, the contention of the OP on the point of jurisdiction and also that the complainant is not a consumer does not hold any water and as such it is decided against the Ops.
13) Point No.2:
There is no dispute that the complainant joined as Member in the venture promoted by the to purchase plot no. 480 pertaining to CC No. 70/2009 and plot No. 162 pertaining to CC.No. 71/2009 in the said venture and paid Rs.4,08,000/- and Rs.22,50,000/- and Ex.A1 to A6 support the same and that none of the said plots were registered in her favour. Op did not choose to controvert the same and therefore the said aspect is believed as true for the purpose of these cases. The grievance of the complainant is that in spite of her paying total sale consideration of the plots aforesaid the OP did not execute registered sale deeds in her favour deliberately on account of escalation in the prices of the plots and that it amounts to deficiency in service on its part. On the other hand, the contention of the OP is that since there was hurdle in obtaining final sanction layout from the ULC authority claiming the land in the layout is celing surplus it incurred some expenditure so also for developmental activities for laying road, drainages, avenue plantation, street light etc. Therefore OP demanded the complainant to pay developmental charges by issuing legal notice but the complainant did not pay the same and thus the plots could not be registered in her favour and that there is no deficiency in service on its part. It is also contended that as per clause 7 of terms and conditions of Ex.B5 in case of default or withdrawal the company reserves the right to cancel the allotment of the plot and therefore the complainant is not entitled to get the reliefs sough for except refund of money after deducting service charges. According to OP, subsequent to the entering into agreements with the complaint ULC problem cropped up. It is true that the complainant did not pay any development charges, ULC and registration charges. Demand of the OP to pay ULC litigation charges and developmental charges are arbitrary because the complainant was not informed about such payments in future. A duty is cast upon the OP to obtain all necessary permissions and sanctions and then only to float the venture for sale of plots to its customers but cannot squeeze money on such grounds or on some untenable grounds and on the other hand it has to bear such expenses if any from and out of it profits. The development charges cannot be considered as cost of the plots. OP did not establish with any convincing material that it undertook such and such developmental activities the site and that it incurred such and such expenditure and that on ratable distribution the complainant is liable to pay any such additional development charges. At the most OP is at liberty to file a civil suit and recover the same by establishing its right but cannot refuse registration of sale deeds. The acts of OP in not registering the plots even after receiving total sale consideration amounts to deficiency in service and unfair trade practice. In the circumstances of the case, be hold that the complainant did not become defaulter in respect of the said plots and therefore question of cancelling her membership taking aid of clause 7 of Ex.B5 does not arise. In the circumstances described supra, the decision referred to in the written arguments reported in CPR (NC) 2 (2010) 343 between Manpreethkaur Vs. Vice chairman, Meerut Development authority and others is not helpful for the OP to decide the point in its favour. In spite of receiving total amount, the OP did not execute sale deed and deliver the possession of the plots to the complainant till date and thus the cause of action continues. When there is no comparison between the plots in question with that of the plots situated at East city in Bibinagar it is not desirable to compel the complainant to accept alternative plots. It is much more so when it is not acceptable to her. It is true that this commission in CC 20/2008 vide orders dated 10.11.2010 directed the OP to refund the amount received towards plot cost earlier with interest but in a recent decision this Commission in FA No. 410/2009 vide orders dt.
4.6.2012 in similar circumstances directed OP to execute registered sale deed on payment of registration charges as on the date of registration after obtaining all required permissions and layout sanctions and the cost of OP are alternatively to refund the cost of plot together of the plot together with 9% interest from the date of and also to pay compensation for mental agony and discomfort etc. The claim of the complainant for RS. 90 lakhs in each case in very exorbitant and there are no comparable sale deeds on record showing such rates during relevant time. Hence Ex. A8 to A10 valuation are not helpful for complainant. Thus point no.2 is answered accordingly mostly in favour of the complainant.
14. In the result, the complaint in CC 70/2009 allowed and the OP is directed to execute registered sale deed in respect of the plot bearing Nos. 480 of Central Park, Phase III, situated in survey no. 218/9 (T), Kondapur village, Serilingampally Mandal, RR. District in favor of the complainant after obtaining ULC clearance and other required permission for valid execution of sale deed at the cost of OP on payment of prevailing stamp duty and registration charges required for registration of such sale deeds by the complainant and deliver possession of the plot to her. The OP shall take all necessary steps to expedite the proceedings pending before ULC authorities and other Governmental Organizations in the said context. If required permission are already granted the OP is directed to execute registered sale deed in respect of the said plot in favour of the complainant within six weeks for the date of receipt of this order.
OR to refund Rs.4,08,000/- towards sale consideration paid by the complainant to the OP towards the plots in question with interest @ 9% P.A. from the date of respective payments till the date of realization, Rs.60,000/- towards compensation for mental agony and Rs.5,000/- towards costs of the litigation. Option is given to the complainant to choose either of the reliefs so granted.
15. In the result, the complaint in CC 71/2009 is allowed and the OP is directed to execute registered sale deed in respect of the plot bearing Nos. 162 of Central Park, Phase III, situated in survey no.218/9(T), Kondapur Village, Serilingampally Mandal, RR.
District in favour of the complainant after obtaining ULC clearance and other required permission for valid execution of sale deed at the cost of OP on payment of prevailing stamp duty and registration charges required for registration of such sale deeds by the complainant and deliver possession of the plot to her. The OP shall take all necessary steps to expedite the proceedings pending before ULC authorities and other governmental organizations in the said context. If required permitted are already granted the OP is directed to execute registered sale deed in respect of the said plot in favour of the complainant within six weeks from the date of receipt of this order.
OR to refund Rs.22,50,000/-towards sale consideration paid by the complainant to the OP towards the plots in question with interest @ 9% P.A. from the date of respective payments till the date of realization, Rs.3,37,500/-towards compensation for mental agony and RS.10,000/- towards costs of the litigation. Option is given to the complainant to choose either of the reliefs so granted. In the event of the complainant opting for refund of the cost of the plot , op is directed to pay the amount ordered supra within six weeks from the date of information about the said option to OP.
MEMBER MEMBER DT:
09-07-2012.CC.NO.70/2009
Chirugudu Kalpana (Complainant) And M/s.Nrarne Constructions Pvt Ltd (Opposite Party) Chief affidavit of Complaint filed and Ex.A1 to A16 marked.
List of Documents filed and Ex.B1 to B5 marked.
APPENDIX OF EVIDENCE EXHIBITS MARKED For the complainants Ex. A1 Membership and Plot allotment letter, dated 21.7.2008 Ex. A2 Local Map Ex. A3 Brochure containing information of the Central Park Venture, dated March 1.
Ex. A4 Receipt No. 16023 and Statement of Account, dated 18.12.2000 Ex. A5 Receipt No. 191003 and Statement of Account, dated 05.10.2006 Ex. A6 Agreement of Sale, dated January 1.
Ex. A7 Letter addressed by the O.P, dated 21.05.2009 Ex. A8 Valuation Certificate issued by the concerned registrar, dated 29.7.2009 Ex. A9 Valuation Certificate issued by the concerned registrar, dated 29.07.2009.
Ex. A10 Valuation Certificate issued by the concerned registrar, dated 28.07.2009 Ex. A11 General Power of Attorney, dated 27.07.2009 Ex. A12 Letter issued by the OP to the Complainant, dated 15.3.2010 Ex. A13 Membership and plot allotment letter, dated 30.08.2005 Ex. A14 Location Map Ex. A15 Receipt No. 191001 and Statement of Account, dated 05.10.2006 Ex. A16 Letter addressed by the O.P, dated 21.05.2009 Opposite parties:-
Ex.B1 Letter No. NE/CP III /R/30830/2010 addressed to the complainant by opposite party, dated 15.03.2010 Ex.B2 Letter No. NC/CP-III/R/30830/1073/2009 addressed to the complainant by opposite party, dated 21.05.2009.
Ex.B3 Letter No. NE/CP/30830/9581/2008 addressed to the complainant by opposite party, dated 02.07.2008.
Ex.B4 Letter No.NC/CP-3/30830/67/2004, dated 03.01.2004.
Ex.B5 Membership Application form of the complainant, dated 16.07.1998 C.NO.71/2009 Chirugudu Kalpana (Complainant) And M/s.Nrarne Constructions Pvt Ltd (Opposite Party) Chief affidavit of Complaint filed and Ex.A1 to A12 marked.
List of Documents filed and Ex.B1 to B3 marked.
APPENDIX OF EVIDENCE EXHIBITS MARKED For the complainants Ex. A1 Membership and Plot allotment letter, dated 21.07.2008 Ex. A2 Location Map Ex. A3 Brochure containing information of the Central Park Venture, dated March 1.
Ex. A4 Receipt No. 16023 and Statement of Account, dated 18.12.2000 Ex. A5 Receipt No. 191003 and Statement of Account, dated 05.10.2006 Ex. A6 Agreement of Sale, dated January 1.
Ex. A7 Letter addressed by the O.P, dated 21.05.2009 Ex. A8 Valuation Certificate issued by the concerned registrar, dated 29.07.2009 Ex. A9 Valuation Certificate issued by the concerned registrar, dated 29.07.2009.
Ex. A10 Valuation Certificate issued by the concerned registrar, dated 28.07.2009 Ex. A11 General Power of Attorney, dated 27.07.2009 Ex. A12 Letter addressed by the OP to the Complainant, dated 15.3.2010 Opposite parties:-
Ex.B1 Letter No. NE/CP III /R/30913/2010 addressed to the complainant by opposite party, dated 15.03.2010 Ex.B2 Letter No. NC/CP-III/R/30913/1073/2009 addressed to the complainant by opposite party and postal receipt , dated 22.05.2009.
Ex.B3 Membership Application(30913) form of the complainant, dated 18.08.2005 MEMBER MEMBER Date: 09.07.2012 * KVR