FA  938 of  2011  against CC 630/2010, Dist. Forum-II, Hyderabad

Between:

1)  Suvarna Bhoomi Developers P. Ltd.

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

Road No. 1, Banjara Hills

Hyderabad-500 034

Rep. by its Director

2)  M. Srinivas, s/o. M. Krishna Rao

Director, Suvarna Bhoomi Developers P. Ltd.

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

Road No. 1, Banjara Hills

Hyderabad-500 034

Rep. by its Director                                     ***                           Appellants/

                                                                                                  Opposite Parties

                                                                   And

Syed  Aslam Basha

S/o. Abdul Jabbar

R/o. 12-2-800/186

Dilshad Nagar Colony

Retibowli, Hyderabad.                                 ***                         Respondent/

                                                                                                Complainant

Counsel for the Appellant:                          M/s.  N. Sudarshan Shetty

Counsel for the Respondents:                     M/s. KRR Associates

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

      SMT. M. SHREESHA, MEMBER

   &

                                    SRI  S. BHUJANGA RAO, MEMBER

MONDAY, THE FIFTH DAY OF NOVEMBER TWO THOUSAND TWELVE

ORAL ORDER:  (Per Hon’ble Sri Justice D. Appa Rao, President)

***

1)                 This is an appeal preferred by  the opposite party    developer against the order of the Dist. Forum  directing  it to  refund  the amount paid towards  purchase  of plot.

2)                 The case of the complainant in brief is that  when he intended to purchase a plot in  Greater Hyderabad Municipal Corporation (GHMC) limits, he approached  one of the employees  of the appellant  company  Sri   Ali, Marking Executive  who in turn explained  about the venture ‘Suvarna Kuteer’ floated by them at Shadnagar.   He visited the site and made him to pay Rs. 5,300/-  including Rs. 300/- towards membership fee  besides a sum of Rs. 30,000/-  by way of cheque drawn on ICICI bank  towards plot bearing No. 124  in Phase-IV,   in ‘Suvarna Kuteer’ with an assurance that  he could cancel if he was not satisfied with the documents.   He also informed that  it comes under  the purview of   Hyderabad Metro Development Authority (HMDA).   Though he requested,  the appellant did not furnish any documents showing  clearance from  HMDA. When he came to learn that  it does not fall under HMDA limits he sought for refund of the amount paid by him.  On that he gave a registered lawyer notice for which there was no reply.   Therefore he prayed that the amount paid by him be refunded with interest @ 6% p.a,  and costs. 

3)                 The appellant developer resisted the case.    While admitting that venture was floated for sale of house plots, however denied  that they informed that the plot  comes under HMDA limits.   When he himself saw the site  and signed the documents  having agreed  to terms and conditions  could not turn round  and complain that the plot would not come  under HMDA limits.    It was only   DTCP approval lay out for which there was no need for permission from HMDA.  There was no  deficiency in service on its part, and therefore prayed for dismissal of the complaint with costs. 

4)                The complainants in proof of his  case filed his  affidavit evidence and got Exs. A1 to A6  marked while the appellant filed the affidavit evidence of its  Managing Director and got Exs. B1  & B2 marked.  During the course of hearing  the appeal,  the complainant filed an application to receive  additional documents   and the same has  been received and assigned as Ex. A7. 

5)                The Dist. Forum after considering the evidence placed on record opined that   the complainant was entitled to the amount of Rs. 35,000/- paid by him  and that as there was no provision for cancellation , and when he sought for  refund of the amount instead of specific performance the same could be granted and directed the appellant  refund Rs. 35,000/-. 

6)                Aggrieved by the said order, the  appellant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.   The complainant could not prove that  there was deficiency in service on its part.   It never informed  that it was approved by HMDA  as  the plot  was not  situated within its limits.   It was  designed with DTCP approval.   The terms and conditions would  undoubtedly prove that there was no deficiency in service.  There was  no need to take  approval from HMDA, and consequently the complaint is liable to be dismissed. 

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                 It is an undisputed fact that the complainant agreed to purchase a house plot in the venture floated by the appellant developer.  A sum of Rs. 35,000/- was paid towards price besides  Rs. 300/- towards membership fee evidenced under  Ex. A1 & A2 receipts.  The said plot was allotted  when he submitted the application form Ex. B1.   He is a software professional evidenced under  particulars furnished in  Ex. B1.    In Ex. B1 it was categorically mentioned that  it was designed with  approval of DTCP.  There is no mention that the said plot falls under HMDA limits.   The complainant alleges that one of the sales executive  informed him that it comes under  the jurisdiction of HMDA.     He himself admits at para-3 of his complaint  “Op1 has arranged  a site visit.  During the said visit complainant once again enquired about  the HMDA limits  and GHMC limits, employee of Op1  assured that the said venture is  at Shadnagar which is very much part of HMDA.    After the site visit the marketing  person pressurized the complainant with his sweet talk and  sales traits  to at least block a plot by making  payment of Rs. 5,300/- including  Rs., 300/- towards admission fee.”   According to him  he promised that  he would also furnish HMDA documents.    He alleges that  he was interested in purchasing a  site  if it fell  into HMDA limits.   It is not in dispute that  it does not fall  within the limits of HMDA vide Ex. A7.   If that were to be so,  the complainant could  have  asked the executive of the appellant company unless it falls within the limits of  HMDA  he does not want to  purchase, equally, when  the said plot does not  fall into HMDA jurisdiction, the sales executive of appellant could not have stated that it  had approval of HMDA.  What all Exs. B1 & B2  show that there was  DTCP approval.  For the reasons not known the complainant  intended to wriggle out  from the contract, claimed the amount  paid by him towards sale consideration.   The complainant could not prove that any of the representatives of the appellant  represented that it fell into the limits of HMDA.    He could not have believed, even if such a  representation is made  in view of  terms  and  conditions  mentioned in Exs. B1 & B2.    He   is an educated and software professional.    He could have verified, if he really  wanted a plot  in HMDA limits.    Obviously, this contention was made  as a ruse to recover the amount. 

9)                 The Hon’ble Supreme Court in  Secretary, Bhubhaneswar  Development Authority Vs. Susanta Kumar Mishra reported in 2009 JT5-589  opined:

Any fora under the Consumer Protection Act, 1986 (`Act' for short) before granting any relief to a complainant, should be satisfied that the complaint relates to any of the matters specified in section 2(c) of the Act, and that the complainant has alleged and made out either unfair or restrictive trade practice by a trader, or defects in the goods sold, or any deficiency in a service rendered, or charging of excessive price for the goods sold, or offering of any goods hazardous to life and safety without displaying information regarding contents etc. If none of these is alleged and made out, the complaint will have to be rejected. When a lessee signs without protest an agreement agreeing to pay interest at a given rate from a given date in given circumstances, and does not contend that the term relating to instalments or interest is invalid or inequitable, it is not open to the consumer forum to grant any relief. A demand for any amount due in terms of the unchallenged terms of an agreement, does not furnish a cause of action to the lessee/allottee to approach the consumer forum”.

While restoring the order of the Dist. Forum the Supreme Court  made it clear that on payment of the balance amount due, the appellant shall execute the sale deed, if it is not already executed.

10)               We are of the opinion that by dismissal of the complaint,  he will not  lose any  right in the site.  He can as well pay the remaining balance,  and  on such eventuality, the appellant is bound to execute the sale deed.   We make it clear that on that score  the appellant  cannot wriggle out  the agreement entered into by it,  and deny execution of sale deed. 

11)               In the result the appeal is allowed setting aside the order of the Dist. Forum.   Consequently, the complaint is dismissed however, with a clear direction that on payment of balance of amount the appellant shall execute  the sale deed  in favour of the complainant.  In the circumstances, no costs. 

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER

3)      ________________________________

 MEMBER

                                                                                      05/11/2012

*pnr

UP LOAD – O.K.