BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
C.C.NO.78 OF 2010
Between:
Smt Subhra Mohanta W/o G.C.Mohanta
Flat No.104, Prantik Apartment,
Sri Datta Nagar, PO: Kanchanbagh
Hyderabad-058.
Complainant
A N D
Sri Y.Kiran Kumar, CEO
M/s Suchirindia Developer Pvt. Ltd.
50/B, Journalist Colony, Jubilee Hills,
Hyderabad-033, A.P.
Opposite party
Counsel for the complainant M/s A.Mahadev
Counsel for the opposite party M/s Gopi Rajesh & Associates
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
WEDNESDAY THE SEVENTH DAY OF AUGUST
TWO THOUSAND THIRTEEN
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The averments of the complaint are that the opposite party started venture under the name and style of “West Brook Sierra” at Pulimamdi village, Kandukur Mandal, Ranga Reddy District. The complainant joined the scheme on 24-06-2007 and plot no.439 was allotted to him. On the same day i.e.,24.06.2007 the complainant paid the entire sale consideration of the plot, `21,72,000/-.The opposite party informed the complainant that the layout of the plot was going to be approved. The official of the opposite party informed the complainant in the month of October,2008 that the layout of the plan was approved and he was requested to go to the office for the purpose of registration.
2. On 30.10.2008 the official of the opposite party informed the complainant that the layout was revised and plot number 55 was allotted to him and that plot number 55 was by the side of 40” road and the plot number 439 was adjoining 30” road and as such the complainant was required to pay an additional amount of `48,000/-.
3. It is contended on behalf of the opposite party that the complainant after making inspection and verification of the documents, visiting the site and satisfying himself, joined as the member of the scheme and submitted the application form agreeing to abide by the terms and conditions of the scheme. Several reminders were issued to the respondent requesting him to pay the additional amount of `48,000/- as per the revised layout. The opposite party incurred expenditure of huge amounts for the development of the project for providing the amenities to the members of the scheme like Roads, water pipelines, sewerage lines, overhead tanks, underground electrical cabling, street lights and fully developed parks etc., The complainant addressed letters dated 7.04.2009, 01.06.2009, 02.09.2009,06.10.2009,11.11.2009 and 02.12.2009 after lapse of two years, to the opposite parties. The complainant committed breach of contract by defaulting the payment of balance amount or required installments as per the terms and conditions of the scheme. It is pleaded that the complainant is not a consumer and the complaint is not maintainable under the provisions of the Consumer Protection Act. The complaint is not filed within the period of limitation. The opposite party is ready to execute sale deed subject to payment of additional amount by the complainant. The complaint filed against the director in individual capacity is not maintainable.
4. The complainant has filed his affidavit and the documents,ExA1 to A29. The opposite party has filed his affidavit and the documents,ExB1 to B6 had been marked.
5. The counsel for the complainant filed his written arguments.
6. The point for consideration is whether the respondent is entitled to refund of the amount paid by her to the appellant?
7. This Commission has allowed the complaint having discussed the matter as under and held the respondent deficient in rendering service. The facts of the case were discussed as follows:
8. The complainant joined the scheme floated by the opposite party on 24-06-2007 and plot no.439 was allotted to him. The complainant has paid the entire sale consideration of `21,72,000/- on 24.06.2007 and subsequently in the revised layout the plot number 55 was allotted to him. It is not disputed that the plot number 55 is adjoining 40” road while the plot number 439 was adjoining 30” road.
9. The complainant states that the opposite party has not completed the development work as promised by the end of the scheme and the scheme was expired two years ago and that he requested the opposite party to send copy of layout as the scanned copy sent to him on 25.02.2009 was not legible and the opposite party had sent the layout to him in the month of May,2009.
10. The terms of the layout provide for no exemption for the lands under reference under preview of the ULCA and completion of development work within one year and handing over possession of the roads and opens space to GHMC as also that issuance of building permission by the Municipal Commissioner is subject to completion of the developmental work by the opposite party and release of the mortgaged land from HMDA.
11. The complainant claims refund of the amount on the premise that he visited the site on 28.05.2006, June 2006 and found that the development work was not commenced and issued letters dated 2.09.2009, 6.10.2009 with a request to refund the amount. He stated that the opposite party informed him that the development work would be started in the month of Feburaury,2010 and it would be completed within six months .
12. The learned counsel for the opposite party contended that the complaint is not maintainable against the director in his individual capacity and the complainant is not a consumer as also there was no deficiency in service on the part of the opposite party.
13. Whether the subscriber of the scheme launched by a developer and the service rendered by him would constitute deficiency in service within the meaning of Section 2(1)(d) and (o) of the Consumer Protection Act is considered by the Hon,ble Supreme Court in “M/s Narne Constructions vs Union of India and another “ in Civil Appeal Nos.4432-4450 of 2012 decided on 10.5.2012. The Supreme Court held that the subscriber is a consumer and the developer is service provider and liable for the consequences of deficiency in rendering the service. Their lordship’s held:
This Court further held that 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.
7. In the light of the above pronouncement of this Court the High Court was perfectly justified in holding that the activities of the appellant-company in the present case involving offer of plots for sale to its customers/members with an assurance of development of infrastructure/amenities, lay-out approvals etc. was a ‘service’ within the meaning of clause (o) of Section 2(1) of the Act and would, therefore, be amenable to the jurisdiction of the fora established under the statute. Having regard to the nature of the transaction between the appellant-company and its customers which involved much more than a simple transfer of a piece of immovable property it is clear that the same constituted‘service’ within the meaning of the Act. It was not a case where the appellant-company was selling the given property with all advantages and/or disadvantages on “as is where is” basis, as was the position in U.T. Chandigarh Administration and Anr. v. Amarjeet Singh and Ors. (2009) 4 SCC
660. It is a case where a clear cut assurance was made to the purchasers as to the nature and the extent of development that would be carried out by the appellant-company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchasers for valuable consideration. To the extent the transfer of the site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant-company had indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers like the respondents.
14. The learned counsel for the opposite party has contended that this Commission in FA No.154 of 2009 held that the opposite party is entitled to the additional amount and the complainant can be granted relief of execution of sale deed. This commission held;
The learned counsel for the appellant submits that in case the respondent opts for refund of the amount paid by her, as per the terms of the scheme, she has to forego 40% of the amount paid by her. The learned counsel for the appellants submitted that the appellant company is ready to execute the sale deed provided the respondent has paid the amount due. As the only objection for the respondent to proceed further with the sale transaction of the plot is the non-furnishing of the title documents which the appellant company has placed on record, we see no hindrance for the parties to proceed with the transaction pertaining to the allotted plot. In the circumstances, the order of the District Forum is liable to be modified.
In the result, the appeal is allowed. The order of the District Forum is modified. The appellant/opposite party is directed to execute registered sale deed in respect of the plot bearing number bearing number 21 in “West brook Sierra” at Pulimamidi village of Kandkukur Mandal, Ranga Reddy district within fifteen days after receiving the balance sale consideration from the respondent/complainant. There shall be no order as to costs.
15. The opposite party has changed the layout to the inconvenience and discomfort of the complainant. The complainant states that the plot allotted earlier was easily accessible and comfortable for living compared to the plot No.55 which though adjoining to 60ft wide road is not centrally located and required the complainant to pay an amount of `48,000/- which by any means does not meet the requirement of the principle of equity. In the circumstances, the amount of `48,000/- demanded by the opposite party is reduced to Rs.10,000/- and the opposite party can collect the same amount from the complainant.
16. This Commission directed the opposite party to execute sale deed and further it directed the complainant to pay a sum of Rs.10,000/- as against the sum of Rs.48,000/- which was found due and demanded by the opposite party. The complainant filed appeal, F.A.No.494 of 2012 against the order passed by this Commission and the National Commission allowed the appeal observing that the complainant had not made alternative prayer for registration of the plot and as such modification of relief for refund of the amount is not sustainable. In other words, the complaint has to be allowed granting the relief sought for in case the complainant proved deficiency in service on the part of the opposite party or on his failure to do so, dismiss the complaint. This Commission had already returned finding that there was deficiency in service on the part of the opposite party as regards to changing the layout to the inconvenience and discomfort of the complainant. Against the finding and that part of the order based on the finding, the opposite party has not preferred appeal and as such the only relief to be granted in favour of the complainant is refund of the amount.
17. The complainant has sought for refund of `21,72,000/- with interest @ 18% per annum thereon and a sum of `3,00,000/- towards compensation. This Commission is inclined to award the amount sought for under the head of compensation in toto and hold the opposite party company liable to pay the amount within a month and on its failure of the opposite party to pay the amount within the stipulated time interest at 9% per annum on the amount of `21,72,000/- would be payable and comes into operation.
18. In the result, the complaint is allowed. The opposite party is directed to refund the amount of `21,72,000/- and pay a sum of `3,00,000/- towards compensation within a period of one month from the date of receipt of the order. On failure to pay the amount within the stipulated period, the opposite party shall pay interest @9% p.a. on the amount of `21,72,000/- from the date of filing of the complaint till payment. The costs of the proceedings fixed at `3,000/-.
MEMBER
MEMBER
Dt.07.8.2013
కె.ఎం.కె*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
NIL
EXHIBITS MARKED
For complainant
Ex.A1 Layout Plan
Ex.A2 Agreement of sale dt.15.07.2007
Ex.A3 Brochure
Ex.A4 Revised Layout Plan dt.19.9.2008
Ex.A5 Enrolment form of OP
Ex.A6 Letter dt.7.4.2009 of complainant to OP
Ex.A7 Letter dt.01.06.2009 of complainant to OP
Ex.A8 Letter dt.2.9.09 of complainant to OP
Ex.A9 Letter dt.6.10.09 of complainant to OP
Ex.A10 Letter dt.11.11.09 of complainant to OP
Ex.A11 Letter dt.2.12.09 of complainant to OP
Ex.A12 Postal Receipt dt.8.4.2009
Ex.A13 Acknowledgement dt.13.4.2009
Ex.A14 Postal receipt dt.3.9.2009
Ex.A15 Acknowledgement dt.4.9.2009
Ex.A16 Postal Receipt dt.7.10.2009
Ex.A17 Acknowledgement dt.9.10.2009
Ex.A18 Postal Receipt dt.12.11.2009
Ex.A19 Acknoledgement
Ex.A20 Postal Receipt dt.2.12.2009
Ex.A21 Acknoweldgement dt.9.12.2009
Ex.A22 Letter of complainant to OP
Ex.A23 email dt.9.04.2012
Ex.A24 email dt.12.11.2009
Ex.A25 email dt.8.1.2010
Ex.A26 email dt.8.1.2010
Ex.A27 Photos
Ex.A28 CD
Ex.A29 Letter dt.26.04.2009 of OP to the complainant
For opposite parties
Ex.B1 Terms and conditions-cum application form
Ex.B2 Ledger account extract dt.24.6.2007 to 4.7.2007
Ex.B3 Approved letter of HMDA
Ex.B4 Office copy of sale deed of third party dt.4.2.2009
Ex.B5 Office copy of sale deed of third party dt.4.9.2009
Ex.B6 Reply email from OP dt.9.4.2010
MEMBER
MEMBER
