BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
OF 2008 AGAINST C.C.NO.310 OF 2007 DISTRICT CONSUMER FORUM-II HYDERABAD
Between
K.V.Srinivas Rao S/o Sri K.V.Rao
Aged 43 years, Occ: Service
R/o H.No.11-13-1186, Vasavi Colony
Hyderabad
Appellant/complainant
A N D
Jana Chaitanya Real Estate
Development, rep. by its Managing Director
havint its office at Taramandal Complex,
V Floor, Saifabad, Hyderabad
Respondent/complainant
Counsel for the Appellant Sri V.Srinivas
Counsel for the Respondent Sri M.Srinivasa Swarup
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
WEDNESDAY THE TWENTY EIGHTH DAY OF DECEMBER
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. The unsuccessful complainant is the appellant.
2. The facts of the case as seen from the complaint are that the appellant joined as a member on 15-09-1989 in the venture Saiteja launched by the respondent company in the land comprising in survey numbers 94,95/2 and 95/3 situate at Injapur village. The cost of the plot is `15,000/- payable in 36 monthly installments. Initially at the time of joining as a member, the appellant paid an amount of `2,300/- and the balance amount of `12,700/- was paid in monthly installments. The appellant issued pass book and letter dated 17-09-1993 and the receipt for `15,600/- towards the cost of the plot and development charges.
3. The appellant requested the respondent to execute the sale deed. The respondent sought time for execution of the sale deed. The appellant addressed letter dated 5-04-2006 to the respondent requesting the respondent to execute sale deed. The respondent informed the appellant that the plot number had been changed from 78 to 81 as per the revised layout. The appellant got issued notice on 7-03-2007 which the respondent received and failed to give any reply.
4. The respondent resisted the case contending that the appellant had paid an amount of `2,300/- on 15-09-1989 and the installments not in accordance with the payment schedule. The appellant has to pay development charges, registration charges and other incidental charges. The venture was completed in the month of August,1992 and the respondent addressed letter dated 17-09-2003 informing the appellant that he had paid `15,600/- towards the cost of the plot and requested him to pay the development fee, registration fee and other incidental charges for which there was no response from the appellant. Plots were allotted and registered to the members who paid the total cost of the plot including the development fee, registration charges and other incidental charges. It was very difficult and also expensive to maintain and safeguard the open plots for a long time. After waiting for a couple of years, the respondent had decided to return the amount to the appellant as the appellant was not interested in getting executed the sale deed.
5. It is submitted that the respondent had not allotted the plot number78corresponding to its new number 81 to the appellant. The relief sought for, by the appellant is for specific performance and is outside the purview and jurisdiction of the Consumer Forum. The cause of action arose from the date of the letter dated 17-09-1993 addressed by the respondent and the silence on the part of the appellant till the date of issuing notice dated 5-04-2006 has to be explained by the appellant. The issuing of notice cannot be the starting point for limitation. The delay caused in filing the complaint is intentional and deliberate and cannot be condoned, for no satisfactory reasons are explained by the appellant. The respondent is ready to refund the amount paid by the appellant excluding the administrative charges as per the norms of the company.
6. The appellant has filed his affidavit and the documents Exs.A1 to 8.
7. The legal and estate officer of the respondent company, Sri K.Rangiah has filed his affidavit but no documents have been filed on behalf of the respondent company.
8. The respondent has filed his written arguments.
9. The District Forum has dismissed the complaint on the premise that the relief sought for is for specific performance of contract and the transaction is relating to immovable property as also that there is no provision in the Consumer Protection Act to grant the relief sought for.
10. Feeling aggrieved by the impugned order, the appellant filed the appeal contending that the cause of action begins from the date of refusal to perform the contract. The respondent which denied its obligation under the contract by its failure to respond to the notice dated 7-03-2007 and that the respondent is guilty of deficiency in service as it failed to execute the sale deed in favour of the appellant even after receiving the total sale consideration of `15,600/- inclusive of development charges.
11. The points for consideration are:
1. Whether the complaint is filed within the period of limitation?
2. Whether the appellant is entitled to the relief of execution of sale
deed ?
3. Whether there was deficiency in service on the part of the respondent?
4. To what relief?
12. POINT NO:1 The appellant joined as a member in the scheme “Sai Teja” promoted by the respondent on 15-09-1989 by paying an amount of `2,300/- and the balance amount of `12,700/- in monthly installments by the 10th of November,1992. The same terms and conditions are incorporated in the pass book and the application form. No specific clause or condition is laid down stipulating the scheme period. The payment schedule providing for payment of the amount in 36 installments indicates that the scheme period is three years. The respondent addressed letter on 17-09-1993 informing the appellant that the respondent was planning to construct the houses in its first venture “Sai Teja” by next year and requested the appellant to pay registration charges and development charges. The appellant addressed letter dated 5-04-2006 and got issued notice through his advocate on 7-03-2007 informing the respondent through the letter that that the pass book as asked for, by the respondent could not be produced as it could not be traced and requested the respondent by the notice to execute sale deed in view of payment of `15,600/- which is inclusive of cost of the plot and development charges.
13. The pass book and the application form do not envisage as to what are the rights and liabilities of the appellant and the respondent company in a situation where the appellant had paid the cost of the plot and failed to pay the development charges. The letter of the respondent does not contain any ascertained amount under the caption of development charges. Unless the amount to be paid towards development charges is quantified, the obligation under the terms of the contract would rest on the respondent company to inform the appellant that the amount in tangible figure has to be paid. The respondent has expressed its readiness to pay back the amount paid by the appellant deducting therefrom the administration charges in accordance with the terms and conditions of the scheme. All these circumstances considered together would show that the cause of action for the appellant to file the complaint has been continuous particularly in the light of the admission of the respondent to discharge its liability by expressing its willingness to refund the amount, of course subject to deducting the administration charges. Hence, the District Forum was of an erroneous view that the complaint was not filed within the period of limitation. The point is answered in favour of the appellant/complainant.
14. POINTS NO.2 AND 3 The appellant has paid `15,000/- to the respondent. The respondent has addressed letter dated 17.9.1999 acknowledging receipt of `15,600/- towards cost of the plot. The passbook issued by the respondent would also establish the payment of sale consideration paid by the appellant. The respondent has contended that the appellant has not paid the development charges and as such it could not allot the plot and execute registered sale deed in favour of the appellant. Except the letter dated 17-09-1993 , the respondent has not taken any steps in informing the appellants about the development of the plot or the change of plot no. in view of the revised lay out.
15. The respondent has kept the matter pending and came up with a plea that the plot allotted to the complainant has been allotted to someone else as the appellant had not come forward for the purpose of registration of the plot in his favour. The fact remains that the appellant has paid the cost of the plot and the respondent had not informed him of any ascertained amount under the caption of the development charges so as to enable the appellant to pay the development charges to the respondent. Hence, negligence is manifest in the inaction of the respondent in not making demand of a concrete amount and issuing the letter dated 17.9.1993 for a vague and unascertained amount towards the development charges. At the same time the negligence of the appellant cannot be lost sight of as the appellant is equally responsible for taking steps and showing vigilance in the matter of letting the contract proceed in accordance with the terms laid down thereof. Keeping in view of the circumstances, we are inclined to allow the appeal holding the appellant entitled to the refund of `15,600/- without there being any deduction towards administration charges and the amount is charged with interest @ 9% per annum from the date of complaint.
15. In the result the appeal is allowed and the order of the District Forum is set aside. Consequently, the complaint is allowed. The respondent/opposite party is directed to refund the amount of `15,600/- along with interest @ 9% per annum from the date of complaint together with costs of `2,000/-. Time for compliance four weeks.
MEMBER
MEMBER
Dt.29.12.2010
KMK*
