State Consumer Disputes Redressal Commission
Mr.D.Balakrishna Rao S/O Late ... vs M/S Narne Estate Pvt Ltd., And Another on 18 January, 2010
FA 393 of 2007 BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. F.A.No.393 OF 2007 AGAINST C.C.NO.659 OF 2006 DISTRICT CONSUMER FORUM-II HYDERABAD Between Mr.D.Balakrishna Rao S/o late Gurunadhan Aged about 60 yrs, Occ: Retired R/o H.No.8-3-168/20/12, Siddhartha Nagar (North) Near A.G.Colony, Behind T.B.Hospital, Hyderabad-38 Appellant/ complainant A N D M/s Narne Estate Pvt Ltd., (through its Directors /officers/representatives) having its office at No.10, Gun Rock Enclave Secunderabad-09 Respondent/ opposite party Counsel for the Appellant Sri K.A.Rawoof Counsel for the Respondent Sri V.Henry QUORUM: HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT & SRI R.LAKSHMINARSIMHA RAO, MEMBER
MONDAY THE EIGHTEENTH DAY OF JANUARY TWO THOUSAND TEN Oral Order ( As per R.Lakshminarsimha Rao, Member) *** The unsuccessful complainant is the appellant who filed the appeal against the challenging the order of the District Forum-II, Hyderabad whereof the complaint was dismissed.
Briefly stated the facts of the case are that the appellant paid a sum of Rs.10,150/- through cheque dated 30.9.1992 to the respondents which allotted him membership no.9545. The appellant had made payment through cheques towards the balance cost of the plot. The respondent informed the appellant through letter dated 1.7.1993 that the plot no.17, 18 admeasuring 500 sq.yards in block CC under Sector IV of East City were allotted to him. Subsequently, the respondent had reduced the area of the plot to 250 sq.yards allegedly on account of technical problems and re-allotted plot no.18(CP) in block CC under Sector IV of East City. The respondent through letter dated 30.4.1996 informed the appellant that they will indicate schedule of development charges payable by the appellant in respect of the plot. The respondent has not informed the schedule of payment of development charges. On 13.5.2006 the respondent had informed the appellant that they have cancelled the plot allotted to him as he had committed default in payment of development charges and a cheque for Rs.25,000/- was sent towards the refund of the amount that was paid by the appellant in the year 1992. The appellant had paid entire cost of the plot admeasuring 250 sq.yards on 23.4.1993, the respondent was obligated to execute registered sale deed in favour of the appellant and instead delayed the same on one pretext or the other as developing the land. The respondent through their letter dated 30.5.2006 informed the appellant stating therein that some other letters were purported to have been sent to the appellant with a demand for payment of development charges. The appellant has got issued legal notice dated 27.6.2004 in response of which the respondent did neither give any reply nor did it execute the sale deed in favour of the appellant.
The respondent resisted the claim contending that the appellant had paid Rs.10,000/- at the time of booking the plot.
On the request of the appellant, plot Nos.17 and 18 were allotted to him in the East City developed by the respondent. The cost of the two allotted parts was Rs.50,000/-. The appellant paid a sum of Rs.10,000/- through cheque dated 2.1.1993 and another Rs.10,000/- through cheque dated 2.2.1993 towards the instalments. Thus the two cheques were dishonoured on account of insufficient funds in the account of the appellant. By the month of July 1993 the appellant has paid an amount of Rs.25,000/- and he had to pay two instalments of Rs.2,500/-.
The respondent through letter dated 27.12.1993 requested the appellant to clear the dues. In view of the default committed by the appellant, the respondent reduced the two allotted plots to one plot of 250 sq.yards. As per the terms and conditions of the membership form the appellant has to pay 10% additional amount on the cost of the plot as the plot allotted to him was a corner plot. The appellant has to pay Rs.27,500/- and an amount of Rs.100/- per sq.yard towards development charges. The respondent addressed another letter dated 11.5.1995 that the development charges were due from the appellant. Unless the development charges are paid, the appellant cannot be said to have paid total cost of the plot. The appellant is not entitled for registration of the sale deed. The allotment of the appellant was cancelled.
The respondent refunded the amount without deducting any service charges. The cancellation of the allotment was done according to the terms and conditions stated in the membership form. There was no deficiency in service on the part of the respondent.
The appellant has filed his affidavit in support of his case and Exs.A1 to A15 were marked on his behalf.
On behalf of the respondent Exs.B1 to B11 were filed.
The District Forum has dismissed the complaint opining that the appellant had committed default in payment of instalments and development charges.
The point for consideration is whether the impugned order suffers from infirmity of misappreciation of fact or law?
The appellant for the purpose of allotment of plots in the EASt City, paid an amount of Rs.10,150/- through cheque no.014386 dated 13.9.1992 to the respondent. The amount includes Rs.150/-
towards membership fees. The respondent allotted two plots vide allotment letter dated 20.10.2002 in favour of the appellants. The appellant had paid through cheques an amount of Rs.10,150/- Rs.10,000/-, Rs.10,000/- and Rs.5,000/- acknowledging the amount, the respondent had issued receipts dated 17.10.1992 (Ex.A1), 6.1.1993 (Ex.A3),, 5.2.1993 (Ex.A4) and 26.4.1993 (Ex.A5).
The cheques were returned unpaid.
It appears the appellant paid the amount later. In view of admission of the respondent, the appellant paid the amount of Rs.25,000/- towards some of the instalments as also the rest of the monthly instalment due to be paid. The membership form Ex.B1 indicates that size of the plot ranging from 250 sq.yards, 500 sq.yards, 750 sq.yards to 1000 sq.yards and the cost of the plot of 250 sq.yards is Rs.25,000/-, the cost of plot measuring 500 sq.yards is Rs.50,000/- while that of 750 sq.yads is Rs.75,000/- whereas the cost of 1000 sq.yards is Rs.1,00,000/- and the amount in terms of clause 8B of conditions of Ex.B1 payable in respect of plot of 250 sq.yads is Rs.1250/- per month in addition to initial payment of Rs.5000/-, the monthly instalment of 500 sq.yards plot is Rs.2500/- exclusive of initial payment of Rs.10,000/-. The monthly instalments of Rs.1250/- per month per 250 sq.yards plot is payable in 14 months/16 months. In case of default in monthly instalments interest @ 15% is payable.
In addition to the interest on defaulted monthly instalments development charges as and when civil works commence is also payable by the allottee.
The appellant requested, as seen from Ex.B6 in lieu of plots Nos.33 and 34 for allotment of plot Nos.17 and 18 in the CC block. The appellant has also requested through letter dated 7.1.1998 Ex.B7 that he was promised 40% discount against which he was compelled to pay the entire amount. Further it was stated that being a Country Club member the appellant claimed 20% discount which he could not avail the discount on account of fraud played on him by the mediator. The request for 40% of the request made by the appellant was turned down by the respondent as seen from the letter dated 27.1.1998.
The respondent issued letter dated 8.5.1995 informing the appellant that on account of his default in payment of the amount of Rs.50,000/- w.e.f., the month of December 1992 against which he had paid an amount of Rs.25,000/- for the two plots, he was held eligible for one plot and as such fresh allotment letter was issued along with statement of account whereof the amount paid by the appellant was adjusted. The respondent issued allotment letter Ex.A9 on 11.5.1995 allotting plot no.18(CP) in Block CC Sector IV East City, Secunderabad. The respondent had issued Ex.A10 letter dated 30.4.1996 informing the appellant that the development charges can be paid only by the end of the year 1996 till which time the development activity would not commence and it was informed to the appellant that the exact schedule for payment of development charges would be informed to him in their successive news letters. Immediately in the next month i.e., on 30.5.2006 the respondent issued Ex.A11 cancelling the plot allotted to the appellant and a cheque for Rs.25,000/- was sent to the appellant towards refund of the amount paid by him. This letter of cancellation is against the assurance given by the respondent under Ex.A10 that till the end of the year 1996 development charges need not be paid. Under ExA10 the respondent promised to keep live the account of the appellant till the end of the year,1996 or till they informed the appellant through successive news letters about the development of the plots.
The respondent has taken unilateral decision reducing the two plots to one plot citing the default committed by the appellant in payment of the monthly installments. The cost of the single plot according to the respondent is Rs.25,000/- and by taking an unilateral decision the respondent had allotted single plot in lieu of the two plots that were allotted to the appellant. At the time of allotment of the single plot reducing the size of two plots under allotment, the respondent had not consulted the appellant to know about his preference to corner plot. It is not the case of the respondent that there were no other plots available except the corner plot at the time the size of the two plots was reduced by it into a single plot. Without consulting the appellant and even without informing him the respondent had adjusted the amount paid by the appellant for two plots to a single plot cost of which is Rs.25,000/- Instead of adjusting the amount completely towards the cost of the single plot the respondent has devised a tool in the shape of corner plot and thereby continued to claim an additional amount of Rs.2,500/- which was never opted for by the appellant.
This act of reducing the size of two plots into a single plot without intimating the appellant and thereafter confining it to the cost of corner plot to claim excess amount of RS.2,500/- constitutes not only deficiency in service on the part of the respondents as also unfair trade practice on its part.
The respondent, after issuing Ex.A10, as aforesaid extended time for the appellant to pay the development charges and kept him under the impression that till the end of December 1996 he need not pay any development charges whereof his allotment account would be kept alive. The very next month i.e., May, 2006, the respondent had hurriedly cancelled the allotment in favour of the appellant citing four letters said to have been issued to the appellant which were never proved to be served on the appellant. Hence, the hasty cancellation of the allotment by the respondent without waiting till the month of December 1996 as also without issuing any letters in terms of Ex.A10 is held to be arbitrary and against the principles of natural justice. The appellant has got issued legal notice Ex.A14 receipt of which acknowledged by the respondent wherein the appellant had categorically stated that he was informed by the respondent that the cost of the plot was paid and development charges were left to be paid by him. The appellant claimed non-receipt of any communication from the respondent in regard to the status of the plot or in respect of the amount under the head of Development Charges payable by him to the respondent.
The respondent had not made it clear whether the appellant was entitled to 40% discount , a request for which amount was made under Ex.B7. The respondent instead of making it clear how and why the appellant was not entitled to discount much less the 40% discount as claimed by him, simply issued Ex.B8 stating that the application filed earlier for the two plots by the appellant does not indicate any such discount and kept the hopes of the appellant alive by inviting him for discussion on the aspect of entitlement of the appellant to the discount on the cost of the plots. Instead of clarifying or demystifying the cloud of doubt entertained by the appellant in regard to the actual cost of the plots subject to or devoid of discount claimed by him, the respondent as aforesaid had adopted unfair trade practice as the amount of Rs.2,500/- charged was not towards the cost of single plot but as an additional amount towards the additional charges for the purpose of allotment of a corner plot which was never opted for by the appellant. For all these reasons we are inclined to hold that the cancellation of allotment by the respondent is unjust, unfair and untenable. Accordingly, the appeal deserves to be allowed.
In the result, the appeal is allowed by setting aside the order passed by the District Forum, consequently the complaint is allowed.
The respondent is directed to receive Rs.2,500/- along with interest @ 9% per annum as also an amount of Rs.25,000/- towards development charges and execute registered sale deed in favour of the appellant within one month from the date of receipt of the aforesaid amount from the appellant. The respondent directed to pay costs of Rs.2,000/- to the appellant within four weeks from the date of receipt of copy of this order.
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PRESIDENT Sd/-
MEMBER Dt.18.01.2010 kmk