STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA :
At HYDERABAD
FA 235 of 2016
AGAINST
CC No. 373 of 2014, DISTRICTFORUM III, HYDERABAD
Between :
- Suvarna Bhoomi Developers (P) Ltd
Rep. by its Managing Director, B. Sridhar,
S/o Subbaiah choudary, Road No. 5,
Jubilee Hills, Hyderabad – 500 087.
- Executive Director, M.S. Srinivas,
S/o Krishna Rao, Road No. 5, Jubilee Hills,
Hyderabad – 500 087. ..Appellants/opposite parties
And
T. Thrinath, S/o T. Appa Rao,
Aged about 53 years, Occ : Railway Employee
Flat No. 401, Navya Advocate
Opp : Anutex, Malkajgiri, Hyderabad ..Respondent/complainant
Counsel for the Appellants : M/s. Lotus Law Associates
Counsel for the Respondent : Sri M. Rathan Singh
Coram :
Honble Sri Justice B. N. Rao Nalla … President
And
Sri Patil Vithal Rao … Member
Thursday, the Twenty First Day of December
Two Thousand Seventeen
Oral order : ( per Hon’ ble Sri Justice B.N.Rao Nalla, Hon’ble President )
***
1) This is an appeal filed under Section 15 of the Consumer Protection Act by the opposite parties praying this Commission to set aside the impugned order dated 23/06/2016 made in CC 373 of 2014 on the file of the DISTRICT FORUM-III, Hyderabad.
2) For the sake of convenience, the parties are described as arrayed in the complaint before the District Forum.
3). The case of the complainant, in brief, is that he entered into an agreement of sale dated 30-10-2009 with the opposite parties for the purchase of plot bearing No.70A admeasuring 500 square yards in the venture titled as “Suvarna Kuteer”, Phase-IV, Block-A, situated at Chowlapally West Village, Vityal Farupghnagar Mandal, Mahabubnagar District. He paid a sum of Rs.10,600/- as a token amount on 11-10-2009 and further paid a sum of Rs.5,80,000/- through post dated cheque. Thereafter, the Opposite Parties failed to develop Phase-IV of the venture as promised by them and continued to postpone the execution of the sale deed on one pretext or the other. Vexed with the attitude of the Opposite Parties, he got issued a legal notice dated 18-06-2012 calling upon them to execute the sale deed by receiving the balance sale consideration. He visited the site of the venture in the first week of November,2013 and to his utter surprise he was informed that they are not the owners of the land in the IVth phase of the venture and the plot No.70A was not demarcated. He sent another legal notice dated 12-11-2013 calling upon the Opposite Parties to refund the amount of Rs.5,90,600/- paid by him along with interest @ 24% p.a. but they failed to do so which amounts to deficiency in service and unfair trade practice. Hence the complaint to direct the opposite parties to return the amount of Rs.5,90,600/- with interest @ 24% and to pay compensation of Rs.2,00,000/-.
4). The first opposite party opposed the above complaint by way of written version, which was adopted by second opposite party, contending that the District Forum has no territorial jurisdiction to entertain the complaint. As per the agreement, the courts at Mahabubnagar shall have exclusive jurisdiction to entertain the complaint. They have admitted that the Complainant entered into an agreement of sale and paid the sum of Rs.5,90,600/- towards advance payment. Initial allotment of plot numbers is tentative and the final plot number shall be given at the time of registration. Although plot No.70A was initially allotted to the Complainant, they are ready to allot and register any one of the available plots upon receiving the balance sale consideration. The Complainant failed to pay the balance amount within 60 days from the date of agreement of sale. They obtained clear title over the plots and the amount paid by him is non-refundable as per the terms and conditions of the agreement. The complaint is barred by limitation as the parties had entered into an agreement of sale on 30-10-2009 and the last payment was made on 11-10-2009. Therefore the Consumer complaint should have been filed on or before 29-10-2011 but the present complaint is filed with a delay of more than two years on 22-01-2014. There is no deficiency in service or unfair trade practice on their part. Hence prayed to dismiss the complaint.
5) During the course of enquiry before the District Forum, in order to prove his case, the complainant filed his evidence affidavit and got marked Ex.A1 to A8. . The Opposite Parties have filed an evidence affidavit along with documents marked as Ex.B1 and Ex.B2. Both sides have filed their respective written arguments. Heard.
6) The District Forum, after considering the material available on record, directed the Opposite Parties jointly and severally liable to pay to the Complainant a sum of Rs.50,000/- towards compensation and Rs.5,90,600/- towards refund of the deposit made by them with interest @ 9% p.a. from 01-11-2009 till the date of realization and costs of Rs.2,000/- within 30 days.
7) Aggrieved by the said order, the opposite parties 1 and 2 preferred this appeal before this Commission.
8). The parties on both sides have advanced their arguments reiterating the contents in the appeal grounds, rebuttal thereof along with written arguments. Heard both sides.
9) The points that arise for consideration are,
(i) Whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner?
(ii) To what relief ?
10). Point No. 1 :
There is no dispute that the respondent/complainant paid a sum of Rs.5,90,600/- towards purchase of plot in question located in the venture situated in Mahabubnagar. There is no dispute that plot no. 70A was allotted initially to the respondent/complainant. There is no dispute that the said plot was not registered in the name of the respondent/ complainant despite legal notices.
11) Counsel for the appellants/opposite parties argued that the respondent/ complainant did not pay the remaining sale consideration within 60 days, hence the plot was not registered in his name and as per clause 9 the plot may be changed. On the other hand, counsel for the respondent/complainant contended that he got issued a legal notice dated 18-06-2012 calling upon them to execute the sale deed by receiving the balance sale consideration and another legal notice dated 12.11.2013 for refund of the amount, for which, there was no denial from the side of the appellants/opposite parties that they did not receive the said legal notices.
12) Further, counsel for the appellants/opposite parties argued that as per clause 10 of the agreement, the advance amount shall not be refundable, but, the District Forum erroneously ordered for refund of the advance amount. Undisputedly, the respondent/complainant purchased the plot No.70 A on 30.10.2009, he issued legal notice dated 18.06.2012 to execute the sale deed by receiving balance sale consideration and another legal notice on 12.11.2013 for refund of the amount, i.e., after four years of the payment. There is no evidence on record to show that the venture was developed and that the opposite parties are willing to execute registered sale deed by taking balance sale consideration by that time. If the respondent/complainant did not pay the balance sale consideration within 60 days as alleged, they have to send the notice to the respondent/complainant with regard to the appropriate steps to be taken by them for not paying the balance sale consideration, but, there is no such notice on record. They should not change the plot voluntarily without any notice to the respondent/ complainant when there was an agreement between the parties. Though, as per condition no. 10 of the sale agreement, advance amount paid shall not be refundable, since the appellants/opposite parties failed to deliver the registered developed plot as per the agreement by receiving balance sale consideration which amounts to deficiency in service and the fault lies on the part of the appellants/ opposite parties, therefore, this Clause is not applicable to the respondent/complainant in the present case and hence the respondent/ complainant is entitled to refund of the amount with interest. Since the transactions have taken place within the territorial jurisdiction of the District Forum and hence it has territorial jurisdiction to entertain the complaint as already held by the District Forum.
13) After considering the foregoing facts and circumstances and also having regard to the contentions raised on both sides, this Commission is of the view that there are no infirmities or irregularities in the impugned order and there are no merits in the appeal and hence it is liable to be dismissed.
14). Point No. 2 :
In the result, the appeal is dismissed confirming the impugned order dated 23/06/2016 in CC 373 of 2014 passed by the District Forum-III, Hyderabad . There shall be no order as to costs. Time for compliance four weeks.
PRESIDENT MEMBER Dated : 21.12.2017.
