FA   456/2007  against C. D. No. 19/2006 on the file of the

District Forum, Vizianagaram

Between :

Smt. M. Krishna Kumari

W/o Sanjeeva Rao

R/o Dr. No.19-4-32,

Lakkapandiri Street,

Vizianagaram                                              ..          Appellant/complainant

And

1.                  The Project Manager

M/s. G. P. R. Housing Pvt. Ltd

Daba Gardens, Visakhapatnam.

2.                  The Managing Director,

M/s. G. P. R. Housing Pvt. Ltd.

Dabagardens, Visakhapatnam.  .. Respondents/opp.parties.

Counsel for the Appellant            :           M/s. B. Sunder Rao

Counsel for the Respondents    :           M/s. Gopi Rajesh Associates.

Coram           ;           Sri Syed Abdullah              …        Hon’ble Member

And

Sri R. Lakshminarasimha Rao…      Hon’ble Member

Friday, the thirtieth Day of July, Two Thousand Ten

Oral Order     :           ( As per Sri Syed Abdullah,  Hon’ble Member )

*******

The appellant is the unsuccessful complainant in CD 19/2006 before the District Forum, Vizianagaram and the complaint filed seeking refund of Rs.58,400/- with interest at 24% pa was dismissed.

The facts of the case  disclose that  the opposite parties  have introduced a scheme for allotment of house plots  near Madhurawada  of Paradesipalem under VUDA LP No.10/96. The complainant had joined as one of the Members of the said scheme and as per the terms and conditions  he paid all the instalments to the opposite parties within the stipulated period and there were no dues.  A pass book bearing  no. 279 was issued in which the payments made are entered.  Though the entire amount was paid, the opposite parties failed to register the plot as promised.  On some pretext or the other, the opposite parties  postponed without fulfilling the obligations. The act or omission amounts to deficiency in service. Hence prayed to direct the opposite parties to refund of the amount with interest  there on and compensation of Rs.50,000/-.

Resisting the claim the  contesting opposite party filed its version in which it is admitted that the first opposite party had been carrying on  Real Estate Business at Visakhapatnam  and that the District Forum has no territorial jurisdiction to entertain the complaint.  Since the Lay-out is situate at Visakhapatnam limits,  no cause of action or part of cause of action  arose at Vizianagaram.  It is an admitted fact that the complainant joined the Group for allotment of the housing site at Madhurawada and  paid an amount of Rs.57,900/- out of Rs.67,500/-.  The last date of payment was on  14.04.2000.  The land was developed by obtaining lay out permission from the VUDA authority.   The other members were registered with plots after development. The opposite party had invested  a lot of amount in the land  which was developed and so  the complainant cannot seek for refund of the amount. There is no deficiency in service at all.   Further the complaint is barred by limitation.

During enquiry, the complainant filed Ex. A-1 to A7 along with evidence affidavit, the opposite parties have  not filed any documents in support of their version.

The District Forum has adjudicated on the points, i.e.,  whether the District Forum has got jurisdiction and whether the complaint is barred by limitation and whether there was any deficiency in service  on the part of the opposite parties ?

After going through the evidence on record, the District Forum dismissed the complaint holding that there was no deficiency in service on the part of the opposite parties .

The first opposite party lin its version unequivocally had admitted that the complainant had joined as Member in the scheme  and paid a sum of Rs.57,900/- and  that most of the Members of the scheme  were executed with sale deed in respect of plots allotted to them.  It may be true that the first opposite party  had  its office situate at Visakhapatnam and so also that the plot that was agreed to be developed is situated within the jurisdiction of the Visakhapatnam Town but the first opposite party had enrolled  the members from out side the town by allotting plots to them on payment of the initial amount and there after collected the balance of the amount from time to time.  There is no evidence on record to show that the payments covered by the receipts Ex. A6 and A7 were not collected  at Vizianagaram.   It  is a common practice  that whenever  any scheme is introduced  the developers will canvass to the public at various places by appointing its agents for getting subscribers.  There is no evidence on record to show that the payments covered by Ex. A-7 was collected by the first opposite party exclusively at Visakhapatnam  but not at Vizianagaram where the complainant resides.  When there is a practice of collecting amounts through agents at  different places where they reside it cannot be said that the District Forum at Vizianagaram has no territorial jurisdiction.  Sec. 11 of Consumer Protection Act is very clear that in case where part of cause of action arose  the District Forum within that area also is vested with jurisdiction to entertain the complaint.  The reasons given on point no. 1   that cause of action arose alone at Visakhapatnam District is not correct and tenable.

The next point is, whether the complaint is barred by limitation since the last payment was made on 14.04.2000.  It is undisputed  that the opposite parties have collected major amount in instalments  but failed to deliver possession of  allotted plot  and apart from it the opposite parties have  neither issued any notice of cancellation of the plot  nor insisted for payment of  the balance of the amount  or inform him to get  ready to have the plot registered. Where no time is stipulated in the agreement, so also, when time is  not the  essence of the contract,  it cannot be said that the claim is barred by limitation.  This aspect was very much well considered in the decisions of the Apex court reported in 2008 NC Judgments page 13 SC. (1). Bangalore Development Authority VS. Syndicate Bank , (2) Lucknow Development Authority Vs M.K. Gupta 1994 (1) SCC page 243.  in such circumstances, cause of action continues as has been held by the Hon’ble National Commission in its decision reported in 2005 CPJ 499 = 2005(2) CPR page 91) in which Sec. 24-A of Consumer Protection Act  was also discussed.  The District Forum observed that  the opposite parties have not undertaken construction of house in the plot which was agreed to be sold so as to  attract the definition ‘ service’ as defined U/s. 2(1)(O) of the Consumer Protection Act and thereby held that there was no deficiency in service. The said  finding is not tenable in the light of the decisions of the Apex Court cited supra.   The Findings of the District Forum are not tenable both on question of fact and law and it is liable to be set aside.

In the result, the appeal is allowed setting aside the order dated 22.01.2007 passed in C. D. 19/2006 by  the District Forum, Vizianagaram by allowing the complaint directing the respondents 1 and 2 with joint and several liability to refund a sum of Rs.58,400/- with interest thereon at 9% P. A.  from the date of expiry of the scheme  with costs of Rs.2000/- through out.   Compliance shall be made within 30 days from the date of  receipt of the order.

Sd/-MEMBER

                                                                                                                                                                                    Sd/-MEMBER

                                                                                                                                                                                    DATED :   30.07.2010.