BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD

F.A.No.274 OF 2011 AGAINST C.C.NO.504  OF 2009 DISTRICT FORUM-II HYDERABAD

Between:

Smt Chaman Devi W/o late Chandra Prakash
aged about 62 years, Occ: House wife
R/o H.No.3-5-86/1/A/1, Near Satya Sai
Techno School, Srinagar Colony,
Ramanthpur, Hyderabad-13

                                                                Appellant/complainant

                A N D

1.   Narne Estates Pvt Ltd.,
rep. by its Managing Director

1, Gunrock Enclaves Secunderabad-009

2.   Narne Ranga Rao
Chairman and Managing Director
Narne Estates Pvt Ltd.,
1, Gunrock Enclaves, Secunderabad-009

                                                        Respondents/opposite parties

Counsel for the Appellants             M/s B.Venkat Rama Rao

Counsel for the Respondent           M/s K.R.Koteswara Rao

        QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

                                                AND

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

WEDNESDAY  THE FIFTH DAY OF DECEMBER

                                TWO THOUSAND TWELVE

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

                                        ***

1.            The complainant being dissatisfied with the award for refund of a sum of `64,510/- with interest has filed the appeal contending that she is entitled for registration of the plot and that she had to pay a minor part of the sale consideration and she has been willing to perform her part of contract and that she has discharged her obligation in terms of the contract.

2.             The appellant obtained membership 21749 by submitting application to the respondents on 5.9.1994 for purchase of plot no.73 admeasuring 250 sq.yards in Sector 4 East City, Bibi Nagar.  She had also booked with the first respondent company  two other plots, plot nos.22 and 83 in Sector V-AH Block and subsequently the booking of plot nos.82 and 83 was cancelled by her and she continued to pay the instalments in respect of plot no.73.  The appellant paid a sum of `4,500/- through cheque bearing No.0502321 dated 12.9.1994 towards initial payment and later she paid a sum of `33,750/- towards the balance sale consideration and the development charges in 39 EMIs by the end of January 1998.

3.             At the time of filing the application with the respondent no.1 company, the respondent informed the appellant that the development charges would be levied at `100/- per sq.yard which amounts to `25,000/- for the plot no.73 and she has paid a total amount of `58,750/- towards the cost of the plot and development charges and a sum of `1760/- as additional amount towards the cost of the plot.  The respondents had not executed sale deed and the respondent made correspondence with the appellant by addressing letters demanding outstanding dues though the appellant was visiting their office.  The respondents demanded for an amount of `48,540/- towards registration charges and development charges.  The respondent no.1 company furnished registration form on 6.10.2006 to the appellant and when he insisted for registration of the plot, the respondent demanded for development charges.  The appellant and her daughter instructed their banker on 12.10.2006 to stop payment of the amount to the respondents.

4.             The respondents addressed letter dated 4.8.2008 demanding the appellant for payment of `80,100/- which was due as on 4.8.2008 and on her failure to pay the amount, they would cancel the allotment and refund the amount after deducting the standard charges.  The respondents informed the appellant that the plot no.73 could not be registered in her favour and the appellant sought for registration of an alternate plot bearing No.45 in Block ZU, Sector–V.   Instead,  the respondents issued letter dated 4.8.2008. The appellant received letter dated 1.10.2008 along with a cheque for `46,610/- sent by the respondents towards refund of the amount after deducting the required charges.  On enquiry the respondents requested the appellant to return the cheque sent by them  and accordingly she deposited the cheque which was returned by the banker of the respondents with endorsement “outdated cheque”.  The appellant got issued notice on 22.4.2009 demanding for registration of the plot No.73 in her favour and as the sale deed was not executed the appellant has filed the complaint.

5.             The respondents resisted the claim on the premise that the complaint is barred by limitation and it is not maintainable either in law or on facts.  The appellant has not paid the entire cost of the plot and development charges.  The appellant failed to pay `35,510/- and on 20.8.1999 the respondents issued statement of account for the amount of `1,05,663/- for the three plots.  The appellant paid `64,510/- for the three plots and not for one plot and on 10.7.2000 she addressed letter requesting the respondent that due to financial constraints she cannot pay the arrears and requested for cancellation of the allotment of other two plots i.e., Plot Nos.82 and 83 which accordingly was cancelled.  The respondents released the amount of Rs.4,300/- which was deducted towards gift scheme charges and adjusted the balance amount towards the outstanding due of plot no.73. 

6.             The respondents had sent statement of account on 21.1.2004 and 6.8.2004 to the appellant after adjusting the balance amount of `26,450/- towards development charges and registration charges for the plot no.73 and still the appellant was due a sum of `48,540/-.  The respondents through letter dated 27.7.2006 informed the appellant about the due towards development charges, registration charges and interest on delayed payment and requested her to pay the amount immediately.  At the time of booking of the plot the development charges were estimated at `100/- per sq.yard as per the rates prevailing as on that day and in the year 2001 it was estimated as Rs.125/- to Rs.150/- per sq.yard and after passage of six years it was increased five times due to enhancement of cost of material, manpower and machinery.  The revised statement dated 6.10.2006 showing the development charges and registration charges to the tune of Rs.48,450/- due from the appellant was sent to her. 

7.             The appellant along with the letter dated 10.6.2006 had sent cheque for `48,450/- and subsequently her daughter who is the drawer of the cheque had given instructions of stop payment to their banker on 12.10.2006 and refused to pay the amount due.  The respondent issued reminder on 4.8.2008 informing the appellant that a sum of `80,100/- was due from her and in reply, the appellant through her letter dated 4.9.2008 expressed her willingness to pay the registration charges and requested the respondent to waive the interest.  She failed to pay the balance amount.  The respondent after deducting the amount as per standard procedure, issued cheque for `46,610/- dated 30.9.2008 towards refund the amount paid by the appellant and thereafter she got issued notices dated 6.12.2008 and 28.1.2009.  There was no deficiency in service on the part of the respondent and therefore prayed for dismissal of the complaint with exemplary costs.

8.             The District Forum has allowed the complaint awarding for refund of the amount paid by the appellant along with interest thereon.

9.             In support of her claim the appellant filed her affidavit and the documents, Exs.A1 to A20.  On behalf of the respondents, the second respondent filed his affidavit and the documents Exs.B1 to A17. 

10.            The point for consideration is whether the order of the District Forum suffers from mis-appreciation of fact or law?

11.            The appellant obtained membership form 5.9.1994 and subscribed for purchase of three plots, Plots No.73, 82 and 83.  The appellant paid a sum of `64,510/- till June 2000.  She addressed letter on 10.7.2000 requesting the respondent to cancel allotment of plot nos.82 and 83 and retain plot no.73 in Sector IV in her name.  There is no dispute of the request made by the appellant for cancelation of allotment of the plot nos.82 and 83 and cancellation of the allotment in accordance with the request of the appellant therefor.  It is not disputed that the respondents released a sum of `4,300/- which was deducted towards gift scheme charges and adjusted the balance amount towards the consideration for plot no.73. 

12.            The respondents issued statement of account on 21.1.2004 and 6.8.2004 after adjusting the amount of `26,460/- towards developmental charges and registration charges of the plot no.73 and till a sum of `48,540/- was due from the appellant.  After receiving the revised statement from the respondents and reminders requesting her to pay the amount, the appellant got issued cheque bearing No.633936 dated 10.10.2006 for the sum of `48,450/-.  The cheque was issued by her daughter at request made by the appellant and the daughter of the appellant issued stop payment instructions on 12.10.2006 to her Banker and thereafter the appellant refused to pay the amount covered under the cheque dated 10.10.2006.  As such, the respondents after deducting the prescribed charges, refunded the amount of `46,610/- through cheque. 

13.            The appellant had received the amount covered under the cheque and got issued notice through her advocate on 22.4.2009.  In the circumstances, we do not find any deficiency in service on the part of the respondents nor any infirmity in the finding returned by the District Forum.  The appellant having issued cheque for `48,450/- and getting issued stop payment instructions without assigning any reasons therefor, cannot claim that she had been ready and willing to perform her part of contract in the circumstances where she had received the amount paid by the respondents towards refund of the consideration paid by her.  The appeal is devoid of any substance and liable to be dismissed.

14.            In the result the appeal is dismissed confirming the order of the District Forum.  There shall be no order as to costs.

                                                                                MEMBER

                                                                                MEMBER

                                                                             Dt.05.12.2012

KMK*