BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 898/2008 against C.C. 170/2007, Dist. Forum-I, Hyderabad
Between:
Smt. Chennupati Bhavani
W/o. Ramesh Babu
Age: 39 years, House Wife
Saraswathi Sadan, Wood Nagar
Chirala Prakasham Dist. *** Appellant/
Complainant.
Vs.
M/s. Narne Estates Pvt. Ltd.,
No. 1 Gunrock Enclave
Secunderabad-500 009
Rep. by its Chairman & Managing Director
Col. N. Ranga Rao (Retd) *** Respondent/
Opposite Party
F.A. 899/2008 against C.C. 171/2007, Dist. Forum-I, Hyderabad
Between:
Smt. K. Sandhya Rani
W/o. Narendra
Age: 47 years, House Wife
H.No. 210, Ramakrishna Tower
Nagarjuna Nagar
Yellareddyguda
Hyderabad-500 073
Presently R/o. Flat No. 117
Sanali Heavens, Nagarjuna Nagar
Yellareddyguda, Hyderabad-73. *** Appellant/
Complainant.
Vs.
M/s. Narne Estates Pvt. Ltd.,
No. 1 Gunrock Enclave
Secunderabad-500 009
Rep. by its Chairman & Managing Director
Col. N. Ranga Rao (Retd) *** Respondent/
Opposite Party
Counsel for the Appellants: M/s. M. Haribabu
Counsel for the Resps: M/s. K. Koteswara Rao
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
THURSDAY, THIS THE SEVENTH DAY OF OCTOBER TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) Appellants are unsuccessful complainants.
2) Since these appeals are filed against the very same opposite party M/s. Narne Estates against the orders of the Dist. Forum pertaining to the same venture, and as common questions of fact and law are involved, we are of the opinion that these appeals can be disposed of by a common order.
3) The case of the complainants in brief is that respondent has been carrying real estate business. Pursuant to its advertisement inviting the public for sale of plots, they booked plot No. 10 (C.C. No. 170/2007 ) and plot No. 16 (C.C. 171/2007) admeasuring 250 sq.yds each in Sector-IV of East City Despite payment of entire sale consideration and demand to register and deliver the possession of property the respondent kept quiet without any response. However, the it demanded heavy amounts under the guise of development charges. Since the prices have been escalated day to day the respondent had devised these means to get over and enclosed a cheque for Rs. 15,000/- styling it as refund of payment. Since it did not depict the amount for which they made payments, they did not encash it. Clauses on the reverse of the application are unilateral and had no application. Therefore they got issued a legal notices and filed the complaints directing the appellant to register and deliver the possession of the property together with compensation and costs.
4) The respondent resisted the case. While admitting that it has been carrying on the business of real estate business and started a venture under the name and style of ‘East City’ the complainants had entered into an agreement wherein there was a categorical stipulation that breach of any of the conditions, the agreement was liable to be cancelled. The complainants had failed to pay the instalments by due date, despite its relentless persuasions. The obligation to pay the development chares is known to the complainants. It had demanded development charges at Rs. 1,000/- per month per plot from July, 1994. It had issued reminders from 6.12.2001 to
5.11.2004. All through the complainants had kept silent without payment of amount. Therefore it was forced to cancel the allotment, refunded the entire amount paid by them. The complainants were trying to get advantage out of their own default. Since the allotments were cancelled and the amounts paid had been refunded, they were not entitled either for registration or for possession of plots. They were chronic defaulters. They did not pay the development charges for a long period in spite of several requests. Therefore it prayed for dismissal of the complaints with exemplary costs.
5) The complainants in proof of their case filed their affidavit evidence and got Exs. A1 to A8 marked while the respondent filed the affidavit evidence of its Chairman & Managing Director and got Exs. B1 to B14 marked.
6) The Dist. Forum after considering the evidence placed on record opined that the complainants did not pay the development charges despite issuance of several reminders by the respondent and finding that there was no deficiency in service on the part of respondent dismissed the complaints.
7) Aggrieved by the said decision, the complainants preferred the appeals contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen having received the consideration in 1992 respondent cancelled the plots in 2006, on the ground that the development charges were not paid, and it was without any basis. At the most the respondent is entitled for development charges and interest, however cancellation on the said ground is bad under law. There was no right to cancel the plots that were already allotted. The order of the Dist. Forum is against the decision of the Supreme Court and therefore prayed that the appeals be allowed.
8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
9) It is an undisputed fact that the complainants have been allotted house plots No. 10 ( C.C. 170/2007)), Plot No. 16 (C.C. 171/2007) admeasuring 250 sq.yds in Sector-IV of East City floated by the respondent a real estate company evidenced under Ex. A2 dt. 19.12.2003 allotment letter wherein they were directed to pay Rs. 15,000/- towards sale consideration besides Rs. 37,500/- towards development charges and Rs. 7,000/- towards registration charges. The complainants had paid Rs. 15,000/- towards sale consideration. Even by then it was mentioned that 90% of roads, 80% of drainage, 85% of sewage, 50% of electrical lines and 50% of water distribution network were completed. Later the respondent has been demanding escalated amounts for the same under letter dt. 19.12.2003 vide Ex. A2. They were directed to pay Rs. 61,732/- including registration charges of Rs. 7,000/-. They claimed Rs. 17,232/- towards interest on delayed payment towards development charges. Again by letter dt. 4.12.2004 they were directed to pay Rs. 67,889/-. When the complainants have been insisting on execution of registered sale deeds, the respondent issued notice Ex. A4 dt. 10.2.2006 stating that for non-payment of dues the allotment was cancelled. The complainant got issued legal notice under Ex. A7 alleging that such a cancellation was illegal and when physical verification was made they found that there was very little development though promised to complete within a reasonable time. However due to escalation of prices the respondent has cancelled, and as such they issued a legal notice directing it to execute the registered sale deeds. The respondent gave reply under Ex. A8.
10) It is not in dispute that the complainants had paid the entire amount towards sale consideration. The complainants have been issuing notice after notice directing the appellant to execute the registered sale deed and deliver possession. When it did not evoke any reply they got issued a legal notice through their advocate under Ex. A7 dt. 18.12.2006 for which the appellant gave reply under Ex. A8 For the first time it alleged that there
was delay in payment of instalments and non-payment of the development charges as agreed upon and therefore it has cancelled the agreements and the monies were refunded by way of cheques. It was not encashed by the complainants paid towards sale consideration. Questioning the cancellation of agreements and refund of the amount, the complainants filed the complaints.
11) However, the complainants have received the letters informing the cancellation of the agreements and the cheque towards sale consideration on the ground that the complainants did not fulfil the terms of the agreement by paying the amounts by due dates. It further alleged ‘as per the terms and conditions agreed upon at the time of booking of the plot, you were required to clear all your dues by July, 2002. We had been patiently waiting for your remittances but to no avail Apart from numerous reminders to clear your dues, we had expressed our constraint to initiate action for cancellation of plot allotment vide our letters Dt. 19.12.2003, 30.1.2004, 4.12.2004 and 11.5.2005 but even those have failed to elicit any positive response from you.” But it did not mention that the agreement was cancelled due to non-payment of development charges. On that the complainants issued legal notice Ex. A7 questioning the cancellation for which the appellants gave reply Ex. A8. Questioning the cancellations the complainants filed the above said complaints.
12) At the outset, we may state that while issuing reminders Exs. A2 & A3 dt. 19.12.2003 and 4.12.2004 it had claimed development charges of Rs. 54,732/- and Rs. 59,889/- respectively. The appellant could not show that it had incurred a particular amount towards development of the project and the complainants had to pay the amount on prorata basis as agreed upon.
In other words for a plot worth Rs. 15,000/- the appellant was claiming Rs. 59,889/- in December, 2004 towards development charges. The opposite party has been collecting the amounts towards development charges as well as registration charges along with sale consideration. At no time the opposite party has given any break up figure as to how it could claim particular development charges. Unless the amounts collected towards development charges is known, it is not prudent on its part to collect development charges from the complainants without mentioning as to how it was assessing the amounts towards development charges. Whenever, it collects the development charges, it is incumbent on its part to spell out the developments that were made by him and the amounts spent from out of the amounts collected from the complainants. It was also claiming registration charges contrary to the provisions of Registration Act which in fact had to be paid by the vendor at the time of registration. Obviously, the appellant intends to have the above registration charges, for utilizing the same for its business. It is not authorised to claim from the purchaser. It is contrary to law. So also, under Section 53 of the Transfer of Property Act, the agreements could not have been cancelled for non-payment of development charges, which did not form part of sale consideration. More over, the appellant cannot go on demanding the amounts on one head or the other and non-payment of it cannot be termed as violation of the agreement. When the complainants have been insisting for execution of sale deed having paid the entire sale consideration the appellant ought to have registered the plot and delivered it. If any amount is due towards development charges it could have recovered. However, having received the consideration, it cannot deny execution of sale deed. The demand for registration charges and cancellation of agreement for non-payment is contrary to law. Equally so for non-payment of development charges. We reiterate that the respondent was unable to file any document to show that the complainants had to pay a particular amount towards development charges. Since it is a company registered under the Companies Act, 1956 necessarily it must have been maintaining accounts. It could have filed at least a copy of the account to show the amount that was spent towards development charges. It cannot claim exorbitant amounts, and on non-payment it can terminate and cancel the agreements. It is highly arbitrary and unjust. For the first time the appellant refused to register, by cancelling the allotment and refunding the amount by letter Ex. A4 Dt. 10.2.2006. The complainants filed the complaint on 19.2.2007 within the limitation as contemplated u/s 24A of the Consumer Protection Act. Therefore the complaints are not barred by limitation.
13) The Dist. Forum did not consider any of these facts and simply on non-payment of development charges and registration charges it held that there was no deficiency in service on the part of respondent. It is unfortunate that though they did not form part of sale consideration and non-payment of extraneous charges could not lead to cancellation of agreement and at the most if the respondents are entitled to it could collect by initiating proceedings. However, on that premise it cannot cancel the allotment, and consequently deny execution of registered sale deeds in their favour.
14) The jurisdiction of Dist. Forum to order execution of sale deed and delivery of possession is no longer in dispute, more so, in a recent decision of High Court of A.P. in W.P. No. 2846/2009 and batch by its order Dt. 13.8.2010 filed by the very respondent against various persons to whom the plots were allotted, the High Court after considering the entire case law including the Hon’ble Supreme Court which we do not want to reiterate opined that the Dist. Forum has jurisdiction to direct execution of registered sale deeds and deliver possession as it attracts Section 2(1)(o) of the C.P. Act. Despite settled proposition of law the respondent has been raising the very same contentions inviting the very same order. The order of the Dist. Forum does not sustain.
15) In the result the appeals are allowed setting aside the order of the Dist. Forum. Consequently the complaints are allowed in part directing the respondent to execute the registered sale deeds in favour of the complainants and deliver possession of the same within 4 four weeks from the date of receipt of this order. The complainants are also entitled to costs of Rs. 5,000/- each.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 07. 10. 2010.
*pnr
“UP LOAD – O.K.”
