2. A. Madan Mohan Krishna,

    Chairman & M.D.,

    Santhi Housing & Estates (P) Limited,
    R/o Happy club, Atmakur village,

    Mangalagiri bye-pass road,

    Mangalagiri Mandal,

    Guntur district.                                            …opposite parties

        This Complaint coming up before us for hearing on 18-04-11 in the presence of Sri D. Srinivasa Rao, advocate for complainant and of Sri M.V.S. Reddy, advocate for opposite parties, upon perusing the material on record and after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao, President:-

        The complainant filed this complaint U/S 12 of Consumer Protection Act, 1986 seeking return of Rs.34,000/- paid to the opposite parties towards allotment of plot together with interest @24% pa., and Rs.5,000/- towards mental agony and Rs.5,000/- towards damages and Rs.500/- towards miscellaneous expenditure.

2.    In brief the averments of the complaint are these:

        The opposite parties launched a scheme under the name and style of M/s Santhi Garden Units Scheme in which the complainant was a member.  On 15-03-97 the complainant joined as a member and paid Rs.10,500/- to the 2^nd opposite party who in turn issued a letter of allotment of priority No.21.   The opposite parties issued a pass book No.347.   In all the complainant paid Rs.34,000/- to the opposite parties by 28-09-2000.   The opposite parties have been postponing the matter on the pretext of approval of lay out for many repeated requests of the complainant.    The complainant gave notices to the opposite parties on 09-09-2009, 28-10-09 and 18-11-09.   Efforts made by the complainant to settle the matter amicably did not fructify.

3.      The contention of the opposite parties in brief is hereunder:

        The complaint is barred by limitation and this Forum has no jurisdiction.   The remedy of the complainant is in Civil Court.  The complainant paid only Rs.34,000/- irregularly instead of Rs.36,000/-.  After receiving the notice got issued by the complainant the opposite parties gave a suitable reply.   The opposite parties on 23-11-03 published in leading news paper requesting its members to obtain necessary registration and issued a personal notice through certificate of posting.  Inspite of that the complainant did not turn up for registration. The opposite parties did not commit any deficiency of service.  Rest of the allegations contra mentioned in the petition are all false.  

4.   Exs.A-1 to A-11 on behalf of the complainant and Exs.B-1 and B-2 on behalf of the opposite parties were marked.

5.     Now the points that arose for consideration in this complaint are :

1. Whether the complainant is a consumer and if so whether this Forum has no jurisdiction?
2. Whether the complaint is barred by limitation?
3. Whether the complainant is entitled to return of amount as claimed together with interest?
4. Whether the complainant is entitled to compensation and if so to what amount?
5. To what relief?

6.       Admitted facts in this case are these:

i)  The complainant is a member of the opposite parties in the          housing scheme styled as Santhi Garden Units Scheme.

1. The complainant paid Rs.34,000/- towards the scheme (Exs.A-1 and A-3 receipts).
2. The opposite parties issued priority letter on 15-03-97 in favour of the complainant (Ex.A2).
3. The complainant issued notices to the opposite parties under registered post (Exs.A-4 to A-10).

7.   POINTS 1&2:-    Since the opposite parties collected membership fee of Rs.2,500/- from him, the complainant comes under the purview of consumer and hence this Forum has jurisdiction.

8.    Ex.A-1 is the pass book issued by the opposite parties in favour of the complainant.  Terms and condition No.2 of  Ex.A-1 reads as follows:

                “Each unit costs Rs.36,000/- which scheduled to pay in 45 monthly instalments of Rs.500/- per month.   Enrollment fee Rs.2,500/- and additional payment of Rs.1,000/- on 5^th, 10^th, 15^th, 20^th, 25^th, 30^th, 35^th, 40^th, 45^th months and Rs.2,000/- at the time of registration.   Total members in the scheme are 2700.”

9.     In M/s Kerala Agro Machinery Corporation Limited vs. Bijay Kumar Roy and others (AIR 2002 SC 210) it was held

                “We find that the question of limitation has not been considered seriously at any stage.  There is no dispute that the claim petition was barred by limitation. The National Commission has only observed that the delay was due to the assurances given by the dealer to get the defects rectified, but surprisingly no letter has been particularly indicated in the order much-less within limitation, by which liability may have been acknowledged by the appellant.   The Commission further observed that “at this stage”, there could not be any question of interference in the order of the State Commission on the point of limitation.   There seems to be no justification for negating the plea of limitation with such cursory and passing observations.   The question of stage of the proceeding has no relevance so far question of limitation is concerned.   The claim has been filed beyond the period of limitation say more than four years after defects were pointed out”.

10.   Ex.B-1 revealed that VGTM, Urban Development Authority, released provisional lay out on 21-06-01 in respect of the land located in survey Nos.391/3A, 392/1, 2A, 2B, 393/1A, B &/2 located in Bethapudi, Navuluru, and Mangalagiri villages.   Ex.B-2 revealed that VGTM, Urban Development Authority approved final lay out of land located in the S.Nos.360(P) and 361(P), 362(P) of Bethapudi village.  After approval of lay out only the opposite parties can execute a registered sale deed in favour of the complainant who has to pay Rs.2,000/- at the time of registration.  

11.   It is the contention of the opposite parties that they gave suitable reply to the complainant and made a paper publication on               23-11-03 requesting its members to obtain necessary registration besides a personal notice through certificate of posting.   The opposite parties neither filed copy of reply notice nor paper publication dated 23-11-03 nor personal notice said to have been sent through certificate of posting for the reasons best known to them.   Those documents are necessary to consider the aspect of limitation.   In the absence of those documents it can be inferred that the opposite parties held the amount contributed by the complainant as a trustee.  The above decision relied on by the opposite parties is not applicable to the facts of the case.  Under those circumstances, we are of the view that the complaint is in time.   In view of the afore mentioned discussions this point is answered in favour of the complainant.

12.  POINT No.3:-   The opposite parties did not express their willingness to execute registered sale deed in favour of the complainant.  The complainant himself sought for refund of Rs.34,000/- paid by him to the complainant.   It was already observed that the opposite parties held that amount as a trustee.  No party can be permitted to enrich himself at the expense of others.  Under those circumstances, ordering of refund of amount together with interest will meet ends of justice.  Since it is a commercial transaction granting interest @12% p.a,. will meet the ends of justice.   For the discussion made supra, this point is answered in favour of the complainant.  

13.    POINT No.4:-    The complainant also in writing did not ask for registration or refund of amount from 28-09-2000 and as such he is also guilty of latches.  Under those circumstances, awarding compensation for mental agony is not warranted in our considered view.   Ordering a sum of RS.5,000/- as damages in our considered opinion will meet ends of justice.  Hence, this point is answered accordingly in favour of the complainant.

14.   POINT No.5:-   In view of the above findings, in the result, the complaint is partly allowed as indicated below:

1. The opposite parties are directed to pay Rs.34,000/- (Rupees thirty four thousand only) together with interest @12% p., from 01-10-2000 till realization.
2. The opposite parties are directed to pay a sum of Rs.5,000/- (Rupees five thousand only) as damages and a sum of Rs.1,000/- (Rupees one thousand only) towards costs.
3. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of the copy of the order.

Typed to dictation by junior stenographer, corrected by me and pronounced in the open Forum, dated this the 2nd day of May, 2011. 

MEMBER                                             MEMBER                                        PRESIDENT

APPENDIX OF EVIDENCE

  DOCUMENTS MARKED

For Complainant:

For opposite party:        

                                                                                           PRESIDENT