Date of Filing: 28.01.2016

                                                                                         Date of Order :29.10.2018      

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD

P r e s e n t­

HON’BLE Sri P.Vijender, B.Sc. L.L.B.  PRESIDENT.

HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER.

Monday, the 29^th day of October, 2018

C.C.No.59 /2016

Between

Smt. Kolaventy Sunitha,

W/o. Sri Kolaventy Praveen Kumar,

Aged about 49 years, Occ: Government Service,

Resident of 8-1-136/1/A/5, Lake View Villas,

Maruthinagar, Shaikpet, Hyderabad,

Telangana State.                                                                                         ……Complainant

And

M/s. Pragati Green Meadows & Resorts Private Limited,

Registered office at Plot No.42,

Road No.5, Jubilee Hills,

Hyderabad, Telangana,

Represented by its Director Smt. G.V. Kumari                                          ….Opposite Party

Counsel for the complainant                :  Smt. Y.Jhansi

Counsel for the Opposite Party                 :  Sri B.Siva Kesava Reddy

O R D E R

(By Sri. Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)

            This complaint is preferred under Section 12 of C.P. Act of 1986 seeking direction to the Opposite Party to execute a registered Rectification Deed to the registered Sale Deed executed by the Opposite Party in document bearing No.2961/2015, for the Plot bearing No.G-1001 & G-1002 forming in Part of Survey No.18/Part situate at Gollapally Village by deleting the impugned clauses and to complete the development in the layout as promised in the venture within reasonable time frame.  The Opposite Party started a venture of house plots under the name and style of Pragathi Green Heights and made an offer to the Public for the sale of farmland plots in print and electronic media assuring to provide major facilities such as planting of 9 Wood bearing trees, 9 mango plants, Drip irrigation, Electric lines on all the roads and 33’ & 40’ feet road to entire venture and security to it free maintenance of the plots till handing over of the same to the prospective purchasers, free memberships in it’s Resorts to five family members of plot owners.  The complainant’s father in law Late Sri K. Rushya Rao having impressed by the offers made by the Opposite Party in the venture purchased plots bearing Nos.G-1001 & G-1002 of farm land admeasuring 500 Sq. yards of each in the name of the complainant by availing loan from UCO Bank.  He had paid entire sale consideration to both the farm land plots.  The Opposite Party failed to develop the venture as promised and there is no proper improvement or maintenance and there is apprehension in the minds of persons who bought farm plots that Opposite Party will not develop the venture.  It clearly shows the Opposite Party had cheated the innocent persons with a dishonest intention and extract their hard earned money to enrich itself.

1.         Since, the entire sale consideration was paid by complainant’s father in law she left with no alternative except to request the Opposite Party to register the plots though there is no development in the venture as per the terms at the time of purchase and in line with the other purchasers of the plots.  Both the parties have finalized draft terms and conditions for execution of the sale deed and Opposite Party agreed to execute and register the sale deed as per the terms agreed in between the parties.            

2.         The complainant due to her employment demands was unable to present personally for the registration of the plots.  Hence, she arranged a person on her behalf by furnishing a document under Section 32 A of Registration Act, 1908 to complete the process of registration and thereafter Opposite Party registered plots before the Sub-Registrar, Chevella in Ranga Reddy District.  The original sale deeds were collected by Opposite Party as she could not collect it on account of her busy schedule.  The Opposite Party having collected the original sale deed did not handover to her, inspite of repeated demands.  Only a photocopy of the registered Sale Deed of one plot was sent to her through one Mr. Mallikarjuna Rao and his wife Mrs. Jhansi who arranged for the sale of plots.

3.         The complainant after receiving the Xerox copies of the sale deeds verified and noticed that, the accepted terms and conditions were not incorporated in the Sale Deeds and registered Opposite Party has incorporated new terms on it’s own without the consent and knowledge of her.  The Opposite Party included new clauses of maintenance agreement and conditions on free membership to five members of the purchasers which would create an obligation to pay maintenance by the complainant forever.  These terms were not included in the Sale Deeds of others who have purchased the plots in the venture and it shows, the deceitful intention of the Opposite Party.  The complainant having reposed the confidence on the Opposite Party allowed him to handle registration process but Opposite Party by incorporating the clauses  in his favour in the sale deed committed an act of unfair trade practice and cheating hence, she got issued a legal notice on 01.01.2016 calling upon the Opposite party to delete the clauses in the sale deed for which she didn’t give consent by executing a registered Rectification Deed and said notice was acknowledged by Opposite Party.  But, he did not choose to respond for it hence the present complaint. 

4.             The Opposite Party filed a detailed written version denying the allegations made in the complaint.  The defence of Opposite party is that, the complainant is not a ‘consumer’ as defined under section 2 (1) (d) of Consumer Protection Act, 1986.  Hence, she cannot maintain the present complaint.  For the dispute raised for the complainant, extensive documentary and oral evidence has to be adduced it cannot be decided in a summary proceedings.  The complainant suppressed the material fact in the complaint.  The Opposite Party had promised to maintain the facilities in the venture till August, 2008 free of cost and thereafter at nominal maintenance charges which act has been confirmed in the application form and the Sale Deed executed.       

5.              The complainant’s father in law Late K.Rushya Rao purchased two more plots in Plot bearing No.G-1001 & G-1002 admeasuring 500 Sq. yards each apart from two plots for which complainant obtained registered sale deed.  Plot No.G-1002 & G-1003 are the registered in the name of the complainant whereas, Plot bearing No.G-1000 & G-1001 are registered in the name of her husband                      Mr. K.Praveen Kumar but the complainant is agitating the dispute only inrespect of Plot bearing No.G-1001 & G-1002 and she has accepted all the terms and conditions for the other two plots.  The Opposite Party has developed the venture and maintained the same as agreed up to August, 2008 but the complainant failed to execute the Development Agreement enabling the Opposite Party to continue the maintenance at nominal price.  The complainant’s allegation that, the Opposite Party failed to develop the venture as promised and there is no proper improvement or maintenance as promised are all false. 

6.         The Opposite Party is a Company in the business of Real Estate to develop the ventures and thousands of people have invested in those ventures without any complaint or disputes.  The complainant’s father-in-law paid the full sale consideration for all the four plots during the year 2005 and he failed to obtain registered Sale Deeds in the name of either himself or his nominees and after lapse of ten years at the request of the complainant.  The Opposite Party executed and registered the sale deeds without any query.  The sale deed was executed to the complainant by incorporating the clauses which are agreed in between the parties.  The complainant herself agreed to collect the original sale deed after paying the dues towards maintenance.  The Opposite Party never agreed that, it would continue to maintain the plots free of cost.  Infact, the complainant and her father in law at the time of purchase of the plot had agreed to execute a maintenance agreement.  The present complaint is filed only with an intention of making unlawful gain to her.  After execution of the registered sale deed the complainant became more demanding and when her unfair demands are not agreed she has come with the present complaint seeking certain reliefs which can be adjudicated under the specific reliefs Act before a Civil Court at not by way of a complaint before a Consumer Forum.  Hence, the complaint is liable to be dismissed with costs.                

7.         In the enquiry proceedings the complainant has got filed her evidence affidavit reiterating the allegations made in the complaint.  She also has got exhibited Xerox copy of the Sale Deed, Office copy of legal notice got issued acknowledgment of the same by Opposite Party and Brochure issued by the Opposite Party for the subject venture as Ex.A1 to A4.  Affidavit of one Mr. G.Subba Rao stated to be Senior Manager of Opposite Party is filed on its behalf and he has got exhibited copy of authentication issued in favour by the Opposite Party, three original applications submitted by complainant’s father in his law to Opposite Party and certified copy of the three Sale Deeds for the plots booked by complainant’s father in law as Ex.B1 to B8.

            Complainant submitted written as well as oral arguments and for Opposite Party oral submissions were made.

8.         On a consideration of material on the record the following points have arisen for consideration.        

1. Whether the Opposite Party while executing the registered sale deed for the plots in favour of the complainant has incorporated some clauses which were not agreed at the time of purchase of the plots ?   
2. Whether Opposite Party have caused deficiency of service by not developing the venture as published in the Brochure got printed by it ?
3. To what relief the complainant is entitled for ?

9. Point No.1:  The complainant in the main complaint, evidence affidavit and also in Ex.A3 Notice got issued to the Opposite Party before lodging of the present complaint has consistently stated that, inview of her job demands she was unable to personally present for the registration of the Sale Deed and has arranged a person by executing a GPA as required under Section 32 A of Registration Act, 1908 to complete the process.  Later, after receiving the copy of the Sale Deed noticed that there are certain terms and conditions in Sale Deed which were incorporated without her consent and knowledge and infact the terms and conditions as agreed between the parties for the registration of the Sale Deed were omitted by Opposite Party and this act of omitting the agreed terms and conditions in the sale deed amounts to unfair trade practice apart from deficiency of service on the part of Opposite Party.  At Para-E of Page No.3 of the complaint it is specifically stated that, both the parties have finalized draft terms and conditions of the sale deed as per the terms agreed at the time of purchase and in line with the other purchasers who have purchased similar plots in the venture and those terms were accepted and agreed by Opposite Party to incorporate in the sale deed.  The complainant having said so, has not filed either the original or copy of the draft terms and conditions as agreed in between the parties for incorporating in the sale deed.  There is no whisper even in the evidence affidavit explaining the reasons for not filing the same before this Forum.  The complainant also has not filed the Xerox copies of the Sale Deed of other purchasers of plots in the venture to examine whether terms and conditions incorporated are different from that of her sale deed.  When the complainant alleges that, in the sale deeds of other purchasers of similar plots same terms and conditions not incorporated in the sale deed she ought not to have filed the copies of those sale deeds.  So, in the absence  of the either copies of the sale deeds of 3^rd parties in whose favour also the Opposite Party executed the sale deeds for the similar plots or the copy of draft terms and conditions agreed by the Opposite Party it is difficult to believe this version of the complainant because the stand of the Opposite Party consistently is that all the terms and conditions which were agreed at the time of membership applications were incorporated in the sale deeds of all the persons who purchased plots in the venture.       
10.                Now it is to be seen what are the terms and conditions got incorporated in the sale deed of the complainant which are contract to the terms and conditions mentioned in the membership applications at the time of purchase of the plots by the complainant’s father in law.  As already said that the Opposite Party has filed the original membership applications and got exhibited as Ex.B2 to B4.  The specific clauses which the complainant is opposing in her sale deed reads is as under:

“That the Vendee hereby agrees that in view of the overall scheme for the development of property, the vendee shall permit M/s. Pragati Green Meadows and Resorts Limited to complete the development of the property sold to the vendee by this deed as also the other developments.  The vendee, for this purpose shall execute a separate Development & Maintenance agreement.  The said agreements shall be in consonance both the terms in the application and brochure and the vendee shall also execute such agreement/s as may be necessary for the development of the properties of all the vendee and overall development of the common facilities like roads, electricity lines, drip irrigation etc., provided to all the other vendee and the vendee hereby covenant to abide by the terms and conditions of the above agreement”. 

“That the membership of Pragati Resorts is not transferable and if any member sells the property, the buyer of the property has to pay membership transfer fee and the buyer will get the membership as per the terms and conditions of the Pragati Resorts”.

11.                  Clause No.5 of Membership Application Form Ex.B2 to B4 specifically says that, the owners of the farmland will have to pay nominal maintenance charges towards maintenance of farmland after the completion of free maintenance period i.e., August 2008 as mentioned in the application as well as in the development agreement.  At clause No.13 it is also specified that Membership is non-transferable.  In Clause No.19 it is further stated that, if any member sells the farmland he shall cease to be member of Pragati Resorts but, the buyer of the farmland from the member is entitled to become a member of Pragati Resorts on payment of fee fixed by the Company from time to time.  The clauses which are being objected by the complainant as extracted above are in line with these conditions stipulated in the membership application form.  Then how can complainant say that, she has not agreed for these stipulation in the sale deed when her father in law who submitted by the application form and paid the entire sale consideration had agreed for it.  In Ex.B2 Application Form complainant’s father in law Mr. Rushya Rao mentioned the name of the complainant as a nominee.  In Ex.B3 and B4 her husband Mr. Praveen Kumar is shown as nominee so, basing of these nominations only the Opposite Party executed the sale deeds infavour of the complainant.
12.       The Opposite Party at Para Nos.7 & 8 of Page No.2 of the written version has stated that, complainant’s father in law Mr.Rushya Rao had purchased four (4) flats bearing No.G-1000 to G-1004 each admeasuring 500 Sq. yards and plot Nos.G-1002 & G-1003 are registered in the name of the complainant whereas, plot Nos.G-1000 & G-1001 are registered in the name of her husband Mr. Praveen Kumar and the complainant is not agitating the sale deeds executed for the plots bearing Nos.G-1000 & G-1003 and she is questioning only inrespect of other two plots i.e., G-1001 & G-1002.  For this there is no explanation from the complainants side either in the evidence affidavit or in the written arguments submitted on her behalf.  So, there is no substance in the allegations of the complainant that, the terms and conditions got incorporated by the Opposite Party in the sale deeds are contra to the terms and conditions agreed.  The main terms and conditions as originally agreed by complainant’s father-in- law are only incorporated in the sale deeds.  Hence, at the stage of registration the complainant is estoped to raise any objection for these clause in the sale deed. 
13.            One of the allegation of the complainant is that the Opposite Party collected the original registered sale deed after the registration and failed to deliver to her. On the other hand Opposite Party in the written version as in well as in the evidence affidavit has categorically stated that, the complainant having agreed to collect the same to did not turn up.  Hence, the original sale deed still with it and ready to deliver to the complainant as and when she comes to collect it.  In the right of it no further finding is required on the aspect of deliver of original sale deeds. 
14.            For the reasons mentioned above the point is answered that the complainant has not incorporated any fresh clause in the sale deed executed in favour of the complainant for the subject plots.             
15. Point No.2:  The complainant allegation is though Opposite Party has failed to develop the venture by providing the amenities assured in the brochure still she accepted for execution of the sale deed since the entire sale consideration was paid by her father in law during his lift time.  The Opposite Party also admitted in the written version that, entire sale consideration for all the four (4) plots was paid by complainant’s father in law in the year 2005 itself but he did not obtain the sale deeds immediately and at once when the complainant has asked for it, it executed the sale deeds without any hesitations though it is more than 10 years from the date of sale of the plots.  The Opposite Party having said that, it has developed the venture as promised has not produced any acceptable proof for it.  As could be seen from Ex.A4 brochure Opposite Party agreed to provide 60’, 40’ & 33’ wide road, street lighting, underground drainage system and 24/7 security apart from fencing plantation, herbal park, swimming pool, children park, cottages etc., to prove the completion of same has not filed even photographs showing these amenities and in the absence of it the self-serving assertions that all the amenities have been provided cannot be taken as sacrosanct.  Hence, the point is answered against the Opposite Party.             
16. Point No.3:  In the result, the complainant is partly allowed directing the Opposite Party to complete all the amenities as agreed in brochure under Ex.A4 within six (6) months from the date of service of this order.  If, Opposite Party fails on these count the complainant is at liberty to approach this Forum by way of Execution Proceedings.  The Complainant is entitled for a sum of Rs.10,000/- towards cost of this complaint.

                        Typed by Typist, corrected and pronounced by us on this the 29^th day of October, 2018.

MEMBER                                                                                           PRESIDENT

APPENDIX OF EVIDENCE

PW1                                                                                   DW1

Smt. Kolaventy Sunitha                                                 Sri G.Subba Rao,

                                                                                          Senior Manager of Pragati Resorts 

Exs. filed on behalf of the Complainant:

Exhibit: A-1 is original certified copy of Sale Deed Doc.No.2961 of 2015 dt.29.07.2015.

Exhibit: A-2 is original office copy of legal notice dt.01.01.2016.

Exhibit: A-3 is original Postal acknowledgment of legal notice.

Exhibit: A-4 is Brochure.

Exs. filed on behalf of the Opposite party

Exhibit: B-1 is original Authorization issued by OP infavour of Sri G.Subba Rao, Sr.Manager.  

Exhibit: B-2 is original Application Form, dated 12.09.2005 Membership No.2015.

Exhibit: B-3 is original Application Form, dated 12.09.2005 Membership No.2016.

Exhibit: B-4 is original Application Form, dated 12.09.2005 Membership No.2017.

Exhibit: B-5 is a certified copy of Sale Deed doc.No.2961/2015, dt.29.07.2015, farmland bearing No.G-1002.

Exhibit: B-6 is a certified copy of Sale Deed doc.No.2953/2015, dt.29.07.2015, farmland bearing No.G-1003.

Exhibit: B-7 is a certified copy of Sale Deed doc.No.2965/2015, dt.29.07.2015, farmland bearing No.G-1000.

Exhibit: B-8 is a certified copy of Sale Deed doc.No.2962/2015, dt.29.07.2015, farmland bearing No.G-1001.

MEMBER                                                                                           PRESIDENT

Kps