Oral Order: (Sri. R. Lakshminarasimha Rao, Honble Member)
1. The complainant filed the complaint under Section 17 of the Consumer Protection Act, complaining deficiency in service against the opposite party and seeking direction to the opposite party to register the plots and refund the excess amounts paid by the complainant along with compensation and costs.
2. The complainant joined as a member in the scheme, âCentral Park Phase-IIIâ launched by the opposite party company. The opposite party company allotted him plot no.465 admeasuring 300 sq.yards and the respondent paid a sum of `2,50,000/- in the month of February 2002 and agreed to pay an amount of `3,000/- per month. The opposite party informed the complainant that for Rolling Meadows they can get the approval of layout and it would effect registration of plot as soon as she makes full payment. The complainant agreed to purchase four plots No.160, 161, 162 and 163 admeasuring 300 sq.yards each out of which one plot was in lieu of plot no.465 of previous venture.
3. The opposite party initially allotted plot numbers 160, 161 offered plot no.94 and 99 in the same venture. The complainant got issued notice dated 10.3.2004 to the opposite party for which the opposite party replied stating that they are ready to register two plots and to refund the excess amount paid by her. The complainant addressed letter dated 27.7.2004 confirming the retention of two plots bearing No.162 and 163 and the opposite party in its reply dated 4.9.2004 showed the payment made by her as `14,70,000/- and the balance of `2,03,100/- showing nil balance towards development and registration charges.
4. The opposite party through its letter 21.1.2005 demanded the complainant for payment of `84,100/- in response to which the complainant paid `79,100/- through cheque. Subsequently, the opposite party through its letter dated 19.12.2006 demanded additional development charges and registration charges of `89,000/-. The representative of the complainant went to the office of the opposite party and the opposite party again demanded further amount of `3,60,000/- and the complainant made the same to the opposite party.
5. The opposite party demanded for an amount of `3,86,000/- towards registration charges and `4,41,000/- towards caution deposit and promised to register the plots by 15.4.2007. The complainant believing the words of the opposite party paid `3,86,000/- and Rs.4,41,000/- through pay order dated 7.4.2007. The opposite party issued receipts showing the total payment made towards plot nos 162 and 163 as `25,32,000/- and clarified that further there was no balance payable by the complainant.
6. The opposite party addressed letter dated 8.5.2007 demanding the complainant to make the payment for 88 sq.yards. The opposite party instead of registering the plots as per agreed rate started demanding additional development charges. The opposite party through its letters dated 14.6.2007 and 17.7.2007 asked the complainant to get registered only one out of two plots. The opposite party finally vide its letter dated 24.11.2007 cancelled the allotment of plot. The complainant got issued notices which were received by the opposite party on 1.12.2007 and 29.1.2008. The opposite party through its letter 23.5.2008 demanded for an amount of `9,80,000/- towards cost of extra land of 10 sq.yards along with other incidental charges. The complainant got issued another notice dated 24.5.2008 to the opposite party and the opposite party received the notice on 20.5.2008 and failed to register the plots.
7. The opposite party contended that this Commission has no jurisdiction to entertain the complaint as the relief sought for is one in the nature of specific relief/specific performance. The powers for granting the equitable relief of either specific relief or specific performance or contractual obligations are conferred on the civil court. The complaint is not a consumer as defined under Sec.2(1)(d) of C.P.Act. The opposite party does not render any services to the complainant for consideration and if at all the service is rendered by the opposite party, it is without any consideration or remuneration. The amounts paid by the complainant are towards sale consideration of the plots, development charges and registration charges which are agreed paid by the complainant. There was no question of deficiency of service.
8. The complainant is not a consumer and the opposite party is not a service provider. The complainant having agreed to pay the additional development charges as well as outstanding dues has resorted to file the complaint only to have wrongful gain. The complainant has all along permitted the opposite party to develop the land with all necessary amenities i.e., drainage, gardens, parks, electricity, roads etc., by investing huge amounts and having failed to discharge her contractual obligation to pay the development charges and registration fee and stamp duty.
9. As per the terms and conditions of application for initial allotment, it was irrevocable agreed that the complainant would pay the development charges as and when called for. The registration of the lands will be done by the opposite party to the members/allottees who paid the total cost of the plot and also the development charges as agreed from time to time prevailed as on the date of registration and as revised by the government of A.P. The developmental charges per square yard are subject to the clearance charges, fee that are payable to the government as well as the escalation of prices of the material etc.
10. The complainant has not shown interest to pay the development charges to the opposite party and there was no response to the letters, reminders sent by the opposite party to the complainant. The complainant after paying the cost of the plot, she has not paid any development charges and other related charges pertaining to the plots. The opposite party is always ready to register the plot on the name of the complainant subject to payment of outstanding dues and registration charges and stamp duty.
11. The complainant filed her affidavit and the documents, Exs.A1 to A30. On behalf of the opposite party Col.(Retd.) N.Ranga Rao, the Chairman and Managing Director filed his affidavit and the documents, Exs.B1 to B24.
12. The points for consideration are:
1. Whether the complainant is a consumer and the dispute is a consumer dispute in terms of Sec.2(1)(d) and 2(1)(e) of C.P.Act?
2. Whether there is deficiency in service on the part of the opposite party?
3. To what relief?
13. POINT NO.1:Â Â The complainant obtained membership for purchase of plot in the venture, Central Park Phase-III floated by the opposite party. There has been no dispute in regard to payment made by the complainant and the opposite party has demanded certain amount which the complainant has stated that she is not liable to pay. The liability of the opposite party to provide amenities and develop the plot under sale to the complainant is a consumer dispute as held by the Supreme Court in âLucknow Development Authority Vs M.K.Guptaâ and recently the High Court of Andhra Pradesh in M/s Narne Constructions Pvt Ltd., Vs the Union of India and othersâ in W.P.Nos.28246 of 2009 and batch decided on 13.08.2010.
14. The opposite party has challenged the aspect of the development of plots and sale of them by the developer to the intending purchasers whether amenable to the jurisdiction of the consumer forum. The High Court referring to the law laid in Lucknow Development Authority, held the purchaser of the plots be a consumer. Aggrieved by the order of the High Court the opposite party filed S.L.P. (C) Nos.3499-3517 of 2011 which was dismissed by the Supreme Court. The Apex Court confirming the order of the High Court in the following paras:
7. In the light of the above pronouncement of this Court the High Court was perfectly justified in holding that the activities of the appellant- company in the present case involving offer of plots for sale to its customers/members with an assurance of development of infrastructure/amenities, lay-out approvals etc. was a "service" within the meaning of clause (o) of Section 2(1) of the Act and would, therefore, be amenable to the jurisdiction of the for a established under the statute.
Having regard to the nature of the transaction between the appellant- company and its customers which involved much more than a simple transfer of a piece of immovable property it is clear that the same constituted "service" within the meaning of the Act. It was not a case where the appellant-company was selling the given property with all advantages and/or disadvantages on "as is where is" basis, as was the position in U.T. Chandigarh Administration and Anr. v. Amarjeet Singh and Ors. (2009) 4 SCC 660.
It is a case where a clear cut assurance was made to the purchasers as to the nature and the extent of development that would be carried out by the appellant-company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchasers for valuable consideration. To the extent the transfer of the site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant-company had indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers like the respondents.
15. Thus, the service rendered by the opposite party in the matter of sale of the plots in question for the purpose of the complainant to construct a house thereon is service and the complainant a consumer within the meaning of Sec.2(1)(o) and 2(1)(d) of the C.P.Act and the point is answered in favour of the complainant.
16. POINT NO.2Â Â Â The opposite party allotted membership No.30418 in favour of the complainant for her to purchase plot No.465 in Central Park Phase III and she made payment of `2,50,000/- in the month of February 2002. The complainant states that the opposite party informed her that the lay out for the venture would not be sanctioned in near future and thereon the complainant opted for transfer of membership from Central Park to Rolling Meadows. In lieu of the plot no.465 in Central Park, the complainant agreed to purchase four plots in Rolling Meadows, the plot Nos. being 160, 161, 162 and 163 admeasuring 300 sq.yards each and the membership allotted to her is in 94076.
17. The opposite party addressed letter dated 15.7.2003 informing the complainant that it had agreed to transfer funds from membership No.30418 of Central Park Phase III to membership NO.94076 of Rolling Meadows. In the letter it is mentioned that the amount available for transfer from membership No.30418 to membership No.94076 is `2,66,000/-. The total cost of the plots is mentioned as `27 lakhs of which the complainant paid `9,99,000/- and a sum of `2,66,000/- transferred from membership no.30418 and adjusted to the amount to be paid `17 lakhs and after adjusting the amount, the net amount payable by the complainant is mentioned as `14,34,100/-. The complainant was reminded that her membership No.30418 of Central Park Phase III was cancelled and she was given opportunity that in case she felt financial stringency, she can retain two plots and in such event the opposite party would cancel the allotment of other two plots and adjust the payment made by the complainant against the amount due towards two plots.
18. In the letter dated 5.8.2003 the opposite party has confirmed the amount payable by the complainant is `14,34,100/- and it was clarified that the amount was due after considering the plot allotment cancellation at Central Park Phase III Project and adjusting the advance paid against her membership number in rolling meadows. It was clarified that the amount payable by the complainant is `14,34,100/- and not the amount of `10,25,000/- as claimed by the complainant. The complainant was informed that the plots would be registered in the month of October 2003 in favour of the members who made the due payments which included cost of the plot, registration charges, interest etc.
19. The opposite party has reviewed its earlier decision of allotting four plots admeasuring 1200 sq.yards and allotted plot nos.99, 162 and 163 and offered to allot plot no.94 in place plot no.465 with 5% discount which was offered in Central Park III project through letter dated 11.2.2004 conveyed its decision to review and allotted four plots bearing No.94, 99, 162 and 163 totally admeasuring 1160 sq.yards and cancelled the allotment of the complainant in respect of plot no.465 in Central Park Phase III. The complainant was requested to pay `9,80,100/- to clear the outstanding dues towards cost of three plots.
20. Subsequently, there has been much correspondence made between the parties in regard to the plot nos. so also the number of plots and adjustment of the amount so paid by the complainant. The complainant has got issued notice dated 22.6.2004 demanding the opposite party to execute sale deed in respect of plot no.160, 161, 162 and 163. In the notice it is mentioned that the opposite party had received a total sum of `12,71,000/- from the complainant and informed the complainant that the sale deed would be executed provided the complainant has paid the balance amount.
21. The letter dated 10.3.2004 is reply to the notice of the complainant. The opposite party denied that the complainant was shifted from Central Park Phase III to Rolling Meadows and it is stated that upon the request of the complainant her membership was shifted to Rolling Meadows. The opposite party expressed its readiness to execute sale deed in favour of the complainant in respect of two plots. Para 4 and 5 of the reply are relevant to determine the number of plots allotted in favour of the complainant and the amount whether the complainant is due. Paras 4 and 5 of the letter read as under:
In reply to para no.4 of your notice it is to state that your client has joined as members of the said project in lumpsum mode of payments scheme (down payment). In fact it is your client who have failed to abide by the contract terms, having failed to pay the balance of sale consideration, within the stipulated time. IN spite of the company reserving its right to cancel the plot allotted to your client for not complying with terms and conditions of the allotment, in view of its customer oriented ethics and value systems, have allotted two plots chosen by your clients, for which the total consideration was paid and statement of account was sent with details of outstanding and sought for their confirmation and acceptance. Instead your client chose to send this notice. Further it is stated that the rate charged is the rate accepted by you clients vide their letter dated 28.7.003.
In reply to para no.5 of the said notice it is to state that the company is ready and willing to perform its part of contract to execute and register two plots allotted to your clients for which the entire sale consideration is paid by your clients and received by the companyâ¦â¦.â
22. Â Thus the opposite party has admitted the payment of entire sale consideration for two plots and agreed to execute sale deed for the two plots thereof. However, in the subsequent letter dated 27.7.2004 the complainant has requested the opposite party to deduct cost of the plot no.162 from the advance of `9,99,900/- and return the balance amount as plot no.163 was allotted in lieu of plot no.465 Central Park Phase III. The opposite party through its letter dated 4.9.2004 has approved allotment of plot nos.162 and 163 admeasuring 600 sq.yards and cancellation of allotment of plot at Central Park Phase III as also adjustment of the amount paid for plot at Central Park and requested the complainant to pay balance amount of `2,03,100/-. Total cost of two plots is shown as `14,70,000/- which includes the cost of the plot `13,50,000/-, `30,000/- towards development charges, `90,000/- towards registration charges.
23. A sum of `12,65,900/- is shown as the amount paid. The balance amount `84,100/- towards cost of the plot, development charges of `30,000/- and registration charges of `90,000/- which comes to `2,03,100/- he was required to be paid by the complainant and thereafter the opposite party had applied standard deduction and requested through letter dated 21.1.2005 the complainant to pay a sum of `84,100/- excluding registration charges. The opposite party issued letter dated 19.12.2006 demanding for the amount of `89,000/- which included additional development charges of `60,000/-, registration charges of Rs.24,000/- and balance cost of the plot `5,000/-. The complainant has paid on 1.2.2007 a sum of `2,40,000/- and also `1,20,000/- acknowledging which the opposite party issued provisional receipt for `2,4,000/- and `1,20,000/-. Thereafter the complainant has also paid a sum of `3,86,000/- on 7.4.2007 through payment order drawn on the Jammu and Kashmir Bank.
24. The statement of account as on 3.4.2007 would show the amount due from the complainant, `5,000/- towards cost of the plot, `21,000/- towards additional development charges, `36,000/- towards registration charges a total sum of `3,86,000/-and thereafter the complainant was issued statement of accounts on 11.4.2007 claiming `4,41,000/- and on the same day another copy of statement of account was issued showing nil balance. In other words the opposite party has stated that the complainant had paid the entire amount due.
25. As the things stood so, the opposite party addressed another letter dated 8.5.2007 informing the complainant that dimensions of the final layout were not released by HUDA and it was observed that the plot no.163 which was provisionally allotted to the complainant was changed in its dimensions due to realignment of the layout by HUDA where by the size of the plot has increased to 388 sq.yards and total yardage of the plot nos, 162 and 163 is 688 sq.yards. In view of enhancement of the yardage of plot no.163, the complainant was offered plot no.133 which was measuring 300 sq.yards in the same rolling meadows project or in the alternative plot no.1098 admeasuring 243 sq.yards or plot no.110 measuring 280 sq.yards which adjoining plots and their total yardage is 523 sq.yards. The complainant insisted on execution of sale deed in respect of plot nos.162 and 163 and to the effect she had addressed letter on 6.6.2007 bringing it to the knowledge of the opposite party that she had paid a sum of Rs.25,000/- for 2 plots measuring 600 sq.yards.
26. The opposite party through its letter dated 14.6.2007 referring to the plots sent by the complainant on 12.6.2007 where she declined the offer of two plots bearing No.109 and 110, offer of plot no.133 in place of plot no.163 citing inability of the complainant to pay extra yardage place and in the alternative, it offered to execute sale deed for the plot no.162 and refund the amount paid by the complainant for the plot no. 163. It appears there was no response from the complainant for the offer extended by the opposite party to execute sale deed in respect of plot no.133 as an alternative plot to plot no.163, she was requested to wait for registration of the plots pending final HUDA period and ULC clearance. The complainant was advised to go for registration of the plots and pay the balance due. The complainant has responded by giving reply on 24.7.2007 reiterating he request for registration of sale deed for the plot nos.162 and 163 and informed the opposite party that from the beginning she paid the amount for 2 plots measuring 600 sq.yards.
27. As mentioned above, a lot of correspondence was made between the parties each time either changing the request made in the earlier correspondence or making fresh proposal therefor. The opposite party through its letter dated 25.10.2007 request the complainant to clear the arrears by 5.11.2007 to get the plot registered and to become eligible for ULC exemption under regularization scheme as also to become eligible for the manifold appreciation stated to have occurred in the project. On 24.11.2007 the opposite party informed the complainant as she failed to clear the dues its board of directions decided to cancel the plot allotment and initiate refund process. Thereupon the complainant has got issued notice through her advocate on 12.12.2007 and 29.1.2008 in response to which the opposite party had issued reply on 23.5.2008 bringing to the knowledge of the complainant that the complainant failed to pay the due, it had made efforts to sell plot no.163 to a new customer and it had added 10 sq.yards extra to the plots allotted to the complainant whereby she was required to pay `9,80,000/- which included additional development charges, registration charges, maintenance charges, caution deposit and cost of the plots for extra yardage.
28. The complainant has not agreed for purchase of plot no.133 and she insisted on the opposite party to execute sale deed in respect of plot no.162 and 163 to the effect, the complainant has got issued notice through her advocate on 24.5.2008 and the opposite party respondent by addressing letter dated 27.5.2008 informing the complainant that HUDA during its inspection for approval of final layout, had suggested further widening of roads with curb stones, improved pavements, development of parks with greenery and HUDA re-inspected the layout during 2001 and suggested for more improvements like rain soakage trenches on either side of the roads, rain soakage pits in open areas and parks which were stated to have been carried out by the opposite party and thereafter HUDA asked the opposite party for setting up of more transformers. Further, it was brought to the notice of the complainant that the opposite party was served with notice from Special Officer, ULC Hyderabad during 2007 and as the government repelled ULC, resumption orders were issued. Referring the activities undertaken by it, the opposite party requested the complainant to pay additional developmental charges.
29. Thus the correspondence made by the complainant and the opposite party, particularly the opposite party it becomes evident that the opposite party at the first instance allotted plot no.465 in Central Park Phase III and subsequently cancelled the allotment and re-allotted membership to the complainant in Rolling Meadows as also allotted plot nos.160, 161, 162 and 163 which were later changed and the opposite party allotted the plots no.94, 99, 162 and 163. Subsequently, as the complainant failed to pay the entire sale consideration for the four plots, the opposite party had cancelled the allotment in respect of two plots and permitted the complainant to retain the plot nos.162 and 163 as also promised the complainant that it would refund the excess amount paid by the complainant.
30. The complainant retained plot nos.162 and 163 and relinquished her right over the other plots i.e., 94 and 99. In the course of the realignment of the plots, the dimensions of plot no.163 was increased to 388 sq.yards and the opposite party requested the complainant to pay for extra yardage of 88 sq.yards and on her failure to pay the amount the opposite party had given option of allotting plot no.133 admeasuring 300 sq.yards. At this juncture the opposite party demanded amount for 10 sqa.yards as extra yardage which the complainant has declined to pay on the premise that the yardage she was originally offered was 300 sq.yards of each plot as also she paid the amount in terms of the original allotment.
31. The opposite party has collected the full amount offering each plot admeasuring 300 sq.yards. As such the opposite party cannot turn round and say it is entitled to demand for extra yardage of 10 yards in respect of plot no.133. Insofar plot no.163 is concerned, the complainant has insisted on the opposite party to execute sale deed and the opposite party refused for doing the same on the premise that the complainant failed to pay for 88 extra sq.yards. In fact the opposite party through its correspondence has informed the complainant if she does not pay the amount for extra yardage it would sell the plot no.163 to another subscriber and that subscriber had also agreed to purchase the plot. The complainant as such cannot seek for registration of plot no.163. As regards the plot no.162 there has been no dispute in whatsoever manner from the side of the opposite party. As aforesaid, the opposite party has collected the amount towards development charges and registration charges as also cost of the plot nos.133 and 162 and it cannot seek for any further amount from the complainant.
32. In the circumstances, mentioned above, we are of the view that the opposite party is liable to execute sale deed in respect plot nos.133 and 162 in Rolling Meadows and refund the excess amount received as advance towards the cost of Plot no.160 and 161. The opposite party has also admitted through its letter dated 10.3.2004 that it would register two plots in the name of the complainant. The opposite party by its attitude subjected the complainant to mental tension as also deprived the complainant of the enjoyment of her money and the plots.
33. Knowingly the opposite party offered the complainant at the first instance the plot no.465 in Central Park Phase III that there was no likelihood of HUDA sanctioning layout and shifted the complainant from her membership to Rolling Meadows and thereafter it had gone one changing the plot numbers as demanding extra amounts on one premise or the other. As such the complainant is held entitled to compensation which we quantify at `50,000/-. The amount is quantified taking into consideration of payment of the amount made by the complainant in respect of two plots and the balance amount being permitted to be adjusted towards the cost of the two plots i.e., plot nos.133 and 162. The compensation as such is awarded taking into consideration several factors such as the adjustment of advance amount paid by the complainant, frequent demand for the amount by the opposite party as also constant shift in the plot numbers and the measurement of the plots etc.
34. In the result the complaint is allowed directing the opposite party to execute sale deeds in respect of plots nos.133 and 162 in Rolling Meadows venture and pay a sum of `50,000/- towards compensation and costs `5,000/- . Time for compliance four weeks.