BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 41/2009 against C.C. 48/2008, Dist. Forum, Ranga Reddy
Between:
K. Seetharam Reddy,
S/o. Malla Reddy
Age: 70 years, Business
R/o. 12-5-149/11/1/A
Vijayapuri, Tarnaka
Secunderabad. *** Appellant/
Complainant
And
M/s. Janaharsha Estates N Constructions
Rep. by its Managing Director
Office at 12-5-149/17,
Opp. Railway Degree College
Taranaka, Secunderabad. *** Respondent/
O.P.
Counsel for the Appellant: M/s. B. Rajasekhar Reddy
Counsel for the Resps: M/s. N. S.V. Nageswara Rao.
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
TUESDAY, THIS THE SECOND DAY OF NOVEMBER TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that the appellant floated a scheme for sale of plots under the name and style of Dream City-II, Garden Unit. He joined as a member for 5 plots by paying an admission fee of Rs. 100/- each. He had to pay Rs. 6,000/- each towards special instalment and Rs. 600/- each per month in 50 equal monthly instalments. The appellant promised to grow teak plants and fruit plants in each of the plots. He had paid the following amounts on various dates.
S.No. | Date | Description | Amount |
| | | |
1 | 31.03.2002 | @ Rs. 100/- x 5 plots | 500 |
2 | 31.03.2002 | @ Rs. 6,380/- x 5 plots | 31900 |
3 | 04.09.2004 | @ Rs 11,000/- x 5 plots | 55000 |
| | Total | 87400 |
Though he had expressed his willingness to pay balance of amount in lump sum in order to get the registered sale deeds, the Managing Director of the respondent company had been arrested in a murder case and the office was closed and there was none to negotiate for payment of remaining instalments. When he was released on bail, he approached the respondent who insisted for payment of Rs. 36,000/- for each of the plot more than the agreed amount. However, he was ready to pay balance instalments amount of Rs. 18,520/- for each of the plot which comes to Rs. 92,600/- for 5 plots. When he did not agree he issued registered notice calling upon to receive balance sale consideration and execute registered sale deeds. A false reply was given stating that the amount was forfeited as he did not pay the amounts regularly. This was done with a malafide intention amounting to deficiency in service. Therefore he filed the complaint to execute registered sale deeds by receiving balance sale consideration besides claiming Rs. 30,000/- towards compensation and Rs. 10,000/- towards legal expenses.
3) The respondent resisted the case. He alleged that the rights and liabilities of the parties are governed by agreements. Since the transaction pertains to immovable property the Dist. Forum has no jurisdiction. No doubt the complainant had joined as a member in the scheme but he paid Rs. 71,000/- till September, 2004 and stopped payment of future instalments. Clause 7(a) stipulates mode of payment. In the event of default in payment of two instalments the agreement stands cancelled. As per clause-11 in the event of default in payment of three instalments the membership stands cancelled without any prior notice and the amount paid till then stands forfeited and he will not be entitled to any right or claims. By virtue of above term his membership was terminated and the amount was forfeited. Though the Managing Director was arrested the office was never closed. In order to overcome his own deficiencies he filed this complaint. Even before the arrest, the complainant had committed default. In view of raise in prices of real estate he resorted to this speculative litigation, and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A6 marked while the appellant filed the affidavit evidence of its Chairman & Managing Director T. V. Ramana Murthy and filed Exs. B1 & B2.
5) The Dist. Forum after considering the evidence placed on record opined that the complainant had committed default in payment of amounts and therefore the respondent was entitled to forfeit the amount. There was no deficiency in service on its part and therefore dismissed the complaint with costs of Rs. 2,000/-.
6) Aggrieved by the said order, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts or law in correct perspective. It had failed to see that he was paying the instalments regularly as per the scheme and in view of the arrest of the Managing Director he could not pay the remaining instalments. There was no person to receive the amount. In fact the respondent had received the amounts even after lapse of three consecutive instalments, and therefore it cannot turn round and forfeit the amount. Even now he is ready to pay the balance, and therefore prayed that the appeal be allowed.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that the appellant floated a scheme wherein the complainant had become a member for purchase of plots of 120 sq.yds each. It is also not in dispute the complainant in all paid Rs. 87,400/- as mentioned earlier evidenced from statement of account Ex. B2 maintained by the very respondent, and receipts Exs. A2 to A4. The fact remains that the respondent, though promised under clause-5 of the scheme, did not grow six teak plants and six fruit plants and hand over the same on completion of 50 instalments. He had offered the payment options as under :
(a) 52 months instalment scheme.
Cost of the 120 sq.yd unit in 52 months instalment scheme is Rs. 36,000/- this includes the monthly instalment of Rs. 400/- along with special instalments of Rs. 1000/- in first month, Rs. 1,400/- each in 5th, 10th, 15th, 20th, 25th, 30th, 35th & 40th months and Rs. 3,000/- in 50th month respectively. Those who pay 50th month special instalment in advance will become eligible to get unit reservation and those who pay all special instalments in advance will become eligible to get sale agreement. Unit reservation for the members who fails to pay 2 instalments in succession will stands cancelled.
(b) Out right payment.
Cost of the 120 sq.yds unit for those who pay lump sum amount in joining month will be Rs. 30,000/-.
( c) Equal monthly instalments : (EMI)
Cost of the 120 sq.yds unit is Rs. 36,000/-, Rs. 6,000/- special instalment to be paid in 1st month, balance can be paid in equal monthly instalments in 50 months i.e., Rs. 600/- per month beginning with first month. Members opting this system are eligible for unit reservation. Unit reservation for the members who fails to pay 2 instalments in succession will stands cancelled.
Clause 10 stipulates:
10. Those who pay monthly instalments and special instalments regularly as per clause 7(a) or 7(c) will be included in the monthly draw. Eery month draw will be conducted on next month’s 2nd working day in presence of attended members in our central office. The winner of draw will be exempted from payment of future instalments. Those who pay unit reservation amount will participate in special & bumper draws with attractive prizes. Winners of bumper and special draws will be given prizes only after completion of their regular and total payment. The members with cl.7(b) option will also participate in monthly, bumper and special draws. In case of their winning a monthly unit draw difference amount will be calculated as per cl. 7(a) and such difference amount (if any) will be returned them without any interest. The members with Cl.7(d) option will also participate in monthly, bumper & special draws. Members can choose to retain the unit, get it registered on his name or he can totally surrender his unit to the company and in return can take exactly double of the amount which he paid in the joining month. Member joining with this option will become eligible in all draws. In case of member winning monthly unit draw, company will calculate the eligibility amount up to that particular month as per scheme counting period, return the balance amount without any interest, however in this case buy back option will be applicable only for the amount which company retains with it. Member has to pay instalments as per his month of joining. In all matters of draws such as mode, eligibility, place and time etc., company is authorised to do any type of alterations and modifications.
However the decision of the company will be final and binding on members in all matters of draws. One membership No. is entitled to participate in a maximum of 52 successive monthly draws. All draw winners have to pay the government taxes as per the law.
In clause-11 there was a stipulation that “An interest of 2% per month should be paid by the member on the dues if any. If instalments are not paid for 3 months in succession management reserves its right to cancel membership without any prior notice. The amount paid till then, will not be returned under any circumstances. After cancellation of membership, any person will totally becomes ineligible for any sort of rights, benefits and facilities under this scheme.
9) Coming to the facts the complainant had paid Rs. 87,400/- and he had to pay balance of Rs. Rs. 92,600/- for 5 plots. It is not in dispute that the very Managing Director of the company was arrested in a murder case. The complainant alleges that nobody was there to receive the amount and the company was in doll drums. After the respondent got bail, he approached for payment of balance of amount, however, he did not agree. The respondent stated in his affidavit “The arrest of Managing Director of opposite party took place in the month of July, 2005. Even prior to registration of criminal case and arrest of Managing Director of the opposite party the complainant has committed default in payment of instalments.” When the complainant has been making payments, the respondent has been taking without any demur. From this it is beyond that when the parties had waived the period of payment and had option, which we have mentioned above, the respondent cannot turn round and say that the complainant had committed default in payment of instalments by due dates. When he has no compunction to receive money paid periodically, in lump sum, he cannot rely the conditions in order to deny the benefit.
10) It is important to note that the respondent did not allege as to when he was released and who in his absence was looking after the affairs of the company. Unhindered his company has been executing the registered sale deeds for those persons who had paid the amounts. There is no proof that any draw was conducted in any of the months. He could not show the members who had benefited from the draws. The complainant having paid the amount and was ready and willing to pay balance there was no reason for the respondent not to honour his promise. If really there was default, he could have collected interest which was stipulated in the terms and conditions. He cannot obligate his duty in receiving the amount and executing the registered sale deeds. The respondent except repeated version could not show that he had planted the trees due to default of the complainant in payment of the amount, he could not execute sale deeds. It may be stated herein that there was no clause of forfeiture. What all he stated was that the amount paid would not be re-paid in case of default. There is no specific clause of forfeiture.
11) The complainant could prove that the respondent unjustifiably repudiated the contract. He did nothing except receiving the amounts as and when it suited him. Despite the fact that he was in jail and no amounts could have been paid to him still he contends that he could forfeit the amount without agreeing to register the plots by taking balance of sale consideration. He himself admits that there was hike in prices of immovable properties in and around Hyderabad, and the complainant had filed the complaint belatedly seeking execution of sale deed. The very same reason would apply to him. He was refusing to execute registered sale deeds as he intends to get the benefit by selling them to third parties. However at this length of time and in view of the fact that it is not known as to what happened to those plots, and evidently no trees are planted, we do not intend the respondent to execute registered sale deeds, instead we feel that ordering refund of the amount with interest would meet the ends of justice.
12) In the result the appeal is allowed in part setting aside the order of the Dist. Forum. Consequently the complaint is allowed in part directing the respondent to refund Rs. 87,400/- within interest @ 9% p.a., from the date of filing of complaint till the date of realization together with costs of Rs. 5,000/-. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 02. 11. 2010.
*pnr
UP LOAD – O.K.