BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD.

C.C.No.11/2013

Between:

K.Jagannadha Rao S/o.K.Lakshmi Narayana

Aged 61 years, Retired Government Servant,

R/o.H.No.6-3-595/50, Padmavathinagar Colony

Khairatabad, Hyderbad-500 004.                                                                   Complainant

        And

1. Bajrang Lal Agarwal, S/o.late Brij Mohan

Agarwal, aged about 56 years Proprietor of

M/s Bajrang constructions, R/o.Bunglow No.2,

Burton Road, Bajrangnagar Colony

Bolaram, Secunderabad Cantonment,

Secunderabad-5000 010.

1. Pattam Vijay Kumar S/o.late P.M.Swamy

R/o.No.2B, A.K.Heights,

Plot No.120, Sriramnagar Colony

Puppalaguda, Hyderabad-500 001.

1. Smt.V.P.Asha, W/o.Pattam Vijay Kumar.

R/o.No.2B, A.K.Heights,

Plot No.120, Sriramnagar Colony

Puppalaguda, Hyderabad-500 001.                                                         ..Opposite parties.

Counsel for the  complainant: M/s P.V.Mahesh

Counsel for the Opp.parties : M/s.N.Raghavan-O.P.1

                                        M/s Srinivas Bazar Ops.2 & 3.

QUORUM: HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA, PRESIDENT.

AND

SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER.

THURSDAY, THE TENTH DAY OF JULY,

TWO THOUSAND FOURTEEN

Oral Order (As per Hon’ble Sri Justice GopalaKrishna Tamada, President)

***

This complaint is filed U/s.17 of Consumer Protection Act, 1986 to direct the opposite parties to execute a sale deed transferring the Flat No.2B in 2^nd floor of A.K.Heights, Plot No.120, Sriramnagar Colony, Puppalaguda, Hyderabad on receipt of the agreed balance sale consideration of Rs.18,50,000/- in favour of the complainant

                                Or

alternatively direct the 1^st opposite party to pay an amount of Rs.26,30,000/- towards loss sustained by the complainant and award costs.

        The brief facts as stated in the complaint are that the opposite party No.1 is the builder and the complainant entered into an agreement of sale on 18-12-2008 to purchase Flat No.2B in 2^nd floor for a valid sale consideration of Rs.20,50,000/- and parted with an amount of Rs.2,00,000/- on that day itself.  Despite the fact that he expressed his willingness to pay the balance sale consideration, opposite party No.1 did not come forward to receive the same and sold away the said property to opposite parties 2 and 3 and in those circumstances, the complainant got issued a legal notice and thereafter approached this Commission and filed the present complaint.

        The same is resisted by the opposite party No.1 stating that originally the flat was in an extent of 1300 sft. but there is a dispute with regard to the extent as to whether it is 1200 sft or 1300 sft.  The sale consideration was not fixed but according to opposite party No.1, the total sale consideration would not be less than 26,40,000/- as each sq. ft. was sold at the rate of Rs.2,200/- as evidenced by agreement of sale.  It is  admitted by opposite party no.1 that an amount of Rs.2 lakhs was paid initially and thereafter though the opposite party No.1 completed the construction and demanded balance payment as per the terms of the agreement of sale  the complainant has not come forward to pay the balance sale consideration and get the sale deed executed.  In those circumstances, it necessitated the builder i.e. opposite party No.1 to forfeit the said amount of Rs.2 lakhs which was paid towards advance and he sold the said flat in favour of opposite parties 2 and 3 and submitted that the complaint is hopelessly barred by limitation and prayed for dismissal of the complaint.

        Opposite parties 2 and 3 also contested the matter by filing a detailed written version wherein they denied the purchase of this flat i.e. flat No.2B in 2^nd floor and according to them they purchased flat No.101 in first floor for a valid consideration of Rs.22,50,000/- by obtaining loan from Life Insurance Corporation of India and submitted that the property purchased by them is different from that of the property purchased by the complainant and therefore the complaint is not maintainable against them and prayed for dismissal of the complaint.

        The complainant filed his affidavit and relied on Exs.A1 to A3 and the opposite party No.1 filed his affidavit and affidavit of opposite party No.2 filed on behalf of opposite parties 2 and 3 and no documents were marked on their behalf.

        From a perusal of the pleadings, we are of the view that this matter cannot be decided by this Commission in a summary manner for the reason that it relates to a title dispute.  Apparently the flat was sold and even according to the complainant that is the reason why he impleaded the purchasers of the flat as opposite parties 2 and 3.  When the said flat is not in existence and the same was sold to third parties i.e. opposite parties 2 and 3, third parties rights came into existence and it is impossible for this Commission to dispose of this complaint in a summary manner as it is done when there is deficiency of service. 

Ultimately even if we come to the conclusion that the said act on the part of the opposite party No.1 will amount to deficiency of service, we cannot pass an order and grant relief as sought for by the complainant in his complaint and it is for the competent civil court to adjudicate the matter and  it has to go into the title and decide the issue in a comprehensive manner. 

Accordingly we see no merits in this complaint and the same is dismissed.  There shall be no order as to costs.  It is needless to observe that the time spent in prosecuting this complaint is exempted  and the complainant is at liberty to approach the competent civil court and the period spent between the filing of the complaint before this Commission and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Hon’ble Supreme Court in “Trai Foods Ltd vs National Insurance Company Ltd and others” reported in (2004) 13 SCC 656.

Sd/-PRESIDENT.                                                 

                                                        Sd/-MEMBER.

JM                                                     Dt.10-7-2014.

                             //APPENDIX OF EVIDENCE//

                                WITNESSES EXAMINED

For complainant:                                                 For Opp.parties:

Affidavit of the  complainant filed.                                   Proprietor of  OP.1

                                                                                      filed his affidavit.

                                                                                      OP.2 filed his affidavit.

Exhibits marked on behalf of the complainants:

Ex.A1-Agreement of sale executed by 1^st opposite party in favour of complainant

          Dated 18-12-2008.

Ex.A2-Legal notice got issued by the complainant dt.25-6-2012.

Ex.A3-Reply got issued by 1^st opposite party to the complainant dated 12-7-2012.

Sd/-PRESIDENT.                                                 

                                                        Sd/-MEMBER.

JM                                                     Dt.10-7-2014.