Mopuri Obanna vs M/S. Sai Chaitanya Housing Pvt. Ltd.

REVISION Petition no. 1157 of 2014 has been filed under section 21 (B) of the Consumer Protection Act, 1986 against the order dated 31.12.2013 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad ( ''the State Commission '') in First Appeal no. 1010 of 2013.

THE brief facts of the case as per the petitioner/ complainant are that the respondent/ opposite party floated a venture under the name and style ''''Flight City '''' in S Nos. 451/P and 457/ P situated at Maheswaram Village and Mandal, RR District. The respondent represented and obtained necessary approvals from the competent authorities. The respondent promised to develop the venture as per the norms of HUDA/ DTCP. Being induced by the representations made by the respondent, the petitioner joined as a Member. The respondent offered to sell plot no. 31 in ''C '' site in the said venture. The petitioner paid Rs.4,00,000/ - vide Andhra Bank Cheque no. 659394 which was encashed on 21.03.2006. He also paid another sum of Rs.6,44,700/ - vide Andhra Bank Cheque no. 697101 which was encashed on 02.11.2006. The petitioner has filed the Xerox copy of the Bank Pass Book to establish that the said cheques were encashed by the respondent, on the respective dates. The petitioner paid a total sale consideration of Rs.10,44,700/ - to the respondent. The respondent executed and registered the sale deed on 18.11.2006 in favour of the petitioner conveying the title plot no. 31 -C admeasuring 337 sq. yds in Sy no. 451/P and 457/P in Maheswaram village and Mandal, RR District. Though the petitioner paid Rs.10,44,700/ - in the sale deed the respondent mentioned Rs.2,35,900/ - as the market value of the property.

THOUGH the sale deed was handed over to the petitioner, the respondent has not handed over the copy of HUDA/DTCP approved plain inspite of repeated demands made by the petitioner. On several occasions, the petitioner made personal visits to the Head Office of the respondent at Ameerpret, as well as the Branch Office of the respondent at Dilsukhnagar. There is no proper response from any one of them. The respondent has not complied with the demand of the petitioner.

THE petitioner being vexed with the indifferent attitude of the respondent, on 15.11.2012, sent a registered letter to the Registered office of the respondent situated at Flat no. 311, Annapurna Block, Aditya Enclave, Ameerpet, Hyderabad. The said registered letter returned un -served with postal endorsement ''''addressee left hence, returned to sender ''''. The petitioner was shocked to learn that the Head Office of the respondent was closed/ shifted without any intimation even to postal authorities. On 01.12.2012, the petitioner sent another registered letter demanding the respondent to supply a copy of DTCP/HUDA approved plan. Though the said registered letter served on the respondent, they have not chosen to give any reply to the petitioner.

HAVING been left with no other alternative on 26.12.2012 the petitioner got issued a legal notice demanding the respondent to furnish a copy of the approved plan of the lay out issued by HUDA/ DTCP. Though the legal notice was served, the respondent has not chosen to give any reply nor furnished a copy of the approved plan. The stoic silence maintained by the respondent reveals that they have not obtained any approval for the said layout either from HUDA or DTCP.

THE respondent being a Real Estate Development was well aware that without proper approval from DTCP/ HUDA/ HMDA offering to sell the plots to innocent customers not only amounts to deficiency in service but also amounts to unfair trade practice. A perusal of the registered Sale Deed dated 18.11.2008, executed by the respondent discloses that the respondent has intentionally not even whispered about the approval given by HUDA/DTCP. From the above, it can be concluded that the respondent has not obtained any approval from the Urban Development Authority. The petitioner and his family members have been subjected to serious inconvenience, hardship and mental agony apart from irreparable financial loss. Cause of action: Cause of action has arose on 18.03.2006 when the petitioner paid Rs.4,00,000/ - and on 02.11.2006, when the petitioner paid Rs.6,44,700/ - and on 18.11.2006 when the respondent executed the registered sale deed in favour of the petitioner on 15.11.2012, when the petitioner sent a registered letter to registered office of the respondent on 01.12.2012, the petitioner sent another registered letter demanding the respondent to supply a copy of DTCP approved plan and on 26.12.2012 when the petitioner got issued a legal notice and at Dilsukhnagar, RR District where the respondent is situated at Maheswaram Village RR District where the plot is situated within the jurisdiction of the Hon ''ble Forum.

THEREFORE , it was prayed that the Hon ''ble Forum in the interest of justice may be pleased to direct the respondent: (i) To refund Rs.10,44,700/ - with interest @ 18% per annum from the respective dates of payment till the date of realisation; (ii) To pay compensation of Rs.60,000/ - towards serious inconvenience, hardship and mental agony; (iii) To pay cost of Rs.10,000/ -

BEFORE the District Consumer Disputes Redressal Forum, Ranga Reddy District ( ''the District Forum ''), the respondent/ opposite party was declared ex parte. The District Forum observed as under: ''''3. Notice was sent to the opposite party which returned with endorsement ''''unclaimed ''''. Service was found sufficient and the right to file written version of the opposite party was forfeited ''''.

The District Forum allowed the complaint by observing that: ''''though sufficient opportunity was given, opposite party did not choose to file any written version or adduce any evidence in his support, denying the allegations made by the complainant. In the absence of any rebuttal evidence, we have to believe the version of the complainant that the opposite party had not obtained any approvals from the necessary authorities. As such selling the plots to the customers by representing that the approvals are duly obtained from necessary authorities amounts to ''deficiency of service '' and ''unfair trade practice '' on part of the opposite party. In view of our finding in Point No.1, we are of the opinion that the complainant is entitled to claim back the sale consideration paid by him from the opposite party. However, an interest of 12% p.a. only can be awarded to him from the date of payment i.e. 02.11.2006 till realization. As interest is being awarded, compensation cannot be given. The complainant is also entitled to claim an amount of Rs.2,000/ - from the opposite party towards costs of the complaint.

In the result, the complaint is allowed directing the opposite party to repay the entire amount of Rs.10,44,700/ - (Rupees Ten Lakhs Forty Four Thousand Seven Hundred only) along with 12% interest p.a. from 02.11.2006 till date of realization. The opposite party is also directed to pay to the complainant an amount of Rs.2,000/ - as costs of the complaint ''''.

Aggrieved by the order of the District Forum the respondent/ opposite party filed an appeal before the State Commission. The State Commission gave the following order: ''''In the result, the appeal is allowed. The order of the District Forum is modified. The appellant/ opposite party is directed to supply copy of HUDA/DTCP approved layout and pay an amount of Rs.25,000/ - to the respondent complainant ''''.

IN their order dated 31.12.2013 the State Commission observed as under: ''''The appellant was proceeded ex parte. Feeling aggrieved by the order of the District Forum, the opposite party has filed appeal contending that the District Forum failed to see that the appellant executed sale deed in favour of the respondent on 18.11.2006 and the complaint is filed on 17.01.2013 which is beyond the period of limitation. It is contended that surrendering rights and claiming return of the amount is unjust enrichment of the respondent and that the respondent has not filed any document to show that the appellant promised him approved layout of the plot. It is contended that the award of interest from the date of sale deed instead of date of complaint even when the respondent is in possession and enjoyment of the property is unjust and arbitrary.

Sale of plot bearing number 31 in Flight City, Maheswaram Village and Mandal, R.R. District under registered sale deed bearing document number 20882/06 dated 18.11.2006 and handing over possession of the plot as also the sale deed are beyond any dispute. The learned counsel for the appellant has contended that the claim is barred by law of limitation on the premise of period between date of sale deed and date of filing the complaint exceeding 6 years against the limitation period of 2 years prescribed by Section 24 -A of the Consumer Protection Act. He has placed reliance on the decision of the Hon ''ble Supreme Court in ''''Haryana Urban Development Authority vs B.K.Sood '''' reported in (2006) I SCC 164. In B K Sood (supra), possession of site was delivered to the complainant in 1987 and unauthorized bhatties were kept in the verandah of neighboring house prior to 1989 the removal of which were claimed by the complainant , were removed in 1994. The complaint was filed before the State Commission in 1997 which was held by the Supreme Court barred by law of limitation as under: ''''Section 24 -A of the Consumer Protection Act, 1986 (referred two as the Act hereafter) expressly cast a duty on the Commission admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.

The Section debars any Fora set up under Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. Neither the National Commission nor the State Commission had considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time. According to the complaint filed by the respondent, the cause of action arose when, according to the respondent, possession was received of the booth site and it was allegedly found that an area less than the area advertised had been given. This happened in January, 1987. Furthermore, the bhatties which were alleged to have caused loss and damage to the respondent, as stated in the complaint, had been installed before 1989 and removed in 1994. The complaint before the State Commission was filed by the respondent in 1997, ten years after the taking of possession, eight years after the cause of alleged damage commenced and three years after the cause ceased. There was not even any prayer by the respondent in his complaint for condoning the delay. Therefore, the claim of the respondent on the basis of the allegations contained in the complaint was clearly barred by limitation as the two year period prescribed by Section 24A of the Act had expired much before the complaint was admitted by the State Commission. This finding is sufficient for allowing the appeal. '''' In the instant case, the sale deed was executed and possession for the plot was delivered to the respondent on 18.11.2006. The respondent had not adduced any evidence to the effect he demanded for refund of the amount paid to the appellant company. He had chosen to address letter on 15.11.2012 and 1.12.2012 and notice dated 26.12.2012 with a request to furnish copy of HUDA approved layout of the plot. The complaint is filed seeking for refund of the sale consideration about 6 years after the sale deed is executed and possession was delivered to the respondent. As such, and on application of ratio in B K Sood (supra), we are of the view that complaint is barred by law of limitation in so far as claim for return of the amount is concerned.

It is the case of the respondent that the appellant misrepresenting that the venture was with HUDA approved layout and he purchased the plot in the venture believing the version of the appellant company that HUDA had sanctioned the layout. The appellant had not furnished copy of layout to the respondent. As such the complaint cannot be said to be filed beyond period of limitation. However, the respondent had not sought for the layout and molded the relief for refund of the amount in terms of the notice dated 26.12.2012 the material portion of which reads as under: ''''5. My client further states that being a Real Estate Development and you are well aware that without property approval from DTCP/UDA/HMDA HH HUDA/HMDA offering to sell the plots to innocent customers not only amounts to deficiency in service but also amounts to unfair trade practice. A perusal of the registered Sale Deed dt.18.11.2006 executed by you discloses that you intentionally never whispered about the approval given by HUDA/DTCP. From the above, it can be concluded that you have not obtained any approval from the Urban Development Authority. Your stoic silence without giving reply to the registered of my client also fortifies the said conclusion. You have to clarify whether you obtained approval for the said lay out from any competent authority or not. Depending upon you response/reply, my client will initiate further proceedings. ''''

As stated in the aforementioned paragraphs of the order, the claim for return of the sale consideration cannot be held sustainable in the eye of law and keeping in view of the principles of natural justice and also the claim for furnishing of layout as sought for in the letters dated 15.11.2012 and 1.12.2012 and notice dated 26.12.2012 being within time, we are inclined to modify the relief granted by the District Forum and award the relief for supplying the copy of HUDA/DTCP approved layout of the plot and a sum of Rs.25,000/ - towards compensation to the respondent. In the result, the appeal is allowed. The order of the District Forum is modified. The appellant/opposite party is directed to supply copy of HUDA/DTCP approved layout and pay an amount of Rs.25,000/ - to the respondent/complainant. There shall be no separate order as to costs ''''.

HENCE , the present revision petition. The main grounds for the revision petition are as follows: The State Commission ought not to have interfered with the order of the District Forum which rightly directed the respondent to refund the amount of Rs.10,44,700/ - with interest at 12% on 02.11.2006 as admittedly the respondent failed to supply the approved layout of HUDA/ DTCP. The respondent did not whisper in his memorandum of appeal filed before the State Commission in respect of the approved plan of HUDA/ DTCP and has not assured the complainant or the State Commission that he will supply the copy of the approved layout to the petitioner. Hence, the State Commission was not correct in modifying the order of the District Forum.

The respondent have received Rs.10,44,700/ - towards the sale consideration in respect of the plot in question executed the sale deed for Rs.2,35,900/ - only. There is no explanation from the respondent in this regard. The cause of action is a continuous one as the respondent failed to supply the copy of the approved plan and other link documents in spite of several requests made by the petitioner and did not contest the complaint before the District Forum, hence, his plea that the complaint is barred by limitation is liable to be rejected, particularly when he failed to give any reply to the letters dated 15.11.2012, 01.12.2012 and the Legal Notice dated 26.12.2012 sent by the petitioner.

IT is an undisputed fact that even as per the complaint of the petitioner that the cause of action had arisen in 2006. The complaint was filed in 2013. Even as per the case of the petitioner after 2006 the year in which he paid Rs.10,44,700/ - to the respondent and the respondent executed the registered sale deed in favour of the petitioner on 18.11.2006, the petitioner next wrote to the respondent only on 15.11.2012 and filed the complaint before the District Forum in January 2013.

WE find that, in view of facts above, the State Commission has correctly held that the complaint was filed seeking refund of the amount six years after the sale deed had been executed and possession was delivered to the respondent, as such on the application of ratio of B K Sood (Supra) it is barred by law and limitation. Hence, the order of the State Commission is set aside, the revision petition as also the complaint are dismissed as the complaint is not maintainable, with a cost of Rs.5,000/ - (Rupees five thousand only). Petitioner is directed to deposit the cost of Rs.5,000/ - (Rupees five thousand only) by way of demand draft in the name of ''Consumer Legal Aid Account '' of this Commission, within four weeks from today. In case, the petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% per annum till realization.

LIST on 11th April 2014 for compliance.