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Yanamala Purushotham v/s The Managing Partner Sai Chaitanya Real Estates


    Decided On, 30 March 2011

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad


    For the Appellant : Sri Yanamala Purushotham (PIP). Advocate. For the Respondent : M.Venkataramana Reddy, Advocate.

Judgment Text

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

1. The appeal is filed against the order of the District Forum, Tirupathi in C.C.No.65 of 2010. The complainant is the appellant. The appellant purchased a plot admeasuring 200 sq.yards for a consideration of `1,39,000/- in Sri Lakhsmi Venture floated by the respondent at Kotramangalam Village of Renigunta Mandal. The appellant had paid `250/- towards admission fees as also the cost of plot. The respondent executed an undertaking dated 29.6.2007 assuring the appellant that he would execute registered sale deed after obtaining approval from Tirupati Urban Development Authority. In the course of time the cost of the plot in increased to `750/- per sq.yard. The appellant has got issued notice dated 23.6.2010 with a demand for execution of the sale deed.

2. The respondent has resisted the claim contending that one R.Munikrishna Reddy purchased the land in question, who in turn purchased it through registered sale deed dated 15.6.1970 and 22.9.1969. Muni Krishna Reddy executed registered settlement deed dated 18.12.1999 in favour of his son Bhagyashekar Reddy. Bhagyashekar Reddy purchased the land in question and other properties through registered sale deed dated 16.8.1977 from C.Lakhsmipathi and Bhagyashekar Reddy executed registered gift settlement deed on 2.9.2002 in favour of his wife Rs.Lalithamma who sold the property to C.Veera Reddy on 15.10.2003 and Veera Reddy in turn sold the property on 22.4.2005 to the respondent. The respondent made layout in the name and style of Sai Sri Lakshmi Venture for 542 plots in the year 2004. The respondent applied for layout to TUDA and meanwhile the children of Bhagyashekar Reddy R.Bharathi and R.Rajesh filed suit O.S.No.567 of 2007 on the file of Principle Senior Civil judge, Tirupathi for partition of Ac 10.09 cents of land and the suit is pending before the court.

3. TUDA refused to approve the layout because of the litigation in the court and the respondent is unable to execute sale deed for the very same reason. The respondent offered to allot plot in another venture nearer to Tirupati and near Renigunta for which the appellant had not shown any interest and in the circumstances, the respondent informed him that the amount would be refunded. The respondent is ready to execute sale deed in other venture near Renigunta. The cost of land near Renigunta is higher than that of the land in question. The respondent cannot execute sale deed in Sai Sri Lakhsmi Venture until the layout is approved by TUDA and till the suit which posted on 15.9.2010 is disposed. The appellant ought to have approached the civil court for specific performance of the agreement of the sale. The consumer forum has no jurisdiction to entertain the complaint.

4. The appellant has filed his affidavit and the documents EXs.A1 to A5. The respondent has filed his affidavit and got marked Exs.B1 to B6.

5. The District Forum has allowed the complaint with a direction to the opposite party to refund `1,39,000/- with interest @ 9% per annum and `20,000/- towards compensation.

6. Feeling satisfied with the order of the District Forum, the complainant has filed the appeal contending that the District forum has allowed the complaint for refund of the amount though no alternative prayer was sought for and that the respondent got filed a suit O.S.No.567 of 2007 in collusion with the plaintiffs therein. The property covered under the agreement of sale is not covered by the plaint schedule in suit O.S.No.567 of 2007 and that the suit was dismissed for non-prosecution. The respondent has not filed any application for setting aside of the order of dismissal of the suit.

7. The points for consideration are:

1) Whether the respondent is liable to execute sale deed in favour of the appellant for the land under agreement of sale?

To what relief?8. POINT NO.1 The respondent floating venture in the name and style of Sai Sri Lakshmi at Khotramangalam Village and payment of `1,39,500/- towards cost of the plot by the appellant in the venture as also allotment of a plot and execution of agreement of sale thereof, by the respondent have been not disputed. The appellant has paid the amount in instalments commencing from 4.7.2004 to 29.6.2007 as per the terms of the agreement. The respondent had sold the plot assuring the appellant that they would execute registered sale deed after obtaining approval from Tirupati urban Development Authority. The respondent except taking shelter under the plea of 'refusal for sanctioning approval' by TUDA, had not taken any steps to show that TUDA had refused to sanction approval on the ground of pending litigation and as after dismissal of the suit.

9. The respondent executed document dated 29.6.2007 undertaking to execute sale deed soon after getting the final approval from TUDA. There was no intimation from the respondent as to whether final approval was sanctioned by Tirupati Urban Development Authority. The appellant has got issued notice through his advocate on 23.6.2010 requesting for execution of the sale deed for the plot under sale. The respondent had not chosen to give any reply nor had taken steps for sanction of final approval lay out. The appellant has filed copy of judgement dated 20.8.2009 wherein it is stated that the suit was dismissed for non-prosecution.

10. It is the consistent version of the appellant the respondent had got filed a collusive suit in O.S.No.567 of 2000 on the file of Principal Senior Civil Judge, Tirupathi. The respondent has not substantiated his claim that he had taken all possible steps for obtaining final approval layout from TUDA prior to the date of filing of the suit as also after the suit was dismissed for non-prosecution and subsequently thereto and in such circumstances, the plea of the appellant that the respondent has avoided to perform his part of obligation and thus rendered deficient service, stands proved. Therefore, the respondent has to obtain approval from TUDA and execute the sale deed in respect of the plot under sale in terms of the agreement of sale in favour of the appellant. The appellant has taken the risk of purchasing the plot under litigation as contended by the respondent and the appellant had stated that he had got verified that the plot under sale is not subject matter of the suit O.S.No.567 of 2007 on the file of Principle Senior Civil Judge, Tirupathi.

11. The respondent had collected the amount from the appellant and issued passbook with the terms and conditions in corporated therein in regard to the collection of the instalments and execution of the sale deed. Clause 14 of the terms and conditions of the passbook reads as under:

The layout which is shown at the time of canvassing is only a model layout and the management reserves its right to alter or modify the same on a future date depending upon the circumstances, accordingly, the plot numbers may change basing on the approval of the final layout by TUDA. Approval of the layout will be obtained before the end of the scheme.

12. Clause 16 provides for commencement of the scheme from 6.2.2004 and the scheme period provided for as seen from the passbook is 41 months whereof the appellant had paid amount under the caption of ‘special instalments’ and he had paid the entire sale consideration in 21 instalments which is evidenced by the entries of the passbook and admitted by the respondent. The res

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pondent having committed himself for providing of amenities as also obtaining of layout from TUDA, neglected to perform his part of obligation and thereby subjected the appellant to hardship. 13. In the aforesaid circumstances, the District Forum ought to have passed the award directing the respondent to execute the sale deed in respect of the plot under sale. For the aforesaid reasons we are inclined to modify the order passed by the District forum. 14. In the result the appeal is partly allowed. The order of the District forum is modified. The opposite party is directed to execute the sale deed in respect of the plot in Sri Sai Lakshmi Venture admeasuring 200 sq .yards at Kotramangalam Village of Renigunta Mandal and pay `20,000/- towards compensation and `2,000/- towards costs. Time for compliance four weeks.