BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
C.C.No.71/2012
Between:
Westend Meadows Plot Owners Welfare
Association, represented by its President
C.Amarnath,B.G.-4,
Venkataramana Apartments,
11-4-634,A.C. Guards, I.T.Towers Lane,
Hyderabad- 500 004. Complainant
And
1.Radha Realty Corporation (I) Private Limited,
Represented by its Managing Director,
# 6-3-609/96/A, Anand Nagar Colony,
Khairatabad, Hyderabad.
2. N.Ravindranath Reddy,
Managing Director,
Radha Realty Corporation (I) Private Limited,
# 6-3-609/96/A, Anand Nagar Colony,
Khairatabad, Hyderabad. Opp.parties.
Counsel for the Complainant : Mr.Srinivas Karra
Counsel for the Opp.parties : M/s.V.Gowrisankar Rao
QUORUM: SMT. M.SHREESHA, HON’BLE INCHARGE PRESIDENT,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
MONDAY, THE SEVENTH DAY OF OCTOBER,
TWO THOUSAND THIRTEEN .
Oral Order: (Per Sri S.Bhujanga Rao, Hon’ble Member)
***
This is a Consumer Complaint filed by the complainant u/s.17(1)(a)(i) of the Consumer Protection Act,1986 seeking direction to the opposite parties to forthwith start work for completion of amenities/infrastructure facilities like Bitumen Motarable Roads, underground sewerage lines etc. and to award compensation and costs of the complaint.
The brief case of the complainant as set out in the complaint is as follows:
The complainant is an association registered under Societies Registration Act. The opposite parties are the owners and developers of the land situated in Survey Nos.98/p, 99/p, 100, 102, 104, 106 to 114, 115/p, 116/p, 121/p, 122/p,123/p, 124/p, 125/p and 168/p situated at Narsingi Village, Rajendranagar Mandal, Ranga Reddy District, during the year 2002. The opposite party converted the agricultural lands into plots and offered to sell the same to the buyers. The opposite parties advertised and issued brochure, promising to develop the township by providing all infrastructure facilities like 40 ft and 60 ft wide black top roads, running tap connection to each plot from the overhead tanks, underground sewerage lines for each plot, street lighting and road side plantation etc. The opposite parties have also promised to provide Club House with Swimming Pool and out door games etc. Attracted by the amenities promised by the opposite parties, as indicated in the brochure, the members of the complainant association have purchased the plots under different sale deeds. Even in the sale deeds, the opposite parties have agreed to provide the above infrastructure facilities and the same was incorporated in the respective sale deeds.
It is further stated that at the time of purchasing the plots, the opposite parties agreed to get conversion of land for the residential use by getting necessary approvals from the appropriate authorities like HUDA and Government etc. and the same is also expressly stated in the respective sale deeds. It is also noted in the sale deeds that the necessary charges required for obtaining the permission from the concerned authorities also forms part of the sale consideration itself. Inspite of receiving the entire sale consideration, the opposite parties have failed to obtain the necessary permissions from the authorities concerned and develop the township as promised. The plots owners met the opposite party no.2 on several occasions and requested him to provide necessary infrastructural facilities as promised, at an early date from 2004 onwards, as majority of the purchasers wanted to take up construction of the houses in their respective plots. But the opposite parties did not provide the infrastructure facilities and postponing the issue on one pretext or the other. Thereafter, the plot owners have come together and formed the complainant association in the year, 2010. The complainant association made several representations to the opposite parties requesting them, to provide the infrastructure facilities as promised by them and restore the areas earmarking as parks and other common areas in the lay out plan. But there was no response from the opposite parties.
In the said circumstances, the complainant association constrained to lodge a complaint with the Alternate Consumer Disputes Redressal Cell at State Consumer Information Centre, Hyderabad and the same was registered as Complaint no.113/2011. On receipt of the notice, the opposite party no.2 appeared before the Redressal Cell on 25.06.2011 and gave written undertaking on behalf of both the opp. parties promising to provide the infrastructure facilities as per the schedule mentioned hereunder:
“i).Electricity 25.7.2011 to 30.10.2011
ii). Sewerage lines and water 24.7.2011 to 30.10.2011
iii).Roads and plantation with parks 31.12.2011
Agreed to register the land available for park in D-Block in
favour of association immediately”.
As per the undertaking given by the opposite party no.2, the opposite parties have opened an Escrow Account No.01000512 with Corporation Bank, Jubilee Hills, Hyderabad to be operated jointly with the complainant association and also agreed to deposit Rs.1 crore periodically on or before 25.10.2011 and promised to complete the works, relating to infrastructure facilities by 31.12.2011. The opposite parties further agreed that if any further amounts are required for completing the balance work, they will do by depositing the additional amounts. Inspite of undertaking given before the Consumer Disputes Redressal Cell, the opposite party no.2 failed to deposit any amount in Escrow Account for undertaking, the works and complete the same within the schedule mentioned therein. In the circumstances, the complainant association issued legal notice dt.16.3.2012. The opposite parties have received the legal notice, but there was no response from the opposite parties.
The action of the opposite parties in not completing the development works as promised by them in the brochure, as well as in the sale deeds, inspite of receiving the entire sale consideration for the same, is clearly deficiency in service. The members of the complainant association have purchased the plots with fond hope of constructing the houses in good and peaceful environment immediately, but they are unable to construct the houses even after 8 years, for want of infrastructure facilities as promised by them. Hence the complaint, seeking direction to the opposite parties as follows:
I). to forthwith start work for completion of amenities/infrastructure
facilities like
a). 40’ and 60’ Bitumen motarable roads,
b). underground sewerage lines
c). running water tap to each plot connected to overhead tank.
d). Street lighting in the township.
e). provide club with swimming pool facilities.
f). Provide parks and other amenities
as per the undertaking given before the Consumer Redressal Disputes Cell on 25.6.2011 in C.C.No.113/2011.
II). to award compensation ot the complainants association for the loss and mental agony caused to the members of the association due to the inaction on the part of the opp.parties and
III). to award costs.
The opposite parties filed written version contending that there is no privity of contract between the complainant and the opposite parties. As such, the complainant has no right to file the complaint against the opposite parties. The complainant is not a ‘Consumer’. The complainant has not hired any ‘service’ from the opposite parties. The complainant has not paid any ‘consideration’ to the opposite parties. The opposite parties never committed any act of deficiency in service towards the complainant, as such, the complaint is liable to be dismissed. The complaint is barred by limitation under Section 24(A) of Consumer Protection Act. The members of the complainant association must file suits for specific performance, before a competent Civil Court for alleged breach of contract if any.
These opposite parties admitted that they developed a venture under the name and style of ‘Westend Meadows’ in Narsingi Village. They further contend that the entire lay out is divided into various blocks A, B (BS-1, BS-2,BS-3) C, D and F. The opposite parties have already provided BT roads in B and C blocks. The drainage works in the entire lay out was completed, overhead tank for water was also constructed. BT roads in D block were also completed. In C block the roads were partially completed.
They further contended that because of slump and recession in the real estate market or income tax problems, the opposite parties could not complete all the amenities. The opposite parties are taking every care to complete and provide all the amenities in the venture. Because of paucity of funds and for the reasons stated above, the opposite parties could not fulfil their commitments made before the Alternative Consumer Disputes Redressal Cell and could not honour the cheque. The opposite parties are committed to provide all the amenities as undertaken by them. However, it takes atleast one year to 1 ½ years for arranging necessary funds and to develop the venture in all respects. Therefore, the complaint is liable to be dismissed.
During the course of enquiry , on behalf of the complainant association, its President C.Amarnath filed his evidence affidavit and got marked Exs.A1 to A7. As against the said evidence, the opposite party no.2 filed evidence affidavit on behalf of the opposite parties. But no documents were marked on behalf of the opposite parties.
We heard the counsel for both the parties and perused the entire material placed on record.
The points that arise for consideration in this complaint are:
1). Whether the complaint is not maintainable as contended by the opposite parties?
2)Whether the complainant is not a consumer within the meaning of the Consumer Protection Act,1986?
3). Whether there is deficiency in service on the part of the opposite parties?
4). Whether the complainant is entitled to the reliefs sought for?
5). To what relief?
Point No.1: The contention of the opposite parties, under this point is that there is no privity of contract between the complainant and the opposite parties and that the complainant has to follow the procedure laid down u/s.13(6) of the Consumer Protection Act,1986 and that this Commission has no pecuniary jurisdiction to entertain the complaint, as the value of all 300 flats in the venture is more than Rs.1 crore which is beyond the pecuniary jurisdiction of this Commission. Therefore, the complaint is not maintainable under law.
All the purchasers, who purchased their respective plots from the opposite parties under various sale deeds have formed into an association by name ‘Westend Meadows Flat Owners Welfare Association’, the complainant herein, in the year 2010 and the association was registered on 05.03.2011 as is evident from Ex.A1, the copy of the Certificate of Registration. The opposite parties have not disputed the facts that the members of the complainant association purchased the plots, under individual sale deeds, from the opposite parties. The registration of the complainant association is also not disputed by the opposite parties. As per the provisions of the Consumer Protection Act, the complainant society can maintain the above complaint, which is filed for common purpose of members and flat owners of the subject property. Having regard to the admitted facts and circumstances, there can be no doubt that there is privity of contract between the members of the complainant association and the opposite parties. With regard to the objections of pecuniary jurisdiction is concerned, the complaint is filed only for completion of common facilities promised by the opposite parties and the opposite party no.2 himself has admitted that it will take roughly Rs.1 crore to complete the pending works and this complaint is not filed for delivery of flats as the flats are already delivered to the purchasers, who are members of the complainant association and hence this Commission has pecuniary jurisdiction to entertain the complaint.
Admittedly, the opposite party no.2 has given undertaking before the Alternate Consumer Disputes Redressal Cell on 25.6.2011, which he fails to fulfil and the above complaint filed to complete the works as per his undertaking, is within time. Thus, the technical grounds raised in the written version by the opposite parties are not tenable. Therefore, we hold that the complaint is maintainable under law on all counts. Hence this point is answered accordingly in favour of the complainant and against the opposite parties.
Point no.2: Under this point, the contention of the opposite parties is that the complainant is not a ‘Consumer’ and that the complainant has not hired any ‘service’ from the opposite parties, that the complainant has not paid any consideration to the opposite parties. The above contention of the opposite parties cannot be accepted, in view of the admitted fact that the members of the complainant association have purchased the individual flats under separate sale deeds, from the opposite parties and the opposite parties received full consideration from the members of the complainant association and promised to provide infrastructure facilities as mentioned in the sale deeds vide Ex.A2, the copy of one such sale deeds. Under these circumstances, the complainant association comes under the definition of ‘Consumer’ as defined in the C.P.Act. Hence this point is answered in favour of the complainant and against the opposite parties.
Point No.3: It is an admitted fact that the opposite parties developed the venture under the name and style of ‘Westend Meadows’ in Narsingi Village and that the members of the complainant association purchased the plots under individual sale deeds. There is no dispute that the opposite parties advertised and issued brochure promising to develop the township by providing all infrastructure facilities like 40 ft. And 60 ft. wide black top roads, running tap connection to each plot, from the overhead tanks, underground sewerage lines for each plot, street lighting in the township, club house with swimming pool facilities and parks and other amenities. Ex.A7, the copy of layout provided by the opposite parties at the time of selling of the plots also proves the above facts.
Infact in their written version, the opposite parties have not specifically denied any of the factual aspects in the matter, though taken technical objections which are proved to be untenable.
The fact that the complainant association lodged a complaint with the Alternate Consumer Disputes Redressal Cell at State Consumer Information Center, Hyderabad and that the same was registered as Complaint no.113/2011 is not in dispute. Ex.A3 is the copy of the complaint filed by the complainant.
It is the case of the complainant that opposite party no.2 appeared before the Alternate Consumer Disputes Redressal Cell on 25.06.2011 and gave written undertaking on behalf of both the oppsoite parties, where under it is clearly stated that the infrastructure facilities as promised will be provided by him as per the schedule mentioned hereunder :
i).Electricity 25.7.2011 to 30.10.2011
ii). Sewerage lines and water 24.7.2011 to 30.10.2011
iii).Roads and plantation with parks 31.12.2011
iv) the land available for park in D-Block will be registered in
favour of association immediately.
In view of the above said undertaking given by the opposite parties and accepted to start up the development and other works within a period of five months i.e. 25th July,2011 to December,2011, the Redressal Cell disposed of the complaint no.113/2011 by an order dt.25.6.2011.
In proof of the abovementioned case, the complainant has filed Ex.A4 the copy of the proceedings of counselling dt.25.6.2011 and Ex.A5 the copy of written undertaking given by opposite party no.2 before the Alternate Consumer Disputes Redressal Cell.
In para 14 of the written version, the opposite parties have stated that they have already provided BT roads in B and C blocks, drainage works in the entire lay out were completed, overhead tank for water is also constructed. The BT roads in D block were also completed and in C Block roads were partially completed. The opposite parties, in their written version, at paras 15 and 16, have categorically stated that because of slump and recession in the real estate market as well as the income tax problems, the opposite parties could not complete all the amenities, that the opposite parties have been taking every care to complete and provide all the amenities in the venture, that because of paucity of funds and for the reasons stated above, the opposite parties could not fulfil their commitments made before the Alternate Consumer Disputes Redressal Cell and could not honour the cheque, that the opposite parties are committed to provide all the amenities as undertaken by them. However, it takes atleast 1 year to 1 ½ year for arranging necessary funds and to develop the venture in all respects. From the above statement of the opposite parties in their written version, it is evident that the opposite parties have not commenced any work to complete the remaining facilities as promised by them. Except opening of an Escrow Account no.01000512 with the Corporation Bank, Jubilee Hills, Hyderabad by the complainant and opposite party no.2, opposite party no.2 has admittedly not deposited any amounts as promised by him. Inspite of undertaking given by the opposite parties before the Alternate Consumer Disputes Redressal Cell, the opposite party no.2 failed to deposit any amount in the Escrow Account for undertaking the works and complete the same within the schedule mentioned therein.
It is the case of the complainant that they have issued legal notice dt.16.03.2012 to the opposite parties calling upon them to forthwith start the work as per the undertaking given before the Consumer Disputes Redressal Cell on 25.06.2011 by depositing the necessary amounts in the Escrow Account no.01000512 within a period of one week. The opposite parties have received the legal notice, however no action or any reply forthcoming from the opposite parties. The copy of the legal notice is filed and marked as Ex.A6. The opposite parties have not denied receipt of Ex.A6 legal notice issued by the complainant association. Admittedly, they did not issue any reply notice denying the contents of Ex.A6.
In view of the above facts and circumstances, the complainant has established that the opposite parties have not completed the pending works, as per their undertaking Ex.A5 given before the Consumer Disputes Redressal Cell.
For the afore said facts and circumstances the complainant has established that opposite party failed to provide infrastructure facilities with regard to electricity, sewerage lines and water, roads and plantation with parks, etc. as promised and thus there is deficiency in service on the part of the opposite parties. They are liable to complete and provide the amenities as undertaken by them as per Ex.A5. They are also liable to pay compensation for the loss and mental agony caused to the members of the association, due to the inaction on the part of the opposite parties.
In the result, the complaint is allowed directing the opposite parties to start work and complete all the amenities/infrastructure facilities mentioned in Ex.A5 undertaking, within five months. The opposite parties are also directed to pay a sum of Rs.50,000/- to the complainant towards compensation and Rs.5000/- towards costs of this complaint. Time for compliance five months.
INCHARGE PRESIDENT
MEMBER
Pm* Dt. 07.10.2013
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the complainant : Nil For the opp.parties : Nil
Exhibits marked on behalf of the complainant:
Ex.A1 : Certificate of Registration dt. 05.03.2011
Ex.A2 : Sale Deed dt.07.02.2004.
Ex.A3 : Copy of the complaint no.113/2011 filed before
Alternate Consumer Dispute Redressal Cell.
Ex.A4 : Proceedings of counselling in Complaint no.113/2011
before Alternate Consumer Dispute Redressal Cell.
Ex.A5 : Undertaking given by opp.party no.2 before Alternate
Consumer Disputes Redressal Cell.
Ex.A6 : Legal notice dt. 16.03.2012 issued by complainant Assn. to
Opp.parties
Ex.A7: Layout plan.
Exhibits marked on behalf of the opp.parties : nil
INCHARGE PRESIDENT
MEMBER
Pm* Dt.07.10.2013
