F.A.No.1036/2010 against C.C.No.620/2008 DISTRICT FORUM-II, HYDERABAD.

Between:

1. G.Ramulu S/o.late Narayana (died)

    Rep. by his L.Rs:

2. G.Anil Kumar, S/o.late G.Ramulu

    Aged about 42 years, Indian, Occ:Business.

3. G.Ajith Kumar, S/o.late G.Ramulu

    Aged about 40 years, Indian, Occ: Press

    Reporter.

4. G.Amar Kumar, S/o.late G.Ramulu

    Aged about 35 years, Indian, Occ:Business

    All are R/o.H.No.5-1-87/3/3,

    Siddharthanagar, Sangareddy,

    Medak District.                                                                                               Appellants/                                                                                                                                                                              Complainants

And

Sri Balaji Real Estates,

(Prop. Sri Thirumala Housing Pvt. Ltd.,)

Upstairs of Chermas Show Room,

Malakpet, Hyderabad,

Rep. by its Managing Director,

N.Ashok Kumar.                                                                                                           Respondent/

                                                                                                                                      Opp.party

Counsel for the Appellants: Mr.N.Janaiah

Counsel for the Respondents: Admission Stage.

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

SMT.M.SHREESHA,  MEMBER

.

TUESDAY, THE TWELFTH DAY OF OCTOBER,

TWO THOUSAND TEN

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

Having heard the learned counsel for the appellant and having perused the record, we are of the opinion that the matter can be disposed of at the stage of admission itself.

The unsuccessful complainants are the appellants.

The case of the complainant in brief is that he became a member of the scheme run by the respondent wherein it agreed to allot 200 sq. yds. of plot on payment of Rs.62,200/- at Rs.1,000/- per instalment for 40 months besides special instalments.  Whileso in the draw conducted on 15-6-2001 he was declared winner and allotted plot No.125 with an extent of 300 sq. yds.  Thereafter the complainant on several occasions approached the opposite party for registration of the plot however, it postponed the same.  Hence the complainant got issued a legal notice dt.3-9-2001 for which the opposite party gave reply dt.17-9-2001 stating that the complainant is not entitled to the prized pot since he paid only Rs.9,400/- as against Rs.39,300/- and therefore violated the terms and conditions of the agreement and his allotment was cancelled.  The complainant submitted that he paid another sum of Rs.20,000/- vide receipt No.22490 and thus by 12-7-2001 he paid a cumulative amount of Rs.29,500/- and that at no point of time, the opposite party informed him that he had to pay Rs.32,900/-.  The complainant further submitted that he was always ready and willing to pay Rs.31,000/- towards the excess area of 100 sq. yds. over and above the plot size of 200 sq. yds and since there was no proper response inspite of personal visits, he got issued another notice on 31-3-2008 for which the opposite party replied on 29-4-2009 stating that the allotment was cancelled and the plot was sold to some other person and that the amount paid by the complainant was forfeited and the claim was barred by limitation.   Assailing the said cancellation, he filed the complaint for registration of the plot together with compensation and costs.

The opposite party resisted the matter alleging that the complainant did not pay the balance of Rs.39,300/-, what all he paid was Rs.9,500/-.  He was admittedly a defaulter and violated the terms and conditions and therefore the opposite party cancelled his allotment, terminated his membership about 7 years ago and contended that he was not entitled to any relief.

The complainant in support of his case filed his affidavit evidence and filed Exs.A1 to A14 while the opposite party filed his affidavit evidence but did not file any documents.

The District Forum after considering the pleadings and documents held that the complaint was barred by limitation and consequently dismissed the complaint.

Aggrieved by the said order, the L.Rs. of the complainant who were impleaded filed the appeal contending that the District Forum did not appreciate the facts in the correct perspective.  It ought to have seen that the complainant, G.Ramulu, was wiling to pay the remaining balance and the question of limitation would not arise in view of the decision reported in JULIET V.QUADROS v. MRS. MALTI KUMAR reported in 2005 CPJ 499 (CP) (NCDRC) = 2005(2) CPR 1 (NC) in which the National Commission held that till the date of handing over possession of the plot or till the date of refund of the amount the cause of action continues and the question of limitation would not arise.

Admittedly the complainant, late G.Ramulu, agreed to pay Rs.62,200/- in 40 instalments at Rs.1,000/- each month balance being paid in special instalments.  He joined as a Member on 5-7-2000 and became a winner in the draw that was conducted on 15-6-2001 by which date he was due an amount of Rs.32,900/-.  He neither paid the amount nor informed the opposite party as to why he could not pay the amount.  Evidently for the registered notice dated 31-3-2008 the opposite party gave reply on 29-4-2009 mentioning that in their earlier notice dated 17-9-2001, it had informed that his allotment was cancelled about 7 years ago for non payment of the balance amount.  The very complainant himself filed Ex.A10 letter issued by the opposite party informing about the result of the draw  and directing him to pay the balance, however, no reason whatsoever was given as to why he did not pay the balance instalments.  Evidently he did not pay the total sale consideration.  Suddenly for the first time he gave a notice on 3-9-2001 after having paid Rs.20,000/- on 12-7-2001 for which he received a reply.  The complainant himself committed default in payment of consideration hence the question of directing the respondent to execute sale deed that too 7 years after the agreement would not hold good.  Moreover the balance of sale consideration was not paid even by the date of filing of the complaint.  Admittedly there are latches on the part of the complainant in not paying the remaining balance sale consideration.  The complainant or his L.Rs. cannot ask the opposite party to execute the sale deed.  We do not see how the decision relied upon by the  complainant could be relevant in such circumstances.    He did not seek for possession.  It is for execution of sale deed.  Article 54 of Limitation Act stipulates the period for enforcing stipulated obligation relating  to property.  The period of limitation will be reckoned from the date fixed for the performance or if no such date is fixed when the plaintiff has notice that performance is refused. The complainant had notice about 7 years ago cancelling the contract.  He did not file the complaint within 2 years as contemplated under Section 24 of Consumer Protection Act.  It is hopelessly barred by limitation.   We do not see any merits in this appeal.

Accordingly the appeal is dismissed at the stage of admission.  There shall be no order as to costs.

Sd/-PRESIDENT.

Sd/-MEMBER.

JM                                                                                                     Dt.12-10-2010