BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT  HYDERABAD.

FA  253 of 2012  against CC 1136/2010, Dist. Forum-I, Hyderabad

Between:

Suvarna Bhoomi Developers P. Ltd.

H.No. 8-2-595/3, Eden Gardens

Road No. 1, Banjara Hills

Hyderabad.

Rep. by its Managing Director

B. Sreedhar,

S/o. Subbaiah Chowdary                           ***                         Appellant/

Opposite Party

                                                                   And

Smt. Ch. Padmaja

W/o. Sriramulu

H.No. 16-11-511/C/18

2nd Floor, Dilsukhnagar

Prathapnagar, Hyderabad.                          ***                         Respondent/

                                                                                                Complainant

Counsel for the  Appellant :                        M/s.  N. Sudhershan Setty

Counsel for the  Respondent:                     M/s.  Y.V. Narasimha Charyulu

CORAM:

                              SMT. M. SHREESHA, PRESIDING MEMBER

&

                              SRI  S. BHUJANGA RAO, MEMBER

WEDNESDAY, THE SEVENTH DAY OF AUGUST TWO THOUSAND THIRTEEN

ORAL ORDER:  (Per Smt. M. Shreesha, Member)

***

1)                Aggrieved by the order in CC No. 1136/2010 on the file of the Dist. Forum-I, Hyderabad  the  opposite party preferred  this appeal.

2)                The brief facts  as  stated in  the complaint are that  the complainant  has  joined as a member in the venture floated by the  appellant/opposite party for  purchase  of a plot  for a sale consideration of Rs. 6 lakhs.   The complainant submits that she paid  an amount of Rs. 2,00,200/- in three instalments.  The complainant further submits that when she approached  the opposite party office  in the month of November, 2008 to  make some more amounts,  they stated that the plot allotted to her was re-allotted to some third party and if she is willing to pay additional amount they would allot  another plot for which she is not agreeable.    She submits that in

spite of  several demands  and approaching the  Alternate Disputes Redressal  Cell at Somajiguda, Hyderabad the  appellant/opposite party failed to refund the amount paid by her.  Hence this complaint for a direction to  the opposite party to refund  Rs. 2,00,200/- with interest @ 18% p.a., together with compensation and costs.

3)                The appellant/opposite party filed written version denying the allegations made in the complaint and contended that the   Dist. Forum has no jurisdiction to entertain the matter.    The  opposite party  admits that the complainant entered into an agreement for purchase of a plot for a sale consideration of Rs. 6,09,756/-  and paid  initial amount of Rs. 2,00,000/- in instalments  as stated in the complainant.  However, the opposite party denied that  the complainant  ever  approached  the opposite party for payment of balance of amount.    The plot allotted to her was only tentative and as the complainant  has failed to pay the remaining amount,  the plot allotted to the complainant was re-allotted to some third party.   The management  reserves the right to alter the plots and layouts  partly or fully and  only at the time of registration   the plot number  would be allotted.    The appellant/opposite party submits that  they are ready  to allot some other plot out of the available plots in the same venture subject  to  payment of  balance of sale consideration.   The complainant is not  entitled  for refund of the amount  in the light of terms and conditions of the agreement.     There is no deficiency  of service  on their behalf nor adopted  any unfair trade practise. 

4)                The Dist. Forum based on the evidence adduced  i.e., Exs. A1 to A4 and  Ex. B1 and the pleadings put forward  allowed the complaint  in part directing the  opposite party to pay  Rs. 2,00,200/-  with interest @ 9% p.a., from  the  date of last payment i.e., 12.9.2008 till   the date of  realization  together with costs of Rs. 2,000/-.

5)                Aggrieved by the said order the  opposite party preferred this appeal.

6)                Both sides filed  written arguments in support of their respective contentions. 

7)                The facts not in dispute are  the payment of an amount of Rs. 2,00,200/- evidenced under receipts Exs. A2 to A4  issued by  the appellant/opposite party in favour of  the complainant  towards purchase of  plot No. 354/I in the venture floated by the opposite party.   The complainant submits that  when she approached  the opposite party in the  month of November, 2008  to make payment of  the balance  sale consideration, the  opposite party informed that the  plot allotted to her was re-allotted to some third party and the same is not available and  on that the complainant  sought for refund of the amount paid by her.   The  appellant/opposite party  submits that as per the terms and conditions  of the scheme  the cancellation  or refund  of amount will  not be entertained.    Apart from that  the  opposite party submits that complainant did not pay the amount within the time stipulated and therefore the plot allotted to her was re-allotted to some third party.   We observe from  Ex. B1 brochure the terms and conditions mentioned therein are against the public policy  and  are  totally one sided loaded in favour of appellant/opposite party company.   The opposite party unilaterally cancelled the plot allotted to the complainant and re-allotted to some third party  even without issuing any notice.   The opposite party failed to establish that they had  issued notices or reminders for payment of balance of sale consideration  towards the purchase of plot allotted to her  failing which  it would be allotted to  some other prospective purchasers.   The material placed on record establishes that the  appellant/opposite party   without there being any notice or intimation cancelled the plot  allotted to her  which amounts to unfair trade practise.  When the complainant demanded for refund of the amount they did not heed her request and retained the money for all these years illegally  and made the complainant to move the  Consumer Forum for redressal of her grievance. This act of  retaining the public money  illegally by the appellant/opposite party amounts to  deficiency of service. 

8)                 It is pertinent to note that the Hon’ble Supreme Court in  M/s. Narne Construction P. Ltd. & Others Versus Union of India & Others  reported in CDJ 2012 SC 370 held  as follows :

6. when a person applies for allotment of building site or for a flat constructed by development authority and enters into an agreement with the developer or a contractor, the nature of the transaction is covered by the expression ‘service’ of any description. The housing construction or building activity carried on by a private or statutory body was, therefore, held to be ‘service’ within the meaning of clause (o) of Section 2(1) of the Act as it stood prior to the inclusion of the expression ‘housing construction’ in the definition of ‘service’ by Ordinance No.24 of 1993.

9)                 In the light of  judgement of  Hon’ble Apex Court and  keeping in view the facts and circumstances of the case,  we are of the opinion that the Dist. Forum  has rightly directed the opposite party to refund the amount  paid by the complainant with interest @ 9% p.a., and costs of Rs. 2,000/-.     We do not see any merits in the appeal.

10)               In the result this appeal is dismissed.  No costs. 

1)      _______________________________

PRESIDING MEMBER 

2)           ________________________________

MEMBER  

*pnr                                                                               07/08/2013

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