FA 202/2011 against CC. No. 538/2010  on the file of

 District Consumer Forum I, Hyderabad.

Between :

1     Prof. P.S. Zacharias,

S/o Skaria Zacharias,

Aged about 64 years, R/o A-13,

University  of Hyderabad,

Hyderabad – 500 046.

2.  Smt. Annie Zacharias,

W/o prof. P.S. Zacharias,

Aged about 54 years, R/o A-13,

University  of Hyderabad,

Hyderabad – 500 046.

(presently both are R/o 207,

Kapila towers, RBI quarters

National Games Village

Koramangala, Bangalore – 47 )                            ..          Appellants/complainants

And

M/s. Narne Constructions Pvt. Ltd

Rep. by its Managing Director

Sri Narne Ranga Rao

10, Gunrock Enclave,

Secunderabad – 500 009                                       ..          Respondents/Opp. Party

Counsel for the Appellant             :           M/s. Gopi Rajesh & Associates

Counsel for the Respondent         :           M/s. K. R. Koteswara Rao

FA 52/2012 against CC. No. 538/2010  on the file of

 District Consumer Forum I, Hyderabad.

Between :

M/s. Narne Constructions Pvt. Ltd

Rep. by its Managing Director

Sri Narne Ranga Rao

10, Gunrock Enclave,

Secunderabad – 500 009                                       ..          Appellant /Opp. Party

And

1     Prof. P.S. Zacharias,

S/o Skaria Zacharias,

Aged about 64 years, R/o A-13,

University  of Hyderabad,

Hyderabad – 500 046.

2.  Smt. Annie Zacharias,

W/o prof. P.S. Zacharias,

Aged about 54 years, R/o A-13,

University  of Hyderabad,

Hyderabad – 500 046.

(presently both are R/o 207,

Kapila towers, RBI quarters

National Games Village

Koramangala, Bangalore – 47 )                            ..          respondents /complainants

Counsel for the Appellant              :           M/s. K. R. Koteswara Rao

Counsel for the Respondent         :           M/s. Gopi Rajesh & Associates

FA 227/2011 against CC. No. 539/2010  on the file of

 District Consumer Forum I, Hyderabad.

Between :

Smt. Bonam Satyavathi,

W/o N. Suresh, aged about 45 years

Occ ; House wife, H.no. 6-3-609/108 & 113

Srichakra Apartments, flt no. 303, III floor

Near Dayanand High School

Anandnagar, Khairatabad,

Hyderabad – 500 004                                  Appellant/complainant

And

M/s. Narne Constructions Pvt. Ltd

Rep. by its Managing Director

Sri Narne Ranga Rao

10, Gunrock Enclave,

Secunderabad – 500 009                                       ..          Respondents/Opp. Party

Counsel for the Appellant              :           M/s. Gopi Rajesh & Associates

Counsel for the Respondent         :           M/s. K. R. Koteswara Rao

FA 53/2012 against CC. No. 539/2010  on the file of

 District Consumer Forum I, Hyderabad.

Between :

M/s. Narne Constructions Pvt. Ltd

Rep. by its Director

Col ( Retd) Sri Narne Ranga Rao

Office at 10, Gunrock Enclave,

Sikh Village, Secunderabad – 500 009               ..          appellant/Opp. Party

And

Smt. Bonam Satyavathi,

W/o N. Suresh, aged about 45 years

Occ ; House wife, H.no. 6-3-609/108 & 113

Srichakra Apartments, flt no. 303, III floor

Near Dayanand High School

Anandnagar, Khairatabad,

Hyderabad – 500 004                      ….       Respondent/complainant

Coram           ;          

                              Sri R. Lakshminarasimha Rao…      Hon’ble Member

And

                                  Sri T. Ashok Kumar      ..         Hon’ble Member

                                    Monday, the Thirty First Day of December

Two Thousand Twelve

          Oral Order       :   ( As per Sri T. Ashok Kumar , Hon’ble Member )

                                                                        *****

01. These appeals and cross appeals are preferred by the complainants and opposite party respectively  as against the orders dated 21.01.2011 and 09.02.2011 of the District Forum I, Hyderabad in CC  Nos. 538/2010 and 539/2010 respectively. Since common questions of facts and law are involved and the opposite party is one and the same, we are inclined to dispose of the same by a common order and CC No 538/2010 pertaining to FA No. 202/2011  is taken as lead case.

2.            The brief facts of the complaint  in CC 538/2010 are as under :

The complainant was joined as a member by paying Rs.35,500/- in the venture ”Central Park-III” floated by the OP in Survey no. 218/7, 218/8 and 218/9 situated at Kondapur village, Serilingampally Mandal, Ranga Reddy District and he was allotted membership no. 30432 and one plot  bearing no. 469 admeasuring 286 sq. yard for a total consideration of Rs.2,17,360/-. The complainant paid balance amount of Rs.1,67,360/- vide receipt bearing No. 6686 dt.14.02.1997 towards cost of the plot including developmental charges and registration charges. The OP executed an agreement of sale deed dt. 28.7.2007 in favour of the complainant agreeing  to register the plot with all necessary approval and layout from HUDA within four years from the date of the agreement of sale and in case of failure to refund the amount with 15% pa. As the OP failed to register the plot, the complainant sent a letter dated 20.03.1998 and other letters on 25.04.1999, 23.03.2000, 15.03.2001, 28.04.2002 and 26.04.2003. Though received the said letters, the OP neither replied nor registered the plot. The OP in their letter dated 21.5.2009 informed that HUDA approval was still pending and that the Urban Land Ceiling Authority issued orders declaring the land as ceiling surplus and directed the collector to take over the land and they had appealed against the orders and demanded Rs.5,000/- per sq. feet and other charges vide letter dt. 15.3.2010 which is illegal and hence the complaint praying to direct the OP to  register the plot bearing no. 469 in his favour or to refund the amount of Rs.2,17,360/- with interest @ 24% PA, to pay the present market value of the said plot, Rs.3 lakhs towards compensation and costs.

3.            OP   filed counter opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts of the counter  are as under :

They incurred huge expenses for development of the said layout by laying BT roads with proper sanitation, drainage with underground sewerage and plantation etc and also in defending all the cases pending before the Urban Land Ceiling Authorities which is an unforeseen incident and that they sustained heavy loss due to exorbitant escalation  of prices  in the  cost of material, labour charges and land.  The complainants never addressed any letter to OP.  it informed the recent developments which includes the proceeding before the ULC authorities and also the Registration charges, development charges, fees, taxes and the revised rates of the Government etc. All the allottees are liable to bear the charges for additional developments etc which are beyond the control of the OP. The complainants agreed to pay the charges and never approached it and the delay in registration was not purposeful. Though the complainants were aware of  these aspects, they have not paid  any additional developmental charges, caution deposit and amount incurred by the Op in getting clearance of all the pending cases before ULC authorities and that to avoid the said amounts this complaint was filed. There is no deficiency in service or unfair trade practice and that the District Forum become Corum         Non-judice and thus prayed to dismiss  the complaint.

04.       Having heard both sides and considering the evidence on record, the District Forum allowed the complaint in part and directed the Opposite party to refund an amount of Rs.2,17,360/- with interest @ 15% pa from 13.02.1997, Rs.50,000/- towards compensation and costs of Rs.3,000/- within 30 days.

05.       in CC 539/2010, the complainant was joined as a member by paying Rs.35,500/- in the venture ”Central Park-III” floated by the OP in Survey no. 218/7, 218/8 and 218/9 situated at Kondapur village, Serilingampally Mandal, Ranga Reddy District and he was allotted membership no. 30438 and one plot  bearing no. 453 admeasuring 300 sq. yard for a total consideration of Rs.3,30,000/-. The complainant paid the amount between 03/03/1997 and 19.5.2001and the remaining allegations are similar as that of in CC 538/2010.

06.       The version of the OP in CC 539/2010 is that the complainant committed breach of terms and conditions in paying installments within stipulated time and several letters were addressed intimating her about the status of proceedings before ULC authorities highlighting the expe3nditure incurred by OP for clearance and various other development expenses and that the complainant agreed to bear it proportionately along with other members and that the even though OP had given option to the complainant to shift to other ventures or to refund money with interest she opted to wait till final outcome of the proceedings before ULC  and that charges for additional development for unforeseen and relief sought for by the complainant is of civil nature arising out of contractual obligation and that the District Forum has no jurisdiction to entertain the complaint and that there is no deficiency in service on the part of OP.

07.       Having heard both sides and considering the evidence on record, the District Forum in CC 539/2010 allowed the complaint in part and directed the Opposite party directing to refund an amount of Rs.3,30,000/- with interest @ 15% PA  from  19.05.2001, i.e., the date  of payment of last installment,  Rs.50,000/- towards compensation and costs of Rs.3,000/- within 30 days.

08. Aggrieved by the said orders, the Appellants/complainants in FA 202/2011 and FA 227/2011,  preferred the above appeals on several grounds and mainly contending the District Forum erred in directing refund of amount in stead of registration of plot and  that the order of the District Forum erred is contrary to law and that there is no deficiency in service and unfair trade practice on the part of Ops and thus prayed to allow the appeal and modify/setting aside the impugned order and register the plots in favour of the complainants.

09. The appellants/opposite party in FA 52/2012 and FA 53/2012  mainly contended that the District Forum failed to appreciate the fact that the complainants have failed in paying Rs.5000/- per sft and clearance of  cases from the  ULC authorities, that the Consumer Forum has no jurisdiction to entertain the complaints, he has to approach civil court and that the dispute is not a consumer dispute, the complainant was default  in payment of monthly  installments and also that the complainants did not pay the development charges, additional development charges, registration charges etc and thus became defaulters and that  there was no deficiency in service or unfair trade practice on the part of the OP and that the contention of the OP raised in the District Forum were not appreciated properly  and thus prayed to allow the appeals and set aside the orders.

10.  Heard both side counsel in all the cases and they submitted written arguments.

11. Now the point for consideration is, whether the orders of the District Forum are sustainable ?

12. The contention of the Opposite party is that the contents of the complaint disclose that the OP committed breach of contract and therefore the complainant ought to have approached a civil court for redressal  and the Consumer Forum ought not to have entertained the complaint and thus attacked the jurisdiction of the Consumer Forum in entertaining the complaint.  In several decision of the Hon’ble Supreme Court of India and Hon”ble National commission held that that the development of land for the purpose of selling it as plots and house sites after duly adding value by way of providing infrastructure, obtaining lay outs and other permissions from the local  government etc. constitutes by itself a kind of service and in that view of the matter when a person purchases a plot from the developer he not only purchased the plot but also the service associated with it.   The recent decision of Supreme Court in   Fakir Chand  Gulati  Vs. Uppal Agencies Pvt. Ltd.  reported in  2008 (4) CPR 449 (SC)   fortifies this view. Since the complainant purchased a plot from the OP/developer he comes within the meaning of a ‘ consumer’ . Further, the  Hon’ble High Court of A. P. in Batch of writ petition nos. 28246 of 2009 etc.. vide orders dated 13.08.2010 held that ‘ consumer Fora do not suffer lack of jurisdiction to entertain complaints in such matters. In such circumstances,   Therefore, the contention of the OP on the point of jurisdiction and also that the complainant is not a consumer  in both the cases does not holds any water and as such it is decided against the OP.  in such circumstances, the decisions reported AIR 2001 Delhi page 107 between Ashok AGarwal Vs. Bhagavan Das Arora,  Supreme (1) 2006  (653) referred to in the written arguments are not helpful for him on the point of jurisdiction and limitation. It is much more so when the facts are on hand are different from the facts of the said decisions.

14. FA 202/2011 against CC. No. 538/2010  There is no dispute that the complainant having attracted by the advertisement of OP joined as member  in the venture floated by the OP by paying Rs.35,300/- and that he was allotted with membership No. 30432 and one plot bearing 469 measuring 268 sq. yards at Central Park phase III, Kondapur village, Sherilingampally, Ranga Reddy District for a total consideration of rs.2,17,360/- and that the complainant also paid balance amount of Rs.1,67,360/- in lump sum vide receipt bearing No. 6686 dt. 14.2.1997 and that Ex. A5 agreement of sale dt. 28.7.2007 entered into between complainant and OP. Clause 4 of the said agreement discloses that OP has undertaken to develop the schedule mentioned plot fully, obtained necessary approval for the layout from HUDA and thereafter register the schedule mentioned plot in favour of the complainants/purchasers or their nominee/nominees within a period of four years from the date of the said agreement and in the event  of the OP failing to register the schedule mentioned plot within the stipulated period the OP/vendor guaranteed to refund the entire amount paid by the complainants  with 15% simple interest per annum,  material on record discloses that OP informed the complainant vide Ex. A18 letter dt. 21.5.2009 that clearance of ULC authorities was time consuming and doubtful and thus they proposed to shift/relocate to plot of similar configuration of golden heights, phase II at Medchal on payment of registration charges and maintenance charges or refund amount with 9% simple interest or shift to citizen affordable  housing scheme which is a new housing project at East City by adjusting the advances along with 9% interest simple per annum towards EMIs as per payment plans and the complainants were requested to exercise their choice by 15.6.2009  and then vide Ex. A19 letter dt. 28.5.2009  the complainants requested the OP to provide them with copy of ULC order to acquire the central park land and other correspondence with the Government informing that they would exercise their option after receipt of the said information. Thereupon, vide Ex. A-20 letter dt. 15.3.2010 the OP informed the complainant that they had to obtain no objection certificate from ULC which was not required when the project was planned or developed to obtain mandatory conversion plan from agriculture to non-agriculture purpose by payment of enormous fees which was also not required earlier and also to obtain sale deed by payment of registration fee in spite of holding GPA in their favour. It was also stated in the said letter by the OP that they incurred financial expenditure and therefore requested to share the financial burden to an extent of Rs.5000/- per sq yard major portion of which is towards official charges and fee to be paid to the Government alternatively it is also proposed offering plot to a builder with the consent of complainant for development on joint venture basis so that financial burden would shift onto the and the builder sift on and  complainant and the complainant would get the built up space on prorate basis in the plot allotted to them.  In fact, it was the duty of the Ops to float the venture after obtaining necessary permission from the concerned including approval of lay out but it did not do so and their failure in registering the plot in favour of the complainants on that pretext certainly amounts to deficiency in service and unfair trade practice. When alternate plots and other proposals are not agreeable to the complainant it is not desirable to compel them to accept the same.  As already described supra in the event of failure to register the plot within the stipulated time the Ops guaranteed to refund the amount with simple interest @ 15% pa and in such circumstances offering to refund the amount paid by the complainant together with 9% simple interest could not be appreciated. There is acceptable force in the contention of the complainant that the OP collected 15% interest pa in case of late payment.. The District Forum rightly discussed all the aspects in right perception and ordered to refund of the amount with 15% interest PA till payment from 13.2.1997 till realization. The complainants did not make out any case for directing the OP to register the plot and therefore their request in the said context also could not be accepted.  However, Rs.50,000/- compensation ordered to be paid is exorbitant because the amount is ordered to be refunded with such rate of interest  and in the circumstances of the case it is scale down to Rs.10,000/- while maintaining costs of Rs.3,000/- as it is and the order of the District Forum is liable to be modified.

15  Same discussion is applicable to FA 227/2011 and FA 53/2012  against CC. No. 539/2010  

16.      FA 202/2011 and FA 52/2012  against CC. No. 538/2010  

In the result, the appeal in FA 202/2011 filed by the complainants  is dismissed without costs and the appeal in FA 52/2012 filed by OP is partly allowed and the order of the District Forum is modified directing the opposite party to refund Rs.2,17,360/- ( Rupees Two lakhs Seventeen Thousand and Three hundred and sixty only ) with 15% interest per annum from 13.02.1997 till realization so also  Rs.10,000/- ( Rupees Ten Thousand only ) towards compensation for deficiency in service and inconvenience caused to the complainants in the place of Rs.50,000/- ordered by District Forum while  maintaining costs of Rs.3,000/- as it is. Parties shall bear their own costs of appeal. Time   for compliance four weeks from the date of receipt of the order.

17. FA 227/2011 and FA 53/2012  against  CC. No. 539/2010  

In the result, the appeal in FA 227/2011 filed by the complainants  is dismissed without costs and the appeal in FA 53/2012 filed by OP is partly allowed and the order of the District Forum is modified directing the opposite party to refund Rs.3,30,000 ( Rupees Three lakhs and thirty Thousand  only ) with 15% interest per annum from 19.05.2001 till realization so also  Rs.10,000/- ( Rupees Ten Thousand only ) towards compensation for deficiency in service and inconvenience caused to the complainants in the place of Rs.50,000/- ordered by District Forum while  maintaining costs of Rs.3,000/- as it is. Parties shall bear their own costs of appeal. Time for compliance four weeks from the date of receipt of the order.

                                                                                                MEMBER

                                                                                                MEMBER

                                                                                                DATED  : 31.12.2012.