OF 2008 AGAINST C.C.NO.146 OF 2007 DISTRICT CONSUMER FORUM-II HYDERABAD

Between

1.   Smt Saroj Mayson W/o Sri N.K.Mayson
A-1/15, Meerabai Road, A-Zone, Durgapur-713204

2.   Sri Mr.Rahaj Mayson S/o Sri N.K.Mayson
A-1/15, Meerabai Road, A-Zone, Durgapur-713204                                                          
                                                                                        Appellants/complainants

        A N D

M/s Narne Estates (P) Ltd.,
rep. by its Chairman and Managing Director
Col.Narne Rangarao, No.1, Gunrock Enclave
Secunderabad

Respondent/opposite party

  OF 2008 AGAINST C.C.NO.1013 OF 2006

Between

1.   Smt Rekha Baveja W/o Col.P.N.Baveja
11/8, W.E.A. Karolbagh
New Delhi 110005

2.   Sri Taru Baveja S/o Col.P.N.Baveja
11/8, W.E.A. Karolbagh,
New Delhi-110005                                                       Appellants/complainants                                                      

        A N D

M/s Narne Estates (P) Ltd.,
rep. by its Chairman and Managing Director
Col.Narne Rangarao, No.1, Gunrock Enclave
Secunderabad

Respondent/opposite party

Counsel for the Appellants                     Sri K.Lakshminarayana

Counsel for the Respondents                 Sri

 QUORUM:                 SRI SYED ABDULLAH, HON’BLE MEMBER

&

                            SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER

                          WEDNESDAY THE TWENTY FIRST DAY OF JULY

                                            TWO THOUSAND TEN

Oral Order ( As per R.Lakshminarsimha Rao, Member)
                                        ***

        The complainants are the appellants.

        The appeal is directed against the order of the District Forum-II, Hyderabad in C.C.No.1462 of 2007.

        The factual matrix of the case as narrated by the complainant is that the opposite party persuaded them to purchase 250 sq.yards of plot in their venture, East City at Hyderabad.  The complainant’s sister-in-law staying in Delhi was also persuaded to purchase a plot in the project undertaken by the opposite party.  The complainants paid a sum of Rs.26,250/- in the month of December 1993 towards the cost of the plot.  The complainants were allotted membership no.22826 and plot bearing no.45 in block ZJ in Sector V in East City Project.  The opposite party issued allotment letter dated 9.5.1995 in favour of the complainants and communicated the information to Rekha Baveja who is complainant in C.C.1013 of 2006.  The complainants brought the fact to the notice of the opposite party and they were given to understand that the mistake was rectified and the allotment was accordingly transferred in the name of the complainants. 

In the month of May 2006 the complainants came to know through their sister-in-law,  the complainant in C.C.No.1013 of 2006 who was staying in Delhi that the allotment of plot of the complainant was cancelled.  The complainant addressed a letter dated 5.6.2006 to the opposite party seeking to know the status of their plot for which there was no reply from the opposite party resulting in issuance of legal notice dated 7.9.2006.  The legal notice though received by the opposite party on 11.9.2006 failed to evokae any response from the opposite party.  Hence, the complainants have filed the complaint seeking for a direction to the opposite party to register the allotted plot after collecting development charges,  if any. 

        The opposite party contested the claim contending that plot no.45 in block ZJ Sector V of East City admeasuring 250 sq.yards was originally booked by PN Baveja, the complainant no.2 in C.C.NO.1013 of 2006 in the name of Rekha Baveja, the complainant no.1 therein by submitting an application dated 20.3.1995.  The total cost of the plot comprises of basic cost and development charges.  The plots were allotted after basic development was made and at that time the cost of the development work was not finally estimated.  Discount was offered to those members who pay the basic cost of the plot in lumpsum.  The basic cost of the plot was Rs.30,000/-.  The complainants in C.C.No.1013 of 2006 paid Rs.27,000/- towards basic cost of the plot.  The complainant no.2 in C.C.NO.1013 of 2006 requested the opposite party to record the name of the complainant no.1 therein and the complainant no.1 in this complaint i.e., CC NO.146 of 2007.  Accordingly the plot was recorded in the names of the complainant no.1 Saroj Mayson and the complainant no.1 Rekha Baveja in C.C.No.1013 of 2006 and by letter dated 29.11.1995 the recording of their names in respect of the plots was in formed to them.  The complainant no.2 in C.C.No.1013 of 2006 requested the opposite party through letter dated 19.2.1999 to record the names of the complainants by deleting the name of Rekha Baveja, the complainant no.1 in C.C.No.1013 of 2006 and requested the opposite party to make future correspondence to the address given therein.  Accordingly, the opposite party recorded the names of the complainants in respect of the allotted plot. 

        The opposite party had sent quarterly circulars to the complainants  to pay the estimated development charges of Rs.37,500/- @ Rs.150/- per sq.yard.  The complainants had not paid the development charges.  Subsequently, letters dated 21.9.2001, 25.4.2002, 29.9.2003, 29.11.2003, 29.2.2004, 9.10.2004, 4.2.2005 were issued requesting the complainants to pay the development charges.  The complainants failed to pay the development charges.  More than half of the allottees failed to pay the development charges.  The cost of the development work has been increased day by day and caused financial hardship in developing the entire project.  The opposite party was compelled to borrow amount to invest for the development work.  After spending the amount for development work, the opposite party requested the members to pay the development charges by way of monthly instalments.  The opposite party cancelled, in the similar circumstances, 1000 such allotments.  The complainants were informed that if they failed to pay the dues, the opposite party would be constrained to cancel the plot.  The complainants failed to clear the dues.  Hence, the allotment is liable to be cancelled as per clause 7 of the terms and conditions of the allotment letter.  The complainants intentionally violated the terms and conditions of the allotment.  The complainants committed default by not paying the development charges.  There was no deficiency in service on the part of the opposite party.  Hence, prayed for dismissal of the complaint.

        The complainant no.1 has filed her affidavit.  Exs.A1 to A7 were marked on behalf of the complainants.

        On behalf of the opposite party its Managing Director Col.N.Ranga Rao (Retd.) has filed his affidavit and got marked Exs.B1 to B14.  The District Forum has dismissed the complaint opining that the complainants failed to pay the development charges and the complaint was time barred.

        The points for consideration are:

1.           Whether the complaint is not filed within the period of limitation?

2.           Whether the complainants are entitled to the relief of registration of the plots?

3.           To what relief?

POINTS NO.1 & 2      The learned counsel for the complainants submitted that the opposite party had not produced any evidence of having sent a single communication to the complainant demanding payment of development charges.  It is no longer the matter is in dispute that the complainant no.1 in C.C.No.1013 of 2006 was allotted plot no.45 in Sector V and her membership number being 22826 whereof full payment of Rs.26,250/- was made as mentioned in the allotment letter issued on 9.5.1995.  the complainant no.1 addressed letter dated 5.6.2006 brining to the notice of the opposite party that she came to know that the opposite party was initiating the process of allotment and she had shifted her residence to Durgapur in West Bengal and ever since her shifting to West Bengal the opposite party had not sent any information in regard to the status of her plot despite the fact that she had furnished her new address.  As there was no response for her letter, the complainant no.1 has got issued legal notice dated 7.9.2006 through her advocate requesting the opposite party to inform her the details of development charges if any and execute registered sale deed in her favour.  A copy of the letter was marked to the complainant no.1 in C.C.No.1013 of 2006.  It is not disputed that the legal notice was served on the opposite party. 

The opposite party sent cancellation letter dated 26.6.2006 to Ms Rekha Baveja the complainant no.1 in C.C.1013 of 2006 informing her that she was allotted plot no.71 in block ‘S’ of Sector V in the month of January 1994 and that she was informed about payment of development charges through letter dated 15.3.2000 and thereafter reminders were also sent to her at regular intervals for clearance of development charges which however, she had not paid and after waiting for a period of six years the opposite party cancelled the allotment of plot and refunded the amount however subject to the standard deduction. 

The learned counsel for the opposite party has contended that the opposite party had addressed several letters requesting the complainant to pay the development charges which according to him the complainant had received and failed to pay the amount demanded as a result of which the opposite party had cancelled the allotment.  The learned counsel for the complainant has submitted that there has been no evidence on record that to the effect that the opposite party had demanded for the development charges.  A perusal of the record Exs.B1 to B14 would show that they are more in the nature of correspondence between the opposite party and Col.P.N.Baveja as also the complainants.  In the light of the denial of receipt of the letters said to have been sent by the opposite party, it is incumbent upon the opposite party to show that the development charges was due from the complainants and the opposite party has made a demand therefor.  Except the letter Ex.B2 to B6 which deal with the payment of the amount of the plot by Col.P.N.Baveja reflected in the letter dated 26.4.1995, request for rectifying the mistake of omission of the name of the complainant no.1 as seen in the letter dated 13.7.1995, and recording the name of the complainant no.2 in respect of plot no.45 substituting for the name of Rekha Baveja there is no evidence to the effect that the complainants were informed of the commencement of development work and the development charges levied thereunder.  The only letter that the opposite party can rely upon is the letter dated 29.11.1995 issued jointly by the complainant no.1 and the complainant no.1 in C.C.No.1013 of 2006 which would also is of no help to the case of the opposite party that the complaint was not filed within the period of limitation.  The complaint has to be filed within the period of two years from the date of cause of action.  The opposite party has not demanded the development charges which were to be sought for only after the commencement of the development work and as such it cannot be said that the complaint is not filed within he period of limitation.   The  letters dated 21.9.2001, 25.4.2002, 29.9.2003, 29.11.2003, 29.2.2004, 9.10.2004, 4.2.2005 said to have been  issued requesting the complainants to pay the development charges have not been established to have been served on the complainants. 

This Commission in V.Madan Mohan Rao Vs Narne Estate Pvt. Ltd., and others reported in II (2010) CPJ 444 dealt with the case where in the similar circumstances, held that there was no sufficient correspondence bringing to the knowledge of the complainants that civil works commenced and the demand for development charges thereto.  It was held “ the opposite parties though stated they have waited for a period of decade and then cancelled the allotment of the plot of the complainant there has been no evidence from their side to suggest that the civil works commenced from such and such date and the complainant was requested to pay the development charges thereto”. 

In the circumstances, the complainants have rightly contended that their complaint was filed within the period of limitation.  The complaint was filed on 9.2.2007 and the opposite party has not given any response to the demand made by the complainant  through letter dated  5.6.2006 and the legal notice dated 11.9.2006.  Hence, it cannot be said that the complaint is not filed within the period of limitation. 

The opposite party has stated that it has cancelled the allotment of the plot as the complainants failed to pay the development charges.  We have discussed in detail that there was no such demand as was said to have been made in regard to the payment of development charges. The opposite party cannot resort for unilateral cancellation of the allotment without making any demand for development charges.  The opposite party cannot demand for registration charges as it is the option of the complainant to bear it themselves at the time of registration of sale deed.  In V. Madan Mohan Rao Vs Narne Estate Pvt. Ltd., and others (supra) it was held as under:

“There has been no evidence brought on record in support of contention of the opposite party that sufficient correspondence has been made brining to the knowledge of the complainant that civil works had commenced and subsequently thereto the complainant was demanded to make payment of development charges as well as the registration charges.  It is pertinent to note that in the absence of any agreement for payment of registration charges by the complainant to the opposite party, the opposite party could cancel the allotment.  Viewed from any angle, the cancellation of allotment made by the opposite party is arbitrary and untenable.  Therefore, we hold that there has been negligence and deficiency in service on the part of the opposite party manifest on the very act of cancellation of allotment”. 

The facts and circumstances of this case and the case on hand being similar in nature as also the opposite party had figured in that case, we do not find any merit in the contention of the opposite party that the complainants had been at fault.  In the circumstances, we are inclined to allow the appeals.  The impugned orders are liable to be set aside. 

 It is not disputed that the opposite party has allotted plot no.71 in favour of M/s Rekha Baveja and  Tarun Baveja under allotment letter dated 13.1.1994 and plot no.45 in favour of Rekha Baveja which it was subsequently transferred in the name of the complainants.  Thus the complainants herein are entitled to the execution of the sale deed in respect of plot no.45 in Block ZJ, Section V whereas the complainants in C.C.No.1013 of 2006 are entitled to the execution of sale deed in respect of plot no.71 in block S Sector V of East City, subject to the payment of development charges. 

        In the result the appeal is allowed.  The order dated 20.5.2008 of the District Forum is set aside.  Consequently the complaint is allowed directing the opposite party to execute sale deed in respect of Plot No.45 in Block ZJ, Section V admeasuring 250 sq.yds in East City Project within one month from the date of receipt of the development charges from the complainant.    The costs of the proceedings quantified at Rs.2,000/- payable by the opposite party. 

F.A.No.1141 of 2008

        In the result the appeal is allowed.  The order dated 30.7.2008 of the District Forum is set aside.  Consequently the complaint is allowed directing the opposite party to execute sale deed in respect of Plot No.71 in Block S, Section V admeasuring 250 sq.yds in East City Project within one month from the date of receipt of the development charges from the complainant.    The costs of the proceedings quantified at Rs.2,000/- payable by the opposite party.

                                                                                MEMBER

                                                                                MEMBER

                                                                            Dt.21.07.2010

KMK*