Andhra Pradesh

East Godwari-II at Rajahmundry

CC/24/2015

Siddanthapu Lovarani - Complainant(s)

Versus

M/S. V.V.R. Housing Pvt. Ltd., - Opp.Party(s)

Md. Nasiruddin

27 Oct 2015

ORDER

                                                                                                                                                               Date of filing:   04.04.2015

                                                                                                                                                              Date of Order: 27.10.2015

 

BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI

DISTRICT AT RAJAHMUNDRY

 

                                                        PRESENT:   Smt H.V. Ramana, B.Com., L.L.M.,   PRESIDENT(FAC)

                      Sri A. Madhusudana Rao, M.Com., B.L., MEMBER          

    

                  Tuesday, the 27^th day of October, 2015

 

C.C.No.24 /2015

Between:-

 

Siddanthapu Lovarani, W/o. P.S. Vinay Prasad,

Aged 35 years, employee, D.No.3-11-54,

Christianpeta, Peddapuram.                                                                                                                           …        Complainant

 

                        And

 

M/s. V.V.R. Housing Pvt. Ltd.,

Represented by its C.E.O., V.V. Satyaprasad,

D.No.6-19-1/B, 3^rd ward, Innispeta, T. Nagar,

Rajahmundry – 533101.                                                                                                                                 …        Opposite party

 

 

            This case coming on 16.10.2015 for final hearing before this Forum in the presence of Sri Mohd. Nasiruddin and Sri S.K.M. Basha, Advocates for the complainant and   Sri D. Appa Rao, Advocate for the opposite party, and having stood over till this date for consideration, this Forum has pronounced the following:  

 

O R D E R

[Per Smt.H.V. Ramana, President(FAC)] 

This is a complaint filed by the complainant U/Sec.12 of Consumer Protection Act 1986 to direct the opposite party to refund the deposited amount of Rs.2,00,000/- together with subsequent interest at 18% p.a. from the date of deposit till the date of payment; to pay damages of Rs.50,000/- for causing mental agony to the complainant for not settling his claim amount and award costs of the complaint.

2.         The case of the complainant is that she initially booked two plots of 200 sq. yards each bearing Plot Nos.188 and 189 in RCR Delux phase of opposite party’s proposed V.V.R. Housing Pvt. Ltd., @ 1750/- per sq. yard within the panchayat limits of Vadisaleru village, Rangampeta Mandal. The complainant has paid Rs.1,000/- cash on 13.12.2009 bearing receipt No.4635 towards administrative charges and Rs.2,00,000/- cash on 18.12.2009 bearing receipt No.4648 towards advance respectively. Subsequently, the complainant decided to take only one plot instead of two plots and requested the opposite party to consider the same.  To which the opposite party agreed and allotted Plot No.31 in commercial phase 1 later on. At the time of taking the plot in the above said venture by the complainant, the opposite party promised to obtain DTCP approval from the authority concerned within 15 days and made believe the customers to invest in his said project with vide publicity. Since, 2009 the opposite party failed to obtain DTCP approval from the authority concerned for the reasons best known to him.  It is learnt that still there are disputes between the opposite party and the land owners  due to which DTCP approval was not given. The opposite party saying he dragged on the matter more than 6 years without any DTCP approval from the authority. As the opposite party failed to obtain DTCP approval from the authority concerned and for other reasons, the complainant decided to withdraw from the plot booking and submitting her cancellation letter directly to the opposite party in the month of June, 2014 and requested to make arrangement for refund of her advance amount of Rs.2,00,000/- with interest. But the opposite party neither paid the advance amount nor communicated whether the cancellation was done or not till to date. The opposite party dragged on the matter for more than 7 months even after complainant’s cancellation. The complainant got issued registered notice dt.5.2.2015 calling upon the opposite party to refund her advance amount along with interest and damages. The opposite party received the same and did not give any reply. Hence, the complaint.

3.         The opposite party filed its written version and denied all the allegations made by the complainant and the complaint is not maintainable either under law or on facts. It is true that the complainant has joined in the opposite part house private limited as member by accepting the conditions mentioned in the passbook. The complainant passbook number for two plots 188 and 189. The complainant has to pay installments as per the terms agreed between the parties. But the complainant failed to pay the installments as per the understanding. He paid only two installments and later failed to pay the remaining installments. After the said two installments, he has not paid any more installments and hence, she committed default in payment of installment amounts as per the schedule. In the month of December, 2009 only the said two installments paid. The further allegation that the opposite party agreed to allot plot No.31 in commercial phase is denied. This opposite party submits that the plots will be given subject to payment of installments after getting the approval from DTCP. Due to some technical problems, the opposite party could not get approval and the said fact have informed  to the complainant from time to time.  Meanwhile, the complainant failed to pay the installments and remained as defaulter.  As per the condition mentioned in the passbook, it is clearly mentioned that member can reserve the plot of their choice out of available plots on first come first serve basis by paying Rs.25,000/- for 133 sq. yards in advance which will be adjusted in final payment.  The further condition that land conversion and layout draft approval will be arranged before the end of the scheme period and final layout approval will be arranged after completion of the scheme. Company will not be responsible for any delay or inconvenience or loss caused due to acts of Govt. Agencies or nature of unforeseen circumstances beyond the control of the company. The company also reserve their rights out of which one of the condition is that the defaulters in payment of installments continuously for three months or more can be removed from the scheme without any notice. Money paid by them will not be returned due to heavy expenditure incurred by the company on land, marketing and administration of the scheme. Therefore, in view of the conditions accepted by the complainant at the time of joining as member, the complainant being defaulter is not entitled to claim the amount referred in the complaint. Hence, there is no deficiency of service on the part of the opposite party and the complaint is liable to be dismissed with costs.

4.         The proof affidavit filed by the complainant and Exs.A1 to A5 have been marked. The proof affidavit filed by the opposite party and there is no documentary evidence is adduced by the opposite party.

5.         Heard both sides.

6.         Points raised for consideration are:

 

1. Whether there is any deficiency in service on the part of the opposite party?

            2. Whether the complainant is entitled for the reliefs asked for?

            3. To what relief?

 

            The admitted facts are that the complainant approached the opposite party for purchase of two plots each bearing 200 sq. yards and paid the admission fee of Rs.1,000/- vide Ex.A1. The opposite parties allotted plots Nos.188 and 189 in RCR Deluxe Phase of V.V.R. Housing Private Limited at Rs.1750/- per sq. yard.  The complainant paid an advance amount of Rs.2,00,000/- cash on 18.12.2009 bearing receipt No.4648 issued by the opposite party vide Ex.A2.  The opposite party also issued a passbook vide Ex.A5, in which he acknowledged that he received Rs.2,00,000/- from the complainant. The complainant submitted that later she decided to take only one plot instead of two plots and requested the opposite party to consider the same. The opposite party agreed and endorsed in Ex.A5 as the commercial phase-I, Plot No.31 and north facing. The complainant further submitted that since 2009, the opposite party failed to obtain DTCP approval from the authority till today. Therefore, she got issued a legal notice to the opposite party vide Ex.A3 for refund of money with interest. The opposite party received the notice and acknowledged vide Ex.A4 by without giving any reply to the complainant. The main submission of the complainant is till today, the opposite party has not obtained the DTCP approval.

7.  POINT Nos.1 & 2: The complainant contended that she approached the opposite party for several times and enquired about the approval of DTCP. But, the opposite party dragged on the matter for about six years without taking the approval of DTCP, this amounts to deficiency in service. The complainant further contended that when the opposite party failed to take the DTCP approval from the authorities, she decided to withdraw by taking the plot and also submitted her cancellation letter to the opposite party directly in the month of June, 2014 and requested to refund the advance amount of Rs.2,00,000/- with interest. But, till today, the opposite party neither paid the amount nor communicated to her that they cancelled the deal. This amounts to deficiency in service on the part of the opposite party and the opposite party is liable to pay the deposited amount of Rs.2,00,000/- together with interest and also Rs.50,000/- towards damages for causing mental agony.

            The opposite party admitted that the complainant booked two plots with them and also they received Rs.1,000/- and Rs.2,00,000/- vide Exs.A1 and A2. They further submitted that due to some technical problems, the opposite party could not get the approval and the said fact is informed to the complainant from time to time. As per the conditions in the passbook, layout draft approval will be arranged before the end of the scheme period and final layout approval will be arranged after completion of the scheme. They also contended that the company will not be responsible for any delay or inconvenience or loss caused due to the acts of the government agencies or nature of unforeseen circumstances beyond the control of the company.  They also contended that the complainant is a defaulter in payment of installments continuously for three months or more can be removed from the scheme without any notice and the defaulters are not entitled to claim the amount referred in the complaint and there is no deficiency in service on the part of the opposite party.

            After perusing the material on record, we observed that the complainant booked two plots each bearing 200 sq. yards and paid administration charges of Rs.1,000/- vide Ex.A1 to the opposite party. The cost of each sq. yard of the plot is Rs.1750/-. Basing on that, the complainant paid an advance amount of Rs.2,00,000/- vide Ex.A2. Later on, the complainant decided to take only one plot and the same is agreed by the opposite party and endorsed that they allotted commercial phase-I, Plot No.31, north facing and also signed under the said endorsement in Ex.A5. The complainant contended that she approached several times to the opposite party and enquired about the DTCP approval, but they have dragged the issue for more than six years, finally, she got issued a legal notice vide Ex.A3 and the same is acknowledged by the opposite party vide Ex.A4, but they failed to give any reply.  The opposite party retained the amount of the complainant from December, 2009 till today and made the complainant to run around for allotment of the plot after DTCP approval or they failed to refund of money paid by the complainant. The opposite party has not taken any effort for getting the DTCP approval from higher authorities and also not filed any documents to that extent.

            The opposite party contended that he mentioned certain terms and conditions on the passbook vide Ex.A5.  But, the opposite party never demanded the other installments from the complainant and they have not filed any supporting documents to that extent.  They also admitted that till today they have not received the DTCP approval from the authorities and they have not filed any piece of document that they are making efforts to get the DTCP approval from the higher authorities. Since 2009, till today, the opposite party is enjoying the amount paid by the complainant as advance without any further course of action. This amounts to deficiency in service on the part of the opposite party by not refunding the amount even inspite of her letter of withdrawal from the scheme to the opposite party. The opposite party admitted and endorsed that they received the amount from the complainant in December, 2009 and the said amount is utilized by him for all these six years. As seen from Ex.A5, the conditions on the passbook are only self imposed by the opposite party and they cannot dictate the terms against their customers by simply writing on the passbook, without doing their part of responsibility of getting the DTCP approval.

            The complainant relied on the following citations in

(1) Punjab Urban Planning and Development Authority Vs. Mrs. Shakuntala Devi

      Saini: 2009(1) CPR 280 (NC),

(2) Konda Krishna Vs. Huzurabad Surya Real Estates Pvt. Ltd., and Anr.: 2012(4)

      CPR (A.P.).

The above said citations are applicable to the facts and circumstances of the present

case on hand.

            The opposite party also relied on the following decisions:

1. DLF Southern Towns Pvt. Ltd., Vs. T.P. Balachandra Panicker:                     I (2015) CPJ 445 (NC),
2. Tulshiram Marotrao Derkar Vs. Shastri Grih Nirman Sahakari Sanstha Ltd. :  II (2015) CPJ 71 (NC).

The above said two citations are not applicable to the facts of the present case on

hand. The opposite party has not fulfilled his part of the duty with regard to getting the DTCP approval for payment of the balance amount by the complainant and he never demanded the complainant for other installments and he has not filed any proof of documents before this Forum. 

Basing on the discussion held supra, we opined that the opposite party is liable for deficiency in service and they have to refund the amount paid by the complainant with interest.      

               

8.   POINT No.3:  In the result, the complaint is allowed in part, directing the opposite party to refund the deposited amount of Rs.2,00,000/- with interest at 12% from the date of deposit i.e. 18.12.2009 till realization to the complainant. We further direct the opposite party to pay Rs.2,000/- towards the costs of the complaint to the complainant.  Time for compliance is two months from the date of this order.   

 

Typed to dictation, corrected and pronounced by us in open Forum, on this the           

27^th day of October, 2015.

    

                  Sd/-xx                                                                                             Sd/-xx

              MEMBER                                                                              PRESIDENT(FAC)

         

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

 

FOR COMPLAINANT: None.                                                                                     FOR OPPOSITE PARTY: None.

 

DOCUMENTS MARKED

 

FOR COMPLAINANT:

 

Ex.A1    dt/13.12.2009     Original receipt issued by the opposite party.

Ex.A2    dt/18.12.2009     Original receipt issued by the opposite party.

Ex.A3    dt/05.02.2015     Office copy of regd. notice got issued by the complainant to the

                                          opposite party.     

Ex.A4    dt/07.02.2015     Acknowledgement of the opposite party.

Ex.A5    dt/                       Original passbook.

 

FOR OPPOSITE PARTY:-          - Nil -

 

 

                Sd/-xx                                                                                             Sd/-xx

              MEMBER                                                                              PRESIDENT(FAC)