This complaint coming up before us for final hearing on 09-07-14                                in the presence of Sri P.V. Ramana, advocate for complainant and of                                  Sri K. Krishna Kishore, advocate for opposite parties, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-      The complainant being minor represented by his father, filed this complaint under section 12 of the Consumer Protection Act seeking refund of Rs.1,32,900/- paid by him towards purchase of plot together with interest @24% p.a.; Rs.25,000/- as compensation; Rs.20,000/- towards mental agony and Rs.10,000/- towards expenses.

2.   In brief the averments of the complaint are these:

          The complainant on 13-01-10 agreed to purchase a plot in Sai Arjun group measuring 240 sq. yards in the name of his minor son from the opposite parties and purchased two plots measuring 120 sq. yards each.     At that time the opposite parties promised that proposed plot is having all Government permissions including Urban Development Authority approval.   The complainant paid Rs.15,200/- on 13-01-10 per each plot and the cost of the said plot measuring 120 sq. yard is Rs.1,60,000/-.   The complainant agreed to pay the said amount in 36 installments and paid Rs.1,32,900/- in 15 installments.   That is why the opposite parties allotted priority plot No.72/240 and issued passbooks bearing Nos.2394 and 2395.   The opposite parties failed to fulfill the promises in obtaining Government permissions and providing amenities to allotted plots.   The opposite parties insisted the complainant to take another plot with same extent in another group for which the complainant protested.  The complainant on 20-09-13 issued a notice to the opposite parties.   The opposite parties committed deficiency in service by violating the provisions of the Consumer Protection Act.   The complaint therefore be allowed.

3.      The 2^nd opposite party filed memo adopting version of                              1^st opposite party and their contention in brief is thus:

          The complainant is not a consumer within the purview of the Consumer Protection Act and there is no triable consumer dispute.   The complainant has to approach civil court for breach of contract, if any committed by opposite parties.   The complaint is barred by limitation.   The opposite parties did not commit any deficiency in service.   The complainant paid Rs.1,32,500/- (@Rs.66,250/- for each plot) towards cost of the plot and Rs.400/- (@Rs.200/- for each plot) towards admission fees.   The opposite parties therefore allotted plot priority No.72.   The complainant defaulted in payment of further installments and as such is not entitled for return of amount as sought.   Duration of the scheme was from 28-09-09 to 27-09-12.   The opposite parties as a good will gesture informed the complainant on            01-06-10,  11-10-10 and 26-12-10 to clear the dues to avoid cancellation of membership.   But the complainant did not respond positively.   The land under Sai Arjun scheme was at the stage of completion and a plan was already submitted to UDA for approval and the opposite party is awaiting for approval of the plan from UDA.   The opposite parties made arrangements for registration of plots to its eligible members immediately after receiving approval from the authorities.  The opposite parties gave a suitable reply.   The complaint is devoid of merit and deserves dismissal.

4.  Exs.A-1 to A-34 on behalf of complainant and Exs.B-1 to B-6 on behalf of opposite parties were marked.

5.   Now the points that arose for consideration in this complaint are:

          1.  Whether the complainant is a consumer within the purview of                           Consumer Protection Act?

          2. Whether there is a triable consumer dispute?

          3. Whether the complaint is barred by time?

          4. Whether the opposite parties committed deficiency in service as                        alleged by the complainant?

          5. Whether the complainant is entitled to compensation as claimed?

          6. To what relief?

6.   Admitted facts in this complaint are these:-

          1.   The complainant joined as a member in Sai Arjun group                          promoted by the opposite parties and initially paid                               @Rs.15,000/- plus Rs.200/- for each plot                                          (Ex.B-1 = A-3 & A-18).

          2.  The opposite parties collected Rs.400/- (@Rs.200/- for each plot)                     towards admission fees from the complainant.

          3.  The complainant in all paid Rs.1,32,500/- towards consideration             of two plots (Ex.A-3 to A-32).

          4. The complainant issued notice to the 2^nd opposite party                                     (Ex.A-33 and A-34).

          5. Duration of the scheme was from 28-09-09 to 27-09-12.

7.  POINTS 1 to 3:-      The opposite parties in para 8 of their version admitted about they collecting Rs.200/- towards admission charges.   The complainant therefore became a member by paying the admission fee of Rs.200/- and thus became a consumer within the purview of the Consumer Protection Act.   The contention of the opposite parties therefore about the status of the complainant as not a consumer is devoid of merit.

8.      The contention of the complainant is that the opposite parties promised at the time of his joining membership that they obtained all necessary permissions while the contention of the opposite parties is that terms of the agreement are binding on both parties and even if there is a breach it is the civil court that assumes jurisdiction.   The opposite parties in para 15 of their version admitted that the opposite parties made arrangements for registration of the plots to eligible members immediately after receiving approval from the authorities.   Thus there is a triable dispute by Consumer Forum.   

9.      Duration of the scheme as mentioned in Ex.B-1=A1&A2 was                       from 28-09-09 to 27-09-12.   As the opposite parties till filing version did not obtain necessary permissions/approvals from the concerned authorities,      we are of the considered opinion that the cause of action is a continuous one and is not barred by limitation.   Under those circumstances, the contention of the opposite parties about complaint barred by limitation and absence of triable consumer dispute is devoid of merit.   In view of the afore mentioned discussion, we answer these points in favour of the complainant.  

10.  POINT No.4:-     The deficiency in service alleged by the complainant is that the opposite parties failed to obtain Government permissions/approvals  from the concerned authorities and also to provide amenities either at the time of their offer to sell plots or during duration of scheme.   The opposite parties in para 15 of their version mentioned the following:

                   “It is further submitted that the land under Sai Arjun scheme was at the stage of completion and the plan was already submitted to Urban Development Authority for approval and the opposite party is awaiting for the approval of the plan from the Urban Development Authority and the opposite parties made arrangements for registration of the plots to the eligible members, immediately after receiving the approval from the authorities”.

              As already stated the scheme duration was from 28-09-09 to 27-09-12.   The above averments revealed that the opposite parties so far did not obtain approval from the concerned authorities.

11.    Ex.B-6 is the copy of letter dated 25-03-14 addressed by VGTMUDA to the opposite parties.   The relevant portion in Ex.B-6 is extracted below for better appreciation:

          The above letter clearly revealed that the opposite parties did not file relevant papers to the concerned authorities even by 25-03-14 even after completion of the scheme period.

12.    In clause 7(b) of Exs.A-1&A2=B-1 it was recited:

13.    The contention of the opposite parties is that the complainant is aware of the said clause even at the time of joining membership and in the least after obtaining Ex.A-1 and A-2 passbooks.    The said contention is having considerable force.   Further contention of the opposite parties is that it amounted to breach of contract but not deficiency in service.   The deficiency in service is defined u/s 2(g) of the Consumer Protection Act and it reads as follows:

        "Deficiency" means any fault, imperfection, shortcoming or inade­quacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been        undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”

14.  Section 2(r) of the Consumer Protection Act defines unfair trade practice.   The word deficiency in service/unfair trade practice in our considered opinion is a wider term and includes breach of contract also.    The opposite parties are quite aware about they not obtaining relevant approvals from the concerned authorities at the time of issuing Ex.B-1.      Ex.B-1=A1&A2 amounted to a contract and it cannot be said as a void contract.   The question that arose before this Forum is whether the opposite parties committed deficiency in service or unfair trade practice while promoting the venture covered by Exs.A-1&A-2.   The terms and conditions mentioned in Exs.A1&A2=B-1 either in agreement of sale or sale deed did not make any difference if amounted to deficiency in service.  

15.    In Kiran Real Estates and constructions, Sitammadhara, Visakhapatnam vs. Nagalla Anand Sai Sudhakar 1999 (2) CPJ 412 it was held that the attempt of the appellant to sell plots without approved lay out by the VUDA amounts to deficiency in service and also unfair trade practice.   It is not the case of the opposite parties that they obtained necessary permission/approval lay out from VGTMUDA at the time of Ex.A-1.  Ex.B-6 revealed that the opposite parties did not get lay out approved even by 25-03-14 as revealed from Ex.B-6.   The said view was affirmed by NCDRC in P. Nirmala Devi vs. P. Venkateswara Rao and another (2012 (1) CPR 373 (NC).

16.    The opposite parties cited 2001 (1) CPC 602 Delhi;  2009 (1) CPC 599 High Court; 2012 (3) CPC 335 NC; 1997 (1) CPC 365.   But the learned counsel for the opposite parties neither furnished names of parties to trace out in other journals relating to Consumer Protection Act nor filed those decisions.      Under those circumstances, this Forum is unable to consider those citations cited by the learned counsel for the opposite parties. 

17.   The learned counsel for the opposite parties contended that the judgment reported in Kiran Real Estates and constructions, Sitammadhara, Visakhapatnam vs. Nagalla Anand Sai Sudhakar 1999 (2) CPJ 41 is per in curium as the contract between them is not a void one.   The said contention is devoid of merit in view of section 2(g) and (r) of Consumer Protection Act.  This Forum can go into the aspect of deficiency in service/unfair trade practice even a contract is void in our considered view.

18. The decision reported in Kiran Real Estates and constructions, Sitammadhara, Visakhapatnam vs. Nagalla Anand Sai Sudhakar 1999 (2) CPJ 412  is squarely applicable to the facts of the case.   We therefore opine that the opposite parties committed deficiency in service and unfair trade practice by their attempt to sell plots without a lay out approved by the competent authority.   We therefore answer this point against the opposite parties.

19.  POINT NO.5:-    The opposite parties in para 8 of their version admitted about receiving Rs.1,32,500/- from the complainant towards consideration of plot.   Under those circumstances, the opposite parties are liable to refund the said amount.  

20.    The complainant claimed interest @24% p.m.    In Ex.B-1 it was mentioned that a defaulted allottee has to pay interest @24% p.a.   Under those circumstances awarding interest @24% p.m., will meet ends of justice. 

21.   The complainant claimed Rs.25,000/- as compensation and Rs.20,000/- towards mental agony.   Since this Forum awarded interest @24% p.m. awarding a sum of Rs.10,000/- as compensation will meet ends of justice.  We therefore answer this point accordingly.

22.  POINT No.6:-      In view of above findings, in the result the complaint is allowed in part as indicated below:

          1.  The opposite parties are directed to refund Rs.1,32,500/- (Rupees                             one lakh thirty two thousand, five hundred only) together                                 with interest @24% p.a., from 01-10-13 (notice) till payment.

          2.  The opposite parties are directed to pay Rs.10,000/- (Rupees ten                     thousand only) as compensation.

          3. The opposite parties are directed to pay Rs.2,000/- (Rupees two                        thousand only) as costs of the complaint.

          4. The amounts ordered above shall be paid within a period of six                          weeks from the date of receipt of the copy of the order.

Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 16^th day of July, 2014.

Sd/-XXX                                     Sd/-XXX                               Sd/-XXX

MEMBER                                     MEMBER                              PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:   

                                                                               Sd/-XXX               

 PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.