F.A.No.128/2008 against C.C.No.88 of 2007, Dist. Forum-I, Hyderabad.

Between:

1. M/s.Jana Harsha Estates Construction Pvt.Ltd.,

    Rep by its Chairman  and Managing Director,

    Sri. T.V.Ramana Murthy,

    H.No.12-5-33/2, Vijayapuri, Tarnaka,

    Secunderabad.

2. Sri T.Lingaiah,

    Deputy General Manager,

    CS cum C.C.Department,

    M/s.Jana Harsha Estates Construction Pvt.Ltd.,

    12-5-149/17, Opp.Railway Degree College,

    Tarnaka, Secunderabad.

3. Sri. P.N.Rao,

    Chief Marketing Executive,

    M/s.Jana Harsha Estates Construction Pvt. Ltd.,

    # 3-121/A, Opp.Annapurna Complex,

    Dilsukhnagar, Hyderabad.                                                                 …Appellants/Opposite Parties

And:

C.Ruthi Sri,

D/o. Sri C.Yadagiri,

Aged :7 Years, being Minor, rep by its Natural Gardian

Sri C.Yadagiri, S/o.Sri.Laxmipathi,

Advocate,, High Court of A.P.,

R/o.Plot No.88, Vijaya Durga Nagar,

Beside ARCI, Balapur, Hyderabad.                                                            …Respondent/Complainant

Counsel for the Appellants      :     Mr.B.S.Prasad

For the Respondent : Mr. C.Yadagiri   

QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT

SRI R.LAKSHMI NARASIMHA RAO, HON’BLE MEMBER

AND

SRI T.ASHOK KUMAR, HON’BLE MEMBER

MONDAY, THE TWENTY NINETH DAY OF AUGUST,

TWO THOUSAND ELEVEN

Oral Order (Per  Hon’ble Justice Sri D.Appa Rao, President )
                                                          *****

          This is an appeal preferred by the opposite parties, developers against the order of the District Forum in directing them to allot alternative plot for the original price after receiving the balance payment, if any, besides compensation of Rs.25,000/- and costs of Rs.2,000/-.

          The case of the complainant, a minor, represented by her father in brief is that the appellants, real estate developers, floated a scheme under the name and style of ‘Dream City II, Garden Unit Scheme (Sagar Block) Second Sector (Gold Lines) for executive units of 600 sq. yds. in H Block.  She joined in the scheme in October, 2002 by paying admission fee of Rs.500/- @ Rs.100/- per unit of 120 sq. yds. and paid instalment of Rs.400/- each in 5 units vide separate units dated 24-10-2002.  The first opposite party by letter dated 2/3 October stated that 120 sq. yds. was shown as a unit and the complainant purchased 5 such units at Rs.300/- per sq. yd.  She had to pay for a period of 52 months by January, 2007. When the amounts were paid, she was allotted plot No.99.  She later paid Rs.5,600/- each in respect of 5 units.  As there was no demand, when she insisted for issuance of demand notice, it was informed that they would issue comprehensive demand notice in March, 2005 and on payment of demanded amount, requisite papers would be issued.  Accordingly demand notice dated 01-3-2005 was issued directing her to pay Rs.51,600/-.  Accordingly she paid the amount, in fact an amount of Rs.65,200/- at Rs.13,040/- was paid.  After paying some more amount, when the scheme was coming to an end, she requested to receive Rs.56,000/- towards 5 units which it avoided to receive.  When she insisted, opposite party No.2 for the first time revealed that she had to pay @ Rs.950/- per sq. yd. on the ground that the prices have gone up which he refused to pay.  Again on 10-12-2006 when she went to pay the amount, the opposite parties had escalated the price at Rs.1100 per sq. yd. and demanded payment of Rs.5,36,000/-  Thereupon she  got issued a lawyer’s notice followed by a complaint for a direction to the opposite parties to register plot No.99 in H-Block, Second Sector, Dream City II, (Sagar Block) (Gold Lines) Garden Unit Scheme at the prevailing rates as on 24-10-2002 by accepting the balance instalments and pay compensation of Rs.50,000/- besides costs.

The appellants resisted the case.  They contended that the Consumer Forum has no jurisdiction to entertain the case, the only remedy was to file a civil suit.  It alleged that it never allotted plot No.99 comprising 600 sq. yds.  and the document produced was created.  In fact, plot No.99 was already transferred in favour of third parties in the year 2004-06.  The complainant was irregular in payment of monthly intalments and from her own  version it is clear that she was paying the amounts irregularly.  Even these payments were made towards part payment and not towards full satisfaction.  She never acquired the eligibility for allotment of plot. For the last time, she paid on 25-8-2005 and did not pay the subsequent instalments.  Therefore, her membership was cancelled in the month of September, 2005 as per the rules.  For the first time in January, 2007 for payment of Rs.56,000/- for registration of plots against her promise that she would be regular and punctual in payment of monthly instalments.  Thereafter also she did not pay and filed the complaint after 1 ½ years without payment of any amount.  Since she was a chronic defaulter, she was not entitled for the plot, more so when her membership was cancelled.  Clause 11 of the terms stipulates that if instalments are not paid for 3 months in succession, the management reserves its right to cancel membership without any prior notice.  When she herself violated the terms, the question of allotment of plot will not arise.  The sale deeds were already executed in favour of third parties pertaining to the said plot.  Therefore, they prayed for dismissal of the complaint with exemplary costs.

The complainant in proof of her case filed her affidavit evidence and got marked Exs.A1 to A17, while the appellant filed the affidavit evidence of its Managing Director and marked Exs.B1 to B6.

The District Forum after considering the evidence placed on record, opined that the complainant had paid a total sum of Rs.1,24,000/- between 2002 and 2005 and the same was accepted.  Therefore, the appellants cannot turn round and say that there was default in payment of the amount.  In the light of the fact that plot No.99 was already sold to third parties, the appellants were directed to allot alternative plot besides compensation and costs.

Aggrieved by the said order, the opposite parties preferred the appeal contending that the District Forum did not appreciate the facts or law in correct perspective.  It ought to have seen that the complainant herself was irregular in payment of the amount and therefore she cannot complain that plot was not allotted to him.  She paid the amount after a gap of 1 ½ years fro the last instalment due.  By virtue of clause 11, she was ineligible for any of the plots and therefore prayed that the appeal be allowed.

The point that arises for consideration is whether the order of the District Forum is vitiated by any mis-appreciation of fact or law in that regard?

It is an undisputed fact that when the appellants floated a scheme for allotment of a plot in intalments comprising of each unit at 120 sq. yds. costing about 36,000/- in 52 instalments, she took 5 plots evidenced under the application form, Exs.B1 and B2.  It commenced on 24-10-2002.  Evidently she paid Rs.1,24,000/- vide statement of account, Ex.B6.  Despite the fact that the amounts were to be paid in instalments, even when the complainant had paid the amounts beyond a stipulated date, the appellants have received them without any demur.  Though, for the first time, it alleges that they had cancelled the allotment and membership, it did neither refund the amount, nor even intimate about the cancellation.  In fact, the appellants allotted plot No.99 in favour of the complainant, which she asserts that only after payment of Rs.4,000/- on 28-5-2005.  Thereafter, when she expressed her readiness to pay the balance amount, towards the total cost of 600 sq. yds. and went to the office on 23-8-2006 along with Mr.J.Ashok, Manager, CS-cum CC Department, for the first time it was revealed that the prices have gone up and she had to pay Rs.950/- per sq. yd. and demanded Rs.1,91,363/- which she refused to pay.  She filed Ex.A12 indicating that the appellants have demanded more amount.

The complainant frankly admitted that when your ‘personnel told her that her plot earlier shown is not there and she will be allotted a new plot in another block’ she requested for earlier settlement.  As there was no response, she issued a notice.  These facts were not contradicted by the appellants by giving a reply.  No doubt, the appellants have filed Exs.B3 to B5, copy of sale deeds showing that those plots were transferred to third parties.  She would not be able to get the said plot.  Therefore, the District Forum after considering the decision of Supreme Court relied by the complainant in 2004 (III) CPJ 11 and National Commission in (1) 2007 CPJ 33 opined that if the plot was that allotted was not available, alternative plot at the original price can be allotted.   The complainant had paid an amount of Rs.1,24,000/- on different dates between 2002 to 2005.  Despite the fact that the complainant did not pay the instalments as agreed upon, at no time, the appellants either cancelled her membership or allotment in writing.  They did not refund the amount stating that she was irregular in payment and they were not bound to keep the contract alive.  When they have been receiving the amounts, they cannot turn round and say that the complainant was irregular and did not pay the instalment amounts promptly.  Obviously when the prices have gone up, the appellants intend to wriggle out from the agreement.  Even if refund is ordered, it would not compensate the amount that was paid all through from 2002 to 2005.  The appellants had the advantage of the amounts that were paid by the complainant.  They had used it in its business and now to direct the amount to be refunded, would be undoubtedly doing injustice to the complainant.  In the circumstances, the order of the District Forum to allot alternative plot at the original price after receiving balance amount, if any, could not be said to be either irregular or illegal.  We do not see any mis-appreciation of facts or law in this regard. 

However, the District Forum has obviously forgotten to direct execution of registered sale deed after the appellants allot an alternative plot agreeable to the complainant.   The allotment of plot cannot be made unilaterally by the appellants, the consent of the complainant is necessary.  Except the above modification, we do not see any grounds to interfere with the order of the District Forum.

In the result the appeal is dismissed with costs of Rs.5,000/-.  Time for compliance four weeks.

Sd/-PRESIDENT.

Sd/-MEMBER.

Sd/-MEMBER.           

JM                                                                                                             Dt.29-08-2011