FA No.454 OF 2009 AGAINST C.C.No.93 OF 2007 DISTRICT FORUM SRIKAKULAM

Between

Smt Kotha Venkata Ramanamma

W/o Bala Nageswara Rao, aged about 44 yrs
Household duties, R/o Dr.No.3-10-35,
Gajula Veedhi, Srikakulam Town & Dist.

                                                                Appellant/complainant

        A N D

Gruha Laxmi Real Estates and Financiers, Rep.by its Managing Partner,

Voonna Sarveswara Rao, Culub Road, Side lane of

Visalandhra Convent, Srikakulam District

Srikakulam.

Respondent/opposite party

Counsel for the Appellant             Sri Aravala Rama Rao

Counsel for the Respondent          Sri K.V.Subramanyam

QUORUM:    SRI R.LAKSHMI NARASIMHA RAO, HON’BLE MEMBER

                               AND

      SRI T.ASHOK KUMAR, HON’BLE MEMBER

        MONDAY THE FIFTH  DAY OF DECEMBER

                     TWO THOUSAND ELEVEN

    Oral Order:(Per Sri R.Lakshmi Narasimha Rao, Hon’ble Member.)

***

1.     Dissatisfied with the order of the District Forum, the complainant filed the appeal contending that the appellant paid a sum of `21,000/- in 60 monthly instalments for 0.5 cents of land and also paid Rs.15,000/- on 26.8.2004 towards 0.03.2 cents of land and that Exs.A1 to A51 receipts were issued by the respondent for an amount of `36,000/- and there is no any dispute about the payment of `15,000/-.

2.     The appellant joined as a member in the housing scheme conducted by the respondent and paid an amount of `100/- towards membership fee on 25-5-1994.   Thereafter the appellant paid monthly installments at the rate of `350/- for 60 months.  The appellant paid total amount of `21,000/- to the respondent in monthly installments. As per the terms and conditions of the scheme the respondent conducted draw and in the draw of lots the appellant was declared as winner and he was entitled to get Ac.0-03.2 cents of land in addition to actual extent of Ac.0.85 cents.  The respondent demanded an amount of `15,000/- towards additional land and accordingly the appellant paid Rs.15,000/- to the respondent on 26-8-2004.  The appellant approached the respondent for registration of Ac.0-08.2 cents of land and also issued blank cheque to the respondent towards registration fee.   The respondent did not register the plot in favour of the appellant.  The appellant issued notice dated 4-1-2006 to the respondent.  There was no response from the respondent to the notice.

 3.    The respondent resisted the case contending that as per terms and conditions of the scheme, the appellant had to pay differential amount for additional extent of    Ac.0-03.2 cents on the value fixed by the respondent.  Market value of the said site was `20,000/- per cent.  The respondent informed the same to the appellant.  The appellant instead of paying the said amount issued notice dated 4-1-2006.   The respondent created a receipt dated 26-8-2004 for `15,000/- to save limitation.  The respondent expressed his intention to register plot NO.597 to an extent of Ac.0-05 cents, but the appellant did not come forward.  The appellant is not entitled to get Ac.0-08.2 cents of plot No.597 registered.

 4.    The appellant filed her affidavit and documents Exs.A1 to A53 are marked.  On behalf of the respondent, V.Sarveswara Rao, Proprietor of the respondent has filed his affidavit but no documents.

5.     The District Forum allowed the complaint directing the respondent to pay `21,000/- with interest @ 12% per annum from 4.1.2006 till payment along with costs of `2,000/-.

6.     The point for consideration is whether the appellant is entitled to the balance amount of `15,000/- from the respondent?

7.     The scope of the complaint which was filed for claiming an amount of `10,000/- as compensation and for direction to the respondent company to register the plot No.597 in favour of the appellant has been narrowed to the extent of claiming an amount of `15,000/- towards the balance amount out of the amount of `36,000/- deposited by the appellant for the purpose of purchase of the plot.  A perusal of the bunch of receipts (50 in number) would disclose that the appellant has paid `36,000/- to the respondent company in monthly instalments.  The respondent company disputed the allotment of plot no.597 in favour of the appellant and contended that the receipt dated 26.8.2004 is created for an amount of `15,000/-.  According to the respondent company the appellant has to pay additional amount for the additional extent of 0-03.2 cents on the value fixed by the respondent company as it is in the realm of the discretion of the respondent to fix the value of the additional extent of land.  It is contended on behalf of the respondent company that the appellant had not come-forward to pay the additional amount instead got issued notice dated 4.1.2006.

8.     The District Forum has moulded the relief awarded a sum of `21,000/- in favour of the appellant.  The appellant has paid in monthly instalments a total amount of `36,000/-.  He got issued notice on 4.1.2006 wherein it is stated that the respondent company had conducted draw of lots and declared the appellant as winner as also allotted plot no.597 measuring 8.2 cents in favour of the appellant.  By that time the appellant had paid an amount of Rs.21,000/- for 5 cents of the plot and as such the respondent stated to have demanded for additional amount of Rs.15,000/- for the additional extent of land 3.2 cents whereon the appellant had issued cheque bearing no.866914 drawn on State Bank of Hyderabad, Srikakulam.  Having acknowledged receipt of the notice, the respondent company has not given reply nor did it come-forward to execute sale deed in favour of the appellant in respect of the plot no.597. 

9.     The scope of the appeal being confined to the extent of `15,000/-, we would consider the rival contentions of the parties in regard to the amount in question.  The plea of the appellant is that originally the plot no.597 measuring 5 cents was allotted in his favour and subsequently 3.7 cents was also allotted claiming additional amount of `15,000/- which according to him was paid under receipt dated 26.8.2004.  The respondent company has disputed the amount as also the receipt.  The notice dated 4.1.2006 issued on behalf of the appellant goes to show that the amount of `15,000/- was paid towards additional charges through cheque bearing No.866914.  Therefore, it cannot be said that the appellant has paid `30,000/- towards the cost of the additional extent of the plot.  It is true, there is discrepancy in regard to the payment of the amount of `15,000/- by different modes, through cheque as also in cash under the receipt marked as Ex.A59.  Both the parties are not clear as to how the amount of `15,000/- was paid by the appellant and received by the respondent company. 

10.    The receipt only contains the recital that the appellant has paid `15,000/- towards the cost of plot no.597 and the contents of the notice establish payment of the same amount through cheque.  A combined reading of the receipt and the notice would show that the amount mentioned in the notice is the same amount covered under the receipt.  Thus, a construction of both the documents prima facie establish payment of `15,000/- by the appellant to the respondent company and the finding to the contentions by the District Forum is not sustainable. 

11.    The appellant has filed the appeal claiming the amount of `15,000/- and he has not pressed for execution of the sale deed in respect of allotted plot.  The appellant has sought for refund of the amount paid by him towards consideration of the plot.  When the refund of the amount is sought for and the relief for execution of the sale deed is not pressed, the District Forum has rightly allowed the complaint in favour of the appellant directing the respondent company to refund the amount.  However, the District Forum has not ventured to decide the dispute in regard to the extent of `15,000/- which we have considered hereinabove and held the appellant entitled to.  In the circumstances, the findings returned by the District Forum in regard to payment of the cost of the plot in instalments by the appellant is liable to be modified.  The other reliefs in regard to the award of interest @ 12% per annum and `2,000/- towards costs does not warrant interference in the appeal.

12.    In the result the appeal is allowed modifying the order of the District Forum.  The respondent/opposite party directed to refund the amount of `36,000/- with interest @ 12% per annum from 4.1.2006 till payment together with costs of `2,000/-.  In the circumstances of the case there shall be no order as to costs in the appeal.  Time for compliance four weeks.

                                                                           Sd/-

                                                                        MEMBER

                                                                           Sd/-

                                                                        MEMBER
                                                                   Dt.05.12.2011

KMK*