Andhra Pradesh

Guntur

CC/66/2013

A. ARAVIND - Complainant(s)

Versus

M/S. IMAGE REAL ESTATE & DEVELOPERS, - Opp.Party(s)

G. SOMASEKARA RAO

02 Apr 2014

ORDER

This complaint coming up before us for hearing on 18-03-14 in the presence of Sri G.Somasekhara Rao, advocate for complainant and of Sri J.Narasimha Rao, Advocate for opposite party, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Prabhakar Gupta, Member:-

 

 

 

            The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking directions on the opposite party to refund the paid amount of Rs.1,00,000/- with interest @ 24%p.a. , towards compensation and damages Rs.50,000/-, for mental agony Rs.40,000/- and to pay Rs.2,000/- towards cost of the complaint.  In addition to this the complainant claimed Rs.5,000/- towards traveling, correspondence, incidental expenses. 

 

2.   In brief the averments of the complaint are these:

The complainant herein by name A.Aravind is being represented by minor guardian father by name A.S.Nageswara Rao.  The opposite party is doing real estate development business.  During the course of their business, the opposite party approached the complainant and stated that their company owned some lands in survey Nos.1087/P, 1088/P and 1111/P situated within the Vengalayapalem Gram Panchayat.  For their business purposes they divided the lands into house plots and they are developing the land by making all necessary arrangements like forming roads, providing drainage, facilitating drinking water with approval of the Urban Development Authority and also with the other authority permissions.  Further, they stated that for their business the said land which was divided into plots named as “Image Paramount Residency” and started a scheme in connection with sale of the said divided plots.  They also stated that the cost of the one plot is Rs.5,30,000/-.  Believing the representations and words of the opposite party, the complainant got purchased one plot and joined in the scheme by paying Rs.250/- towards admission fee.  Further, the complainant paid an amount of Rs.40,000/- and 10,000/- on 22-03-10 for which the opposite party issued a receipts bearing Nos.807,808.  Further, the complainant again paid an amount of Rs.50,000/- on 26-01-11 and got the receipt from the opposite party bearing No.552.  On payment  of Rs.1,00,000/- in total the opposite party executed an agreement of sale infavour of the complainant inrespect of schedule mentioned plot on 26-01-11 acknowledging the receipt of the paid amount of Rs.1,00,000/-.  Further, they also agreed to receive the balance amount of Rs.4,30,000/- in 12 equated monthly installments from the date of joining of the complainant in the scheme.  Further, they also agreed that they shall obtain necessary layout approvals, licenses to facilitate the land with all amenities as promised by them. For which the complainant can construct a house over the purchased plot.  For the transactions of the complainant, the opposite party also issued a pass book bearing No.08.  Subsequently, the complainant expressed his readiness to pay the balance of sale amount in the month of March, 2011.  At that time the complainant requested the opposite party to develop the plot as assured by them.  But the opposite party did not take any steps to make the plot for construction of a house by getting all licenses and approved layout plan from the Urban Development Authority.   Further, on enquiry the complainant came to know as on date the opposite party did not file any application before Urban Development Authority for getting approved layout plan.  Even inspite of requests and demands made by the complainant the opposite party did not made the plot to construct a house by getting all the amenities.  At last the complainant got issued legal notice on 17-07-12.  Even inspite of legal notice also the opposite party not made any efforts for the development of plot as assured by them and even the opposite party failed to issue reply to the legal notice.  As there is no other go the complainant filed the present complaint for grant of reliefs as prayed for since the opposite party committed deficiency of service on their part. 

 

3.      Opposite party filed its version which is in brief as follows. 

          In reply to the complainant the opposite party filed their version denying most of the allegations of the complaint.  In their version the opposite party put allegation that present complainant is their agent, acted for the sale of plots in the “Image Paramount Residency” Scheme.  In the course of his business the present complainant sold nearly 31 plots and got an amount of Rs.10,77,618/- towards his commission.  Further, getting the commission and observing the development of the scheme, the present complainant joined in the said scheme as a member where he is acting as a commission agent, and the paid Rs.1,00,000/- is also adjusted from his commission and not paid in cash.  On some pretext or influence made by the other parties or companies the present complainant dropped from acting as a commission agent and started to involve the persons who purchased the plots to ask refund of the amount by making false allegations on the opposite party.  As the opposite party having goodwill in the present market and to avoid litigations in connection with the sold plots of the scheme they were returned the amount without deducting the commission which was paid by the opposite party to the complainant. Further, with a ulterior motive the complainant made the false allegations against the opposite party and filed the present complaint to harass the opposite party and to get illegal money.  Since, there is no deficiency of service on their part as in connection with getting permissions from Urban Development Authority and development of plot or they strictly followed the terms and conditions of the scheme and mentioned in the complaint, the opposite party prayed this Forum to dismiss the complaint with exemplary costs. 

 

5.      The complainant and opposite party filed their respective affidavits. Exs.A-1 to A-10 was marked on behalf of the complainant.  Exs.B-1 to B-57 was marked on behalf of the opposite party.

 

6.   Now the points that arose for consideration in this complaint are:

1. Whether the opposite party committed any deficiency of service as promised by them?
2. Whether the complainant established the deficiency of service in support of his documents?
3. To what relief?

 

 

 

7.  POINT No.1

          With the pleadings and on hearing of both parties it is an admitted fact that the present complainant joined as a member to the housing scheme by name “Image Paramount Residency” (paramount residency).  Further, it is also an admitted fact that the complainant purchased a plot for Rs.5,30,000/- by agreeing terms of scheme, which were clearly mentioned on the back side of the application, marked as Ex.B-1.  Further it is also an admitted fact that the complainant paid an amount of Rs.1,00,000/- in total towards the cost of the purchased plot and the same was received by the opposite party on varies dates.  There is no dispute with regard to these facts.  Now the discussing point is whether the opposite party committed any deficiency in following the terms of the conditions clearly mentioned on the back side of Ex.A-1.

        Ex.A-1 the document which is having the nature of application for vacant site for the said scheme, which contains the terms and conditions of the scheme on its back side.  According to term No.11 it is elicited that the allotment should be based on temporary layout plan and the permanent allotment should be made by the opposite party on obtaining of Urban Development Authority permission.  Further, under term No.12 it is mentioned that on any reasons if the opposite party not in a position to allot plot under the said scheme, the opposite party must return the paid amount by way of cheque to the purchaser.  Under term No.14 it is mentioned that the concerned approval from the Urban Development Authority and other permissions should be obtain with in the period of completion of the scheme by the opposite party.  The other terms and conditions are irrelevant to the present case.  As per these terms it can be presumed that the opposite party should obtain all the necessary permission from the authorities concerned within the period of completion of the scheme.  However, no document has been filed by either parties with regard to the commencement of scheme.  So it has to be taken that the payment of first installment by the complainant is the commencing of scheme. As per the pass book No.08, issued by the opposite party, stands in the name of complainant, the first amount of Rs.40,000/- paid by the complainant on 22-03-10.  So we have to take this date as commencing of the scheme date.  As per the Ex.A-1 which is having nature of agreement for sale of plot, stands in the name of complainant, the period for the payment of remaining balance is 12 months from the date of joining.  So the complainant joined on              22-03-10 and the completion of the scheme should be taken as                 22-02-11. Within this period the opposite party should obtain necessary approvals from the authorities.  As per the version of the opposite party and with the contents of Ex.B-57 which is having the nature of approved layout plan under L.P.No.12/13/GNT and with the version of the opposite party he obtained the said Urban Development Authority permission on 05-02-13 i.e. after the expiry of scheme period.  Even taking the date of agreement for sale which is executed on 26-01-11 as starting date of the scheme the opposite party should obtain the said permission and approval from the authorities on or before 26-12-11.  So it is clear deficiency of service on the part of the opposite party since he offered the plot to purchase for sale.  Even the opposite party is not entitled to introduce any scheme for sale of plots without proper and necessary permissions.  This act of the opposite party seems to be deficiency of service.  This view has been taken by this Forum with the authority in a case P.Nirmla Devi Vs. P.Venkateswara Rao reported under 2012 (1) CPR 373 (NC) where their Lordships held that selling of plots without obtaining permission for the layout amounts to deficiency of service.  This view also supported by another case held between Kiran Real Estates & Constructions Vs. Nagalla Ananda Sai Sudhakar reported under Authority 1999 ALD (CONS) page 103 where their Lordships held that offering of plots without getting approved layout plan and permissions from the Urban Development  Authority itself deficiency of service.  So in all the corners i.e., with the conditions of the scheme application, terms of the agreement  for sale of plot and also other documents, the opposite party did not comply the term of getting layout plan within the stipulated time though he obtained the same in the year 2013  amounts to deficiency of service.  The other facts like the complainant acted as a agent of the said scheme for the sale of plots getting of commission for the sale of 31 plots and adjustment of the paid amount of Rs.1,00,000/- from his commission are irrelevant points to this case since this Forum restricted to discuss about deficiency of service.  So this Forum did not discuss about these acts in connection with the commission agent etc.,.  Accordingly this point answered infavour of complainant.

 

 

 

8.      POINT NO. 2:-

        As per the filed documents by the complainant it is clearly established that the deficiency of service on the part of opposite party by Ex.A-1 which is an agreement for sale of plot, Ex.A-8, broacher of the scheme including application form non approved layout plan.  Further, the payment of Rs.1,00,000/-  clearly established by the complainant through the document marked as Ex.A-2, pass book given by the opposite party, Ex.A3, A-4, A-5 which are paid amount receipts stands in the name of complainant issued by the opposite party.  So, the complainant established his case by way of filing of these documents.   Accordingly this point answered infavour of complainant.

9.      POINT NO.3:-

        Coming to the reliefs as prayed by the complainant, it is observed that the claim of the complainant is excessive for the deficiency of service committed by the opposite party in connection with the sale of any authorized plots.  However, the complainant is entitled part of his claim which is clearly mentioned below :

 

10.   In the result, the complaint is allowed in part as indicated below:

        1.     The opposite party is directed to pay Rs.1,00,000/- to the complainant with interest @ 24% p.a. from the date of filing of this complaint till the date of realisation.

        2.     The opposite party is further directed to pay an amount of Rs.10,000/- (Rupees ten thousand only) towards mental agony and an amount of Rs.2,000/- (Rupees two thousand only) towards costs of the complaint.

        The above order shall be complied within a period of 30 days from the date of receipt of this copy of order.

 

 

 

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 2^nd day of April, 2014.

 

 

MEMBER                                  MEMBER                                PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

 

Ex.Nos.	DATE	DESCRIPTION OF DOCUMENTS
A1	26-01-11	Copy of Agreement for sale of plot.
A2	-	Copy of pass book bearing No.8
A3	22-03-10	Copy of receipt bearing No.807 for Rs.40,000/-
A4	22-03-10	Copy of receipt bearing No.808 for Rs.10,000/-
A5	26-01-11	Copy of receipt bearing No.552 for Rs.50,000/-
A6	17-07-12	O/c. of Legal notice issued by the complainant to opposite party.
A7	-	Copy of acknowledgement.
A8	-	Broacher
A9	-	Application
A10	-	Image paramount residency plan

 

For opposite party:   

 

Ex.Nos.	DATE	DESCRIPTION OF DOCUMENTS
B1	22-03-10	Copy of application form in respect of Plot No.63
B2	11-12-10	Copy of commission payment voucher.
B3	12-12-10	Copy of commission payment voucher.
B4	13-12-10	Copy of commission payment voucher.
B5	14-12-10	Copy of commission payment voucher.
B6	15-12-10	Copy of commission payment voucher.
B7	16-12-10	Copy of commission payment voucher.
B8	17-12-10	Copy of commission payment voucher.
B9	18-12-10	Copy of commission payment voucher.
B10	19-12-10	Copy of commission payment voucher.
B11	20-12-10	Copy of commission payment voucher.
B12	21-12-10	Copy of commission payment voucher.
B13	23-12-10	Copy of commission payment voucher.
B14	28-12-10	Copy of commission payment voucher.
B15	23-12-10	Copy of commission payment voucher.
B16	23-12-10	Copy of commission payment voucher.
B17	24-12-10	Copy of commission payment voucher.
B18	25-12-10	Copy of commission payment voucher.
B19	26-12-10	Copy of commission payment voucher.
B20	26-12-10	Copy of commission payment voucher.
B21	26-12-10	Copy of commission payment voucher.
B22	27-12-10	Copy of commission payment voucher.
B23	27-12-10	Copy of commission payment voucher.
B24	30-12-10	Copy of commission payment voucher.
B25	31-12-10	Copy of commission payment voucher.
B26	03-01-11	Copy of commission payment voucher.
B27	13-01-11	Copy of commission payment voucher.
B28	29-01-11	Copy of commission payment voucher.
B29	29-01-11	Copy of commission payment voucher.
B30	30-01-11	Copy of commission payment voucher.
B31	13-02-11	Copy of commission payment voucher.
B32	14-02-11	Copy of commission payment voucher.
B33	21-03-11	Copy of commission payment voucher.
B34	22-03-11	Copy of commission payment voucher.
B35	24-03-11	Copy of commission payment voucher.
B36	11-04-11	Copy of commission payment voucher.
B37	12-04-11	Copy of commission payment voucher.
B38	17-04-11	Copy of commission payment voucher.
B39	18-04-11	Copy of commission payment voucher.
B40	19-04-11	Copy of commission payment voucher.
B41	21-04-11	Copy of commission payment voucher.
B42	22-04-11	Copy of commission payment voucher.
B43	22-04-11	Copy of commission payment voucher.
B44	23-04-11	Copy of commission payment voucher.
B45	25-04-11	Copy of commission payment voucher.
B46	28-04-11	Copy of commission payment voucher.
B47	29-04-11	Copy of commission payment voucher.
B48	30-04-11	Copy of commission payment voucher.
B49	12-05-11	Copy of commission payment voucher.
B50	15-05-11	Copy of commission payment voucher.
B51	26-05-11	Copy of commission payment voucher.
B52	04-06-11	Copy of commission payment voucher.
B53	05-06-11	Copy of commission payment voucher.
B54	22-06-11	Copy of commission payment voucher.
B55	22-06-11	Copy of commission payment voucher.
B56	02-07-11	Copy of commission payment voucher.
B57	-	Copy of L.P.No.12/2013/ GNT File No.E1/16/2013

 

 

                                                                                                      

        PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.