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

FA.NO. 971 OF 2011 AGAINST C.C.NO.416 OF 2010 DISTRICT FORUM-I, HYDERABAD

Between:

A.P Housing Board (Central Division),

Rep.by its Executive Engineer (Housing),

Gruhakalpa, M.J.Road, Hyderabad.                     ..        Appellant/Opp.party

          And

1.   Mr.P.Damodhar Reddy S/o Krishna Reddy,

Aged about 40 years, occ: Business.

2.   Mr.P.Ashok Reddy S/o DamodarReddy,

Aged about 39 years, Occ: Business

Both are r/o H.No.1/8/30,  Balasamudram,

Hanamkonda, Warangal District.                         ..        Respondents/

                                                                                      Complainants

Counsel for the Appellant                  :  Mr.D.Ranganath Kumar

Counsel for the Respondents            :M/s D.Raghavulu

CORAM:               SRI R. LAKSHMINARASIMHA RAO, HON’BLE MEMBER

                                                              AND

                            SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

    FRIDAY, THE NINETEENTH DAY OF OCTOBER,

    TWO THOUSAND TWELVE

Oral Order : (Per Sri R.Lakshmi Narasimha Rao, Hon’ble Member)

                                                          ..

1.                 The opposite party is the appellant.  The respondent applied to the appellant on 16.10.2007 for allotment of H.I.G Flat at its “Sanskruti Township” at Pocharam, Hyderabad.  At the time of submitting application, the respondent paid an amount of `15,000/- towards registration fee.  The appellant issued allotment letter dt.16.10.2007 informing the respondent that it had provisionally allotted the  H.I.G flat subject to the terms and conditions mentioned therein.

2.                 As per the terms of the allotment letter, the respondent has to pay total cost of the flat, an amount of `24,73,500/- including the registration fee within 30 days from the date of allotment letter and the respondent is required to pay other amounts such as water, electricity connection charges, cost of the covered or uncovered parking area and on payment of the amount by the respondents draw of lots could be  conducted for assigning block number, flat number etc.,

3.                 The appellant has discretion to remit late payment subject to payment of interest at 10% p.a and failure to pay the amount in the additional remittal period, the allotment would stand cancelled.  The appellant signed tripartite agreement on 16.10.2007 and issued “No objection Certificate” in favour of the respondent to enable him to avail loan from the banks to pay the sale consideration of the flat.

4.                 The respondent paid an amount of `1,00,000/- through cheque dt.5.1.2008 beyond the stipulated time, however was received by the appellant. The respondent failed to pay the balance consideration and the appellant on the premise that the allotment stood cancelled, forfeited the amount paid by the respondent which is less than 10% of the total cost of the flat in terms of G.O.ms.No.62 dt.3.12.2004.

5.                 The respondent got issued notice dt.17.3.2009 requesting the appellant to receive the balance sale consideration and register the flat or refund the amount of Rs.1,15,000/- paid by him with interest.  The appellant got issued reply on 24.3.2009 rejecting the claim of the respondent.

6.                 The respondent filed his affidavit and the documents Ex.A-1 to A-4 and on behalf of the appellant  one Sri Tagore Babu, Executive Engineer filed his affidavit and the documents Exs.B-1 to B-5.

7.                 The District Forum allowed the complaint on the premise that the appellant violated the terms of the allotment letter and the appellant cannot, as much  invoke application of the terms of the allotment letter.

8.                Aggrieved by the order of the District Forum, the opposite party has filed the appeal contending that the District Forum has not considered the G.O.Ms.No.62 dt.3.12.2004 and the power of the appellant to permit the respondent to pay the balance sale consideration beyond stipulated time.  It is contended that the complaint is filed beyond the limitation period and the District Forum failed to consider the limitation aspect.

9.                 The point for consideration is whether the order of the District Forum is vitiated by mis-appreciation of facts or law ?

10.               The respondent applying for allotment of HIG flat at “Sanskruti Township”  of the appellant on 16.10.2007 and the payment of registration fee of `15,000/- on 16.10.2007 by the respondent as also payment of `1,00,000/- by the respondent beyond the stipulated time in terms of the allotment letter are beyond any dispute.

11.               Among the several pleas raised by the learned counsel for the appellant, we should consider the contention  as to non-consideration of the documents and question of limitation as these pleas would decide the fate of other pleas.

12.               The learned counsel for the appellant has contended that the District Forum has not considered Ex.B-5 G.O.ms.No.62 as also it failed to consider the effect of  combined reading of contents of the allotment letter and the G.O.

13.               It is true, the order does not consider the G.O.Ms.No.62 and its implication on the claim for refund of the amount paid by the respondent. The order which does not appreciate the essential documents would lose its significance and being deprived of the features essential for an order.

14.              The Supreme Court held in “United India Insurance Company and others vs Roshan Lal Oil Mills Ltd and others” (2000)10 SCC19 that non-consideration of documentary evidence would result in serious miscarriage of justice and vitiates the order or judgement passed by the Forum or Court.

15.               Question of limitation is a mixed question of fact and law.  The limitation aspect is essential and vital factor for deciding the other issues involved in the complaint.

16.              In State Bank of India Vs B.S.Agricultural Industries in Civil Appeal No.2067 of 2002, the Hon’ble Supreme held that:

7. Section 24A of the Act, 1986 prescribes limitation period for  admission of a complaint by the consumer fora thus:“24A. Limitation period – (1) The District Forum, the State   Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in subsection (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State  Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

17.               For the foregoing reasons and in the light of ratio mentioned in the aforementioned decisions, the order of the District Forum is liable to be set side.

18.               In the result, the appeal is allowed setting aside the order of the District Forum.  Consequently, the complaint is dismissed.  The complaint is remitted back to District Forum for denovo enquiry.  The parties shall appear before the District Forum on 12.11.2012.  No costs.

                                                                                                    MEMBER

                                                                                                     MEMBER

                                                                                                DT.19.10.2012

SS*