BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.

C.C. No. 40/2010

Between:

P. Chandrasekhara Reddy

S/o. P. Narasimha Reddy

Age: 39 years, Business

R/o. # 69, Indu Fortune Fields

KPHB Phase-XIII, Kukatpally

Hyderabad *** Complainant

And

1) M/s. Kalyan Constructions

Rep. by its Managing Partner

V. Murali Krishna, S/o. V. V. Raghavaiah

Age: 50 years, H.No. B-2-293/174/A/16

Road No. 14, B.N. Reddy Colony

Banjara Hills, Hyderabad-500 034.

2) P. Narasimha Reddy,

S/o. Late P. Narayana Reddy

Age: 79 years, Retd. Service

H.No. 1-8-303/12/3

P.G. Road, Secunderabad.

3) Mrs. P. Sulochana

W/o. P. Narasimha Reddy

Age: 74 years, Housewife

H.No. 1-8-303/12/3

P.G. Road, Secunderabad.

4) Smt. C. Tanuja, W/o. C. Surendra Reddy

Age: 49 years, Housewife

H.No. 1-8-303/12/3

P.G. Road, Secunderabad.

5) Dr. (Mrs) T. Andaloo

W/o. T. Sanjay Reddy

Age: 36 years, Doctor

H.No. 1-8-303/12/3

P.G. Road, Secunderabad.

6) Dr. E. Seetha Ram Reddy

S/o. E. Ranga Reddy

Age: 39 years, Business

H.No. 1-8-303/12/3

P.G. Road, Secunderabad.

7) P. Ramachandera Reddy

S/o. P. Narayana Reddy

Age: 74 years, Agriculture

H.No. 1-8-303/12/3

P.G. Road, Secunderabad. *** Opposite Parties

(R2 to R7 are not necessary parties)

Counsel for the Complainant: M/s. Ramesh Kumar Nayani

Counsel for the OP: None

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

SMT. M. SHREESHA, MEMBER

MONDAY, THIS THE SIXTEENTH DAY OF AUGUST TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

***

1) This is a complaint filed u/s 17 of the Consumer Protection Act against the opposite party No. 1 M/s. Kalyan Constructions, a developer to re-deliver the vacant land in an extent of 1,939 sq.yds and damages ‘ as assessed by the Hon’ble Forum’.

2) The case of the complainant in brief is that Op1 is a partnership firm. It had entered into a Memorandum of Understanding (MOU)-cum- confirmation of settlement with him on 23.2.2007 for construction of independent duplex houses. Ops 2 &3 are his parents, Ops 4 & 5 are his sisters, Op6 is his brother and Op7 is his uncle however he did have any claim against them and as such no notices were taken against them. He came to know that most of the family properties were alienated and some of the properties were transferred to Op1 and to M/s. Shri Lakshmi Venkateswara Estates, not a party to this complaint, as no claim was made against it. Since the property was joint, he filed a suit for partition in O.S. No. 178/2004 against Ops 2 to 7 which was ended in a compromise decree on 7.2.2006. Though he asked for his share of 10 acres, his parents had induced him to get the matter settled as he would anyhow get the property after their life time. He accepted three acres of land wherein he got Ac. 1.20 in S.No. 122/A and 122/AA of the schedule land. Subsequent to the decree Ops 2 to 7 executed a development agreement-cum-GPA on 20.10.2006 in favour of OP1, without his knowledge. He was not a signatory to it. Coming to know of this fraudulent and illegal act, he raised a dispute. On that they agreed to give five villas. They had allotted plot Nos. 14, 19,21,38, and 79 admeasuring 315 sq.yds, 292 sq.yds, 292 sq.yds, 292 sq.yds and 345 sq.yds respectively, thus totalling 1536 sq.yds towards his share. Since he was in dire need of money, he alienated the plot Nos. 14,19,and 38 in favour of third parties. Since the title deeds are in the name of Ops 2 to 6 they executed the sale deeds on his behalf. Later they came to an understanding and entered into an MOU-cum-Confirmation of settlement on 23.2.2007. Op1 constructed duplex houses on plots Nos. 14 & 38. During the said period Op1 had alienated plot No. 79 on his behalf, but failed to construct the independent duplex house for which the purchaser issued notice to him claiming damages. Plot No. 21 was neither alienated to any buyer nor construction activity was taken up. By virtue of development agreement dt. 22.10.2006 Op1 was supposed to complete the construction by 14.2.2009. Since Op1 did not construct duplex independent houses he was entitled to possession of the said property and therefore sought for re-delivery of vacant site in an extent of 1,939 sq.yds and compensation as assessed by this Commission with costs.

3) The complainant for the reasons best known did not choose to take notices to Ops 2 to 7 on the ground that they were not necessary parties. We may state that most of the allegations were made against them and in fact they executed the development agreements in favour of Op1 for the disputed property.

4) Op1 did not choose to contest.

5) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A6 marked.

6) The point that arises for consideration is whether the complainant is entitled for re-delivery of the property handed over to Op1 for construction of independent duplex houses?

7) At the outset we may state that the very reading of the complaint would disclose that the complainant valued the property at Rs. 1 crore and conveniently prayed for damages as assessed by this Commission without quantifying as it would exceed the pecuniary jurisdiction of this Commission.

8) The complainant claims that he got Ac. 1.20 gts in S.Nos. 122/A & 122/AA situated at Yapral village of Malkajigiri mandal in Ranga Reddy district by virtue of a compromise decree in O.S. No. 178/2004 on the file of III Addl. Chief Judge, City Civil Court, Hyderabad vide Ex. A1 photostat copy of compromise decree. The complainant is entitled to Ac. 3.00 of land in S.No. 122/A & 122/AA besides other survey numbers mentioned in Schedule-A. There was a mention that in respect of lands described in ‘A’ schedule Ops 2 to 6 have already entered into development agreement with M/s. Kalyan Constructions (Op1) herein and M/s. Lakshmi Venkateswara Estates Pvt. Ltd. on 19.3.2005 respectively, the terms of which are binding on the complainant. Obviously the properties consisting of different survey Nos. situated at different places that were allotted to different persons were not sub-divided by metes and bounds. The complainant’s parents and other family members excluding the complainant entered into development agreement with Op1 on 19.3.2005 vide Ex. A3, which was admittedly prior to compromise wherein his parents and others agreed to give Ac. 9.15 guntas of land in S.No. 122 for development where the Op1 agreed to construct three residential duplex houses with built up area of 1450 sft including balconies and common areas with duly developed and finished structures and the remaining 67% of the plotted area to be enjoyed by the developer and given right to alienate the property to the prospective purchasers. Op1 had agreed to pay Rs. 65 lakhs towards security deposit. While filing Ex. A3 document the complainant had put black ink at the places where the amounts were mentioned. Obviously to clothe the pecuniary jurisdiction of this Commission as we have earlier pointed out, evidently he is not a signatory to the document.

9) He alleges that the opposite parties again entered into a development agreement-cum-GPA under Ex. A4 dt. 20.10.2006 without his consent, giving the very same property for development to Op1. Since he was not a party to this document he mentions in his complaint that the said development agreement-cum-GPA is illegal and non-est. He further pleads that he agreed to take plot Nos. 14, 19, 21, 38 and 79 admeasuring 1536 sq.yds., which he has given to Op1 for construction of villas under MOU entered into vide Ex. A5. We may mention herein that the complainant admits allotment of plots equally the fact of alienation of plots. He himself admits in the complaint that he sold away the plot Nos. 14,19,and 38 in favour of third parties. Since the said fact is not evidenced by any document, he conveniently stated that Ops 2 to 6 executed the sale deeds on his behalf as the title deed were in their names. Curiously, he alleges that the purchasers who purchased the other plots were dis-satisfied with the construction made by OP1. It is not known how it was relevant, obviously to drive at the point that there was deficiency in service for which he was no more owner.

10) He himself admits that plot No. 79 which fell to his share was sold away by Op1. It is not known why he did not take any action against Op1. On the other hand he is claiming that the said property be re-delivered to him. There remains only plot No. 21. In Ex. A4 the extent of plot Nos. 21 to 24 was mentioned as 292 sq.yds each total measuring 876 sq.yds. At clause-5 it was mentioned that both the developer and owners have mutually agreed to share the developed land in the ratio of 63:37 i.e., 37% of the developed plots towards the share of the owners and 63% towards the share of the developer. He was given the share and the said share was not divided by metes and bounds. In fact the property allotted to him was already sold as we could see from the document. We do not know how he could claim 1939 sq.yds. In fact at one place he alleges that he was allotted 4536 sq.yds towards settlement of his share in respect of the property and claims 1939 sq.yds in the property, even after sale of plots Nos. 14,19,38 by him and plot No. 79 by Op1.

11) In the light of above, there could not be said to be any deficiency in service on the part of OP1. It may be stated that the complainant all through was pleading that the agreements were all illegal, fraudulent and obtained by deceit and mis- representation. He pleads that “ in addition to this the entire act of opposite party No. 1 spelt an intention to cheat and perpetrate fraud on the complainant herein. Having taken the land way back in the year 1995 under an agreement of development it is surprising that till now OP1 has been dilly dallying without performing his contract, having tricked the complainant and his family into an illegal and fraudulent agreement by deceit and mis-representation. Therefore the contract with the complaint is vitiated by fraud and mis-representation and hence the contract does not subsist between the parties 1 to 7 and the complainant. Under these facts and circumstances the complainant herein is entitled to the proportionate land back from the Op1 for non performance of the contract.”

12) The complainant could not examine any witnesses or filed documents in order to prove that there was mis-representation or fraud played on him. He could not explain as to how still an extent of 1939 sq.yds is available for which he could seek re-delivery. Conveniently the opposite party did not choose to contest and they intend an ex-parte order be passed in favour of the complainant as they will loose nothing. We can go to the extent of stating that this complaint was instituted at the behest of his family members but for which there is no reason why the complainant did not want to proceed ahead against the persons who had executed agreements in favour of third parties by playing fraud and mis-representation. Op1 was equally aware that no effective decree could be passed as property was not sub-divided by metes and bounds.

13) In fact the Supreme Court in Faquir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. reported in III (2009) CPJ 48 (SC) has observed in regard to these development agreements where land owner, and developers/builders enter into development agreement, “if there is a breach by the landowner of his obligations, the builder will have to approach a civil court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the civil court. Or he can approach the Forum under Consumer Protection Act, for relief as consumer, against the builder as a service provider. Section 3 of the Act makes it clear that the remedy available

under the Act is in addition to the normal remedy or other remedy that may

be available to the complainant.”

14) In the light of above decision, what he could ask primarily for construction of buildings for which he entrusted the property. By no stretch of imagination, he can seek re-delivery of the property, more so when different extents of land of different survey numbers of different owners for which the property was not sub-divided by metes and bounds for which the complaint was filed. More over when various alienations were made not only by the complainant but also by Op1 pursuant to the development agreement this Commission cannot order re-delivery of the property.

15) The learned counsel for the complainant relying a decision in Indochem Electronic Vs. Addl. Collector of Customs reported in 2006 CPJ(1) 1 contended that this Commission has jurisdiction when there is deficiency in service in pursuance of contract or in relation to any service. That was a case breach of conditions of warranty. In that context the Supreme Court opined that “ in regard to nature of deficiencies of service complained in terms of provisions of the contract where such breach of conditions of warranty had taken place such dispute would fall within the ambit of Consumer Protection Act. We are unable to appreciate the applicability of said decision to the facts on hand. It is altogether differently rendered in a different context.

16) The Hon’ble Supreme Court in New India Assurance Company Vs. Hira Lal Ramesh Chand reported in (2008) 10 SCC 626, (2008) 3 CPJ 6 (SC) and in Trai Foods Ltd. Vs. National Insurance Company reported in (2004) 13 SCC 656 categorically opined that it could be civil court that would be an appropriate forum for granting relief of this nature.

17) When the complainant pleaded fraud, mis-representation no evidence whatsoever was let in to prove this fact. These issues cannot be resolved in a summary proceedings. In fact the dispute does not come within the purview of the Consumer Protection Act. Admittedly the complainant has filed this complaint to get over payment of court fee besides a question to be resolved by a civil court. We are of the opinion that there are no merits in the complaint.

18) In the result the complaint is dismissed. No costs.

1) _______________________________

PRESIDENT

2) ________________________________

MEMBER

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

COMPLAINANT: OPPOSITE PARTIES

None None.

Documents marked for complainant:

Ex.A-1 07.02.2006 Copy of compromise decree in O.S. 178/2004.

Ex.A-2 26.12.2005 Copy of joint memo of compromise filed in

O.S. No. 178/2004.

Ex.A-3 19.03.1995 Copy of agreement for development of land

Ex.A-4 20.10.2006 Development agreement cum GPA

Ex.A-5 -- Memo of understanding-cum-confirmation of

Settlement.

Ex.A-6 09.08.2009 O/c. of legal notice got issued by complainant to

Ops.

Documents marked for Opposite Parties : Nil

1) _______________________________

PRESIDENT

2) ________________________________

MEMBER

*pnr Dt. 16.08.2010.