This case is coming for final hearing on 05.12.2014 in the presence of B.R.Uma Shankar Advocate for the Complainant and of Sri Badarinath and Sri Madanmohan Advocates for Opposite Parties and having stood over till this date, the Forum delivered the following:

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on

behalf of the Bench)

1.       The case of the complainant is that the 2^nd opposite party is engaged in the business of real estate developers and the 1^st opposite party is one of the branch office situated in Visakhapatnam city.  During the 2^nd week of July 2011 the 1^st opposite party’s agent approached the complainant and canvassed about house plots in their venture at Bhogapuram and invited the complainant, then the complainant visited the property and paid Rs.90,600/- towards enrollment fees on 31.07.2011 in favour of the complainant.  The Opposite parties have not developed the property so far and not obtained approvals from the concerned authorities.  Then, the complainant vexed with the attitude of the opposite parties, he desired to withdraw from the membership and intimated the same to the 1^st opposite party and requested them to refund the enrollment fees of Rs.90,600/- but the opposite parties neither cared the request of the complainant nor refunded the amount.  After that the complainant came to know that the 1^st opposite party has collected amount from many individuals like the complainant and neither developed nor refund the money paid by them, thus the opposite parties are jointly and severally liable for the mental agony, stress and strain suffered by the complainant, as there is deficiency of service on the part of both the opposite parties.  Hence, this complaint to direct the opposite parties;

a)      to refund Rs.90,600/- with 24% interest from 31.07.2011

b)      to pay Rs.10,000/- towards compensation besides costs of Rs.5,000/-.

2.       On the other hand, the opposite parties filed their counter and denied the allegations mentioned in the complaint and pleaded that the complaint is not maintainable as the subject dispute relates to the terms and conditions of the Commercial Agreement entered between the complainant and the opposite parties, hence the Forum has no jurisdiction to entertain the dispute and remedy if any for the complainants is to file the civil suit.  The opposite parties stated that the complainant filed this complaint to avoid the adverse consequences of breach of terms and conditions committed by them in respect of breach of the agreement entered by him with the opposite parties and more over there is no proof or evidence regarding adoption of unfair trade practice by the opposite parties and there is deficiency of service on its part.  The opposite parties stated that the complainant himself verified the plot physically as well as relevant documents, agreement etc., and only after being satisfied, agreed to purchase the plot and paid Rs.90,600/- towards allotment fee, but the complainant failed to pay the total sale consideration, hence agreement entered by the complainant with the opposite parties is devoid of consideration from him.  The opposite parties pleaded that the layout of Suvarjnakuteer-11 got DTCP approval by Government of A.P. in the year 2008 vide L.P.No.36/2008/V and all plots are marked with numbers.  The members who paid the total sale consideration at around 200 customers got registered their plots on their favour at Sub-Registrars office at Bhogapuram and enjoying the benefits and at about 30 plots approximately has to register.  The Complainant has not paid the sale consideration with an intention to get back his money by mentioning the false allegations on opposite parties.  The opposite parties further stated that the complainant is bound to pay the balance amount as per the terms and conditions of the agreement and if he defaults in making the payment and then is bound to face the consequences as envisaged in the agreement itself and also as law provides.  The Opposite parties stated that the agreement entered by the complainant with the opposite parties is a Commercial contract, as such there is no question of rendering any service.  As per the terms of agreement, no refund of amount paid, that too with interest because the complainant has some doubts regarding the sale transaction.  If the complainant is really concerned about his plot, he ought to have paid further amounts as per the agreement and obtained a sale deed.  The Complainant signed the agreement after thoroughly going through the terms and conditions for sale and paid part payment and they are well aware of the terms and conditions of agreement, but malafide intention on the part of the complainant shows, to make wrongful gain by causing wrongful loss and with an intention to make false propaganda before general public and also before political leaders and other prominent persons with malafide intention to harass and defame the opposite parties.  There are neither merits nor bonafides in the present complaint.  Hence this complaint is to be dismissed.

3.       At the time of enquiry the complainant filed his evidence affidavit along with documents which are marked as Exhibit A1.  On the other hand, the opposite parties filed their counter, evidence affidavit and written arguments.  No documents are marked on behalf of opposite parties.  Heard the complainant’s counsel who reiterated his version.  The counsel of opposite parties represented to consider written arguments as oral arguments. 

4.       In view of the respective contentions, the point that would arise for determination is:-

Whether there is any deficiency in service on the part of the opposite parties, if so can the complainant entitle for the reliefs prayed for?

5.       As per Exhibit A1 i.e., receipt issued by 2^nd opposite party on 31.07.2011 vide Plot No.B51 in VZM-Phase-I venture and the complainant paid an amount of Rs.90.600/- by way of cash towards enrollment amount is not in dispute.  The main version of the complainant is that he paid Rs.90,600/- towards enrollment fees and roamed around the offices of the opposite parties and came to know that there was no developments in the said property and opposite parties not obtained any approvals from the concerned authority then, he requested the opposite parties to refund the amount but the opposite parties are not come forward to settle the issue.

6.       The main plea of the opposite parties is that the agreement entered between the complainant and the opposite parties is commercial in nature, but no agreement was filed by either the parties.  The other plea of the opposite parties is that there are breach of terms and conditions committed by the complainant, but this plea of the opposite parties is not evidenced by filing any terms and conditions regarding their venture.  The other version of the opposite parties is that the complainant failed to pay the remaining sale consideration as per the agreed terms and conditions, if he failed to pay the remaining sale consideration as per the agreement, the opposite parties has every right to cancel the said allotment and it can allot the said plot to some other intending purchaser.  All these pleas took by the opposite parties is not substantiated by filing any evidence or documents.  Regarding the forfeiture clause which was mentioned in its written arguments by the opposite parties i.e., “opposite parties shall be entitled to forfeit the earnest money along with other amount in case of non fulfillment/breach of terms and conditions of the application”.   As per the opposite parties’ version, as per this term and condition, the opposite parties has every right to forfeit the advance amount paid by the complainant.  But here it is to be very particularly noted that the opposite parties did not file any document to show the terms and conditions of the agreement which was entered between both the parties.  The opposite parties in its counter para-6 stated that there was approval for the layout of SK-11 got DTCP approval and LP in the year 2008.  Mere contention is not enough to substantiate its evidence.  The opposite parties has to prove or strengthen its plea by filing any documentary evidence regarding approvals obtained from Government authorities and L.P. details.

7.       The other plea of the opposite parties is regarding jurisdiction, as per the jurisdiction clause in the application form “only courts at Hyderabad has jurisdiction to entertain any dispute between the parties”.  Hence, this Forum has no territorial jurisdiction to entertain the present case.  But Ex.A1 is issued at Visakhapatnam address only i.e., opposite parties address, which is one of the branch office of the 1^st opposite party.  Hence, in our view, the payment made by the complainant to the 2^nd opposite party in Visakhapatnam and 2^nd opposite parties issued receipt, hence cause of action occurred in Visakhapatnam only.  Hence, the Forum can entertain the matter.  

8.       Whatever it may be, the opposite parties failed to substantiate its pleas which was taken by them in their counter as well as in written arguments by filing any documentary evidence.  Ex.A1 clearly shows the payment made by the complainant, more over there was no demand notice issued by the opposite parties to the complainant regarding the balance amount.  That too, when there is no development in the said land or no required documents like LP etc., avoiding payment of balance sale consideration by the complainant is reasonable.  Hence, keeping the amount with them collected by the opposite parties without executing the sale deed after obtaining necessary approvals, permissions from the government authorities as promised is not justified.  Hence, the opposite parties are directed to pay Rs.90,600/- with 9% interest from 31.07.2011 to the complainant which would be justified.

8.       The complainant is deprived of having a own plot even after huge amount paid by him and he has to incur huge amount to purchase a plot now-a-days i.e., after three years of the payment made by him to the opposite parties.  Hence, allowing Rs.9,000/- towards compensation would be just and proper. 

          Accordingly, this point is answered.

9.       In the result, the complaint is allowed directing the opposite parties to pay Rs.90,600/- with 9% interest per annum from 31.07.2011 within three months, failing which to pay the same with 12% interest till the date of realization.  The Ops are further directed to pay Rs.9,000/- towards compensation besides costs  of Rs.1,500/-.

  Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 19^th day of December, 2014.

     Sd/-                                                                                                  Sd/-

Member                                                                 President (FAC)

                                                                   District Consumer Forum-I 

                                                                             Visakhapatnam

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:

      Sd/-                                                                                                 Sd/-

Member                                                                  President (FAC)

                                                                   District Consumer Forum-I

                                                                             Visakhapatnam

//VSSKL//