Per Sri A. Hazarath Rao,  President:-

          The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking a direction to the opposite parties to register a plot measuring 128 sq. yards in M/s Sai Aditya Gardens Extention Venture in his favour or payment of Rs.1,21,600/- together with interest @24% p.a., from the date of payment till realisation in the alternative; compensation of Rs.50,000/- and Rs.5,000/- towards costs.

2.   In brief averments of the complaint are these:

The complainant after satisfying with the promises and believing the words of opposite parties joined as a member in Sai Aditya Gardens Extention Venture for purchase of a plot measuring 128 sq. yards and paid Rs.300/- on 08-10-12 towards membership fee.   The scheme commenced from 01-01-12 and was closed by 31-12-12. The complainant also paid Rs.30,000/- on 08-10-12 itself and the entire balance within two months from the date of joining as a member for which the opposite parties gave 5% concession on the price mentioned in the brochure.  The opposite parties executed an agreement of sale in favour of the complainant on 15-11-12.   The opposite parties failed to register a plot in the said venture in favour of the complainant in spite of several demands.   The opposite parties additionally demanded payment of Rs.999/- per sq. yard as against the agreed terms.   The attitude of the opposite parties in not executing registering sale deed amounted to deficiency of service.   The notice sent to the 1^st opposite party returned with the endorsement as refused.   The 2^nd opposite party though received notice kept quite.   The opposite parties did not register any plot to any subscriber from out of six hundred consumers.   The complainant suffered a lot mentally and financially due to non execution of registered sale deed in his favour.   The complaint therefore be allowed.

3.   The contention of the opposite parties in nutshell is hereunder:

          The 2^nd opposite party is the Managing Director of the 1^st opposite party’s company.   The relationship between the opposite parties and the complainant is that of a seller and buyer and as such this Forum has no jurisdiction to entertain the case.   The opposite parties issued a pass book bearing No.503 to the complainant and executed an agreement of sale dated 15-11-12 in favour of the complainant and allotted priority plot No.461.  In the said agreement the terms and conditions were mentioned.   By the time of commencing the venture, Sai Aditya Gardens Extention the land was within DTCP norms.   As per the said norms, realtor must provide metal roads, 10% of vacant site and other drainage systems.   During the pendency of the scheme, the subject property and other properties in the vicinity were included Urban Development Authority.   As per UDA rules and required norms a realtor has to provide tar road, 10% of vacant site under ground drainage, venture entrance arch, street lights and fencing.   While it was under DTCP norms the opposite parties fixed Rs.400/- per sq. yard for development charges.  As the opposite parties have to incur more expenditure under UDA norms they circulated a letter demanding the members to pay Rs.999/- per sq. yard towards development charges.    Without approval of UDA the opposite parties cannot execute a registered sale deed in favour of the complainant.   The complainant became aggrieved as the opposite parties demanded Rs.999/- per sq. yard as development charges.   The opposite parties are not liable in case of delay occurred in getting necessary approval from the Government and incorporated the same in the agreement.   The opposite parties are always ready to execute necessary sale deed in favour of the complainant subject to payment of development charges at Rs.999/- per sq. yard and also getting necessary approval from the Government including UDA.   The complainant failed to pay development charges and registration charges in spite of requests.   The opposite parties did not commit any deficiency of service and the complaint may be dismissed. 

4.   Exs.A-1 to A-8 on behalf of complainant and Exs.B-1 to B-14 on behalf of                     opposite parties were marked. 

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

1. Whether the Opposite parties committed deficiency of service?
2. Whether the complainant is entitled to Rs.50,000/- as compensation?
3. Whether the complainant is entitled to claim Rs.5,000/- towards expenses?
4. To what relief?

6.  Admitted facts in this complaint are these:

1.  The complainant became a member of the opposite parties                                Sai Aditya Gardens Extention Venture and paid Rs.300/-                                    towards membership fee on 08-10-12   (Exs.A-1 and A-3).

2.  The opposite parties executed an agreement of sale on 15-11-12                     (original of Ex.A-4) in favour of the complainant after receiving                       Rs.1,21,600 from him.

3.  The complainant sent notice to the opposite parties (Ex.A-5).

4.  Notice addressed to the 1^st opposite party returned un-served

          (Ex.A-6) and 2^nd opposite party received notice (Ex.A-7). 

7.  POINT No.1:-   Ex.A-1 is the brochure inviting or luring to become members of the scheme.  Clause (1) of Ex.A-1 says that plots will be allotted in survey numbers 158/1, 182, 183 (a), 183/b and 184 and some other survey numbers.   Clause (12) of Ex.A-1 revealed that 10% of the lay out area will be set apart for benefit of the members.   It can therefore be inferred that the opposite parties did not obtain approved lay out before inviting the public under Ex.A-1 for purchase of plots. 

8.   The scheme commenced from 01-01-12 as per version and affidavit of OP2. Exs.B-3 and B-4 copies of letters addressed by the Panchayat Secretary, Gram Panchayat, Vankayalapadu to the Vice Chairman, VGTMUDA on 26-12-13 seeking permission to convert agricultural land into non agricultural. The Government brought an extent of 1491.26 hectares in Vankayalapadu village under the purview of VGTMUDA on 21-06-12               (Ex.B-10).  Exs.B-1 and B-2 are the copies of proceedings of the Competent Authority & Revenue Divisional Officer, Narasaraopet dated 17-12-13 whereby an extent of Ac.4.21 in survey No.184 and an extent of Ac.0.90 and Ac.1.81 in survey No.181 was permitted to be converted into non agricultural purpose.   Exs.B-1 and B-2 coupled with Exs.B-3 and B-4 further disclosed that the opposite party got title to an extent of Ac.4.21 in survey Nos.184 of Vankayalapadu village and Ac.0.90 in survey No.144/A and Ac.1.81 cents in survey No.144/B on 25-02-13.    Ex.A-5 is the copy of agreement of sale executed by the opposite parties in favour of the complainant on 15-11-12.   Priority plot 461 measuring 128 sq. yards was located in survey Nos.158/1, 182, 183/A, 183/B and 184 of Vankayalapadu village limits.   It can therefore be inferred that the opposite parties did not acquire title particularly to an extent of Ac.4.21 in survey Nos.184 of Vankayalapadu village and Ac.0.90 in survey No.144/A and Ac.1.81 cents in survey No.144/B by then i.e.,                   15-11-12. 

9.      The terms in Ex.A-7 are binding on both the parties.   In Ex.B-1 it was mentioned that the complainant has to bear development charges and registration charges at the time of allotment of final plot number and registration.   By the date of Ex.B-1 the Government brought an extent of 1491.26 hectares in Vankayalapadu village under the authority of VGTMUDA.  By the date of Ex.A-7 the opposite parties did not get the plan approved from VGTMUDA.    The same was further corroborated by the 2^nd opposite party’s evidence affidavit filed on 30-01-14 wherein it was mentioned,

“The UDA will approve the scheme only after its norms are satisfied.  Without the approval of the UDA it is not possible to get the plots registered by us……………..we are not liable in case of delay occurred in getting necessary approval from the Government.   The said clause is also incorporated in the Government…………………we are making all the expenses to get approval from the Government and UDA”.    

Clause 14 of Ex.A-1 it was mentioned that the opposite parties are not responsible for the delay that may be occasioned from Government and nature.   It can therefore be implied that the opposite parties anticipated delay in getting approvals from the concerned authority even at the time of issuing the original of Ex.A-1. 

10.    In this case the opposite parties did not get approved layout from the competent authority i.e., DTCP at the time of issuing Ex.A-1 brochure or from VGTMUDA at time of executing Ex.A-7 agreement.  Not only that the opposite parties did not acquire title to the property as detailed supra till February, 2013.   For any of these things, the complainant cannot be blamed. 

11.    In Kiran Real Estates and Constructions, Seethammadhara, Visakhapatnam vs. Nagalla Ananda Sai Sudhakar 1999 ALD (Cons.) 103 it was held that the attempt of the appellant to sell plots without an approved lay out from VUDA amounted to deficiency in service and also an unfair trade practice.   

12.    Taking a clue from the above decision,  it can be said that the conduct of the opposite parties in issuing Ex.A-1 brochure without acquiring title to the property mentioned in it and attempt to sell plots without approved lay out from the competent authority amounted to unfair trade practice which comes under the purview of deficiency in service.   We therefore, answer this point in favour of the complainant. 

13.       The complainant also claimed interest @24% p.a.  Clause 13 of Ex.A-1 says that the opposite parties can charge interest @24% p.a., if a subscriber defaults in payment of installments consecutively for three months.    Therefore, the complainant’s claim seeking interest @24% p.a., cannot be said as unreasonable.   We therefore opine that the opposite parties are liable to pay interest @24% p.a., being a commercial transaction.

14.  POINT No.2:-    The complainant claimed Rs.50,000/- as damages from the opposite parties.  No doubt the complainant agreed to pay development charges.   The complainant’s denial to pay development charges in view of the above conduct of the opposite parties is a circumstance to consider in mitigating damages.  Granting Rs.10,000/- as damages will meet ends of justice as this Forum awarded interest.    We therefore answer this point accordingly.

15.  POINT No.3:-   In view of above findings, in the result the complainant is partly allowed as indicated below:

1.   The opposite parties are directed to pay Rs.1,21,600/- (Rupees one lakh twenty one thousand six hundred only) together with interest @24% p.a., from 15-11-12 till payment to the complainant.

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

  3.  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 Steno, corrected by me and pronounced in the open Forum dated this the 25^th day of March, 2014.

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

MEMBER                                  MEMBER                                PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:  

                                                                                               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.