State Consumer Disputes Redressal Commission
1. M/S. Narne Estates (P) Ltd & One ... vs Iqbal Singh, S/O Jeevan Singh on 13 February, 2012
A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD FA 863/09 against CC. No. 797/2008 on the file of District Consumer Forum II, Hyderabad. Between : 1. M/s. Narne Estates (P) Ltd With its office at no. 1, Gunrock Enclave, Karkhana, Secunderabad 500 009 Rep. by its Chairman & Managing Director Sri Narne Ranga Rao, s/o N. V Naidu 2. M/s. Narne Estates (P) Ltd With its office at No. 1, Gunrock Enclave, Karkhana, Secunderabad 500 009 Rep. by its Dy. General Manager Appellant/opp. Party And Iqbal Singh, S/o Jeevan Singh Aged : 53 years, Occ : Business, R/o No. 18, Rukmini Devi Colony Phase II, Near AOC Centre, West Marredpally, Secunderabad 26 .. Respondent/complainant Counsel for the Appellants : M/s. Ch. R. Vasantha Kumar Counsel for the Respondent : Mr. A. Gopala Krishna Coram ; Sri R. Lakshminarasimha Rao Honble Member
And Sri T. Ashok Kumar ..
Honble Member Monday, the Thirteenth Day of February Two Thousand Twelve Oral Order : ( As per Sri T. Ashok Kumar , Honble Member ) *****
1. This is an appeal preferred by the unsuccessful complainant as against the orders dated 06.03.2009 in CC 797/2008 on the file of the District Consumer Forum II, Hyderabad.
For convenience sake, the parties as arrayed in the complaint are referred to as under :
2. The brief facts of the complaint are as under :
Attracted by the scheme floated by the OP whose registered office is located at Gunrock Enclave, Karkhana, Secunderabad the complainant paid an initial amount of Rs.31,802/- towards cost of the house site plot admeasuring 250 sq yards in East City situated at BIbinagar, bearing No. 33 (CP) in Sector V, Block R and Rs.21,000/- towards development charges out of Rs.37,500/- keeping a balance of Rs.16,500/- to the OP and such a plot was so allotted under the membership no. 17,374/- in the month of February, 1994. OPs 1 and 2 collected total installments towards cost of the plot and also part payment towards development charges but they did not undertake development work in the said plot till date in spite of collecting Rs.21,000/-. The complainant regularly insisted the OP to start development work in his plot but they did not do so. The OPs do not have any right to ask further developmental charges without showing any progress of the work . The complainant is ready to pay the balance developmental charges of Rs.16,500/- to OPs 1 and 2 on identifying the plot and progress of the work. The OPs did not bother to show the plot or the development made at the site. Ultimately complainant addressed a letter dated 11.8.2006 to OPs in the said context and after receiving it OPs sent a reply dt. 12.9.2006 stating that they have returned the advance through their finance department. Thereafter the complainant met the officials of the OPs and informed them that he is ready to pay the balance developmental charges but the OPs were not ready to accede to the request of the complainant. Had OPs registered the documents immediately the enhanced stamp duty and registration charges would have been saved. The complainant should not be penalized for no fault on his side. The complainant received a letter no. NE/ER/17374/2008 dt. 28.2.2008 and pay order no. 786375 dt. 23.2.2008 for Rs.43,303/- drawn on Punjab National Bank from the office of OP.1 wherein it is mentioned that allotment of the said plot was cancelled and advance amount was being refunded. The said cancellation was unilateral and without prior notice. There is no lapse on the part of the complainant and he did not become defaulter. Therefore he returned the said pay order for Rs.43,303/- to the OP with reply and it was received by the OPs. The complainant addressed a notice to OPs though his counsel 16.4.2008 describing the events afore said and requested to start the development work by enclosing a cheque 858001 dt 16.4.2008 for Rs.16,500/- drawn on Canara Bank East Maredpally, Secunderabad towards remaining developmental charges and also enclosed original pay order dt. 786375 dt.
23.02.2008 for Rs.43,303/- drawn on Punjab National Bank with the said notice to the OPs and having received the same OPs failed to start the development work and that all the lapses on the part of the OPs amount to deficiency in service. Hence the complaint for a direction to the OPs declaring the said cancellation of allotment of flat is illegal and also to direct the OP 1 to register the plot aforesaid in favour of the complainant or his nominee alternatively to pay prevailing market value of the plot, compensation of Rs. 5 lakhs for mental agony and harassment and Rs.10,000/- towards costs of the complaint.
3. OPs filed written version opposing the claim of the complainant and denying the allegations made in the complaint and disputing the claim and the brief facts of the counter are as under :
On the application of the complainant dt. 11.1.1996 plot no. 33 CP in Sector V and Block R admeasuring 250 sq. yards in East City was allotted to the complainant under membership no. 17374 after receiving Rs.31,802/- towards total cost of the plot. As per clause7 of the terms and conditions of the application form the allottees have to pay development charges as notified by the quarterly circulars of the OP. Plots were not offered for outright sale as those were yet to be developed fully and the complainant was under
obligation to pay the development charges to become owner of the plot before going for registration of the sale deed. When developmental works commenced in the month of March, 99 , OPs informed to the complainant to pay Rs.37,500/- by way of monthly instalments @ Rs.1000/- per month but the complainant did not commence payments till December, 2000. However, on 27.12.2000, the complainant paid Rs.21,000/- to OPs and became defaulter in paying the remaining amount of Rs.16,500/- towards development charges. Since allottees did not pay development charges the OPs were unable to undertake developmental works.
OPs did not promise the complainant or to any other allottee that development works would be completed without regular and full payments by all the allottees and OPs cannot complete the development works of individual plots but by sector wise using the amounts paid by the allottees. In spite of several letters to pay outstanding dues in development charges, the complainant failed to pay and finally vide letter dt. 29.7.2006 OP 1 requested the complainant to pay the outstanding dues by 16.8.2006 or else the allotment of plot will be cancelled and advance amount will be refunded. Even though the complainant received the letter did not pay the dues and after waiting for some more time OP 1 cancelled the allotment and refunded the advance amount after deducting certain authorized deductions. The complainant committed default in paying the outstanding dues since January, 2001 and after waiting for seven years allotment was cancelled. There is no deficiency in service on the part of the OPs and the complainant is not entitled for reliefs as prayed for and that the complaint is not maintainable before the Forum and that it is barred by limitation and thus prayed to dismiss the complaint.
4. Both side filed evidence affidavits deposing their respective contentions Ex. A1 to A9 and Ex. B1 to B14 were marked on their behalf.
5. Having heard both sides and considering the evidence on record, the District Forum allowed the complaint and directed the OPs 1 and 2 jointly and severally to register the said plot no. 33 CP in Sector IV and Block R admeasuring 250 sq. yards and after receiving the registration charges so also to develop the plot within two months and also to pay Rs.500/- compensation and Rs.1000/- towards costs of the complaint. Two months time was given for compliance by cancilling th said cancellation lettr.
6. Aggrieved by the said orders, the unsuccessful complainant preferred the above appeal on several grounds and mainly contending that the District Forum has no jurisdiction to entertain the complaint and that the reliefs sought for are in the nature of specific performance which can be granted by a competent civil court but not by the Consumer Forum and that the complaint is barred by limitation and that the District Forum failed to appreciate that the complainant is not a consumer as defined under the Act and that also erred in not considering that the complainant was defaulter and that orders under appeal are not sustainable either in law or on fact and thus prayed to allow the appeal and set aside the impugned order.
7. Heard counsel for appellant and respondent submitted written arguments.
8. Now the points for consideration is whether the order of the District Forum is sustainable ?
9. The learned counsel for the appellant contended that contending that the District Forum has no jurisdiction to entertain the complaint and that the reliefs sought for are in the nature of specific performance which can be granted by a competent civil court but not by the Consumer Forum.
In several decisions of the Honble Supreme Court of India and Honble National commission it was held 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.
Thus the contention of the appellants/OP in the said context could not be appreciated in their favour.
10. Another point agitated by the OPs is that the complaint is barred by time. In the written version of OPs itself it was averred that finally by a letter dt. 29.7.2006 OP 1 requested the complainant to pay outstanding dues by 16.8.2006 and that since the complainant did not pay the outstanding dues pertaining to development charges allotment of plot was cancelled vide letter dt. 12.9.2006. The contention of the complainant is that in Ex. A5 notice he enclosed the refund advance pay order and also a cheque no. 85800 for Rs.16,500/- dt. 16.4.2008 and gave the same to the OPs and that the same was accepted by the OPs and from that the complaint which was filed on 13.10.2008 is within limitation. The OPs did not refute the contention of the complainant that the said amount of Rs.16,500/- towards development charges are paid so also that the refund advance pay order was returned to them. Therefore, we are satisfied to hold that the complaint is within limitation.
11. There is no dispute that OP.1 had allotted a house site plot bearing no. 33 CP in Sector V and Block- R admeasuring 250 sq. yards. In East City situated in Bibinagar Mandal in favour of the complainant in the month of February, 1994 and that the complainant had paid Rs.31,802/- towards the cost of the said plot. So also developmental charges of Rs.21,000/- out of Rs.37,500/-. The balance of Rs.16,500/- had to be paid by the complainant. there is no dependable evidence from the Ops side that such and such development had taken place on the spot and that so much of amount was spent for the said purpose but went on demanding the remaining developmental charges from the complainant. As there was no development on the spot the complainant was right in insisting the OPs to undertake such development for payment of the remaining amount. Merely because other allottees if any did not pay any developmental charges it is no way helpful for the Ops to avoid development of the plot of the complainant. On the premise of not paying the remaining developmental charges OPs cancelled the allotment letter dated 12.09.2006 and sent Rs.43,302/- by way of pay order No. 786375 dt. 23.2.2008 Thereafter, the complainant addressed Ex. A5 dt. 16.4.2008 notice through his counsel enclosing the said pay order together with a cheque bearing no. 858001 dt. 16.4.2008 for Rs.16,500/- towards balance of development charges. The said aspects were clearly mentioned in the said notice, complaint and evidence affidavit of the complainant and it was not denied by the OPs nor refuted the said aspect in the evidence affidavit atleast, on the other hand, marked Ex. B13 copy of letter and cheque dt. 28.2.2008 and Ex. B1 copy of legal notice of the complainants counsel dt. 16.8.2008. Therefore, the version of the complainant in the said context is believed as true, without any protest when OPs received back the said pay order of Rs.43,302/- and cheque for Rs.16,500/- they cannot subsequently avoid registration of the said plot in favour of the complainant. The lapses on the part of OP certainly amounts to deficiency in service and unfair trade practice. In such circumstances, we did not find any mistake or irregularity in the order of the District Forum wherein the OPs were directed to register sale deed in favour of the complainant fully developing the plot as agreed and also to pay compensation of Rs.5000/- for mental agony that had undergone by the complainant in the said context so also costs of Rs.1000/-. However in the said orders, the complainant was directed to bear registration charges of the said plot and in that aspect also the District Forum was justified in doing so. Thus viewed in any point, the appeal is devoid merit and liable to be dismissed.
12. In the result, the appeal is dismissed confirming the order of the District Forum. in the circumstances, there shall be no order as to costs.
MEMBER MEMBER DATED : 13.02.2012.