A.P.STATE CONSUMER DISPUTES REDRESSAL COMMMISSION: AT HYDERABAD
FA 496/2007 against C.C.No.668/2006 on the file of the District Forum II, Hyderabad.
Between:
Govind Kedla S/o. Sri Kailash Chand Kedia,
Aged 24 yrs, Occ : Business,
R/o. H.No.15-9-378/8. Mahaboobgunj,
Hyderabad. … Appellant/Complainant
And
M/s. Narne Estates Pvt. Ltd.,
No.1, Gunrock, Enclave,
Secunderabad – 009 rep. by
Its Chairman & Managing Director,
Col. Narne Ranga Rao. … Respondent/opposite party
Counsel for the Appellant : Sri N. Raghavan
Counsel for the Respondent : Sri. V.Henery
Coram : Sri Syed Abdullah … Hon’ble Member
And
Sri R.Lakshminarasimha Rao … Hon’ble Member
Wednesday, the Second Day of June, Two thousand Ten
Oral Order : (as per R.Lakshminarasimha Rao Member)
* * *
The complaint is the appellant. The appellant challenges by way of filing the appeal the order passed by the District Forum on the ground that there was no mention of development charges either in the application form or in the statement of account. After receiving payment of the cost of the plot, the respondent informed the appellant to get ready for the registration of the sale deed and by the letter dated 25th January, 1996. The respondent inform the appellant that there was hike in registration charges but nothing was spelt out that in addition to the costs of the plot, the appellant has to pay development charges. The respondent cannot charge development charges since only after the development of the land, the plots would be sold to the allottees.
The ground facts obtained in the situation leading to filing of the appeal are that appellant joined as member in the scheme floated by the respondent. His membership number is 9205. The respondent allotted him plot bearing number 8 admeasuring 250 square yards. In Sector 4, Block ‘K’ and at the locality named as “ East City ” situate at Rangapur, Bibinagar village and Mandal in Nalgonda District. The appellant claims that at the time of the payment of the price of the plot, the respondent had not informed him that the plot was no developed and development charges will have to be paid. In the receipt dated 19th April, 1993, the columns relating to registration charges and development charges are shown as ‘nil’ whereas the cost of the plot was shown as Rs.4,500/-. The appellant was under the impression that the cost of the plot Rs.9,500/- was inclusive of development charges. The respondent issued letter dated 23rd December, 1993 requesting the appellant to pay the balance amount else 15% would be charged on the amount due.
The respondent issued statement of account on 14th July, 1994 to the effect that the total cost of the plot was Rs.15,000/- out of which the appellant paid a sum of Rs.9,500/- and the development charges would be intimated at the time of commencement of the development work and registration charges at the time of registration of the sale deed. The appellant paid the amount of Rs.5,500/- through cheque dated 16th July, 1994 which was encashed by the respondent and to the effect the respondent issued receipt dated 22nd July, 1994. By its letter dated 20th February, 1995 the respondent asked for the details of the appellant as to his age and address for the purpose of the registration of the sale deed which were said to have been furnished by the appellant. The respondent addressed another letter dated 16th February, 1995 with a demand for a sum of Rs.15,000/- towards development charges and by the letter dated 25th Januray, 1996 the respondent informed the appellant that unless the development charges are not received. The sale deed would not be registered.
The respondent through the letter dated 11th June, 1999 demanded a sum of Rs.37,500/- towards the development charges, by letters dated 7th March, 2001 an amount of Rs. 29,888/-by the letter dated 29th January, 2003 an amount of Rs. 52, 325/- by the letter dated 3rd April, 2004 and 17th July, 2004 and 3rd November, 2004 an amount of Rs.55, 638/-, Rs. 54,260/- and Rs.56,666/-. The appellant had given reply dated 22nd June, 2000, 13th December, 2002, 9th July, 2004, 3rd February, 2005, 21st December, 2005 and 20th February, 2006 that he is ready to pay the reasonable amount of development charges. On the assurance of the Vice President of the respondent that the development charges would be reduced to Rs.50,000/- provided the appellant has paid the amount in lump sum, the appellant paid the amount of rs.50,000/- through cheque dated 21st march, 2006 with a request not to cancel the allotment. The respondent issued reply dated 28th March, 2006 that the allotment was already cancelled and as such the cheque was returned.
The respondent resisted the claim while admitting the allotment of the plot number to the appellant and stated that clause number 10 of the application form stipulates that development charges have to be paid as and when the development work commences and to that effect the appellant had undertaken to pay the development charges. In the statement of account the development charges were mentioned as nil since by the date of issue of the statement of account , the development work had not commenced Subsequently as the development work was commenced, the development charges the amount paid by the appellant and the amount due from him is mentioned in the statement of account. The cost of the plot is Rs.15,000/-. The appellant was given special discount as he is from the defence service. The appellant made initial payment of Rs.5,000/-. He had preferred to pay the balance amount @ Rs.750/- per moth commencing from the month of October, 1992. The appellant agreed to pay interest @ 15% vide clause no.11 of the membership form. The respondent issued letter dated 31st March, 1995 requesting the appellant to pay the development charges and issued another letter dated 31st August, 1995 that the appellant was due by the date of that letter an amount of Rs.9,750/- without paying the development charges, the appellant wrote a letter on 27th December, 1995 requesting the respondent to register the sale deed. For eleven years the respondent requested the appellant to pay the development charges. The respondent had to increase the development charges to Rs. 37,500/- as there was much delay on the part of the allottee in paying development charges and in view of the increase in development cost as also for the reasons that 15 % interest on the delayed payment was not collected.
The residential project of East City consists of 1500 acres. The development work was started in phased manner. The respondent requested the members to pay the development charges. The development work of the total project was planned by the respondent company and it is the responsibility of the members to cooperate with the respondent by paying the development charges. More than half of the allottess failed to pay the development charges. The cost of the development work increased day by day and it caused much financial hardship to the respondent in completing the entire development work. The respondent was forced to borrow money and pay interest on the loan amounts. Only after spending the amount for the development work, the respondent requested the members to pay the development charges in installments. Unless the appellant has paid the development charges, he can not be said to have paid the total cost of the plot. By latter dated 8th April, 2005, finally the respondent requested the appellant to clear all the dues by the end of April, 2005 and on his failure, the allotment was liable to be cancelled. The appellant ignored the request made by the respondent. The respondent after giving sufficient opportunity and notice to the appellant cancelled the allotment of the appellant and in similar circumstances, allotment of 1000 other members. The appellant intentionally violated the terms of the allotment and committed default in paying the development charges. The appellant agreed to abide by the decision of the Board of Directors of the respondent company in case of cancellation of the allotment. There is no deficiency in service on the part of the respondent.
The appellant has filed his affidavit and documents Exs. A1 to A41.
The Managing Director of the respondent has filed his affidavit. The documents filed are marked Exs. B1 to B12 on behalf of the respondent company.
The points for consideration are:
1) Whether the appellant paid the total cost of the plot allotted to him by the respondent ?
2) Whether the cancellation of the allotment of the plot by the respondent is arbitrary?
3) To what relief ?
POINT NO.1: The appellant applied for allotment of a plot in the venture, East City floated by the respondent. The appellant was allotted membership number 9205 in the scheme with plot number 8 at Sector 4, Bibinagar in Nalgonda District. The appellant paid an amount of Rs.15,000/- evidenced by receipt dated 2nd July, 1994. The appellant states that he had paid the total whereas the respondent claims that the appellant is due the development charges of the plot and the development charges being the part of the total cost of the plot, as such the appellant had not paid the total cost of the plot. Ex.A1 is the receipt issued by the respondent for Rs.5,000/-. The respondent had issued Ex.A5 on 19.4.1993 for Rs.4500/-. Subsequently the appellant had paid a sum of Rs.5,500/- under Ex.A9 on 22.7.1994. The appellant has paid a total amount of Rs.15,000/- by 22.07.1994.
The respondent has stated that the appellant was given discount on the cost of the plot allotted to him. According to the respondent, the cost of the plot is Rs.25,000/- and the respondent had given special discount to the appellant keeping in view of the fact that the appellant was from the defense service and accordingly, the appellant preferred to pay the balance monthly installments at the rate of Rs.750/- commencing from the month of October 1992. The material portion of the second paragraph of the counter reads as under:
“The cost of the allotted plot is Rs.25,000/-. The complainant paid Rs.5,000/- as initial payment towards the cost of the plot. He was given special discount as he is from the defence services. He preferred to pay the balance amount by way of monthly installments of Rs.750 per month commencing from October 1992, the schedule of the monthly installments was furnished to the complainant. (emphasis supplied).”
The respondent as against its plea of special discount conferred on the appellant in view of the background of the appellant emanating from the defence service, has in the affidavit stated as follows:
“ The total cost of each plot consists of cost of the extent of the plot and the development charges. Plots were allotted when the total cost of the development works were not finally estimated. The cost of the plot is Rs. 25,000/-. Earlier he was given special discount as he preferred to pay the cost of the plot in lumpsum. But the discount was withdraw was withdrawn as he failed to pay the cost of the plot in lumpsum” (emphasis supplied).
In the receipt dated 20.08.1992 the cost of the plot is mentioned as Rs.10,000/- of which the appellant was shown to have paid Rs.5,000/- and the balance amount due from him is stated to be Rs.5,000/-. There is no mention of any discount in the receipt or in the application that it would be conferred subject to payment of the balance amount in limpsum. The respondent’s version is that the cost of the plot is Rs.25,000/- and the amount as informed to the appellant was only a tentative amount. The respondent contends that the appellant had to pay the cost of the plot fixed at Rs.25,000/-. There is no recorded available to the effect that the respondent had tentatively fixed the amount of Rs.10,000/- and thereafter Rs.15,000/- towards the cost of the plot and that the same was informed to the appellant. A perusal of the receipts and the statement of accounts issued by the respondent would indicate that the cost of the plot is Rs.15,000/- Ex.A1 dated 20.08.1992 is issued showing the cost of the plot as Rs.10,000/-. The respondent had issued Ex.A4 informing the appellant that 40% discount conferred on him w.e.f., form 1st November 1992 would be withdrawn if the appellant fails to pay the installments before 15.04.1993. In compliance to the requirement under Ex.A4, the appellant has paid Rs.4,500/- through on 19.04.1993 i.e., four days beyond the stipulated period. Thereafter, the appellant had addressed letter under Ex.A6 that he had through cheque dated 16.7.1994 paid the balance amount of Rs.5,500/-towards the cost of the plot. The respondent had issued statement of account as on 14.07.1994 wherein the total cost of the plot is shown as Rs.15,000/- and the amount paid by the complainant was mentioned as Rs.9,500/- and the balance cost of the plot was stated to be Rs.5,500/- which the appellant has paid on 16.07.1994 as evidenced by the receipt dated 22.07.1994. Ex.A9 is an important document containing the statement of account pertaining to the appellant. An amount of rs.15,000/- was shown as the cost of the plot and the said amount of Rs.15,000/- is shown to have been paid by the appellant and the balance due towards the cost of the plot from the appellant is shown as zero. Therefore, by any stretch of imagination, the respondent’s contention that the cost of the plot was Rs.25,000/- and the 40% discount conferred on the appellant was withdrawn is proved to be false by the document, Ex. A9 which establish the contention of the appellant that he has paid the entire cost of the plot, Rs.15,000/- agreed to have been the cost of the plot.
The learned counsel for the respondent has contended that as per clause no.10 of the application form, the member of the scheme are liable to pay development charges as and when the development work is commenced. It is submitted that the respondent had requested the appellant by Ex. A12 letter dated 30.08.1995 to clear the dues in regard to the development charges and subsequent to Ex. A12 the respondent had issued Ex.A13 letter dated 25.1.1996 and 16.02.1996 the respondent requested the appellant to pay the development charges. The learned counsel for the appellant has submitted that the respondent has not informed the appellant at the time of the appellant joining the scheme or till 1994 and that the appellant for the first time sought for payment of development charges by issuing letter dated 25.1.1996. in Ex.A1, receipt dated 20.08.1992 the column against the development charges is shown as ‘nil’. The respondent issued Ex.A2, allotment letter with membership no. of the appellant shown as 9205. The respondent by Ex.A2 informed the appellant that the appellant would informed periodically details on progress of “ East City :, On this reverse side of Ex.A2 the details of payment made by the appellant is mentioned. In Ex.A2 the particulars of initial payment, number of installments, arrears with 15% etc., are stated and there is no mention of any development charges.
The respondent has contended that the development charges is part of the toal cost of the plot. The respondent has demanded for payment of instalments amount Rs.3,750/- and there is no mention of any demand for the development charges. Again in Ex.A5. receipt dated 19.04.1993 the development charges is shown as zero. The respondent through statement of account dated 14.07.1994 informed the appellant that the development charges “ will be intimated when development commences” and the registration charges” will be intimated when registration if due.” (emphasis supplied). Thus, till 14.7.1994 there was no demand for development charges from the side the respondent. The respondent issued receipt dated 22.07.1994 wherein the cost of the plot Rs.15,000/- is shown to have been paid and the development charges mentioned as ‘nil’.
The respondent requested the father of the appellant that as the appellant was minor by that time, the information in regard to the appellant’s father as to his name, father’s name, age, occupation, address etc., Referring to this letter, the learned counsel for the appellant has submitted that the respondent has never demanded nor informed the appellant of the development charges and the respondent expressed it readiness to execute the sale deed for which purpose the details of the appellant’s father was sought for. The respondent has issued letter on 30.08.1995 with a demand for payment of development charges, an amount of Rs.9750/- towards development charges. It was stated that the development charges should have been paid commencing from July 1994 at the rate of Rs.750/- per month. The appellant was informed that 15% interest would be charged on delayed payments. On query made by the appellant under Ex.A13 in regard to the registration of the sale deed, the respondent has issued letter dated 06.1.1996 confiming that the details furnished by him were noted in its record and those particulars would be utilized at the time of registration of the sale deed. The letter dated 16.02.1996, Ex.A15 was issued with a demand for the payment of Rs.15,000/- towards development charges from the month of February 1996 and an amount of Rs.750/- per month from March 1996. The arrears of due was stated to have been liable to the interest @ 15% for the reason that in the absence of any payment from the appellant towards development charges the respondent was compelled to borrow from others.
The status of membership account of the appellant was mentioned in the letter dated 11.06.1999 where in development charges of Rs. 37,500/- and registration charges an amount of Rs.5,000/- a total amount of Rs.42,500/- was requested to be paid by the appellant . The development charges stated to have been charged @ Rs.150/- per sq. Yard on the members who have not paid the amount, the completion of development work was delayed resulting in escalation of development expenses. The appellant was given opportunity to pay the development chargesRs1000/- per month commencing from June 1999. The statement of accounts as on 11.06.1999 was issued under Ex.A17 to the effect that the cost of the plot was paid whereas Rs.37,500/- towards development charges and Rs.5,000/- towards registration charges was due from the appellant. Thereafter another letter dated 12.5.2000 was issued by the respondent by charging interest on the delayed payments and a total amount of Rs. 42,500/- was demanded from the appellant. On enquiry made by the appellant, the respondent responded by issuing letter dated 30th June, 2000 informing him that the development work was commenced in sector IV in the year 1994. Thus, till the date of issuing Ex.21, the respondent has not informed as to when the development work commenced in Sector IV wherein the plot allotted to the appellant was located. To another query of the appellant that whether the plot allotted to him was under litigation, the respondent informed him that it was not under any litigation and as such photo copy of proof of clearance would not be furnished to the appellant. We are unable to understand what made the respondent to refuse to issue copy of clearance certificate to the appellant. The appellant being allotted the plot and having paid the cost of the plot is certainly entitled to look into the clearance certificate before furnishing the payment schedule and proceedings to obtain the registered sale deed to be executed by the respondent.
The respondent has issued another notice demanding for an amount of Rs.57,500/- towards development charges which included the interest on the delayed payment as on 7.3.2001. In this manner the demand for the development charges has gone escalating from the amount what was demanded yesterday to the amount that is demanded today. Another letter dated 29.6.2002 was issued with a demand for payment of Rs.52,325/-. The respondent informed the appellant that the value of the plot allotted to him would go up Rs.600/- to Rs.700/- per sq.yard as any delay in payment of the development charges by the respondent would result in the delay in completion of development work which ultimately would lead to escalation on the cost of manpower and material etc. Another notice dated 18.12.2003 was issued with a demand for development charges Rs.59,500/- which was followed by the notice dated 31.1.2004 and 3.4.2004 informing the appellant that any further delay in payment of the amount would resulting delay in completion of the development work. The appellant questioned the calculation of development charges which are charged three times higher than the cost of the plot and he expressed his readiness to pay reasonable amount towards the development charges. The respondent has given reply under Ex.A31 on 17.7.2004 stating that the development work comprises of bush clearance, marking of the plots, laying of the roads, open drains, sewerage lines and water lines and also erecting of the street lights and raising of avenue plantation in addition to which landscaping of parks stated to have been carried out by experienced horticulturists. In view of the 12 years standing as the member of the scheme introduced by them the respondent at the goodwill gesture offered 25% waiver of interest on delayed payment of development charges whereby the total amount including the registration charges was scaled down to Rs.54,260/-. The appellant bargained to reduce the development charges to Rs.37,500/- promising that he would pay the amount in lumpsum. The respondent issue letter dated 14.2.2006 along with the cheque for Rs.15,000/- towards the refund of the amount paid by him stating that they are “now left with no option but to cancel your plot allotment and refund you advances.” (emphasis supplied).
The respondent has cancelled the allotment of the plot without informing the appellant that the allotment was going to be cancelled in case the appellant failed to pay the development charges which were hedged with interest @ 15% per annum on the delayed payment. The respondent had begun to demand for the payment of development charges only from the year 1996 though appellant was not informed that the development work was commenced in the sector IV till the year 2001. The respondent all through had been demanding the appellant to pay the development charges and threatened him that interest would be imposed on the delayed payment if the appellant failed to pay the development charges in instalments. The instaments at the intial stage were not fixed and when they were scheduled, an amount of Rs.750/- per month was demanded by the respondent and subsequently it was enhanced to Rs.1000/- per month. In this manner the respondent had gone on extending time for payment of the development charges and simultaneously it has enhanced the development charges by charging the interest @ 15% per annum. At no point of time the appellant was informed that he was to pay development charges and that the development charges would be included the in total cost of the plot. Hence, we are of the opinion that the cancellation of the allotment by the respondent without issuing any cancellation letter to the effect that the development charges included the total cost of the plot and failure of the appellant to pay the development charges would render his allotment cancelled, is arbitrary and as such it is set aside.
The appellant has not paid the development charges and at one stage he had bargained that the development charges demanded by the respondent was three times higher than the cost of the plot and as such he requested the respondent to reduce the development charges to Rs.37,500/- which is also reflected in the notice got issued by him through his advocate to the respondent. It is true, the respondent was negligent and committed deficiency in service by not furnishing the copy of the clearance certificate to the appellant. However, we are inclined to permit the respondent to charge the development charges due as the respondent had to pay the amount borrowed from its sources in the absence of payment of the amount under the head of development charges by the appellant which ultimately enable the respondent to charge the amount by charging the interest on the delayed payment. Accordingly, the impugned order is liable to be set aside.
In the result, appeal is allowed by setting aside the order dated 16.1.2007 passed by the District Forum. The respondent/opposite party directed to execute registered sale deed in respect of plot no.8 in Sector 4 Block 4 in East City at Ranga pur in Bibinagar Village and mandal of Nalgonda District within 15 days from the date of receipt of outstanding development charges from the appellant/complainant. There shall be no order as to costs.
MEMBER
MEMBER
DATED: 02.06.2010
