National Consumer Disputes Redressal
M/S. Narne Constructions Pvt. Ltd. vs Jandhyala Rama Kumari on 23 December, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 602 OF 2012 (Against the Order dated 02/07/2012 in Complaint No. 39/2009 of the State Commission Andhra Pradesh) 1. M/S. NARNE CONSTRUCTIONS PVT. LTD. REP. BY ITS MANAGING DIRECTOR, 1 GUNROCK NCLAVE, KARAKHANA, SECUNDERABAD-500009 A.P ...........Appellant(s) Versus 1. JANDHYALA RAMA KUMARI W/O. SRI. J.S. MURTY, C/O. MR. P. CHALAPATI, R/O. 6-3-596/15, V.R. COLONY, KHAIRATABAD HYDERABAD ...........Respondent(s) FIRST APPEAL NO. 32 OF 2013 (Against the Order dated 20/07/2012 in Complaint No. 39/2009 of the State Commission Andhra Pradesh) 1. JANDHYALA RAMA KUMARI W/O. SRI J.S. MURTHY, C/O. MR. P. CHALAPATHI,
6-3-596/15,V.R. COLONY KHAIRATABAD. HYDERABAD-004 A.P ...........Appellant(s) Versus 1. M/S. NARNE CONSTRUCTIONS PVT. LTD. REP. BY ITS MANAGING DIRECTOR, SRI NARNE RANGA RAO, NO. 1 GUNROCK ENCLAVE, KARNATAKA, SECUNDERABAD-009 A.P ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : For the Appellant in : Mr. Bhagabati Prasad Padhy, F.A.No.602/2012 and Advocate Respondent in F.A.No. 32 of 2013 For the Respondent : For the Appellant in : Mr. J.S. Murthy, F.A.No.32/2013 and Authorized Representative Respondent in F.A.No. 602 of 2012 Dated : 23 Dec 2019 ORDER (Pronounced on 23rd day of December, 2019) R.K. AGRAWAL, J., PRESIDENT
1. These two cross First Appeals arise out of the order dated 02.07.2012, passed by the Andhra Pradesh State Consumer Disputes Redressal Commission at Hyderabad (for short "the State Commission") in Complaint Case No. 39 of 2009. By the impugned order, while partly allowing the Complaint, the State Commission has directed M/s. Narne Constructions Pvt. Ltd. (for short "the Developer"), Opposite Party in the Complaint, to handover to the Complainant the sale deed bearing document No.7848 dated 24.05.2007 registered at Assistant Registrar, Ranga Reddy District and to pay an amount of ₹5,00,000/- towards compensation and ₹5,000/- as costs.
2. First Appeal No. 32 of 2013 has been filed by the Complainant for modification of the impugned order to the effect that she was allotted a plot admeasuring 397 sq. yards, however, the sale deed was executed for plot of size of 379 sq. yards and as such the Developer was liable to refund an amount of ₹2,52,000/- towards the short fall of land i.e. 18 sq. yards @ ₹14,000/- per sq. yards which was collected by the Developer from other allottees for excess area; the Developer was required to pay an amount of ₹5,76,000/- to her towards deprivation of usage of land for more than 8 years; the Developer was not entitled for the Caution Money and Additional Development Charges inasmuch as the roads and common areas were gifted to GHMC by a gift deed on 21.05.2004; had the Developer registered the plot in May, 2004, she was to pay ₹59,950/- for registration charge, but because of delay the registration costs went up to ₹2,88,040/- and contrary to this, the Developer collected a sum of ₹3,79,000/-; a sum of ₹10,000/- was collected by the Developer towards maintenance charges on 16.08.2007 but there was no maintenance agreement between the parties; since the Developer failed to obtain HUDA Layout approval and to leave open place required for layout approval, she paid an excess amount of ₹1,36,720/- for regularization (LRS) charges to GHMC which the Developer is liable to refund to her; since, in the event of any default in making the payment of the installments to the Developer, she was required to pay to the Developer interest @ 15%, the State Commission ought to have awarded interest @ 15% p.a. for the delay in registration of plot. First Appeal No. 602 of 2012 has been filed by the Developer for setting aside the impugned order itself.
3. Since both the Appeals emanate from the same impugned order and between the same parties, these are being disposed of by this common order.
4. Briefly put, the material facts, giving rise to the filing of the present Appeals, as culled out from the Complaint, are: the Developer issued an advertisement for developing a township, namely, "Central Park" Opposite Central University of Hyderabad between SBI and Doyen Township, providing various amenities like 24 hours water supply, round the clock security, shopping centre etc. Being allured with the advertisement, the Complainant applied for allotment of plot to the Developer on 20.01.1996 and she was admitted as Member of the Central Park Phase II of Kondapur Village, Serillingampally Mandal, R.R. District with Membership No. 30823. A Membership-Cum-Plot Allotment letter dated 27.03.1996 was issued to her allotting Plot No. 347 admeasuring 397 sq. yards. According to the said allotment letter, she was to pay an initial amount of ₹60,000/- and the balance amount of ₹1,38,500/- was to be paid in 55 equal monthly installment of ₹2,500/- p.m. The total cost of the plot including corner plot premium of ₹19,850/- was ₹2,18,350/- which was paid by the Complainant to the Developer till 05.03.2001. Complainant also paid an amount of ₹9,172/- for the delay in payment of the installments. In the brochure issued by the Developer, it was assured that necessary approval from HUDA for the sanction of the layout would be obtained before registering the plots. However, the Developer failed to obtain the approval from the HUDA. On enquiring from HUDA, it was found by the Complainant that the Developer has failed to submit the required documents with them for getting the layout approval. According to the Complainant, the entire sale consideration was paid to the Developer by March, 2001 but still the sale deed was not executed in her favour by them. In fact, they tried to cancel the allotment of plot on some flimsy ground in 2006 and to refund the amount of ₹2,08,450/-. Ultimately, after lot of persuasion, the registration of the plot was done in June, 2007 for the area of 379 sq. yards though the amount was collected for a plot of size of 397 sq. yards. The area of plot was short by 18 sq. yards. The Developer had charged for the excess area from the other plot owners @ ₹14,000/- per sq. yards, however, no compensation was paid to the Complainant for the less area despite a request. It had been alleged that though there was no provision in the allotment letter about payment of additional developments charges, caution deposit and maintenance charges but the Developer had collected a sum of ₹1,02,330/- and interest of ₹97,214/- on account of new additional development and registration charges; ₹2,27,400/- towards caution deposit and ₹10,000/- towards maintenance charges. The further grievance of the Complainant is that despite execution of the sale deed, the original sale deed was not handed over to her by the Developer. Number of times, Complainant visited the office of the Developer to collect the original sale deed but in vein. As the Developer failed to obtain HUDA approval for the Layout and to leave open place required for that purpose, the Complainant applied under the Layout Regularization Scheme and paid a sum of ₹1,36,000/- to GHMC on account of penalization charges for the shortfall of open space left.
5. Alleging deficiency in service on the part of the Developer on the afore-stated accounts, the Complainant filed a Complaint before the State Commission seeking a direction to the Developer to pay a sum of ₹20,70,572/- including excess amount charged for new development, interest, escalated registration; caution deposit; regularization charges of ₹1,36,000/- paid to GHMC; compensation for shortfall of land and non-utilization of the allotted land for 8 years; interest etc. Besides, ₹25,000/- towards compensation for mental agony and ₹5,000/- towards costs were claimed by the Complainant. A direction was also sought to the Developer to return the original sale deed.
6. Upon notice, the Complaint was contested by the Developer by filing its Written Version. Besides raising preliminary objections on the grounds that Complainant was not a ''Consumer" as the contract between the parties was terminated on execution of Sale Deed; Consumer Fora has no jurisdiction to try the subject matter of the Complaint and the Complaint was barred by limitation, it was pleaded on merits that the Complainant having agreed to the terms and conditions of the scheme, entered into the transaction of purchasing the plot and had also undertaken to make payment of costs of the plot and other incidental charges; despite the repeated reminders, the Complainant had failed to clear the dues and get the plot registered in her name; the plot was cancelled and the deposited amount was refunded but on request of the Complainant to pay additional development charges and other charges, the same was restored and registered in her name; the original sale deed was required to be collected by the Complainant but she never visited to their office and the Complainant had willingly exercised her option to purchase the plot with the reduced area.
7. On appreciation of the evidence adduced by the parties before it, the State Commission, as noted above, allowed the Complaint and issued the afore-stated directions to the Developer. It was observed as under:-
" The Opposite Party has not executed the sale deed immediately after receiving the sale consideration and resultantly, there was enhancement in registration charges which the Complainant had to bear for no fault on her part. The Appellant Company without obtaining the final approval of the layout had gone on enhancing the cost of the plot under different counts and finally resorted to demand additional development charges, maintenance charges and caution deposit which are not part of terms and conditions of the scheme. All these facts constitute deficiency in service on the part of the Appellant Company in regard to allotment and sale of the plot."
The Appellant Company had boasted by uploading the contents in its website that it has been engaged in very honourable and straight forward business in real estate and development of the plots and asserted at the time of allotment of the plot in favour of the Respondent that the plot was totally free from encumbrances. The Appellant Company had not disclosed till the Respondent paid substantial cost of the plot that there was no final approval of the layout. As such, the Appellant Company had played unfair trade practice on the Respondent."
8. Hence, the present cross Appeals by both the Complainant and the Developer.
9. We have heard Mr. Bhagabati Prasad Padhy, learned Counsel for M/s. Narne Construction Pvt. Ltd and Mr. J.S. Murthy, Authorized Representative of Smt. Jandhyala Rama Kumari which are the respective parties in both the Appeals and also have perused the impugned order dated 02.07.2012 passed by the State Commission.
10. Learned Counsel for the Developer submitted that the State Commission was not justified in allowing the Complaint and directing it to hand over to the Complainant the Sale Deed bearing document No. 7848 dated 24.05.2007 registered at Assistant Registrar, Ranga Reddy District and also to pay an amount of ₹5,00,000/- towards compensation and ₹5,000/- as costs. According to him, the entire amount was not payable to the Complainant and further the Complainant cannot be said to be a "Consumer" as defined in Section 2(1)(d) of the Consumer Protection Act (hereinafter to be referred to as the "Act"). Mr. Murthy, the Authorized Representative of the Complainant, however, submitted that the Complainant had paid the entire amount for a plot admeasuring 397 sq. yards but the Sale Deed was executed by the Developer for a plot of size of 379 sq. yards only and, therefore, the Developer is liable to refund an amount of ₹2,52,000/- for the shortfall of land i.e. 18 sq. yards which was not covered by the Sale Deed. The Developer has collected @ ₹14,000/- per sq. yards from the other Allottees for the excess area and hence, they should also pay the Compensation to the Complainant for the shortfall of area at the same rate. He further submitted that there was no provision in the Allotment Letter about payment of additional Development Charges, Caution Deposit and Maintenance charges but the Developer had collected a sum of ₹1,02,330/- as additional Development Charges, ₹97,214/- as interest thereon, ₹2,27,400/- towards Caution Deposit and ₹10,000/- as maintenance charges which they are liable to refund the Complainant. Apart from this, the Developer is also liable to pay an amount of ₹5,76,000/- @ ₹6,000/- per month towards loss of an opportunity in utilizing the land for the last 8 years and interest @ 15% p.a. amounting to ₹3,00,778/-. He, thus, submitted that the State Commission ought to have awarded the aforesaid amounts instead of granting lump-sum compensation of ₹5,00,000/-
11. We have given our anxious consideration to the rival contentions of the parties. We find that it is not in dispute that the Sale Deed has been executed in respect of a plot bearing document No.7848 dated 24.05.2007. The Complainant was allotted a plot of the size of 397 sq. yards, however, the Sale Deed was executed only for an area of 379 sq. yards. Thus, there was a short fall of 18 sq. yards in the area of plot. It is also not in dispute that the Developer has charged @ ₹14,000/- per sq. yards from other Allottees for excess area, therefore, according to us, the Developer is liable to refund a sum of ₹2,52,000/- to the Complainant. From the documents on record, we also find that the Complainant was not required to pay any additional Development Charges, Caution Deposit and Regularization Charges. As such, the Developer is liable to refund the entire amount charged towards new Development Charges, interest on it, escalated registration charges, regularization charges as also Caution Deposit which comes to ₹8,86,594/-. (₹5,18,5994/- i.e. excess amount charged for new development, interest and registration charges + ₹2,32,000/- as Caution Deposit + ₹1,36,000/- for regularization charges). So far as, the claim for ₹5,76,000/- being the loss for opportunity in utilizing the land for the last 8 years @ ₹6,000/- per month, is concerned, we may mention here that the State Commission in its wisdom had already granted a lump-sum compensation of ₹5,00,000/-.
12. In view of the aforesaid discussion, we are of the considered opinion that the State Commission was justified in directing the Developer to hand over the Sale Deed bearing document No. 7848 dated 24.05.2007 and to pay compensation of ₹5,00,000/-. However, the Developer is further liable to refund the amount of ₹2,52,000/- towards the price of the shortage of area of 18 sq. yards in the Sale Deed transferred to the Complainant as also ₹8,86,594/- towards additional Development Charges, interest on it, escalated Registration Charges, Caution Deposit and Regularization Charges. The Developer shall also be liable to pay interest @ 10% p.a. on these amounts from the date of respective deposits till the date of refund/realization. The amount, in terms of this order, shall be paid by the Developer to the Complainant within a period of four weeks from the date of receipt of a copy of this order failing which the amount shall carry interest @ 12% p.a. from the date of default till realization.
13. In the result, the First Appeal No. 32 of 2013 filed by the Complainant seeking enhancement of the Compensation awarded by the State Commission is allowed whereas the First Appeal No. 602 of 2013 filed by the Developer is dismissed. No orders as to costs.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER