F.A.No. 244 OF 2013 AGAINST  C.C.NO.59 OF 2012 DISTRICT FORUM, SRIKAKULAM.

Between:

Vysyaraju Chandramouli Raju

S/o.Vithal Raju,aged about  years,

Hindu, Occ:Managing Partner,

Kanakamahalakshmi Real Estate &

Constructions, Upstairs of Andhra

Bank Mahila, Near Murali Talkies,

Srikakulam Town and District.                                                                       ..Appellant/

                                                                                                                Opp.party

A N D

Durgavajjala Sravanth,

S/o.D.Murali Krishna Sarma,

Aged about 19 years, Hindu,

Occ:Student, R/o.Plot No.17, Visakha

“B” Colony, Srikakulam Town and district.                                                       Respondent/

                                                                                                                Complainant

Counsel for the Appellant              Mr. A.Rama Rao.

Counsel for the Respondent           Mr.P.Suresh Kumar.

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE I/c.President.

                                                                        SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

AND

SRI S.BHUJANGA RAO, HON’BLE MEMBER.

TUESDAY, THE THIRTY FIRST DAY OF DECEMBER

                                                                                                 TWO THOUSAND THIRTEEN

 Order (As per Sri R.Lakshminarasimha Rao, Hon’ble I/c. President)

                                                                                                                ***

The opposite party is the appellant.

The complaint is filed for a direction to the appellant to execute and register sale deed in favour of the respondent in respect of site in Kanakamahalakshmi Real Estate and Constructions, Srikakulam and pay Rs.30,000/- towards mental agony and costs of Rs.2,000/-.

The respondent a minor represented by his father intended to purchase a plot in Kanakamahalakshmi Real Estate and Constructions, Srikakulam and the appellant executed  agreement in favour of the respondent for allotment of plot to an extent of 36’ x 60’ in the layout at the rate of Rs.350/-per instalment and collected the instalments from the parents of the respondent.  The respondent submitted that the appellant executed an agreement on 01-7-1994 in favour of the respondent and thereafter the parents of the respondent requested the appellant to execute a registered sale deed in favour of the respondent.  The respondent submitted that the appellant is having a gold shop and the respondent and his parents  regularly contacted the appellant over phone and the appellant evaded to execute the sale deed. 

The respondent submitted that he got issued  notice on 05-5-2011 to the appellant  to execute the sale deed within 15 days else would  file a complaint and the appellant received the notice on 06-5-2011 and when the respondent’s parents approached him the appellant informed them that he will not execute any document or the sale deed or refund the amount.

The appellant filed counter resisting the complaint. The appellant submitted that as per the terms of scheme and conditions in the agreement and brochure, each member has to pay 54 monthly instalments @ Rs.350/- per month without committing any default and in case of default for a period of three months, their name will be removed from the scheme and the firm will not refund the amount paid by the member as per condition No.6 of the brochure.  The respondent is a defaulter and he is not entitled for the plot and also for  repayment of the amount paid by him and the firm has declared the respondent as a defaulter and terminated his membership. 

The appellant submitted that the respondent has paid the entire of 49 instalments to the firm.  The respondent has shown the appellant  in his personal capacity and hence the complaint is not maintainable against the appellant in individual capacity.  The appellant further submitted that the firm has no records as the scheme lapsed long ago and the plots were registered in favour of the members and there are no plots available and the  firm was dissolved and the complaint filed after lapse of 11 years is not maintainable and hence the complaint is liable to be dismissed.

The respondent filed his affidavit and relied on Exs.A1 to A5 and the appellant filed his affidavit in support of his case and no documents were marked on his behalf.

The District Forum allowed the complaint directing the appellant to execute registered sale deed in favour of the complainant by receiving due amount of 5 instalments from the respondent with interest at 15% p.a. from the dates of default respectively  at the time of registration OR refund 49 months instalments to the complainant with interest at 18% p.a. from the date of deposit of instalments respectively till the date of realization together with compensation of Rs.7,000/- and costs of Rs.3,000/-.

 Aggrieved by the order of the District Forum, the opposite party has filed appeal contending that the complaint is filed after 17 years of execution of agreement and as such the complaint is barred by law of limitation and that in view of observation of the District Forum that the respondent had failed to pay 5 installments, the award for compensation and costs is not justified . It is contended that as per the terms of the scheme if the member does not pay the installments for a period of 3 months, his name would be removed from the list of members and the amount paid by him is non-refundable and as such cannot be returned to him.

The point for consideration is whether the order of the District Forum suffers from mis-appreciation of facts or law?

The respondent joined the venture floated by the appellant, ”Kanakalakshmi Real Estate and Constructions” and his parents on his behalf entered into agreement with the appellant on 1.07.1994 for purchase of plot therein. As per the terms and conditions of the scheme mentioned in the Agreement, each member has to pay 54 installments @ Rs.350/- per month regularly without committing any default. The learned counsel for the appellant has submitted that the respondent is a defaulter and he is not entitled to the plot or refund of the amount.

Clause 6 of the terms of brochure provides for non-refund of the amount in case the member commits any default in payment of the installments. Paragraph 8 of the written version would show that the respondent had paid 49 installments and the District Forum returned finding that the appellants refused to receive the balance installments. Default of payment of balance sale consideration would arise in case the respondent failed to pay the amount and not on refusal to receive the amount by the appellant. The District Forum observed at page 4 of the order:

“In these circumstances, we are holding that the opposite party received Rs.17,150/- for a plot, promised to register the plot, but they failed to do so.  The contention of the opposite party that the complainant has not paid the instalments also cannot be accepted.  The contention of the opposite party that as the complainant became a defaulter, they refused to register the plot also cannot be accepted.  As a prudent and reasonable person who joined as a member for allotment of plot, the complainant with her parents definitely approached the opposite party with anxiety, as she already paid the amount.  It seems that the opposite party, only to avoid registration in favour of the complainant, they rejected to receive the last 5 instalments, and saying cock and bull stories to the complainant, to the public as well as to this Forum.  When the opposite party received Rs.17,150/- to allot plot initially and promised to intimate the same to the complainant and after intimation by mentioning the date of registration also, it is the duty of opposite party to register the plot.  In the absence of such material on behalf of the opposite party, the contention of the opposite party cannot be accepted”

As the appellant refused to receive the balance installments from the parents of the respondent, the respondent has stated that his brothers and parents continuously had gone on requesting the appellant to receive the amount and register the plot.

The learned counsel for the appellant has contended that the complaint is not filed within the period of limitation.  The appellant has not denied that amenities have not been provided till date and in view of the failure of the appellant to provide the amenities and in the light of the respondent’s brothers and parents continuously requesting the appellant to receive the balance sale consideration and register the plot in favour of the respondent, the District Forum has rightly held that the cause of action for filing the complaint is continuing and as such the appellant’s contention that the complaint is barred by provisions of limitation act is devoid of any substance.

In “Raghava Real estate’s Ltd Vijayawada vs Vishnupuram Colony Welfare Association” 2012(4), the National Commission held that the developer failed to provide the amenities properly and the District Forum appointed executive engineer who after inspecting the building pointed out certain defects and it was held by the National Commission that the amenities promised to be provided if not provided, the cause of action therefor is continuing and it cannot be said that the complaint is barred by time.

Apart from failure to provide the amenities, the appellant has not obtained layout approval for the project.  A combined effect of the appellant’s refusal to receive the balance sale consideration, non-providing the amenities in the venture and his non-obtaining the layout approval for the venture coupled with the appellant’s negligence to deny the contents of the notice dated 5.05.2011 would give rise cause of action for the respondent to file the complaint which is filed well within the prescribed period of two years. Therefore, the complaint cannot be said to be filed beyond the period of limitation.

The District Forum directed the appellant to execute sale deed or refund the amount with interest. The District Forum has not considered the averment of the written version that the plots were sold and no plot is available to be sold to the respondent. Hence, the relief for registration of the plot is liable to be set aside. We do not find the rest of the reliefs arbitrary or unreasonable.

In the result, the appeal is allowed. The order of the District Forum is modified.  The relief for execution of sale deed is set aside and the rest of the reliefs are confirmed. There shall be no separate order as to costs. Time for compliance four weeks.

                                                                                                        Sd/-INCHARGE PRESIDENT.

                                                                                                        Sd/-MEMBER.

                                                                                                        Sd/-MEMBER.

                                                                                                        Dt.31-12-2013.