BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 305 OF 2017 AGAINST CCSR NO.996 OF 2016 DISTRICT CONSUMER FORUM- I HYDERABAD
Between
Haleema Bee W/o Mohammed Shabuddin
Aged 59 years, Occ: Housewife
H.No.8-3-228/676/3, Rehmat Nagar
Yousufguda, Hyderabad-45
Appellant/complainant
A N D
M/s VVR Housing India Pvt Ltd.,
206 & 211, 2nd Floor, Pavani Prestige
Ameerpet, Hyderabad-500016, rep. by its
Managing Director, V.Vasudeva Rao
S/o late Raja Rao, aged 48 years,
R/o Hyderabad
Respondent/opposite party
Counsel for the Appellant M/s Gopi Rajesh & Associates
Counsel for the Respondent M/s AVV Badari Narayana
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
TUESDAY THE FIFTH DAY OF JUNE
TWO THOUSAND EIGHTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the complainant aggrieved by the order of the District Forum-I, Hyderabad dated 29.11.2916 in rejecting the complaint filed U/s 12 of C.P. Act on the ground of pecuniary jurisdiction and barred by limitation.
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 Opposite party is running real estate business and on 20.05.2012, she purchased the vacant site of 278 square yards bearing Plot No.650 in Sy.No.281, situated at Bachupally Paradise at Nalthur village and Gram Panchayat, Jinnaram Mandal, Medak district, by paying a sum of Rs.4,75,000/- to the Opposite party. In token of receipt of sale consideration, the Opposite party stated to have executed the sale deed in her favour but failed to deliver the possession of the flat in spite of repeated requests and demands. Hence, sought for refund of the amount paid together with interest, compensation and costs.
4. Basing on the above claim, before taking the complaint on file, the forum below had passed orders on the admissibility of the complaint as regards the pecuniary jurisdiction and limitation, without even causing notice to the Opposite party and thereby rejected the complaint. It is this order which is assailed in the above appeal contending that the forum below failed to consider the documents brought on record in proper perspective and rendered its findings. The forum below failed to appreciate the fact that the Opposite party promised to provide the facilities such as 60'/50'/40' black top roads, avenue plantations, running water pipe lines, open drains, plantation, barbed wire fencing, gates to the plots, electricity lines, street lighting, water sump, etc., which they failed to and that there is no development at all for long years.
5. Though the counsel for the respondent made his appearance but did not file any counter to defend his case but on 26.04.2018 when the matter came up for hearing both counsel present and were heard. Written arguments of the appellant filed.
6. The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
7. It is the case of the Appellant that the Respondent by making false assurances in the form of brochure lured and attracted the gullible consumers and later-on resorted to unfair trade practice and deficient services by not providing the amenities. As such, the same is a continuing cause of action. On failure to comply with the agreed terms in the brochure, the complainants sought for refund of amount claiming interest @24% per annum and also the damages. By taking the sum total of interest and the compensation as an aggregate, the forum below passed orders of rejection and further rendering its finding that the complaints are barred by limitation in view of the fact that the transaction took place in the year 2012 whereas the complaints are filed after lapse of four years.
8. We may state here that no notices were ordered to the Respondent before passing orders and on its own notion; the forum below had passed the orders which are impugned in this appeal. Instead of rejecting the complaint, the forum below ought to have returned the complaint for compliance since the complaint was filed by party -in -person, who was not acquainted with the technicalities so as to enable them to comply the objections.
9. In the appeal, the learned counsel for the Appellant would contend that the Respondent failed to adhere to the promises and assurances made in the brochure and failed to develop the plots as promised. Even no number was assigned to the plot and there is no development at the site, which resulted in seeking refund of amount. Further, it is the specific case of the appellant that by letters dated 05.05.2012 and 16.06.2012, the Respondent in clear terms admitted that the developments in Bachupally Paradise Phase II is delayed for long time due to some internal technical problems and they would be completing the plotting and road cuttings within 15 days. This part of admission on the part of the Respondent is suffice to say that there is no development at the project site and the roads are yet to be formed. All these averments would come to the fore only when an opportunity is given to the opponent to put-forth its defence. Admittedly, at the admission stage itself, the complaints were rejected for the reasons stated supra. There is no record to vouchsafe that the plots are developed as promised, as such, it is a continuing cause of action.
10. We may further state that whatever be the compensation and interest that being claimed by the complainant, it is the pure discretion of the courts to decide and grant interest and compensation as per the facts and circumstances of each case. Again, there is no rule of thumb. In the above regard, the Hon’ble National Commission, and the Hon’ble Supreme Court have in number judgments made the following decisions:
i) Judgment of Hon'ble NCDRC, New Delhi rendered in the matter of G.Mohiuddin Vs. ABS Land Development and Constructions, reported in IV-2016 CPJ 621 NC, wherein it was held that aggregate value of goods agreed to be paid by consumer and amount claimed as compensation will determine the pecuniary jurisdiction.
ii) Judgment of Hon'ble NCDRC, New Delhi rendered in the matter of Anshu Shrivastava & Anr Vs. Unitech Ltd., reported in IV (2016) CPJU 462 (NC), wherein it was held that aggregate of the amounts claimed forms the pecuniary jurisdiction.
iii) Judgment of Hon'ble NCDRC, New Delhi reported in 2005 (2) CPR 1 NC, wherein it was held that the cause of action is a continuing one till the possession of the plot is delivered with all amenities.
iv) Judgment of Hon'ble NCDRC, New Delhi in WP No.30394 of 2011 reported in CDJ 2012 APHSC 421, wherein it was observed that where the amenities as promised are not provided, it can be construed as continuous cause of action and cannot be said to be barred by time.
v) Judgment of Hon'ble Supreme Court reported in 2011 (2) CPJ 3 SC, wherein it was observed that the complainants are entitled for refund of amount and compensation after reconveying the sale deed and the registration charges shall be borne by the developer, when there is a failure on the part of the developer to develop the plots as per the brochure/agreement.
vi) Another Judgment of Hon'ble NCDRC, New Delhi rendered in Fa No.890 of 2012 in the matter of Sreemitra Developers Pvt., Ltd., Vs. K.Venkateswara Rao, wherein it was held that since developers failed to provide the amenities as per the brochure, the developer is liable to refund the amount along with interest and compensation.
11. We find ourselves in complete agreement with the views endorsed by the learned counsel for the Appellant that the complaint is not not barred by limitation. Be that as it may, the complaint is filed by the complainant as party-in-person without any assistance from a legal procedure knowing person.
12. For the reason that the Appellant claimed interest @ 24% per annum on the principal amount and huge amount of compensation, the forum below construed that if the same are computed, it will oust its pecuniary jurisdiction. In this context, we may state that the question of interest and compensation are not yet decided and the notice is not yet issued to the Respondent to put-forth its claim/defence and we may state that the interest and compensation is not to be counted at this stage. All these facts are to be considered when the defence story comes to the fore. In this regard, we place our reliance on the Judgment of Hon'ble National Commission rendered in the matter of Ritu Duggal and another Vs. Unitech Reliable Projects Pvt., Ltd., in CC No.1521 of 2015, decided on 01.02.2016. A similar case in a decision rendered by the Hon'ble National Commission in Haryana Urban Development Authority Vs. Pawan Kumar Gupta, reported in SC & National Commission Consumer Law Cases (2005-2006), observing that in cases of this nature, the complaint was within the time limit as there was continuous cause of action.
13. Considering the consisting views expressed by the Hon'ble National Commission and the Hon'ble Supreme Court on the above aspects, we are of the considered opinion that the question of limitation would not arise, therefore, we are inclined to allow the appeals.
14. In the cases where the complaint is barred by limitation, what all required to be seen is to direct the complainants to file an application under Section 24-A of the Consumer Protection Act, more particularly, in the instant cases, when they are at admission stage and ought not to have rejected the complaints under any circumstance. Hence, the point framed at para No.5, supra, is answered accordingly.
In the result, the appeal is allowed by setting aside the order of the District Forum. Accordingly, we direct the District Consumer Forum-I, Hyderabad to register the complaint and proceed with the matter in accordance with law. No costs.
PRESIDENT MEMBER
05.06.2018
