BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.1139/2008 AGAINST C.C.No.210/2007, DISTRICT FORUM-II,Hyderabad.
Between:
Md.Raziuddin Rizvan,
S/o.Md.Naimuddin, Age about : 32 yrs.,
Occ: Engineer, R/o.H.No.20-4-129/32/1,
Manjali Begum Haveli, Hyderabad – AP.
Rep. by GPA,
Md. Muzammil,
S/o.Md.Pasha, age : 41 yrs.,
Occ:Business , R/o.H.No.20-4-129/32/1,
Manjali Begum Haveli, Hyderabad-AP. …Appellant/
Complainant
Vs.
1.M/s. Kalpasutra Enterprises,
Having office at H.No.1-5-38/3/A,
Jain Mandir , Narendra Nandu Marg,
Maruthi Nagar, Chaitanyapuri,
Hyderabad – 500 660.
2.Anil Kumar Shah, S/o. not known,
Age:Major , Occ:Partner of M/s. Kalpasutra Entps.,
R/o.H.No.1-5-38/3/A, Jain Mandir,
Narendra Nandu Marg, Maruthi Nagar,
Chaitanyapuri , Hyderabad 500 660.
3. Kirti Kumar Shah , S/o. not known,
Age:Major , Occ:Partner of M/s. Kalpasutra Entps.
R/o.H.No.1-5-38/3/A, Jain Mandir ,
Narendra Nandu Marg, Maruthi Nagar,
Chaitanyapuri, Hyderabad - 500 660.
4. M.A.Rasheed , S/o not known
Age : Major , Occ: Real Estate Consultant/Engg.
R/o. H.No.16-2-147/4/A, Anandnagar,
Malakpet, Hyderabad 500 036.
5.Khaja Minhajuddin, S/o. Md.Kareemuddin,
Age : Major, Occ: Real Estate Consultant/Engineer,
R/o.16-2-147/4/A, Anand Nagar,
Malakpet, Hyderabad – 500 036. … Respondents/
Opp.parties
Counsel for the Appellant : Mr.Md.Muneeruddin
Counsel for the Respondents : Mr. Vijay Mohan-R1 to R3
M/s. V.Sudheer-R4 & R5
QUORUM:THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,
AND
SMT.M.SHREESHA, HON’BLE MEMBER
MONDAY, THE TWENTIETH DAY OF DECEMBER,
TWO THOUSAND TEN.
Oral Order (Per Smt.M.Shreesha, Hon’ble Member)
*****
Aggrieved by the order in C.C.No.210/07 on the file of District Forum-II, Hyderabad the complainant preferred this appeal.
,
The brief facts as set out in the complaint are that the opp.party no.5 offered sale of the farm of opp.party no.1 company which is owned by opp.parties 2 and 4. The sale was offered on monthly instalments for each plot admeasuring 2500 sq. yards @ Rs.30/- per square yard for a total sale consideration of Rs.75,000/- in the venture “SRI VASU FARMS” in Survey no.148 to 162 situated at Kumera Village, Chevella Mandal, R.R.District. The opp.parties offered to sell plot no.131 in the said venture for a total sale consideration of Rs.75,000/- out of which a sum of Rs.25,000/- to be paid as initial payment and the balance of Rs.50,000/- offered to be paid in 10 monthly instalments of Rs.5000/- each. The complainant purchased the said plot and the opp.parties gave a layout plan to the complainant and the opp.parties orally explained the highlighted features of the said venture and the terms and conditions of the sale of the said plot as per oral offer and as per brochure is summarized as under:
· The said venture is pollution free, peaceful, clean & noise free with plenty of trees.
· Vasu Farms will provide all designed layout with wide roads.
· Vasu Farms will provide trees on either side of the Road.
· Vasu Farm will provide Club Building, Swimming Pool and children garden.
· Special draw and attractive prizes every month.
The complainant paid the agreed initial sum of Rs.25,000/- to the opp.parties on 3.11.1997 vide receipt no.6 and the plot no.131 was allotted to him and the complainant paid the remaining instalments as under:
Date Receipt No. Amount Remark
12-12-1997 7 5,000/- C/o. Opp.party no.5
3-1-1998 9 5,000/-
11-3-1998 14 5,000/- C/o.Opp.party NO.5
11-3-1998 15 5,000/-
6-4-1998 19 5,000/- C/o.opp.no.5
11-5-1998 20 5,000/-
8-6-1998 21 5,000/-
5-7-1998 22 5,000/- C/o.Opp.No.5
12-8-1998 24 5,000/-
The opp.parties failed to take initiative to provide the facilities initially offered to the complainant due to which the complainant orally protested and withheld the payment of last instalment of Rs.5,000/- and the opp.parties requested time to upkeep their promise and stated that they were not able to mobilize sufficient customers and the escalation in material cost compelled them to increase the cost of each plot due to which they were in temporary financial crunch and that they are trying to sell remaining plots and they would be able to accumulate sufficient funds from prospective customers out of which they shall take up the task of providing the roads, club, swimming pool as promised and the entire project shall be completed in another 5 years i.e. by 31.8.2003. By 31.8.2003 the opp.parties laid down temporary road and they told that they shall be able to provide all the amenities promised by the end of the year 2006. The complainant visited the site on 25.10.2006 and was surprised to note that still the said venture was semi developed and no roads were laid nor any trees on both sides planted and any club, building or swimming pool constructed. The complainant considering the real estate value of the said plot has acquired it, irrespective of non availability of promised amenities and decided to get the said plot registered in his name. The complainant demanded the opp.parties 1 to 4 to execute a registered sale deed in his favour after receiving the balance sale consideration of Rs.5000/- but the opp.parties refused and demanded an additional sum of Rs.1 lakh towards development charges and incidental expenses. The complainant contacted opp.party no.5 who mediated the sale of the said plot but he evasively replied that he acted only as a mediator and has no control over the affairs of the said venture. The opp.parties colluded and trying to deprive the complainant from possession and enjoyment of the said plot in view of the escalation in real estate value and the opp.parties are liable to lay roads and provide amenities as promised but they failed to provide the same. Hence the complaint seeking direction to the opp.parties to register the schedule plot bearing no.131 in favour of the complainant after receiving a sum of Rs.5000/- from complainant towards balance sale consideration, to hand over the physical possession of the schedule plot to the complainant, to construct the club building and swimming pool in the said venture as per brochure, to pay Rs.12000/- towards compensation to the complainant for failure to timely delivery of the said plot no.131, to pay Rs.10,000/- towards mental agony and to pay Rs.2,000/- towards costs.
Opp.parties 1 o 3 filed counter stating that on Mr.Minhajuddin approached them on 3.11.97 intending to purchase the plot in the name of the complainant but not filed an application form of allotment of plot duly signed by the complainant and hence the plot was not allotted to the complainant but was reserved in the name of Minhajuddin. The said person made payment to the sum of Rs.70,000/- agreeing to the terms and conditions of the scheme. Condition no.5 of the scheme states as follows:
“If the member fails to pay the instalment amounts in the middle of the scheme, the money paid by him will not be refunded in any case, the member should pay the monthly instalment regularly.”
As per the condition no. 6 it can be cancelled in the failure of making the payment without intimating the concerned person
“Registration charges should be borne by the purchaser. The company has got every right to cancel the membership without intimation if the member fails to pay three instalments continuously.”
Mr.Md.Minhajuddin had made the payment on 12.8.1998 and thereafter never made any payment of the balance amount and executed any agreement of sale or sale deed in anybody’s favour and as such the complainant does not have any locus standi to file the complaint. The opp.party submit that he doesn’t know the complainant nor executed any contract of sale of any plot pertaining to opp.party No.1. No promise of construction of club building and swimming pool etc. were made to the plot holders at the time of purchasing the plot and it was the subsequent development to be done by the owners of the plot in cooperation with opp.party no.1 i.e. M/s. Kalpasutra Enterprises and the complainant does’nt have any right to ask the same as he has not entered the sale or purchase contract of any of the fact of Vasu Farms. Opp.party no.4 filed counter contending that he is one of the partners of opp.party no.1 partnership firm and was looking after the marketing of the venture of Sri Vasu Farms. The opposite party submits that it is not true that no initiative was taken by opp.parties to provide the facilities initially offered but due to escalation in material price, the development was delayed and under protest the complainant withheld the last instalment of Rs.5000/- and considering their own shortcoming they did not insist to pay the same till the development is completed and in the meantime, a dispute arose among opp.parties 2 to 4 with regard to financial sharing among partners and he left the Firm pending rendering of account as such he do not have any control over the affairs of the said firm and the partnership is dissolved on account of non payment of his share and he is not associated with opp.party no.1 partnership firm . The opposite party submits that he is not associated with opp.party no.1 partnership firm and has no control over the affairs of firm and opp.parties 2 and 3 have control over the affairs of opp.party no.1 firm and there is no deficiency in service on his behalf and prayed for dismissal of the complaint.
Opp.party no.5 filed counter contending that he is an engineer by profession and he has provided layout designing to opp.parties 1 to 4 and he came in contact with opp.parties 1 to 3 through opp.party no.4 . The opp.party submits that he never involved himself in the matter of Vasu Farm and he was unnecessarily impleaded as a party without having any privity of contract either with the complainant or with the opp.parties 1 to 4. The opp.party submits that though his name is written on the payment receipt of monthly instalments , he was not present either at the time of payment or at the time of issue of the receipt by the opp.parties 1 to 4. The op.party submits that he was not aware of quantum of amount invested by the complainant in the plot and deny collusion with opp.parties 1 t 4 . Opp.party prays for dismissal of the complaint against him.
The District Forum based on the evidence adduced i.e. Ex.A1 to A13 and B1 to B7 dismissed the complaint without costs and stated that the complainant is at liberty to approach Civil Court for remedy.
The main point that falls for consideration is whether there is any deficiency in service on behalf of respondents/opp.parties and if the complainant is entitled to any relief?
It is the complainant’s case that he purchased a plot no.131 admeasuring 2500 sq.yards at Rs.30/- per sq.yard for a total sale consideration of Rs.75,000/- in a ventured title Sri Vasu Farms floated by opp.party no.1 firm in which opp.parties 2, 3 & 4 are partners and opp.party no.5 is agent. Exs.A1 to A10 are the receipts evidencing the payments made by the complainant amounting to Rs.70,000/- between December,97 to August 98. Ex.A11 is the brochure which shows that the opp.parties promised to provide roads, club, swimming pool and children’s garden together with special draw and attractive prizes. It is the complainant’s case that the opp.parties did not undertake any development on the venture and laid only temporary roads by 31.8.2003 and informed the complainant that all the amenities as per Ex.A11 brochure would be provided by the end of 2006. When the complainant visited the said venture on 25.10.2006 neither the permanent roads nor the amenities as per Ex.A11 brochure were provided. The complainant offered to pay the balance of Rs.5000/- which is unpaid last instalment, but the respondents 1,2 & 3 demanded an additional sum of Rs.1 lakh towards the development charges and refused to register the plot. It is the case of the opp.parties 1 to 3 that the complainant colluded with opp.party no.5 who earlier worked with opp.party no.1 firm and that the transaction is a civil transaction and the District Forum has rightly dismissed the complaint directing the complainant to go to Civil Court and the plan that was filed by opp.party no.5 is only to support the complainant and has nothing to do with the opp.parties. It is also the case of the opp.parties that the complainant did not adhere to clauses 5 and 6 of the agreement and did not pay the balance amounts and therefore he ceases to be a member and his membership is cancelled and therefore they are not liable to refund any amounts to the complainant. Ex.B2 is the scheme details with terms and conditions . A brief perusal of Ex.B2 clause 5 and 6 states as follows:
“If the member fails to pay the Instalment amounts in the middle of the scheme, the money paid by him will not be refunded in any case, the member should pay the monthly Instalment regularly.”
“Registration charges should be borne by the member (Purchaser). The company has got every right to cancel the membership without intimation if the member fails to pay three Instalments continuously.”
But in the instant case the complainant has paid Rs.70,000/- out of the total consideration of Rs.75,000/- and the act of the opp.parties in stating that they are not entitled to refund of any amount is unsustainable in the light of absence of any cancellation deed that has been effected. The documentary evidence filed by the opp.parties i.e. Exs.B1 to B7 do not evidence any letter or notice issued by the opp.parties cancelling the membership of the complainant. In the absence of any such specific cancellation necessitated by the opp.party, we are of the considered view that the clauses they are relying upon cannot be sustained. The receipts were issued in the name of the complainant herein and Ex.A11 brochure clearly states that a road with trees on both sides, club building, swimming pool and children’s garden would be provided. In the absence of the provision of any of these amenities, demanding development charges without any substantial basis is also unsustainable. The present status of the venture and the developments thereon has not been brought to the notice of this Commission. Opp.parties 4 & 5 contended in their written arguments that the total sale consideration of the plot is Rs.75,000/- and that they are not partners of the firm and only opp.parties 1 to 3 are the concerned partners. We observe from the cause title that opp.party no.1 is the firm and opp.parties 2 & 3 have been arrayed as partners and opp.party no.4 has been arrayed only as consultant and opp.party no.5 as an agent. Therefore any such liability cannot be fastened on opp.parties 4 & 5. The act of the opp.parties 1 to 3 in neither completing the development of the venture nor registering the plot to the complainant amounts to deficiency in service. It is pertinent to note that the opp.parties did not contend anywhere that the said plot is not available or alienated to any third party. Keeping in view the evidence on record, we are of the considered opinion that the opp.parties 1 to 3 are liable to register the plot no.131 after collecting the balance payment of Rs.5,000/- from the complainant. The complainant shall bear the registration charges of the plot. We also award costs of Rs.5000/-. Case against opp.parties 4 and 5 is dismissed.
In the result this appeal is allowed and the order of the Dist. Forum is set aside and consequently complaint is allowed directing the opp.parties 1 to 3 to register plot no.131 in favour of the complainant after receiving the balance payment of Rs.5000/-. The complainant shall bear the registration charges of the plot. Opp.parties 1 to 3 are also directed to pay costs of Rs.5000/-. Case against opp.parties 4 & 5 is dismissed. Time for compliance four weeks.
PRESIDENT
MEMBER
Dt. 20.12.2010
