State Consumer Disputes Redressal CommissionMs. Suchir India Developers Pvt. Ltd., ... vs Smt. Y. Srilakshmi, Wife Of Y. Sesha Rao, ... on 17 April, 2017Cause Title/Judgement-Entry 	    	       STATE CONSUMER DISPUTES REDRESSAL FORUM  Telangana             First Appeal No. FA/342/2014  (Arisen out of Order Dated 27/08/2013 in Case No. CC/786/2011 of District Hyderabad-II)             1. Ms. Suchir India Developers Pvt. Ltd., Rep. by its C.E.O. Dr. Y. Kiran Kumar,  Office at 301, Lumbini Amrutha Chambers, Nagarjuna Circle, Road No.3, Banjara Hills, Hyderabad ...........Appellant(s)   Versus      1. Smt. Y. Srilakshmi, Wife of Y. Sesha Rao, Aged about 70 Years, Occ House wife,  R.o. Flat No.2C.604, SMR Vinay Signature, Narendra Garden, Miyapur, Cyberabad, Hyderabad ...........Respondent(s)       	    BEFORE:      HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT    HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER          For the Appellant:  For the Respondent:    Dated : 17 Apr 2017    	     Final Order / Judgement    

BEFORE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD

 

 

 

F.A.No. 342 OF 2014 AGAINST C.C.NO.786 OF 2011 DISTRICT CONSUMER FORUM HYDERABAD-II

 

 

 

 

 

Between

 

 

 

M/s Suchir India Developers Pvt Ltd.,

 

Rep. by is CEO Dr.Y.Kiran Kumar

 

Office at 301, Lumbini Amrutha Chambers

 

                                                     

 

Appellant/opposite party

 

          A N D

 

 

 

 Smt Y.Srilakshmi W/o Y.Sesha Rao

 

Agd about 70 years, Occ: Housewife

 

R/o Flat No.2C-604, SMR Vinay Signature

 

Narendra Garden, Miyapur, Cyberabad

 

Hyderabad

 

                                                                   Respodnent/complainant

 

 

 

 

 

Counsel for the Appellant                           M/s Gopi Rajesh & Associates

 

Counsel for the Respondent                        Sri GN Satyanarayana

 

 

 

QUORUM             :

 

 

 

HON'BLE SRI JUSTICE B.N.RAO, PRESIDENT

 

&

 

SRI PATIL VITHAL RAO, MEMBERMONDAY THE SEVENTEENTH DAY OF APRIL

 

TWO THOUSAND SEVENTEEN

 

 

 

 

 

Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President)

 

***

 

 

 

 

 

 

 

          This is an appeal   preferred by the opposite party against the order in C.C.No.786 of 2011 of the District Forum-II, Hyderabad dated 27.08.2013   directing the opposite parties to pay Rs1,10,000/- with interest @ 9% p.a. together with compensation of Rs.10,000/- and costs of Rs.2000/-.2.                The brief facts of the complainant as stated in the complaint are that the opposite party started venture under the name and style of Koral Reef  at Genome Valley , Turkapally Village, Shamirpet  Mandal,  Ranga Reddy District. The complainant joined the scheme on 13.01.2008 and plot no.458 was allotted to him.    The complainant paid  an  amount of Rs.1,10,000/-  to the opposite party and informed them that he was ready to get the registration of the plot by paying the balance amount as and when the opposite party provides amenities and roads at the venture.    The opposite party issued passbook bearing No.KP392 in favour of the complainant.    The complainant got issued legal notice dated 11.12.2010 to the opposite party claiming refund of the amount of Rs.1,10,000/- along with interest on the premise that the opposite party failed to develop the plot or execute sale deed and filed the complaint.3.                Opposite party resisted the case contending that the complainant is not a consumer and the complaint filed is barred by limitation.      The opposite party submitted layouts to the appropriate authority for permission and the project was named and styled as Koral Reef and after obtaining approvals of layouts the process of developmental work will be started.  The complainant has joined as a member and paid initial payment and subsequently failed to pay the instalments of the balance consideration amount to the opposite party.  As per the terms and conditions of the membership form, if a member reserves a plot and committed default in payments, the opposite party has a right to cancel his plot allotment without issuing any notice.  If he regularizes the payment later he has to select another plot from the available vacancies.  That the complainant failed to pay the instalments, his membership was cancelled.    The opposite party has obtained a tentative layout and plot allotted to the complainant could not be carved out.  The opposite party has taken all the steps to develop the project and developments can be taken after approval of final layout from the competent authority.     Hence, there was no deficiency in service and prayed for dismissal of the complaint with costs.During the course of enquiry before the District Forum, in order to prove his case, the Complainant   filed his evidence affidavit  and go Exs.A1 to A6 marked while on behalf of the opposite party, its CEO filed his evidence affidavit and got Exs.B1 to B6.The District Forum after considering the material available on record, allowed the complaint bearing CC No.210 of 2014 by orders dated 21.01.2016  granting the reliefs, as stated in paragraph No.1, supra.8.               Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective.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 undisputed facts are that the complainants4.                 The complainant filed his affidavit and the documents,ExA1 to A6 and on behalf of the opposite party its CEO has filed his affidavit and  Exs.B1 to B6.5.               The District Forum allowed the complaint directing opposite party to refund of the amount along with compensation and costs on the premise that the plot was mortgaged to HMDA and also there was no development activity in the venture and the same amounts to deficiency of service.6.                Aggrieved by the said decision the  opposite party  preferred this appeal   contending that the Dist. Forum did not appreciate either the facts or law in correct perspective.   The District Forum has no jurisdiction to entertain and decide the complaint.  The complaint is barred by limitation.   In support of the same, the opposite party cited various decisions which were mentioned in the appeal grounds.  It further relied on the judgments of this Commission wherein this Commission has directed to execute registered sale deed in respect of the plots and the same is applicable to the facts of the present case.   It is contended that  as and when it get the permission from the concerned competent authorities the developmental work would  start  till then the complainant cannot complain about non development of the project.  As the terms and conditions shall govern the whole transaction and if the opposite party acts out of the purview of the terms and conditions then only the purchaser can have a grievance.  The complainant is a defaulter of the instalments of the balance sale consideration.  Hence, the opposite party prayed to allow the appeal.7.                 Both parties have filed their respective written arguments.8.                 The point for consideration is whether the complainant is entitled to refund of the amount paid by him to the appellant?9.                 The opposite party also contended that the District Forum has no jurisdiction to entertain the complaint as land is situated in Ranga Reddy District.Section 11of the Consumer Protection Act, to the extent it is relevant for our purpose reads as under:(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction(a)           The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or;(b)           Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution, or

 

(c)           The cause of action, wholly or in part, arises.10.               Hence it is very clear that in case where part of cause of action arose the District Forum within that area also is vested with jurisdiction to entertain the complaint. Since the office of the opposite party situated at Banjara Hills, Hyderabad and the payment was made in the said office, the District Forum Hyderabad has got territorial and pecuniary jurisdiction to entertain the complaint.11.               The next contention of the opposite party is that the complaint is barred by limitation since the last payment was made in the year 2008. It is undisputed that the opposite part has collected major part of the amount   but failed to deliver possession of allotted plot and apart from it the opposite party has    issued   notice of cancellation of the plot without any date  it has failed to   insist for payment of the balance of the amount or inform him to get ready to have the plot registered. Where no time is stipulated in the brochure, so also, when time is not the essence of the contract, it cannot be said that the claim is barred by limitation. This aspect was well considered in the decisions of the Apex court reported in 2008 NC Judgments page 13 SC. (1).Bangalore Development Authority VS. Syndicate Bank, (2) Lucknow Development Authority Vs M.K. Gupta1994 (1) SCC page 243. in such circumstances, cause of action continues as has been held by the Honble National Commission in its decision reported in 2005 CPJ 499 = 2005(2) CPR page 91) in whichSec. 24-Aof Consumer Protection Act was also discussed.  In view of the above, the complaint has got toe considered as being  filed  within the period of limitation.12.              Now coming to the deficiency of service on the part of the opposite party,  it stated in its written version that after obtaining tentative layout it had allotted the plot to the complainant by receiving  an amount of Rs.1,10,000/- vide Exs.A2 to A4  on 13.01.2008  and the balance amount to be paid in installments.    After the payment, the complainant visited the site in the month of December 2009 i.e., almost two years late and found that there was no development of the plots in the said venture.  The opposite party filed Ex.B5 letter from HMDA dated 21.01.2010 which clearly shows that the opposite party obtained permission from HMDA in the month of January, 2010 till then there was no development.   Though the HMDA clearly in its letter instructed the opposite party to complete the project work within one year but it did not do so.  The opposite party also not filed any proof to show that there is development work in the said project.13.              As per the promise made by Suchir India at the time of plot booking, the complainant expected the registration to be completed immediately after getting the HMDA approval.   In spite of getting the tentative approval  from HMDA  the opposite party failed to start development work.  Not only that the opposite party obtained the final approval of HMDA on 21.01.2010 wherein the opposite party is directed to complete the development work within a period of one year and submit requisition letter for releasing of mortgaged plots.  The complainant's  plot is also under  mortgage.  As per the final approval the opposite party has to complete the development work  within one year but there is no sign of development work.   Therefore the District Forum rightly ordered   refund of the amount along with compensation and costs.  In our considered opinion    the  order has been passed in  right perspective  and the same does not warrant  any interference as the same deserves to be dismissed.In the result, the appeal is dismissed.  No costs.PRESIDENT                                       MEMBER

 

      Dated:   17.04.2017

 

 

 

 

 

                                                                  

 

 

 

 

 

 

 

              [HON'BLE MR. JUSTICE B. N. RAO NALLA]  PRESIDENT 
     [HON'BLE MR. Sri. PATIL VITHAL RAO]  JUDICIAL MEMBER