C.C.92/2012

Between :

Sm. K. Swaroopa Rani,

W/o K. Ramesh

Aged 43 years, Occ : household

R/o 2-9-770, TNGO’s Colony,.

Hanumakonda, Warangal District                        ..                      Complainant

And

1.    M/s. HEP Hyd. Developers (P) Ltd

Represented by its Director A. V. Sainath,

Office at Flat no. 303, plot no. 251,

Suryasai Apartments, Telecom Nagar.

Gachi Bowli, Hyderabad.

2.    Smt. N. Hemalatha Devi,

W/o late N. Vishnu Murthy

Aged 48 years, Occ : household

R/o H. No. 2-10-753, Bank colony

Subedari, Hanumakonda,

Warangal District.

3.    Sri A. V. Sainath,

s/o late A. V. Krishna Rao

aged 34 years, occ : Business

R/o Flat no. 202,

Rajeshwara Land Mark Constructions,

Nagarjuna Nagar colony

Ameerpet, Hyderabad                                 .  opposite parties

Counsel for the complainant         :           M/s. K. Ravinder  Reddi

Counsel for the opposite parties               :           M/s. K. Venkata Raman for Ops 1 and 3

                                                                        M/s. M.A. Raheem for  R2.

Coram           ;          

                              Smt. M. Shreesha         ..          Hon’ble Incharge President

And

                                    Sri T. Ashok Kumar                ..         Hon’ble Member

Friday, the Twentieth Day of  September

Two Thousand Thirteen

          Oral Order       :   ( As per Sri T. Ashok Kumar , Hon’ble Member )

****

1.            This complaint is filed by the complainant praying to direct the opposite parties to return  Rs.28,36,293/- together with interest @18%  PA, to pay Rs.10 lakhs towards damages and pass such other order or orders.

2.            The brief case of the complainant is that her  mother, by name, Mukkka Pullamma, has purchased a plot of land bearing No. 26,27 and 28 admeasuring 901 sq. yards in survey no. 26/2/EE, situated at Srikari Meadows, Bangaliguda village, Aziz Nagar Gram Panchayat, Moinabad Mandal, Ranga Reddy District from the opposite parties under a registered sale deed No.2317/2006 dt.18.09.2006 and on the same day she entered into an agreement with the Ops to develop the same as per the terms and conditions mentioned therein.  The opposite parties collected Rs.1,750/- per sq. yard, including Rs.1200/- per sq. yard towards he development, levellng and fixing of the boundary stones. The opposite parties undertook to obtain sanction of layout plan from the competent authorities and to provide black top roads, drainage facilities, laying of sanitary pipes, arranging the street lighting in the internal roads with a provision for taking out connections to the buildings and also to plant shade giving trees along with the BT roads and maintain the same. When her mother approached the opposite parties for non-commencement of the work, they gave a letter dated 17.11.2006 and also undertaking dated 12.08.2007 assuring to complete the development work by 31.01.2008. Further agreeing in case of default, to refund Rs.23,42,600/-  @ Rs.2,600/- per sq. yard. While the things thus stood her  mother bequeathed 751 sq. yards out of the said property under a Will dated 22.02.2007 and died on 25.04.2008.  On her insistence, the 3^rd opposite party paid Rs. Two lakhs  on 07.07.2009 as per the undertaking dt.12.08.2007 and postponing to pay the remaining amount on some pretext or the other. Though the agreement for development was for 901 sq. yards  she is claiming only to the extent of 751 sq. yards . She is entitled to Rs.19,52,600/- out of an amount of Rs.23,42,600/- as agreed. she was deprived of using the said land and the said acts of Ops amounts to deficiency in service and unfair trade practice and hence the complaint.

3..        The opposite parties 1 and 3  filed counter  opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts of the counter  are as under :

It is true that the complainant’s mother purchased from them a plot bearing No. 26,27 and 28 admeasuring 901 sq. yards in sy. No. 26/2/EE situated at Srikari Meadows, Bangaliguda village under a registered sale deed no. 2317 dt.18.09.2006 and development agreement  dt.18.09.2006 and also payment of Rs.1750/- per sq. yards.  They also admitted giving of undertaking dated 12.08.2007assuring to complete the development work by 31.01.2008 or to refund the amount Rs.2,600/- per .sq. yard , in case of default. But contended it is not true to say that her mother Mukka Pullamma bequeathed 751 sq. yards out of the said property in her favour under a Will deed dated 22.02.2007 and  that after her mother’s death she approached the Ops and they paid Rs.2 lakhs on 07.07.2009 to her as per the undertaking dt.12.08.2007. OP no.3 contended  that on 07.07.2009, when the complainant’s husband by name Ramesh brought some anti-social elements came to their office and threatened him with dire consequences he  he paid Rs. Two lakhs to the complainant.  The complainant is not entitled for an amount of Rs.23,42,600/- as per the undertaking dt. 12.8.2007 or any  amount or any extent of land. The complainant’s husband purchased the above said plot through a mediator by name Raju and the said plot was registered in the name Pullamma who was the mother of the complainant and when Op 3 was about to  start development work t some local people with the help of some outsiders toppled the work as a result  of which OP 3 filed a suit in OS 303/2007 on the file of Junior Civil Judge’s Court, Chevella, RR District  against the Govt. of AP represented by the  District Collector, RR District an MRO, Moinabad  and  obtained an exparte decree on 08.07.2008 and thereafter OP 3  commenced the work. But the complainant’s husband forcibly obtained Rs.2 lakhs from him at  the instance of anti-social element and on the advice of the police he obtained injunction orders  in 2011 in O.S.No.3470/2009 on the file of V Jr. Civil Judge, Hyderabad restraining complainant and her  husband from interfering into the possession of OP3 over the suit schedule property  and the  complaint kept quiet all these years and thus prayed to dismiss the complaint.

4.    The second opposite party filed her counter contending that the complaint is not maintainable under C. P Act and it is true Smt. Mukka Pullamma  has  purchase of plot bearing No. 26,27 and 28 admeasuring 901 sq. yards at Srikari Meadows of Gangaliguda village  and entered into an agreement dt. 18.09.2006 with the Ops.  She did not receive any amount  and the assurances made by  the OP 1 and 3 is not binding on her.  She is not a signatory to the agreement. She is not aware of the undertaking dt.12.8.2007, the alleged Will dt.22.2.2007 in favour of the complainant by her mother and her mother’s death  and refund of Rs. 2 lakhs on 7.7.2009 to the complainant. she being the owner of the land to an extent of Ac.0.40 gts in sy. No. 26/2/E purchased from the third arties handed over the same to the Op 1 represented by OP 3 for development and a part of land been sold to the mother of the complainant from her share made  her to join as Vendor to the sale and agreement. She is not at all concerned with the dispute and that there is no deficiency in service on her part. She is also victim to the said Development agreement 20.09.2006 entered with the Ops 1 and 3.  The complainant addressed two letters dt. 5.11.2009 and 2.6.2011 only to the OP 3 and in the letter dt. 5.11.2009 there is also a mention of a civil dispute pending between the complainant and the Ops 1 and 3. . The complaint is barred by limitation and that there is no deficiency in service on her part and that the complaint is not maintainable and thus prayed to dismiss the complaint against her.

5.    Both sides filed evidence affidavit reiterating their respective pleadings and Ex. A-1 to A-7   were marked on behalf of the complainant and no documents   were marked for the Opposite parties.

6.    Heard both sides   with reference to their   respective contentions in detail.

7.    Ex. A-1 is sale deed dated 18.09.2006 entered in between the parties.  Ex. A2   is the agreement to Develop Land, dated 18.09.2006. Ex. A3 is the letter of Assurance dated 17.11.2006.  Ex. A4 is the declaration cum undertaking 12.08.2007. Ex. A5  is the letter dated 5.11.2009 from  the complainant to OP. 3.  Ex. A6 is the letter   dated 02.06.2011 from the complainant to OP.3.  Ex. A7 is the Photostat copy of  notarized  Will dated 22.02.2007 in favour of the complainant said to have been executed  by Mukka Pullamma, mother of the complainant.

8.    The Points for consideration are

(i)            Whether the consumer complaint is maintainable by virtue of the Will deed said to have been executed by the mother of the complainant in her favour ?

(ii)          Whether the complaint is barred by limitation ?

(iii)         Whether the complainant is entitled to refund of the amount as claimed for ?

(iv)         If so to what relief

9.    Point No. 1:

There is no dispute that Smt. Mukka Pullamma has purchased the plot of land bearing Nos 26,27 and 28 admeasuring 901 sq. yards in survey No. 26/2/EE, situated at Srikari Meadows, Bangaliguda village, Aziz Nagar Gram Panchayat, Moinabad Mandal, Ranga Reddy District from the opposite parties under a registered sale deed No.2317/2006 dt.18.09.2006  (Ex. A-1 ) and that also entered into a development agreement dated 18.09.2006  ( Ex. A -2  )  with the opposite parties  to develop the land. The contention of the complainant is that the opposite parties have collected Rs.1,750/- per sqft towards the development, leveling and fixing of the boundary stones as per lay out and also to obtain layout plan from the competent authorities and to provide black top roads, drainage facilities, laying of sanitary pipes, arranging the street lighting in the internal roads with a provision for taking out connections to the buildings and also to plant shade giving trees along with the BT roads and maintain the same but they did not commence the work as agreed  and that the mother of the complainant questioned the opposite parties in the said context and that OP. 3 gave a letter dt. 17.11.2006 ( Ex. A 3  ) Promising to complete the work but did not do so.  Subsequently also Ex A-4  letter dt. 12.8.2007 was given in favour of the mother complainant assuring to complete the development work by 31.1.2008 or to refund the amount at the r4ate of Rs.2,600/- per sq. yard ie  Rs.23,42,600/-. In case of default. The specific plea of the complainant is that the said Mukka Pullamma who is her mother bequeathed 751 sq. yards  out of the said properly in her favour under a Will dt. 22.02.2007. and that the said mother died on 25.4.2008 and thereafter the complainant approached the opposite parties to complete the development works but they postponed the same on one pretext or the other and that when she insisted the opposite parties OP. 1 & 3 paid Rs.2 lakhs on 07.07.2009 towards the amount payable by them as per the undertaking dt. 12.8.2007 and that postponed payment of balance amount and therefore she was constrained to file the complaint claiming Rs.38,35,296/- detailed in the complaint.

10. The opposite parties did not admit the case of the complainant regarding refund of money as put forth and also the Will deed and on the other hand pleaded ignorance about the said Will deed and that  the amounts of Rs. 2 lakhs were obtained by force with the help of unsocial elements. The complainant marked the said Photostat copy of the Will dated as Ex. A7.  As per law , Will deed is a compulsorily attestable document . The complainant did not plead that original Will deed is lost or damaged totally and filed only Photostat copy of it.   Admittedly she did not file original Will deed and prove the same by examining the attester (s)  as required under section 68  of Indian Evidence Act so that the opposite parties or any other person aggrieved by the said Will will have  right to cross examine the witness to test the  veracity of the evidence of the said attested.      It is not even a registered Will deed but a notarized one.  Profounder is required to establish that the Testatrix in a sound and disposing state of mind having understood  the nature and effect of disposition has subscribed her signature  on the Will of her free Will in the presence of the witnesses.  It is not the case of the complainant that the entire property was bequeathed in her favour but only part of the property was bequeathed in her favour.  According to her 150 sq. yards of land out of the said 901 sq. yards was bequeathed in favour of youngest son of the said Testatrix and he has not been made as party to these proceedings. In his absence it is not desirable to consider the Will and its genuineness. As per the contents of the copy of the said will the said Mukka Pullamma has three sons and that partition of the properties of the joint family was already affected and therefore the subject matter of this case was bequeathed giving 751 sq. yards in favour of the complainant and 150 sq. yards in favour of the youngest son of the complainant.  Whether any such partition had taken place or not among the sons of the deceased Pullamma is also not on record as no dependable evidence is placed in the shape of evidence before this Commission. Deprivation of the natural heirs by the testatrix creates a suspicion and therefore presence of all the legal heirs of the said testatrix is also necessary for just  adjudication  of the matter.  All the said complicated aspects require detailed enquiry and it is possible only in civil court but not before the Consumer Commission where only summary procedure is prescribed for. In a decision between Trai Foods Ltd Vs. . National Insurance Company Ltd and another reported in III (2012) CPJ 17 it was held that where detailed evidence is required to be led the parties have to be relegated to Civil Court.  In “Oriental INSURANCE Company Ltd vs Munimahesh Patel” IV (2006) CPJ 1 , the insurance company disputed the genuineness of the documents and the Hon’ble Supreme Court held that where the matter involves adjudication of issues involving disputed factual questions, Consumer Forum cannot adjudicate the matter and the complainant was entitled to seek relief in court of competent jurisdiction. On analogy the said decisions are based to direct the complainant herein  to approach Civil court for redressal as complicated questions involved including the ‘’Will aspect  in this case which can be answered by a Civil court but not by this Commission under Consumer Protection Act. It is much more so when the OP.3 contends that  a decree was passed in his favour in the year 2011 by V Jr. Civil Judge, Civil Court, Hyderabad restraining the complainant and her husband from interfering with his possession over the suit schedule property therein.  Thus, Point no. 1  is decided against the complainant.  In view of the said finding on issue no. 1 this Commission is of view other points need not answered as the complainant is directed to approach Civil Court for redressal.

11. In the result, the complaint is disposed of directing the complainant to approach Civil court for redressal and in such an event she he is entitled for exclusion of the period spent between filing of the claim till disposal of the Appeal U/s. 14 of the Indian Limitation Act, 1963 for the purposes  of limitation  in the light of the decision of the Hon’ble Supreme Court of India in  Laxmi Engineering Works Vs P.S.G. Industrial Institute on 4 April, 1995   : AIR 1428, 1995 SCC (3) 583.   No costs.

                                                                                    I/c PRESIDENT

                                                                                    MEMBER

                                                                                    DATED    : 20.09.2013.

                                                Contd…  page 10

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR COMPLAINANT                                  :           None

FOR OPPOSITE PARTIES                        ;           None

                                                DOCUMENTS MARKED

FOR COMPLAINANT

Ex. A-1 is sale deed dated 18.09.2006 entered in between the parties.
Ex. A2   is the agreement to Develop Land, dated 18.09.2006.

 Ex.A3 is the letter of Assurance dated 17.11.2006. 
Ex. A4 is the declaration cum Undertaking 12.08.2007.

Ex. A5  is the letter dated 5.11.2009 from  the complainant to OP. 3. 

Ex. A6 is the letter   dated 02.06.2011 from the complainant to OP.3.  

Ex. A7 is the Photostat copy of  notarized  Will dated 22.02.2007 in favour of the

complainant said to have been executed  by Mukka Pullamma, mother of the complainant.

FOR OPPOSITE PARTIES                        :           NIL

                                                                                    I/c PRESIDENT

                                                                                    MEMBER

                                                                                    DATED    : 20.09.2013.