R.P.No.58/2010 against I.A.No.264/2009 in C.C.S.R.No.1423/2009, DISTRICT FORUM, NELLORE.

Between:

K.Samrajyalakshmi, W/o.Venkateswara Rao,

R/o.D.No.4-5-54, Chandramoulinagar,

Kalyani Road, Guntur.                                                                                        .. Revision Petitioner                                                                                                                                                             Complainant

And

1. Sri Bhagavan Venkaiah Swamy Real Estates,

    Rep. by its Managing Partner, T.Mohan Rao,

    O/o.Ramji Constructions, Ramalingapuram

    Main Road, Nellore.

2. Sri Bhagavan Venkaiah Swamy Real Estates

    Rep. by its partner, Vaartha Ramachandra

    Rao, R/o.Adityanagar, Near Childrens Park,

    Nellore.

3. Sri Bhagavan Venkaiah Swamy Real Estates

    Rep. by its Partner V.Mohan Naidu,

    R/o. Ramji Constructions, Ramalingapuram

    Main Road, Nellore.                                                                                                 ..Respondents/

                                                                                                                                         Opp.parties

Counsel for the Petitioner: M/s. V.Gourisankara Rao

Counsel for the Respondents: Admission Stage.

 QUORUM:   THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT                                                 

AND

SMT.M.SHREESHA,  MEMBER

.

TUESDAY, THE TWELFTH DAY OF OCTOBER,

TWO THOUSAND TEN

Oral order:(Per Hon’ble Justice Sri D.Appa Rao, President)
***

Having heard the learned counsel for the revision petitioner and having perused the record, we are of the opinion that the matter can be disposed of at the stage of admission itself.

The case of the complainant in brief is that she joined as a Member in the first respondent real estate venture wherein R2 and R3 are partners for purchase of a plot.  She paid Rs.10,000/- through various instalments, the last instalment being 10-3-1996.  Despite her requests, they did not allot or register the plot.  Therefore, she sought for allotment and registration of the plot together with compensation of Rs.2,00,000/- and along with the complaint, she filed I.A.No.264/2009 to condone delay of 4155 days.

When notices were issued, R1 did not choose to contest, however, R2 and R3 denied the allegations made in the complaint and contended that they have no concern whatsoever with R1 real estate firm.  They never met her nor received any amount and therefore they are not aware of the transaction between her and R1 and prayed to dismiss the petition.

The District Forum after considering the pleadings placed in this regard opined that no reason whatsoever was mentioned in order to prove that there was sufficient cause to condone the delay and consequently dismissed the complaint.

Aggrieved by the said order, the complainant preferred this revision contending that failure to give possession of the plot or refund of money is continuous cause of action as laid down in JULIET V.QUADROS v. MRS. MALTI KUMAR reported in 2005 CPJ 499 (CP) (NCDRC) = 2005(2) CPR 1 (NC) and consequently the question of limitation does not arise but however they have filed a petition to condone the delay.

The point that arises for consideration is whether the order of the District Forum suffers from any infirmity in the light of the plea taken by R2 and R3 that they are not concerned with the venture and the complainant could not prove her case by filing documentary evidence that R2 and R3 are in fact partners?

At the outset, we may state that the complainant paid Rs.10,000/- by 10-3-1996 for purchase of a plot.  The very relief is for allotment of plot and registration of sale deed.  From 10-3-1996 upto the date of filing of the complaint in 2009, she did not either issue notice or take any action and the reason assigned was that she was staying at a far of place.  We do not see as to how she is justified to claim allotment of plot or for registration  in view of her residing at a far of place.  The National Commission in  Punjab Urban Planning and Development Authority Vs. Kishan Pal Chander in R.P. No. 1583/2005 dt.  23.11.2009  held that in case plot was not allotted,  he would be considered as a prospective investor only, and that he cannot be considered as a consumer.   For benefit we excerpt a passage from the  order:

“Foras below have erred in not appreciating that mere application for allotment did not give the respondent, any right to the allotment of the plot. It is well settled that filing of application for allotment at the highest, grants the proposed allottee, only a right to be considered and no higher right than that accrues to him. This question has been examined by Hon’ble Supreme Court in Morgan Stanley Mutual Fund v. Kartick Das reported in (1994) 4 SCC 225 in which it was held as under:-

“31. Therefore, it is after allotment, rights may arise as per the  contract (Article of Association of Company). But certainly not before allotment. At that stage, he is only a prospective investor (sic in) future goods. The issue was yet to open on 27-4-1993. There is not purchase of goods for a consideration nor again could he be called the hirer of the services of the company for a consideration. In order to satisfy the requirement of above definition of consumer, it is clear that there must be a transaction of buying goods for consideration under Clause 2(1)(d)(i) of the said Act. The definition contemplates the pre-existence of a completed transaction of a sale and purchase. If regard is had to the definition of complaint under the Act, it will be clear that no prospective investor could fall under the Act.

Since she was a prospective consumer at the most, we do not see any illegal exercise of jurisdiction by the District Forum.   We do not see any merits in this revision petition.

Accordingly the revision petition is dismissed at the stage of admission.  There shall be no order as to costs.

Sd/-PRESIDENT.

Sd/-MEMBER.

JM                                                                                                             Dt.12-10-2010