Telangana

Mahbubnagar

CC/10/136

Syed Gouse Pasha - Complainant(s)

Versus

M/s Sri Vahini Estates - Opp.Party(s)

JAVID ALI

29 Jul 2011

ORDER

  BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

                                                                                  Friday, the 29^th day of July, 2011 

 

                                                    Present:- Sri P. Sridhara Rao, B.Sc., LL.B., President

                                                                     Sri A. Veerupakshi, B.A., LL.B., Member        

      Smt.D.Nirmala, B.Com., LL.B.,Member

 

C.C.NO. 136  Of   2010

 

Between:-

Syed Gouse Pasha S/o Azeez Pasha, aged 22 years, Occ: Mechanic, R/o H.No.1-2-30/B, Boyapally Gate, Mahabubnagar.  

                                                           … Complainant

 

And

1. M/s Sri Vahini Estates, Represented by its Manager, Devarsetty Srinivas, S/o Venkataiah, aged 38 years, Occ: Business, R/o H.No.8-4-172, Padmavathi Colony, Mahabubnagar.

2. Sri K. Soma Shaker S/o Mallappa, age 45 years, O/c Business,C/o K.Gangadhar, R/o H.No.9-7-72/4, Road No.2, Street No.4, Maruthinagar, Santhoshnagar, Hyderabad.
3. Smt.Sureka W/o Vishwanath, aged 40 years, Occ: Business, R/o H.No.1-4-134/9, Parimalagiri, Mahabubnagar.

4. Challa Saibaba S/o Sheshagiri Rao, age 40 years, Occ: Business, R/o H.No.5-2-64, New Town, Rajendranagar, Mahabubnagar.

5. Devarsetty Srinivas S/o Venkataiah, aged 38 years, Occ: Business  R/o H.No.8-4-172, Padmavathi Colony, Mahabubnagar.

6. Koramoni Krishnaiah S/o Balaiah, aged 45 years, Occ: Business, R/o H.No.3-7, Yenugonda village, Mahabubnagar Mandal and District.

7. E.J.Rabert S/o E.D.John, age 39 years, Occ: Business, R/o H.No.1-1-9/1/6E, New Mothinagar, Mahabubnagar.

                                                                                                                                                               … Opposite Parties

 

 

 This C.C. coming on before us for final hearing on 19-7-2011 in the presence of Sri Javid Ali, Advocate, Mahabubnagar for the complainant and Sri B. Ramnath Goud, Advocate, Mahabubnagar for the OPs.1, 2, 5, 6, Sri G. Goverdhan Reddy, Advocate, Mahabubnagar for the OP-3,Sri C. Rajeev Kumar, Advocate, Mahabubnagar for the OP-4,  Sri N. Madhusudhan Yadav, Advocate, Mahabubnagar for the OP-7 and the matter having stood over for consideration till this day, this Forum made the following:   

 

O R D E R

 

  (Smt.D.Nirmala, Member)

 

1.  This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties to execute and register the sale deed in respect of any of the scheme plot in Sy.No.46 within the limits of Appannapally H/o Yedira village, Mahabubnagar Mandal and District in favour of the complainant and to pay an amount of Rs.20,000/- towards mental agony, financial stress and for  deficiency of service and Rs.5,000/- towards costs of the complaint.   

 

2. The averments of the complaint in brief are that:- The opposite party Nos.1 to 7 floated a housing plots scheme under the name and style Vahini Nagar in the land bearing Sy.No.46 situated in the limits of Appannapally  H/o Yedira village, Mahabubnagar Mandal and District.  As per the housing plots scheme the scheme period is for 50 months.  There will be lucky draw on 10^th of every month of the scheme at the office of the opposite parties and the lucky winner need not pay further monthly installments.  The area of the plot is 150 Sq. Yards and the total plot cost is Rs.35,000/- and every  member has to pay Rs.350/- per month for a period of 50 months, which comes to Rs.17,500/-, the remaining plot cost of Rs.17,500/- has to be paid on two occasions, one @ Rs.10,000/- for the reservation of plot and Rs.7,500/- at the time of registration of the plot. The complainant on believing the words of the opposite parties became the member of the scheme and was allotted membership No.156 by the opposite parties and he has regularly paid Rs.350/- for 50 monthly installments of the scheme which comes to Rs.17,500/-. On 9-8-2005 the complainant has paid Rs.17,500/- towards remaining balance amount (reservation of the plot Rs.10,000/- + remaining balance amount of Rs.7,500/-).  After completion of the scheme period the opposite parties have closed the office and defunct the business transactions. Thereafter, the complainant approached the opposite parties number of times and demanded to execute sale deed and give the possession of the plot in Sy.No.46.  But the opposite parties were postponing the same from time to time and asked the complainant to wait for some more time.  The complainant learnt that as there is a boom in the scheme plots the opposite parties are intending to sell the plots to third parties who are not members of the scheme at higher price.  The acts of the opposite parties amount to unfair trade practice and deficiency of service.    Hence the present complaint is filed for the aforesaid reliefs.       

 

3. The opposite party No.1 filed counter denying the averments of the complaint and stated that it is incorrect to state that the opposite parties have started housing plots scheme in the name and style Vahini Nagar in Sy.No.46 within the limits of Appannapally village according to the terms and conditions of the scheme mentioned in the complaint.   It is incorrect to state that the opposite parties invited the complainant to join in the above scheme as a member and he was allotted membership No.156.  The OP-1 further stated that the documents which are filed by the complainant are bogus and false.  The receipt filed by the complainant shows that receipt is valid for the amount printed on the receipt.  But the receipt dated 9-8-2005 filed by the complainant shows that it is manipulated and created by manipulating the receipt and fabricated showing that the receipt is issued for an amount of Rs.17,500/-.  It is incorrect to state that the complainant approached many times the opposite parties for execution of registered sale deed and the opposite parties asked the complainant to wait for some more time. It is incorrect that due to the acts of the opposite party the complainant was put to mental agony.  Therefore the complaint is liable to be dismissed against this opposite party with costs.

 

4.  The opposite party Nos.2, 5 and 6 filed a memo adopting the counter filed by the opposite party No.1. 

  

5.  The opposite party No.3 filed counter denying the averments of the complaint and stated that she is not the partner of OP-1 firm and floated the housing plots scheme under the name and style Vahini Nagar in proposed site. As this opposite party is not partner of the other opposite parties firm, therefore she is no way concerned with the OP-1 and the other opposite parties and the scheme mentioned in the complaint.  As such approaching of the complainant and demanding her for execution of sale deed and allotment of plot alleged against this opposite party is incorrect. There is no deficiency of service and unfair trade practice on the part of this opposite party. Hence the complaint against OP-3 is liable to be dismissed with costs.   

 

6. The opposite party No.4 filed counter denying the averments of the complaint and stated that he along with OPs.2, 3 and 5 to 7 are partners of OP-1 firm and have started a housing plots scheme under the name and style of Vahini Nagar in Sy.No.45 within the limits of Appannapally, H/o Yedira village, Mahabubnagar Mandal and District.  The terms and conditions mentioned in the complaint are false and figment of imagination.  It is also incorrect to state that this opposite party along with other opposite parties have induced the complainant to become the member of the housing plots scheme vide membership No.156.  It is incorrect that the complainant had paid entire cost of the plot.  The receipts are not genuine and are created by the complainant with collusion with OP-7.  It is also incorrect that the complainant approached many times for execution of a registered sale deed in his favour and this opposite party went on postponing the matter. He further stated that he is no way responsible for alleged deficiency of service.  Hence the complaint is liable to be dismissed with costs.     

 

7. The opposite party No.7 filed his counter denying the averments of the complaint and stated that it is true that OP-1 is firm and OPs.2 to 7 are the partners of the firm and the scheme started in November, 1999.  This opposite party has no knowledge about the complainant has joined as a member and he was allotted membership No.156. It is incorrect that the complainant had paid regularly entire installments.  The receipts which are filed by the complainant are not genuine and created for filing the present complaint. He further stated that the opposite parties closed their office after completion of the scheme is not correct.  It is incorrect to say that the complainant roamed around the opposite parties and the opposite parties postponed the same from time to time. Therefore the present complaint is liable to be dismissed.   

 

8. The complainant in support of his claim filed his proof affidavit and got marked Exs.A-1 to A-61.  On the other hand, OPs.4 and 7 filed their chief affidavits separately and OP-5 on his behalf and on behalf of OPs.1, 2 and 6 filed his proof affidavit and got no documents marked on behalf of any of the opposite parties. 

 

9.  The points for determination now are: 

 

    (i)  Whether is there any deficiency on the part of the OPs.1 to 7 in 

          rendering service to the complainant as alleged?

   (ii)  Whether the complainant is entitled for the relief sought for by him 

          and if so who are liable to comply the relief sought for by the 

          complainant?  

   (iii)  To what effect? 

 

10. Point Nos.1 and 2:-  It is the case of the complainant that opposite party Nos.2 to 7 are the partners of OP-1 firm and the complainant had regularly paid Rs.350/- for 50 monthly installments of the scheme, on 9-8-2005 the complainant had paid Rs.17,500/- towards remaining balance amount (reservation for plot Rs.10,000/- + remaining balance amount Rs.7,500/-).  After completion of the scheme period the complainant approached the opposite parties number of times and demanded the opposite parties to execute sale deed in respect of scheme plot.  But the opposite parties have postponed the same from time to time and asked the complainant to wait for some more time.  The acts of the opposite parties amount to unfair trade practice and deficiency of service. 

 

11. So, first of all the complainant has to establish that OPs.1 to 7 are the partners of OP-1 firm.  To establish the said fact that OPs.1 to 7 are the partners of OP-1 firm, the complainant relied upon Ex.A-52 Register of Firms and Ex.A-53 Partnership Deed.  A perusal of the recitals of Exs.A-52 Register of Firms (maintain U/s 59 of Indian Partnership Act) and Ex.A-53 Partnership Deed of Vahini Estates clearly goes to show that OPs.1, 2 and 4 to 7 are only the partners of OP-1 firm.  Except Exs.A-52 and A-53 the complainant did not produce any other documentary proof to show that  OP-3 is the partner of OP-1 firm. The OP-3 also filed her counter contending that she is not the partner of OP-1 firm and there is no privity of contract between her and the complainant and she is no way concerned with the affairs of business of OP-1 firm. Therefore, in the absence of any proof produced by the complainant, we find that the complainant failed to establish that OP-3 is the partner of OP-1 firm. Under the said circumstances and for the reasons stated above, we hold that OP-3 is no way concerned with the OP-1 firm and not liable to comply the relief sought for by the complainant.  Thus the complaint to the extent of OP-3 is liable to be dismissed.

 

12. The next question that has to be seen now is as to how far OPs.1, 2 and 4 to 7 are liable to comply the alleged relief sought for by the complainant?

 

13.  As stated in the preceding paragraphs of the order, it is the case of the complainant that OPs.1, 2 and 4 to 7 are also the partners of OP-1 firm, that after payment of entire plot cost under original receipts Exs.A-1 to A-51 issued by the opposite parties, the opposite parties failed to execute the registered sale deed in his favour.  The OPs.1, 2 and 4 to 7, except taking a plea that they are no way responsible, did not produce any proof in that regard as to how they are not responsible.  Further Exs.A-52 and A-53 Register of Firms and Partnership Deed respectively clearly establishes the case of the complainant that OPs.1, 2 and 4 to 7 are the partners of OP-1 firm. It is the specific case of the complainant that the opposite parties failed to execute the registered sale deed inspite of making several requests in his favour after receiving the entire plot cost under Exs.A-1 to A-51 original receipts issued by the opposite parties.  On this aspect, the OPs.1, 2 and 4 to 7 contended that the receipts Exs.A-1 to A-51 are fabricated.  To disprove the said contention the OPs.1, 2 and 4 to 7 have not filed any documentary evidence.  In the absence of any such proof, we find that the plea taken by the opposite parties is not tenable.  All the said circumstances cumulatively prove the fact that the complainant paid the entire plot cost and when he requested the opposite parties to execute the sale deed, the opposite parties failed to comply the demand made by the complainant.  Even as per the condition No.8 of the brochure Ex.A-54, the amount paid by the members will not be refunded to them under any circumstances and they are bound to purchase the plot.  Therefore, the responsibility lies on the firm being represented by the present opposite parties in executing the sale deed in favour of the complainant,.  The act on the part of OPs.1, 2 and 4 to 7 in not executing the sale deed in favour of the complainant after receiving the entire plot cost paid by the complainant and except taking a vague plea that they are in no way concerned with the business transactions of the firm, that too without any proof amounts to deficiency on their part in rendering service to the complainant, as such the complainant is entitled for the said relief besides some reasonable compensation and costs.  Hence we hold that the complainant had clearly established his claim with regard to the deficiency of service to the extent of the present opposite party Nos.1, 2 and 4 to 7.  Thus for the reasons stated above, we hold that OPs.1, 2 and 4 to 7  are jointly and severally liable to execute the registered sale deed in favour of the complainant in respect of Sy.No.46 situated at Appannapally                 H/o Yedira village of Mahabubnagar Mandal and District.  Both the points are answered accordingly in favour of the complainant and against OPs.1, 2 and 4 to 7.  

 

14. Point No.3:- In the result, the complaint is allowed in part directing the OPs.1, 2 and 4 to 7 jointly and severally to execute the registered sale deed in favour of the complainant in respect of Sy.No.46 situated at Appannapally H/o Yedira village of Mahabubnagar Mandal and District and also to pay to the complainant a sum of Rs.5,000/- towards compensation for the mental agony suffered by him and Rs.500/- towards costs of the complaint within one month from the date of the present order.  The complaint to the extent of OP-3 is dismissed without costs.

 

        Typed to dictation, corrected and pronounced by us in the open Forum on this the 29^th day of July, 2011.    

 

                                                            I agree                               I agree   

 

 MEMBER                                MEMBER                           PRESIDENT                      

   Appendix of evidence

      List of Witness examined

 

On behalf of Complainant:                          On behalf of Opposite Parties:   

- Nil -                                                                   - Nil -

           

List of documents marked:-

On behalf of Complainant:-    

Ex.A-1: Original Receipt, dt.8.9.1999.

Ex.A-2: Original Receipt, dt.5.11.1999.

Ex.A-3: Original Receipt, dt.7.12.1999.

Ex.A-4: Original Receipt, dt.5.1.2000.

Ex.A-5: Original Receipt, dt.7.2.2000.

Ex.A-6: Original Receipt, dt.4.3.2000.

Ex.A-7: Original Receipt, dt.6.4.2000.

Ex.A-8: Original Receipt, dt.5.5.2000.

Ex.A-9: Original Receipt, dt.5.6.2000.

Ex.A-10: Original Receipt, dt.5.7.2000.

Ex.A-11: Original Receipt, dt.7.8.2000.

Ex.A-12: Original Receipt, dt.7.9.2000.

Ex.A-13: Original Receipt, dt.9.10.2000.

Ex.A-14: Original Receipt, dt.7.11.2000.

Ex.A-15: Original Receipt, dt.6.12.2000.

Ex.A-16: Original Receipt, dt.6.1.2001.

Ex.A-17: Original Receipt, dt.6.2.2001.

Ex.A-18: Original Receipt, dt.5.3.2001.

Ex.A-19: Original Receipt, dt.4.4.2001.

Ex.A-20: Original Receipt, dt.12.5.2001.

Ex.A-21: Original Receipt, dt.19.6.2001.

Ex.A-22: Original Receipt, dt.5.7.2001.

Ex.A-23: Original Receipt, dt.10.8.2001.

Ex.A-24: Original Receipt, dt.6.9.2001.

Ex.A-25: Original Receipt, dt.13.10.2001.

Ex.A-26: Original Receipt, dt.6.11.2001.

Ex.A-27: Original Receipt, dt.5.12.2001.

Ex.A-28: Original Receipt, dt.4.2.2002.

Ex.A-29: Original Receipt, dt.26.2.2002.

Ex.A-30: Original Receipt, dt.9.3.2002.

Ex.A-31: Original Receipt, dt.8.4.2002.

Ex.A-32: Original Receipt, dt.4.5.2002.

Ex.A-33: Original Receipt, dt.21.6.2002.

Ex.A-34: Original Receipt, dt.19.7.2002.

Ex.A-35: Original Receipt, dt.13.9.2002.

Ex.A-36: Original Receipt, dt.13.9.2002.

Ex.A-37: Original Receipt, dt.17.10.2002.

Ex.A-38: Original Receipt, dt.24.11.2002.

Ex.A-39: Original Receipt, dt.4.12.2002.

Ex.A-40: Original Receipt, dt.11.1.2003.

Ex.A-41: Original Receipt, dt.9.4.2003.

Ex.A-42: Original Receipt, dt.9.4.2003.

Ex.A-43: Original Receipt, dt.5.5.2003.

Ex.A-44: Original Receipt, dt.2.6.2003.

Ex.A-45: Original Receipt, dt.5.7.2003.

Ex.A-46: Original Receipt, dt.3.8.2003.

Ex.A-47: Original Receipt, dt.8.10.2003.

Ex.A-48: Original Receipt, dt.8.10.2003.

Ex.A-49: Original Receipt, dt.11.2.2003.

Ex.A-50: Original Receipt, dt.9.8.2005.

Ex.A-51: Copy of Receipt, dt.9.8.2005.

Ex.A-52: Photostat copy of Register of Firms, dt.7.12.1999.

Ex.A-53: Photostat copy of Partnership Deed, dt.5.8.1999.

Ex.A-54: Photostat copy of Brochure.

Ex.A-55: Photostat copy of Layout.

Ex.A-56: Copy of E.C., dt.24.8.2010.

Ex.A-57: Photostat copy of Sale Deed, dt.21.8.2000.

Ex.A-58: Photostat copy of Sale Deed, dt.17.10.2001.

Ex.A-59: Photostat copy of Sale Deed, dt.13.6.2002.

Ex.A-60: Photostat copy of Sale Deed, dt.9.5.2002.

Ex.A-61: Copy of E.C., dt.28.1.2011.

On behalf of OPs.:                  

        - Nil -

  

                                                               

                                                                                                PRESIDENT                                                                                                                                                                                              

 

Copy to:-

1. Sri Javid Ali, Advocate, Mahabubnagar for the complainant.

2. Sri B. Ramnath Goud, Advocate, Mahabubnagar for the OPs.1, 2, 5, 6.               

3. Sri G. Goverdhan Reddy, Advocate, Mahabubnagar for the OP-3.                  

4. Sri C. Rajeev Kumar, Advocate, Mahabubnagar for the OP-4.                            

5. Sri N. Madhusudhan Yadav, Advocate, Mahabubnagar for the OP-7.