BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.

F.A. 7/2008 against C.C. 22/2006, Dist. Forum, Vizianagaram

Between:

Telekicharla Subba Laxmi

W/o. Late Shivaji

Age: 40 years, R/o. Phase-IV

VUDA Colony Backside

Near Sai Public School

Sai Enclaves, Vizianagaram. *** Appellant/

Complainant.

And

Happy Estate (P) Ltd.

Rep. by its Managing Director

Narapureddy Manohar Reddy

D.No. 47-7-27, Plot No. 202

Janardhan Arcade, 4^th Lane

Dwaranakanagar

Visakapatnam. *** Respondent/

Opposite Party

Counsel for the Appellant: M/s. G. Rama Gopal.

Counsel for the Respondent: None.

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

&

SMT.M.SHREESHA, LADY MEMBER.

MONDAY, THIS THE NINETEENTH DAY OF JULY TWO THOUSAND TEN

ORAL ORDER: (Per Hon’ble Sri Justice D.Appa Rao, President.)

***

1) Appellant is unsuccessful complainant.

2) The case of the complainant in brief is that respondent floated a venture offering house plots to the general public at Appannapalem village of Vizianagaram district. On that she paid Rs. 25,000/- on 2.6.1999 and Rs. 70,000/- on 2.8.2000 evidenced under receipts Exs. A2 & A3. When the respondent has been postponing for allotment of plot and when she insisted for registration, the respondent gave reply Ex. A4 Dt.20.12.2004 informing that they would execute within two months. When the respondent did not come forward for execution she filed the complaint for refund of Rs. 95,000/- together with interest, compensation and costs.

3) The respondent despite service of notice did not choose to contest the matter.

4) The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A4 marked.

5) The Dist. Forum for queer reasoning opined that the amount was paid at Visakapatnam therefore the Dist. Forum at Vizianagaram had no jurisdiction. Apart from that she does not come under Section 2(1(d) of the Consumer Protection Act, as there was no element of service, and that the purchase of immovable property does not come within the provisions of Consumer Protection and therefore dismissed the complaint.

6) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that since the housing activity comes within the provisions of the Consumer Protection Act. The very Dist. Forum allowed identical cases in C.D. No. 137/2005, C.D. 138/2005, C.D. 143/2005, and C.D. 169/2005. It did not even consider the provisions of the Consumer Protection and therefore prayed that the complaint be allowed.

7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8) It is an undisputed fact that the respondent floated a venture wherein it had agreed to allot house plots evidenced under their pass book Ex. A1 It has promised that it would also lay roads, provide landscaping, club house, security, common fencing, children’s amusement park etc. within 24 months. The complainant had paid Rs. 25,000/- on 2.6.1999 and Rs. 70,000/- on 2.8.2000 evidenced under receipts Exs. A2 & A3. When the complainant insisted for allotment of plot, and execution of registered sale deed etc. the respondent a real estate company itself admitted stating that “due to some problems we were not able to register your site till date. We deeply regret for the inconvenience caused to you and assure you that we will register your plot in two months. We expect your co-operation.” Despite promise they did neither execute the sale deed nor register the plot. For whatever reasons the complainant did not seek registration of the plot instead sought for refund of the amount together with interest and compensation. Though the respondent did not choose to contest, the Dist. Forum dismissed the complaint (1) on the ground of lack of territorial jurisdiction and (2) that the dispute does not attract the provisions of the Consumer Protection Act.

9) Coming to the first question, the property agreed to be sold is situated at Vizianagaram. May be the respondent’s office is situated at Visakapatnam, amounts were paid at Visakapatnam as well as the pass book was issued from Visakapatnam but the fact remains that the property was situated in Vizianagaram district. Since the property is situated in Vizianagaram district the cause of action would arise only at Vizianagaram where the immovable property is situated. It is settled principle of law that cause of action will arise at the place where property is situated . It is not known how the Dist. Forum could deny this relief. We are of the opinion that the Dist. Forum at Viziagaram has territorial jurisdiction to entertain the matter u/s 11(2)) (c) of the Consumer Protection Act.

10) Coming to the second question the venture floated by the respondent could undoubtedly attract the provisions of the Consumer Protection Act. The dispute pertains to housing activity. The respondent has been engaged in housing activity. It comes under ‘Service’ as defined u/s 2(1) (o) of the Consumer Protection Act which reads as follows:

(o) "service" means service of any description which is made avail­able to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

When the respondent itself admits in its reply Ex. A4 that it will register the plot within two months, the question of not having jurisdiction, more so in the light Section 3(1) (o) the dispute attracts under the provisions of the Consumer Protection Act. The complainant is undoubtedly entitled to the advance paid by her together with interest @ 12% being the amount deposited to the respondent a real estate company and the fact that the price of properties are ever on increase, we award a compensation of Rs. 10,000/-.

11) In the result the appeal is allowed setting aside the order of the Dist. Forum, consequently the complaint is allowed in part. The respondent is directed to refund Rs. 95,000/- together with interest @ 12% p.a., from 2.8.2000 till the date of realization together with compensation of Rs. 10,000/- and costs of Rs. 5,000/- in the appeal. Time for compliance four weeks.

1) _______________________________

PRESIDENT

2) ________________________________

MEMBER

Dt. 19. 07. 2010.

*pnr