FA   934/2008  in CC No. 16 of 2008  on the file of the

 District Forum, Mahabubnagar

Between :

Nisar Ahmed, S/o Gulam Mohammed,

Age : 51 years

Occ : Employee, R/o Farooqnagar,

Shadnagar, Mahaboob Nagar                … Appellant/complainant

And

1.                  L. Jaswanth Reddy, W/o Narayana Reddy

Age : Major, Occ: Business,

C/o Sudhakar,  H. No.16-81, Main Road,

Shad nagar.

2.                  K. Sudhakar, s/o Late Veera Brahmaiah, age : Major

R/o H. No.16-81, Saisudha Home Needs, Main Road,

Shadnagar.

3.                  R. Parameshwar, S/o Chinna Basappa, Age : Major

Occ : General Store Business, Main Road, Shadnagar.

4.                  A. Amarender reddy, S/o Krishna Reddy, Age : Major

Occ; Head Master, Navajyothi U.P.H.School, H.no. 4-30

Laxminarasimha colony, Vegetable Market, Shadnagar.

Counsel for the Appellant            :           M/s. M. Haribabu.

Counsel for the Respondents    :           Mr. M. Damodar Reddy.

Coram           ;           Sri Syed Abdullah              …        Hon’ble Member

And

Sri R. Lakshminarasimha Rao…      Hon’ble Member

Wednesday, the Twenty first Day of July, Two Thousand Ten

Oral Order     :           ( As per Sri Syed Abdullah,  Hon’ble Member )

*******

Being not satisfied with the relief granted in CC 16/2008 by the District Forum, Mahabubnagar, the appellant filed this appeal questioning the legality and propriety of the order and sought for granting relief  to direct the respondent/opposite party  to execute a sale deed in respect of the plot that  was agreed to be sold.

The facts of the case disclose that the opposite parties 1 to 4 are partners of M/s. Pushpanjali Taders, Shadnagar started real estate  venture  to develop  land  ub Sy. No. 220 of Farooqnagar.  They floated a scheme by enrolling members. As per the scheme, an installment  amount of Rs.200/- per month  had to be paid for 46 months  for sale of plot. .  Accordingly, the complainant became the member and he was allotted with plot  no.  58-B admeasuring 133.33 sq. yards. He paid the amount along with  Rs.2,500/- towards registration charges. Subsequent to the collection of the amount,  the opposite parties  have closed the firm. As the value of the land has increased,  they are avoiding  to register the plot.. Non-fulfillment of the terms and conditions would amounts to deficiency in service. So the complainant is also entitled for registration of the plot  as well as compensation and costs.

            The opposite parties in their version  have stated that  the complainant was a defaulter and failed to pay  two installments’ amount of Rs.400/- . So a letter dated 06.12.1995 was issued directing him to pay due amount of Rs.400/-  and also to pay Rs.2,500/- towards registration charges for executing sale deed. He was asked to pay  the said amount on or before 20.01.1996.  Thereafter he did not approach them. The complaint is barred by limitation as the scheme ended in 1995

During enquiry, the complainant filed Ex. A1 to A7 along with evidence affidavit on his side , while so, on the side of the respondents/opposite parties  marked Ex. B-1 copy of the terms of the scheme.

On scrutiny of the evidence on record, the District Forum directing the opposite parties 1 to 4 with joint and several liability to pay a sum of Rs.8,800/-  with interest at 18% pa from January, 1996 till payment and costs of Rs.1000/-.

Point for consideration is, whether the impugned order suffers from any factual ad legal infirmity ?

The undisputed facts are that  the complainant was enroleed as  a member of the scheme floated by the opposite parties  for sale of layout plot admeasuring  133.33 sq.yards.  As per the terms and conditions of         Ex. B-1,  a member had to pay Rs.200/- per month for 46 months.  They also introduced a lucky draw scheme under which  in the alternative months of lorry the winner will get 4 gms of gold ring.  There is no dispute that the complainant  had  paid instalments except two instalments.   The scheme commenced from 09.01.1993 and it ended  by 09.01.2005. while so,  the opposite parties have sent Ex. A-2 letter to the complainant on 06.02.2005 informing him to pay registration charges of Rs.2,500/- and the balance instalment amount of Rs.400/-  by 20.01.1996 and for further information he may contact the office.  Thereafter the complainant issued Ex A-3 legal notice dated 19.12.2007 calling upon the opposite parties  to execute  a sale deed in his favour which was received by them and they sent Ex. A-5 reply date 02.01.2008 stating that Civil suit is pending  pertaining to survey no. 220  on the file of the II Addl . District Judge, Mahabubnagar, wherein,  temporary injunction was granted  and the suit is still pending.

The complainant also filed E.C., Ex. A-1  relating to the plot covered by survey no. 220 plot No. 58-B admeasuring 133.33. sy. Yards attlotted to him  which shows that the plot still stands in the name of K. Sudhakar, i.e., in the name of the second opposite party and who is one of the partners of M/s. Pushpanjali Traders.   The complainant also field a copy of sale deed dated 07.12.2004 executed by the partners of M/s. Pushpanjali Traders in favour of third party member  in respect of another plot of the same scheme.   Except bald statement  that civil suit is still pending  pertaining to survey no. 220, no other material evidence is placed  to dis-entitle the complainant  from getting the plot registered in his name by paying Rs.2900/- said to be payable.   When the complainant issued Ex. A-3 notice on 09.12.97 the opposite parties sent reply  in 2008 informing that Civil Suit is pending  which was filed  in the  year 2006.   From Ex. A-6 sale deed  dated 07.12.2004 it is evident  that the opposite parties have executed a sale deed in favour of a third party  in respect of some other plot of the same scheme.   So it cannot be said that the scheme was closed  and they are not in a position  to execute any sale deed in favour of the complainant.  Having agreed to allot a plot by collecting 22 instalments, the opposite parties cannot deny  their obligations and commit breach of it.   After all except  two instalments of Rs.400/- was due and having demanded  for payment of Rs.2900/- they cannot refused to proceed with execution of sale deed. It is not known whether the delay was on the part of the complainant or the opposite parties.  Whatever it may be the complainant got issued a legal notice  in December, 1997 itself expressing his willingness to get the document registered.   The opposite parties having not produced any record to show tht in between 1997 up to 2004 whether any sale deeds are executed  by them or not . If really,  the complainant was not coming forward to get the document registered , nothing prevented them in issuing a legal notice cancelling agreement for latches or for not performing his part of contract.  All the while, agreement was not cancelled. So they cannot say that they are not in a position  to execute a sale deed.  Filing of a civil suit  may be collusive litigation in order to deprive  the rights of the members of the scheme.  So also,  there is every possibility that due to  increase  of land cost , the opposite parties have set up all sorts of tricks to avoid registering the document.  Law is very well settled that non delivery of possession of piece of plot  by the developer  despite of receiving  major portion of price would amounts to deficiency in service and that the cause of action continues,  so it cannot be said that the complaint is  barred by limitation vide  Jullet V. Quadros Vs. Mrs. Malti Kumar, 2005 (2) CPR  1 (NC).  The District Forum held that  the opposite party did not close the firm and that the complainant never approached the opposite parties  after receiving Ex. A2  paying a sum of Rs.2900/- as such held that there was no deficiency in service on the part of the opposite parties.   However, directed refund of Rs.8800/- with interest  at 18%. The opposite parties have not produced any iota of evidence  to show that after completion of the scheme  they executed sale deeds in favour of the members except  in favour of the defaulter. It is not known by they have not produced the record maintained by them.   Adverse inference is to be drawn  for non production of the material on record which is in their custody.  Omissions and commission are very much apparent. It is to be inferred that  due to increase in the land cost the opposite parties kept quite  without initiating any action  subsequent to Ex. A2 intimation and there after  in spite of receiving        Ex. A-5 notice from  the complainant .  Ex. A5 was given  in the year 1997 for which  reply was give in 2008 after long lapse of  time. During the intermittent period they might have set up a collusive litigation causing loss to the members by denying  execution of sale deed to them. Thus, having committed breach of contract to fulfill  their obligation, the complainant is entitled for the relief for execution of sale deed. From Ex. A7  ( EC) it is clear that properties still sands in the name  of OP 2 and it remained unsold all the while. The District Forum failed to consider the aspect of granting the relief for execution of the sale deed by the opposite parties. As long as agreement was not cancelled or the said plot which was not sold  to a third party, the complainant is entitled to seek  for the relief of execution of sale deed. The appellant is entitled to the relief as claimed for. 

In the result,  the appeal is allowed modifying the order of the District Forum for execution of sale deed in favour of the appellant/complainant within 30 days from the date of the order.

The appellant is directed to  pay the remaining two installment amount of Rs.400/-  with up to date interest , i.e., up to the date of complainant and bear the registration charges payable to the Registration Department  on the date of registration.  The appellant shall inform his readiness to the opposite parties by giving 15 days advance notice  by registered post with acknowledgement  and fix the date for his presence before the concerned Registrar and on receipt of his notice the opposite parties shall execute sale deed in favour of the complainant without letter or hindrance.

Sd/- MEMBER

                                                                                                                                                                  Sd/- MEMBER

                                                                                                                                                                  DATED : 21.07.2010.