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Eshwarama & Others v/s M/s. Janaharsha Estates N Constructions Private Limited Represented by its Chairman & Managing Director, Hyderabad

    F.A. No. 197 of 2014 Against CC No. 607 of 2012

    Decided On, 13 March 2018

    At, Telangana State Consumer Disputes Redressal Commission Hyderabad

    By, THE HONOURABLE MR. JUSTICE B.N. RAO NALLA
    By, PRESIDENT & THE HONOURABLE MR. PATIL VITHAL RAO
    By, JUDICIAL MEMBER

    For the Appellants: T. Raju, Advocate. For the Respondent: M/s. N.S.V. Nageswara Rao, Advocate.



Judgment Text

Oral Order: (B.N. Rao Nalla, President)

1) This is an appeal filed under Section 15 of the Consumer Protection Act by the complainants praying this Commission to set aside the impugned order dated 24/10/2013 made in CC 607 of 2012 on the file of the DISTRICT FORUM I, Hyderabad.

2) For the sake of convenience, the parties are described as arrayed in the complaint before the District Forum.

3). The case of the complainants, in brief, is that first complainant’s husband intended to purchase 10 plots in opposite party venture and paid a sum of Rs.1,60,000/- on 06.05.2005 and thereafter her husband together paid a total sum of Rs.3,91,000/- to the opposite parties. On 21.09.2008, her husband died and on verifying the records she found pass books and approached the opposite party and they asked the complainants to pay Rs.30,000/- towards developmental charges. After payment of the same, the opposite party assured them that they would register the plots. In spite of several representations and requests, the opposite party failed to register the plots, despite legal notice dated 12.05.2012. Hence the complaint to direct the opposite party to allot the land admeasuring 1200 sq. yards i.e, 10 plots admeasuring 120 sq. yards to register and hand over the plots in Dream City II, Garden Unit at Ibrahimpatnam, Ranga Reddy District to the complainants by taking the arrears, if any, to pay Rs.20,000/- towards compensation and costs.

4). Opposite party opposed the complaint by way of written version contending that the complaint is barred by limitation, while admitting that the husband of the first complainant, B. Satyanarayana, has booked four units each 120 sq. yards in Paradise Section ( development sector) by paying Rs.100/- towards admission fee, Rs.15,900/- towards first month installment, plot allotment amount and road cost part amount on 07.05.2005 in his name and in the name of his two sons. Her husband paid @ Rs.39,100/- in each membership, thus, he paid Rs.1,56,400/- against Rs.2,48,640/- excluding interest on dues of Rs.49,776/- ( till June, 2009) and development cost difference amount, as per the agreement, by way of instalments, and thereafter, never paid any installments. In fact, for total 480 sq. yards, the husband of the first complainant has paid Rs.1,56,400/- out of Rs.3,46,416/- leaving balance for an amount of Rs.1,90,016/ by the end of June, 2009. As far as the complainant Nos. 2 to 4 are concerned, they have to pay an amount of Rs.5,19,624/- out of which, they have paid an amount of Rs.2,34,600/- and hence the balance due to be paid is Rs.2,85,024/- as on June, 2009. Therefore, complainant’s Unit reservation and memberships got cancelled automatically as per Cl. No. 7 ( C ) and 11 of the terms and conditions of the membership application and contract. As per the terms and conditions of the application, complainant’s husband was supposed to pay the instalments by 20th of every month as per clause no. 9. Hence there is breach of contract. Neither the husband of the complainant nor the complainants did pay the total cost and hence they cannot allot and register plots to the complainants and hence the complaint is barred by time and hence prayed to dismiss the complaint.

5). During the course of enquiry before the District Forum, in order to prove their case, the complainants filed their evidence affidavit and got marked Ex.A1 to A-15. The opposite party filed evidence affidavit and got marked Ex. B1 to B13. Heard.

6) The District Forum, after considering the material available on record, dismissed the complaint.

7) Aggrieved by the said order, the complainants preferred this appeal before this Commission.

8). Both sides have advanced their arguments reiterating the contents in the appeal grounds, rebuttal thereof and heard them.

9) The points that arise for consideration are,

(i) Whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner?

(ii) To what relief ?

10). Point No.1 :

The contention of the appellants/complainants is that the husband of the 1st appellant/1st complainant purchased 10 plots from the opposite party and paid a total sum of Rs.3,91,000/-towards each plot and paid Rs.30,000/- towards developmental charges. Thereafter till 2012 there was no correspondence between them. On the other hand, the respondent/opposite party contended that for 480 sq. yards, the husband of the first complainant has paid Rs.1,56,400/- out of Rs.3,46,416/- leaving balance for an amount of Rs.1,90,016/ by the end of June, 2009. As far as the complainant Nos. 2 to 4 are concerned , they have to pay an amount of Rs.5,19,624/- out of which, they have paid an amount of Rs.2,34,600/- and hence the balance due to be paid is Rs.2,85,024/- as on June, 2009.

11). Counsel for the respondent/opposite party argued that appellants/complainants Unit reservation and memberships got cancelled automatically as per Cl.no. 7 ( a ) and 11 of terms and conditions of the membership application and contract and as per the said clause if instalments are not paid for 3 months in succession management reserves its right to cancel membership without prior notice. Unit reservation for the members who fails to pay 2 instalments in succession will stand cancelled. There is no evidence on record to show that the appellants/complainants have paid the entire amount due to be paid. Further, as per the C.P.Act, the complaint has to be filed within two years from the date of cause of action. There was no evidence on record to show that there was any correspondence between the parties except the legal notice Ex.A5 dated 12.05.2012 after the death of the husband of the first appellant/1st complainant to prove that there was continuous cause of action and further after a long gap of more than two years issuance of legal notice does not constitute any continuous cause of action. Further, as contended by the District Forum the appellants/complainants did not file any delay condone petition to condone the delay with reasonable grounds. In view of the above facts, there is no need to go into merits of the case at this stage. The arguments of the counsel for the appellants that the District Forum ought to have seen that the respondent/opposite party had never issued any notice or letter canceling the allotment or forfeiting the amount of Rs.3,91,000/- paid by the appellants/ complainants and hence the limitation does not arise, do not stand in view of

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the clause no. 7 (a) and 11. In those circumstances, we have no option except to accept the version of the respondent/opposite party that the complaint is barred by limitation. 12). After considering the foregoing facts and circumstances and also having regard to the contentions raised on both sides, this Commission is of the view that there is no infirmity or irregularity in the impugned order. There are no merits in the appeal and hence it is liable to be dismissed. 13). Point No. 2 : In the result, the appeal is dismissed confirming the impugned order dated 24.10.2013 in CC 607 of 2012 passed by the District Forum I, Hyderabad. There shall be no order as to costs. Time for compliance four weeks.
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