BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No.789/2011 against C.C.No.285/2010 District Forum-I, VISAKHAPATNAM.
Between
1. M/s Janachaitanya Housing Ltd.,
Rep. by its Branch Manager,
Branch-III, Railway New Colony
Near Sri Kanya Theatre,
Visakhapatnam-530 016
2. M/s Janachaitanya Housing Ltd.,
Rep. by its Chairman & Managing
Director, 1st floor, Chowdry Mansion,
Ameerpet, Hyderabad-500 16. …Appellants/
opposite parties
And
Mamidi Gavarayya S/o.late Sanyasi
Aged 59 years, Hindu, employee of Naval
Dockyard, R/o.Door No.34, SC Colony
Near Baji Junction, Gopalapatnam
Visakhapatnam. Respondent/
Complainant.
Counsel for the Appellants : Mr. M.Srinivasa Swarup
Counsel for the Respondent: M/s.C.Sanjeeva Rao
F.A.No.59/2013 against C.C.No.285/2010 District Forum-I, VISAKHAPATNAM.
Between
Mamidi Gavarayya S/o.late Sanyasi
Aged 61 years, formerly employee of Naval
Dockyard, R/o.Door No.3-34, SC Colony
Near Baji Junction, Gopalapatnam
Visakhapatnam. Appellant/
Complainant.
And
1. M/s.Janachaitanya Housing Ltd.,
Rep. by its Branch Manager,
Branch-III, Railway New Colony
Near Sri Kanya Theatre,
Visakhapatnam-530 016
2. M/s Janachaitanya Housing Ltd.,
Rep. by its Chairman & Managing
Director, 1st floor, Chowdary Mansion,
Ameerpet, Hyderabad-500 16. …Appellants/
opposite parties
Counsel for the Appellant : M/s.C.Sanjeeva Rao
Counsel for the Respondents: Mr. M.Srinivasa Swarup
QUORUM: SMT.M.SHREESHA, HON’BLE Incharge President
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
FRIDAY, THE TWENTY SIXTH DAY OF APRIL,
TWO THOUSAND THIRTEEN
Order (Per Smt.M.Shreesha, Hon’ble Incharge President)
***
Aggrieved by the order of C.C.No.285/2010 on the file of District Forum-I, Visakhapatnam, the opposite parties preferred FA 789/2011 and the complainant preferred FA 59/13. Since both the appeals arise out of a common C.C. they are being disposed of by a common order.
The brief facts as set out in the complaint are that the complainant was approached by the marketing personnel of the opposite parties and the complainant became a member of the scheme floated by the opposite parties and paid an initial amount of Rs.1,000/- on 05-4-2007 and a passbook No.996 was issued to him for Plot No.666 admeasuring 220 sq. yds. at the rate of Rs.330/- per sq. yd. The last instalment was paid on 13-3-2005 and the complainant totally paid an amount of Rs.34,800/- to the opposite parties towards the cost of the plot. Thereafter the complainant submits that the opposite parties did not accept the monthly instalments and when he visited opposite party No.1 on 18-8-2006 and he was informed that he will be allotted plot No.590 to an extent of 267 sq. yds. in the same layout instead plot No.666. Inspite of additional burden, the complainant agreed for this offer and expressed his willingness to pay the balance sale consideration but the same was not received and the plot was not registered. Therefore the complainant got issued a legal notice on 02-4-2007 but there was no reply and after waiting for some time, he got issued another legal notice on 08-3-2010 which was acknowledged by opposite party No.1 but there was no reply. Hence the complaint seeking directions to the opposite parties to execute registered sale deed in favour of the complainant for plot No.590 to an extent of 267 sq. yds. in Sai Vishnu Phase II/A after receiving the balance sale consideration or in the alternative refund the market value of the plot together with compensation and costs.
Opposite party No.2 filed written version stating that the complainant paid Rs.35,000/- as against Rs.77,000/- and defaulted in payment of the remaining amounts. Opposite party also submitted that there were unanticipated hurdles in obtaining approvals, mobilisation of lands, development of layouts, drains, electricity provisions etc. and thereafter the authorities insisted for increasing the road width from 33 feet to 40 feet for commercial facilities and enhanced the number of open areas and opposite parties also had to meet the balance conversion charges of Rs.2,79,800 and Rs.42,00,000/-. With great effort, the opposite party could get layout on 07-1-2010 and the complainant being a defaulter is not entitled to get registration of plot No.590 or market value and hence seeks dismissal of the complaint.
The District Forum based on the evidence adduced i.e. Exs.A1 to A6 and the pleadings put forward, allowed the complaint in part directing the opposite parties to execute registered sale deed within one month in favour of the complainant and the complainant was directed to deposit the balance sale consideration of Rs.53,310/- for plot No.590 and in case of failure to do so, by the opposite parties, they shall pay Rs.1,00,000/- towards compensation with interest at 9% p.a. from the date of order till the date of payment besides refund of Rs.34,800/- with interest at 9% p.a. from 13-3-2005 within one month failing which opposite parties shall pay the same with interest at 12% p.a. together with costs of Rs.1500/-.
Aggrieved by the said order, the opposite parties preferred FA 789/2011 and the complainant preferred FA 59/13.
Both sides filed written arguments.
The learned counsel for the appellants/opposite parties contended that the respondent/complainant paid the amounts only according to his convenience but not as per the terms and conditions of the scheme and that he paid Rs.34,800/- as on 13-3-2005 and thereafter became a defaulter. As per clause 20 if any member commits default in payment of three consecutive instalments, his membership will be cancelled without notice and all payments made will stand forfeited and as the complainant became a defaulter, he is not entitled for any allotment of plot.
Prima facie this condition of forfeiture of the entire amount without issuance of any notice i.e. giving opportunity to the complainant to make any payment in future and cancelling his membership without issuing any notice and especially when the complainant alleged in his complaint that he was ready to pay the balance amount but the opposite parties did not accept the same, it is against the principles of natural justice and can be considered as unfair trade practice.
The counsel for the appellants stated that they obtained layout permission from VUDA vide LP No.2/10 on 07-1-2010 and the said venture was developed with great difficulty by paying huge amounts towards development, conversion charges and obtaining lay out plans and hence the question of allotment of plot does not arise as the complainant is a defaulter and paid only Rs.34,800/- out of Rs.88,000/-.
Ex.A1 is the pass book dated 05-4-2000 which evidence that the complainant has paid an amount of Rs.34,800/- to the appellants by 13-3-2005. We observe that the scheme was launched in the year 2000 and the instalments were collected till the year 2005 whereas the approval was got only on 17-1-2010. It is the apparent on the face of the record that the appellants took 10 long years for obtaining permissions and approved layouts and have started selling plots even without proper layouts which constitutes deficiency in service.
We rely on the decision of CDJ 2012 SC 370 M/s.Narne Constructions P. Ltd., V. Union of India and others wherein it was observed that
Offering plots for sale to its members/customers with an assurance of development of infrastructure/amenities, lay out approvals etc. was a service within the meaning of clause (o) of Section 2(1) of the Act and therefore be amenable to the jurisdiction of the fora established under the statute.
We also observe that the original estimate of development was Rs.70/- per sq. whereas admittedly the opposite parties have demanded an exorbitant amount of Rs.1450/- per sq. yd. which is not justified. The expenditure claimed by the appellants was Rs.44,79,800/- apart from this the appellants did not file any documentary evidence with respect to any other additional expenditure and if this sum is divided by the number of plots, it comes to around maximum of Rs.12,000/- per plot, whereas the appellants demanded as much as Rs.3,00,000/- per plot. The complainant was allotted plot of 267 sq. yds. at of Rs.88,100/- is now asked to pay Rs.3,87,150/- and it is also the case of the complainant that the appellants had his amount from the year 2000 onwards and therefore cannot now turn around and forfeit the amount. We also observe that the permission itself was obtained in the year, 2010 and therefore the contention of the appellants that the complaint is barred by limitation is unsustainable, moreover the possession of the plot had not been delivered nor did the execution of sale deed take place and the complainant also got issued legal notice on 18-11-2009 and there is no notice issued by the appellants with respect to any cancellation of plot and therefore we are of the considered view that the cause of action is continuing.
The amount demanded by the appellants with respect to development charges is exorbitant. An alternative plot was offered to the complainant on 18-8-2006 and this was also not denied by the appellants and now that the market value has increased, it is the case of the complainant that the appellants refused to register the plot and trying to forfeit the amounts paid. To reiterate, keeping in view that the permission was got only in the year 2010 and the plots were allotted way back in the year 2000, it constitutes deficiency in service and also the fact that the appellant did not file any documentary evidence to substantiate the demand for exorbitant amounts towards development charges, we are of the considered view that there is deficiency in service on behalf of the appellants in not registering the plots by accepting the balance sale consideration. Clauses 20 and 21 of the terms and conditions are one sided and amounts to unfair trade practice and against the principles of natural justice. For reasons mentioned above, we do not see any reason to interfere with the well considered order of the District Forum and therefore the appellant preferred by the appellants/opposite parties fail and is accordingly dismissed. Time for compliance 4 weeks.
The complainant has preferred the appeal F.A.No.59/13 seeking enhancement of compensation to Rs.3,00,000/- which we are also of the considered view is excessive and taking into consideration that the cost of plot is Rs.88,100/- and interest has also been awarded, we are of the considered view that the compensation of Rs.1,00,000/- would meet the ends of justice and therefore see no reason to interfere with the well considered order of the District Forum.
We observe from the record that the complainant did not deposit costs of Rs.1,000/- as directed by this Commission in its conditional order while condoning the delay in FAIA.No.2315/2012 dated 08-2-2013 and at the time of pronouncement of order, counsel for the complainant submitted that he had entrusted the money to his colleague which was not paid and later when he offered to pay the same, the learned counsel for the respondent did not accept and he filed a memo to that effect on 09-4-2013 and taking into consideration the delay, we impose costs of another sum of Rs.1,000/- to be paid by the complainant to the opposite parties.
In the result both these appeals i.e. FA.Nos.789/2011 and FA 59/13 fail and they are accordingly dismissed. F.A.No.59/2013 is dismissed with costs of Rs.1,000/- . Time for compliance four weeks in FA 789/2011.
INCHARGE PRESIDENT.
MEMBER.
JM Dt.26-4-2013.
