BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 78 OF 2015 AGAINST C.C.NO.553 OF 2012 DISTRICT CONSUMER FORUM-III HYDERABAD
Between
- M/s Janachaitanya Housing Ltd.,
Rep. by it’s Chairman & Managing Director
Regional Off: 2nd Floor, Zainab Commercial Complex
Ameerpet, Hyderabad, rep. by its Authorised person
- Janachaitanya Housing Estates
Rep. by it’s Chairman & Managing Director
Regd. Off: Pasumalai Complex, Arundelpet
Guntur, Rep. by it’s Authorized Person
Appellants/opposite parties
AND
Smt Padma Bharathi W/o M.U.Ramlal
Aged 41 years, Occ: Housewife
R/o Flat No.502, Manbum Antariksha
Plot No.257, Road No.1, West Marredpally
Secunderabad
Respondent/complainant
Counsel for the Appellants M/s M.Srinivas Swarup
Counsel for the Respondent M/s Bhaskar Poluri
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
THURSDAY THE TWENTY SIXTH DAY OF APRIL
TWO THOUSAND EIGHTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the opposite parties aggrieved by the orders of District Consumer Forum-III dated 25.03.2015 made in CC No.553 of 2012 wherein it allowed the complaint directing the opposite parties to refund Rs.5.00 laks with interest 2 9% per annum from 24.12.2007 till realization together with compensation of Rs.1.00 lakh and costs of Rs.2,000/-.
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 lured by the advertisements and brochure issued by the opposite parties, the Complainant has joined as a member of “SAI DURGA-II” Venture, situate at Bangalore National High Way No.7, near Shamshabad Mandal, R.R.District. At the time of joining venture, the opposite parties had represented to the Complainant that the lay out was approved. The opposite parties have allotted plot No.86, admeasuring 500 sq. yards to the Complainant. The opposite parties have also issued 2 pass books, bearing No.21/A for 250 sq. yards and pass book No.28/A for 250 sq. yards. The agreed total sale consideration was 5.00 lakh for 500 sq. yards. On 24.12.2007, the Complainant has paid the entire sale consideration of Rs.5.00 lakh which includes Development Charges and Registration Charges. Thereafter, the Complainant had approached the opposite parties and demanded for registration of the plot No.86. To her utter surprise, the Complainant has come to know that plot No.86 was already registered in the name of third parties and the said plot was not available for registration. Vexed with the attitude and behaviour of the opposite parties, the Complainant got issued notice, dated 21.08.2012 and filed the complaint praying to direct the opposite parties to refund Rs.5.00 lakh with interest @ 24% together with compensation of Rs.3.00 lakhs and costs.
4. The opposite parties resisted the case contending that the Complainant has to pay Rs.200/- per sq. yard towards Development Charges, at the time of registration, she has to incur Registration Charges also. The plot numbers will be allotted to the members who paid the development Charges as per the terms and conditions of the passbook at the time of registration only. It is true that Plot no.86 in the said venture was registered in the name of third parties. The opposite parties are ready to register in one of the farm units available in the said venture. Unit No.57 to 62, 77 and 140 are available and any one of the units will be registered in the name of the Complainant subject to the payment of development charges at Rs.300/- per sq. yard by the Complainant. Apart from it, the Complainant has to bear registration charges and miscellaneous charges at the time of registration. The opposite parties are not in a position to refund the amount to the Complainant, as the opposite parties incurred huge expenditure for procurement of land, development of land and for laying of roads etc. Therefore, the question of refund of the amount does not arise in the matter. The complaint filed by the Complainant is barred by limitation and as such the complaint is liable to be dismissed.
5. In proof of his case, the complainant filed his evidence affidavit and marked documents as Exs.A1 to A9. On behalf of the opposite parties the Senior Legal and Estate Officer of the Opposite Party No.1 has filed evidence affidavit and got marked Exs.B1 to B3.
6. The District Forum after considering the material available on record, allowed the complaint bearing CC No.553 of 2012 by orders dated 25.03.2015, as stated in para 1, supra.
7. Aggrieved by the said decision, the opposite party preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The District forum failed to see that the complainant has failed to pay the development charges and other charges to the opposite party as per the terms and conditions agreed by her at the time of joining as a member in the said venture. The opposite party has expressed their readiness to allot and register the available plots in the same survey numbers in the same venture but the District forum awarded high rate of interest @ 9% per annum with compensation of Rs.1,00,000/-. It is contended that the respondent had not satisfied ingredients of Section 2( c) of the Consumer Protection Act. Hence, the opposite parties prayed to allow the appeal by setting aside the orders of the District Forum.
8. No representation for appellant. Counsel for respondent was heard and he insisted for reserving the appeal. Counsel for the complainant filed his written arguments.
9. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
10. The case of the complainant is that though she had paid the total sale consideration of Rs.5.00 lakh on 24-12-2007 for plot No.86 in “SAI DURGA-II” venture, the opposite parties failed to register the plot and further they already registered the said plot in favour of the third parties. She also contended that there were no developments at all in the said venture. On the other hand the contention of the opposite parties is that they never offered Plot No.86 to the Complainant and that the Complainant has not paid the development charges.
11. The opposite parties also contended that the complaint is barred by limitation. We do not agree with the contention of the opposite parties that the complaint is barred by limitation. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), the complainant applied for a plot, in the year 1992, on the basis of inducement made in the advertisements of the petitioner, knowing fully well, that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon`ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
12. The next contention of the opposite parties is that as the complainant failed to pay the development charges as per the terms and conditions the opposite parties registered the subject plot in favour of the the third party who paid the development charges. If the complainant had not paid the development charges, as per the terms and conditions of the passbook/application form, the opposite parties ought to have issued notice and thereafter ought to have taken steps for cancellation of the allotment, had it been its intention that non-payment development charges would amount to default on the part of the complainant. There is no such document to show that the opposite parties issued letters or notices to the complainant for payment of development charges. Viewed from any angle, the opposite parties had rendered deficient service by not taking steps for issuing notice to the complainant to pay development charges as per the terms of the passbook. The opposite parties also had not given any reply to the notice issued by the complainant stating the reasons about not executing the registered sale deed in favour of the complainant.
13. Ex.A1 brochure issued by the opposite parties clearly could manifest that the opposite parties have assured the customers including the Complainant that they are selling fully developed plots and that they would provide all amenities. It clearly indicates that the opposite parties have undertaken to provide a service. The opposite parties are answerable to any deficiency or defects in such services. Therefore, the Complainant is a consumer and the Opposite Parties are service providers. The acts and deeds of the opposite parties in not executing atleast agreement of sale and registering the plot though the opposite parties had received the entire sale consideration way back in 2007, clearly constitute not only deficiency in service and also unfair trade practice.
14. The District Forum awarded the relief in favour of the complainant by directing the opposite parties for refund of the amount of Rs.5,00,000/- paid by the complainant with interest @ 9% per annum with compensation of Rs.1,00,000/-. The subject plot was already registered in favour of third party, the question of registration of the subject plot would not arise. It is obvious that the opposite parties do not want to refund the amount unless the complainant invokes some legal proceedings. The fact remains that the opposite parties could no longer execute registered sale deed in respect of plot no.86, therefore it was bound to refund the amount received by it.
15. In the light of the fact that opposite parties being developers doing real estate business and on their own undertaking very huge commercial projects utilizing the amounts paid by the gullible consumers for its business and that the complainant all through waiting for refund of the amount or registration of plots for a period of more than 8 years is undoubtedly entitled to compensation. All through the complainant had suffered mental agony and the appellant successfully dragged on the matter for a period of more than 8 years. As the plot of the complainant has already been registered in favour of third party, only two options left to the complainant either to opt for alternative plot of her choice of the same extent of land or for refund of the amount paid by her with interest and compensation. But the complainant had chosen refund of the amount paid by her for the reason that there were no developments in the said venture. Therefore, the District Forum had rightly ordered for refund of the amount with interest, compensation and costs.
16. The opposite parties contended that the District forum granted high rate of interest @ 9% per annum and compensation of Rs.1,00,000/- but in our view it is very reasonable due to the fact that the Hon’ble Supreme Court in Brij Pal Sharma Vs. Ghaziabad Development Authority reported in III (2005) CPJ 43 (SC) where it opined that grant of interest @ 18% p.a., by way of damages and compensation is justified. Their lordship referring to an earlier decision in Ghaziabad Development Authority Vs. Balbir Singh reported in II (2004) CPJ 12 held by stating that “ in our view, irrespective of whether there was genuine reason to cancel or not, the monies must be returned with interest at the rate of 18%. We say so because it is clear that even if the body has not already floated another scheme on the same land it is clear that the body is going to derive great profit from the land and therefore compensating the allottee with interest @ 18% p.a. is just and fair.” Therefore as per the above judgment of the Supreme Court the complainant is undoubtedly entitled to the interest of 18% but he had not preferred any appeal for the enhancement of the interest rate. Therefore the contention of the opposite parties that the rate of interest of 9% is high is not sustainable in view of the above judgments of the Supreme Court
17. Even when the State Commission has reduced the interest from 18% to 12% the Supreme Court in Haryana Urban Development Authority Vs. Soma Devi reported in 1(2005) CPJ 11 (SC) set-aside the finding and awarded interest @ 18% p.a. When consistently the Supreme Court has been awarding interest @ 18% p.a., in cases where the dealings pertain to real estates the awarding of interest by the District Forum @ 9% is very reasonable.
18. Having regard to the facts and circumstances, discussed above we are of the view that the complainant is entitled to refund of the amount of Rs.5,00,000/- with interest. Awarding of interest at 9% p.a. on the said amount, by the District Forum is quite reasonable and compensation amount awarded by the District Forum, in the given circumstances, is also reasonable. Consequently, we do not find any irregularity or illegality in the impugned order of the District Forum to interfere with it and as such the point no.9 supra is answered accordingly.
In the result the appeal is dismissed confirming the order of the District Forum-III in C.C.No.553 of 2012 dated 25.03.2015. There shall be no order as to costs.
PRESIDENT MEMBER
26.04.2018
