State Consumer Disputes Redressal Commission
D.Subramanyam,S/O.D.Ramaiah ... vs Narne Estate Pvt. Ltd.Rep. By Its ... on 18 October, 2010
FA
BEFORE THE A.P STATE CONSUMER DISPUTES
REDRESSAL COMMISSION AT HYDERABAD.
F.A.Nos.1278/2009 to F.A.No.1284/2009
against C.C.Nos.48/2009, 49/09, 52/09, 78/09, 79/09,80/09 and 81/09 District
Forum-III, Hyderabad.
Between:
1. D.Subramanyam,
S/o.D.Ramaiah, Plot No.122,
Ashok Enclave, Kapra,
ECIL (Post),
Hyderabad-62. Appellant/Complainant
in F.A.No.1278/09
2. Y.Anantha
Lakshmi
W/o. Y.Krishnamurthy,
Plot No.152, Phase-II,
Saketh, Kapra, ECIL Post,
Hyderabad-62. Appellant/Complainant
in F.A.No.1279/09
3. Y.Srinivasa
Murthy,
S/o.Y.Krishnamurthy,
Plot No.152, Phase-II,
Saketh, Kapra, ECIL Post,
Hyderabad-62. Appellant/Complainant
in F.A.No.1280/09
4. D.Subramanyam,
S/o.D.Ramaiah, Plot No.122,
Ashok Enclave, Kapra,
ECIL (Post),
Hyderabad-62. Appellant/Complainant
in F.A.No.1281/09
5. D.Srinivas,
S/o.Subramanyam,
Plot No.122,
Ashok Enclave, Kapra,
ECIL (Post),
Hyderabad-62. Appellant/Complainant
in F.A.No.1282/09
7. D.Sairam, S/o.
Subramanyam,
Plot No.122,
Ashok Enclave, Kapra,
ECIL (Post),
Hyderabad-62.
Rep. by his natural guardian
Father D.Subramanyam. Appellant/Complainant
in F.A.No.1283/09
8. K.Revathi,
W/o.D.Subramanyam,
Plot No.122,
Ashok Enclave, Kapra,
ECIL (Post),
Hyderabad-62. Appellant/Complainant
in F.A.No.1284/09
And
1. Narne Estate
Pvt. Ltd.,
Rep. by its Managing Director
Narne Ranga Rao, 1, Gunrock Enclave,
Secunderabad-500 009.
2. Narne Estates
Pvt. Ltd.,
Rep. by its Vice President (Corporate
Affairs) SQN, LDR, T.V.Ramana Rao
(Retd.) 1, Gunrock Enclave,
Secunderabad. Respondents/Opp.parties
in FAs 1278/09
to FA 1284/09
Counsel for the Appellant:
Mr.S.Surender Kumar.
(Common in all appeals)
Counsel for the Respondents: Mr.K.R.Koteswara Rao.
(Common in all appeals)
F.A.Nos.138/2010 to 144/2010
against C.C.Nos.48/2009, 52/09, 49/09, 78/09, 79/09,80/09 and 81/09 District
Forum-III, Hyderabad.
Between:
1. Narne Estate
Pvt. Ltd.,
Rep. by its Managing Director
Narne Ranga Rao, 1, Gunrock Enclave,
Secunderabad-500 009.
2. Narne Estates
Pvt. Ltd.,
Rep. by its Vice President (Corporate
Affairs) SQN, LDR, T.V.Ramana Rao
(Retd.) 1, Gunrock Enclave,
Secunderabad. Appellants/Opp.parties
in
FAs 138/10 to FA 144/10
And
1. D.Subramanyam,
S/o.D.Ramaiah, Plot No.122,
Ashok Enclave, Kapra,
ECIL (Post),
Hyderabad-62. Appellant/Complainant
in F.A.No.138/10
2. Y.Srinivasa
Murthy,
S/o.Y.Krishnamurthy,
Hindu, aged Major, Occ:
Plot No.152, Phase-II,
Saketh, Kapra, ECIL Post,
Hyderabad-62. Appellant/Complainant
in F.A.No.139/10
3. Y.Anantha
Lakshmi
W/o. Y.Krishnamurthy,
Hindu, aged Major, Occ:Housewife,
Plot No.152, Phase-II,
Saketh, Kapra, ECIL Post,
Hyderabad-62. Appellant/Complainant
in F.A.No.140/10
4. D.Subramanyam,
S/o.D.Ramaiah,
Hindu, aged Major, Occ
Plot No.122,
Ashok Enclave, Kapra,
ECIL (Post),
Hyderabad-62. Appellant/Complainant
in F.A.No.141/10
5. D.Srinivas, S/o.Subramanyam,
Hindu, aged Major, Occ
Plot No.122,
Ashok
Enclave, Kapra,
ECIL (Post),
Hyderabad-62. Appellant/Complainant
in F.A.No.142/10
7. D.Sairam, S/o.
Subramanyam,
Hindu, aged Major, Occ
Plot No.122,
Ashok Enclave, Kapra,
ECIL (Post),
Hyderabad-62.
Rep. by his natural guardian
Father D.Subramanyam. Appellant/Complainant
in F.A.No.143/10
8. K.Revathi,
W/o.D.Subramanyam,
Hindu, aged Major, Occ
Plot No.122,
Ashok Enclave, Kapra,
ECIL (Post),
Hyderabad-62. Appellant/Complainant
in F.A.No.144/10
Counsel for the
Appellants: Mr.K.R.Koteswara Rao.
(Common in all appeals)
Counsel for the Respondent: Mr.S.Surender Kumar.
(Common in all appeals)
QUORUM: SMT.M.SHREESHA, MEMBER
AND SRI SYED ABDULLAH, MEMBER.
.
MONDAY, THE EIGHTEENTH DAY OF OCTOBER, TWO THOUSAND TEN (Typed to the dictation of Smt.M.Shreesha, Honble Member) *** Aggrieved by the order in C.C.Nos.48/2009, 49/09, 52/09, 78/09, 79/09,80/09 and 81/09 on the file of District Forum-III, Hyderabad, the complainants preferred F.A.Nos.1278/2009 to F.A.No.1284/09 and opposite parties preferred appeals F.A.Nos.138/2010 to 144/2010.
Since all these appeals deal with similar facts, they are being disposed of by a common order.
F.A.No.1278/2009& F.A.No.138/2010:
The brief facts as set out in the complaint are that the complainant pursuant to the advertisement of the opposite party booked a plot No.AN-19 admeasuring 500 sq. yds. in Sector V in venture East City by making initial payment of Rs.4,500/- on 02-6-1994 and was allotted membership No.21286. He paid the entire cost of the plot of Rs.60,000/- by the end of 14-2-1995 and approached the opposite party for registration of the plot but he came to know that the opposite party did not obtain sanctioned plan. While so on 20-4-1999, he received a letter from the opposite party demanding to pay a sum of Rs.75,000/- for 500 sq. yds. towards development charges @ 150/- per sq. yd. It is the case of the complainant that according to the opposite partys brochure, the development charges were to be collected @ Rs.100/- per sq. yd. but the opposite party did not commence the development activities at all in the said venture. When the complainant approached the opposite party during the year 2000 to pay the development charges, they reused to receive the same and on the other hand demanded the complainant to pay the same @ Rs.200/- per sq. yd. It is his further case that the opposite party had a tendency to increase the developmental charges from time to time without taking the consent and the said revival is unilateral. The complainant further submitted that the plot allotted to him was already sold away by the opposite parties for higher prices. The complainant, therefore, got issued a notice to the opposite party on 29-10-2008 demanding opposite parties to register the plot in his favour but the opposite parties did not respond. The complainant submitted that after receipt of the entire cost of the plot from him unilaterally fixing the development charges and reviving them without developing amounts to deficiency in service.
Hence the complaint for a direction to the opposite parties to register the plot No.AN 19 in Section 5 and also pay Rs.2,00,000/- for the loss sustained by him together with Rs.2,00,000/- towards compensation, damages of Rs.40,000/- for loss of reputation, interest @ 18% p.a. and costs.
Opposite parties filed counter stating that the complaint is not maintainable as the complainant is not a consumer and joined the venture of the opposite party for commercial benefits and as such the dispute is not a consumer dispute and comes under Specific Relief Act and the civil court is the proper forum to adjudicate the dispute. They further submitted that the consumer case is filed only to avoid payment of court fee in civil court and as such the complaint is liable to be dismissed in limini. They, however, admitted that the complainant became a member but contended that he committed default in payment of development charges as required and as such the complainant cannot claim for registration of the plot. The complainant was never ready to perform his part of contract and failed to pay the development charges and registration charges within the stipulated time and therefore they had no other alternative except to reduce the area of the plot from 500 sq. yds. to 250 sq. yds. by letter dated 4-4-2007. They made correspondence from time to time i.e. on 21-9-2009, 07-3-2000, 26-9-2001, 30-3-2002, March, 2003, 17-9-2003, 28-11-2003, 29-2-2004, 26-6-2004, 31-12-2004 and 16-4-2004 informing the complainant about the outstanding dues payable by him in respect of the plot allotted to him. They submitted that they had put a proposal to its members to bear developmental charges which is a very meagre amount when compared to appreciation of the value of the plot because of passing of time. Most of the members have agreed and paid the additional development charges and registration charges. They submitted that as per the terms and conditions of the application for membership, it is clearly mentioned that plots will be registered to the members only after final sanctioned lay out approved by DTCP and after receipt of entire payments. Since the complainant failed to pay the developmental and registration charges, even after sufficient opportunity granted to him, the complainant cannot ask for registration of the plot and submitted that there is no deficiency and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A11 and B1 to B20 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite parties to execute the registered sale deed for the plot AN-19 admeasuring 500 sq. yds. in Sector V, East City after receipt of developmental charges @ Rs.200/- per sq. yd. and the complainant to bear the registration charges prevailing as on the date of registration of the sale deed together with costs of Rs.2,000/-.
Aggrieved by the said order, the complainant preferred F.A.No.1278/2009 and opposite parties preferred F.A.No.138/2010.
It is the complainants case that on 14-2-1995 he paid the entire sale consideration of Rs.60,000/- to the opposite party for plot No.AN-19 admeasuring 500 sq. yds. as per the brochure of Narne Estates Private Limited, East City, (Sector V). The complainant submits that inspite of completion of 13 years, the opposite party did not take any steps to register the plot in his favour. While so on 20-4-1999, (Ex.B4) the opposite party issued a letter to the complainant asking him to pay development charges @ Rs.150/- or Rs.37,500/- for a plot of 250 sq. yds. In the same letter, the opposite party also stated that if the complainant wishes to pay the entire development charges upfront in one lumpsum, a 10% discount is offered i.e. for a plot of 250 sq. yds. Rs.33,750/- is to be paid. It is the complainants case that in the brochure i.e. Ex.A10, the opposite party in their terms and conditions mentioned that developmental charges would be Rs.100/- per sq. yd. but the opposite party unilaterally increased it from Rs.100/- to Rs.150/- and thereafter to Rs.200/- per sq. yd. The learned counsel for the complainant contended that the opposite parties vide their letter dated 12-3-2007, Ex.B18, reduced their provisional allotment of 500 sq. yds. to 250 sq. yds. on the ground that the complainant did not pay the developmental charges in full. The complainant also got issued a legal notice to the opposite parties on 29-10-2008, Ex.A11, in which he called upon the opposite parties to register plot AN
19.
The learned counsel for the opposite parties contended that this complaint is barred by limitation as the sale consideration was paid on 14-2-1995 and this complaint was filed on 13-2-2009. We observe from the counter of the opposite parties that they themselves stated in para 3 that they correspond from time to time on 21-9-1999, 07-3-2000, 26-9-2001, 30-3-2002, 17-9-2003, 28-11-2003, 29-2-2004, 26-6-2004, 31-12-2004, 16-4-2004, 9-10-2004-Ex.B15, 27-1-2005-Ex.B14, 1-2-2005-Ex.B13, 4-4-2007-Ex.B16 15-3-2007-Ex.B17, 12-3-2007-Ex.B18. From this aforementioned correspondence it is clear that there is continuous cause of action. We rely on the judgement of the National Commission in JULIET V.QUADROS v. MRS. MALTI KUMAR reported in 2005 CPJ 499 (CP) (NCDRC) = 2005(2) CPR 1 (NC) wherein it was as follows:
Non registration of the plot after payment of entire sale consideration amounts to deficiency in service and the time period taken till the registration constitutes continuous cause of action.
Article 54 of the Limitation Act also states that the cause of action from the date of refusal by the opposite parties which in the instant case is 4-4-2007 evidenced under Ex.B16 wherein the opposite party stated that they are constrained to reduce the plot size from 500 sq. yds. to 250 sq. yds. and the complaint is filed well within 2 years i.e. 13-2-2009 and therefore viewed from any angle, the complaint cannot be stated to be barred by limitation.
It is the contention of the opposite parties that without paying the development charges and all other dues, the complainant cannot claim for registration of the plot and that they developed the venture by investing huge amounts and provided amenities which were not even promised to the Members at the time of starting the venture. The opposite parties had no other alternative except to reduce the plot area from 500 sq. yds. to 250 sq. yds. as the complainant did not come forward to pay the development charges and the same was informed to the complainant vide their letter dated 4-4-2007 vide Ex.B16. They deny that they did not undertake any developmental work and contend that they addressed letters dated 12-3-2007, 4-4-2007 for adjustment amounts paid towards the plot and asked the complainant to pay the registration charges. But the complainant did not pay the total dues and therefore their act in reducing the plot size is justified.
A perusal of Ex.A10 brochure shows term 6 of the terms and conditions as follows:
Development charges are likely to be Rs.100/- per sq. yd. and should be paid in monthly instalments when developmental works commence.
It is indicated in the brochure itself that the developmental charges would be Rs.100/- per sq. yd. hence the complainant is aware that developmental charges of Rs.100/- per sq. yd. would be charged on the developmental works. The learned counsel for the opposite parties filed his written arguments and contended that in fact the development charges have to be paid in the year 1996 itself in which year the development activities commenced and from 1996 till today the complainants have to pay interest on delayed payments. He relied on the decision of Honble High Court of A.P. in P.VAMSHIDHAR REDDY v.NARNE ESTATES reported in 2000 ALD (CONS.) 108 and also on a decision reported in V.KAMALA AND OTHERS V. A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION in 2010 (3) ALT 483 (DB) questioning the jurisdiction of this Commission to grant a decree for specific performance. We are of the considered view that in view of Section 3 of Consumer Protection Act, 1986 and also keeping in view the decision in W.P. No. 2846/2009 and batch by its order dt.------- filed by the very appellant against various persons to whom the plots were allotted, the High Court after considering the entire case law including the Honble Supreme Court which we do not want to reiterate opined that the Dist. Forum has jurisdiction to direct execution of registered sale deeds and deliver possession as it attracts Section 2(1)(o) of the C.P. Act. Despite settled proposition of law the respondent has been raising the very same contentions inviting the very same order.
The learned counsel for the opposite parties also relied on the decision of the National Commission in MANPREET KAUR v. VICE CHAIRMAN MEERUT DEVELOPMENT AUTHORITY AND OTHERS reported in CPR (NC) 2 (2010) 343 stating that for non payment of development charges, the complainants are not entitled for registration of the plots. The facts in the instant case are different in the sense that the opposite parties have not filed any documentary evidence to substantiate their contention that the development works have begun and that there are entitled to an amount of Rs.1,00,000/- which is more than the cost of the plot i.e. Rs.60,000/-. Therefore, we are of the view that the facts in the instant case are different. The learned counsel for the opposite parties drew our attention to Ex.A5 in which the opposite parties addressed a letter to the complainant herein on 20-4-1999 itself detailing the developmental works as follows:
a) Bush clearance: Before survey, we do not complete bush clearance. After making of all roads, roots and grass clearance will take place.
b) Marking the plots: Plots will be marked with header stone of sixe 26 x 16 Four corner stones will be fixed for each plot.
c) Laying Roads: After removing bushes and grass, we go for rough formation of roads by filing/cutting earth, fine formation, then 1st layer of WBM (with 60 mm stone metal 4 thick), again 2nd layer of WBM ( with 40mm stone metal 4 thickness), finally bitumen topping will be done.
d) Open drains (Rain water): All along roads, on both sides, open drains are made and at road junctions pipe culverts are constructed. Main drains will be of CRS messonry.
e) Sewage lines: Underground sewage pipes starting with 6 SWG pipes to 18 RCC pipes, will be laid and at every four plots junction, one manhole with four 90-4 SWG bends will be provided.
Centralized septic tanks and soakage pits are provided for each group of 200 houses.
f) Water lines: Distribution lines are 6 main line to 2 minimum pipe line of PVC giving each house a connection for round the clock water supply.
g) Street lights: Complete area is provided with three phase electric lines with street lights
h) Avenue plantation: All along both sides of roads, we plant avenue trees.
This Ex.A5 filed by the complainant also states as follows:
To carry out all the above works to the best standards, you are requested to remit Rs.1000/- per month per plot of 250 sq. yds. towards monthly instalments of developmental charges, with effect from April, 1999. Your co-operation in remittance of instalments regularly before 10th of each month is requested, to enable us to take up works on a big scale and to complete the project on time. You can also deposit 12 post dated monthly cheques at a time to avoid botheration every month.
The contention of the complainant that no amount can be paid towards developmental charges cannot be sustained as the opposite party in Ex.A5 in the year 1999 itself stated the details of the developmental works and also called upon the complainant to pay the developmental charges in monthly instalments. However, we find force in the contention of the complainant that the opposite party did not specify or substantiate by any documentary evidence the subsequent increase of the development charges from Rs.100/- to Rs.150/- and once again to Rs.200/- per sq. yd. Having indicated in the brochure that the development charges would be Rs.100/- per sq. yd., the opposite party cannot unilaterally double from Rs.100/- to Rs.200/- per sq. yd. Ex.B20 is the statement of account dated 7-1-2007 issued by the opposite party to the complainant in which the cost of the plot is given as Rs.60,000/- and the developmental charges as Rs.1,00,000/- and it is apparent on the face of the record that the developmental charges is much more than the cost of the plot. The act of the opposite parties in unilaterally demanding such high developmental charges which is more than the cost of the plot without any documentary evidence in support of the developmental activities undertaken by them which would reiterate such an increase, constitutes deficiency in service and we are of the considered view that the amount as per clause 6 of the terms and conditions of the brochure i.e. Rs.100/- per sq. yd. as indicated to the complainant is to be collected. The contention of the complainant that no developmental charges can be collected cannot also be accepted in the light of the fact that developmental charges of Rs.100/- per sq. yd. was indicated in the brochure and the complainant himself has stated so in his complaint and affidavit about the terms of the brochure and filed Ex.A10 brochure. Therefore, we are of the considered view that the complainant should pay Rs.100/- towards developmental charges as mentioned in the brochure and the opposite party cannot reduce from 500 sq. yds. to 250 sq. yds. on the ground that the complainant did not pay Rs.200/- towards developmental charges.
There is also no evidence to state that these plots have been alienated to a third party.
In the result appeal F.A.No.138/2010 filed by the opposite parties is dismissed and F.A.No.1278/2009 filed by the complainant is allowed in part reducing the developmental charges from Rs.200/- per sq. yd. to Rs.100/- per sq. yd. as mentioned in the brochure while confirming the rest of the order of the District Forum. No costs. Time for compliance four weeks.
F.A.Nos.1279/09to 1284/09 & F.A.Nos.139/2010 to 144/2010:
For the same reasons as stated in F.A.No.1278/2009 and F.A.No.138/2010, these appeals i.e.F.A.Nos.139/2010 to 144/2010 are dismissed and F.A.Nos.1279/09 to 1284/09 filed by the complainants are allowed in part reducing the developmental charges from Rs.200/- per sq. yd. to Rs.100/- per sq. yd. as mentioned in the brochure while confirming the rest of the order of the District Forum. No costs. Time for compliance four weeks.
Sd/-MEMBER.
Sd/-MEMBER.
JM Dt.18-10-2010