Telangana

Mahbubnagar

CC/11/41

Keerthi D/o Sanjeevaiah - Complainant(s)

Versus

1. M/s Sri Vahini Estates, Rep. by its Partners and 5 Others - Opp.Party(s)

Sri M. Chennaiah Goud

21 Nov 2011

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

                                                                                Monday, the 21^st day of November, 2011 

                                                         Present:- Sri P. Sridhara Rao, B.Sc., LL.B., President

       Sri A. Veerupakshi, B.A., LL.B., Member       

C.C.NO. 41 Of   2011

Between:-

Keerthi D/o Sanjeevaiah, age: 16 years, minor, Rep. by her father natural guardian Sanjeevaiah S/o G. Chinna Sayanna, age: 40 years,

Occ: Builder, R/o H.No.1-1-9/i/28, New Mothinagar, Mahabubnagar Town.                               … Complainant

And

1. M/s Sri Vahini Estates, Rep. by its Partners, Shop No.8-6-92/B, Beside Petrol pump, Padmavathi Colony, Mahabubnagar.
2. Soma Shaker S/o Mallappa, age 49 years, Occ: Business,R/o Chowlapally village, Keshampet Mandal, Mahabubnagar District.
3. E.J.Rabert S/o E.D.John, age 39 years, Occ: Business,R/o H.No.1-1-9/1/6E, New Mothinagar, Mahabubnagar.
4. Challa Saibaba S/o Sheshagiri Rao, age 40 years, Occ: Business,R/o H.No.5-2-64, New Town, Rajendranagar, Mahabubnagar.
5. Devarsetty Srinivas S/o Venkataiah, age 38 years, Occ: Business  R/o H.No.8-4-172, Padmavathi Colony, Mahabubnagar.
6. Koramoni  Krishnaiah S/o Balaiah, age 45 years, Occ: Business,  R/o H.No.3-7,Yenugonda village,  Mahabubnagar Mandal and District.                                                                                                                                   … Opposite Parties

 

 This C.C. coming on before us for final hearing on 15-11-2011 in the presence of Sri M. Chennaiah Goud, Advocate, Mahabubnagar on behalf of the complainant and Sri B. Ramnath Goud, Advocate, Mahabubnagar for OPs.1, 5 & 6, Sri N. Madhusudhan Yadav, Advocate, Mahabubnagar for      OP-3, Sri C. Rajeev Kumar, Advocate, Mahabubnagar for OP-4 and the OP-2 having been set exparte and the matter having stood over for consideration till this day, this Forum made the following:   

O R D E R

 (Sri A. Veerupakshi, Member)

1.  This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties to execute and register the sale deed in respect of plot No.152 in Sy.No.46 within the limits of Appannapally H/o Yedira village, Mahabubnagar mandal and district in favour of the complainant and to pay an amount of Rs.20,000/- towards compensation for mental agony, financial stress and for deficiency of service and Rs.5,000/- towards costs of the complaint.  

2.   The averments of the complaint in brief are that:- The opposite party No.1 is a firm and the opposite party Nos.2 to 6 are its partners and they have floated a housing plots scheme under the name and style as Vahini Nagar in Sy.No.46 situated within the limits of Appannapally H/o Yedira village, Mahabubnagar Mandal and District.  As per the housing plots scheme, the scheme period is for 50 months, there will be a lucky draw on every month of the scheme at the office of opposite parties and the lucky winner need not pay further monthly installments.  The area of the plot is 150 Sq. yards and the total cost is Rs.35,000/- and every member has to pay Rs.350/- per month for 50 months which comes to Rs.17,500/-, the remaining plot cost of Rs.17,500/- has to be paid on two occasions one @ Rs.10,000/- for reservation of the plot and Rs.7,500/- at the time of registration of the plot. The complainant on believing the words of the opposite parties became the member of the scheme and was allotted membership No.777 by the opposite parties. During the course of the said transaction the complainant has paid total plot cost of Rs.35,000/- to the opposite parties as per the scheme rules i.e., Rs.17,500/- in 50 monthly installments @ Rs.350/- per month, Rs.5,000/- each on 7-6-2002 and 11-6-2002 towards the reservation of the plot and Rs.7,500/- on 15-7-2005 towards registration of the plot to the opposite parties and obtained receipts from them. The complainant also further paid a sum of Rs.3,600/- towards the stamp duty and registration charges to the opposite parties.  The opposite parties, having received the entire plot price from the complainant, allotted plot No.152 in favour of the complainant and accordingly executed agreement of purchase on 11-6-2002 in respect of plot No.152 in favour of the complainant with a promise to execute the registered sale deed and give possession of the plot within week days and later on started postponing the same on some pretext or other and ultimately failed to do so inspite of the repeated demands made by the complainant. It is further avered that there is a boom that the opposite parties are intending to sell the plots to third parties who are not the members of the scheme at a higher price, as such they are not executing the sale deed in favour of the complainant despite receiving the entire plot cost. Such acts on the part of the opposite parties amounts to deficiency of service and unfair trade practice. It is also further avered that the complainant had earlier filed a complaint through her maternal grand father against the opposite parties in C.C.No.67/2009 and subsequently withdrawn the same with the permission to file fresh complaint through her father and thus filed the present fresh complaint for the aforesaid relief.   

 3.  While the OP-2 remained exparte, the OPs.1, 5 and 6 having entered into their appearance and availing sufficient opportunity failed to file their counter.  

4.   The opposite party No.3 filed counter while admitting that the OP-1 is the firm while the OPs.2 to 6 are the partners of OP-1 firm, commencing the scheme in question in the month of November, 1999, denied the other material averments of the complaint and stated that the complainant is neither a member nor she paid any installments to the OP-1 firm and the allegations levelled are all created and the documents filed by her are all fabricated for the purpose of filing of this present complaint, and that the OPs.2 to 6 never executed any such alleged agreement of purchase in favour of the complainant and the complainant is making all false and baseless allegations against this opposite party, as such the question of deficiency of service and causing mental agony to the complainant by this opposite party does not arise and that the complaint is time barred, as such the complaint is liable to be dismissed with examplary costs. 

5.   The opposite party No.4 filed counter denying the averments of the complaint and stated that the motive attributed to this opposite party is false and baseless and the complainant never approached this opposite party with regard to the present transaction and that the complaint is frivolous and vexatious and therefore the complaint is liable to be dismissed against this opposite party.  

6.   Thereupon, the complainant in support of her claim got filed the affidavit evidence through her fahter and the additional affidavit through her maternal grand father and got marked Exs.A-1 to A-66.  On the other hand, the OPs.3 and 4 filed their affidavit evidence seperately and got no documents marked. 

7.     The points for determination now are:-

1. Whether the complaint is barred by limitation?
2. Whether there is any deficiency and unfair trade practice on the part of the opposite parties? 
3.  Whether the complainant is entitled for the reliefs sought for by her?
4.   To what effect?                                                                                                                                                                                                 

         8.Point No.1:- It is the contention of the learned counsel for the OPs.3 and 4 that the present complaint is barred by limitation since the earlier complaint in C.C.No.67/2009 has been withdrawn by the complainant without following the due procedure, as such the present complaint itself is not maintainable. On this aspect, the contention of the learned counsel for the complainant is that the earlier complaint in C.C.No.67/2009 filed by the complainant was withdrawn with the permission of the Court when there was a decretal objection with regard to the guardianship of the complainant was raised in the matter and further the opposite parties, having received the entire scheme amount, still they failed to execute the registered sale deed in favour of the complainant, as such the period of limitation continues till its execution and therefore the complaint is within limitation. A perusal of the material on record clearly goes to show that the complainant got filed the earlier complaint in C.C.No.67/2009 through her maternal grand father and during its pendency when there was a technical objection raised in the matter by the opposite parties with regard to the guardianship, the complainant at that stage withdrew the complaint with a permission to file the present complaint through her father who is no other than her natural guardian.  So, it is a fact borne out from the record that the complainant in the earlier C.C.No.67/2009 and in the present complaint is one and the same except change of her guardian to file the complaint on her behalf that too with permission.  It is the case of the complainant that the opposite parties, having received the entire scheme amount as per the terms and conditions of the scheme and executing the agreement of purchase, ultimately failed to execute the registered sale deed in her favour inspite of making repeated demands.  In fact the OPs.1,2, 5 and 6 did not challenge the case of the complainant since the OP-2  remained exparte and the OPs.1, 5 and 6 having entered into their appearance and availing sufficient opportunity failed to file any counter.  At the same time, OP-3 clearly admitted in his counter about his partnership in OP-1 firm along with OPs.1,2 and 4 to 6, but ofcourse denied the membership of the complainant in the scheme and the payments said to have been made by her while OP-4 completely denied the case of the complainant. In view of the non challenging the case of the complainant by OPs.1, 2, 5 & 6 and the part admission made by OP-3 it is a fact borne out from the record that the opposite parties having received the entire scheme still did not register the plot in favour of the complainant.  Therefore, it can clearly be said that though the transaction pertains to the period between November, 1999 and 2004, and still the registered sale deed is not yet executed, we find that the period of limitation continues till the date of registration of the sale deed in favour of the complainant.  Therefore, for the reasons stated above we hold that the complaint is within time.  Hence we find that there is no force in the contention of the learned counsel for the OPs.3 and 4.  The point is answered accordingly in favour of the complainant and against the opposite parties.      

 9.   Point Nos.2 and 3:- It is the case of the complainant that the OPs.2 to 6 are the partners of OP-1 firm and they started the present scheme in the month of November, 1999 for a period of 50 months.  The same is not disputed by any of the opposite parties, for the reason that the OP-2 remained exparte and OPs.1, 5 and 6 did not choose to file any counter challenging the case of the complainant. Similarly, OP-3 in his counter clearly admitted that he is also one of the partners of OP-1 firm along with the other opposite parties.  That apart, Ex.A-57 and A-66 copies of Partnership Deed and Register of Firms respectively also clearly supports the case of the complainant. So it can clearly be said that the complainant had clearly established that the OPs.2 to 6 are the partners of the OP-1 firm.   

10.   It is the case of the complainant that as per the terms and conditions of the scheme she paid the entire scheme amount and obtained receipts from the opposite parties.  It is a fact borne out from the record that the receipts Exs.A-1 to A-53 clearly supports the case of the complainant with regard to the payments made by her to the opposite parties as per the terms and conditions of the scheme. The OPs.1, 5 and 6 did not file any counter challenging the case of the complainant while OP-2 remained exparte. The only contention of OPs.3 and 4 is that they are not having any knowledge about the present transaction of the complainant with the OP-1 firm.  Except their oral testimony they did not produce any positive proof in that regard.  Therefore, we find that the contention raised by the OPs.3 and 4 is not tenable. In the absence of any such proof it cannot be said that the complainant has not complied the terms and conditions of the scheme.                 In other words, it can clearly be said that the complainant had clearly established the payments made by her to the opposite parties as per the terms and conditions of the scheme.  It is also a fact borne out from the record that the opposite parties, having received the entire scheme amount as per the terms and conditions of the scheme and so also allotting plot No.152 and executing the agreement of purchase and ultimately still failed to execute the sale deed in favour of the complainant. Hence, we find that such act on the part of the opposite parties in not registering the sale deed in favour of the complainant even after receiving the entire scheme amount amounts to deficiency of service and unfair trade practice on their part.  Therefore, for the reasons stated above, we hold that the complainant had clearly established her case on the ground of deficiency of service and unfair trade practice on the part of the opposite parties, as such we find that the complainant is entitled for the relief sought for by her besides some reasonable compensation and costs. Both the points are answered accordingly in favour of the complainant and against the opposite parties.           

11.  Point No.4:- In the result, the complaint is allowed in part directing the opposite parties jointly and severally to execute the registered sale deed in favour of the complainant in respect of plot No.152 in Sy.No.46 within the limits of Appannapally H/o Yedira village, Mahabubnagar mandal and district and so also to pay to the complainant a sum of Rs.1,000/- towards compensation and Rs.500/- towards costs of the complaint within one month from the date of the present order.        

                  Typed to dictation, corrected and pronounced by us in the open Forum on this the 21^st day of November, 2011.    

 

                                                                                                     I agree                            

MEMBER                                                                                  PRESIDENT                        

  Appendix of evidence

      List of Witness examined

On behalf of Complainant:                          On behalf of Opposite Parties:   

- Nil -                                                                      - Nil -                                       

List of documents marked:-

On behalf of Complainant:-    

Ex.A-1: Original Receipt, dt.3.11.1999.

Ex.A-2: Original Receipt, dt.3.11.1999.

Ex.A-3: Original Receipt, dt.6.10.1999.

Ex.A-4: Original Receipt, dt.6.1.2000.

Ex.A-5: Original Receipt, dt.4.2.2000.

Ex.A-6: Original Receipt, dt.14.3.2000.

Ex.A-7: Original Receipt, dt.6.4.2000.

Ex.A-8: Original Receipt, dt.8.5.2000.

Ex.A-9: Original Receipt, dt.2.6.2000.

Ex.A-10: Original Receipt, dt.18.7.2000.

Ex.A-11: Original Receipt, dt.4.8.2000.

Ex.A-12: Original Receipt, dt.10.9.2000.

Ex.A-13: Original Receipt, dt.4.11.2000.

Ex.A-14: Original Receipt, dt.4.11.2000.

Ex.A-15: Original Receipt, dt.2.12.2000.

Ex.A-16: Original Receipt, dt.19.1.2001.

Ex.A-17: Original Receipt, dt.3.2.2001.

Ex.A-18: Original Receipt, dt.5.3.2001.

Ex.A-19: Original Receipt, dt.4.4.2001.

Ex.A-20: Original Receipt, dt.1.5.2001.

Ex.A-21: Original Receipt, dt.6.6.2001.

Ex.A-22: Original Receipt, dt.2.7.2001.

Ex.A-23: Original Receipt, dt.3.8.2001.

Ex.A-24: Original Receipt, dt.3.9.2001.

Ex.A-25: Original Receipt, dt.5.10.2001.

Ex.A-26: Original Receipt, dt.6.11.2001.

Ex.A-27: Original Receipt, dt.3.12.2001.

Ex.A-28: Original Receipt, dt.7.1.2002.

Ex.A-29: Original Receipt, dt.21.2.2002.

Ex.A-30: Original Receipt, dt.14.3.2002.

Ex.A-31: Original Receipt, dt.6.4.2002.

Ex.A-32: Original Receipt, dt.7.5.2002.

Ex.A-33: Original Receipt, dt.3.6.2002.

Ex.A-34: Original Receipt, dt.1.7.2002.

Ex.A-35: Original Receipt, dt.5.8.2002.

Ex.A-36: Original Receipt, dt.3.9.2002.

Ex.A-37: Original Receipt, dt.6.10.2002.

Ex.A-38: Original Receipt, dt.8.11.2002.

Ex.A-39: Original Receipt, dt.4.12.2002.

Ex.A-40: Original Receipt, dt.17.1.2003.

Ex.A-41: Original Receipt, dt.7.2.2003.

Ex.A-42: Original Receipt, dt.8.3.2003.

Ex.A-43: Original Receipt, dt.4.4.2003.

Ex.A-44: Original Receipt, dt.5.5.2003.

Ex.A-45: Original Receipt, dt.7.6.2003.

Ex.A-46: Original Receipt, dt.7.6.2003.

Ex.A-47: Original Receipt, dt.3.8.2003.

Ex.A-48: Original Receipt, dt.31.8.2003.

Ex.A-49: Original Receipt, dt.11.10.2003.

Ex.A-50: Original Receipt, dt.1.11.2003.

Ex.A-51: Original Plot Reservation Receipt, dt.7.6.2002.

Ex.A-52: Original Plot Reservation Receipt, dt.11.6.2002.

Ex.A-53: Original Plot Reservation Receipt, dt.15.7.2005.

Ex.A-54: Agreement of Purchase, dt.11.6.2002.

Ex.A-55: Copy of Layout.

Ex.A-56: Photostat copy of Brochure.

Ex.A-57: Photostat copy of Partnership Deed, dt.5.8.1999.

Ex.A-58: Photostat copy of Sale Deed, dt.16.2.2000.

Ex.A-59: Photostat copy of Sale Deed, dt.15.3.2000.

Ex.A-60: Photostat copy of Sale Deed, dt.21.8.2000.

Ex.A-61: Photostat copy of Sale Deed, dt.9.5.2002.

Ex.A-62: Photostat copy of Sale Deed, dt.13.6.2002.

Ex.A-63: Photostat copy of Sale Deed, dt.17.10.2001.

Ex.A-64: Photostat copy of Sale Deed, dt.13.6.2002.

Ex.A-65: Copy of E.C., dt.8.7.2010.

Ex.A-66: Photostat copy of Register of Firms.  

On behalf of OPs.:                          

       - Nil -                                                                                        

 

                                                                        PRESIDENT                                                                                                   

Copy to:-

1. Sri M. Chennaiah Goud, Advocate, Mahabubnagar on behalf of the complainant. 2. Sri B. Ramnath Goud, Advocate, Mahabubnagar for OPs.1, 5 & 6.

3. Sri N. Madhusudhan Yadav, Advocate, Mahabubnagar for OP-3.

4. Sri C. Rajeev Kumar, Advocate, Mahabubnagar for OP-4.

5. Soma Shaker S/o Mallappa, age 49 years, Occ: Business,

R/o Chowlapally village, Keshampet Mandal, Mahabubnagar District. (OP-2)