Appellant/opposite party, which is dealing in real estate business, floated a venture under the name and style of ‘Silver Sands’ and issued advertisements in the newspapers.  Respondent/Complainant became a member of the said scheme.  As the appellant had offered discount if the sale consideration is paid immediately, respondent paid the entire sale consideration of Rs.18,87,000/- for plot No.156 admeasuring 444 sq. yds. from 22.7.2007 to 21.8.2007.  Two pass books bearing Nos.195 and 196 were issued.  As per Clauses 15 and 16 of the Scheme, respondent was entitled to seek cancellation of the allotment.  Appellant had agreed to refund the amount subject to deduction of certain amount.  Respondent on a visit to the site found that it was located in a highly polluted area due to number of chemical industries located in and around Patancheru and it was not suitable for residential purpose.  Immediately thereafter, he went to the office of the appellant and handed over a letter on 06.02.2009 requesting for cancellation of the allotment.  Appellant instead of cancelling the allotment handed over an Agreement to Sale dated 18.02.2009 to the respondent.  Immediately thereafter on 22.02.2009 respondent again sought for cancellation of the allotment to

-3-

which appellant replied that they were ready to register the plot.  Respondent did not agree for it and requested the appellant to refund the amount as per the terms by letters dated 07.05.2009 and 23.7.2009.  It was alleged that no development had taken place.  He had taken photographs to show that no development as had been promised in the brochure had been taking place.   

          On being served appellant entered appearance and filed Written Statement.  It was admitted that the respondent had paid the sum of Rs.18,87,000/- for purchase of plot No.156 admeasuring 444 sq. yards.  It was alleged that the respondent had purchased the plot after satisfying himself about the location and nature of the plot.  Allegation that the property was situated amongst commercial industries and that the ground water was polluted, was denied.  It was averred that the appellant had already got lay out plan approved in the year 2009; that the complaint was barred by limitation; that the appellant was entitled to deduct 25% of the amount paid the respondent.

State Commission after taking into consideration the pleadings and the evidence led by the parties partly allowed the complaint and directed the appellant to refund the sum of Rs.18,87,000/- to the respondent with

-4-

interest @ 9% p .a. from the date of filing of the complaint i.e. 16.11.2010 till realization together with costs of Rs.5,000/-.  Claim for rest of the amount was dismissed by observing thus:-

“When the complainant sought for cancellation, the company obviously cannot insist that it would not cancel. It cannot insist for execution of sale deed. The very conduct of the opposite party in executing the agreement of sale, Ex.A16 when the complainant sought for cancellation as early as on 06-2-2009 vide ex.A11, shows that it was in a hurry to execute agreement of sale in order to get over the cancellation of the allotment. The opposite party could not deny the status of this plot as depicted in the photographs marked as Ex.A17. They show that there were no improvement or development whatsoever. Except the opposite party repeating that it would develop, it did not do so. The complainant having invoked clauses 15 and 16 is entitled for cancellation and it is within the terms of the pass book.

No doubt one of the stipulation is that the opposite party company was entitled to deduct 25% of the amount towards admn. Expenses and membership fee etc. When it was not even developed by laying roads etc., the question of deducting 25% of the amount towards expenses will not arise. It has the advantage of the money for all these years with it. Even before formal execution of the agreement, when the complainant has chosen to cancel the agreement and when it is permissible as per the terms and conditions, the opposite party cannot refuse to cancel the allotment. Having

-5-

received the amount, it was bound to refund the same. Since the sale of plots for purpose of house construction a housing activity comes under the definition of Consumer Protection Act, 1986 as there is service involved in it as per Section 2.1(o), the complaint is maintainable.

The opposite party did not choose to refund the amount but insisted for registration by its letter Ex.B4 dated 22-3-2009. The complaint having filed on 30-11-2009 before District Forum, it is well within limitation i.e. two years as contemplated from the date of cause of action. It may be a fact that some third parties have purchased the plots under Exs.B6 to B8 but the fact remains that the complainant does not intend to purchase the said plot and entitled to cancel as per the terms of the contract. The opposite party cannot refuse the relief prayed for by the complainant in this regard. The complainant also sought for compensation. Since the complainant himself voluntarily opted, for cancellation, the question of awarding compensation for mental agony will not arise. However, denial of this relief will not enable the opposite party to deny refund of the amount.”

          Clauses 15 and 16 of the Scheme read as under:

“15. If any member seeks to cancel his passbook, he will not be allowed during the scheme period. It will be done as per the company rules & regulations only after completion of scheme period.

16. Regulations related to Cancellation/Transfer of passbook:

-6-

The following amounts shall be deducted from the balances in the passbook

25% of paid amount for Admn./Expenses

Enrolment and Membership fee

Incentives & site expenses incurred on the Unit.”

          Under these two Clauses, the member could get his passbook cancelled subject to deduction of 25% of the paid amount for administrative/expenses enrolment and membership fee incentives and site expenses incurred on the unit.  In the present case, the State Commission in its order has held that no development had taken place on the site and since no development had taken place the appellant was not entitled to deduct 25% of the deposited amount.  We agree with the same.  If no development has taken place the appellant is not entitled to deduct 25% of the paid amount towards administrative expenses or for the expenses incurred for development of the site.  No ground for interference is made out.  Dismissed.