BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
C.C.No.58 of 2010
Between:
Ms Maria Christina D/o P.Alex
aged 45 years, Occ: Pvt Employee
R/o Flat No.5-3, Sri Sai Jyothi Apartments
Bowenpally, Secunderabad-O11
Complainant
A N D
1. M/s Krushi Realtors (P) Ltd.,
rep. by its Managing Partner
Flat No.301, on Plot No.71
Krushi Sreya Enclave, Aditya Nagar
Kapra, ECIL, R.R.Dist-062
2. B.Ramchandra Reddy S/o Siva Reddy
aged about 46 years, Occ: Managing Partner
of M/s Krushi Realtors, R/o Flat No.301, on Plot No.71
Krushi Sreya Enclave, Adityanagar, Kapra ECIL
R.R.Distrct -062
Opposite parties
Counsel for the Complainant M/s Karra Srinivas
Counsel for the Respondent M/s D.Jagadishwar Rao
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
FRIDAY THE FOURTEENTH DAY OF SEPTEMBER
TWO THOUSAND TWELVE
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The complaint is filed seeking possession of two flats in ground floor and one flat in the first floor or in the alternative for payment of `70,43,000/- and costs of the proceedings.
2. The averments of the complaint are that the complainant is the owner of plot bearing number 41 in survey number 495 and 499 admeasuring 314.5 sq.yards situated at Arul Colony, Kapra village and Municipality, Keesara Mandal, Ranga Reddy District. She purchased the property through registered sale deed bearing document no.2650 of 1991 dated 26.06.1991 and her vendor purchased the property under registered sale deed bearing document number 26.11.1981. The complainant executed agreement of sale cum general power of attorney on 3.01.2001 in favour of the opposite party no.1 and authorized both the opposite parties to develop the property and for applying for sanction and permission. The sale consideration was fixed at `1,43,000/-.
3. The complainant handed over the documents and link documents to the opposite parties. The complainant entered into development agreement on 3.01.2001 with the opposite parties for development of the property. As per the Development Agreement , the opposite parties agreed to undertake construction of the flats as per sanction plan and provide three flats to the complainant, viz., two flats in ground floor and one flat in the first floor. The opposite parties paid consideration to the complainant towards non-refundable consideration and agreed to complete construction of the flats within 18 months after obtaining sanction from the authorities concerned.
4. The opposite parties acted contrary to the authority given to them by collecting huge money from prospective purchasers and committed breach of contract, the complainant cancelled the sale agreement cum general power of attorney dated 3.01.2001 through registered document bearing number 4385 of 2001 dated 3.08.2001 and she had sent copy of the agreement of sale on 25.08.2001 to the opposite parties which was received by them on 27.08.2001. The opposite parties agreed under the development agreement to pay interest@3% per month on the value of the flats undelivered and they are liable to pay interest in respect of undelivered flats to the complainant.
5. Even after the agreement of sale cum general power of attorney was cancelled on 23.08.2001, the opposite parties proceeded with the construction and constructed four mulgies in the ground floor , six flats in the first floor, second floor and pent house in the terrace and one bed room flat in the ground floor contrary to the development agreement. The opposite parties had not completed construction of flats in the ground floor and first floor allotted to the complainant. The opposite parties had not delivered possession of the flats allotted to the complainant after 9years and the complainant had sent notices through telegraph and postal department.
6. The complainant came to know that the opposite parties executed sale deeds in respect of the undivided share of land in favour of Joseph Chenna Reddy through document bearing number 1985 of 2001 dated11.04.2001 and subsequently cancelled the sale deed through document bearing number 1968 of 2001 dated 19.04.2002. The complainant lodged complaint with the police, Kushaiguda on 25.08.2001 and the police registered a case for offence under section 420 IPC against the opposite parties.
7. The claim is resisted by the opposite parties on the premise that the complainant entered into development agreement with them and thereafter the complainant expressed her intention to sell the property to the extent of 237.67 sq.yards out of 314.67sq.yards and they mutually agreed to bear their respective cost of construction proportionately. The complainant executed agreement of sale cum general power of attorney on the same day leaving the development agreement aside. The agreement of sale was executed for a consideration of `1,43,000/- out of which the opposite parties paid an amount of `1,42,000/- through cheque and an amount of `1,000/- in cash.
8. The complainant delivered vacant possession of the land to the opposite parties and the opposite parties have become absolute owners of the property. The complainant is not consumer and the relationship between the complainant and the opposite parties is that of seller and buyer. The development agreement was treated as cancelled in view of the agreement of sale. The complainant and the opposite parties have made application to the MCH for according permission. The MCH sanctioned permission for construction of G+2 upper floors. At request of the complainant, the opposite parties agreed to allot a flat in the ground floor and another flat in the first floor and the complainant agreed to contribute proportionately the cost of construction in respect of her two flats.
9. The opposite parties started construction of the building and the complainant did not cooperate by not paying the her contribution of her two flats. The opposite parties in order to keep long relations completed the frame structure work and in pursuance of their rights, sold their flats to purchasers and delivered possession of the flats to them. The opposite parties issued reminders and the complainant did not make payment. The complainant expressed her inability to arrange for money and requested the opposite parties to stop the construction work of the two flats. She addressed letters in this regard. The opposite parties completed the rest of the work and handed over the common areas to the flat owner’s society and kept themselves away from the building. Thereafter, the complainant’s whereabouts were not known to the opposite parties.
10. The complainant lodged complaint with Police, Kushaiguda in the month of August,2009 and the police without ascertaining true facts registered case against the opposite parties in Crime No.589 of2009 under Section 420 of IPC and after enquiry they filed final report stating that the case is of civil nature and does not attract ingredients of Section 420 of IPC. During the enquiry by the Police, the opposite parties came to know about the cancellation of the Agreement of sale in the month of August,2001 without the knowledge of the opposite parties and they would take legal steps to cancel the cancellation deed. Bilateral agreement cannot be unilaterally cancelled. The complainant received the entire sale consideration and cancelled the agreement unilaterally which shows lack of bonafides of the complainant and as such the complaint is not maintainable.
11. The complaint is barred by limitation. The complainant approached the Commission after lapse of nine years and filed beyond the period of limitation. Initially, the complainant entered into development agreement with the opposite parties on 3.01.2001 and she changed her mind on the same day and expressed her desire to sell 237.67 sq.yards and requested the opposite parties to develop her 77.00 sq.yards along with the land of the opposite parties for which she requested for allotment of two flats, one in the ground floor and another flat in the first floor .After executing the agreement of sale, the development agreement was treated as null and void. The development agreement stood cancelled.
12. The complainant attempted to make a case on non-existing development agreement. The complainant cannot unilaterally cancel agreement of sale which is followed by consideration and delivery of possession of the plot. The opposite parties have not received any notice from the complainant about the cancellation of the agreement of sale. The opposite parties proceeded with the construction of building and sold flats to third parties who obtained loan from the Banks. The complainant is not a consumer and there is no deficiency in service on the part of the opposite parties.
13. The complainant has filed her affidavit and the documents,ExA1 toA17. The complainant filed the affidavit of Koneti Srinivas. On behalf of the opposite parties ,DWs1 to DW4 had been examined and the documents, ExB1 toB14.
14. The learned counsel for the complainant advanced oral arguments and filed written arguments while the learned counsel for the opposite parties submitted oral arguments.
15. The points for consideration are:
i) Whether the complaint is filed within the period of limitation?
ii) Whether the complainant is a consumer?
iii) Whether the matter involves ingredients of contract of specific performance to be adjudicated by civil court?
iv) Whether the opposite parties rendered deficient service?
v) To what relief?
16. POINTS NO.1 TO 4: The complainant purchased plot bearing number 41 in survey number 495 and 499 admeasuring 314.5 sq.yards situate at Arul Colony, Kapra village and Municipality, Keesara Mandal, Ranga Reddy District, under registered sale deed bearing document number 2650 26.06.1991. The complainant entered into development agreement with the opposite parties on 3.01.2001 and she executed agreement of sale cum general power of attorney in favour of the opposite parties on the same day for consideration of `1,43,000/-.
17. The agreement of sale is irrevocable and executed by the complainant in favour of the first opposite party for consideration of `1,43,000/-. The complainant delivered possession of the plot in pursuance of the agreement of sale. The complainant acknowledged receipt of the consideration in the agreement of sale. The complainant entered into land development agreement with the opposite parties on 3.01.2001 whereunder the opposite parties agreed to provide two flats consisting of a flat measuring 840 sq.ft in the ground floor and another flat measuring 930 sq.ft in the first floor. The opposite parties paid non-refundable amount of `2,00,000/-to the complainant. The complainant cancelled the agreement of sale cum general power of attorney on 23.01.2001.
18 . All the three documents were executed in the year,2001. The agreement of sale was cancelled by executing the cancellation deed wherein it is mentioned that she executed the agreement of sale in favour of the first opposite party , being confused and misguided and she had not received the full sale consideration and then she cancelled the agreement of sale and entered land development agreement with the same opposite party later.
19. The agreement of sale as per its contentions is irrevocable. The complainant cannot unilaterally cancel the agreement of sale. In the teeth of the agreement of sale, the complainant cannot seek any relief. If it is presumed that the agreement of sale does not survive by virtue of cancellation sale deed, the other document relied upon by the complainant is the development agreement does not support the case of the complainant. Clause 8 of the development agreement prohibits the complainant from interfering with the possession of the opposite parties over the property during the period of construction and it further provides for no right to the complainant over the property once she received the amount from the opposite parties. Admittedly, under the land development agreement the complainant acknowledged receipt of the amount from the complainant on 3.01.2001.
20. The complainant interfered with construction process of the building in contravention of the terms and conditions particularly the condition no.8 of the development agreement. She issued telegraphic notice under ExB2 to B5 to K.Suntiha, the second opposite party and B.Krishna Reddy and in her cross examination she admitted that she interfered with the construction work of the building by instructing the second opposite party not to enter the plot over which the construction was being made and stop the construction work. The complainant had issued the telegraphic notices,ExB4 and B5 on 9/09/2001and 10/09/2001respectively. The complainant after issuing notice to the opposite parties to stop construction work of the flats in the year,2001 has now been seeking for possession of the flats stating that she waited for 9 years for the opposite parties to complete the construction of the flats.
21. If viewed the matter from another angle, the development agreement would provide for a period of 18 months for the opposite parties to complete the construction of the flats. The complainant states that she is entitled to three flats or their value as also interest on the value thereof in terms of clause 10 of the development agreement. Clause 10 of the development agreement provides for payment of interest @3% on the value of the both flats in case the opposite parties failed to deliver the flats within a period of 18 months and the clause fasten liability to pay interest @3% on the cost of the total construction on the complainant for the stoppage or delay in the construction in case of dispute for whatsoever reasons. The complainant cannot claim any amount in terms of the development agreement of whose terms she had violated and she cannot seek the relief having failed to establish deficiency in service on the part of the opposite parties.
22. The complainant has failed to show as to what steps she had taken from the year2001 till she had chosen to get issued notice to the opposite parties in the year,2010 and she has admitted that she was waiting for 9 years without taking any legal action. The complainant executed the development agreement and the agreement of sale as also the cancellation deed in the year,2001 and she had issued notice under ExB4 and ExB5 on 9.09.2001 and 10.09.2001. The complaint has to be filed within the period of two years from the date of cause of action. The complainant had issued instructions to stop the construction in the year,2001 . The period provided under the development agreement is 18 months from the date of execution which was expired by 3.2.2003.
23. In State Bank of India Vs M/s B.S.Agricultural Industries in Civil Appeal No.2067 of 2002, the Hon’ble Supreme Court held that:
7. Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:“24A. Limitation period – (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in subsection (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”
24. The complainant has not based her claim on any tenable evidence. The agreement of sale executed by her in favour of the first opposite party transfers all her rights over the property to the firs opposite party. The cancellation deed has no binding effect till the agreement of sale is cancelled by appropriate legal course of action. The development agreement has no effect nor does it support the claim of the complainant in view of violation of its terms by the complainant and in view of it being superseded by the agreement of sale. The complainant issuing notice to the opposite parties to stop the construction of the flats in the year would go against her claim in view of the terms of the agreement on which she placed reliance. The complainant had not explained any reason for not filing the complaint within the limitation period or the complainant has not filed any application to condone the delay. The complainant has failed to establish that she got right over the property as also she failed to prove deficiency in service on the part of the opposite parties.
25. The learned counsel for the complainant has contended that the complaint is not barred by limitation and cause of action for filing the complaint is continuous. He has relied upon the following decisions:
1. Shanti Kunj Sahkari Grih Nirman Samiti Ltd. & Anr Vs Ram Surat Roy (Dr.) reported I (2010) CPJ 109 (NC)
2. Premier Homes Vs Oliver Archibald Arnha & Anr reported in I (2010) CPJ 16 (NC)
26. In the case of Shanti Kunj Sahari Grih Nirman, the National Commission observed that question of limitation which was not raised befrore the District Forum and State Commission cannot be raised in the appeal after a period of 8 years of file of the appeal.
27. Premier Homes is a case where purchaser of the flat paid an amount of `5 lakh in the year 1995 and on failure of the builder to complete the project within the promised period, the complainant got issued notice and filed the complaint. The National Commission confirmed the order of the District Forum it held that the builder failed to proceed with the construction and there was no progress with regard to the construction as also that there was no lapse on the part of the complainant. In the present case, the complainant has cancelled the agreement of sale as also issued telegraphic instructions in the year 2001 to the opposite parties not to enter the property and stop the construction work of the building and filed the complaint in the year 2010. As such the decision fo the National Commission is not applicable to the facts of the case.
28. The learned counsel for the opposite parties has submitted that the complaint is hopelessly barred by limitation. He has relied upon the following decisions:
1. Smt G.Rajitha vs M/s Devi Constructions in C.C.No.191 of 2010 decided on 7.4.2011 of the National Commission
2. Karima Malik vs M/s Paras Builders and another in C.C.No.95 of 2012 decided on 6.7.2012 of the National Commission
3. Ramratan M.Shriwas vs Jayanth H.Thakkar reported in IV (2011) CPJ 114 (NC)
4. V.N.Shrikhande (Dr.) Vs Anita Sena Fernandes reported in (2011) 1 Supreme Court Cases 53
5. V.Kamala and others Vs A.P.State Consumer Disputes Redressal Commission and others reported in 2010(3) ALT 483 (D.B.)
6. State Bank of India Vs M/s B.S.Agricultural Industries (I) reported in 2009 (3) CPR 784 (SC)
29. In all the aforementioned decisions it was held that the continuous correspondence between the parties cannot confer on the complainant or extend the period of limitation to file the complaint beyond the stipulated period. The limitation period prescribed under Sec.24A of C.P.Act is preemptory in nature and the complaint has to be filed within the period of limitation of two year from the date of cause of action.
30. We have already held in the above mentioned paragraphs that the complaint is not filed within the period of limitation and that the relief of specific performance is beyond the purview of the provisions of the C.P.Act. The deficiency in service on the part of the opposite parties cannot be held in the light of the complainant’s own negligence. In any view of the matter, the complaint is not maintainable and is liable to be dismissed.
31. In the result the complaint is dismissed. There shall be no order as to costs.
MEMBER
MEMBER
Dt.14.09.2012
KMK*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant for opposite parties
NIL NIL
EXHIBITS MARKED
For complainant
Ex. A1 Copy of Regd Sale Deed Docket No. 2650 of 1991 executed by Fernandez in favour of Ms. Maria Christina Alex dated 26.06.1991
Ex. A2 Copy of the Regd. Agreement of Sale cum General Power of Attorney bearing Docket No.39 of 2001 executed by Complainant in favour of Opposite Parties, dated 03.01.2001
Ex. A3 Copy of the Registered Cancellation of GPA bearing Docket No.4385 of 2001 executed by M/s. Maria Christina Alex and B. Ramachandra Reddy i.e. Opposite party No.2, dated 23.08.2001
Ex. A4 Copy of the Letter from the Complainant to the Opposite Parties, dated 23.08.2001
Ex. A5 Postal Acknowledgment, dated 27.08.2001
Ex. A6 Copy of the FIR No.589 of 2009 issued by the SHO, PS, Kishaiguda,, dated 25.08.2009
Ex. A7 Copy of the complaint from the Complainant to the SHO,
PS, Kishaiguda,, dated 23.08.2009
Ex. A8 Office copy of the Legal Notice from the complainant to the Opposite party, dated 25.03.2010.
Ex.A9 Postal Receipt, dated 29.03.2010
Ex.A10 Complaint from Complainant to Post Master, dated 23.04.2010
Ex.A11 Land Development Agreement between complaint and opposite parties, dated 03.01.2001.
Ex.A12 Confirmatory copy of Phonogram message of complainant to opposite party
Ex.A13 Confirmatory copy of Phonogram message of complainant to opposite party
Ex.A14 Confirmatory copy of Phonogram message dated 26.05.2007 from complainant to opposite party
Ex.A15 Copy of the complainant dated 21.04.2010 from complainant to Post Master LIC division
Ex.A16 Original Letter No.2010-2011 dated 26.04.2010 from the Superintendent of Post office to complainant.
Ex.A17 Original copy of the reply of the No.500300-17284, dated 07.05.2010 from Hyderabad city Customer Care Center to the complainant.
For opposite parties
Ex.B1 Xerox copy of cancellation of sale deed dated 13.12.2002
Ex.B2 Xerox copy of sale deed dated 18.04.2002
Ex.B3 Xerox copy of cancellation of sale deed dated 23.09.2002
Ex.B4 Xerox copy of sale deed dated 11.04.2001
Ex. B5 Xerox copy of cancellation of sale deed dated 17.04.2002
Ex. B6 Xerox copy of sale deed dated 11.04.2001
Ex.B7 Final Reports.
MEMBER
MEMBER
