Date of Filing: 13.03.2017
Date of Order: 13.11.2018
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.Vijender, B.Sc. L.L.B. PRESIDENT
HON’BLE Smt. D.Nirmala, B.Com., LLB., MEMBER
Tuesday, the 13th day of November, 2018
C.C.No.142/2017
Between
B.Ramchander Reddy,
S/o. Vittal Reddy,
Aged about : 42 years, Occ: Agriculture,
R/o. H.No.4-1-312/6, Afsara Gunj Bagh,
Candel Market Road, Chandra Bagh Colony,
Vikarabad District. ……COMPLAINANT
And
Janaharsha Estates “N” Constructions Pvt. Ltd.,
Rep. by it’s Chairman-cum-Managing Director,
Mr. T.V.Ramana Murthy,
At: # 5-9-233 & 234, III Floor,
Somali Mall, Opp: Grammar School Bus Stop,
Abids, Hyderabad – 500001. …..OPPOSITE PARTY
Counsel for the complainant : Sri K.MALLESH & CH.KRISHNA
Counsel for the Opposite Party: Sri N.S.V.NAGESWARA RAO
O R D E R
(By Hon’ble Sri P.Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint has been filed under Section 12 of C.P. Act of 1986 seeking a direction to the Opposite Party to refund the amount of Rs.3,04,000/- with interest @ 18% p.a., from 14.08.2011 to 13.03.2017 and a sum of Rs.50,000/- towards compensation for causing deficiency of service and cost of the complaint.
1. Complainant’s case in brief is that: he is an agriculturist, Opposite Party is in the real estate business and it launched a project known as Dream City-II, Garden Unit New Scheme. Personnel of the Opposite Party induced and created an impression that if he joins as a member it will fetch more amount in near future and the amount paid by him will be returned in case of withdrawal after effecting the statutory deduction. Having been lured with the presentations made by the staff of Opposite Party he joined in the scheme launched by Opposite Party and he was allotted with two ticket numbers as 12627-FS & 12628 – FS. At the time of joining as member his signatures were obtained on some printed text papers stating that, they are required for the official records purpose only. Documents consisting of specific features, terms and conditions of the scheme were not supplied to him nor disclosed to him. After paying of the first installment he was furnished with passbooks to record the payments whenever are made. He was further informed that, he need not visit the office of Opposite Party as it’s employees would come to his price to receive the installments.
2. After joining as the member the complainant paid monthly installment with great difficulty whenever the employees of the Opposite Party visited and on some occasions he himself visited the Opposite Party office and paid installments. A few months after that, the personnel of Opposite Party staff stopped to come to him and he was not informed about the developments and physical position of the site. In all he paid Rs.1,52,000/- for each membership by way of installments from 31.03.2008 to 14.08.2010 and total amount paid for two memberships was Rs.3,04,000/-. Thereafter, he informed to the Opposite Party about his inability to continue as a member in the scheme and made a request to return the amount paid by him. The Opposite Party postponed in returning the amounts paid by him. When the Opposite Party deliberately neglected his request for refund of the amount paid he got issued a legal notice and 01.12.2016 demanding for refund of Rs.3,04,000/- with interest @ 18% p.a., from 14.08.2011. For that, a reply was sent by him with false allegations. In the said reply it was alleged that he has agreed to the terms and conditions of the scheme by signing the membership form. In actual he was not explained the terms and conditions printed on the membership application form. The only information in respect of the scheme given to him was that, residential plots will be registered in his favour if he paid the cost of the plot in installments and in the event of withdrawal the amount would be returned. There was no scope for him to either to go through the terms and conditions printed on the membership application form or were they read over to him before obtaining his signatures. He signed the membership application form under the impression that, it is only membership application and not an agreement. Since, the Opposite Party failed to oblize his request for refund of the amount paid by him inspite of a legal notice got issued to that effect, it amounts to deficiency of service. Hence, the present complaint for the above stated reliefs.
2. The Opposite Party has filed a detailed written version denying the complainant’s version and the defence set out by it is that complainant himself got enrolled as a member in the scheme and there was no inducement by the marketing personnel of Opposite Party. Complainant booked two units by paying a sum of Rs.100/- towards admission fee and Rs.3,000/- towards first month installment and Rs.12,000/- towards first month special installment for each membership on 30.03.2008 and signed membership applications. The terms and conditions and payment schedules are printed in the membership application form. According to said terms and conditions if a member has not paid installments for three consecutive months or fails to clear his dues to regularize his account for three month in succession it has right to cancel membership without prior notice. Development charges of Rs.30,000/- for each of the membership was paid along with basic plot cost. Total cost of the plot of 120 Sq. yard was Rs.3,06,000/- and the complainant having gone through terms and conditions of the scheme his become member and paid initial amount along with admission fee.
3. Complainant after becoming member paid a sum of Rs.1,52,000/- for each of the plot on different dates staring from 31.03.2008 to 14.08.2010 by way of installments which were in irregular pattern. He did not adhere to the terms and conditions of the scheme and he did not pay any amount after 14.08.2010. The agreed period for payment of all the amounts for each of the plot was completed in the month of April 2012 and the complainant has not updated his account by paying amount due. The complainant’s demand for the refund of the amount he is hopelessly barred by time, as per the clause-9 & 11 of membership agreement. Suppressing true facts complainant has got issued a legal notice and same was replied with true facts.
4. If the complainant is unable to pay installments and wants to come out of the agreement under a clause-14 of the terms and conditions the amount will be refunded after deducting the expenses and statutory liabilities. Since it is a concluded contract between the parties and the complainant did not approach the Opposite Party after 14.08.2010 his claim for refund of the amount is barred by time. The deficiency of service would arise only if Opposite Party fails to register the plots even after completion of payments payable in the scheme or any defect in the title of the property or reported that there is wilful default or intentional act on the part of the Opposite Party. Hence, the complainant cannot seek refund of the amount. The adjudication of disputes before the consumer Forum is summary in nature but the case on hand it requires examination of the parties and the subject is covered by specific relief act, as such this Forum has no jurisdiction to adjudicate the complaint. Hence, the complaint is liable to be dismissed.
5. In enquiry stage the complainant has got filed his evidence affidavit for reiterating the substance of the complainant and has got exhibited four (4) documents. Similarly for the Opposite Party the evidence affidavit of it’s Chief Manager, Sri J.Ashok is got filed and got exhibited seven (7) documents.
- Both sides have filed written submissions and supplemented the same with oral arguments.
- On a consideration of material on the record the following points have emerged for consideration:
- Whether there is a concluded contract between the parties to the complaint?
- Whether the complainant is entitled for refund of the amount paid by him with interest and compensation of Rs.50,000/- prayed for ?
- To what relief?
- Point No.1: The only admitted fact in the present case is that the Opposite Party launched a scheme of developing the house plots and sale of it to the persons who enrolled as members agreeing to pay the sale consideration by way of installments and special installments as scheduled in the membership agreement and the complainant after signing the two membership applications under Ex.B2 paid installments commencing from 31.03.2008 to 14.08.2014 and the total amount paid by him was Rs.3,04,000/- by way of installments which according to the Opposite Party version in an irregular manner. The essence of the contest of the Opposite Party is there is a concluded contract between the parties to the complainant and this contract contains specific terms and conditions which were agreed upon by both the parties hence, the complainant is bound by the terms and conditions printed on the overleaf Ex.B2 documents. A close look at this Ex.B2 forms which are captioned as application for membership does not support the version set up by the Opposite Party. In a conclude contract for the purchase of a house plot apart from mentioning the total sale consideration agreed to be paid by the purchasers the schedule of the property it’s location with reference to the Survey numbers, Layout, Permit number etc., should be mentioned but in this Ex.B2 documents there is no whisper as to whether the complainant agreed to purchase plot of 120 Sq. yards having specified boundaries. This Ex.B2 contains only quantum of installments payable by the member for different sizes of the plots and special installments as fixed. Clause-12 of this Ex.B2 specifies that, if a member is not able to pay further installments, he can transfer the membership to any of his nominees and in such case a new application with admission fee should be submitted by nominee and the member who paid reservation amount and regular paying the installments can only transfer the membership. Clause -13 further says that, under any circumstances, the amount paid by the member will be refunded neither in total nor with interest. So all these terms are favouring the Opposite Party alone. If really it is construed as a conclude contract the documents should have been captioned as an agreement to sell but not an application for membership. By reading the terms and conditions printed overleaf of membership forms does not disclose that, it is a conclude contract between the parties. Accordingly the point is answered in favour of the complainant.
- Point No.2: It is specific stand of the complainant that, he was induced by the marketing people of the Opposite Party to become as a member as he will get benefits by way of multiple increasing in the cost of the plot within a short duration saying so his signatures were without explaining the terms and conditions of the scheme. Though, the Opposite Party denying this version it has not filed the affidavits of it’s marketing people who approached the complainant and obtained the signatures stating that, the complainant was explained the terms and conditions in full and the complainant having agreed for same signed the membership applications Ex.B2. The Opposite Party under the guise of terms and conditions printed overleaf the membership application from induced the innocent persons like complainant. Refusal of the amount received by way of installments towards part of sale consideration will arise only in case the Opposite Party suffered any loss and it could not sell the plot of the complainant to third parties. In the instant case the Opposite Party has not whispered that on account of the withdrawal from the scheme by the complainant it could not enroll as member and suffered loss in the ventures. The Opposite Party cannot denying the complainant to refund his amount with interest. The Opposite Party utilized the funds collected from the complainant over period of time in it’s business and it must have gained a lot in the business because the prices of land have been increased enormously over a period of time. Hence, the Opposite Party is liable to refund the amount with interest thereon. Inspite of a legal notice by the complainant asking for the refund of amount paid by him the Opposite Party dragged it for all these years and thereby made the complainant suffer mentally and monetarily. Hence, the Opposite Party is also liable to pay a compensation to the complainant. Accordingly the point is answered infavour of the complainant.
- Point No.3: In the result, the complaint is partly allowed directing the Opposite Party to refund the entire amount collected from the complainant with interest @ 18% p.a., on the amounts collected from the complainant from time to time from the date of respective payments to the date of payment. The Opposite Party is shall also pay a sum of Rs.25,000/- as compensation to the complainant. Opposite party further liable to pay Rs.10,000/- as costs of this complaint.
Time for compliance is one month from the date of service of this order as otherwise the Opposite Party is liable to pay interest @ 12% p.a., on the amount of compensation of Rs.25,000/- from the date of the complaint to the date of payment.
Typed by Typist, corrected and pronounced by us on this the 13th day of November, 2018.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
PW1 DW1
Sri B.Ramchander Reddy Mr.J.Ashok,
Chief General Manager of OP.
Exs. filed on behalf of the Complainant:
Ex.A1 is Original Pass Book bearing No.12627-FS-NS issued by O.P.
Ex.A2 is Original Pass Book bearing No.12628-FS-NS issued by O.P.
Ex.A3 is copy of Legal Notice, dt.01.12.2016 got issued by Complainant.
Ex.A4 is original reply notice, dt.23.12.2016 got issued by O.P.
Exs filed on behalf of the Opposite party
Ex.B1 : Minutes of the meeting of the Board of Directors, certified true copy one in number, dt.02.03.2015.
Ex.B2 : Original Membership Applications bearing NO.12627-FS & 12628-FS original two in number.
Ex.B3 : Statement of Account original one in number.
Ex.B4 : Office shifting advertisement published in Eenadu daily new paper & Advertisement published in Indian Express daily newspaper, Photostat copy tow in number.
Ex.B5 : CD-Showing the photographs of the site of the OP one in number.
Ex.B6 : Photographs Showing the site of the OP five in number.
Ex.B7 : Requisition for commission advance/site visiting expenses by Marketing Executive and commissions/expenses paid Vouchers, original four in number
MEMBER PRESIDENT
