F.A.No.1522/2008 against  C.C.No.888/2006 , District Forum-II, HYDERABAD.

Between:

M.Praveen Kumar, S/o.M.Pratap

Aged about 13 years, Occ:Student,

Presently residing at D.No.15-15-59

Sudershannagar Colony, Serlingamapally

Hyderabad-19.

(Complainant being minor rep. by his

 Father, Natural guardian, M.Pratap)                                   Appellant/

                                                                                                 Complainant

And

1. M.Sudhakar

    Chairman and Managing Director

    Janachaitanya Housing Limited

    Secunderabad Branch, 3^rd floor,

    Chowdary Mansion, Ameerpet,

    Hyderabad-16.

2. Krishna Rao,

    Branch Manager, Janachaitanya

    Housing Ltd., D.No.6-3-802,

    2^nd floor, Jainab Commercial Complex,

    Ameerpet, Hyderabad.

3. Divisional Manager,

    Hyderabad Branch-II,

    D.No.11-4-256/2/B, Janachaitanya

    Housing Ltd., Beside Indian

    Overseas Bank, Lakdi-ka-pool

    Hyderabad-004.                                                                 Respondents/

                                                                                                Opp.parties

Counsel for the Appellant: Mr.M.Venkataramana Reddy

Counsel for the Respondents:((Mr.M.Srinivas Swaroop).

QUORUM:   THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

SRI SYED ABDULLAH, MEMBER.

AND

SRI R.LAKSHMI NARASIMHA RAO,  MEMBER

TUESDAY, THE TWENTY FIRST DAY OF DECEMBER,

TWO THOUSAND TEN

Oral order:(Per Hon’ble Justice Sri D.Appa Rao, President)
***    

        The appellant is the unsuccessful complainant.

        The case of the complainant in brief is that he joined as a Member in the venture floated by the respondent company for purchase of plots.  He paid Rs.6,000/- on 26-11-2000 as against Rs.40,000/- that has to be paid in 40 monthly instalments namely Rs.500/- in first 20 months, Rs.600/- per month in the next 20 months, in addition to special instalments of Rs.4,000/- each in the 1^st and 12^th months, Rs.3,000/- each in 6^th and 18^th months and @ Rs.2,000/- each in 24^th and 30^th months.  He also paid Rs.1,000/- on 20-2-2001.  It is his case that the company agreed to send its collecting agent but did not do so and surprisingly it sent a letter on 01-7-2004 stating that he was declared as defaulter and his membership was terminated.  Despite his request to receive the balance amount and register the sale deed, it did not do so for which he issued a registered notice and no reply was given.  Therefore, he filed the complaint for a direction to the opposite parties to receive the balance sale consideration and register the plot in his favour together with compensation of Rs.2,00,000/- and costs.

        The opposite parties resisted the case.  While admitting that the complainant paid Rs.7,000/-, however, alleged that the complainant had committed default in payment of remaining balance, despite its notice on 01-7-2004.  Since the complainant did not adhere to any of the terms of the contract in paying the instalments, it terminated his membership and forfeited the amount that was paid.  In fact the said venture was closed.  It submitted that the complainant was not entitled to any of the reliefs’ claimed and therefore prayed for dismissal of the complaint with costs.

        The complainant in proof of his case filed his affidavit evidence and got Exs.A1 to A7 marked while the opposite parties neither filed affidavit evidence nor documents. 

        The District Forum after considering the evidence placed on record held that the complainant has committed default in payment of the instalments and therefore was not entitled to the reliefs claimed and dismissed the complaint.

        Aggrieved by the said order, the complainant preferred this appeal contending that the District Forum did not appreciate the facts in correct perspective.  It ought to have seen that the agents of the company as promised were not sent and therefore he could not pay the amounts.  The District Forum ought to have seen that no reply was issued to Ex.A4 notice and therefore ought to have allowed the complaint as prayed for.

        It is an undisputed fact that the opposite party is a Private Limited Company, floated a venture wherein it had agreed to sell house plots for Rs.40,000/- in instalments as mentioned in the complaint.  It is not in dispute that the complainant has paid Rs.7,000/-, namely Rs.6,000/- on 26-11-2000 and Rs.1,000/- on 20-2-2001 evidenced under entries in pass book, Ex.A1 pass book and receipts Ex.A2.  The complainant asserts that the opposite party company has promised that it would send its agents to collect the instalments, however, it did not do so.  Therefore, he could not pay the amount.  Be that as it may, the complainant has received the notice on 01-7-2004 from the opposite party company mentioning that it received only an amount of Rs.7,000/- and did not receive the remaining instalments, therefore, it was compelled to cancel his membership and forfeit the amount.  It may be stated herein that the complainant issued a notice through his lawyer undated under Ex.A4 evidenced under postal receipts, Ex.A5, and A6, A7 postal acknowledgements.  The opposite parties did not choose to give any reply.  When the complainant had mentioned that it was the fault of the company in not sending its agents and that was why he could not pay the amount, the said fact was not rebutted by the company and it kept silent.  Since it did not evoke any reply, the complainant filed the complaint on 30-6-2006 within time seeking the specific performance of the contract. 

We may state herein that the complainant is equally guilty in not sticking to payment of the amount in intalments as agreed upon.  No doubt he has given an explanation stating that the agents of the opposite parties did not come and therefore he could not pay the instalments.  Whatever be the reason, the fact remains that except an amount of Rs.7,000/- no other amount was paid.  The company is equally guilty in not responding to the notice issued by the complainant.  It did not rebut the averment made by the complainant that he had waited for the representatives of the company to come and collect the amounts.  Since the respondents company has categorically stated that it has closed the venture which was not rebutted by the complainant, the relief a specific performance claimed cannot be granted at this point of time.  However invoking the principles of natural justice, equity and good conscience we feel just that atleast the amount that was paid by the complainant should be refunded to him however, in view of latches, we do not intend to award any interest.

        In the result this appeal is allowed in part directing the respondents to refund an amount of Rs.7,000/- that was paid by the complainant within four weeks from the date of this order lest  it would carry interest at 9% p.a. thereafter.  There shall be no order as to costs.

                                                                                                Sd/-PRESIDENT.

                                                                                                Sd/-MEMBER.

Sd/-MEMBER.

JM                                                                                                     Dt.21-12-2010