(Smt. D. Nirmala, President (FAC))
1. This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties to register two plots extent 150 Sq. Yards in Sy.Nos.327/A, 327/C, 328, 328/A, 328/C, 353, 353/B, 353/C, 354, 354/B, 354/C, 325/AA, 326, 326/A and 326/B situated at Amisthapur village, Bhoothpur Mandal or to pay present market value of plots, to pay an amount of Rs.20,000/- towards mental agony, financial stress and for deficiency of service, Rs.20,000/- towards compensation for adopting unfair trade practice and Rs.10,000/- towards costs of the complaint.
2. The averments of the complaint are that the OPs have floated a housing plot scheme under the name and style “Gayathri Enclave” Boothpur village and mandal, Mahabubnagar district. The said land is situated in Sy.Nos.327/A, 327/C, 328, 328/A, 328/C, 353, 353/B, 353/C, 354, 354/B, 354/C, 325/AA, 326, 326/A and 326/B situated at Amisthapur village, Boothpur mandal. The OPs have canvassed with colourful brochures and appointed agents throughout district to canvas about housing plot scheme of OPs. Believing the canvass and bombastic works of OPs and also cherish dream of complainant to get a house plot at Amisthapur NH No.7 she got joined as member in housing scheme of OPs for two plots in the month of July, 2000 vide Lucky No.41 and in the month of January, 2001 vide lucky No.21. The scheme period of the housing plot is 50 months @ 400 per month. There will be a lucky draw on 9th of every month at 6 p.m. The total costs of the plot is Rs.25,000/-. The member shall pay Rs.3,000/- to reserve the plot, and every member shall pay additional amount of Rs.1,000/- for every ten months i.e., Rs.5,000/-. The area of the plot is 150 Sq. yards.
Thereupon the complainant paid upto 50 installments amount along with 5 additional installments for Lucky No.21. For Lucky No.41 the complainant paid upto 6 installments, later she became a successful lucky winner of the plot for Lucky No.41. Thereafter the complainant paid Rs.6,000/- towards registration of the each plot to the OPs. The OPs are stated to the complainant that after one week they will register the plot. But till today the OPs did not register the plot. Thereafter on enquiry the complainant came to know that there was a boom to the scheme plot, and the OPs sold away the plot to third parties who are not members of the scheme to the higher price. Such acts on part of the OPs amounts to deficiency of service and unfair trade practice. Hence the present complaint is filed for the above said reliefs.
3. Though the notices served on OPs.1 to 9 they remained exparte throughout the proceedings.
4. During enquiry, the complainant in support of her contention filed her affidavit as evidence and got marked Exs.A-1 to A-36.
5. Heard arguments.
6. The points for determination now are:
- Whether the complaint is barred by limitation?
- Whether there is any deficiency on the part of the opposite parties in rendering service to the complainant as alleged?
(iii) Whether the complainant is entitled to the relief sought for by her?
(iv) To what effect?
7. Point No.1:- With regard to the limitation that the scheme period is 50 months and the scheme started in the year 2000 July and January, 2001 end in the year 2004 September and February, 2005 to file a complaint within two years from the date of termination of the scheme. But the version of the complainant is that the cause of action would continuing and consumer complaint would not barred by limitation”. To prove the said contention the complainant relied on decision reported in 2005 (1) C.P.R. in which the Hon’ble National Commission held that “Where the developer failed to give possession of land or refund the money as demanded by complainant cause of action would continuing and consumer complaint would not barred by limitation”. The principal laid in decision and the case on hand also the OPs did not allot the plot even after the completing the scheme. Hence complaint is within the limitation. The principle laid down in the decision, we are of the view that present complaint is not barred by limitation.
8. Point No.2:- It is the case of the complainant that she joined as a member for two plots at Amisthapur village, Boothpur mandal in a housing plot scheme which is run by the OPs in the name and style of Gayathri Enclave is situated at Boothpur mandal and Mahabubnagar district. The said two plots of land is located in Sy.Nos.327/A, 327/C, 328, 328/A, 328/C, 353, 353/B, 353/C, 354, 354/B, 354/C, 325/AA, 326, 326/A and 326/B situated at Amisthapur village, Boothpur mandal. The terms of the scheme are that scheme period is 50 months every member has to pay Rs.400/- and additional amount of Rs.1,000/- on every 10 months. The total cost of the plot is Rs.25,000/-. There is a lucky draw on 9th day of every month. At the time of reservation of the plot the member has to pay Rs.3000/-. Accordingly the complainant was allotted Lucky No.41 in the month of July, 2000 and Lucky No.21 in the month of January, 2001 and the complainant has paid 50 installments for lucky No.21. To prove the said contention the complainant filed Exs.A-8 to A-35 i.e., they are cash receipts passed by the OPs towards installments amount of the plot. But there are only 28 installments receipts in Exs.A-8 to A-35. She further pleaded that after completion of the period she visited the office of the OPs and paid registration fee Rs.6,000/-. The said pleading is also did not supported by any documentary evidence. In the absence of the same the contention of the complainant that she paid total 50 installments including registration charges Rs.6,000/- to the OPs is not tenable. She further pleaded that for lucky No.41 she paid 6 installments. She became a successful lucky winner after paying 6 installments as per Ex.A-7. The said facts are corroborated with Exs.A-1 to A-6 receipts and lucky winner draw letter in Ex.A-7.
9. It is facts borne out from the record that the complainant paid installment amounts under Exs.A-1 to A-6 are the cash receipts were passed by the OPs. Under Ex.A-7 the letter of lucky winner issued by the OPs and for lucky No.21 the complainant paid 28 installments i.e., 28 x 400 Rs.28,400/- – Rs.11,200/-. The plot cost is Rs.25,000/- out of which the complainant paid only Rs.11,200/-. Still the complainant is on due of Rs.13,800/- for lucky No.21. The pleading were taken by the complainant is unrebutted and unchallenged. That apart in the pleadings of the complaint she herself pleaded that the OPs have sold away the plots to third parties for higher price. If such is the case we are of the view that directing the OPs to allot the plots is no useful purpose will be served. Hence we hold that the complainant is entitled only for the cost of market value of the plot as on the date of completion of the scheme period for lucky No.41 and lucky No.21. The point answered accordingly.
10. Finding given on point No.2 the OPs are liable to pay the market value of the two plots extent of 150 Sq. yards each existed at Amisthapur village of Bhoothpur mandal in Mahabubnagar district as on the date of completion of respective housing plot scheme under lucky No.41 i.e., on 1-10-2004 and under lucky No.21 i.e., on 1-2-2005 with 9% interest till realization to the complainant after deducting due installment amount of Rs.13,800/- under lucky No.21 of housing plot scheme. The OPs are further liable to pay Rs.2,000/- to the complainant as costs of the complaint.
11. In the result:- The complaint is allowed in part as under:-
- The OPs are directed to pay the market value of the two plots extent of 150 Sq. yards each existed at Amisthapur village of Bhoothpur mandal in Mahabubnagar district as on the date of completion of respective housing plot scheme under lucky No.41 i.e., on 1-10-2004 and under lucky No.21 i.e., on 1-2-2005 with 9% interest till realization to the complainant after deducting due installment amount of Rs.13,800/- under lucky No.21 of housing plot scheme.
(2) The OPs are further directed to pay Rs.2,000/- to the complainant as
costs of the complaint.
