State Consumer Disputes Redressal Commission
M/S Narne Estates (P) Ltd., vs Wing Commander P.Joshi on 12 December, 2011
BEFORE A BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD FA NO.853 OF 2009 AGAINST C.C.No.492 OF 2008 DISTRICT FORUM-III HYDERABAD Between: M/s Narne Estates (P) Ltd., Rep. by its Managing Director Office at NO.1, Gunrock Enclave Karkhana, Secunderabad-009 Appellant/opposite party A N D Wing Commander P.Joshi S/o Srinivasa Rao, aged about 42 yrs Occ: Flight Commander (Avro) 5 Base Repair Depot, AF Station Sulur Kangayampalyam-PO, Coimbatore Tamilnadu-401 Respondent/complainant Counsel for the Appellant Sri K.R.Koteswara Rao Counsel for the Respondent Sri K.Yadagiri Reddy QUORUM: SRI R.LAKSHMI NARASIMHA RAO, HONBLE MEMBER
AND SRI T.ASHOK KUMAR, HONBLE MEMBER MONDAY, THE TWELFTH DAY OF DECEMBER, TWO THOUSAND ELEVEN Oral Order:(Per Sri R.Lakshmi Narasimha Rao, Honble Member.) ***
1. The opposite party assailed the correctness of the order of on the ground that the sale deed could not be executed on account of default committed by the respondent in making payment of development charges and registration charges and that the respondent is not entitled to the registration of the plot. The question of limitation was stated to have been not considered by the District Forum while passing the impugned order.
2. The facts giving rise to filing of the appeal are that the respondent had applied for allotment of a plot and the appellant company allotted the plot bearing NO.86 in Block BB, , Sector IV, at East City. An amount of `5,082/- towards initial payment and membership fees was made on 19-04-1993 and 1-05-1993. The appellant company allotted membership number 52938 in favour of the respondent. The respondent had regularly paid the installments. The respondent has paid the final installment. The respondent addressed letter dated 25-11-1995 with a request to furnish the particulars of the development charges. The appellant company issued reply stating that the development work in BB was not commenced and they would be started in the middle of 1996 which would then be informed to him. The respondent had addressed another letter dated 23.9.2000 with a request for furnishing of details of the amount to be paid towards development charges for which a letter dated 28-09-200 was issued by the appellant company stating that the work in Sector IV was not taken up due to unavoidable reasons and they can offer him alternate plot. During his visit to Hyderabad, the sqn. leader T.V.Ramana Rao(retd) informed him that the development work in Sector IV was not taken up and he would be informed as and when it would be commenced.
3. After a long lapse of time, the appellant company addressed letter dated 24-02-2006 informing the respondent that the allotment of the plot was cancelled for nonpayment of development charges despite intimation being given by various modes of communication. A cheque for Rs.22,500/- was enclosed to the letter. The respondent addressed letter dated 5-06-2006 enclosed thereto the cheque for Rs.22,500/- and informed the appellant company also why the development charges could not be paid. The appellant company sent letter enclosed thereto cheque for `22,500/- informing the respondent that allotment of the plot could not be restored. On receiving the letter, the respondent sent another letter dated 31-07-2006 returning the cheque sent by the appellant company and thereafter the respondent addressed another letter dated 9-04-2006 followed by notice dated 21-05-2006 requesting the appellant company to let him know the development charges and to register the plot in his name.
4. The appellant company has admitted the allotment of the plot in favour of the respondent subject to the terms and conditions of the allotment particularly that the plot would be registered after payment of development charges. The development work in the East City residential project was commenced in phased manner and the appellant company addressed letter dated 27-11-1995 to the respondent and the respondent was informed that he need not pay the development charges at that time. By letter dated 28-09-2000, the appellant company offered the respondent 12 alternative plots as the development work in BB Sector IV was not commenced for which the respondent did not give any response.
5. The appellant company would send quarterly letters informing the members of the details of the development charges and not through the official in person. After waiting for 6 years as the respondent had not paid the development charges ,the appellant company cancelled the allotment of the plot and informed the respondent through letter dated 24-2-2006. The complaint is not filed within the period of limitation from the date of cancellation letter.
6. The respondent has filed his affidavit and the documents Exs.A1 to A15. On behalf of the appellant company its managing director, Col. N. Ranga Rao has filed his affidavit and the Membership Form, Exs.B1.
7. The District Forum has allowed the complaint with a direction for register the plot on receipt of development charges prevailing on 28-09-200 and registration charges prevailing on the date of registration from the respondent besides an award for `10,000/- towards compensation.
8. The point for consideration is whether the impugned order suffers from mis-appreciation of fact or law?
9. The allotment of plot bearing No.86 at East City Sector IV in favour of the respondent is not disputed. It is also not in dispute that the basic cost of the plot `30,000/- . It is evident from the Membership Application Form dated 4.5.1993 issued by the appellant company that the installments @ `1,250/- extending over a period of 14 months were payable commencing from the month of June 1993 and ending in the month of July, 1994. The allotment letter dated 11-05-1993 has a mention of pleasant and congenial neighborhood to the allotted plot. The receipts establish payment of the basic cost of the plot `22,500/- was paid by the respondent
10. The appellant company has issued letter dated 27-11-1995 informing the respondent that the development work did not commence in BB Sector IV and it would be taken up in the mid 1996 and the appellant company would inform the respondent as and when the development work commences in Sector IV. The appellant company has addressed another letter dated 28-09-2000 offering alternative plots Block AA,EE,XX,and WW and it appears the respondent had not given any response thereto. Thereafter, the letter dated 24.2.2006 was addressed with the very same request as was made in the earlier letter.
11. The respondent has got issued notice dated 28.12.2006 of which the complaint is replica and it goes to show that despite the fact that several letters addressed by the respondent requesting the opposite parties for furnishing of the details of the amount due and for registration of the plot in his favour there was no response from the appellant company and the cancellation of the allotment made without assigning any reason nor giving response to the letter of the respondent as also without showing any sufficient cause thereto is not proper and the respondent entitled to the registration of the plot. .
12. The appellant company has not intimated the details of development charges by the quarterly circulars as also whether sanction of the layout was granted to the respondent. There was no such demand as was said to have been made in regard to the payment of development charges. The appellant company can not resort for unilateral cancellation of the allotment without making any demand for development charges. There is no evidence of any sort that the appellant company intimated the development of the project and demanded for the development charges. The respondent has stated that as on the date of filing the complaint the development work in BB Sector IV was not commenced
13. This Commission in V.Madan Mohan Rao Vs Narne Estates Pvt. Ltd., and others reported in II (2010) CPJ 444 dealt with the case where in the similar circumstances, held that there was no sufficient correspondence bringing to the knowledge of the respondent that civil works commenced and the demand for development charges thereto. It was held the opposite parties though stated they have waited for a period of decade and then cancelled the allotment of the plot of the respondent there has been no evidence from their side to suggest that the civil works commenced from such and such date and the respondent was requested to pay the development charges thereto.
14. At the stage of hearing the appeal, the counsel for the appellant company filed Memo stating that the Honble Supreme Court had stayed the operation of the order of the High Court. The counsel for the respondent submitted that the Supreme Court has not granted any stay on the subject matter of the case.
15. Coming to the question of limitation, it was contended by the learned counsel for the appellant company that the complaint was not filed within the period of limitation as the cancellation of the allotment was made on 24.2.2006 and from the date of cancellation of allotment the complaint has to be filed within the period of two years. The complaint is filed on 4-07-2008. The appellant company informed its final decision on 31-07-2006 to the respondent that his request for restoration of the allotment was considered and they could not accede to the request of the respondent. Hence, the cause of action for filing the complaint arose on 31-07-2006 and from that date, the complaint filed is well within the period of limitation as prescribed by Section 24 of the Consumer Protection Act. Even otherwise the cause of action subsists as the statement of the respondent had gone uncontroverted that the development work in BB at Sector IV has not yet commenced as on the date of filing of the complaint and in terms of the agreement the appellant company would demand for development charges when the development work in the Sector IV is commenced. Unless the development work would be commenced, the question of demand for the development charges does not arise and unless the development charges are not demanded, cause of action would be subsisting. Therefore, the objection on the aspect of limitation is without any merits and as such is untenable.
16. The appellant company has stated that it has cancelled the allotment of the plot as the respondent failed to pay the development charges. We have discussed in detail that the appellant company had not intimated about the details of the development charges nor demanded for the development charges. The arbitrary cancellation of the allotment is unsustainable. Therefore, looking at from any angle, the plea of the opposite parties has not been substantiated by evidence either oral or documentary and as such we are not inclined to interfere with the well reasoned findings recorded by the District Forum. The appeal is liable to be dismissed.
17. In the result the appeal is dismissed. The costs of the proceedings quantified at Rs.3,000/-. Time for compliance four weeks.
MEMBER MEMBER Dt.12.12.2011.
KMK*