BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.

F.A. 1715/2007 against C.C. 714/2006, Dist. Forum-II, Visakapatnam.

Between:

Yalavarthi Udayabahanu

D/o. Vijayabhaskara Rao

Age: 36 years, R/o. Kuchipudi

Guntur Dist. *** Appellant/

Complainant

And

1) Kiran Krishna Real Estate & Constructions

Pvt. Ltd., Rep. by its Managing Director

V. Krishna Prasad,

D.No. 50-40-13, TPT Colony

Seethammadhara, Visakapatnam.

2) Kiran Krishna Real Estate & Constructions

Pvt. Ltd., Rep. by its Director

P. Anandababu,

D.No. 50-40-13, TPT Colony

Seethammadhara, Visakapatnam. *** Respondents/

Ops.

Counsel for the Appellant: M/s. Jayanti S. C. Sekhar

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

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

&

SMT. M. SHREESHA, MEMBER.

MONDAY, THIS THE THIRTYFIRST DAY OF MAY TWO THOUSAND TEN

ORAL ORDER:(Per Hon’ble Sri Justice D.Appa Rao, President.)

***

1) This is an appeal preferred by the complainant against the order of the Dist. Forum in directing to refund of the amount instead of directing registration of plot.

2) The case of the complainant in brief is that the respondent is doing real estate and construction business floated a venture wherein it formed a lay out in S.No. 18,19,20,22, 24 & 25 in Kummaripalem village of Bhimili in Visakapatnam under the name and style of ‘Sea Breeze enclave lay out’. Accordingly he entered into an agreement on 26.2.1997 for 267 sq.yds. He paid Rs. 3,150/- initially and later in instalments. He had paid full consideration of Rs. 79,833/-. Though it had agreed to hand over the plot after obtaining regular lay out plan from VUDA, it had failed to do so. For the legal notice issued it did not evoke any reply and therefore he filed the complaint to direct the respondents to register the plot in his favour with approved lay out plan together with compensation of Rs. 30,000/- and costs of Rs. 3,000/-.

3) The respondents resisted the case. They denied each and every allegation made in the complaint. However, they admitted that an amount of Rs. 3,150/- was received towards advance and Rs. 45,950/- in 32 instalments, the last instalment being 30.8.2000. They denied receipt Dt. 30.9.2002 and other receipts showing the amounts alleged to have been paid. They were forged and fabricated. They were inadmissible in evidence. The last payment was dt. 30.8.2000 and no subsequent payments were made. Clause 3 of the agreement stipulates that if there is any default in payment of insalments the entire amount could be forfeited. In fact the said amount was forfeited in the year 2000 itself. The complainant had created letter Dt. 10.11.2004 taking the letter head from one of its employees. It was barred by limitation. The claim was vexatious and therefore prayed for dismissal of the complaint with costs of Rs. 10,000/-.

4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A42 marked. Refuting his evidence respondents filed the affidavit evidence of one of its Director Sri P. Ananda Babu, and got Exs. B1 photostat copy of ledger marked.

5) The Dist. Forum after considering the evidence placed on record opined that the respondents had agreed to develop the land and make lay out. They did not do so. The complainant had paid in all Rs. 53,300/- and failed to pay balance consideration, and therefore directed the respondents to pay the said amount together with compensation of Rs. 5,000/- and costs of Rs. 1,000/-.

6) Aggrieved by the said order, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. It ought to have seen that having accepted the other receipts and though the respondents did not dispute Exs. A31, A34, and A36, not believing them is unreasonable and unjustified. The very fact that the respondents did not file its ledger would itself show that they had suppressed these payments. He was entitled for registration of plot besides compensation at Rs. 1,200/- per square yard.

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 respondent is dealing in real estate. It is also a construction company. It had floated a venture under the name and style of ‘Sea Breeze Enclave’ near Visakapatnam wherein it had agreed to sell 267 sq.yds of site evidenced under agreement Ex. A1. In the terms and conditions, among other things, it had agreed that it would allot the plots after VUDA approval. Entire formation and development of layout will be completed during the period of venture.

9) It is also not in dispute that the complainant had paid the entire amount evidenced under various receipts totaling Rs. 79,833/- The respondents admitted having received initial instalment of Rs. 3,150/- and Rs. 45,950/- under 32 instalments besides Rs. 900/- under receipt No. 679009. They alleged that the amount of Rs. 45,950/- was forfeited in the year 2000 itself as he committed default in payment of instalments.

10) The complainant has admittedly issued notice through his advocate under Ex. A40 mentioning that he had paid the entire amount of Rs. 79,833/-. He directed the respondents to register the plot in his favour. The respondents received the notice vide acknowledgement Exs. A41 & A42. They did not give any reply. Curiously in the counter, the respondents alleged that “ The lawyer notice dt. 18.8.2006 though received by the Ops they did not issue any reply since it does not deserve any reply. More so in view of the fact that the matters are hopelessly time barred.”

11) We may state herein that the respondent did not cancel the agreement nor intimated the complainant that it had forfeited the amount on the ground that there was default in payment of instalments. It cannot forfeit the amount unilaterally without even issuing notice. It is not as though the respondents gave notice declining to execute the sale deed. Had such a notice been issued section 54 of the Limitation Act would come into operation. The limitation would commence from the date of repudiation of claim by the respondents. For the first time it had repudiated the claim by filing counter on the complaint filed by the complainant. Even otherwise, the complainant had categorically stated that the respondents had agreed to register the plot vide its letter Ex. A39 Dt. 10.11.2004. The letter reads as follows :

“We are sorry for incompletion of registration work of the above said layout. You have completely paid all the amounts of instalments. We assure you that the plot registration will be done within 3 months and the documents will be handed over in last week of February, 2005. We request you to please kindly co-operate with us.”

Now it cannot turn round and statethat the complainant had created the said letter. Despite the fact that the complainant had filed the said letter and the respondents were aware that it was not issued by them, they did not take any steps to prove that the complainant had fabricated the letter. The complainant could not have the letter-head of the respondents in order to create such a letter. It could have filed the registers showing that the person who signed as ‘Manager’ was not the person who was employed by it. All these defences are raised obviously in order to defeat the claim of the complainant. The respondents contended that the receipt No. 74696 Dt. 30.9.2002 for Rs. 23,000/- and other receipts alleged to have been issued after 30.8.2000 were all fabricated and forged. In order to substantiate it has produced photostat copy of ledger. Though it has undertaken to file original at the time of enquiry, it did not do so. At para 11 of the counter, it mentioned that “ The true copy of ledger and other documents filed by the Ops may please be treated as part of this counter. Originals will be produced at the time of enquiry. As manifest from the said ledger the amount paid by the complainant as on 30.8.2000 was Rs. 45,950/- only and no subsequent payment was made after 30.8.2000.” This is self-serving document. No affidavit of the person who had maintained the said ledger was filed to substantiate that the entries mentioned in Ex. B1 are from the original. It is a portion of the sheet, continuation of the account was not filed. Therefore Ex. B1 is unworthy of consideration.

12) Though the respondents could not prove that Ex. A39 and other receipts were fabricated by taking any steps either by sending them to the handwriting expert or got the signatures compared, the Dist. Forum without any basis opined that Exs. A31, A34, A36 were not genuine, observing that they did not contain any signatures. It may be stated that Ex. A32 bears the facsimile of the Managing Director and also receiver’s signature. It is not known how the Dist. Forum could state that they do not bear the signatures.

Even Exs. A34 & A36 bear the facsimile of the Managing Directorthe authenticity of the seal and stamp and the signatures of the receiver. The respondent did not dispute. What all they stated was they were made after catching hold of an employee. This is a vague allegation. Even after coming to know of it, the respondent did not take any steps to find out who was the employee who supplied the stamp or seal. These pleas are taken to get over the documents. Therefore the Dist. Forum went wrong in suspecting these receipts. It is not known how the Dist. Forum had opined that the complainant had to pay balance of consideration when Ex. A1 agreement itself recites total consideration was Rs. 79,833/-. Since the complainant could prove that he had paid the entire consideration evidenced by the very receipts issued by the respondents and in the light of admission in the counter, we are of the opinion that the complainant had paid the entire amount. At no time the respondent has issued notice repudiating the agreement. It did not issue any notice forfeiting the amount on the ground that the complainant had committed default in payment of instalments. Having received the entire amount, the respondents cannot turn round and repudiate the claim on unholy grounds. More over they agreed to execute the registered sale deed by letter Dt. 10.11.2004 Ex. A39. The complaint was filed on 1.11.2006. Therefore it cannot be said to be barred by limitation. It is well within the limitation. There is no reason why the Dist. Forum did not order registration of the sale deed. It is common knowledge that the prices of real estate has been increasing enormously beyond any proportion. Whatever interest awarded would not keep pace with the real value of the property. The respondents having agreed to register the plot, it is incumbent upon to them to do it. Having received the entire consideration it should register the plot. We do not agree with the order of the Dist. Forum in directing it to refund the amount. He is entitled for registration of plot.

13) In the result the appeal is allowed. Consequently the complaint is allowed directing the respondents to execute the registered sale deed in favour of complainant within one month from the date of receipt of this order. The complainant is directed to bear the registration charges and stamp duty etc. Rest of the order of the Dist. Forum is confirmed. The complainant is also entitled to costs of Rs. 5,000/- in the appeal. Time for compliance four weeks.

1) _______________________________

PRESIDENT

2) ________________________________

MEMBER

Dt. 31. 05. 2010.

*pnr