(By Smt. P. Kasthuri, Honble Member on behalf of the bench) This complaint is filed on behalf of the complainant under Section 12 of C.P. Act of 1986 praying this Forum to direct the opposite parties No.1 to 3 jointly and severally to grant the following reliefs:
1. to pay a sum of Rs.9,12,500/- towards refund of sale consideration
2. to pay a sum of Rs.8,54,725/- towards interest @ 18%P.A from 04-01-2008 till the date of filing the complaint on total sale consideration amount of Rs.9,12,500/-
3. to pay future interest @ 18% P.A on Rs.9,12,500 from the date of filing the complaint till the date of realization
4. to pay a sum of Rs.1,50,000/- towards damages for mental agony and deficiency of service
5. to pay costs of Rs.25,000/- towards legal expenses for this complaint
1. The case of the complainant in brief:- It is the contention of the complainant that the opposite party No.1 company approached the complainant representing that opposite party No.1 company is an absolute owner and possessor of the land in Survey No.441, 441/P, 443, 447, 449, 457, 458, 491/P, 492/P, 493, 494/P, 495, 496, 497, 498, 498/499, 500/2,511& 511/P of Turkapally, Revenue Village, Shameerpet Mandal, R.R.District and that the opposite party No.1 company got developed the said lands into residential plots in the name of Suchirs Koral Reef by obtaining lay out duly approved from the office of the HMDA and convinced the complainant to purchase the plot in the aforesaid project/venture and also informed about the various schemes laid down by the opposite party, for purchasing the residential plots by way outright sale and so also by way of sale under installments, etc.,. Further it also represented that if the prospective purchasers intends to purchase specific plot according to his/her choice, the purchasers shall have to pay excess amount of Rs.1,00,000/- towards plot reservation charges in addition to the total sale consideration , enrollment amount and admission fees etc. The complainant in good faith having believed the representations of the opposite parties and also being very particular about the Vasthu decided to purchase a plot according to her choice and selected plot No.48 in the above said venture and paid a total sale consideration of Rs.9,12,500/- i.e, Rs.8,02,000towards the cost of the plot and Rs.500/- towards admission fee, Rs.10,000/- towards enrollment and Rs.1,00,000/- towards reservation of the plot of her choice. The opposite parties after receipt of total sale consideration of Rs.9,12,500/- except for an allotting membership pass book No.358 in Koral Reef venture infavour of the complainant, the opposite party has not made a single effort to complete the sale transaction by handing over the physical possession of schedule property by completing registration of sale deed etc. Further the complainant approached the opposite parties several times and moved from pillar to post and also sent registered letters dated 29-08-2009 and 20/10/2010 demanding the opposite parties to register the sale deed and handover the possession of the plot no.48 or in alternative to pay the total sum of Rs.9,12,500/- paid towards the sale consideration of the plot. But, to the surprise of the complainant, the opposite parties came forward with revised plan stating that the earlier plan showed to the complainant at the time of the booking of the plot was cancelled/changed and new revised approved lay out is issued by the HMDA and that on perusal of the new approved layout the complainant came to know that the plot No.48 allotted to the complainant was not available or existing in the new approved layout. The complainant having paid the total sale consideration in addition to the plot reservation charges of Rs.1,00,000/- for allotment of specific/particular plot under the specific area from the proposed layout, it is the duty and responsibility of the opposite parties to see that the specific plot as agreed by them is sold to the complainant by handling over the schedule property as shown under the proposed plan. But the surprise of the complainant, the plot shown to the complainant is not available in the revised plan and the same is falling under the neighboring land. Hence the opposite parties tried to sell the plot to the complainant which does not belonging to them and without holding title over the property, they also collected rs.1,00,000/- towards plot reservation which amounts unfair trade practice and deficiency in service on the part of the opposite parties. Hence, the complaint.
2. Version of the opposite parties in brief: the contention of the opposite parties is that the complainant has after having detailed discussions and enquiry and upon satisfying herself in all respect has accepted to the terms and conditions of the venture and agreed to enter as a member of the scheme and booked a plot in her name admeasuring 250 Sq.yards and paid a total sale consideration of Rs.9,12,500/-. The opposite parties in its written version has pointed out to the clause no.11 of the terms and conditions. Clause No.11 clearly speaks that the management reserves right to alter the layout partly or fully and accordingly the final plot will be allotted. In view of the above mentioned terms and conditions, complainant cannot claim as a matter of right to register the very same tentative plot No.48 chosen by the complainant. Since alteration in the approved layout will have to be carried out at the behest of HMDA, the opposite parties are ready to allot better plot then selected one in all aspects and willing to register the same in favour of the complainant at the earliest on payment of registration charges b y the complainant. The delay in registration of the plot is being caused only because of the complainant and not due to any delay on the part of the opposite parties. The complainant refused to get registration of the plot in a favour and insisted the opposite party the same plot booked tentatively at the time of booking. The opposite parties in its reply notice also very clearly mentioned and requested the complainant to come forward for registration of the plot from the available plots but, instead of the complainant coming forward for registration of the plot she filed a complaint herein with false frivolous allegations which are not true and correct and prayed this Forum for refund of the amount along with interest on interest which is beyond the pecuniary jurisdiction of this Forum. Hence there is no deficiency in service on the part of the opposite parties and prayed to dismiss the complaint.
3. In the course of enquiry, the complainant has filed evidence affidavit reiterating the averments of the complaint and got marked Ex A1to A14
4. Opposite parties filed evidence affidavit
5. After closure of the evidence, both parties had filed written arguments. Points for consideration are:
1. Whether there was any deficiency in service on the part of the opposite parties as complained in the complaint?
2. Whether the complainant is entitled the any reliefs as prayed for?
3. To what relief? Points No.1&2 :- Admittedly, the complainant has paid a sum of Rs.9,12,500/- to the opposite parties for the purchase of the plot bearing No.48 admeasuring 240 Sq.yards in the venture/project of Suchirs Koral Reef in Survey No.441, 441/P, 443, 447, 449, 457, 458, 491/P, 492/P, 493, 494/P, 495, 496, 497, 498, 498/499, 500/2,511& 511/P of Turkapally, Revenue Village, Shameerpet Mandal, R.R.District as per the layout shown to the complainant. Out of the said amount of Rs.9,12,500/- paid by the complainant, a sum of Rs.1,00,000/- was paid to the opposite parties for reserving the plot No.48 as per the choice of the complainant. The remaining amount of Rs.8,02,000/- was paid towards the cost of the plot and a sum a of Rs.10,000/- was paid towards enrollment and a sum of Rs.500/- was paid towards admission fee. The contention of the complainant is that the plot no.48 which was allotted to her is not available for occupation and possession as HMDA as revised the layout and released the final layout. As per the final layout issued by the HMDA, the plot which was proposed to be allotted to the complainant is not available. It is the further contended by the complainant that she paid an additional amount of Rs.1,00,000/- in addition to the actual cost of the plot and reserved the plot as she was very much interested in purchasing the plot in accordance with Vasthu. In view of the non-availability of the plot for which, the complainant had paid total consideration of Rs.9,12,500/-, she approached this Forum seeking the relief for refund of the entire sale consideration of Rs.9,12,500/- paid towards the purchase of the plot along with interest. The main objection of the opposite parties is that the complaint of the complainant is barred by limitation as the complainant paid the amount towards the sale consideration in the year 2008 and the present complaint is filed on 22-03-2013. Therefore, this Forum has no jurisdiction to entertain the complaint. They further also contended that the complaint filed by the complainant is civil in nature and that the complainant has to approach the Civil Court for the necessary relief. Firstly, dealing with the preliminary objection raised by the opposite parties, in view of the total payment of the sale consideration, the limitation survives till the execution of the sale deed infavour of the complainant and that there is a continuous cause of action as per the judgment of National Commission reported in 2005 (II) CPRI (NC) in Juliet V.Quadros Vs.Mrs.Malati Kumari & others Further, the opposite parties also raised an objection that this Forum has no jurisdiction to entertain the complaint as the claim of the complainant exceeds Rs.20,00,000/- and that the complaint is not maintainable before this Forum. The relief claimed by the complainant is for the refund of the amount of Rs.9,12,500/- paid towards the purchase of the plot and also sought for the interest from the date of payment of amount till the date of filing of the complaint and further claimed an amount of Rs.1,50,000/- towards compensation and a sum of Rs.25,000/- towards costs of the complaint and also claimed future interest. The total claim of the complainant as on the date of filing of the complaint is only Rs.19,42,225/- (i.e.,Rs.9,12,500 + Rs.8,54,725 + Rs.1,50,000 + Rs.25,000/- ) and that there is no specific interest claimed in the complaint except seeking future interest. As on the date of the complaint, the claim is only Rs.19,42,225/- as such the complaint is maintainable before this Forum. With regard to the relief for the refund of the amount paid by the complainant is concerned, the opposite parties are not fair enough in collecting the total cost of the plot even before obtaining the final approved layout from HMDA. There is a duty cast on the opposite parties to obtain all such statutory clearances, permission and sanctions as applicable to complete the sale consideration. In the case on hand the opposite parties have not only collected the total cost of the plot i.e., Rs.8,02,000/- but also collected the amount of Rs.1,00,000/- towards the reservation of the plot even before obtaining the final approvals and layout. Such acts on the part of the opposite parties amounts to unfair trade practice and also amounts to deficiency in service. In view of the non-availability of the plot as agreed by the opposite parties, the complainant is entitled to receive the total amount of Rs.19,12,500/- from the opposite parties along with interest @ 9% P.A form the date of last payment i.e, 04-01-2008 (Ex.A4) till the date of realization. Points No.1&2 are answered accordingly. Point No.3: In the result, the compliant of the complainant is partly allowed directing the opposite party no.1 to 3 jointly and severally liable to refund to the complainant a sum of Rs.9,12,500/- along with interest @9% P.A. from the date of last payment i.e., 04-01-2008 (Ex.A4) till the date of realization and further to pay a sum of Rs.5,000/- towards costs. Time for compliance : 30 days from the date of receipt of this order Dictated to Steno, transcribed and typed by her, corrected and pronounced by us on this the 7th day of August, 2015. MEMBER PRESIDENT APPENDIX OF EVIDENCE Exhibits marked on behalf of the complainant: Ex.A1 is application form and allotment of plot Ex.A2is receipt No.521 for Rs.1,10,000/- dt.22-12-2007 Ex.A3 is receipt No.552, for Rs.500/- dt.22/12/2007 Ex.A4 is receipt No.597, for Rs.8,02,000/- dt.04-01-2008 Ex.A5 is statement showing particulars of plots and amounts payable Ex.A6 is letter sent by complainant dt.29-08-2009 Ex.A7 is letter sent by complainant dt.20-01-2010 Ex.A8 is regd. Postal receipt 21-01-2010 Ex.A9 is circular issued by opposite party, dt.30-09-2009 Ex.A10 is office copy of legal notice sent by complainant dt.18-6-2011 Ex.A11 is postal ack. Of legal notice dated 22-02-2011 Ex.A12 is reply notice sent by opposite party Ex.A13 is layout plan showing schedule property Ex.A14 is revised lay out plan wherein schedule property not shown Exhibits marked on behalf of the opposite parties: -Nil- MEMBER PRESIDENT
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