FA.No.707/2008  against C.C.No.623/2006, District Forum-II, Visakhapatnam.

Between:

Sri Akkireddy Appa Rao

S/o.Appa Rao, Hindu, aged 47 years,

Occupation:Employee, Andhra Bank,

Gajuwaka, Visakhapatnam-530 026.                                             .Appellant/                                                                                                                                          Complainant

And

M/s.Dheeraj Constructions,

Rep. by its Proprietor Sri Kondapu Bhaskara Reddy

S/o.Sri Rama Reddy, Situate at D.No.8-2,

Block No.2, Sriramnagar, Gopalapatnam

Visakhapatnam-530 027.                                                                Respondent/

                                                                                                            Opposite party

Counsel for the Appellant :Mrs.V.Chaitanya Latha                                                                                                                                                                                                                                                                                                                            

Counsel for the Respondent: served.

                        QUORUM:SMT.M.SHREESHA, HON’BLE MEMBER.

AND

SRI K.SATYANAND, HON’BLE MEMBER.     

WEDNESDAY, THE TWENTY SIXTH DAY OF AUGUST,

TWO THOUSAND NINE

ORAL ORDER: (Per Hon’ble Sri K.Satyanand, Member .)

                                                                                                                                                                                                                        ***

This is an appeal filed by the unsuccessful complainant assailing the order of the District Forum and praying the Commission to allow the complaint as prayed for.

The facts that led to filing this appeal are briefly as follows:

The complainant claimed to have entered into an agreement for purchase of a flat bearing No.G2 admeasuring 850 sq. ft. for a total sale consideration of Rs.4,50,000/- from the opposite party.  He claimed to have paid an amount of Rs.2,50,000/- out of the said consideration.  He further claimed that he entered into construction agreement dated 24-9-2004 in respect of the said flat.  While things stood thus, he came across an advertisement of the opposite party in the city edition of Eenadu for sale of flats.  Thereupon he claimed to have given a ring to the opposite party suspecting that his flat was also put for sale.  The opposite party however denied any such attempt and assured him that he would register the flat in his name but he did not keep up his word.  Thereupon the complainant claimed to have got issued a registered lawyer notice dated 9-3-2005 in which he also offered to pay the balance sale consideration and demanded the registration of the flat in his favour.  The said notice evoked a false reply dated 21-3-2005 from the opposite party.  The opposite party however admitted in the said reply the other particulars of the transaction.  The opposite party blamed the complainant that he did not pay the balance amount and thereby failed to abide by the terms of the agreement and he also gave an ultimatum to the complainant.  As such the complainant filed a complaint seeking the relief of execution of registering sale deed in respect of the flat in question after receiving the balance sale consideration of Rs.2,00,000/- and also for further reliefs including compensation in a consolidated sum of Rs.5,00,000/- etc.

The complaint was resisted by the opposite party denying the factum of the payment claimed by the complainant.  He, however, admitted the agreement for sale dated 24-9-2004 and then proceeded to narrate that the complainant failed to adhere to the terms of agreement for sale and was never ready with the balance sale consideration and went on postponing the same on one pretext or the other.  The opposite party admitted having given an ultimatum to pay the amount lest the agreement would be terminated.  As the complainant apprehended  that he would loose Rs.1,00,000/- that he paid, he engineered this complaint without merits.

In support of his case, the complainant relied upon Exs.A1 to A10.  The opposite party did not tender any evidence.

On a consideration of the evidence adduced, the District Forum came to the conclusion that Ex.A1 was an agreement of sale in which not only the opposite party but also the land owner by name Bhogadi Kanaka Rao was a party and for the reasons best known to the complainant, he omitted to show him in the array of opposite parties and this omission would go to the root of the very matter.  It also found fault with the complainant for relying upon a dummy construction agreement without any signatures of both the parties.  Likewise it also commented on the complainant’s reliance upon the so called receipts which were prior to Ex.A1 and obviously with an intention to take advantage of both the amount mentioned in Ex.A1 as also the amounts disclosed in Exs.A3 to A6.  Ultimately the District Forum held that the case of the complainant did not inspire confidence and in any view of the matter the frame of the complaint directly answers the description of specific performance suit and as such the matter would have been better agitated before a civil court than before the District Forum. On these findings, the District Forum dismissed the complaint.

Aggrieved by the said order of the District Forum, the complainant filed the present appeal contending inter alia that the District Forum ought not to have dismissed the complaint after taking nearly one year to pronounce the order after the same was reserved. The District Forum was wrong in directing the parties to go to a civil court.  It was also urged that the District Forum erred in observing that the matter requires detailed enquiry although the receipt of amounts was very much borne out from the record.  Ultimately it is commented that the District Forum was wrong in dismissing the complaint.

Heard the learned counsel for the appellant. The respondent did not file any written arguments though it was given an opportunity to so file.

The point that arises for consideration is whether the order of the District Forum suffers from any irregularity or illegality?

As could be seen from the prayer in the complaint, the relief is couched in the language akin to specific performance.  If really we go by the standards of specific performance then the proof tendered by the complainant turns out to be deficient in many respects.  There is no proof of expressing unequivocal willingness prior to the filing of the complaint that he was ready and willing to perform his part of the contract.  The mere issuance of notice was not enough in order to prove his bonafides.  If it were a specific performance suit, a person in the position of the complainant would be expected to deposit the entire balance of sale consideration into the court.  So judged by any standards, the complainant did not measure up to the requirements that would enable him to invoke the jurisdiction of specific performance.  In order to characterize the omission or commission on the part of the opposite party as coming under the teeth of the charge of deficiency in service, it is incumbent upon the complainant to show that for his part, he was not only ready to perform but also show such signs of overtacts.   Now coming to the evidence adduced by the complainant, he relied upon two vital documents, one is agreement of sale, Ex.A1 and the other is Construction Agreement, Ex.A2.  But the construction agreement is not an agreement in the eye of law in as much as it was not signed by any of the parties it was merely a dummy.  The other document, agreement of sale, marked as Ex.A1 was executed by two persons, the other person, the land owner being No.1 in the array of sellers was deliberately omitted.  In fact, it is evident from Ex.A1 that the title to the undivided share of the property was resting with the said person by name, Bhogadi Kanaka Rao.  In the absence of the said Kanaka Rao, it is incomprehensible as to how he could get title to the property from a mere builder.  This is not a case in which the builder in question was endowed with all the attributes of a developer contemplated by the A.P.Apartments, (Ownership and Promotion) Act.  He entirely depended upon Ex.A1.  The fact remains that Ex.A1 was dated 24-9-2004 and he relied upon the so called past consideration borne out from Exs.A3 to A6 to support the passing of consideration in Ex.A1, but strangely he made a mess of his payments by saying that the consideration referred to in Ex.A1 constituted a distinct amount over and above  the aggregate of the amounts set out in Exs.A3 to A6.  That is how he had arrived at the figure of Rs.2,50,000/- as being the amount that he had paid by way of part of the consideration.  If really what he stated was true, he ought to have specifically referred to the payments that he allegedly made under Exs.A3 to A6 and got them mentioned in Ex.A1.  On the other hand, Ex.A1 was silent about the amounts referred to in Exs.A3 to A6 and had merely referred to a bald amount of Rs.1,00,000/-.  Thus the accounting for the amount allegedly paid in a sum of Rs.2,50,000/- itself appears to be very artificial to say the least.  The other documents Exs.A8  and A10 are of little importance.  Ex.A9 is the original of Ex.A1 which in fact is the suit document for the specific performance of contract.  In these circumstances we feel that the District Forum rightly dismissed the complaint that the complainant having opted to file a complaint in the nature of specific performance suit before the District Forum. He did not measure up to the standards that are required in a specific performance suit before he claimed to succeed.  Thus we do not see any irregularity or infirmities in the order of the District Forum.

Accordingly the appeal is dismissed but without costs in the circumstances of the case.

MEMBER.           

                                                                                      MEMBER

                                                                         Dated 26-8-2009