VENKATESH vs ASHWINI KUMAR

Challenge in these Revision Petitions under Section 21(b) of the Consumer Protection Act, 1986 (in short, ''the Act'') is to the common order dated 13.01.2011 passed by the State Consumer Disputes Redressal Commission, Karnataka, Bengaluru, (in short, ''the State Commission''), in First Appeal Nos.5155/2010, 5156/2010, 5157/2010, 5158/2010, 5159/2010 & 5160/2010, preferred by the Opposite Party and the Complainants, respectively. By the impugned order, the State Commission dismissed the Appeals, at the stage of admission.

Since all these Revision Petitions pertain to common facts and arise out of the common impugned order, they are being disposed of by this common order.

Revision Petition No. 1542 of 2011 is being taken as a lead case for the sake of convenience.

The facts material to the Complaint are that the Complainant, a Member of the Opposite Party''s Scheme, having Membership No.51, was allotted Plot No. 24, on paying fourteen monthly installments @ 1,000/- each, together with an advance of 3,000/- totaling to 17,000/-. It is stated that the Opposite Party floated this Scheme with a total of 80 Members, for allotment of 30 ft. x 40 ft., i.e., 1200 sq.ft. plots, in Survey No.175/W. The total sale consideration was to be paid in 55 monthly installments of 1,000/- each. It is pleaded that when the Complainant wanted to pay the balance installments, the Opposite Party refused to accept the same; some of the Members lodged FIR against the Opposite Party; despite repeated requests to accept the balance forty-one installments and register the plot in his name, the Opposite Party refused to do so; it is averred in the Complaint and in the affidavit that the Opposite Party demanded an additional amount of 50,000/- for registration of the said plot; the Complainant got issued a legal notice dated 05.06.2010, stating that he is ready and willing to pay the balance amount and requesting the Opposite Party to register the plot, for which, he received a reply stating that his Membership had been cancelled and that the amount deposited by him would be refunded, at the end of the Scheme, after deducting 25%; it is only because that the value of the plots had increased that the Opposite Party is avoiding registration of the said plots. Hence, the Complainants approached the District Forum seeking direction for registration of the plot as per the terms and conditions of the Scheme which has been floated together with compensation and costs.

The Opposite Party filed a reply before the District Forum admitting that the Complainant had deposited fourteen installments of 1,000/- each, and also an advance of 3,000/-, in the Scheme floated by Sri Shanta Durga Chamundeswari Developers. As per the terms and conditions, dated 17.06.2006, all the Members had to pay 55 monthly installments within the 10 th day of each month and if the installments were not paid for three continuous months, the Opposite Party is entitled to cancel the Membership of the allotee, without giving any further notice and refund the deposited amount, after deducting 25% of it. It is pleaded that the 48 th monthly installment was running, but the Complainant had defaulted in making his payments and that the plots have allotted to the Members who had made the payments regularly. All other allegations have been denied and it was stated that there is no deficiency of service on their part.

The District Forum, based on the evidence adduced before it, allowed the complaint in part, directing the Opposite Party to execute the Sale Deed in respect of the plot allotted to the Complainant and in case the said site is already sold, to allot another site of the same dimension in the same layout or elsewhere in the Municipal Limits of Gangavathi town, within two months, after 17.12.2012. The Complainant was directed to deposit the balance sale consideration before the District Forum on or before 10.12.2010 and issue a notice of deposit to the Opposite Party. The District Forum, further, observed as under :- "22. The OP has not placed any material before this Forum which discloses that he is still running the scheme agreed by the members. Therefore we have to believe version of the complainant that the OP has failed to receive the further instalments from the complainant with a view of deprive him and to take undue advantage of the escalation of prices of the plots which is universal phenomena on account of the higher inflation. Had the OP furnished material before this Forum to the effect the remaining members in the scheme have been paying the instalments regularly, then we have to discard the case set-up by the complainant. As such it was mandatory on the part of the OP to produce the documents relating to the scheme. That has not been done. We therefore do not accept the version of the OP that he orally demanded the payment of instalments particularly because date & place etc, are not available. Suffice to point out that his version is too vague & tenous.

In view of the discussion made therein above, the complainant will be entitle to get the execution of the sale deed in respect of the plot allotted to him by the opposite party provided he pays the balance site price before the 17-12-2010. The OP has not taken the contention that he has sold any of the plots in the layout so far. If the real estate developer has already sold the plot allotted to the complainant under the scheme by this time, the opposite party shall allot another site and execute the same deed in respect of that site soon after closure of the scheme of the same price agreed under the scheme. In the event no site is available in this layout, it will not be a difficult task to secure another site elsewhere in the town to the OP who is doing real estate business.

To conclude, the opposite party is directed to execute the sale deed in respect of the plot allotted to the complainant and in case the said site is already sold, another site of the same dimensions in the same layout or elsewhere in the municipal limits of Gangavathi Town, within two months, after 17.12.2010. The Complainant is directed to deposit entire balance sale price in this Forum on or before 10.12.2010 and issue a notice of the deposit to the opposite party. The complainant shall bear the registration expenses. Parties to bear their own costs in this proceedings".

Aggrieved by the said order, the Opposite Party preferred Appeal No. FA 5155/2010 and the Complainants preferred Appeal Nos. 5156/2010 to 5160/2010 before the State Commission which dismissed both their appeals at the admission stage, by way of a common order.

The State Commission has recorded that the clause allowing the OP to retain the amount upto 17.12.2010 and to pay only 75% of the amount paid , is undoubtedly a contract opposite to Public Policy u/s 23 of the Indian Contract Act - 1872, because the object was to defeat the provisions of Section 54 of the Transfer of Property Act - 1882 and so also Section 10 of the Contract Act. It is pertinent to notice that there is no default on the part of the complainant in paying the regular installments till the last installment paid by him and that the agreement in favour of the complainant which do not provide for cancellation of the agreement. The Agreement only stipulates that, in case of non-payment of monthly installments for 3 months continuously, a Member will not be eligible for monthly draw to be held in the remaining part of the Scheme. This agreement, executed by the Opposite Party in favour of the complainant, is a contract for sale of property, in question. As such, the Opposite Party is bound by the agreement, executed in favour of the Complainant agreeing to sell the plot, in question. He, therefore, could not escape execution of sale deed, if the Complainant is ready to pay the price amount promised to pay, before closure of the period of the scheme, on 17.12.2010.

Dissatisfied with this order, the Opposite Party preferred these Revision Petitions.

The learned counsel for the Revision Petitioner submitted that the Complainants were defaulters and hence as per Condition No.9 of the Scheme, the Complainants are not entitled to allotment of any plots. He vehemently contended that there are 80 Members in the said Scheme; the period of Scheme is for 55 months, with monthly installment of 1,000/- each; the Scheme commenced on 17.06.2006 and closed on 17.10.2010; that there was no such provision in the terms and conditions stipulating that the Complainant could pay the amount in one lumpsum; that the Membership was cancelled and that they are ready and willing to refund the balance amount with requisite interest; that there were only 45 plots and not 80 plots as contended by the Complainants; that for Ms. Ratnaveni, one of the Complainants, the amounts were paid by one Mr. Shivshankar; that Mr. Srinivasulu had booked four plots and, therefore, he is not a consumer.

Learned counsel for the Complainants contended that despite several requests, the balance sale consideration was never accepted by the Opposite Party only because the price of the plots had increased; he submitted that an advance of 5,000/- was also paid in addition to 17,000/-; many of the Members had also lodged an FIR and criminal proceedings were pending against the Opposite Party. He vehemently argued that a false affidavit, dated 16.05.2016 had been filed by the Opposite Party stating that there are only 45 plots in the layout which is a new plea and which is not a part of their pleadings before the lower fora and that there are only 45 Members in this Scheme, whereas, in their terms and conditions, Written Version and pleadings, before the lower fora, they have stated that there are 80 Members in the said Scheme. He contended that under the RTI, the Complainant had received information that only 8 plots were sold and 72 were available, contrary to the submissions made by the Petitioner before this Commission, on 15.12.2015.

Learned counsel for the Petitioner also contended that the Complainant in RP 1545/2011, had purchased four plots and is, therefore, not a consumer.

A Bench of this Commission in Consumer Complaint Nos. 137, 145 & 146 of 2010, titled Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd., vide order dated 12.02.2015 has held that " in any case, it is not appropriate to classify such acquisition as a commercial activity merely on the basis of the number of houses purchased by a person, unless it is shown that he was engaged in the business of selling and purchasing of houses on a regular basis, If, for instance, a person has two-three children in his family and he purchased three houses, one for each of them, it would be difficult to say that the said houses were purchased by him for commercial purpose........Therefore, it cannot be said that merely because of the complainant had agreed to purchase three flats in the same complex, the said acquisition was for a commercial purpose".

The fact remains that there is no documentary evidence on record to establish that the plots were purchased for the purpose of doing real estate business on a commercial scale.

The contention of the counsel for the Petitioner is that for one Ms. Ratnaveni (RP 1547/2011), the amounts were paid by somebody else and, therefore, she is not a consumer is totally unsustainable, in the light of the True Copy of the Receipt No.768, dated 13.07.2007, filed by the Petitioner himself.

The brief point that falls for consideration is, "Whether, there is any deficiency of service on behalf of the Revision Petitioner herein in not allotting the plot to the Respondents/Complainants?".

The facts not in dispute are that the Complainant had paid the following amounts, in installments of 1,000/- each. The details are as follows :-

10.04.2006 Advance Rs.3,000/-

26.06.2006 Monthly collection Rs.1,000/-

27.07.2006 - do- Rs.1,000/-

25.08.2006 - do - Rs.1,000/-

09.10.2006 - do - Rs.1,000/-

16.11.2006 - do - Rs.1,000/-

22.12.2006 - do - Rs. 1,000/-

21.01.2007 - do - Rs. 1,000/-

02.03.2007 - do - Rs. 1,000/-

09.04.2007 - do - Rs. 1,000/-

01.06.2007 - do - Rs. 1,000/-

27.06.2007 - do - Rs. 1,000/-

11.08.2007 - do - Rs. 1,000/-

12.09.2007 - do - Rs. 1,000/-

02.11.2007 - do - Rs. 1,000/-

Total Rs.17,000/-

It is the main case of the Complainant that despite repeated requests, the Opposite Party failed to accept the balance sale consideration and refused to register the plots allotted to them. The terms and conditions mentioned in the Advertisement, reads as follows :- "Sri Shantha Durga Chamundeshwari Developers Terms & Conditions: The membership fee will be Rs. 50/- only. 80 members are there in this scheme. The maturity time of the scheme will be 55 months end pay Rs. 1,000/- per month. They will be paid before the 1 to 10 date of every month. Those who are not paying the st th membership fees it could not in the draw. Those who are the winners they will get the Prizes. Who are winning numbers of the 10,20,30,40, & 50 the draw they are getting the (30'' X 40'') plots. Further they could not paying the instalment amount. The 10% discount will be given to the once in payment the amount and the plot will be given to them preferenciably.

The monthly draw will be arranged in our office on 10 date of 6 p.m before the present th members.

The plots will located at Hosalli Road in Sy.No. 11/C of Virupapur Village beside the Manjunathanagar called in the title of "BSS Nagar".

The plot members will be registered in his own expenditure.

Membership will be cancelled without any notice on non-payment of three installments, amount will be refunded by 25% discount at the time of the Scheme closure.

Electricity works will be completed by the time of the Scheme closure.

If a member likes to book a plot of a choice, he has to pay an amount of Rs.5,000/- 30'' x 40'' site as advance.

This amount will be adjusted in further instalments".

From the aforesaid terms and conditions, it is clear that there are 80 Members in the said Scheme which is contrary to the statement made in the affidavit filed before this Commission. In para 6 of this Affidavit, it is stated as follows :- "I submit that there are total 80 plots in the layout and also 55 members in the Scheme. Hence, the allegation that there are 80 members is not correct and I deny the same. No register produced before District Forum. Out of them 29 members paid the installments regularly, 16 members were defaulters i.e., the present 10 complainants whose Revision Petitions are pending before this Hon''ble Commission, one default Member''s case is pending before the Hon''ble State Commission at Bangalore and five default members have filed criminal cases against me before the Hon''ble Judicial First Class Magistrate, Gangavathi, where I was acquitted, however, the said members filed an Appeal before the District and Sessions Judge, Koppal and the same is pending".

When specifically asked, the learned counsel for the Petitioner submitted that there are 80 Members, but only 45 Plots. It is observed from the Complaint that there is a specific pleading with respect to the number of plots and Members being 80, which is not rebutted by the Opposite Party in their Written Version or in their grounds of Appeal before the State Commission. Even in the Legal Notice dated 02.06.2010, got issued by the Complainants, there is a specific allegation that the Scheme has 80 plots and that the Opposite Party is refusing to accept the balance sale consideration and is not registering the plot. Both the lower fora have observed that it is an undisputed fact that the Scheme had 80 plots. Even in the list of dates, before this Commission, it has been stated that there are 80 plots. Keeping in view the material on record and the documentary evidence produced in this file, it is apparent that a false statement has been made in the affidavit with respect to both the number of Members and the number of Plots available. This conduct and attitude of the petitioner/Opposite Party is deprecated.

It is an admitted fact that the Complainants did not pay the entire sale consideration as stated in their affidavit. It is also their contention that the Opposite Party did not accept the balance sale consideration in one lumpsum despite several requests and issuance of legal notice prior to the closure of the scheme . The District Forum has given a finding that there is no specific condition of ''cancellation'' in the Agreement executed between the Complainants and the Opposite Party. This finding was also confirmed by the State Commission. It is only stated in the Agreement that if the Complainants fail to pay three continuous installments, their Membership will not be put in a monthly draw. For better understanding of the same, the Agreement is reproduced, as under :- " Written Agreement for Giving Scheme plots

To

Sri Aswani Kumar S/o Shivshankar Rao,

Age: 20 yrs. Occupation: student R/o Gangavathi

Dated 10.06.2006

The person causing to be written this agreement is, I Venkatesh Kudtarkar S/o Shankar Kudtarkar occ: Estate developers R/o Gangavathi is executing this agreement as under: I am executing this agreement as per the terms and conditions of the scheme for benefiting you to get this plot in easy instalment which has been caused by me to be developed the layout in our B.S.S. Nagar in manjunath town situated at Veerapura seema in Gangavathi tq. The plot No. 24 measuring East-West : 30'' North-South : 40'' totally 1200 sq. ft. in this scheme we have to pay every instalment amount at prescribed time. If you failed to make the payment of continuous three installments Your membership number will not be put in a monthly draw.

After the full payment of this scheme amount to me I will executed the registration to you in the presence of under mentioned witnesses and all the expenses have to be borne by you, this written is with my consent and is true.

WITNESS EXECUTANT

S.V. Chalapathi

(Venkatesh Kudtalkar S/o Shankar Kudtarkar R/o Gangavathi tq: Gangavathi Dist: Koppal".

There is also a concurrent finding of the fact that the Petitioner herein did not place any material or documentary evidence before the for a below , which discloses that condition No.4 had been complied with by him, which is obligatory on his behalf. It has been observed by both the fora below that cancellation of Membership, without issuance of notice is an unfair trade practice and against the principles of natural justice, more particularly, when the clause relating to the cancellation of Membership, without notice is not a part of the Agreement for Sale, executed in favour of the Complainants. In the light of the fact that the Opposite Party did not file any material before the forum to the effect that remaining Members in the Scheme have been paying the installments regularly, it is found that the Opposite Party had failed to receive further installments from the Complainant, despite issuance of a legal notice. There is no illegality or infirmity in the impugned order warranting this Commission to interfere with respect to the direction of allotment of plot given to the Opposite Party. On 15.12.2015, a specific submission has been made by the Revision Petitioner that all the plots which were to be allotted as per the terms and conditions of the Scheme, have since been allotted and there is no plot available for the allotment to the Respondents. The counsel for the Complainants had contended that a false statement was being made and in view of this submission, the Petitioner was directed to file an affidavit stating as to how many Conveyance Deeds have been executed, how many Agreements to Sale have been made, the dates of the said Agreements, which have been filed. In the affidavit, it is stated that only Nine Sale Deeds have been executed which evidences that there are balance plots available with the Petitioner herein and a false statement had been made before this Commission on 15.12.2015.

Learned Counsel for the Petitioner relied upon the judgment of this Commission in Baij Nath Vs. Lucknow Development Authority, CPR-2010 (1) 398 (NC) , wherein it was held that as the complainant was a defaulter and the amount was returned at his own request, he would not be entitled to any interest.

The facts in the instant case are different as there was no request from the Complainant for refund of amount but only for execution of Sale Deed for a plot. Moreover, the request for accepting the balance sale consideration when the time period of the Scheme had not yet ended, has not been accepted, they cannot be termed as defaulters.

At the cost of repetition, the material on record evidences that the Complainants had made a bonafide attempt to pay the entire balance sale consideration, but the Opposite Party had failed to accept the same in spite of the fact that a legal notice dated 02.06.2010 and the reply notice is dated 14.06.2010, as the Scheme started on 17.06.2006 and ended 55 months, thereafter, i.e., on 17.12.2010; that the Petitioner had made a false statement before this Commission that no plots were available whereas, his own affidavit clearly shows that only nine plots were sold; it is pertinent to note that in the copies of Sale Deeds filed herein, the total sale consideration for the plot as on 04.03.2010 was only 56,000/-.

These sites were booked by the Complainants for the purpose of having a shelter over their heads and not for the purpose of earning interest on money paid by them to the Opposite Party. At no stage, did the Complainants give-up their right to take possession.

On 15.12.2015, a fair statement was made that the Complainants were ready and willing to pay an additional amount of 50,000/- in addition to the amounts already deposited. In the lead case, though, submission was made by the counsel for the Complainants that an advance of 5,000/- was also made, yet, there is no receipt to that effect, filed before this Commission. Hence, this amount of 5,000/- is not being taken into consideration in that particular case.

Keeping in view the principles of natural justice and also that there was a due total sale consideration to be paid, it is directed that an additional amount of 50,000/- should be paid by the Complainants in each case, in addition to the balance sale consideration (for e.g. 55,000/- minus 17,000/-, in the lead case), if not already deposited, before the District Forum. It is pertinent to note that this amount is more than what is reflected in the Sale Deeds, executed in the year 2010, which is in the same year, that the Complainants got issued legal notices to the Petitioner herein to accept the balance sale consideration and to execute the Sale Deeds and is hence considered a reasonable and a fair amount keeping in view escalation, if any.

The Complainants are directed to pay these amounts within four weeks from the date of receipt of copy of this order. On receipt of the aforementioned amounts, the Petitioner herein is directed to execute the Sale Deeds, within six weeks from the date of receipt of the amounts.

For all the above reasons, these Revision Petitions are allowed in part, only with respect to payment of additional 50,000/- by the Complainants, while affirming the rest of the orders of the fora below. We also award costs of 10,000/- to be paid to each of the Complainants by the Petitioner/Opposite Party.