BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 1795/2007 against C.C. 124/2007, Dist. Forum-III, Hyderabad.
Between:
Janaharsha Estate ‘N’ Construction (P) Ltd.
Regd. Office at : 12-5-149/17
Opp. Railway Degree College
Secunderabad
Rep. by its Managing Director
T.V. Ramana Murthy *** Appellant/
Opposite Party
And
K. Narasimha Reddy
S/o. Late Buchi Reddy
Age: 41 years, Employee
R/o. MIG 463, Phase-I
BHEL Ramachandrapuram
Medak Dist. *** Respondent/
Complainant.
Counsel for the Appellant: M/s. B.S. Prasad.
Counsel for the Resp: M/s. Y. Joseph.
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
WEDNESDAY, THIS THE NINETEENTH DAY OF JUNE TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
***
1) This is an appeal preferred by the opposite party a construction company against the order of the Dist. Forum directing it register the plots purchased by the complainant after receiving balance of sale consideration.
2) The case of the complainant in brief is that the appellant floated a scheme for sale of plots under the name and style of Dream City-II, Garden Unit. He joined as a member for three units viz., 5622, 5663 and 5664 @ 120 sq.yds each by paying an admission fee of Rs. 100/- each together with Rs. 120/- towards development charges. He had to pay Rs. 7,000/- each towards special instalment and Rs. 700/- each per month in 50 equated monthly instalments. The appellant promised to grow six teak plants and fruit plants in each of the plots, and send its agent for collection. He was regular in payment of instalments. In all he paid Rs. 54,600/- up till 16th instalment.
Thereafter the collection boy stopped collecting the instalments. When he contacted, the appellant alleged that he would come and collect. However, when he did not come, the complainant got issued a legal notice on 11.11.2006 calling upon the appellant to receive the balance instalments, and register the plots. However, the appellant did not choose to give any reply. Therefore he sought registration of plots after receiving balance of consideration besides compensation of Rs. 10,000/- and costs.
3) The appellant resisted the case. While denying each and every allegation made it alleged that the complaint was barred by limitation. The remedy lies by filing a civil suit in a Civil Court. It had never agreed to send any person for collecting the amount. It was made only to throw the blame against it. He was irregular in payment of amounts. Clause – 9 of the terms and conditions stipulate that if he fails to pay three consequtive instalments his membership would be terminated. He was irregular and therefore he was not entitled to registration of plots. It had to pay expenses incurred for showing sites and pay income tax besides expenses. Therefore it prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A4 marked while the appellant filed the affidavit evidence of its Managing Director T. V. Ramana Murthy and filed Exs. B1 to B3 membership applications and Ex. B4 statement of account.
5) The Dist. Forum after considering the evidence placed on record opined that the complainant had paid a total sum of Rs. 54,600/- evidenced under statement of account Ex. B4, however, the appellant did not execute the sale deeds by collecting balance of consideration despite the notice issued by the complainant, and therefore it directed the appellant to register the plots after receiving balance of amount besides paying compensation of Rs. 5,000/- and costs of Rs. 2,000/-.
6) Aggrieved by the said order, the appellant preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. It ought to have seen that the complainant was irregular in payment of amount and therefore liable for cancellation of membership by virtue of clause-11 of the agreement. He defaulted in payment of 15 monthly instalments. Therefore it prayed for dismissal of the complaint with costs.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that the appellant floated a scheme wherein the complainant had become a member for purchase of plots of 120 sq.yds each. It is also not in dispute that as against Rs. 42,000/- he had paid Rs. 18,000/-. In other words out of 50 instalments he had paid 16 instalments. The complainant asserts that as the agent was not coming and collecting the amounts he could not pay the remaining balance. The appellant disputed the said fact. However, it could not give any explanation or reason for not issuing any notice for consistent default by the complainant. It is important to note that despite notice was served on the appellant mentioning the above facts and informing that he was ready to pay the remaining balance and requested it to register the plots in his favour, the appellant did not choose to give any reply. The appellant did not dispute the receipt of notice. It is evidenced by acknowledgement. The complainant asserts that it is the appellant who was at fault in not sending its agent for receipt of the amount, while the appellant asserts that it is for the complainant to pay the amount and if consistently instalments for three months are not paid it would entail termination of membership without any notice. In this regard the appellant relied on clause -11 which reads as follows :
“Monthly instalment should be paid before 20th of every month and a printed receipt for the same should be taken by the payee. Every month paying instalments to the company within due date is totally member’s responsibility. The company does not recognize any other receipt than issued by us in lieu”
9) At the outset we may state that all these clauses are loaded in favour of the appellant. Even assuming that it had a right to cancel the membership, it did not do so. May be there was no need to issue notice. However, there is no reason why the appellant did not inform the said fact when the complainant issued notice making allegations. We may state that the canceling the membership is altogether different from cancellation of agreement. The appellant did not terminate the membership by issuing any notice. Recoursing to provisions of forfeiture in order to appropriate the entire amount without any corresponding provision is illegal and contrary to Section 23 of the Indian Contract Act and bad under law. The appellant is not entitled to appropriate the amount. Either it could refund the amount or collect balance of amount and register the plots. The appellant never invoked this provision by issuing notice. Only when the complainant had filed the complaint, the appellant by way of counter resisted the claim. As the Dist. Forum has rightly pointed out that the appellant did not plead that the plots were allotted in favour of third parties. The scheme had been in force by the date of filing of the complaint. When the complainant had made clear his intention of purchasing the plots by paying balance of amount, the appellant ought to have accepted the same. At the most it could have claimed some interest. However, it cannot appropriate the entire amount by canceling the membership. At no time the appellant had invoked this clause-11 in order to deny the relief claimed by the complainant. We do not see any mis-appreciation of fact or law in this regard by the Dist. Forum. There are no merits in the appeal.
10) In the result the appeal is dismissed. No costs. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 19. 05. 2010.
*pnr
“UP LOAD – O.K.”
