State Consumer Disputes Redressal Commission
Gvsn Murthy S/O.Late Subbaiah ... vs M/S Suchir India Infratech (P) ... on 11 December, 2013
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD C.C.NO.118 OF 2012 Between GVSN Murthy S/o.late Subbaiah Aged about 61 years, Indian, Occ:Retd.Bank Officer, R/o.D.No.10-3-125/2, Lane No.4, Street No.3, Teachers Colony, East Marredpally, Secunderabad. Complainant A N D 1. M/s Suchir India Infratech (P) Ltd., (Formerly known as Suchir India Developers (P) Limited), Regd.Office 50-B, Journalist Colony, Jubilee Hills, Hyderabad-500 002 rep. By its Managing Director. 2. M/s Suchir India Infratech (P) Ltd., Formerly known as Suchir India Developers (P) Limited, Flat Nos.107 & 108, 1st floor, D.No.12-13-97, Mudra Tara Tycoon Opp:Aradhana Theatre, Beside Big Bazar, Tarnaka, Secunderabad-500 017. Rep. By its Chief Manager. Opposite parties Counsel for the Complainant : M/s.V.Gourisankara Rao. Counsel for the Opposite parties M/s Gopi Rajesh & Associates QUORUM: SRI R.LAKSHMINARSIMHA RAO, HONBLE I/C PRESIDENT SRI T.ASHOK KUMAR, HONBLE MEMBER.
& SRI S.BHUJANGA RAO, HONBLE MEMBER WEDNESDAY, THE ELEVENTH DAY OF DECEMBER TWO THOUSAND THIRTEEN Order ( As per R.Lakshminarsimha Rao, Honble I/c.President) *** The complaint is filed seeking direction to the opposite parties to refund Rs.13,85,540/- along with interest @ 18% p.a. from the respective dates of payment till the date of realisation together with Rs.2,00,000/- towards compensation and Rs.25,000/- costs.
The averments of the complaint are that during the year 2008-2009, the opposite party started a venture viz GOLD COAST SILICON at Malkapur Village, Chowtuppal Mandal, Nalgonda District and gave vide publicity in papers and through brochures inviting the public to purchase plots and also mentioned that they would provide BT Roads, running water pipe lines, sewerage lines overhead tanks, Barbed wire fencing to public places, underground electric cabling, Tiles paved, street lighting, footpath with curbing stones, avenue plantation, club house and fully developed park. The complainant submitted that the opposite parties promised each plot to be of 240 sq. yds. and the cost would be Rs.2,200/- per sq. yd and the total cost of the plot would be Rs.5,28,000/- and offered different schemes for payment of sale consideration on EMI basis and also offered free membership at Phoenix park and various mega bumper draws such as quarter Kg gold, Tokyo tour for couple, 1.5 kg silver, dinner set, digital home theatre with plasma T.V. etc., The complainant submitted that being induced by the representations, he intended to purchase two plots on 08-9-2006 and by the time the cost of the plots of 240 sq. yds. was increased and fixed at Rs.2,800/- per sq. yd. and he opted for payment of sale consideration on EMI basis and as per the scheme he has to pay 18 EMIs @ Rs.33,000/- apart from enrolment fee of Rs.5,000/- admission fee of Rs.250/- and reservation charges of Rs.73,000/- totalling to Rs.6,72,250/-. The complainant submitted that on 07-1-2007 he booked two plots by paying enrolment fee of Rs.5000/- each and the opposite parties issued two pass books bearing Nos.9122 and 9123 and reserved plot Nos.4811 and 4812 and further changed the plot numbers to 2157 and 2169 on 18-7-2008 and later on the opposite parties on 27-6-2010 inter changed the plots number 5167 admeasuring 500 sq. yds. in respect of both the pass books.
The complainant submitted that he started payment of instalments of sale consideration from 7-1-2007 and by 30-1-2010 he paid Rs.6,92,770/- totaling Rs.13,85,440/- and all the payments made by him were recorded by the opposite parties in the pass books and the complainant has to pay Rs.13,44,500/- as per the scheme and he paid excess amount of Rs.41,040/-. The complainant submitted that during June, 2008 i.e. before completion of the scheme, the opposite parties informed him the layout area fell within the jurisdiction of Hyderabad Metropolitan development Authority from DTCP and the plot area is also changed and offered plot No. 5167 and made an endorsement on 27-6-2010 in both the pass books.
The complainant submitted that apart from these two plots, he also booked another plot for himself vide pass book No.6075 and for his wife, Smt.G.Krishnaveni one more plot vide pass book No.6359 and though the opposite parties registered the said plots representing that they got DTCP layout, it is found to be false and there was no development and they reserved their right to take appropriate legal action.
The complainant submitted that he paid the total sale consideration and the opposite parties have not developed the venture in all respects and they have not laid BT roads, nor constructed water drain culverts, not laid underground sewerage along the roads, not constructed adequate number of overhead tanks, not provided electrical lines along the layout roads including street lights with fresh underground cables and have not provided avenue plantations and Green Buffer strips and they have not even obtained final layout approved from HMDA till date.
The complainant submitted that by letter dated 01-3-2012, the opposite party No.2 informed him that towards pass book Nos.9122 and 9123 they allotted final plot No.363 admeasuring 600 sq. yds. and stated that the total cost of the said plot is Rs.17,40,000/- and requested him to pay the balance amount of Rs.4,18,172/- inclusive of registration charges and issued reminders on 05-4-2012, 09-5-2012, and 16-6-2012 demanding him to pay the balance amount and register plot No.363.
The complainant submitted that on 01-6-2012 he had sent a e-mail to opposite party No.2 seeking clarification as to the discrepancy of plot number and area of the plot and there was no response and on 04-8-2012 he sent a representation to opposite party No.2 stating that he learnt that plot No.363 was mortgaged by opposite parties to HMDA and the same cannot be executed unless it is released by HMDA till final approval is given by HMDA and sought clarification as to how sale deed in respect of mortgaged plot without final approval can be executed in his favour and also sought justification for issuing reminders demanding the complainant to pay the balance amount marking a copy to opposite party No.1 but there was no response. The complainant submitted that on 31-8-2012 he had sent e-mail to the opposite party No.2 requesting to supply statement of account in respect of all the pass books along with documents for plot numbers and sanction letter of layout by DTCP and the opposite party No.2 has not chosen to give any response to the emails.
The complainant submitted that he applied for certain information from HMDA under Right to Information Act and on 13-8-2012 HMDA furnished copy of Mortgage deed dated 19-12-2009 executed by the opposite parties in its favour and a copy of the letter dated 28-1-2010 of HUDA. On 23-8-2012 HMDA supplied copies of letters dated 13-1-2009, 18-1-2012 of Suchirindia and copies of letters dt.02-1-2009 and 18-5-2012 of HMDA. The complainant submitted that the mortgage deed dated 18-12-2009 revealed that the plot No.363 offered by the opposite parties to the complainant was under mortgage to HMDA and that the opposite parties failed to develop the venture within the specified time and as such on 18-1-2012, the opposite party No.1 submitted a representation to HMDA seeking extension of time by another 2 years for completion of the development work and on 18-5-2012, HMDA accepted to extend time for development of the layout subject to payment of Rs.28,48,322/- towards revalidation of the layout.
The complainant submitted that he reliably learnt that the opposite party No.1 has not paid the said amount to HMDA and therefore it is clear that there is no possibility of development of venture within 2 years subject to payment of penalty and unless the development work is carried out the question of issuing final layout and release of plot from HMDA mortgage does not arise.
The complainant submitted that the action of the opposite parties in offering to sell the plots without obtaining final approval for the venture from HMDA and unilaterally changing the plot numbers and compelling the complainant to purchaser bigger size of plot and demanding to pay additional amounts by issuing reminders and failing to develop the venture as per the stipulations of HMDA amounts to deficiency in service and unfair trade practice. The complainant submitted that on the verge of retirement and after retirement he invested huge amount of Rs.13,85,540/- since 071-2007 till 30-1-2010 and suffered heavy loss of interest on the investment made by him on the plots. Hence the complaint.
The opposite parties resisted the case contending that the complaint dispute immovable property i.e. residential plots are situated in Sy Nos. 673, 674, 675, 724, 725/P, 728/p, 729, 731, 732, 733, 738, 739, 740, 742, 743, 746, 747, 750, 751 and 754 of Malkapur village, Choutuppal Mandal, Vijayawada Highway, Nalgonda District which is within the jurisdiction of Nalgonda District. The opposite parties submit that there is no cause of action to entertain the complaint as it is premature and hence liable to be dismissed. The opposite parties submit that Gold Coast Silicon Project is floated in 750 acres situated in Sy Nos. 673, 674, 675, 724, 725/P, 728/p, 729, 731, 732, 733, 738, 739, 740, 742, 743, 746, 747, 750, 751 and 754 of Malkapur village, Choutuppal Mandal, Vijayawada Highway, Nalgonda District and consist of thousands of plots and the venture has been floated by investing crores and under the said venture the plots were made admeasuring about 200-240 sq. yds. each plot.
The opposite parties submit that the complainant after having detailed discussion and enquiry and by accepting all terms and conditions booked two plots in his name admeasuring 240 sq. yds. and agreed to pay total sale consideration of Rs.13,44,000/-.
The opposite parties submit that the complainant after satisfying and accepting the terms and conditions paid an amount of Rs.13,66,825/- under two pass books and therefore the terms and conditions prevail over the complainant. The opposite parties submit that the complainant and his wife booked under four pass books and pass books Nos.6075 and 6539 @ Rs.2200/- per sq. yd. and pass book Nos.9122 and 9123 @ Rs.2800/- per sq.yd. on 60 road @ 100/- extra. The plots were selected by the complainant and allotted are initial plot No.5167 for 500 sq. yds. on 60 road for pass book Nos. 6075 and 6359.
The plots were selected by the complainant and allotted are initial plot Nos.4225 ad 4236 for 240 sq. yds. and finally the plots numbers changed to 2157 and 2169 and there is no change in their extent or place of the plots. Since the initial plot number 5167 against pass book numbers 6075 and 6259 has been changed in the approved layout and increased by 100 sq. yds. finally the extent is 600 sq. yds and the approved plot number has become 363. The opposite parties submit that at the request of the complainant, the plots which were allotted pass book Nos.9122 and 9123 were shifted to pass book Nos.6075 and 6359 shifted to pass books 9122 and 9123.
The opposite parties submit that the complainant stated that it takes time to register the mortgaged plots and there was a balance due in those pass books and the complainant was to pay the due slowly. The opposite parties submit that the calculations of the above said pass books as follows:
A) Pass book Nos.6075 and 6359:
1.
Plot cost 240 sq. yds. of each & total Extent of 480 sq yds.@2200 per sq. yd. 10,56,000-00
2. Registration charges @ sq yds. 31,200-00
3. Total amount 10,87,200-00
4. Less amount paid on these two passbooks 11,29,342-00
5. Balance excess/requested by complainant To transfer to pass books 9122 & 9123 00,42,142.-00 B) Pass book Nos.9122 and 9123:
1.
Plot cost 600 sq. yds. on 60 Road @ Rs.2900 per sq. yd. 17,40,000-00
2. Registration charges @ sq yds. 45,000-00
3. Total amount 17,85,000-00
4. Less amount paid on these two passbooks 13,66,825-00
5. Less:Excess amount in Pb Nos.6075 and 6359 00,42,142-00
6. Balance due/receivable by OP 03,76,032-00 If the complainant wants a plot other than mortgaged plot and extent is also 500 sq. yds. the opposite party can offer and process for registration.
C) The Calculations are:
1.
Plot cost 500 sq. yds.
@ Rs.2900 per sq. yd. 14,50,000-00
2. Registration charges @ sq yds. 37,500-00
3. Total amount 14,87,500-00
4. Less amount paid by the client 13,66,825-00
5. Less:Amount transfer from pass books Nos.6075 and 6359 00,42,142-00
6.
Net balance payable by the complainant To the opposite parties 00,78,533-00 The opposite parties submit that they
are always ready for registration other then mortgaged plot subject to the payment of balance amount and available vacancy in the project as clearly stated above and in case the complainant is unable to pay the above said balance amount, they are ready to register the plot for the equivalent extent to the amount paid by the complainant in their respective pass books and submitted that there is no deficiency in service on their behalf and prayed for dismissal of the complaint with costs.
The complainant filed her affidavit and relied on the documents, Exs.A1 to A19. The CEO of the opposite party filed his affidavit and filed the documents, Exs.B1 and B2 in support of their case.
The learned counsels for the complainant and the opposite party have filed written arguments.
The points for consideration are:
i) Whether the complaint is maintainable under the provisions of the Consumer Protection Act?
ii) Whether there is deficiency in service on the part of the opposite party?
iii) To what relief?
POINT NO.1: The opposite party, a private limited company floated venture for sale of house plots under the name and style of Gold Coast Silicon over 750 acres at Malkapur village on Hyderabad- Vijayawada High Way in Nalgonda district. The complainant subscribed to the scheme and became member and applied for allotment of two plots for total sale consideration of Rs.13,44,000/-. The learned counsel for the respondent-company submits that the complainant having satisfied himself with the condition of the plot and agreeing to abide by the terms and conditions of the scheme, booked the two plots. Material terms and conditions of the scheme read as under:
i) (01). Plots will be allotted under Sy Nos. 673, 674, 675, 724, 725/P, 728/p, 729, 731, 732, 733, 738, 739, 740, 742, 743, 746, 747, 750, 751 and 754 etc., of Malkapur village, Choutuppal Mandal, Vijayawada Highway, Nalgonda District.
ii) To join the scheme a member should pay an admission fee of Rs.250/- (for a unit of 240 sq. yds.) along with first instalment.
4. Payment Scheme: A member shall pay Rs.6,72,000/- in 18 EMIs for each plot admeasuring 240 sq. yds. and plots will be allotted strictly on payment. A member shall pay Rs.6,72,000/- by way of 18 EMIs.
11) The management reserves the right to alter the layout partly or fully. Accordingly final plot will be allotted.
13. If any member seeks to cancel his membership, he will not be allowed during the scheme period and it will be done according to the companys rules and regulations.
15. All the developments will be completed only by the end of the scheme.
22. The customer with full satisfaction only agreed and enter with the terms and conditions of the company and shall not be entitled to claim special or punitive damages from the above company regarding above said transactions.
23. Registration of plots will be done after getting layout approval.
24. If any member seeks to cancel his membership the amount received not be refunded at any circumstances due to project over loads.
The complainant stated that as per the terms of the scheme, he has to pay total sum of Rs.13,44,500/- towards sale consideration of two plots each admeasuring 240 sq. yards and he paid excess amount of Rs.41,040/-. The respondent submitted that the complainant suppressed the fact of booking four plots for himself and his wife.
It is not denied that on their applying for allotment of four plots , the opposite party-company issued four pass books bearing numbers 6075 and 6359 in favour of the complainants wife and the complainant and initial plot numbers allotted to them are 4225 and 4236 for plots measuring 240 sq. yards each and thereafter final plot numbers are 2157 and 2169 and there had been no change in extent and location.
Thereafter, the plot numbers were changed in view of realignment of the plots in approved layout as to their size, the size of the plot was increased by 100 sq. yards , the extent of two plots allotted to the complainant became 600 sq. yards and the plot numbers allotted to the complainant are also changed. The complainant submits that the opposite party has not informed him that the plot allotted to him was mortgaged to the HMDA.
The complainant stated that apart from the two plots in question, his wife and he booked two more plots under pass book bearing nos. 6075 and 6359 and those two plots have already been registered in favour of them. In paragraph 8 of his affidavit the complainant stated about the four plots as under:
I further submit that it is not out of place to submit that apart from these 2 plot/pass books, I also booked another plot for myself vide pass book No.6075 and for my wife, Smt.G.Krishnaveni one more plot vide pass book No.6359. Though the opposite parties registered the said plots representing that they got DTCP layout, it is found to be false and there is no development and I and my wife are reserving our rights to initiate appropriate legal proceedings regarding the said registered plots.
The Honble National Commission has consistently held that a purchaser of more than a plot cannot invoke jurisdiction of the Consumer Forum. In view of the following decisions of the Honble National Commission, the complainant cannot be a consumer within the meaning of Section 2(1) (d) read with Section 2(1) (O) of the Consumer Protection Act.
1.Chilkuri Adarsh vs ESSESS VEE Constructions III(2012) CPJ 315
2.
Shri M.Vittal Rao and others vs M/s Brindavan Builders Pvt. Ltd 2008(1)CPR 218
3. Rameshwaran and others vs Sujith Kumar Benarjee and others in F.A.No. 12 of 2003 decided on 4.07.2005 In Chilkuri Adarshvs ESS ESS VEE Constructions III(2012) CPJ 315, the Honble National Commission held that complaint before Consumer Forum, in respect of dispute arising under agreement for construction of two show rooms, is not maintainable. The National Commission observed as under:
This has been consistent view of this Commission. It has held that even when a consumer has booked more than one unit of residential premises; it amounts to booking of such premises for investment/commercial purpose. This Commission in the case of Jagmohan Chabra and another vs DLF Universal Ltd IV (2007)CPJ 199 in a somewhat similar case held that the complaint was not maintainable under the Consumer Protection Act,1986. It had , therefore disposed the complaint with liberty to the complainant to approach Civil Court. The said order has since been upheld by the Honble Supreme Court as Civil Appeal No.6030-5031 of 2008 filed before the Supreme Court stands dismissed vide the Apex Court s order dated 29.09.2008.
The National Commission held that In the present case, we maintain the same view and while dismissing the complaint as not maintainable reserve the right of the complainant to approach Civil Court to seek his remedy. If so advised. He may take advantage of the ruling of the Supreme Court in the case of Laxmi Engineering Works vsP.S.G.Industrial Institute, II (1995) CPJ 1(SC), to seek exclusion of the time spent in prosecuting this complaint before this Commission In a similar case, in Shri M.Vittal Rao and others vs M/s Brindavan Builders Pvt. Ltd 2008(1)CPR 218, the National Commission while dealing with the dispute between owner of property and builder, held that We are afraid, we do not share this perception of the Ld.Counsel for the appellant for the simple reason that before getting into preview of Section 3 of the Consumer Protection Act, 1986, one has to qualify himself to fall within the definition of the Consumer as defined in the Consumer Protection Act,1986. When we go through the agreement , it is clearly stated in para 1 of the agreement that it was the respondent who was to build four floors on the stilt, at his own cost. In view of this , we are of the view that , in no way the appellant/complainant could be said to have hired services of the respondent /developer, as per the definition of consumer laid down under Section 2(1) of the CPA. The appellant had not hired the service of the respondent for construction of a building, in the ordinary sense. In fact, the arrangement was (sic for) sharing the number of flats constructed on the said land. This Commission had occasion to deal with a case of similar nature in the case of Rameshwaran and others vs S.Benarjee and others and held the complainant not to be a consumer, in view of which we are unable to hold the appellant in this case a consumer.
In Rameshwaran and others vsSujith Kumar Benarjee and others in F.A.No. 12 of 2003 decided on 4.07.2005 which is often referred to, by the National Commission it its subsequent decisions, an agreement was entered into, between the owner of the land and the builder for construction of building on the land and the residential and commercial areas constructed were agreed to be divided in the manner noted in the agreement. The National Commission referring to the decision of the Supreme Court in Lucknow Development Authority vs M.K.Gupta III (1993) CPJ 7 and its decision in Fakir Chand Gualati vs Uppal Agencies Pvt Ltd and others decided on 3.02.2004 held that irrespective nature of the agreement whether it is joint venture agreement or not, the owner of the land is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act.
Jagmohan(supra) is a case where the complainants booked town houses proposed to be constructed by the builder on the ground, first and second floors of a plot in Gurgaon. The complainants also booked on an apartment proposed to be constructed by the same developer in the name and style of Hamilton Court whose possession was delivered to them. The complainants filed complaint alleging defective construction and design. The National Commission held that the complainants purchased the two town houses and the apartment for earning profits and the transaction was relatable to commercial purpose and as such the complainants were held to be not consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act.
POINT NO.2:The opposite party submits that it is ready to execute sale deed in favour of the complainant other than the mortgaged plot subject to the complainant making payment of balance sale consideration and availability of vacancy in the project and in case the complainant is unable to pay the balance sale consideration of the plot it would register the plot for the equivalent extent to the amount received from the complainant. As this Commission has no jurisdiction to entertain the complaint, it gives liberty to the complainant to approach civil court.
POINT NO.3 : In the result, the complaint is disposed of by giving liberty to the complainant to approach appropriate and competent court. In the event the complainant approaches the court the period spent between the filing of the complaint and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Honble Supreme Court in Trai Foods Ltd vs National Insurance Company Ltd and others reported in III (2012) CPJ 17.
I/C PRESIDENT MEMBER MEMBER Dt.11.12.2013 //APPENDIX OF EVIDENCE// Witnesses examined for For complainant For Opp.party Affidavit of the complainant filed. Affidavit of the CEO & Auth.
Signatory of OP filed.
Exhibits marked on behalf of the Complainant:
Ex.A1- Brochure of Gold Coast.
A2 -Pass Book No.9122.
A3 -Pass Book No.9123.
A4 -O.P.Letter Dt.15-2-2010.
A5 -O.P.Letter Dt.01-03-2012.
A6 -O.P.Letter Dt.Dt.01-03-2012.
A7 -O.P.Letter Dt.05-04-2012.
A8 -O.P.Letter Dt.09-05-2012.
A9 -O.P.Letter Dt.16-06-2012.
A10 -Letter of the Complainant Dt.04-08-2012.
A11 -Letter Dt.13-08-2012 of HMDA.
A12 -HMDA Letter Dt 28-01-2010.
A13 -Deed of Mortgage Dt.19-12-2009.
A14 -HMDA Letter Dt.23-08-2011.
(Correct Date being 23-08-2012) A15 -Suchirindia Letter Dt.18-01-2012.
A16 -Suchirindia Letter Dt.31-01-2009.
A17 -HMDA Letter Dt.18-05-2012.
A18 -HMDA Letter Dt.021-2009.
A19 -Calculated Statement as on 25-09-2012.
Exhibits marked on behalf of the Opp.parties:
B1
-Membership Form Dt.07-01-2007.
B2.
Ledger Copy from 01-04-2007 to 31-03-2008.
INCHARGE PRESIDENT.
MEMBER.
MEMBER.
JM Dt.11-12-2013.