Oral Order: (B.N.Rao Nalla, President)
This is an appeal filed by the opposite party aggrieved by the orders of District Consumer Forum-I, Hyderabad dated 29.11.2013 made in CC No.70 of 2012 wherein it partly allowed the complaint directing the opposite party to register and deliver the possession of plot bearing No.2, sector-1, Block-R, admeasuring 250 sq.yards in favour of the complainant; to provide copy of the layout issued by the competent authority along with costs of Rs.5,000
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 she purchased a plot in opposite party venture in Sector-1, Block-R in the project ' East City' admeasuring 250 sq.yads vide membership No.51501. The total cost of the plot including development charges is Rs.1,00,000/-. The complainant has to pay the total sale consideration amount by December 1997 but the complainant has paid the same by 08.07.1997 itself and in the said receipt the opposite party mentioned interest due amount was Rs.6,687/-. As the complainant has paid the total installments before the due date the complainant requested to waive off the interest due by his letter dated 24.07.1997 and the opposite party vide its reply dated 26.08.1997 informed that the management has already waived off interest due. The complainant has no dues and he has paid the entire sale consideration to the opposite party. Thereafter, the complainant has several times requested the opposite party for execution of the sale deed in respect of the subject plot but inspite of that the opposite party addressed letter dated 18.12.1997 informing that the registration in Sectors I and II have been temporarily stopped and it will take couple of months for the commencement for registration. Subsequently the opposite party vide its letter dated 04.02.2009 informed to the complainant that about 500 plots at Block A to M sector I are acquired by the AP Government for the purpose of setting up a Medical University by NIMS and now CCMB has sought acquisition of 184 acres of land near NIMS therefore to get good returns the opposite party has entered into negotiations with third parties for outright purchase and the third party agreed to buy plots at the rate of Rs.1200/-, Rs.1500/- per sq.yars. The complainant addressed letter dated 20.02.2009 requesting the opposite party to register the agreed plots in favour of the complainant. In spite of the repeated requests the opposite party has not given any response. Thereafter the opposite party informed the complainant vide its letter dated 26.09.2011 that the plot allotted was affected in acquisition of land for the purpose of widening National High Way 202 in 6 lane road and advised to shift to Sector IV but the complainant rejected offer made by the opposite party. Hence, the complaint praying to direct the opposite party to deliver the possession and register the plots bearing NO.1 Sector 1 Block-R in the project ' East City' admeasuring 250 sq.yards in favour of the complainant, to purchase the approved layout issued by the competent authority together with compensation of Rs.50,000/- and costs of Rs.5,000/-.
4. The opposite party resisted the case contending that the complainant enrolled as member on her own vide membership No.51501 in East City, sector-I, Block-R and upon her joining as member and on payment of initial amount, Plot NO.1 is allotted on her name and from there onwards letters have been sending periodically requesting the complainant to pay the plot cost and development charges as mentioned in the letters. However with delayed payments the complainant has paid the total amount by 08.07.1997. But on the delayed payments the opposite party had imposed interest of Rs.6687/- and communicated the same. On receipt of the same the husband of the complainant who has also purchased a plot addressed a letter dated 24.07.1997 requesting the opposite party to waive of the interest and the opposite party considered the requested of the complainant and waived off interest and the same was intimated through letter dated 2.08.1997.
5. It is submitted that the opposite party has entered into negotiations with third parties for outright purchase of affected plots and proposed a fair rate of Rs.1200/- per sq.yard or built space in LIG/MIG units in lieu of next year adjusting a credit value of Rs.1500/- per sq.yards for the plot surrendered and the third party has also agreed for purchase and the same was intimated to the complainant through letter dated 06.03.2009. On receipt of the said letter the complainant without understanding the situation, addressed a letter insisting the opposite party to register the agreed plot in favour of the complainant which is not possible for it for the reasons stated above. Subsequently the opposite party vide its letter dated 08.05.1999 suggested to choose alternative plot. Due to the proposed improvements to protect the interest of its clients the opposite party is planning to construct housing units in the remaining plots and adjust the financial interest of members holding plots in Sector-1 in G+2 configurations since it would give 3 times floor space than the plot. Being the situation is like that the plot holders were suggested to choose one or more out of three options and an option convenient to members may be conveyed to the opposite party to avoid any loss of opportunity. But the complainant having received the said letter kept quiet. Hence, the opposite party prayed for dismissal of the complaint.
6. In proof of his case, the complainant filed his evidence affidavit and got marked Ex.A1 to A22. On behalf of Opposite party, the Managing Director has filed his evidence affidavit and got marked Exs.B1 to B9.
7. The District Forum after considering the material available on record, allowed the complaint bearing CC No.70 of 2012 by orders dated 29.11.2013 as stated in paragraph No.1, supra.
8. Aggrieved by the said decision, the opposite party no.1 preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The District Forum 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 such specific relief or specific performance of contractual obligations are conferred on the competent Civil Court only but not on the Consumer Forum. The complaint is not maintainable as there is no deficiency of service on the part of the appellant/opposite party as the appellant is specifically requested the respondent to choose alternative plot in Sector IV since the plots proposed to allot in favour of the respondent were acquired for National High Way Road expansion. In view of the legal hurdle to execute the plot allotted in favour of the respondent the appellant requested to choose alternative plot in another venture of the appellant and requested her consent for such allotment but the complainant did not choose the alternative plot and insisted for registration of the earlier plot allotted to her. Therefore, the opposite party prayed to set-aside the order of the District forum and appeal be accepted.
9. No representation for appellant. Counsel for the respondent present. Written arguments of the respondent/complainant filed.
10. 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?
11. It is an undisputed fact that appellant is doing real estate business a housing activity floated a venture wherein it had agreed to sell plot No.2, Sector-1, Block-R in the project ' East City' to the complainant for a consideration of Rs. 1,00,000/- after enrolling him as a member. The fact that he paid the entire amount is evident from the receipts Exs.A2 to A12. The opposite party filed Ex.B3 by which the opposite party has informed the purchasers that registrations at Sectors 1 & II were temporarily stayed by Collector, Nalgonda district during 1997, pending clearance of allegations on lands at Sector I and II as Bhoodan lands. If really that were to be the case the appellant could not have included these properties in this venture, when the appellant knew fully well that certain properties could not be sold, for whatever reason, it could not offer the property for sale. By letter Ex. B5 dated 04.02.2009, it has informed the complainant that 'the property is going to be acquired by the government for establishing Medical University on the lines of All India Institute of Medical Sciences, next to East City, the land prices around had already escalated and hence the prices of plots of East City are being revised by increasing the rate of Rs.1200/- sq.yard (Rs.3 lakhs for 250 sq.yards) or built up space in LIG/MIG units in lieu of next year adjusting a credit value at Rs.1500 sq.yd (Rs.3.75 lakhs/250 sq.yds) for the plot surrendered.
12. From this it is beyond doubt that it was never intimated to the complainant that the property allotted to him was acquired by the government. Later by letter dated 26.09.2011 it informed that plots were acquired by the National Highway Authority and requested to choose alternative plot in Sector IV. It may be stated herein that the appellant having received the entire sale consideration could have refunded the amount and since transfer of title was not made it could sell and collect the amount from the government, more so, when it could collect more amount in view of escalation of prices in and around the property purchased. Having realized the amount by September 1997, it has been evading execution of sale deed on one ground or the other. The complainant is not a party to the dispute between the appellant and the government either in regard to acquisition of property or to the order of Dist. Collector, Nalgonda granting stay of registrations. The letters issued by the complainant did not evoke any reply. It is obvious that the appellant does not want to refund the amount unless the complainant invokes some legal proceedings. Even up till now it is not known as to what happened to the so called proceedings initiated by the appellant. The fact remains that the appellant could no longer execute registered sale deeds therefore it was bound to refund the amount received by it.
13. In the light of the fact that appellant being a developer doing real estate business and on its 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 10 years is undoubtedly entitled to compensation. All through the complainant had suffered mental agony and the appellant successfully dragging on the matter for a period of more than 10 years. As the plot of the complainant already acquired by the National Highway Authority though the opposite p[arty offered alternative plot in Sector IV, it is for the complainant to choose either an alternative plot or refund of the amount which we leave it to the complainant.
14. It is too late a day to contend that the complainant had to clutch the jurisdiction of civil court when he sought for refund of the amount. The Hon’ble Supreme Court time and again opined that Consumer Fora have jurisdiction to deal with complaints of deficiency of service in relation to immovable properties vide Chandigarh Housing Board Vs. Avtar Singh reported in IV (2010) CPJ 9 SC.
15. In fact the Supreme Court in the case of Brij Pal Sharma Vs. Ghaziabad Development Authority reported in III (2005) CPJ 43 (SC) 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 if the complainant is opted for refund the opposite party is liable to pay interest on the amo
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unt paid by him to the opposite party @ 18% per annum. 16. We may also mention herein that 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, we are of the opinion that the opposite party is liable to pay the amount the said rate of interest. In the circumstances discussed supra, we answer the point accordingly. In the result the appeal is allowed in part modifying the order of the Dist. Forum and directing the opposite party if in case the complainant opt for refund of the amount to refund Rs.1,00,000/- to the complainant with interest @ 18% per annum from the dates of respective payments till the date of payment together with compensation of Rs.1,00,000/-. If the complainant opt alternate plot, it is the complainant who has to decide which plot he wish to choose in the Sector IV and the opposite party is directed to register the plot which he so chooses and registered the sale deed with the expenses of the opposite party with compensation of Rs.1,00,000/-. The opposite party is also directed to pay costs of Rs.5,000/- to the complainant. Time for compliance four weeks.