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U. Raju Kumar v/s M/s Jana Harsha Estates N Construction Pvt. Ltd., rep. by its Managing Director

    F.A.No.837 Of 2008 Against C.D.No.729 Of 2007 District Forum-Iii Hyderabad & F.A.No.838 Of 2008 Against C.D.No.730 Of 2007

    Decided On, 04 February 2011

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad

    By, MR. SYED ABDULLAH
    By, HONOURABLE MEMBER & MR. R. LAKSHMINARSIMHA RAO
    By, HONOURABLE MEMBER

    For the Appellant : E.V. Rajagopal, Advocate. For the Respondent : B.S. Prasad, Advocate.



Judgment Text

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

1. The facts of both appeals are identical in nature and therefore, we propose to dispose of the appeals by a common order. F.A.No.838 of 2008 is taken as lead case.

2. The complainant being dissatisfied with the order of the District Forum has filed the appeal contending that the District Forum has not perused the affidavit and documents filed by her and directed the respondent to refund the amount despite it having held that the appellant’s membership in the scheme is alive and in force.

3. The appellant joined the scheme launched by the respondent company for purchase of house plot . The respondent assigned membership bearing number 21690-NS and allotted plot bearing number BGT-299 admeasuring 120 sq.yards in LIG unit, at Sector IV, Dream City-II,Ranga Reddy District for a consideration of `42,000 inclusive of first installment. The amount was payable in 50 E.M.Is @ `700/-per installment. The appellant has paid an amount of `23,500/- till 24-04-2006. The appellant claimed to have paid the installments as per his convenience and the respondent allowed him in paying the amount not in accordance with the schedule. However, the respondent said to have receive the installment from the month of May,2006 and she got issued notice dated 27-11-2006 calling upon the respondent to receive the balance amount of `18,500/- and execute register the sale deed in her favour.

4. The respondent company resisted the claim contending that on assurance of the appellant that she would pay the installments regularly and pay interest of `1238/- that accrued from September, 2002 to April 2006 , it had accepted the installments. It is contended that the appellant failed to pay interest and fell arrears of installments from April, 2006.

5. The appellant has filed her affidavit and the documents marked as ExA1 to A4. The Managing Director of the respondent company T.V.Ramana Murty has filed his affidavit and the documents marked as Exs.B1 and B2.

6. The point for consideration is whether the appellant is entitled to the registration of the plot in her favour?

7. The only question that fell for our consideration is whether the respondent company is liable to execute registered sale deed in favour of the appellant. Admittedly, the appellant had paid the installments at irregular intervals. Equally, the respondent had accepted the installments paid by the appellant at her convenience. It is the plea of the respondent company that it had accepted the installments from the appellant paid not in accordance with the schedule incorporated in the agreement for the reason that the appellant promised it that she would pay the balance installments regularly and she would pay the interest of Rs.1238/-. The plea is not supported by any evidence. On the other hand the appellant’s plea that she was permitted by the respondent company to pay the installments as per her convenience and thus there was implicit agreement to deviate from schedule of payment of installments is found support from the fact that the respondent had accepted without any protest all through till May,2006. The appellant has got issued notice to the respondent company with a request to accept the balance amount of Rs.18,500/- and execute registered sale deed. There was no response from the respondent company to the notice of the appellant.

8. The respondent company relied upon clause 11 of the agreement to contend that the appellant failed to pay successive three installments and it had cancelled the allotment by invoking the clause 11 which read as under:

An interest of 2% per month should be paid by the member on the dues if any. If any instalments are not paid for three months in succession management reserves its right to cancel membership without any prior notice.

9. The respondent company has cancelled the allotment against its practice of receiving the instalments not in accordance with the schedule in the agreement. The respondent company cannot rely upon clause 11 of the agreement to contend that it had cancelled the allotment owing to failure of the appellant to pay 3 successive instalments. The respondent company has admitted its liability to execute the sale deed on payment of interest and the balance instalments by the appellant. The interest is not quantified in the affidavit filed by the Managing Director of the respondent company. There is no denial of the amount of `1238/- charged towards interest as stated in the affidavit of the appellant. In the light of the readiness expressed by the respondent company to execute the registered sale deed, the relief granted by the District Forum to refund the amount is not proper nor sustainable. In the last paragraph of the affidavit filed by the managing director of the respondent company it is stated as under:

'Under these circumstances, the opposite party humbly submits that they are ready to register the plot if the complainant remits the interest component'

10. In the light of the readiness expressed by the respondent company to execute the sale deed in favour of the appellant on receipt of the interest, we are inclined to modify the relief granted by the District Forum by granting the relief of execution of the sale deed for the relief of refund of the amount.

11. In the result the appeal is allowed. Order of the District Forum relating to the refund of the amount is modified by direction to the respondent/opposite party company to execute registered sale deed in favour of the appellant in respect of House Plot bearing No.BGT 299 measuring 120 sq.yards situated at LIG Unit, IV Sector, Green City-II, Garden Unit, Ranga Reddy District on receipt of `18,500/- along with interest thereon.

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Rest of the order of the District Forum is upheld. There shall be no roder as to costs in the appeal. 12. In the result F.A.No.837 of 2008 is allowed. Order of the District Forum relating to the refund of the amount is modified by direction to the respondent/opposite party company to execute registered sale deed in favour of the appellant in respect of House Plot bearing No. BGT 295 measuring 120 sq.yards situated at LIG Unit, IV Sector, Green City-II, Garden Unit, Ranga Reddy District on receipt of `18,500/- along with interest thereon. Rest of the order of the District Forum is upheld. There shall be no order as to costs in the appeal.
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