BEFORE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD

F.A.No. 488 OF 2014 AGAINST C.C.NO.397 OF 2012 DISTRICT CONSUMER FORUM-I HYDERABAD

 Between

1. C.Ramesh Babu S/o C.Nasariah

Aged about 51 years, Occ: Business

2. Smt C.Bharathi W/o C.Ramesh Babu

Aged about 49 years, Occ: Home Maker

Both are R/o Flat No.208, Mid Town

Street No.1, Czech Colony, Sanathnagar

                                                                   Appellants/complainants                 

          A N D

M/s The Country Club

( A Division of Country Club India Ltd.,)

Rep. by its Managing Director,

Off: 3-6-367, 368, 369, III Floor

Flat No.306, Skill Spectrum Building

Besides TTD Kalayana Mandapam

Liberty Cross Roads, Himayathnagar

Hyderabad

                                                          Respondent/opposite party

Counsel for the Appellant                  Sri K.B.Ramanna Dora

Counsel for the Respondent              Served

QUORUM             :

HON’BLE SRI JUSTICE B.N.RAO, PRESIDENT

&

SRI PATIL VITHAL RAO, MEMBER

FRIDAY THE SECOND DAY OF JUNE

TWO THOUSAND SEVENTEEN

Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)

***

          This is an appeal filed by the opposite party dissatisfied with the orders dated 16.12.2013   of the District Forum-I, Hyderabad made in C.C.No.397 of 2013 in dismissing the complaint.

2.                For the sake of convenience, the parties are referred to as arrayed in the complaint.

3.                The case of the complainant, in brief, is that the Complainants being informed by the opposite party that it is engaged in hotel and real estate business and its members would be allotted plots at concession rates, paid total amount of Rs.1,96,000/- apart from registration fees of Rs.15,000/-.  The opposite party executed purchase agreement in favour of the complainants on 23.12.2006.  But in spite of collecting the amounts, the opposite party failed to allot the plot and also failed to refund the amount paid by the complainants.  The complainants vexed with the attitude of the opposite party got issued legal notice dated 26.04.2012 to opposite party.  Though the notice was served on the opposite party but it did not bother to reply the same nor refunded the amount.  Hence, the complaint praying to direct the opposite party to refund the balance amount of Rs.1,96,000/- with interest @ 24% p.a. from the date of payment till realization together with compensation of Rs.50,000/- and costs of Rs.10,000/-

4.                 The opposite party resisted the case contending that as per clause 11 of the agreement the amount paid by the complainants towards membership is non-refundable.  As per the receipts the complainants paid only Rs.39,000/- but not Rs.1,57,000/-.  There is no deficiency of service on the part of the opposite party as the required facilities are available in the opposite party club and also other resorts mentioned in clause 6 of the agreement.  It is not the case of the complainant that the complainants tried to avail facilities by booking holiday and the same was denied to him.  It is for the complainant to utilize the facilities which are available as agreed in the purchase agreement.  The complainant failed to pay the annual maintenance charges of Rs.3,000/- for the year 2007 to 2012.  Complimentary plot was allotted to the complainants vide allotment letter dated 11.04.2007 and the complainant failed to pay the development charges within time and the present complaint filed on 30.07.2012 is beyond the limitation.  Hence, it prayed for dismissal of the complaint.

5.                 During the course of enquiry before the District Forum, in order to prove their case, the Complainant no.1 got filed his evidence affidavit  while on behalf of the opposite party, its Customer Relations Manager, Mr.Srikanth filed his affidavit.    Though the complainants filed the documents but they have not been marked as exhibits. 

 6.                The District Forum after considering the material available on record, allowed the complaint bearing CC No.397/2012 by orders dated 16.12.2013, as stated, in paragraph No.1, supra.     

7.                Dissatisfied with the said orders,  the Appellants/complainants preferred this appeal contending that the  forum below   failed to see that the complaint is not  barred by limitation as per  written version of the opposite party itself,  the complainants failed to pay the annual maintenance charges of Rs.3,000/- for the year 2007 to  2012 which itself proves the claim of the complainants is still existing.  The opposite party though allotted complimentary plot but reluctant to register the plot stating that the complainants are liable to pay the registration and development charges.   The District Forum failed to see that the opposite party promised to register the plot within 18 months subject to full payment of membership and other charges but did not communicate or come forward to register the same.  Hence, the complainants prayed to allow the appeal by setting aside the order of the District Forum.

 8.                The point that arises for consideration is 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?  To what relief ?

9.                 It is not in dispute that the complainants joined as members in the opposite party club and it is also not in dispute that the opposite party  executed Purchase agreement dated 23.12.2006 and complimentary allotment letter of plot dated 11.04.2007.     The counsel for the opposite party would contend that the complaint is barred by limitation and that as per terms and conditions of the agreement, the membership fee is not refundable. 

 10.              As regards the limitation aspect, it is better to examine terms and conditions for allotment of complimentary plot bearing Mem.No.DT3#471, dated 11.04.2007.  A keen perusal of the same would goes to show that the opposite party agreed to register the complimentary plot admeasuring 1350 sq.ft   at their venture Golf Village within 18 months from the date of full payment of membership fee, completion of legal formalities and development of the project, subject to full payment of the registration and development charges of Rs.15,000/- in favour of their sister concern M/s Amrutha Estates.  Surprisingly, no evidence is placed on record by the opposite party to show that they completed the legal formalities and development of the project such as acquiring land, conversion, survey, Lay-out plans, etc., The copies of sanctioned lay-out showing ownership of land and approvals from the competent authorities are not filed. 

11.              There is no doubt that section 24A of the C.P. Act, 1986 requires a complaint to be filed within two years from the date of which the cause of action has arisen and in case it is not filed within the said period, sufficient cause is to be shown for not filing the same within the said period of two years. This section has been held to be preemptory in nature which requires the Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action, as held by the Apex Court in S.B.I. vs. B. S. Agricultural Industries AIR 2009 SC 2210, a decision relied upon by lr. adv. Shri Singbal.

12.              The complaint has been filed with an allegation that ever since the promised date of delivery, the Complainant has been constantly reminding the opposite party that the registration to be done to the plot  and the opposite party always demanded to pay the registration and development charges though the plot was allotted on complimentary basis but till date the registration was not done.     In our view, the cause of action in favour of the Complainants has got to be construed as continuous in that the Complainant would be able to maintain the complaint as long as registration of the plot was done as stipulated   or refused to register the plot.    We are fortified in our view from the observation of the National Commission in Hashmukh Lal Patil & ors, 2012 (4) CPR 362 wherein   the National Commission has held that the cause of action would remain continuous till allotment of site or till refusal and the same ratio would be applicable to the facts of that case.  

13.              In our view, the same ratio is also applicable to the facts of the case at hand as the registration of the plot was not done  and the same was not denied by the opposite party.    Since no registration of the plot has been done and possession has been handed over to the Complainants of the plot   although the Complainants claim that they have paid the entire membership fees   due to the Opposite Parties, nor a sale deed executed, these would be cases of recurring cause of action. In other words, the causes of action would continue till such time the registration of the plot or possession is handed over to the Complainants and sale deed is executed. In this context we may refer to Meerut Development Authority, 2012 (4) CPR 220, wherein the National Commission followed the view expressed by the Apex Court in Meerut Development Authority vs. M. K. Gupta, stating as follows:

In our view the complaint filed by the respondent who had patiently waited for 27 years with the hope that he will get the plot was rightly not dismissed by the District Forum as barred by limitation because he had a recurring cause for filing a complaint in the matter of non-delivery of possession of the plot.

14.                   In Lata Construction and ors. vs. Dr. R. R. Shah and anr., 2000 (1) CPR 81, the Apex Court has held: since the rights under the agreement of 1987 had not been given up and the appellants were constantly under an obligation to provide a flat to the respondents and deliver possession thereof to them, the Commission rightly treated `cause of action to be continuing cause of action and came to the right conclusion that the claim was not beyond time.

15.        Therefore the plea of the opposite party    that the complaint is barred by limitation, therefore, needs to be rejected.

16.               Now coming to the aspect of refund of the amount of Rs.1,96,000/- alleged to be paid by the complainants top the opposite party.  The opposite party disputed the payment of Rs.1,57,000/- while admitting payment of Rs.39,000/-.  The complainant filed receipts dated 29.12.2006 for Rs.20,000/-, receipt dated 23.03.2007 for Rs.10,000/-   Rs.5000/-, Rs.2000/- and Rs.2000/- respectively in total an amount of Rs.39,000/-.  The complainants filed Country Vacations International Holiday Club Membership Purchase Agreement dated 23.12.2006 wherein 2^nd page of it reads as follows:

PAYMENT TERMS:

                                                                                    With one plot at Club Head

            At second page of the agreement reads as under:

PAYMENT TERMS:

17.              As per the above particulars the total purchase price in the first table shows as Rs.80,000/- and the initial payment made by the complainants was Rs.20,000/- and the balance due shown as Rs.60,000/-.  In second table the purchase price is shown as Rs.40,000/- and the amount paid by the complainants is shown as Rs.40,000/- and balance is shown as nil.  Apart from the above the complainants filed receipts for the total amount of Rs.39,000/-.  Therefore taking into account all the payments the complainants made comes to Rs.99,000/-. 

18.               The opposite party  did not file any single piece of paper to show its bonafides that the plot which was allotted to the complainant on complimentary basis has been acquired, surveyed, obtained lay-out and completed the development work in accordance with the approvals from the competent authorities.  Admittedly, though the complainants became members of the scheme, they could not avail the benefits and accordingly requested for refund of the amount paid by them. 

19.              May be, for the reason that the opposite arty are allotting the complimentary sites, the Respondents were lured to become as members.  On physical verification of the site by the Respondents, there appeared no such venture physically and that the sites mentioned in the agreement also not really existing.  Though the counsel for Appellant would contend that the sites really exist at the places mentioned therein in the agreement, no evidence is placed on record to vouchsafe their contention.  Had really the sites been existing, the Appellants would have filed the service tax particulars for the particular period so as to show that the sites are really existing.  In such a circumstance, an adverse inference is to be drawn that without providing any realistic sites, the Appellants offered the scheme to the public including the Respondents and thereby lured them to shell out the money.  These facts would certainly constitute deficiency of service and negligence on the part of the opposite party. 

20.               In the above facts and circumstances, we do not see any merit in the contentions of the opposite party and accordingly the appeal is to be allowed by setting aside the order of the District Forum.   The complainants are undoubtedly entitled to  the amounts paid by them  together with  interest @  9%  from the date of the complaint. In the circumstances discussed supra, we answer the point framed for consideration in paragraph No.8 , supra, in favour of the complainants/respondents and against the opposite party/appellant. 

21.               In the result the appeal is allowed setting aside the order of the Dist. Forum, consequently the complaint is allowed in part.  The opposite party is directed to refund Rs. 99,000/- together with interest @ 9% p.a., from  the date of complaint till the date of realization together  with costs of Rs. 5,000/-.    Time for compliance four weeks. 

  PRESIDENT                           MEMBER

Dated  02.06.2017