BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
FA 753 of 2009 against C.C. 267/2008, Dist. Forum-II, Hyderabad
Between:
J. Gopala Krishna Rao
S/o. Late Venkata Krishna Rao
MIG 265, Muskhmahal Colony
Attapur, Hyderabad. *** Appellant/
Complainant.
And
1) M. Sudhakar,
Chairman & Managing Director
M/s. Janachaitanya Housing Pvt. Ltd.
Zainab Commercial Complex
2nd Floor, Ameerpet, Hyderabad.
2) Ravindra Babu, Branch Manager
M/s. Janachaitanya Housing Pvt. Ltd.
Branch No. 1, 501 & 503, 5th floor
Taramandal Complex, Saifabad
Hyderabad. *** Respondents/
OPs
Counsel for the Appellant: M/s. J. P. Rao
Counsel for the Respondent: M/s. M. Srinivas Swarup
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SRI T. ASHOK KUMAR, MEMBER
TUESDAY, THE THIRTEENTH DAY OF SEPTEMBER TWO THOUSAND ELVEN
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President)
***
1) Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that the respondent a developer floated a venture for sale of house plots of 200 sq.yds each at Rs. 1,000/- per sq.yd. He became a member paid advance of Rs. 40,000/- on 9.10.1999 whereupon plot No. 183 was allotted by issuing pass book No. 1547. Later he paid the amounts in instalments totalling Rs. 82,000/-. However, the respondent did not execute agreement of sale as per clause-4 of the pass book on the ground it would be executed on payment of Rs. 1 lakh. The respondent did not provide copies of documents for verification of title. More over procurement of land was not even made. When the respondent agent demanded the amount he asked him to come with copies of documents in order to pay remaining balance but he did not turn up. Therefore he got legal notice issued followed by complaint seeking registration of sale deed in his favour after receiving balance of sale consideration besides compensation of Rs. 1 lakh towards mental agony and costs.
3) The respondent resisted the case. While admitting that it had floated a venture for sale of house plots, however, the cost of the plot is Rs. 1,300/- per sq.yd and total cost is Rs. 2,60,000/- besides payment of development charges and other charges as mentioned in the application. On payment of Rs. 40,000/- the complainant was given membership. However, no plot was allotted to him. Only on payment of amount, documents for legal verification would be provided after completion of the scheme. The complainant was a defaulter, not entitled to allotment. The plot that said to have been allotted to him was already sold away. In fact the documents he sought could be obtained from the public authority. If any member continuously fails to pay the instalments for a period of three months his membership will be cancelled without any further notice. The cheque that was given on 23.12.2001 for Rs. 2,000/- was dishonoured. Since he was a chronic defaulter he was not entitled to any plot. The complainant has chose to file the complaint in 2008 for the last payment made on 4.6.2002, and therefore beyond limitation. There was no deficiency in service on its part nor unfair trade practise was adopted by it. Therefore, it prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A7 marked while the respondent filed the affidavit evidence of its Estate Officer and got Exs. B1 to B4 marked.
5) The Dist. Forum after considering the evidence placed on record opined that the complainant had paid in all Rs. 82,000/- as against Rs. 2,60,000/-. He did not pay the amounts as per the terms agreed upon. Therefore the respondent was directed to refund Rs. 82,000/- with interest @ 9% p.a., from 25.1.2008 together with costs of Rs. 2,000/-.
6) Aggrieved by the said order the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It did not consider the fact that the plot was allotted nor subsequent delay on the part of developer, and therefore prayed that registration of sale deed be granted.
7) During the course of hearing the appeal the respondent filed an application to receive extracts of sale deeds as additional evidence to show that the plot that said to have been allotted was already sold away. They are received and marked as Exs. B5 & B6.
8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
9) It is an undisputed fact that the respondent a developer floated a venture for sale of plots. The complainant alleges that on allotment he had to pay Rs. 1,000/- per sq.yd for the plot measuring 200 sq.yds in instalments, and accordingly he paid in all Rs. 82,000/- vide Ex. A1 pass book. The respondent alleges that the price that was fixed was Rs. 1,300/- per sq.yd, and an amount of Rs. 2,60,000/- was the consideration vide 4(b) of terms of application form Ex. B1. Clause-4(d) further stipulates that the amount could be paid in 45 monthly instalments. Rs. 40,000/- in the first month, Rs. 30,000/- each in the 10th, 20th, 30th & 40th months, and Rs. 10,000/- in 45th month. Clause-4(f) further stipulates that on payment of Rs. 1 lakh registration will be arranged at the end of the scheme. They had to pay development charges also. It also mentioned that land procurement was in progress.
10) It is not in dispute that the complainant had paid Rs. 82,000/- evidenced under pass book Ex. A1 as per his convenience not as per the terms of the application form. Whatever be the dates of payment the respondent had received without any demur. The respondent issued Ex. A6 dt. 25.11.2001 demanding the complainant to pay balance of Rs. 78,200/- as against Rs. 1,48,000/- to be payable by 15.12.2001. For the reasons best known the complainant did not respond to the notice. As could be seen from the entries in Ex. A1 pass book the last payment was on 16.6.2002. On 25.1.2008 after six years he issued legal notice that he “ opted for the outright purchase of plot No. 183 in Sy. NO. 101 of Sai Bhavani venture admeasuring 200 sq.yds but it did not come forward subject to production of the copies of the documents of the plot with approved layouts but it did not come forward, and they were silent without returning the money with interest thereon or register the plot allotted to him by taking advance consideration of Rs. 40,000/- together with monthly instalments to a tune of Rs. 42,000/-.” The respondent gave reply in Ex. A5 through its counsel informing that the consideration was Rs. 2,60,000/- and his membership was cancelled in view of default as per terms of the application. Finally it alleged “ However, my client is willing to refund the amount paid by your client as per company norms. You are requested to inform your client to visit the office of may client and take refund of the amount after complying with the usual formalities in the office.”
11) The complainant for the reasons best known contrary to recitals of the document alleges that the price was fixed at Rs. 1,000/- per sq.yd while Ex. B1 shows that it was Rs. 1,300/- per sq.yd. He could not explain as to why he did not pay the amount as per terms which we have mentioned earlier except Rs. 82,000/- paid as on 16.6.2002. He did not choose to pay any amount subsequently. A belated plea was taken that the documents were not arranged, and therefore he could not pay. We may state that the respondent
had already mentioned even in the pass book that all the formalities were completed and certain registered sale deeds were also executed for those customers who have paid the entire sale consideration. The complainant for a period of six years did not pay any amount. He did not contradict the version of the respondent when it stated that the cheque that was issued towards consideration was bounced. The stipulation that on failure to pay monthly instalments for a period of three months consecutively his membership would be cancelled without any further notice was not denied. The Dist. Forum has rightly observed from the facts that the complainant was defaulter and he did not comply the terms. As against Rs. 2,60,000/- he had paid hardly Rs. 82,000/- as on 16.6.2002. Since the agreement was not cancelled nor repudiated by virtue of Article 54 of Limitation Act it cannot be said that claim was barred by limitation, more so, in case of immovable property.
12) The respondent in order to impress that it has sold away the plot that was allotted to the complainant filed Exs. B5 & B6. Registered sale dt. 16.3.2006 in favour of Mohd. Nazeeruddin Ansari and Mohd. Abu Ayub Ansari pertain to plot No. 183 in Sy.Nos. 129 & 130 of Budvel village of Rajendranagar Mandal in Ranga Reddy Dist., whereas the plot that was sold to the complainant was in Sy.No. 101 evidenced from entries in the pass book. The respondent could not show that the very same plot that was allotted to the complainant was sold away. Whatever be the reason, we are of the opinion, in view of the fact that very complainant did not fulfil the terms of contract by paying the amounts in instalments on due dates, and that there was enormous delay of six years in payment of amounts, we do not intend to direct the respondent to execute sale deed in favour of the complainant. The Dist. Forum has rightly directed the respondent to refund the amount in view of its own undertaking in legal notice. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. We do not see any merits in the appeal.
13) In the result the appeal is dismissed. No costs. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
13/09/2011
*pnr
UP LOAD – O.K.
