Telangana

Mahbubnagar

CC/08/37

C. Narender Kumar S/o C. Baswalingam O/c Business - Complainant(s)

Versus

Mohd. Mahmood Ali, Kings Way Property Consultants - Opp.Party(s)

Sri C. Rajender Kumar

19 Sep 2008

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

Thursday the 18^th day of September, 2008

Present:- Sri M. Rama Rao, B.A.,LL.B., President

         Sri P.Venkateshwar Rao, B.Com. LL.B., Member

                             Smt. B.Vijaya Kumari, M.Sc. B.Ed., C.C.P., Member

 

                                                                                                                                     C.C.No. 37  Of  2008

Between:-

C. Narender Kumar  S/o C. Baswalingam, age: 35 years,

Occ: Business, R/o 4-6-45, Kisan Nagar, Mahabubnagar.

                                                                                             … Complainant

And

Kingsway Property Consultants, Shop No.1-10-94/B2, 1^st floor,

Shasahebgutta, Mahabubnagar, Rep. by its owner Md. Mahmood Ali  S/o Not known, age: major, R/o Shop No.1-10-94/B2, 1^st Floor,

Shasahebgutta, Mahabubnagar.

                                                                              … Opposite party

 

  This C.C. coming on before us for final hearing on 05-09-2008 in the presence of Sri C. Rajender Kumar, Advocate, Mahabubnagar for the complainant and of Sri Maqsood Bin Ahmed Zakir, Advocate, Mahabubnagar for the opposite party and having stoodover for consideration till this day, this Forum delivered the following:

 

O R D E R

(Smt.B.Vijaya Kumar, Member)

 

1.   This is a complaint filed on behalf of the complainant under section   

12 of Consumer Protection Act, 1986 seeking a direction to the opposite party to accept the amount of Rs.12,750/- from the complainant and allot and register plot extent 150 sq. yards in Sy.No.1 & 2 of Bureddypally  and execute the Registered Sale Deed and deliver the physical possession of it in favour of the complainant and to pay Rs.30,000/- towards compensation and also pay costs of the complaint. 

 

2.    The complaint averments are as follows:-   The opposite party is the owner of  Kingsway Property Consultants, Mahabubnagar.  The opposite party started a housing plots venture under the name and style of Prashanth Nagar (Phase-II) at Bureddypally village of Jadcherla Mandal in the land bearing Sy.No.1 & 2.  The duration of the scheme is 60 months and the extent of the plot is 150 sq. yards. The total cost of the plot is fixed at Rs.21,500/-.  Each member has to pay Rs.350/- per month.  The complainant joined as a member in the said scheme. The complainant has paid 1^st instalment on 20.2.2003.  The opposite party has allotted membership no.270.  The complainant has paid regular monthly instalments upto 27 instalments and obtained receipts.   From 27^th instalment onwards the complainant did not pay monthly instalment amounts due to some financial problems.   The scheme period is ended in February, 2008.   In the month of December, 2007 the complainant has approached the opposite party and requested for issue of receipts for the payment of due instalments.   But the opposite party did not receive the amount and he has not accepted to issue any receipts.   Hence the complainant has paid due instalment amount through D.D.No.021065 in the name of opposite party for Rs.12,750/- towards 28^th to 60^th instalment and also additional amount as per brochure conditions.  The complainant got issued legal notice on 30.1.2008 for accepting the demand draft and for issue of receipts for the payment of due instalments and also requested to allot a plot and register the plot in favour of the complainant.  The opposite party received the said notice on 4.1.2008 and got issued reply notice on 12.2.2008.   The complainant alleged that the condition no.8 is against the natural justice.   The complainant also alleged that due to this act of the opposite party the complainant has been put to loss and mental agony.  The services of the opposite party are in deficit and OP has adopted unfair trade practice.  The cause of action continued from the date of reply notice by the opposite party.  Hence the complaint.

 

3.      The opposite party filed counter with the following averments:-     It is true that OP has been doing business of housing plots scheme under the name and  style of Prashanth Nagar and he is the owner of Kingsway  Property Consultants, Mahabubnagar.  It is also true that the duration of the scheme and its monthly subscription and terms and conditions of the said scheme are also true.  It is true that the complainant joined as  a member and that he has paid 27 instalments out of 60 monthly  instalments.  OP denied that the complainant has approached his office in the month of December, 2007 and requested for  issue of any   receipts.   As per terms of   the scheme the complainant is a “defaulter” and that the complainant’s membership was already terminated  long back and that the complainant ceased to be a member of  opposite   party and the amount paid by the complainant was forfeited as per       terms and conditions.  It is true that  the complainant got issued legal   notice along with enclosed D.D. and that the said D.D. was returned with enclosed reply notice. It is denied that the complainant has no   knowledge about the condition of  ‘default’  and its  consequence. As per terms if any member has failed to pay three consecutive   instalments his membership will be terminated automatically and the instalments if any paid by such member will be forfeited and  such member is not entitled for the said amount.   The complainant is very much aware about the said condition at the time of  joining as a member  and  that  after accepting   said conditions  he  has   filled the  application and paid the 1^st instalment amount.  It is denied    that the  opposite party neglected to receive the instalments from the     complainant and due to non allotment of plot the complainant  was put  to loss and mental agony.  It is denied that there is deficiency of  service on the part of the opposite party.   Hence the complaint is liable to be dismissed. 

      4.  The complainant filed his affidavit and got marked Exs.A-1 to A-30. 

     5.    The opposite party filed his affidavit and got marked EX.B-1.  

     6.     The point which falls for consideration is whether the complainant is    

        entitled to the relief as prayed for?

7.      The case of the complainant is that OP started a housing plots scheme under the name and style of Prashanth Nagar (Phase-II) at Bureddypally village of Jadcherla Mandal.  The duration of the scheme is 60 months and the extent of the plot is 150 sq. yards.  As per brochure the total cost of the plot is fixed at Rs.21,500/- and that each member has to pay Rs.350/- per month. The scheme was commenced from February, 2003 and ended in February, 2008.  The complainant joined as member in the scheme after knowing the terms and conditions of the said scheme.  The opposite party allotted membership No.270 to the complainant.  The complainant has paid 27 monthly instalments out of 60 instalments and obtained receipts. From 27^th instalment onwards the complainant did not pay instalment amount regularly due to some financial problems.  Before the end of the scheme period the complainant has approached the opposite party in December, 2007 and expressed his readiness for the payment of due amount towards the 28^th to 60^th instalments and also requested to issue receipts for the payment of due instalments.   But the opposite party did not accept to receive the amount.  Hence the complainant has paid instalments amount through D.D.No.021065 in the name of OP on 18.12.2007 for Rs.12,750/- towards 28^th instalment to 60^th instalment amount and also additional amount of Rs.500/- as per terms but OP did not receive the amount.  The complainant got issued legal notice on 30.1.2008 for receiving the due amount and issue receipts and requested to allot a plot and also register the plot in his favour.  The opposite party received the said notice and got issued a reply notice on 12.2.2008.      

 

8.     The opposite party has taken a plea that the complainant has paid only 27 monthly instalments out of 60 monthly instalments at Rs.350/- per month and after failed to pay the remaining instalments.    In counter OP stated that according to the scheme rules the member who has committed default in payment of monthly instalments continuously for three months the membership of the said member will be terminated from the scheme and the instalment amount already paid by him will be forfeited and that the said member is not entitled for any amount or any plot.  As per condition no.8 the complainant is not entitled for any plot or any amount as the complainant was found to be defaulter in payment of monthly instalments.  

 

     There is no dispute about the payment of 27 monthly instalments between the complainant and OP.  The controversy between the complainant and OP is with regard to the payment of remaining monthly instalments within time and also controversy with regard to the terms and conditions (condition no.8) of the scheme.

 

     According to the complainant he has approached OP before the end of the scheme and expressed his readiness to pay the balance amount towards the due instalments from 28^th instalment to 60^th instalment but OP was not willing to receive the due amount and that OP was intentionally avoiding plot to the complainant due to increase in the market value of the plot. Hence the complainant has paid the due amount of Rs.12,750/- through D.D. in the name of OP.   The opposite party did not receive the D.D. amount intentionally to avoid the sale of plot.   Thus the acts of OP prove deficiency of service and that he has adopted unfair trade practice.  As per Ex.A-26 the complainant has paid 25^th instalment on 7.2.2005.  As per Ex.A-28 i.e., D.D. the complainant has paid balance amount after lapse of 33 months i.e., 18.12.2007.   The complainant was quite silent till December, 2007.   He has not issued any notice in the year 2005.  He has not filed any evidence to prove his allegation against OP.    The opposite party filed original membership form with terms and conditions which is marked as Ex.B-1.   The complainant was aware of the terms and conditions of the said scheme and after knowing them the complainant has signed on the membership form.   As per the terms of agreement condition no.8, OP has right to cancel the membership without any intimation.  As per Ex.A-28 the complainant has not paid the balance amount towards the due instalments within time.   As per the terms the complainant is a defaulter and not entitled for any plot in the said scheme.   At the same time the alleged condition no.8 reads as “The amount paid by the defaulter will be forfeited and as such the member is not entitled to the said amount” and that the said condition is against the public policy and also against the natural justice.  In the course of arguments OP stated that the concerned plots are allotted to some other persons who have paid the total amount as per scheme rules.   So there is no monetary loss.  In such circumstances refund of the amount paid by the complainant would be appropriate.   We therefore hold that the complainant is entitled for refund of the amount of Rs.9,450/- paid by him towards 27  monthly instalments, with interest @ 18% p.a. from the date of last payment till the date of payment.   The complainant is also entitled for Rs.1,000/- towards costs of the proceedings.   We further hold that as interest is awarded on the amount to be refunded, the complainant is not entitled for any further sum as compensation as interest as well as lumpsum compensation cannot be awarded.    

       9.      In the result, the complaint is allowed partly.  The opposite party is  directed to pay the complainant an amount of Rs.9,450/-             towards the   instalment amount together with interest thereon @ 18% p.a. from the date of last payment till the date of payment and         also pay  Rs.1,000/- towards the costs of the proceedings within one month from   the date of receipt of this order.  The rest of the             claims of the  complainant against OP are disallowed.   

    Typed to dictation, corrected and pronounced by us in the open Forum on this the 18^th day of September, 2008.

 

 MEMBER                       MEMBER                                PRESIDENT

 

Appendix of evidence

Witness examined

 

For complainant: Nil                                                        For opposite party:  Nil

 

Exhibits marked for complainant:-

 

Ex.A-1:     Original brochure of OP. 

Ex.A-2:     Original receipt, dt.20.2.2003.

Ex.A-3:     Original receipt, dt.5.3.2003.

Ex.A-4:     Original receipt, dt. 6.4. 2003.

Ex.A-5:     Original receipt, dt.6.5.2003.

Ex.A-6:    Original receipt, dt.7.6.2003.

Ex.A-7:    Original receipt, dt.7.7.2003.

Ex.A-8:    Original receipt, dt.6.8.2003.

Ex.A-9:    Original receipt, dt.6.9.2003.

Ex.A-10:  Original receipt, dt.5.10.2003.

Ex.A-11:  Original receipt, dt.6.11.2003.

Ex.A-12:  Original receipt, dt.6.12.2003.

Ex.A-13:  Original receipt, dt.6.1.2004.

Ex.A-14:  Original receipt, dt.6.2.2004.

Ex.A-15:  Original receipt, dt.6.3.2004.

Ex.A-16:  Original receipt, dt.6.4.2004.

Ex.A-17:  Original receipt, dt.6.5.2004.

Ex.A-18:  Original receipt, dt.6.6.2004.

Ex.A-19:  Original receipt, dt.6.7.2004.

Ex.A-20:  Original receipt, dt. 6.8. 2004.

Ex.A-21:  Original receipt, dt. 6.9. 2004.

Ex.A-22:  Original receipt, dt.6.10. 2004.

Ex.A-23:  Original receipt, dt.6.11.2004.

Ex.A-24:  Original receipt, dt.6.12.2004.

Ex.A-25:  Original receipt, dt.6.1.2005.

Ex.A-26:  Original receipt, dt.7.2.2005.

Ex.A-27:  Office copy of Legal Notice, dt. 3.1. 2008.

Ex.A-28:  Xerox copy of Pay Orer, dt.18.12.2007.

Ex.A-29:  Postal acknowledgement card.

Ex.A-30: Reply Notice, dt.12.2.2008.

Exhibits marked for OP.-

Ex.B-1:    Original Agreement Form, dt.16.2.2003.

By the Forum:-

 

     - Nil -

   

           PRESIDENT

Copy to:-

 

1. Sri C. Rajender Kumar, Advocate, Mahabubnagar for the complainant.
2. Sri Maqsood Bin Ahmed Zakir, Advocate, Mahabubnagar for OP.