Telangana

Mahbubnagar

CC/09/85

Mohd. Khaja Saleemuddin S/o Mohd. Gulam Mohiuddin, O/c Railway Employee and another - Complainant(s)

Versus

Mohd. Abdul Khadeer S/o late Mohd. Abdul Hanan, O/c Business and another - Opp.Party(s)

Sri Shaik Abdul Mujeeb

28 Nov 2011

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

Monday, the 28^th day of November, 2011 

                                                   Present:- Sri P. Sridhara Rao, B.Sc., LL.B., President

        Sri A. Veerupakshi, B.A., LL.B., Member         

C.C.NO. 85  Of   2009

Between:-

1. Mohd. Khaja Saleemuddin S/o Mohd. Gulam Mohiuddin, aged 41 yearas, Occ: Railway Employee, R/o H.No.3-3-55/1,                              Madina Masjid, Mahabubnagar.  

2. Suraya Kauser W/o Mohd. Khaja Saleemuddin, aged 33 years, Occ: Housewife, R/o H.No.3-3-55/1, Madina Masjid, Mahabubnagar. 

                                                                                                                                                             … Complainants

And

1. Mohd. Abdul Khadeer S/o late Mohd. Abdul Hanan, aged 46 years, Occ: Business, (Proprietor of Star Property Consultants)  D.No.1-4-134/16/J/1, Mettugadda, Mahabubnagar.

2. Sajida Begum W/o Mohd. Abdul Khadeer, aged 35 years, Occ: Agriculture, D.No.1-4-134/16/J/1, Mettugadda, Mahabubnagar.

                                                                                                                                                          … Opposite Parties  

 This C.C. coming on before us for final hearing on 24-11-2011 in the presence of Sri Shaik Abdul Mujeeb, Advocate, Mahabubnagar on behalf of the complainants and Sri C. Rajender Kumar, Advocate, Mahabubnagar for the opposite parties and the matter having stood over for consideration till this day, this Forum made the following:   

O R D E R

 (Sri A. Veerupakshi, Member)

1.  This is a complaint filed by the complainants under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties to execute registered sale deed in favour of complainants in respect of Plot No.34 in Sy.No.701 to the deficit extent of 61 Sq. Yards which is part and parcel of plot No.34 of Sardar Nagar, Bandameedipally village of Mahabubnagar District and so also to refund a sum of Rs.26,370/- to the complainants and Rs.1,00,000/- towards compensation for causing mental agony and monetary loss besides costs of the complaint. 

2. The averments of the complaint in brief are that:- The complainant No.1 is the husband of complainant No.2. Likewise, the OP-1 is the husband of OP-2. The OP-1 is carrying on business of housing plots schemes in the name and style of the “Star Property Consultants” at Mettugadda, Mahabubnagar since long time. In the year 1995 the OP-1 started a housing plots scheme by name Sardar Nagar which is situated within the limits of Bandameedipally village Gram Panchayat of Mahabubnagar Mandal and District. The complainant No.1 joined as a member in the said Sardar Nagar housing plots scheme on 22-3-1995 on payment of Rs.3,400/- towards advance amount and entered into an agreement of purchase for plot No.34 of Sardar Nagar admeasuring 264 Sq. Yards in the land bearing Sy.No.701 for a total value of Rs.31,058/-. The complainant paid the remaining reservation plus difference amount of Rs.2,659/- to the OP-1 and accordingly the complainant No.1 chosen two lucky numbers 135 and 172 and the same were confirmed and allotted by the OP-1. The complainant paid the remaining balance amount through fixed monthly installments @ Rs.300/- for each lucky number i.e., for lucky No.135 he paid on his name and for lucky No.172 he paid on the name of his niece Kum. Heena Tabassum D/o Mahabub Ali.  So altogether the complainant paid a sum of Rs.12,000/- for both the lucky numbers 135 and 172 and accordingly obtained receipts from the OP-1. Some time thereafter the complainant No.1 also paid a sum of Rs.15,658/- to the OP-1 on 26-6-2001 as a consolidated payment against the receipt No.9699 for both the lucky numbers 135 and 172. So the complainant No.1 according to the agreement of purchase has made total sale consideration of Rs.31,058/- to the OP-1 and obtained receipts. Even after receiving the total sale consideration the OP-1 did not perform the part of statutory obligation for which the complainant No.1 underwent mental agony and went sleepless nights for more than 8 years moving around the office of the OP-1. While the matter stood thus, the OP-1, by holding GPA from pattedars of Sy.No.701, in the year 2003 intentionally executed a registered sale deed in respect of plot No.34 in favour of OP-2 who is no other than his wife through registered document No.4309, dt.22-9-2003. After so many efforts made by the complainant No.1 the OP-1 in the month of June, 2009 having agreed to execute the registered sale deed under the said agreement of purchase dated 22-3-1995 after taking back the original receipts and agreement of purchase from him.  At that time both the complainants paid additional registration charges of Rs.35,000/- to the OP-1 on his demand. Thereupon the OP-1 in the capacity of representative got executed the registered sale deed through document No.3624/2009, dt.9-7-2009 through the OP-2 in favour of the complainant No.2 for plot No.34 admeasuring to an extent of 203 Sq. Yards and dishonestly retained 61 Sq. Yards of land on the western side of plot No.34 which is a part and parcel of plot No.34 by committing the deficiency of service and breach of contract under agreement of purchase dated 22-3-1995. Thereupon, when both the complainants demanded the OP-1 on 15-7-2009 to execute the registered sale deed for the deficit extent of the said 61 Sq. Yards of land, the OP-1 given evasive reply and threatened the complainant No.1 with dire consequences. Therefore, both the OPs.1 and 2 are exclusively liable for the breach of agreement and deficiency in service committed by OP-1 against both the complainants. Thus the present complaint is filed for the aforesaid relief.

 

3. The opposite parties filed counter denying the averments of the complaint and stated that the complainant No.1 entered into an agreement of sale dated 22-3-1995 in respect of plot No.34 in Sy.No.701 of Bandameedipally village and paid a sum of Rs.3,400/- towards part payment to the cost of the plot and agreed to pay the remaining reservation and difference amount of Rs.2,659/- within one month on or before 2-4-1995 and also promised to pay the remaining due of Rs.31,058/- in monthly installments @ Rs.600/-.  It is further stated that the complainant No.1 having agreed to pay the same accordingly but he paid 20 installments and later became defaulter.  When the complainant No.1 became defaulter, on 18-3-1996 a notice is sent to the complainant intimating that he is defaulter of 11 months and asked to pay the same within 15 days. When the complainant No.1 having received the same and did not pay the amount within the stipulated period, another notice dated 29-7-1996 also sent to the complainant No.1 intimating that he is in due of 14 months amount and asked to pay the same within 15 days.  When the complainant No.1 having received the said notice also and when failed to comply the same, at last on 19-4-1999 another notice is sent to him asking to fulfill the conditions of the agreement. Even then, the complainant No.1 did not fulfill his promise. Thus the contention of the complainants that even after receiving the total sale consideration the OP-1 did not perform his part of statutory obligation is false.  It is also further stated that as some changes are come in execution of sale deeds by a G.P.A. holder in 2003, as such to avoid the presence of pattedar before the Sub Registrar’s Office the OP-1 executed the sale deeds in favour of the OP-2, as such there is no ill intention and fraud on the part of the OP-1 in execution of the sale deed in favour of the OP-2.  It is also further stated that there is no truth in the case of the complainant No.1 that after his several efforts OP-1 agreed for execution of sale deed under agreement dated 22-3-1995.  In fact several times OP-1 asked the complainant No.1 to get the sale deed from OP-2 as they are shifting their residence to Hyderabad for studies of children. But the complainant No.1 asked time for the same and at last after settlement of account and as per his request only the sale deed No.3624/2009, dt.8-7-2009 is obtained by him in the name of his wife/complainant No.2 from OP-2 in respect of 203 Sq. Yards for a sale consideration of Rs.24,500/- and the same reflects on the sale deed and the remaining amount of Rs.6,058/- received back by the complainant No.1 from OP-1 on 23-7-2009, as such there is no dishonest in execution of sale deed for an extent of 203 Sq. Yards as alleged by the complainant. Further, on  23-7-2009 the complainant No.1 has come to OP-1 and settled the account and taken back the said difference amount of Rs.6,058/- from OP-1 and accordingly executed a declaration mentioning the extent of the plot and document number in it. Therefore, there is no truth in the case of the complainant that OP-1 dishonestly retained 61 Yards of land on the western side of plot No.34 and committed deficiency in service and committed breach of contract.  It is also further stated that after execution of the sale deed in favour of the complainant No.2, OP-2 also sold the available extent of the land on the spot to one Chandrakala, a resident of Mahabubnagar for a sum of Rs.30,000/- under a separate registered sale deed No.4734/2009, dt.12-8-2009 and the physical possession of the same is delivered to her and since the date of purchase the said Chandrakala is in possession of the said 60 Sq. Yards of plot as absolute owner.  In fact the complainant has suppressed the above said real and material facts. Thus the complaint is liable to be dismissed with costs.                               

4. Thereupon the complainant No.1 filed affidavit evidence in support of their case and got marked Exs.A-1 to A-50.  On the other hand, the opposite parties filed their affidavit evidence and got marked Exs.B-1 to B-9.

 5.  The points for determination now are: 

1. Whether there is any deficiency on the part of the opposite parties in rendering service to the complainants as alleged?
2.  Whether the complainants are entitled for the relief sought for by them?              

    (iii)  To what effect?   

6. The undisputed facts in the case are that the OP-1 started a housing plots scheme in the year 1995 in the name of Sardar Nagar situated within the limits of Bandameedipally village, the complainant No.1 entered into an agreement of sale dated 22-3-1995 in respect of plot No.34 in Sy.No.701 of Bandameedipally village and paid a sum of Rs.34,000/- towards part payment of the cost of the plot as under Ex.A-4 copy of the receipt agreeing to pay the remaining reservation and difference amount of Rs.2,659/- within a period of one month and the remaining due in monthly installments @ Rs.600/- per month for the lucky Nos.135 and 172 as chosed by him.  It is also an admitted fact that ultimately the OP-1 got executed a registered sale deed through the OP-2 who is no other than his wife in favour of the complainant No.2 who is no other than the wife of the complainant No.1.  So it appears from the material on record that the present dispute arose between both the parties is only to the extent of 61 Sq. Yards of land.   

7. Point Nos.1 and 2:- It is the case of the complainant No.1 that according to the agreement of purchase he has paid the total sale consideration of Rs.31,058/- to the OP-1 and even after receiving the total sale consideration and after making several rounds around him for execution of registered sale deed in respect of plot No.34 covered under the agreement of purchase, ultimately the OP-1 on 9-7-2009 got executed registered sale deed through document No.3624/2009 in favour of the complainant No.2 for plot No.34 admeasuring only to an extent of 203 Sq. Yards dishonestly as against 264 Sq. Yards and thus the OP-1 committed the deficiency in service and breach of contract. So, it is the case of the complainant that the OP-1 even after receiving the total sale consideration for plot No.34 did not perform his part of statutory obligation for a long period till 9-7-2009 the date on which he got executed the sale deed through the OP-2 in favour of the complainant No.2 only to an extent of 203 Sq. Yards. On this aspect, the contention of the OP-1 is that when the complainant No.1 paid amount only for 20 installments and later on became defaulter, on 18-3-1996 a notice as under the original of Ex.B-2 is sent to the complainant No.1 intimating that he is a defaulter of 11 months and asked to pay the same within 15 days and the complainant No.1 having received and acknowledging the same as under the Ex.B-1 not complied the same.  It is also the further contention of the OP-1 that when the complainant No.1 did not comply the demand covered under Ex.B-2 the first notice, another notice dated 29-7-1996 as under the original of Ex.B-3 is also sent to the complainant No.1 intimating that he is in due of 14 months amount and asked to pay the same within 15 days, and that the complainant having received the same and passing acknowledgement as under Ex.B-4 did not comply the same.  It is also the further contention of the OP-1 that when the complainant No.1 did not comply the demand made under the notices originals of Exs.B-2 and B-3, at last on 19-4-1999 another notice as under the original of Ex.B-6 is sent to the complainant No.1 asking to fulfill the conditions of the agreement. A perusal of the recitals of Exs.B-2, B-3 and B-6 notices clearly supports the contentions of the OP-1. The complainant No.1 did not raise any dispute about the  Exs.B-2, B-3 and B-6 notices at anywhere either in his affidavit evidence or through any other oral or documentary evidence.  Therefore, it is made clear by the OP-1 that there is no deficiency on his part in rendering service to the complainant No.1 to that extent. In other words, it appears that the complainant No.1 having suppressed the above facts approached this Forum with unclean hands. 

8. It is the case of the complainant that when the OP-1 did not perform his part of statutory obligation covered under the agreement of sale he made several rounds around him demanding to execute the registered sale deed but at last on 8-7-2009 he got executed the registered sale deed through the OP-2 who is no other than his wife in favour of the complainant No.2 only to an extent of 203 Sq. Yards as against 264 Sq. Yards and as such the OP-1 committed the deficiency in service and committed breach of contract.  On the other hand, it is the contention of the opposite parties that in fact several times the OP-1 asked the complainant No.1 to get the sale deed from the OP-2, but as the complainant No.1 is working as a government employee asked time for the same and at last after settlement of the account and as per his request only the sale deed No.3624/2009, dt.8-7-2009 is obtained by the complainant No.1 in the name of his wife/complainant No.2 from the OP-2 in respect of 203 Sq. Yards for a sale consideration of Rs.24,500/- and the remaining amount of Rs.6,058/- is received back by him from OP-1 on 23-7-2009 and therefore there is no truth in the case of the complainants that OP-1 dishonestly retained 61 Sq. Yards of land on the western side of plot No.34 and committed deficiency in service and committed breach of contract. Except the self styled testimony, the complainant No.1 did not place any sufficient material on record contrary to the above said contentions and the affidavit evidence of the OP-1. Further, it is also the contention of the opposite parties that the complainants, being not illiterates, physically inspected the 203 Sq. Yards of plot on the spot and also gone through the sale deed, boundaries and plan annexed to it and then only they signed and put their thumb impression mark on the form prescribed for registration of the sale deed as under the original of Ex.B-9 and the complainant No.1 accordingly executed a declaration as under Ex.B-8 mentioning the extent of the plot and the document number in it.  The complainant No.1 also not raised any dispute about the declaration Ex.B-8 said to have been executed by him at anywhere either in his complaint or through his affidavit evidence, except his self styled testimony. Therefore, we find that the complainants failed to establish the deficiency of service on the part of the opposite parties as alleged.  In other words, it can be said that the OP-1 is the person who specifically established that there is no deficiency on his part in rendering service to the complainants.  Besides alleging deficiency in service it is the case of the complainant No.1 that OP-1 committed breach of contract. A perusal of the material on record clearly goes to show that admittedly after execution of the sale deed on 8-7-2009 in favour of the complainant No.2, the OP-2 also sold the available extent of the land on the spot to one Chandrakala for a sum of Rs.30,000/- under registered sale deed No.4734/2009, dt.12-8-2009 as under the original of Ex.B-9 and the physical possession of the same is delivered to her and since the date of purchase the said Chandrakala is in the possession of the said 60 Sq. Yards of the land as absolute owner. If such is the situation, this Forum is not having jurisdiction to decide the said issue and it is for the complainants to approach the competent civil court for redressal of the same.  

9. On a careful consideration of the entire material on record and for the reasons stated above, we hold that the complainants failed to establish the deficiency of service against the opposite parties, as such the complainants are not entitled for the relief sought for by them and thus the complaint is liable to be dismissed. Both the points are answered accordingly in favour of the opposite parties and against the complainants.      

10. Point No.3:- In the result, the complaint is dismissed.  In view of the facts and circumstances, both the parties have to bear their own   costs.  

        Typed to dictation, corrected and pronounced by us in the open Forum on this the 28^th day of November, 2011.    

 

                                                                                                  I agree                                                                                              

 MEMBER                                                                             PRESIDENT                  

  Appendix of evidence

      List of Witness examined

On behalf of Complainants:                         On behalf of Opposite Parties:   

- Nil -                                                                      - Nil -                                 

List of documents marked:-

On behalf of Complainants:-    

Ex.A-1: Photostat copy of Receipt. 

Ex.A-2: Photostat copy of Agreement of Purchase, dst.22.3.1995.

Ex.A-3: Photostat copy of Receipt, dt.26.6.2001.

Ex.A-4: Photostat copy of Receipt, dt.22.3.1995.

Ex.A-5: Photostat copy of Receipt.

Ex.A-6: Photostat copy of Particulars required for Registration,dt.26.6.2001.

Ex.A-7: Photostat copy of Lucky Number.

Ex.A-8: Photostat copy of Receipt, dt.10.4.1998.

Ex.A-9: Photostat copy of Receipt, dt.1.1.1998.

Ex.A-10: Photostat copy of Receipt, dt.1.1.1997.

Ex.A-11: Photostat copy of Receipt, dt.1.1.1998.

Ex.A-12: Photostat copy of Receipt, dt.18.11.1996.

Ex.A-13: Photostat copy of Receipt, dt.24.10.1996.

Ex.A-14: Photostat copy of Receipt, dt.24.10.1996.

Ex.A-15: Photostat copy of Receipt, dt.21.9.1996.

Ex.A-16: Photostat copy of Receipt, dt.29.6.1996.

Ex.A-17: Photostat copy of Receipt, dt.6.5.1996.

Ex.A-18: Photostat copy of Receipt, dt.6.5.1996.

Ex.A-19: Photostat copy of Receipt, dt.13.3.1996.

Ex.A-20: Photostat copy of Receipt, dt.21.1.1996.

Ex.A-21: Photostat copy of Receipt, dt.21.1.1996.

Ex.A-22: Photostat copy of Receipt, dt.7.10.1995.

Ex.A-23: Photostat copy of Receipt, dt.7.9.1995.

Ex.A-24: Photostat copy of Receipt, dt.10.8.1995. 

Ex.A-25: Photostat copy of Receipt, dt.6.5.1995.                    

Ex.A-26: Photostat copy of Receipt, dt.4.4.1995.               

Ex.A-27: Photostat copy of Receipt, dt.21.3.1995.                      

Ex.A-28: Photostat copy of Lucky Number.                     

Ex.A-29: Photostat copy of Receipt, dt.10.4.1998.

Ex.A-30: Photostat copy of Receipt, dt.1.1.1998.

Ex.A-31: Photostat copy of Receipt, dt.1.1.1998.

Ex.A-32: Photostat copy of Receipt, dt.1.1.1998.

Ex.A-33: Photostat copy of Receipt, dt.18.11.1996.

Ex.A-34: Photostat copy of Receipt, dt.24.10.1996.

Ex.A-35: Photostat copy of Receipt, dt.24.10.1996.

Ex.A-36: Photostat copy of Receipt, dt.6.5.1996.

Ex.A-37: Photostat copy of Receipt, dt.6.5.1996.

Ex.A-38: Photostat copy of Receipt, dt.29.6.1996.

Ex.A-39: Photostat copy of Receipt, dt.21.9.1996.

Ex.A-40: Photostat copy of Receipt, dt.13.3.1996.

Ex.A-41: Photostat copy of Receipt, dt.21.1.1996.

Ex.A-42: Photostat copy of Receipt, dt.21.1.1996.

Ex.A-43: Photostat copy of Receipt, dt.7.10.1995.

Ex.A-44: Photostat copy of Receipt, dt.7.9.1995.

Ex.A-45: Photostat copy of Receipt, dt.10.8.1995.

Ex.A-46: Photostat copy of Receipt, dt.6.5.1995.

Ex.A-47: Photostat copy of Receipt, dt.4.4.1995.

Ex.A-48: Photostat copy of Receipt, dt.22.3.1995.

Ex.A-49: Photostat copy of Registered Sale Deed.

Ex.A-50: Photostat copy of Registered Sale Deed.

On behalf of OPs.:                

Ex.B-1: Copy of Courier Receipt, dt.19.3.1996.                      

Ex.B-2: Copy of Notice, dt.18.3.1996.

Ex.B-3: Copy of Notice, dt.30.7.1996.

Ex.B-4: Copy of Courier Receipt, dt.29.7.1996.                      

Ex.B-5: Copy of Courier Receipt, dt.29.7.1996.                      

Ex.B-6: Copy of Proceedings, dt.19.4.1999.

Ex.B-7: Returned Envelope Cover.

Ex.B-8: Copy of Declaration. 

Ex.B-9: Photostat copy of Sale Deed.                                                                                                                     

                                                                                                   

                                                                        PRESIDENT                                                                                                   

Copy to:-

1. Sri Shaik Abdul Mujeeb, Advocate, Mahabubnagar for the complainants.  

2. Sri C. Rajender Kumar, Advocate, Mahabubnagar for the opposite parties.