Full Judgment
Aggrieved by the order in C.C.No.2/2009 on the file of District Forum-II, Hyderabad the complainants preferred this appeal.
The brief facts as set out in the complaint are that the complainants joined as members in the venture of opposite parties i.e. âGold Coast Siliconâ at Malkapur Village, Choutuppal Mandal, Nalgonda District. The complainants submitted that the opposite parties represented that they would provide swimming pool, BT roads, running water pipe lines, sewerage lines, overhead tank, barbed wire fencing to public places, under ground electrical cabling, tiles paved foot paths, street lighting, foot path with curbing stones, avenue plantation, fully developed parks etc. and also offered various prizes and free Membership in Darling Cave Club. The complainants submitted that the opposite parties offered payment of sale consideration in instalment basis and fixed the plot cost admeasuring 200 sq. yds. @ Rs.2,200/- totalling to Rs.5,28,000/-. The complainants submit that as per the terms of the scheme, each member has to pay 24 EMIs @ 19,250/- per month, enrolment amount of Rs.5,000/- admission amount of Rs.250/-, reservation amount of Rs.61,000/- totalling to Rs.5,28,250/-. The complainants submit that they were allotted pass book Nos.7213, 7214, 7215 and 7216 and allotted plot Nos.9302, 9397, 3519 and 3519 respectively and inspite of paying substantial amounts and lapse of the scheme period, there is no proper development in the venture but the opposite parties were calling upon the complainants to pay the instalment amounts without proportionate progress in the venture. The complainants submit that on 29-2-2007 they visited opposite party No.1 and complained about the non development of the venture and non approval of HUDA, opposite party No.2 informed in writing that they have received DTCP approval and started registration process and will complete the same in April and do registrations in May, 2008 but there was no progress. The complainants submitted that on 13-7-2007, they gave joint representation demanding the opposite parties to expedite the development but there was no progress and on 17-9-2007 they gave another representation for cancellation of the plots and refund the amounts with interest being disgusted with delay in the development and failure to obtain the approvals from HUDA and there was no response. Therefore on 29-7-2007 they sent another representation to opposite parties either to register the plots by receiving balance amounts or refund the amount with interest at 18% p.a. The complainants submit that so far they have paid Rs.4,05,626/-, Rs.3,93,642/-, Rs.4,16,208/- and Rs.4,17,810/- respectively to opposite parties and are ready and willing to pay the balance amounts and get the plots registered in their favour but opposite parties failed to obtain approval to the said venture and also failed to develop the venture. The complainants also submitted that the opposite parties have not provided OH tanks, Roads, drainage lines, electricity, parks etc. and have not even executed individual agreements and thereby they submitted another joint representation demanding the opposite parties for refund of the amount within a week and though opposite party No.2 acknowledged the same, he did not choose to give any reply. Therefore the complainants got issued a legal notice on 29-10-2008 for which the opposite parties replied on 8-11-2008 stating that they got approval from DTCP and started registration of plots and all the plots are demarcated and development works also completed. The complainants submitted that after receipt of the reply, they visited their respective plots but there is no development in the said area i.e. demarcation stones are not laid, electrical lines, OH tanks etc. are not provided and the complainants submitted that the opposite parties failed to develop the venture within the time specified and failed to get approval which is clear deficiency in service and unfair trade practice. Hence the complaint for a direction to the opposite parties to refund Rs.4,05,626/-, Rs.3,93,642/-, Rs.4,16,208/- and Rs.4,17,810/- respectively to the complainants along with interest at 18% p.a. from the respective dates of payment together with compensation of Rs.50,000/- to each of the complainants and costs of Rs.5,000/- to each of the complainants.
Opposite parties 1 and 2 filed written version resisting the complaint. They submitted that the complainants have not paid the instalments regularly and still they are due in payment of amounts. Opposite parties submitted that the complainants after satisfying and accepting the terms and conditions, paid an amount of Rs.66,250/- for each plot on 8-10-2006 which includes the enrolment fee of Rs.5,000/-, admission fee of Rs.250/- and plot reservation amount of Rs.61,000/-. Opposite parties submitted that admittedly the complainants became defaulters from the month of April, 2008 and as such they lost their rights over plots they booked and it is left to them if they want to continue under the said scheme they should pay the dues and penalty amounts and then they will get rights to select new plots in place of previous ones out of existing vacant plots as per the terms and conditions. They admitted that a notice was given to them and they issued a reply informing them to pay the balance amount and get ready for registration but inspite of the same, the complainants have deliberately not paid the balance amount till today. They denied the allegation that they have not taken DTCP approval and submitted that the same was obtained. Opposite parties submitted that the complainants have not paid the amounts as per payment schedule and the payment schedule is given as under:
Payment schedule:
A member shall pay Rs.5,28,000/- in 24 EMIs for plot admeasuring 240 sq yds. Plots will be allotted strictly on payment of Rs.66,250/- (enrolment amount Rs.5,000/- + Admission Fee of Rs.250/- + Plot Reservation amount of Rs.61,000/-) and balance in 24 EMIs @ 19,250/- p.m. A member can enter into an agreement by paying an Enrollment of Rs.5,000/- + Reservation amount Rs.61,000/- + agreement amount Rs.1,99,000/- + Admission fee of Rs.250/- + Agreement fees Rs.250/- as totalling Rs.2,04,500/- and balance in 24 EMIs Rs.13,500/- per month.
12. If a member reserves a plot and becomes defaulter in payments, the company has the right to cancel his plot allotment without any notice. If he regularize the payment later, he has to select another plot from the available vacancies.
13. If any member seeks to cancel his membership, he will not be allowed during the scheme period and it will be done according to the companys rules and regulations.
15. All the developments will be completed only by the end of the scheme.
17. Penal charges of Rs.2,000/- per month will have to be paid for each over due instalment. If the instalments are not paid for two months in succession, management reserves the right to cancel the membership without any prior notice.
21. Registration of plots will be done after getting layout approval.
Opposite parties further submit that as per the terms and conditions of payment schedule, they have clearly informed the complainants that the registration of plots will be done after getting layout approval and accordingly they have obtained layout approval and are ready for registering the plots and submitted that the complainants are not entitled for any of the reliefs claimed and prayed for dismissal of the complaint with costs.
Based on the evidence adduced i.e. Exs.A1 to A12 and B1 to B11 and the pleadings put forward, the District Forum dismissed the complaint.
Aggrieved by the said order, the complainants preferred this appeal.
Exs.A13 to A20 are marked on behalf of appellants and B12 to B20 are marked on behalf of respondents as additional evidence.
Written arguments of respondents filed.
The facts not in dispute are that the complainants 1 to 4 joined the scheme floated by the opposite parties and Exs.A9 to A12 evidence the pass books issued to the complainants by the opposite parties for joining as Members in the scheme of âGold Coastâ. The plot cost admeasuring 240 sq. yds. @ Rs.2200/- totalled to Rs.5,28,000/- and each member had to pay 24 EMIs at Rs.19,250/- apart from enrolment and admission amounts of Rs.5,250/-. It is also not in dispute that the opposite parties were allotted plot Nos. 9302, 9297 and 3519 to the complainants respectively. It is the complainants case that there is no proper development in the venture and there is no approval of HUDA. On 13-7-2007 the complainants submitted a joint representation evidenced under Ex.A4 seeking reasons for delay in registration. On 17-9-2007 evidenced under Ex.A5, the complainants addressed a letter to the opposite parties to cancel the allotment and refund their amounts as there was no approval from HUDA. Exs.A6 and A7 are the letters dated 27-9-2007 and 29-10-2008 seeking for refund of the amounts. The complainants on 29-10-2008 got issued a legal notice evidenced under Ex.A7 for which the opposite parties replied vide Ex.A8 on 08-11-2008 stating that they got approval from DTCP and are registering the plots.
The respondents/opposite parties filed their written arguments stating that the complainants have become defaulters from the month of April, 2008 and the complainants only after satisfying themselves about the venture paid enrolment and admission fees and plots were already allotted. The terms and conditions entered into between the parties prevail and the complainants have to pay Rs.5,50,699/- along with delayed charges of Rs.14,000/-(7 EMIs) penal charges of Rs.2,000/- per month will have to be paid for each over due instalment. Conditions 12, 13, 15 and 21 read as follows:
12. If a member reserves a plot and becomes default in payments, the company has the right to cancel his plot allotment without any notice. If he regularize the payment later, he has to select another plot from the available vacancies.
13. If any member seeks to cancel his membership, he will not be allowed during the scheme period and it will be done according to the companys rules and regulations.
15. All the developments will be completed only by the end of the scheme.
21. Registration of plots will be completed only by the end of the scheme.
The respondents contend that as clause 15 suggests that all development will be completed only by the end of the scheme and the scheme would end only on 09-10-2008 and also as per clause 13 if any member seeking to cancel his membership, will not be allowed during the scheme period and it will be done only according to company rules and regulations, the complainants have prematurely approached the District Forum.
When the complainants approached the opposite parties stating that there was no development, the respondents filed the layout approval from DTCP and the resolution copy of the Panchayat and submit that Rs.18,98,043/- was deposited through Government Challan in favour of the Gram panchayat for lay out approval and the same has been filed vide Exs.B12 to B16. The respondents also filed sale deeds of third parties vide Exs.B17 to B20 by way of additional evidence. The respondents also requested the HMDA authorities to extend time and submit that the complainants have stopped payments in the year 2008 itself and still they are bearing the expenditure and developing the venture and the complainants are bound by the terms and conditions and therefore they are not entitled for refund of the amounts. It is the complainants case that without final approval, the opposite parties were selling the plots and has filed Exs.A18 dated 31-1-2009 which is a letter addressed by the opposite parties to the Commissioner, HMDA seeking for extension of time upto 31-3-2009 in payment of process and other fees with respect to the development plan and proposed layout. Ex.A19 is dated 18-5-2012 which is once again a letter written by opposite parties to HMDA seeking extension of time to complete the development works and for payment of the charges towards revalidation of the layout. Ex.A20 is dated 02-1-2009 issued by HMDA to the opposite parties asking them to pay Rs.1,42,41,610/- by 01-2-2009 which evidence that even by 01-2-2009, the opposite parties did not get the final approval. We rely on the judgement of the Apex court in M/S NARNE CONSTRUCTIONS P. LTD., v. UNION OF INDIA and OTHERS reported in CDJ 2012 SC 370 wherein they stated that selling of plots with an assurance of development of infrastructure/amenities, layout, approvals with a âservice and therefore selling the same without proper approvals and development, amounts to deficiency in service.
Since the development works have not been completed even as on the date of filing of the complaint and the approvals have not been got, we are of the considered view that there is deficiency in service on behalf of the opposite parties in selling the plots without obtaining the necessary approvals and developments. Exs.A18 to A20 filed by the complainants evidence that even by 01-2-2009, the opposite parties were seeking for enhancement of time to pay the charges for layout approvals. Keeping in view the aforementioned reasons, we find force in the contention of the complainants that they have lost confidence in the venture and want their amounts refunded. We note that the observation of the District Forum that the complaint is premature cannot be sustained at this stage and we are also of the considered view that there is deficiency in service on behalf of the opposite parties as they are selling the plots without proper approvals and the terms and conditions state that all development will be completed by the end of the scheme was also not adhered to and therefore we allow this appeal and set aside the order of the District Forum and consequently the complaint is allowed in part directing the opposite parties to refund the amounts paid by the complainants together with interest at 9% p.a. from the date of filing of the complaint till the date of realization together with costs of Rs.3,000/-.
In the result this appeal is allowed and the order of the District Forum is set aside and consequently the complaint is allowed in part directing the opposite parties to refund the amounts paid by the complainants together with interest at 9% p.a. from the date of filing of the complaint till the date of realization together with costs of Rs.3,000/- to be paid within four weeks from the date of receipt of this order.