State Consumer Disputes Redressal Commission
1. M/S Narne Estates (P) Ltd And Another vs Lt. Col.D.Sivarama Prasad on 1 July, 2010
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. F.A.No. 372 OF 2009 AGAINST C.C.NO.404 OF 2008 DISTRICT CONSUMER FORUM-III HYDERABAD Between 1. M/s Narne Estates (P) Ltd., rep. by its Managing Director Office at No.1, Gunrock Enclave Karkhana, Secunderabad-009 2. The General Manager, Narne Estates Pvt., Ltd. Gunrock Enclave, Karkhana Secunderabad-009 Appellant/opposite parties A N D Lt. Col.D.Sivarama Prasad S/o late Sri D.Ankamma, Aged 47 yrs R/o H.No.A-17, Vedvihar, AWHO Tirmulgherry, Secunderabad Respondent/complainant Counsel for the Appellants Sri D.Venkat Reddy Counsel for the Respondents Sri D.Krishna Murthy QUORUM: SRI SYED ABDULLAH, HONBLE MEMBER
& SRI R.LAKSHMINARSIMHA RAO, HONBLE MEMBER THURSDAY THE FIRST DAY OF JULY TWO THOUSAND TEN Oral Order ( As per R.Lakshminarsimha Rao, Member) *** The opposite parties no.1 and 2 in C.C.No.404 of 2008 on the file of District Forum-III, Hyderabad are the appellants herein.
The complainant filed the complaint contending that on 20.8.1992 he became member with membership no.9235 and was allotted plot no.48, Block-W in Sector IV. He booked a house site plot, admeasuring 250 sq.yards with a total cost of Rs.20,150/-.
Initially at the time of joining as a member an amount of Rs.5,150/- was paid to the opposite party and it was acknowledged by the opposite parties and a receipt was issued to that effect on 20.8.1992. The balance amount of Rs.15,000/- has to be paid in 12 equal monthly installments of Rs.1,250/- each. The complainant has paid the total cost of the plot by 23.10.1992. The opposite parties collected an amount of Rs.25,000/- towards developmental charges, Rs.6,000/- towards registration charges and Rs.5,000/- towards club fees from the complainant by issuing a nil balance due receipt on 23.1.2002. In spite of collection of total sale consideration of plot along with developmental, registration and club fees, the opposite parties did not register the plot. On 26.12.2006, the complainant addressed a letter to the opposite parts, requesting them to give him registration documents but they have not chosen to give any reply. Further the opposite parties demanding a sum of Rs.56,500/- from the complainant. In the statement furnished by the opposite parties the complainant was informed that he has to pay a further sum of Rs.37,500/- towards developmental chares and Rs.19,000/- towards registration charges. The complainant was forced to pay the extra amount to the opposite parties on 1.1.2008 to avoid any litigation.
The opposite parties have collected Rs.1,04,758/- till date from the complainant. Even after collecting extract amount, the opposite parties again informed the complainant vide letter dated 12.1.2008 that the complainant has to pay further amount of Rs.37,500/- towards other charges without giving any reason. Hence the complainant sought direction to register the plot no.48, Block-W, Sector-IV of the East City in favour of the complainant and refund of the excess amount of Rs.56,500/- along with compensation and costs.
The opposite parties filed its counter contending that the complainant himself requested for the withdrawal of the membership and refund of the amount paid under the membership no.9235 vide his letter dated 24.1.2008. Accordingly, the opposite party started processing for refund of the amount. In the meanwhile the complainant filed the present complaint. As the complainant was a defaulter in making payment of the development charges, the opposite party did not register the plot in favour of the complainant. The dispute in question is purely a civil in nature and the parties are governed by the Contract Act. The dispute relating to immovable property which is situated at Bibinagar of Nalgonda District the Forum has no jurisdiction to entertain the complaint. The cost of the land at the time of allotment per acre was about Rs.30,000/- to Rs.50,000/- and presently more than a crore. The opposite parties prayed for dismissal of the complaint.
The complainant has filed his affidavit and documents Exs.A1 to 17.
No affidavit has been filed on behalf of the opposite parties. Exs.B1 to B5 have been marked on behalf of the opposite parties.
Both the appellants and the respondent filed their respective written arguments.
The District Forum has allowed the complaint directing the opposite parties no.1 and 2 to register the plot no.48, Block-W, Sector IV of East City in favour of the complainant and to refund the excess amount of Rs.56,500/- along with compensation of Rs.25,000/- and costs of Rs.2,000/-.
Feeling aggrieved by the impugned order, the opposite parties preferred the appeal contending that the complainant failed to pay additional development charges the opposite parties could not register the plot in his favour and that as per the statement of account dated 25.4.2007, the respondent/complainant has to pay an amount of Rs.56,500/- towards development charges. The complainant addressed a letter dated 24.1.2008 for withdrawal of his membership and basing on the said letter the appellants/opposite parties cancelled the plot and returned the amount and that as per condition no.10 of the membership application, plots will be registered on receipt of complete payments including cost of plot, developmental charges, registration charges and any allied charges. The complainant never approached the appellants/opposite parties to clear the outstanding dues and get the plot registered and that the relief sought by the respondent/complainant is that of a civil nature and to enforce a contractual obligation of registering sale deed pertaining to immovable property a suit has to be instituted before the appropriate civil court for specific performance of contract.
The advocate for the appellants filed written arguments.
The point for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law and liable to be set-aside?
It is an undisputed fact that the appellants had sold plot No. 48 Block W Sector IV in the venture of the appellants on payment of entire cost of the plot Rs. 20,150/- besides development charges of Rs. 25,000/-, registration charges of Rs.6,000/- and club fees of Rs.5,000/- and the extra amount of Rs.56,500/- as demanded by the appellants. The appellants contended that the relief sought by the respondent is that of a civil nature and that the disputes does not attract the jurisdiction of consumer forum. In the light of decision of the Supreme Court in Fakir Chand Gulati Vs. Uppal Agencies reported in (2008) 10 SCC 345 and the decisions referred to therein, the consumer forum has jurisdiction to entertain the matter.
The ground no.4 of the grounds of appeal deals with the inability of the opposite parties to execute registered sale deed in favour of the complainant as the complainant failed to pay additional developmental charges. In addition to this plea, the contention of the opposite parties is that the complainant had addressed a letter dated 24.1.2008 for withdrawal of his membership and acting upon that letter the opposite parties had taken a decision to cancel the plot and refund the amount to the complainant. Insofar as the ground no.4 is concerned, there is much dispute that the complainant failed to pay the addition developmental charges to the opposite parties. Having regard to this ground alone, it cannot be said that the complainant is not entitled to the execution of the sale deed and registration thereof by the opposite parties. The complainant has paid the developmental charges. Even otherwise, the failure of the complainant to pay the developmental charges by itself is not a reason for the opposite parties to contend that the complainant is not entitled to the relief sought for. A perusal of Ex.A10 shows that the complainant had paid Rs.15,000/- towards the balance cost of the plot, Rs.25,000/- towards developmental charges and Rs.1,000/- being the part of registration charges and club fees of Rs.5,000/-. In Ex.A10 the opposite parties had made an endorsement that the complainant had paid the entire developmental charges @ Rs.100/- per sq.yd as required by the opposite parties. Hence, the question of failure of the complainant in making payment of developmental charges does not arise. The opposite parties cannot rely upon the untenable plea.
The contention of the opposite parties is that the complainant had opted for withdrawal from out of the scheme by the letter dated 24.1.2008. It is true the complainant has not denied the issuance of the letter. Equally it is true that the opposite parties had not acted upon the request made by the complainant. The complainant, consequent to the failure of the opposite parties to act upon his request by canceling the allotment and making the refund of the amount paid by him, opted for proceeding with the requirement on the part of the opposite parties to execute the sale deed and deliver possession of the plot to him. There is no evidence on record as such that the opposite parties had cancelled the allotment of the plot as per the request of the complainant nor the opposite parties have paid back the amount to the complainant. In the circumstances, the complainant is very much entitled to proceed with the terms and conditions of the agreement.
The complainant had referred to Ex.B4 issued on 10.1.2008 by the opposite parties claiming an amount of Rs.1220/- towards miscellaneous expenditure. Ex.B4 shows that the complainant has paid Rs.15,000/- towards the cost of the plot, Rs.62,500/- towards developmental charges, Rs.25,000/- towards registration charges. Ex.A10 contains the endorsement by the opposite parties to the effect that the complainant has paid the entire developmental charges as calculated at the rate of Rs.100/- per sq.yd and demanded accordingly, by the opposite parties. A conspectus of Ex.A10 and B4 would clearly establish that the complainant is not due any amount much less the alleged developmental charges said to have been demanded by the opposite parties.
The opposite parties issued Ex.B3 to the complainant on 24.2.2000 requesting for payment of installments of developmental charges w.e.f January 2000. Ex.A12 as well as Ex.A10 clearly indicates the payment of entire developmental charges by the complainant by the respective dates of issue of the documents.
Ex.A10 was issued on 30.3.2000 whereas Ex.A12 was issued on 23.1.2000, admittedly both the documents were issued subsequent to the date of issue of Ex.B3. Hence, it cannot be said that the complainant was due any amount except the amount of Rs.20/- as demanded under Ex.A12 issued on 21.1.2002. The complainant having paid the entire amount as required to be paid in terms of the agreement, is entitled to the execution of the sale deed and possession of the allotted plot. We do not see any merit in the appeal. The impugned order does not warrant any interference.
In the result the appeal is dismissed confirming the order dated 12.9.2008 of the District Forum. The costs of the proceedings quantified at Rs.2,000/- .
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MEMBER Sd/-
MEMBER Dt.01.07.2010 KMK*