BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSIONAT HYDERABAD.
F.A. 1148/2006 against C.C 70/2006, Dist. Forum, Guntur.
Between:
1. Vaishnavi Real Estates
Rep. by its Managing Director
Main Road, Lakshmipuram
Guntur.
2. Penumatcha Ramachandra Raju
Managing Director
Vaishnavi Real Estates
R/0. 2/2, Ashok Nagar
Guntur. *** Appellants/
Opposite Parties
And
Rachamalla Lakshmi
W/o. Sanjeeva Reddy
C/o. Lella Nageswara Rao
Advocate, 2/11,
Brodipet, Near GDCC Bank
Guntur. *** Respondent/
Complainant
Counsel for the Appellant: Mr. G. Rajesham
Counsel for the Resps: Mr. A. Rajendra Babu
QUORUM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
FRIDAY, THE TWENTY THIRD DAY OF JANUARY TWO THOUSAND NINE
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
This is an appeal preferred by the opposite party against the order of the Dist. Forum in directing them to refund the amount with interest and costs.
The case of the complainant in brief is that she was allotted two plots consisting of 200 sq.yds each in the scheme run by the appellant wherein she had to pay Rs. 45,000/- in 40 instalments for each plot, and on payment of total consideration the appellants would register the plots in the name of respective subscribers. Appellants agreed to send one of its employees to collect instalments every month. Accordingly the appellants had collected Rs. 13,400/- (in 14 instalments) under pass book No. 376 and collected Rs. 14,000/- (in 15 instalments) under pass book No. 377. Later the employee stopped coming for collecting instalments. Despite number of phone calls he did not come. Later when she tried to pay the amounts, the appellants refused to receive the same. Therefore, she was shown as defaulter. Thereupon she wrote letters and finally registered notice on 16.11.2005 for which the appellants gave a vague reply. Later she learnt that the original owner did not transfer the title to the appellants and thus they were evading. Since they had wantonly neglected to collect the amount, she filed the complaint to direct the appellants to register the plots.
The appellants resisted the case. While admitting that it has floated a scheme in the year 1996 wherein the complainant and her husband subscribed for purchase of two plots and agreed to pay the same in 40 instalments pass books bearing Nos. 376 & 377 were issued. The complainant had paid 15& 13 instalments to a tune of Rs. 14,000/- and Rs. 13,400/- respectively shown in the pass books. Later the complainant had stopped payment of the amounts. The scheme was ended by 31.12.1999. As per the rules and regulations of the scheme it was clearly mentioned in Rule-1 that the plot size is 200 sq.yds and its value is Rs. 45,000/- for which as per the scheme Rs. 600/- has to be paid every month for about 40 months and in the months of 1st, 10th, 20th, 30th and 40th they have to pay Rs. 1,000/- in addition to the above Rs. 600/- and more over as per Rule-2, 5th, 15th, 25th, 35th months they have to pay Rs. 3,000/- in addition to the above Rs. 600/-.
More over as per Rule-3 remaining Rs. 4,000/- has to be paid at the time of registration of the plot and the cost of registration shall be borne by the member only.
Rule 7 stipulates that in case of default in payment of instalments for 3 months consecutively the name of the member shall be removed without any notice and the amount would be forfeited. The complainant had made last payment on 18.5.1999 for pass book No. 376 and on 6.8.1998 for pass book No. 377 more than three years ago. As per the terms, the amounts were forfeited. The complaint was filed in 2006 after a lapse of 7 years after completion of the scheme, and therefore barred by limitation. There was no stipulation that their employees would come and collect the amounts. The case was filed malafidely in order to pressurise them to gain illegal benefit. The complainant committed default and filed this complaint after a lapse of 6 years as there was hike in the rates of real estate. Since the complainant had failed to perform her part of contract she was not entitled to claim any amount, and therefore prayed for dismissal of the complaint with costs.
The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A4 marked, while the appellants filed affidavit evidence and got Exs. B1 & B2 marked.
The Dist. Forum after considering the evidence placed on record opined that the complainant had paid admittedly Rs. 13,400/- and Rs. 14,000/- under pass books Exs. A3 & A4 respectively and since possession was not delivered the question of limitation would not arise. As the complaint was filed within two years of issuance of registered notice, it was within time, and therefore directed to refund the amount with interest @ 9% p.a., together with costs of Rs. 500/-.
Aggrieved by the said decision, the appellants preferred this appeal contending that the Dist. Forum did not consider the question of limitation as provided u/s 24-A of the Consumer Protection Act. Abnormal delay was neither explained by the complainant nor substantiated by her. Therefore, it prayed that the appeal be allowed.
It is an undisputed fact that the appellants had floated a scheme wherein it had agreed to allot 200 sq.yds of plots on payment of Rs. 45,000/- in 40 instalments by due dates as mentioned in application form as well as in the pass books Exs. A3 & A4.
It is also not in dispute that the complainant had paid 14 instalments amounting to Rs. 13,400/- under pass book No. 376 and 15 instalments amounting to Rs. 14,000/- under pass book No. 377. These instalments amounts were paid as long back as on 4.4.1999 and 6.8.1998 respectively. Evidently she did not pay the subsequent instalments. Her contention was that employees of the appellants used to come and collect the payments, and as they did not come, she could not pay the same. The fact remains that she did not pay the amounts from 1998 onwards. It is not in dispute that the scheme had ended by 31.12.1999.
When the employees of the appellants were not coming and collecting subsequent instalments, there was no reason why the complainant did not issue any notice nor sent the amount by way of Money Order or cheque or demand draft. The complainant is an educated woman. She did not dispute the terms and conditions mentioned in the pass books. In Exs. B1 & B2 caluse-7 stipulates that if any subscriber commits default in payment of instalments consecutively for three months the name of the subscriber would be removed from the list and the amount paid would be forfeited. Though the scheme was ended in 1999 the complainant for the reasons best known issued a registered notice on 16.11.2005, six years after closure of the scheme alleging that employee stopped coming to collect the instalments and she was willing to pay the same and insisted for execution of registered sale deeds.
We may state herein that under the scheme the subscriber had to pay all the instalments and there is a provision under the scheme that draw of lots would be taken, and if the subscriber succeeds in getting allotment in the lottery she would get the benefit of plot wherein she need not pay the remaining amounts. The complainant never bothered to know the lots that were drawn and the subscribers who succeeded in each of the month. The appellant gave reply immediately under Ex. A2 as long back as on 5.12.2005 stating that complainant herself stopped payment of instalments for no reason. Despite their employees efforts to make her to pay did not yield any result. Since she had committed default her name was deleted from the list and the amounts were forfeited. Therefore, it was barred by limitation. It stated that she had flouted conditions and that after closure of the scheme neither the amounts could be paid nor the plots be registered in her name.
Somehow when there is no pleading or proof the Dist. Forum thought that non giving of possession would give cause of action for the complainant to file the complaint and it would not suffer limitation by relying a decision in RAJAN KRUSHNA GAVALI Vs. SOU. SAMINA SHABANSETH JAMADAR reported in IV (2004) CPJ 69. It is not known how the said decision could be applicable to the instant case. That was a case where the entire sale consideration was paid. In that context it was held that in case of non delivery of possession of plot the question of limitation does not arise. Since the question of forfeiture will not arise, it was directed to pay the amount. We do not see how the said decision could be applied to the facts of the instant case.
Since the complainant had stopped payment of amounts as long back as in 1998 and the scheme was ended in 1999, and for the first time she gave a notice on 16.11.2005 directing the appellants to execute the sale deed, and filed the complaint on 26.12.2005 it cannot be said that it is within the limitation.
Section 54 of the Limitation Act provides 3 years limitation for filing a suit for performance of a contract. The time for which the period begins to run is the date fixed for the performance, or if no such date is fixed when the plaintiff has notice that performance is refused.
By virtue of terms of contract, in default of payment of instalments three months consecutively, the name of the member would be removed without any notice and the amount paid would be forfeited. Evidently, the complainant had stopped payment of the amount from 4.4.1999 and 6.8.1998. In fact the very scheme was closed in the year 1999. The complaint was filed after a lapse of 7 years. As we have already observed that when a registered notice was issued in 2005 for the first time after limitation, equally reply was given stating that it was barred by limitation. In the interregnum no action whatsoever was taken. No reason was assigned.
The complainant admittedly did not file an application u/s 24-A(2) of the Consumer Protection Act at the time of filing the complaint to condone the delay in filing the complaint When Section 54 of the Specific Relief Act provides period of limitation, the complainant could have mentioned as to how the complaint filed by her would be within the period stipulated under the Specific Relief Act for the relief claimed by her. At no stretch of imagination, filing of the complaint could be said to be within time for recovery of the amount or for the execution of registered sale deed in her favour. Giving a registered notice would never give a cause of action nor keep alive the limitation period in order to process the claim. If really the agents of the appellants did not come to collect the instalments, she could have issued notice or could have sent the amounts to keep the contract alive. Section 24-A(2) of the Consumer Protection Act enable the complainant to file a petition to condone delay if it is barred by limitation. Such petition was not filed in order to determine the question of limitation. Under these circumstances, the complainant is not entitled to the relief claimed.
Under the Consumer Protection two years period is prescribed for filing a complaint, and a period of three years is prescribed for filing a suit as mentioned above. Since the complaint was filed beyond the period of limitation, she was neither entitled to the amount nor specific performance of the contract. In view of the aforesaid circumstances the complaint was barred by limitation. The complainant is not entitled to any relief whatsoever.
In the result the appeal is allowed. The order of the Dist. Forum is set-aside. Consequently the complaint is dismissed. However, in the circumstances of the case each party to bear its own costs.
PRESIDENT LADY MEMBER
Dt. 23. 01. 2009.
