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

F.A. 79/2008 against C.C. 46/2006, Dist. Forum, Ranga Reddy

Between:

1. Dharmapal, S/o. Late Jhabbu Ram

Age: 58 years, Business

2. Vedpal, S/o. Late Jhabbu Ram

Age; 43 years, Both are R/o. H.No. 24,

C.TIT Bock, East Maredpally

Secunderabad. *** Appellant/

Ops 3 & 5.

And

1) M/s. Chakkilam’s Jhabburam Apartments

Residents Welfare Association

Rep. by its President

D. Venkatapathi Raju

S/o. D. Subba Raju, Flat No. 201

Chakkilam Jhabburam Apartments

Plot Nos 298 and 299, Goutham Nagar

Malkajigiri, Ranga Reddy Dist. *** Respondent/

Complainant

2) M/s. Chakkilam Estates Ltd.

Rep. by its Managing Director

C. Raghuram, H.No. 6-3-649/5

Chakkilam House, Somajiguda

Hyderabad.

3) C. Raghuram, S/o. Venkatesham

H.No. 6-3-663/15/A

Somajiguda, Hyderabad.

4) Vijaypal, S/o. Late Jhabburam

R/o. 24 C TIT Block

East Maredpally, Secunderabad. *** Respondents/

Ops 1, 2 & 4.

Counsel for the Appellants: M/s. K. Lakshman

Counsel for the Respondent: M/s. D. Madhav Rao (R1)

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

&

SMT.M.SHREESHA, LADY MEMBER.

TUESDAY, THIS THE TWENTY EIGTH DAY OF SEPTEMBER TWO THOUSAND TEN

ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President.)

***

1) This is an appeal preferred by Ops 2 & 3 against the order of the Dist. Forum directing them to execute sale deeds along with Ops 1 & 2 in respect of flat Nos. 204, 302, 303 & 502 together with costs.

2) The case of the complainant M/s. Chakkilam’s Jhabburam Apartments Welfare Association represented by its President in brief is that the appellants and their brother Vijaypal are the owners of plot No. 298 & 299. They entered into development agreement with Ops 1 & 2 builders under Development Agreement Ex. A17 dt. 27.1.2000 whereby Ops 1 & 2 agreed to construct 20 flats out of which 12 flats would fell to the share of the builder while the remaining 8 flats would fell to the share of appellants. While the appellants along with builder had executed sale deeds pertaining to the remaining flats owners, they did not execute sale deeds in favour of flat owners No. 204, 302, 303 and 504 which they have purchased under agreement of sale dt. 15.3.2003, 25.2.2004, 4.11.2003, and 14.12.2002 respectively. They had to pay part of the sale consideration and they were prepared to pay provided the flats were completed. The possession of the flats were delivered however they were postponing to execute the sale deeds. Still they have to complete the following works:

    Complete parking area with clear flooring

    Construction of compound wall.

    Municipal water supply

    Fixing of gate and construction of watchman room

    Providing lift and white washing of complex.

In view of this they were facing lot of troubles including parking of vehicles etc. There is no provision of drinking water to the apartments. Though Ops 1 & 2 had to complete the construction within 16 months from the date of agreement viz., September, 2003 occupation was given in April, 2005. Still some more works remain unattended for which amounts were already collected. Despite legal notice Ex. A11 dt. 9.11.2005 the builder did not give any reply and therefore they filed the complaint directing the appellants along with builder to execute the sale deeds for the above mentioned four flats, complete the pending works as mentioned above besides compensation of Rs. 10,000/- per month.

3) The builders Ops 1 & 2 resisted the case. They alleged that since the four flats owners mentioned in the complaint did not pay balance of sale consideration they could not execute the sale deeds. They did not file any photos to show that still works were pending. The complaint was barred by limitation. They were not entitled to any damages, and therefore prayed for dismissal of the complaint with costs.

4) The appellants equally resisted the matter. While admitting that they had registered the flats in respect of some of the flat owners they were not aware that they had to execute the sale deeds in favour of the complainants. There is no privity of contract between them and the prospective purchasers and therefore they did not execute sale deeds. They were not aware that sale consideration was received by the builder. The complaint was barred by limitation. They were not liable to pay any compensation. Therefore they prayed for dismissal of the complaint with costs.

5) The complainants in proof of their case filed the affidavit evidence of its President and got Exs. A1 to A18 marked, while the Managing Director of Op1 filed his affidavit evidence and the appellants filed their affidavit evidence and did not mark any documents.

6) The Dist. Forum after considering the evidence placed on record opined that the development agreement was executed between the appellants and the builder by virtue of which, the owners the appellants have to execute the sale deeds. Since the part of sale consideration was not paid, the builder was directed to receive the balance of sale consideration and also complete unfinished works besides payment of costs of Rs. 2,000/-.

7) Aggrieved by the said order the owners preferred this appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that the complaint was not a consumer nor there was any deficiency in service on their part. They cannot seek relief of execution of sale deeds against them. There was no privity of contract between them and the complainants to execute the sale deeds in favour of the complainants. They were not parties to the agreements entered into between the flat owners and the builders. Therefore they prayed that the appeal be allowed setting aside the order of the Dist. Forum as far as they are concerned with costs.

8) During pendency of the appeal the appellants filed an application to receive documents by way of additional evidence and the same were marked as Exs. B1 to B10 on their behalf.

9) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

10) It is an undisputed fact that the appellants are owners of plot Nos. 298 & 299 in S.No. 870, 871 & 872 situated at Goutam Nagar Colony of Malkajigiri Municipality which was given for development to Ops 1 & 2 builders for construction of 20 flats to be shared at 62:38 ratio vide development agreement Ex. A17 dt. 27.1.2000. Persuant to the said development agreement the builders have constructed apartments and sold away the same under sale deeds Exs. A1 to A7. It may be mentioned that the appellants also subscribed their signatures to these sale deeds without any demur. The owners of flat Nos. 204, 302, 303 and 504 having agreement of sale Ex. A8 executed by the builder, sought for registration of sale deeds in their favour. While they allege that they were ready to pay balance of sale consideration since the builder did not complete the construction and left some of the works and despite the legal notice Ex. A11 dt 9.12.2006 having received evidenced under acknowledgement Ex. A14, the builder did neither execute the sale deeds nor give reply. An amount of Rs. 1,54,000/- by the owner of flat No. 204, Rs. 52,200/- by the owner of flat No. 302, and Rs. 17,400/- by the owner of flat No. 303 were paid by way of demand draft on 18.12.2003 in all an amount of Rs. 2,23,600/-. Therefore the entire amount due by them towards balance of sale consideration was deposited. The builder as well as the appellants contend that the agreements are barred by limitation. The fact remains that the builder had agreed to execute the sale deeds in favour of prospective purchasers and that they have entered into agreement of sale with the builder the consideration should necessarily go to the builder. However in order to confer the title on the purchasers the appellants have to join along with builder for execution of the sale deeds. The fact remains that when legal notice was issued under Ex. A11 the builder having received the same under acknowledgement Ex. A14 did not repudiate. Article 54 of the Limitation Act stipulates a period of three years from the date fixed for the performance, or if no such date is fixed, when plaintiff has notice that performance is refused. When the appellants were not parties to the agreement between the builder and the prospective purchasers and by virtue of development agreement they were bound to execute the sale deeds. The question of limitation will not arise. Since the agreement is alive, the builder as well as the appellants had to execute the sale deeds in their favour.

11) No doubt the owners have nothing to do with the construction of various structures as mentioned in the complaint. There was no direction to complete those structures. Since this appeal is preferred by the owners, the only contention that was raised was that they were not liable to execute the sale deeds which we have already held as ex-facie unsustainable. Having executed the development agreement and executed sale deeds in favour of other flat owners they are bound to execute the sale deeds in favour of complainants. The question that they were not parties to the agreement entered into between the builder and the prospective purchasers has no meaning. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard.

12) The appellants are directed to execute the sale deeds in favour of the flat owners along with builder on receipt of notice issued by the flat owners fixing the date for execution of sale deeds. Rest of the order of the Dist. Forum is confirmed. However, no costs.

1) _______________________________

PRESIDENT

2) ________________________________

MEMBER

Dt. 28/09/2010.

*pnr