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Padma Priya Real Estates and Financiers rep. by its Managing Partner & Others v/s Smt. Korada Ramalakshmi

    F.A.No. 324 of 2012 Against C.C.No. 10 of 2010 District Forum Srikakulam

    Decided On, 30 May 2013

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad

    By, THE HONOURABLE MR. R. LAKSHMINARASIMHA RAO
    By, MEMBER & THE HONOURABLE MR. THOTA ASHOK KUMAR
    By, MEMBER

    For the Appellants: M/s. Nukala Krishna Rao, Advocate. For the Respondent: M/s. Aravala Rama Rao, Advocate.



Judgment Text

Oral Order: (R. Lakshminarasimha Rao, Member)

1. The opposite parties are the appellants. The first appellant is a partnership firm of which the appellants no.2 and 3 are partners and the appellants floated a scheme, 'Tarakanagar scheme' which provides for allotment and registration of plot admeasuring 22 sq. Yards with amenities on payment of `350/- per month for a period of 56 months with option to the member not to pay balance installments in case he becomes winner of the draw conducted by the firm every month. The respondent joined the scheme and paid an amount of `350/- towards first installment on 6.01.1994 and `150/- towards admission fee on 8.01.1994. The appellants issued receipts therefor and entered into agreement with the respondent on 5.05.1994. The respondent paid 56 installments and as the appellants had not developed the site, she requested them to develop the project. She lodged complaint with the police, Etcherla who registered case against the appellants. The appellants executed agreement on 10.03.2008 agreeing to allot plot and register it within two months therefrom.

2. The appellants resisted the claim on the premise that the respondent had not paid the installments as per the terms and conditions of the scheme. The scheme was closed on 25.08.1998. The scheme cannot be materialized in view of dispute between the land owners and the appellant no.1. It is contended that the respondent is not entitled to refund of the amount as she did not claim the amount within the period of limitation. The undertaking got executed by the respondent by filing criminal case against the appellants is not valid and not binding on the appellants. It is contended that the matter involves civil dispute and as such the complaint is not maintainable.

3. The respondent filed her affidavit and the documents, ExA1 to A9. On behalf of the appellants, the appellant no.2 filed his affidavit and on their behalf no documents have been marked.

4. The District Forum allowed the complaint on the premise that the complaint was filed within two years from the date of execution of undertaking by the appellants in favour of the respondent and the appellants were held liable to allot plot and execute sale deed or in the alternate pay an amount of `19,600/- with interest @ 15% p.a. from the date of respective deposit of the amount if the respondent agrees and it further awarded an amount of `10,000/- towards compensation and in case the plot is allotted, the amount awarded as compensation is reduced to Rs.5,000/-. The District Forum awarded costs of Rs.2,000/-.

5. The opposite parties have filed appeal contending that the complaint is barred by law of limitation and the undertaking got executed by the respondent is neither valid nor binding on them and that the document was not proved by examining the attestor. It is contended that the scheme could not be materialized due to disputes between the appellants and the land owners.

6. The points for consideration are:

i) Whether the complaint is barred by law of limitation?

ii) Whether the respondent is entitled to relief of execution of sale deed or refund of the amount?

iii) To what relief?

7. POINT NO.1:

The main thrust of the argument of the learned counsel for the appellant is laid on the limitation aspect of the complaint. The learned counsel has contended that the parties entered into agreement on 5.05.1994 and the scheme was closed on 25.08.1998. The complaint filed on 21.08.2002 is not maintainable as not filed within the period of two years from the date of cause of action. The learned counsel for the respondent supported the finding of the District Forum on the limitation aspect.

8. The learned counsel for the appellant has relied upon the following decisions.

i) MSN Charities, Kakinada vs Pila Rama Rao(died) per L.Rs and others 2009(4) ALT 212.

ii) Kandimalla Raghavaiah and Co. vs National Insurance Company Ltd (2009) 7 SCC 768.

iii) State Bank Of India vs B.S.Agricutural Industries(I).9. MSN Charities (supra) is an authority to distinguish between Section 18 of Limitation Act and Section 25(3) of the Contract Act. It was held that Section 18 of Limitation Act provides for fresh period of limitation basing on acknowledgment which is rendered before expiration of prescribed period of limitation. Section 25(3) of Contract was held to revive by reason of acknowledgment and promise made by promisor, a debt which was rendered void by reason of expiry of period of limitation.

10. Further, it was held 'Difference is that in case of acknowledgement of debt under Section 18 of Limitation Act read with Section 19 of Limitation Act, no further undertaking is necessary except promisor’s acknowledgement of debt. In case of Section 25(3) of Contract Act, however, promise has to plead and prove four components/conditions. These are: i. there is debt payable by promisor. Ii) promisor acknowledges the debt, iii) promisor agreed to make payment under the contract and iv) there is specific promise or undertaking in writing by the promisor t treat such acknowledgment of debt as fresh enforceable contract

11. In Kandimalla Raghavaih(supra) the principle laid is that in case of fire accident the limitation would begin to run for the purpose of filing complaint in respect of settlement or repudiation of claim in respect of fire insurance policy from the date of occurrence of fire accident.

12. The Supreme Court held that:

‘It is, therefore, clear from the aforenoted correspondence between the appellant and the Insurance Company that cause of action in respect of the special insurance policy arose on 22nd / 23rd March, 1988, when fire in the godown took place damaging the tobacco stocks hypothecated with the Bank in whose account the policy had been taken by the appellant. Thus, the limitation for the purpose of Section 24A of the Act began to run from 23rd March, 1988 and therefore, the complaint before the Commission against the Insurance Company for deficiency in service, whether for non issue of claim forms or for not processing the claim under the policy, ought to have been filed within two years thereof. As noticed above, the complaint was in fact filed on or after 24th October, 1997, which was clearly barred by time

13. Law laid in State Bank of India is that limitation cannot be extended by reply of the opposite party and duty is cast on the consumer forum to consider limitation aspect before admitting the complaint. It was held that complaint not filed within the period of limitation and not accompanied by application to condone delay in filing the complaint is liable to be rejected.

14. Their lordships observed

'In a recent case of Gannmani Anasuya and Others v. Parvatini Amarendra Chowdhary and Others, (2007) 10 SCC 296, 7 this Court highlighted with reference to Section 3 of the Limitation Act that it is for the court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties; such a jurisdictional fact need not be even pleaded.

'12. Insofaras the present case is concerned, at the first available opportunity in the written statement itself the Bank raised the plea that the complaint was barred by limitation. However, the objection with regard to limitation went unnoticed by all the three fora, namely, District Forum, State Commission and National Commission. Since the question relating to limitation goes to the root of the matter and may render the order illegal, we would now see whether the complaint was filed within time i.e., within two years of accrual of cause of action.'

15. The ratio laid in the aforementioned decisions is not applicable to the facts of the case on hand. In the present case, the agreement is followed by notice and undertaking each document in its turn reinforcing the readiness of the appellants to refund the amount to the respondent.

16. The District Forum observed that the appellants no.2 and 3 on behalf of the appellant no.1 executed undertaking on 10.03.2008 and the complaint filed on 29.01.2010 is within the period of limitation. The learned counsel for the appellant has contended that the undertaking is not proved by examining the attester and it was executed beyond the period of limitation.

17. The parties entered into agreement on 5.05.1994 and the terms of agreement provide for allotment and registration of plot after the appellants obtained layout. The terms of the agreement would show that irrespective of expiry of scheme period, the allotment and registration of plot was undertaken by the appellants after they obtained approval of layout. The layout was not approved till date. The scheme was not totally materialized in view of disputes between the land owners and the first appellant-firm.

18. The appellant got issued notice dated 27.02.2007 informing the respondent that the appellants have no criminal intention to pay the amount paid towards installments by the respondent and the appellants though are liable to pay the amount they are not intending to pay it to the respondent in view of terms and conditions of the scheme and agreement. A perusal of the terms and conditions of the scheme or the agreement do not prohibit the appellant to return the amount paid by the respondent. The appellants executed undertaking on 10.03.2008 stating that they would allot and register sale deed in favour of the respondent within two months therefrom.

19. The contention of the learned counsel for the appellants that the undertaking was not executed within the period of limitation does not hold water as the appellants issued notice dated 27.02.2007 expressing their intention that they are ready to pay the amount but for the terms and conditions of the scheme as also those of the agreement. It is pertinent to note that the appellants have not denied that the dispute between the land owners and the first appellant has been pending and approval of layout is possible only subject of outcome of dispute. Till the dispute is resolved and layout is approved or rejected by the auth

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orities concerned, limitation for the respondent would not run to file the complaint. The point is answered against the appellants. 20. POINT NO 2: The respondent claimed for registration of plot and compensation of Rs.50,000/-. Admittedly the scheme was not totally materialized and the dispute between the land owner and the appellant has been pending due to which lay out was not approved. The District Forum awarded relief for registration of plot and in the alternative the amount with interest @15% p.a. and compensation to the tune of Rs.10,000/-. In view of endless litigation pending between the appellant no.1 and the land owner and in the light of the fact that the possibility of the appellants obtaining approved layout is not possible, the relief granted for registration of plot is not sustainable. The relief as such, is liable to be set aside. 21. In the result, the appeal is allowed setting aside the relief granted by the District Forum in regard to execution of sale deed. Rest of the reliefs granted by the District Forum is confirmed. There shall be no order as to costs. Time for compliance four weeks.
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