State Consumer Disputes Redressal Commission
Sri Kasireddy Sattibabu, vs 1. Sri K. Sarva Rao & Others on 28 February, 2012
A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD FA 394/2010 against CC 120/2009 on the file of the District Consumer Forum, Vizianagaram. Between : Sri Kasireddy Sattibabu, s/o Late Mohan Rao, Residing at Bank Colony, Plot no. 101, Near Mayuri Junction, Vizianagaram .. Appellant / Opposite party No.1 And 1. Sri K. Sarva Rao S/o Ram Murthy Residing at Jarjapupeta, Nellimarla mandal, Vizianagaram .. Respondent/complainant 2. Sri Puppala Appalaraju, S/o Late Appa rao Managing Director, SK Estates, OPP : S. P. Bungalow Near Mayuri Junction Vizianagaram .. Respondent/opposite party no.2 Counsel for the Appellant : M/s. T. V. Sridevi Counsel for the Respondents : R1 served R2 ( returned as addressee left ) FA 395/2010 against CC 121/2009 on the file of the District Consumer Forum, Vizianagaram. Between : Sri Kasireddy Sattibabu, s/o Late Mohan Rao, Residing at Bank Colony, Plot no. 101, Near Mayuri Junction, Vizianagaram .. Appellant / Opposite party No.1 And 1. Sri Duddu Nageswara Rao S/o Someswara Rao Residing at Dr. No. 79,Kotaveedhi, Vizianagaram, .. Respondent/complainant 2. Sri Puppala Appalaraju, S/o Late Appa rao Managing Director, SK Estates, OPP : S. P. Bungalow Near Mayuri Junction Vizianagaram .. Respondent/opposite party no.2 Counsel for the Appellant : M/s. T. V. Sridevi Counsel for the Respondents : R1 served R2 ( returned as addressee left ) Coram ; Sri R. Lakshminarasimha Rao Honble Member
And Sri T. Ashok Kumar .. Honble Member Tuesday, the Twenty Eighth day of February Two Thousand Twelve Oral Order : ( As per Sri T. Ashok Kumar , Honble Member ) ****
1. These appeals are preferred by opposite party.1 as against the orders of the Dist. Forum, Vizianagaram on separate complaints.
2. Since these appeals are preferred by the very same opposite party against the orders dated 09.02.2010 of the Dist. Forum, Vizianagaram in different complaints filed by complainants pertaining to their respective plots and as common questions of fact and law are involved, we are of the opinion that all these appeals can be disposed of by a common order. For convenience sake, parties as arrayed in the complaints are referred to hereunder :
3. The brief facts of the complaint are as under :
The complainants aforesaid of different complaints described supra after seeing the advertisements in the news papers through some agents approached the office of SK. Estates /OP. 2 and enquired about the sites, place and facilities and thereafter decided to purchase below mentioned house sites and entered into agreement of sales.
S.No FA No. CC No Extent of land & Plot nos.
Total Amount paid in different dates 01 394/2010 120/2009 400 sq.yards Plot nos. 97 and 98 in Vinayakanagar, Vizianagaram Rs.01.06,000 02 395/2010 121/2009 400 SQ. YARDS Plot nos. 95 and 96 in Vinayakanagar, Vizianagaram 45,000/-
Thereafter, the said complainants approached the opposite parties and asked for registration of the said plots informing that they are ready to pay the balance amount. Ops postponed registration of the plots on some pretext or the other and also threatened the complainant with their consequences. Having vexed with such a behaviour of the OPs the complainants got issued dt. 25.5.2008 requesting the OPs to register the plots OP. 1 replied on 14.06.2008 with false allegations and OP. 2 did not receive the same informing the complainant that he is going to register the plot and requested them not to disclose the details to others.
In spite of mediations and requests OPs failed to register the said plots in favour of the complainants hence the complaints to direct the opposite parties to register the said plots in their favour or to refund the amounts with interest @ 24% pa and costs etc.
4. Both the OPs remained exparte and did not choose to contest the matter. therefore basing on evidence affidavit of the complainants of the said complaints the District Forum allowed the complaints directing the Ops to register the plots as prayed for within one month by receiving the balance amount if any in default they were directed to refund the amounts paid by them with 18% interest per annum from the date of last deposit till realization and for such refund 10 days time was granted from the date of order. Further a sum of Rs.1,500/- was granted in each case towards cost of the complaints directing the OPs to pay the same to the complainants.
5. Feeling aggrieved with the said orders in both the complaints, the unsuccessful OP1. filed these appeals on several grounds and mainly contended that the complaint is not a consumer complaint and that Civil Suit for specific performance of agreements if any have to be filed and that no documents were filed by the complaints to show that they entered into agreement of sale with Opposite parties 1 and 2 and that paid amounts and that the District Forum without allowing petition under Order 9 Rule 1 CPC to set aside exparte orders dt. 21.01.2010 allowed the complaints and that OP. 2 is the in charge of whole project and plots belongs to his uncle and that the firm of appellant and OP. 2 was dissolved in 2008 and that Arbitration proceedings are pending before the Arbitrator and that without considering the said facts the District Forum passed orders which are not sustainable either in law or on facts.
6. Heard the counsel for the complainants and no representation for respondent no.1 on 21.2.2012. Notice sent to R-2 returned with an endorsement addressee left and it is deemed to have been served U/s. 28-A of C. P. Act. In such circumstances both the appeals were reserved for orders on available material.
7. Now the point for consideration is whether the impugned orders in both the above CCS of the District Forum are sustainable ?
8. One of the important points raised by the OP. 1 in its counter that the complainants aforesaid are not Consumer Disputes and that without filing civil suits for specific performance of agreement of sale the complainants filed the presence complaints posing the dispute as consumer dispute to save the court fee and therefore the complaints are not maintainable.
9. In several decision of the Honble Supreme Court of India and Honble National commission held that that the development of land for the 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 only purchased the plot but also the service associated with it. The recent decision of Supreme Court in Fakir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. reported in 2008 (4) CPR 449 (SC) fortifies this view. 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 held that consumer Fora do not suffer lack of jurisdiction to entertain complaints in such matters.
Therefore, the contention of the OP.1 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 him.
10. The additional grounds filed by the OP. 1/ Appellant reveals that on coming to know about the fact that OP. 1 was set exparte he filed a petition order 9 rule 1 CPC on 28.01.2010 to set aside exparte orders dt. 21.1.2010 and also to receive the counter when the matter was called for complainants evidence but the Forum did not receive the same stating that the Forum has no power to recall or review its exparte orders and that provisions of CPC are not applicable to Consumer Protection Act and that in such circumstances without there being any evidence on record to prove his contentions the case was proceeded with further and thus he has been deprived of invaluable right of defence. Even tough parties were set exparte from that stage onwards opportunity should have been given to OP.1 to contest the matter at least on legal points but no such opportunity was given to the OP,. 1 in violation of principles of natural; justice. As seen from the impugned orders the complainants did not file any documents such as agreement of sale and receipts evidencing payment of amounts to the OPs, so also, the alleged legal notices and reply notices. It appears that only basing on the evidence affidavits of the complainants and considering that Ops failed to appear on the given date setting them exparte the complaints were allowed. Even though OPs remained exparte it is the duty of the Consumer Forum to consider whether the claims of the complainants were supported with any important documents such as agreements of sales, receipts regarding payments etc but it was not so done and on mere affidavits the versions of the complainants in both the cases were believed and the complainants were allowed giving the reliefs as prayed for by the complainant. Therefore we are of the considered opinion that the orders under Appeals are not sustainable either in law or on facts and they are liable to be set aside. In view of the above discussion, the matters are fit to be remanded to the District Forum for fresh disposal according to law after giving opportunity to both sides.
11. In the result, both the appeals, ie. FA 394/2010 and 395/2010 are dismissed and both the complaints are remanded back to the District Forum for fresh disposal according to law after giving opportunity to both sides. No order as to costs.
MEMBER MEMBER Dt : 28.02.2012.