State Consumer Disputes Redressal Commission
Smt Sethumadhavi Nukala vs M/S Narne Estates Private Limited on 27 July, 2010
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. C.C.NO.30 OF 2008 Between Smt Sethumadhavi Nukala W/o Sri Satyanarayana Nukula R/o 1-9-290/12/1, Vidyanagar Hyderabad. Complainant A N D M/s Narne Estates Private Limited (Formerly know as Narne Constructions Pvt. Ltd.,) Regd. Office at 1, Gun Rock Enclave Secunderabad-009 rep. by its Attn: Chairman and Managing Director Sri Narne Ranga Rao Opposite party Counsel for the Complainant Sri Karra Srinivas Counsel for the opposite parties Sri K.B.Ramanna Dora QUORUM: SRI SYED ABDULLAH, HONBLE MEMBER
& SRI R.LAKSHMINARSIMHA RAO, HONBLE MEMBER TUESDAY THE TWENTY SEVENTH DAY OF JULY TWO THOUSAND TEN Oral Order ( As per R.Lakshminarsimha Rao, Member) *** The complaint is filed u/s 17(a)(1) of the C.P. Act seeking direction to the Narne Estates Private Limited, Secunderabad to register the plot No.169 in Central Park-II Layout situated in Sy.No.218/4, 218/5 of Kondapur Vilalge, Serilingampally Mandal, R.R.District in favour of the complainant and `3 lakhs towards compensation and costs.
The averments of the complaint are that the complainants friends son Mr.Johann Christopher purchased a plot No.169 admeasuring 235 sq.yards at Central Park-II layout at Kondapur village, Serilingampalli Mandal R.R.Dist. After some time as the said Johann Christopher was not interested he requested the opposite party by letter dated 12.4.2006 to transfer the plot in the name of the complainant and the same was accepted by the opposite party by its letter dated 3.7.1996. The total cost of the plot was `1,17,500/- including development charges. Thereafter the complainant paid `22,500/- on 3.5.1996 and also cleared all the dues. The opposite party issued a statement of account and according which the total cost of the plot was `1,17,500/- and the balance due was `77,500/-
and also stated that the registration charges will be intimated when the registration is due. Thereafter the complainant paid `6,000/- towards installments due w.e.f. February 1996 to April 1996. By June 1999 the complainant paid the entire sale consideration of the plot. Immediately the complainant requested the opposite party to register the plot in her name but the opposite party failed to do so.
While so the complainant left to USA in the year 2003. On 6.11.2006 the cousin of the complainant staying in India received letter from the opposite party wherein the opposite party informed the complainant the allotment plot was cancelled for non-payment of dues as per the terms. It is also mentioned in the letter that the opposite party has issued notices to the complainant for clearance of dues but the so called notices mentioned in the letter were never received by the complainant. The complainant addressed letter dated 22.11.2006 to the opposite party informing them that she would be returning to India and contact them in the first week of February 2007 and also that she has not encashed the cheque sent by them. Immediately on return to India, the complainant visited the office of the opposite party and requested for revoking the cancellation of the plot but the opposite party informed the complainant that there are some additional development charges and other charges for registration of the plot due. The complainant also consented for payment of all those chares that are payable by her legally. However, the opposite party vide its letter dated 20.9.2007 informed the complainant that the cancellation of plot cannot be revoked and requested the complainant to return the cheque for revalidation. The opposite party sent another cheque for `1,17,875/- along with letter dated 27.10.2007 requested to return the old cheque. Again the complainant addressed letters dated 10.12.2007 and 10.1.2008 requesting the opposite party to revoke the cancellation as she had paid the entire cost fo the plot. Even the opposite party has not received clearance and final layout from HUDA so far. The government market value of the land in Sy.NO.218/4 & 218/5 of Kondapur village where the Central Park-II is situated is `10,000/- per sq.yards and for 235 sq.yards the present market value of the plot No.169 is more than `25 lakhs hence the Commission has pecuniary and territorial jurisdiction to entertain the complaint.
The opposite party resisted the claim. It was contended that the complainant is not maintainable. The complainant is not a consumer. The Civil Court only has jurisdiction to entertain the claim. Initially one Mr.Johann Christopher joined as a member and was allotted with a membership No.30818 for purchase of plot no.169 admeasuring 235 sq.yards. Subsequently on his request the opposite party has transferred the plot allotment to the complainant vide letter dated 3.7.1996. The complainant is still due of `1,17,875/-
as on 6.11.2006 as per the reminder letter of the opposite party. The cost of the total sale consideration includes the cost of the land, cost of development works and registration charges which are payable as per the terms and conditions agreed thereupon. The complainant in order to escape from the liability stated that she never signed on the terms and conditions of the membership. When once the allotment was transferred to the complainant from the original allottee, the terms and conditions of allotment are binding on the complainant. Since the complainant inspite of repeated reminders and requests was not able to pay the development charges as requested by the oppose party the opposite party could not register the plot in her name.
Though the opposite party provided with ample opportunity and after waited for a reasonable time for payment of dues, the complainant failed to do so. Since the complainant committed default in payment of development charges upon causing notice dated 6.11.2006, the opposite party constrained to cancel the allotment. Hence, the question of revoking the cancellation of the plot does not arise.
The complainant has received the amount towards full and final settlement. The cost of land at the time of allotment per acre is about `5 lakhs to `10 lakhs and present more than five crore. There is no deficiency in service on the part of the opposite party and hence prayed for dismissal of the complaint.
The point for consideration is whether the cancellation of the plot bearing No.169 made by the opposite party is arbitrary and unreasonable?
The complainant had substituted herself in the place of her friends son Johann Christopher as the member with membership number 30818 for purchase of plot bearing number 169 at Central Park-II Kondapur Vilalge of Sherilingampalli Mandal R.R.District. The opposite party acceding the rques of the complainant transferred the plot in the name of the complainant. The letter dated 30.7.1996 evidences the transfer of the membership and plot in favour of the complainant.
The total sale consideration of the plot, according to the complainant is `1,17,500/- which included development charges. The complainant states she had paid `22,500/- on 3.5.1996 and cleared the dues till that day. The copy of statement of account shows payment of the amount of `Rs.22,500/- and dues of `40,000/-. The statement of account indicates the commencement of instalments from the month of February 1996 payable @ `2,000/- per month is `6,000/-.
Relying upon the copy of letter dated 8.5.1996 issued by the opposite party, the complainant claims the due as `77,500/- and payment of the registration charges to be made at the time of registration of sale deed. The document supports the contention of the complainant. However, the endorsement in the letter in regard to the due of `6,000/- for the period from the month of January 1996 to April 1996 has to be paid by the complainant.
The complainant paid `6,000/-on 17.6.1996 and `500/- on 10.06.1999. The statement of account dated 17.6.1996 and 10.6.1999 establish payment of the amount of `6,000/- plus `500/-. From the time these letters were issued, there has been no correspondence between the parties till the cancellation letter dated 6.11.2006 was issued by the opposite party to the effect that the complainant as requested failed to clear dues by April, 2000. The complainant states she has paid the entire amount whereas the opposite party contends that since the complainant has not paid the development charges, her allotment was cancelled after waiting for sufficient time and having issued reminders with reference to the dues to be cleared by her. It appears, after receipt of the cancellation letter, the complainant addressed letter dated 22.11.2006 informing the opposite party that as she had been to the USA, she has not received any of the letters said to have been sent by the opposite party. The complainant by this letter assured the opposite party that as required by the opposite party, she would personally come to India and visit the office of the opposite party in the last week of January 2007 and seek confirmation of the staff of the opposite party in regard to the revocation of cancellation of allotment.
The complainant again through letter dated 1.8.2007 requested the opposite party to revoke the cancellation in vie of her visit to the office of the opposite party in the month of January 2007 and non-presentation of the cheque for realization of the amount. Eventually, the opposite party responded by issuing letter dated 20.09.2007 that the allotment was cancelled after repeated requests sent to the complainants last known address and the letters were returned unaccepted and it was suggested that the complainant could have intimated the change of address through email or letter and that the complainant can send the cheque bearing No.795149 for revalidation.
The opposite party reinforced its decision of cancellation of allotment and requested to receive the revalidated cheque bearing No.539302 dated 5.6.2007 towards full and final settlement of account and return the cheque bearing No.795149 dated 1.11.2006 by letter dated 27.10.2007. For a period of two months there is no communication between the parties. The complainant addressed letter dated 10th December 2007 reiterating the version reflected in her earlier letters that she is not due any arrears and returning the cheque with a request to restore the allotment. The letter dated 10.12.2007 was followed by the letter dated 10.01.2008 with the very same request as was made in the previous letters.
The opposite party has not adduced any evidence to the effect that several letters sent to the complainant requesting her to pay the development charges and those letters were received by the complainant. The complainant had informed the opposite party that she was away from India and she would return here and meet the opposite party in the last week of January,2008. In the letter dated 1st August,2007, the complainant has stated that she has not received the letters said to have been sent by the opposite party. The first paragraph of the letter reads as under:
With reference to my letter, I was outside the country most part of the time. I did not receive the letter that were mentioned in your letter. This was explained to you personally when I visited to your office in the month of Jaunary,2007.
Prior to the letter dated 1-08-2007, the complainant had sent another letter to the opposite party which infact shows the promise for revocation of the cancellation of allotment. The relevant portion of the letter reads as under:
Since I was outside the country for most part of the time, I did not receive the notices that were mentioned in your letter. This has been explained to you by my relative Mr.Vemuri Adinarayana who has personally came and visited you after receiving the above letter. I gather from him that you have kindly consented to revoke the cancellation of plot allotment and am thankful to you for the above gesture. He also informed me that I have to personally come and request the same to formalize it.
There is no denial of the facts mentioned in the aforementioned letters. It is the consistent version of the complainant that she has paid the cost of the plot. The factum of payment of cost of the allotted plot is evident from the letters sent by the complainant and received by the opposite party. The complainant contends that the opposite party has not obtained the clearance certificate from the authority concerned nor was there any demand for the development charges from the opposite party as seen in the statement of account. It is incumbent upon the opposite party to inform the complainant of the development charges due from her as also completion of the development work. Any cancellation of the allotment without making demand for the payment of development charges due and without informing the complainant of the progress of the development work cannot be held reasonable and valid.
In the similar facts and circumstances, in V.Madan Mohan Rao Vs Narne Estate Pvt. Ltd., & Ors reported in II (2010) CPJ 444, this Commission held the cancellation of the allotment arbitrary and invalid. It was held as follows:
In the light of the condition no.5 in the letter dated 24.11.2004 the delay in payment of developmental charges and registration charges as also the plot charges would result in delay in completion of development works and there has been no mention of completion of the developmental charges in the letter dated 11.4.2005. the condition no.5 of letter dated 24.11.2004 would empower the opposite party only to demand for enhanced developmental charges and in the absence of any terms and conditions contrary thereto the opposite party cannot unilaterally cancel the allotment made in favour of the complainant. The opposite party has not filed any agreement of sale wherein terms and conditions as to the manner of payment of developmental charges as also cost of the plots have been incorporated. Only the membership form has been made basis of the contract which does not speak of any power conferred on the opposite party to cancel the allotment in case of non-payment of developmental charges, registration charges and cost of the plot. There has been no evidence brought on record in support of the contention of the opposite party that sufficient correspondence has been made bringing to the knowledge of the complainant that civil works had commenced and subsequently thereto the complainant was demanded to make payment of developmental charges as well as the registration charges. It is pertinent to note that in the absence of any agreement for payment of registration charges by the complainant to the opposite party, the opposite party could cancel the allotment. Viewed from any angle, the cancellation of allotment made by the opposite party is arbitrary and untenable The development charges have to be paid by the complainant. The opposite party has to collect the development charges that it has incurred for the development of the plot. The opposite party has demanded the development charges to the tune of Rs.1,17,875/- and the amount said to have been incurred by the opposite party has not been substantiated. It does not mean that the complainant is not liable to pay the development charges, but the opposite party should collect reasonable and actual development charges from the complainant. Hence, we are of the considered opinion that the cancellation of the allotment by the opposite party is arbitrary and as such it set aside.
In the result, the complaint is allowed. The cancellation of the allotment of the plot bearing No.169 in Central Park-II layout situated in Sy.No.218/4, 218/5 of Kondapur Village, Serilingampally Mandal, R.R. District is set aside. The opposite party directed to execute sale deed in favour of the complainant within fifteen days of receipt of the documentation charges from the complainant. The costs of the complaint quantified at Rs.2,000/-.
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MEMBER Sd/-
MEMBER Dt.27.07.2010 KMK* APPENDIX OF EVIDENCE WITNESSES EXAMINED NIL EXHIBITS MARKED For complainant Ex.A1 Copy of letter dated 3.7.1996 of opposite party to complainant Ex.A2 Copy of Statement of Account dated 3.5.1996 Ex.A3 Copy of letter dated 8.5.1996 of opposite party to complainant Ex.A4 Copy of Statement of Account dated 17.6.1996 Ex.A5 Copy of Statement of Account dated 10.6.1996 Ex.A6 Copy of letter dated 6.11.2006 of opposite party to complainant Ex.A7 Copy of letter dated 22.11.2006 of complainant to opposite party Ex.A8 Copy of letter dated 01.08.2006 of complainant to opposite party Ex.A9 Copy of letter dated 20.09.2007 of opposite party to complainant Ex.A10 Copy of letter dated 27.10.2007 of opposite party to complainant Ex.A11 Copy of letter dated 10.12.2007 of complainant to opposite party Ex.A12 Copy of letter dated 10.01.2008 of complainant to opposite party Ex.A13 Copy of face cover of Narne Estate Digest For opposite party Ex.B1 Copy of application for membership Ex.B2 Copy of letter dated 27.12.1995 of opposite party to Mr.Johann Christopher Ex.B3 Copy of letter dated 12.4.1996 of Johann Christopher to the opposite party Ex.B4 Copy of letter dated 06.03.2006 of opposite party to complainant Ex.B5 Copy of letter dated 06.11.2006 of opposite party to complainant Ex.B6 Copy of cheque dt.5.6.2007 for Rs.1,17,875/-
Ex.B7 Copy of letter dated 20.09.2007 of opposite party to complainant Sd/-
MEMBER Sd/-
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