State Consumer Disputes Redressal Commission
T.Tejeswararao S/O.Sri T.Samba Murthy ... vs Gruha Jyothi Buildings And Estates Pvt. ... on 13 December, 2011
BEFORE THE A BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. F.A.No.303/2009 against EA No.29/2007 in C.C.No.251/2005, District Forum-I, Visakhapatnam Between T.Tejeswararao S/o.Sri T.Samba Murthy Aged 53 years, Syamala Arcade, Dabagardens, Visakhapatnam530 020 Appellant/ Complainant And 1. Gruha Jyothi Buildings and Estates Pvt. Ltd., Repreented by its Chairman Y.Ramabrahmam And Managing Director, K.Krishna Rao, Office situated at 7-16-71, 1st floor, Old Gajuwaka junction, Visakhapatnam-26. 2. Gruha Jyothi Buildings and Estates Pvt. Ltd., Represented by its Manager Office situated At 7-16-71, 1st floor, Old Gajuwaka Junction, Visakhapatnam-26. Respondents/ Opp.parties. Counsel for the Appellant :M/s. V.Gourisankara Rao Counsel for the Respondents M/s .S.V.S.Chowdary & Co. QUORUM: THE HONBLE JUSTICE SRI D.APPA RAO, PRESIDENT, AND SMT.M.SHREESHA, HONBLE MEMBER.
TUESDAY, THE THIRTEENTH DAY OF DECEMBER, TWO THOUSAND ELEVEN (Typed to the dictation of Smt.M.Shreesha, Honble Member) **** Aggrieved by the order in E.A.No,29/2007 in C.C.No.251/2005 on the file of District Forum-I, Visakhapatnam, the complainant preferred this appeal.
E.A. was filed by the complainant/Decree holder U/s27 of Consumer Protection Act, 1986 seeking execution of the order dated 03-1-2006 passed in C.D.No.251/2005
a)directing the complainant to pay balance amount as per the scheme with penalty and then the opposite parties to register the plot in favour of the complainant on payment of necessary registration charges and
b) it is not possible, then direction was given to the opposite parties to return the sum of Rs.40,400/- with interest at 9% p.a. from 01-5-2003 till the date of realization.
c) to pay Rs.10,000/- towards compensation and
d) to pay Rs.1,000/- towards costs.
Opposite party no.2 filed counter on his behalf as well as on behalf of opposite party No.1 contending that one of the Directors of Gruha Jyothi Buildings & Estates, one Yerneni Ramabrahman has transferred two plots in the layout in favour of his relatives and friends and a such a Civil Suit was filed by Managing Director on the file of VI Additional District Judge, Visakhapatnam praying for cancellation of the illegal transaction made by the said Ramabrahmam. There was another suit on the file of Senior Civil Judge at Gajuwaka for declaration of ownership of the above Gruha Jyothi Buildings & Company and therefore the second opposite party is not able to pay the amount as directed in C.D. Opposite party No.2 further submitted that there is interim injunction passed in I.A.No.337/2006 in O.S.No.42/2006 and prayed to dismiss the E.A. The District Forum after hearing both sides observed that since plot No.63 was allotted and sold away to a third party, as such not available for registration in favour of the complainant, it is not possible to register a sale deed and therefore ordered refund of Rs.40,400/- with interest thereon @ 9% p.a. from 01-5-2003 with compensation of Rs.10,000/- and costs of Rs.1,000/- to the complainant. It further observed that the opposite parties have deposited Rs.70,792/- on 02-9-2008 and thus complied the order and hence dismissed the E.A. Aggrieved by the said order, the complainant preferred this appeal on the E.A. order and we observe from the record that no appeal has been preferred over the original order i.e. C.C.No.251/2005, which has become final.
The complainant filed additional documents by way of evidence, which are marked as Exs.A8 to A10 and the opposite party also filed additional documents by way of evidence which are marked as Exs.B5 to B9.
Therefore, the point that falls for consideration here is only whether plot No.63 which was allotted to the complainant and which the District Forum directed the opposite party to register in favour of the complainant after receiving the balance sale consideration can be registered and the order of the District Forum is complied with.
The learned counsel for the opposite party contended that this plot has been sold and sale deed dated 10-10-2005 was also filed before the District Forum. Based on these documents, the District Forum ordered in E.A.No.29/2007 that if it is not possible to register sale deed as the plot has already been sold to a third party, it directed the opposite party to comply with the alternate relief in the main C.C. i.e. refund of the amount.
The learned counsel for the complainant contended that they never sought for refund of the amount and only prayed for registration of the plot. A brief perusal of the original complaint shows that the complainant sought for direction to register the plot together with compensation and costs. The learned counsel for the complainant also filed additional documents by way of evidence and brought to our notice, the available plots in Sy.Nos.27/1, 27/8, 27/1, 27/2, 27/3, 27/4, 27/5, 27/6, 27/7 & 27/8 in Nerellavalasa Village. The said E.Cs reveal that still 16 plots are not sold. The following are the details of 16 plots unsold:
Vacant Plots Extent of Plot 25 375 sq. yds.59 400
sq yds 86 60 sq. yds.93
60 sq. yds 94 60 sq. yds 95 60 sq. yds 96 60 sq. yds 97 60 sq. yds 104 60 sq. yds 107 60 sq. yds 125 60 sq. yds 126 60 sq. yds 127 60 sq. yds 132 60 sq. yds 133 60 sq. yds 134 60 sq. yds Total vacant area As per the E.C. 1615 sq. yds.
As against this the learned counsel for the respondents contended that plot Nos.25 and 59 are also sold and plot No.59 was sold to one Suvarchala Rani and 25 to one Mr.Ibrahim Pasha and that by mistake plot No.58 was written and rectification could not be done as the documents are in the bank.
The complainant further contended that the opposite party allotted 1400 sq. yds. to him in the original plan but later the Gram Panchayat plans were changed after the VUDA had given approval and now the opposite party is only offering 400 sq. yds. A perusal of the complaint does not anywhere state the extent of plot. Even in the application form Ex.B1wherein the complainant was allotted plot No. 4 or 63 dated 20-7-2002 vide pass book No.60, the extent of the plot was never mentioned.
Even in the subsequent correspondence between the complainant and the opposite party, the extent of the plot was never mentioned. Whereas the sale deeds which the opposite party is relying upon that they are sold to a third party filed before the District Forum during the Execution proceedings, the extent of the plot is given as 400 sq. yds. So, in the absence of any evidence on record that the amounts paid for by the complainant were for 1400 sq. yds. plot, cannot be arrived at. However, the sale deed filed by the opposite party for the same plot shows that it is a 400 sq. yds. plot. It is also not in dispute that these sale deeds are dated 10-10-2005 whereas the original C.C. 251/2005 was filed on 01-3-2005.
It is apparent that the opposite party sold these plots during the pendency of the C.C. Section 52 of Transfer of Property Act reads as follows:
52. Transfer of Property pending suit relating thereto: During the (pendency) in any court having authority (within the limits) of India excluding the State of Jammu and Kashmir or established beyond such limits by (the Central) Government (xxx) of (any) suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may impose.
(Explanation: For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
This sale of plot No.63 attracts Section 52 of Transfer of Property Act and as the opposite party has sold away the plot during the pendency of the case and as the first direction is for registration of the plot and the refund is only an alternate direction and the opposite party has sold away the plot during the pendency of the complaint, these sale deeds are not binding on the complainant. The complainant also filed additional documents showing the plots available for purchase, which opposite party did not dispute except for plot Nos. 25 and 59. In order to obviate unnecessary litigation and multiplicity of proceedings, we deem it fit to order registration of Plot Nos. 86, 93, 94, 95, 96, 97, 104 in Sy.Nos.27/1, 27/8, 27/1, 27/2, 27/3, 27/4, 27/5, 27/6, 27/7 & 27/8 admeasuring 60 sq. yds. each if they are contiguous to execute sale deeds for 60 x 7= 420 sq. yds.
The extra 20 sq. yds. should not lie ground for another fresh round of litigation as the opposite parties are deficient in service for executing sale deeds for Plot No.63 during the pendency of the complaint. Therefore, instead of ordering execution of sale deed for plot No.63 for which sale deed was already executed in favour of third party and though lispendens comes into play, but still to avoid future litigation and in the interest of both parties, we deem it a fit case where principles of natural justice and equities should be taken into consideration and hence this direction to register the aforementioned plots.
In the light of the above, we dispose of the appeal directing the opposite party to register plot Nos.86, 93, 94, 95, 96, 97, 104 in Sy.Nos.27/1, 27/8, 27/1, 27/2, 27/3, 27/4, 27/5, 27/6, 27/7 & 27/8 admeasuring 60 sq. yds. each in favour of the complainant, if they are contiguous, together with compensation of Rs.10,000/- and costs of Rs.1,000/-.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.13-12-2011