BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 486/2009 against C.C 123/2009, Dist. Forum, Tirupathi
Between:
1) The Managing Director
Janachaitanya Hosing Ltd.
Central Office, 2nd Floor
Vamsi Estate-III
Opp. Gold Spot, Ameerpet
Hyderabad.
2) The Branch Manager
Janachaitanya Housing Ltd.
2nd Floor, Balaji Complex
Prakasham Road,
Tirupathi. *** Appellants/
Opposite Parties
And
M. Barkathulla Minuddin
S/o. Late S. A. Khader
D.No. 20-80, Royal Fort
Chandragiri
Chandragiri Mandal
Chittoor Dist. *** Respondent/
Complainant
Counsel for the Appellants: M/s. V. Eswaraiah Chowdary
Counsel for the Resps: M/s. P. Sridhar Reddy
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SRI K. SATYANAND, MEMBER
MONDAY, THIS THE SIXTEENTH DAY OF NOVEMBER TWO THOUSAND NINE
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) This is an appeal preferred by the opposite parties against the order of the Dist. Forum directing them to refund Rs. 24,000/- together with interest and costs.
2) The case of the complainant in brief is that in the venture promoted by the appellant for sale of plots he paid Rs. 24,000/- in instalments, the lat instalment being 11.1.1997 for purchase of 1800 sq. ft house plot at Tiruchanuru Grama Panchayat. In spite of several requests the appellant did not register the plot in his name and finally on 8.9.2008 he issued a legal notice calling upon the appellant for refund of amount. Having received the notice it did not pay or give reply. Therefore he filed the complaint for refund of Rs. 24,000/- together with compensation and costs.
3) The appellant resisted the case. While admitting payment of Rs. 24,000/- by the complainant it alleged that the payment was for allotment of plot. He did not pay registration charges or development charges. He was a chronic defaulter. When the complainant did not approach, they thought that he was not interested in getting the plot registered. He was not entitled to refund of amount. The claim was barred by limitation. The complaint was filed after 12 years, for the transaction that was completed on 11.1.1997. 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 A3 marked, while the appellant filed the affidavit evidence of its Branch Manager and did not file any documents.
5) The Dist. Forum after considering the evidence placed on record opined that despite notice Dt. 8.9.2008 under Ex. A2 it neither paid the amount nor registered the sale deed, and therefore liable to refund Rs. 24,000/- with interest @ 9% p.a., from 11.1.1997 till the date of realization together with costs of Rs. 1,000/-. It opined that it was a continuous cause of action, and therefore there was no limitation.
6) Aggrieved by the said order, the appellant preferred the appeal contending that the Dist. Forum did not appreciate the facts or law in correct perspective. The appellant having branch offices at various places and Central Office at Hyderabad it could not verify the record. However the fact remains that it had already executed a registered sale deed in respect of same plot to him, and therefore it prayed that the complaint be dismissed. They have enclosed a xerox copy of registered sale deed executed by them in favour of the complainant Dt. 13.4.1999.
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 is a Private Limited Company dealing in real estate floated the venture wherein they agreed to sell house plots. The complainant became a member evidenced under Ex. A1 pass book wherein he deposited Rs. 24,000/-for purchase of house plot. It is his case that despite payment of entire amount the appellant did not execute the registered sale deed and therefore he sought for refund of the amount that was paid by him on 11.1.1997. Admittedly the complaint was filed on 8.12.2008 for the sale consideration of Rs. 24,000/- paid in instalments by 11.1.1997 almost 11 years after the payment. Though contention of limitation was taken, it was brushed aside on the ground that it was a continuous cause of action. The Dist. Forum did not expatiate as to how the cause of action could be continuous, more so, when he sought for refund of consideration amount, when Section 24A of the Consumer Protection Act provides 2 years limitation.
9) Be that as it may, the appellant is a Private Limited Company selling the house plots in various towns, and the Head Office being at Hyderabad, at the time of preferring the appeal, it has alleged that it has already sold away the house plot to the complainant under registered sale deed Dt. 13.4.1999 which fact could not be ascertained in view of paucity of time and enormity of transactions the company entered into with various allottees. Importantly, the complainant neither disputed execution of sale deed nor could give any explanation as to why he filed the complaint having got the sale deed registered in his favour. However, there is no material on record to show whether the complainant had intended to purchase the very same house plot, and whether it has any nexus with the case of the complainant projected. In the light of additional evidence, we are of the opinion that both parties shall be given an opportunity to adduce necessary evidence, more so, to the complainant to give his version of the sale deed filed in the appeal which stand in favour of the complainant. The existence of sale deed in favour of the complainant tilts the scale in favour of the appellant, and due execution of sale deed in his favour it is for him to explain. Without any evidence we do not intend to pronounce any order in this regard.
10) In the result, the appeal is allowed and the order of the Dist. Forum is set-aside. The matter is remanded to the Dist. Forum. The Dist. Forum is directed to restore the complaint to its original file. Both parties are directed to appear before the Dist. Forum without insisting for fresh notice on 30.11.2009. The Registry is directed to send xerox copy of sale deed filed in the appeal to the Dist. Forum to afford opportunity to both sides, and the Dist. Forum in its turn permit the parties to amend the pleadings, adduce evidence and pronounce orders according to law.
11) The Dist. Forum is directed to dispose of the matter within 3 months from the date of receipt of this order. In the circumstances no costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 16. .11. 2009.
*pnr
“CORRECTED – O.K.”
