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Smt. N. Thoyaja v/s Sai Chaitanya Real Estates, Rep. by its Managing Partner

    F.A.No. 381 of 2012 against C.C.No. 61 of 2011 District Forum-II, Tirupathi

    Decided On, 10 July 2013

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad

    By, MEMBER

    For the Appellant: M/s. Gopi Rajesh & Associates, Advocates. For the Respondent: Served.

Judgment Text

Smt. M. Shreesha, Incharge President

Aggrieved by the order in C.C.No.61/2011 on the file of District Forum-II, Tirupathi, the complainant preferred this appeal.

The brief facts as set out in the complaint are that the complainant purchased a plot for a sum of Rs.1,37,000/- by paying monthly instalments in 35 months instead of the stipulated 41 months and completed the entire payments by 13-5-2007 and was allotted pass book No.160. An agreement of sale was executed on 11-10-2007 on an understanding that a sale deed will be registered after obtaining final approval of the said lay out. Inspite of repeated requests the opposite party was postponing the registration on one pretext or the other. Thereafter the complainant was informed that the opposite party mortgaged the entire layout with M/s Sriram City Union Finance and obtained loan of Rs.60,00,000/- vide document No.3089 of 06 dated 30-6-2006. The complainant got issued a registered letter on 2-6-2011 and thereafter a legal notice on 25-4-2011 but still there was no response. Hence the complaint seeking directions to the opposite party to execute the registered sale deed pertaining to plot No.323 and compensation of Rs.1,00,000/- and costs.

Opposite party filed their counter stating that they had submitted the plan for approval but in the meanwhile the third parties filed suit in O.S.567/2007 on the file of Principal Senior Civil Judge, Tirupathi and obtained an injunction restraining the opposite party from alienating the property. Another third party filed yet another suit in O.S.No..447/2011 restricting the opposite party from alienating the property and status quo was obtained. Therefore the opposite party informed all the customers including the complainant to agree for refund of the amount or to accept an alternative plot. The complainant also agreed to receive alternate plot but thereafter filed this complaint which is barred by limitation as the agreement of sale was executed on 11-10-2007.

The District Forum based on the evidence adduced i.e. Exs.A1 to A11 and B1 to B5 dismissed the complaint.

Aggrieved by the said order, the complainant preferred this appeal.

The facts not in dispute are that the complainant was issued pass book No.160 evidenced under Ex.A1 and an agreement of sale was executed on 11-10-2007 evidenced under Ex.A2. It is the complainant’s case that she paid an amount of Rs.1,37,000/- evidenced under Ex.A3 which are 35 payment receipts. The complainant submits that though the agreement was executed in October, 2007, the sale deed was not registered inspite of several requests. It is the case of the opposite party that third parties filed OS No.567/2007 and OS. No.447/2011 and there is an injunction not to alienate the property and therefore the sale deeds were not executed. The contention of the opposite party that the complaint is barred by limitation is not sustainable as they themselves have stated that the suit was filed in the year 2007 and thereafter they had offered the customers refund of the amounts paid or to accept alternative plots. Hence it can be safely construed as continuing cause of action. The District Forum observed that as per Ex.A2 agreement, it is stipulated that the plan will be submitted by the opposite party for approval and after necessary sanction only the plots could be identified and sale deeds could be executed and that the opposite party is yet to comply with the obligations undertaken. The Forum dismissed the complaint with an observation that the opposite party will try to expedite the disposal of the two suits and thereafter expedite the necessary sanction orders and intimate the same to the complainant and soon after necessary approval shall execute the sale deed. We are of the considered view that having accepted the entire sale consideration of Rs.1,37,000/- and issued pass book, Ex.A1 and received sale consideration and executed sale agreement way back in October, 2007, the act of the opposite party in not refunding the amount or giving an alternate plot amounts to deficiency in service. The opposite party did not file any documentary evidence with respect to any notice being given to the complainant informing the complainant about the two suits filed against them and also the injunctions ordered against them. As seen from the record, the first injunction was in the year 2007 in OS 567/2007 but since then the opposite party did not choose to inform the complainant about these developments. It was in the year 2011 after the second suit was filed i.e. OS.No.447/2011 and after the complainant had got issued a legal notice on 25-4-2011, that the opposite party came forward with this offer.

This appeal is posted ‘For being Mentioned’ to ascertain the status of the civil suits. The learned counsel for the appellant was present but none appeared for the respondent. The appellant counsel submitted that both the suits have been dismissed and the complainant seeks for registration of the said plot. He submitted that the complainant does not seek refund of the amounts and further submitted that the subject plot is very much available an

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d sought for direction to execute the sale deed. There is no representation from the other side, no documentary evidence filed to state that the suits are still pending. Keeping in view the facts and circumstances of the case, we direct the respondent/Opposite party to execute the registered sale deed for the subject plot in favour of the complainant as they have received the entire sale consideration in the year 2007 itself and also pay compensation of Rs.25,000/- and costs of Rs.5,000/- to the complainant within four weeks from the date of receipt of this order.