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Sri Dattasai Real Estates Rep. By Its Managing Partner J. Ravindranath v/s N. Visweswara Rao

    F.A. No. 795 of 1999 against C.D. No. 1446 of 1998

    Decided On, 10 December 1999

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad

    By, MEMBER

    For for Appellant: A. Anasuya, K. Satyanarayana, M.L. Prasad, Advocates. For for Respondent: R. Raghunandan Rao, S. Nagesh Reddy, Advocates.

Judgment Text

S. Parvatha Rao, President:

1. We do not find any ground for interfering with the order of the Hyderabad District Forum-I in C.D. No. 1446/1998 dated 23.4.1999 questioned in this appeal by the opposite party in that C.D. (the appellant in the appeal) insofar as it directed it to return Rs. 6,000/- to the complainant, who is the respondent before us. It is not disputed by the Counsel for the appellant that Rs. 6,000/- was paid by the complainant to the appellant towards a scheme started by the appellant in March, 1993. Under that scheme the appellant offered to those who joined as members of the scheme plots of 200 square yards each in its Sairam Nagar layout near Abdullapur in Ranga Reddy district at the rate of Rs. 23,000/- per plot. According to that scheme the said amount was payable partly in instalments of Rs. 500/- per month for 36 months, and partly in additional instalments of Rs. 1,000/- every 5 months; and the balance remaining was to be paid at the time of registration of the plot. The appellant does not dispute that the complainant joined as a member for the purchase of two such plots and that he was allotted plot Nos. 464 and 466 (Ex. A-1 pass book) and that Rs. 6,000/- was received from him - Rs. 3,000/- on 17.6.1993 and a further sum of Rs. 3,000/- on 17.7.1993. According to the complainant, subsequently the appellant refused to receive the monthly instalments stating that rate for each plot was increased. The appellant addressed letter dated 9.10.1994 requiring the complainant to pay Rs. 19,000/- towards the balance instalment amounts as on that date (Rs. 25,000/- minus Rs. 6,000/-) and also Rs. 1,000/- for the next month. According to the complainant he approached the appellant on 30.10.1994 for payment of the entire balance sale consideration of Rs. 40,000/- but the appellant refused to receive the same and demanded excess amount and threatened to cancel his membership and forfeit the amount already paid by him. Thereafter the complainant got issued a legal notice dated 10.10.1997 stating that he was ready to pay the balance sale consideration as originally agreed and that the appellant should receive the same and register the plots in his name within 15 days from the date of receipt of the notice (Ex. A-2). The appellant received the said notice on 5.11.1997 but did not respond and did not give any reply. Under those circumstances the complainant approached the Hyderabad District Forum for directions to the appellant to execute and register the sale deeds for the two plots after receiving Rs. 40,000/- or in the alternative to refund Rs. 6,000/- with interest at 36% per annum and compensation of Rs. 10,000/- and costs.

2. The appellant received notice in the C.D. but did not appear before the District Forum. On the basis of the material filed by the complainant before the District Forum the C.D. was disposed of directing the appellant to return Rs. 6,000/- together with interest at 18% per annum from 20.7.1993 till the date of payment and also Rs. 500/- towards costs.

3. The learned Counsel for the appellant contends that the address given by the complainant in the complaint, i.e. 'Sri Datta Sai Real Estate, 12-12-157/A, Seethafalmandi, Secunderabad reptd. by its Managing Partner, J. Ravindranath' was not correct. He states that the correct address was given in the pass book issued to the complainant, i.e. 'Sri Dattasai Real Estates, A-37, Huda Complex, Behind R.R. District Court, Saroornagar, Hyderabad - 500 036". In fact in the cause title of the appeal the appellant had taken the opportunity of giving this address instead of its address shown in the cause title of C.D. No. 1446/1998 before the District Forum. But the learned Counsel accepts that the address given in C.D. No. 1446/1998 before the District Forum is of the residence of the Managing Partner, Mr. J. Ravindranath, and that in fact the firm was shown as represented by its Managing Partner, Mr. J. Ravindranath. He also accepts that notice in the C.D. was in fact received in his residence. Under the circumstances he could have appeared before the District Forum and stated the correct facts about the address of his firm, but he did not choose to appear before the District Forum. Therefore, we are not inclined to allow the appellant to raise objection of want of territorial jurisdiction before us now. No prejudice also is made out.

4. We find that the material facts are not in dispute. The receipt of the sum of Rs. 6,000/- by the appellant from the complainant for two plots is admitted. The record of the District Forum is before us. The letter of the appellant dated 9.10.1994 referred to in the complaint is also available in the record of the District Forum. In that the complainant had been informed that the rate of two plots was increased to Rs. 50,000/- and he was asked to pay the amount due from him by that date and the instalment amount of Rs. 1,000/- for the next month. He was also informed that he would have to pay Rs. 20,000/- and he was requested to pay the amount at the earliest. This shows that the complainant’s membership was not terminated by the appellant.

5. The learned Counsel for the appellant strenuously sought to rely upon Condition No. 8 of the terms and conditions in the pass book. Condition No. 8 is as follows :

'8. The registration charges shall be borne by the members, defaulters continuously for 3 months will be removed from the scheme.'

This does not provide for any automatic termination of the membership of the member defaulting continuously for three months. It only stated that they are liable to be removed. The appellant will have to exercise that option and remove a defaulting member and inform him of it. In the present case, even though the complainant got issued legal notice on 10.10.1997, the appellant did not give any reply and the learned Counsel for the appellant is unable to state before us whether the membership of the complainant was removed and that he was informed of the same. The learned Counsel next relies on Condition No. 9. Condition No. 9 is as follows :

'9. Amount once paid shall not be refunded under any circumstances for the defaulters.'

We find that this clause is unconscionable and amounts to unfair trade practice. The appellant could utmost stipulate a penalty for breach of contract. He cannot forfeit the entire amount paid by the complainant irrespective of any damage suffereed by him. The appellant had not placed any material to establish that it suffered any loss. We have considered this question relating to forfeiture for breach in Vice-Chairman, Visakhapatnam Urban Development Authority v. Gopa Kumar Bhargava Kaimal, 1999 (1) ALD (CONSUMER) 52.

6. We also do not find any merit in the contention of the Counsel for the appellant that the complaint was barred by time. The scheme was for 36 months and the balance amount remaining after payment of the instalments was to be paid at the time of registration as per Condition No. 6 of the scheme (Ex. A-1). The scheme ended only by March, 1996. According to the complainant he approached the appellant on 30.10.1994 itself stating that he would be willing to pay the entire balance sum of Rs. 40,000/- and that the appellant should execute sale deeds in his favour for the two plots. The complainant also filed affidavit dated 22.4.1999 before the District Forum in support of his case. He stated in that affidavit that he approached the appellant in the years 1995 and 1996 asking him to receive the entire balance amount of the consideration and to register the plots in his favour but in vain. He also stated that he gave legal notice dated 10.10.1997 (Ex. A-2) and that the same was received by the appellant on 5.11.1997 (Ex. A-3 acknowledgement). The complaint was presented before the District Forum on 10.9.1998 within two years from the date of receipt of Ex. A-2 notice by the appellant. The appellant did not give any notice to the complainant that his membership in the scheme ceased and that the amount of Rs. 6,000/- paid by him was forfeited. On the other hand notice dated 9.10.1994 issued by the appellant to the complainant (Ex. A-4) clearly establishes that the complainant was continuing as a member of the scheme. On these facts we find that the complaint was not barred by limitation.

7. In the circumstances we uphold the order of the District Forum directing the appellant to return Rs. 6,000/-. We also uphold the order of the District Forum d

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irecting the appellant to return the amount with interest at 18% per annum. But the interest shall be due and payable only after the date when after scheme ended on 5.2.1996. The complainant gave notice dated 10.10.1997 calling upon the appellant to receive the balance amount and execute sale deed or repay Rs. 6,000/- with interest - that notice was received by the appellant on 5.11.1997 as per Ex. A-3 acknowledgement. In the result, the appellant is directed to pay to the complainant the sum of Rs. 6,000/- together with interest at 18% per annum from 5.11.1997 upto the date of payment and also costs of Rs. 500/- awarded by the District Forum within four weeks from the date of receipt of this order. 8. The appeal is accordingly allowed only to the extent of directing the interest to be paid from 5.11.1997 instead of 20.7.1993. In other respects the order of the District Forum shall stand. No costs. Appeal partly allowed.