State Consumer Disputes Redressal Commission
Adala Muralikrishna Reddy, Hyderabad vs Govt. O Ap Rep By Its Principal ... on 23 April, 2014
P. STATE CONSUMER
DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
IA
19 of 2014 in CCSR 19/2014
Between
:
Adala
Muralikrishna Reddy
S/o
A. Sankara Reddy
Aged
about 59 years, Occ : Business
Permanent
address : Plot No. 405, Road No. 22A
Jubilee
Hills, Hyderabad 500 033
Mailing
address :201, Regency House
680,
Somajiguda,
Hyderabad
, Pin code : 500 082. ..Petitioner/complainant
And
01.
Govt.
of A. P. rep by its Principal Secretary
Revenue, Secretariat Building,
Secretariat, Hyderabad.
02.
M/s.
A. P. Industrial Infrastructure Corporation Ltd
Having its office at Parishram Bhavan,
6th floor, Fatehmaidan road
Basheerbagh, Hyderabad
Rep. by its Managing Director
03.
M/s.
Emaar Hills Township Pvt. Ltd
Company Corporate under Provisions of
Companies Act 1956
Having its office at Manikonda village
Gachibowli, Hyderabad
Being rep. by its authorized signatory
Mr. G. V. Vijay Raghav, S/o Mr. G. Hara Gopal
Krishna
Aged about 42 years, R/o Flat No. 313
My Home Mount View Apartments,
Navodaya Colony, Yellareddyguda, Hyderabad.
04.
M/s.
Emaar MGF Land Ltd
Company Corporate under Provisions of
Companies Act 1956
Having
its Regd. Office at ECE House,
28, Kasturiba Gandhi Marg
New Delhi 110 001
Being rep. by its authorized signatory
Mr. G. V. Vijay Raghav, S/o Mr. G. Hara Gopal
Krishna
Aged about 42 years, R/o Flat
No. 313
My Home Mount View Apartments,
Navodaya Colony, Yellareddyguda,
Hyderabad. .. Respondents/Opp.
Parties
Counsel for the
Petitioner/Complainant : M/s. P. Rajasripathi Rao
Counsel
for the Respondents
Opposite
parties : 1.G.P. for Op.1
2.Mr.
K. Srinivasa Rao for Op.2
3.Mr.
Ravicharan for Op.3
4.M/s.
Shireen Sethna Baria for Op.4
Coram :
Honble Sri Justice Gopala Krishna Tamada .. Honble President
And
Sri R. Lakshminarasimha Rao Honble
Member
Wednesday, the Twenty Third day of April Two Thousand Fourteen Order : ( as per Sri R. Lakshminarasimha Rao. Honble Member ) *****
01. The complainant has filed this petition to condone the day of 35 days in filing the complaint on the ground the completion of project and handing over the Flat under sale is not possible on the part of the respondents and it came to his knowledge on 23.12.2013 that the respondents had not obtained sanction from the authority concerned and the fraud played upon him by the respondents has vitiated the action of the respondents. Therefore, he prayed that the delay be condoned.
02. The second respondent has filed counter contending that it is a minority shareholder holding 26% equity in the respondent no.3 and it has been victim of fraud played upon it by the respondent no.3. The respondent has contended that the complaint is not maintainable and the petitioner has not stated from which date limitation for filing the complaint has commenced and he has not properly explained cause for the delay.
03. The respondent no.3 resisted the petition on the premise that the petitioner has not mentioned from which date the delay of 35 days in filing the complaint is calculated. The respondent no.4 through letter dated 8.09.2011 informed the petitioner that the process of registration of sale deed could not be initiated because of the orders passed by the High Court and Honble Supreme Court.
04. The fourth respondent has filed counter contending that the averments of the complaint show that the cause of action arose on 3.12.2008 when the petitioner cancelled the booking and thereafter he reiterated his demand for refund of the amount. The correspondence between the parties does not give rise to cause of action. Sufficient cause is sine qua non to maintain a petition under section 24-a of the Consumer Protection Act. The petitioner is guilty of latches and deserves no mercy from this Commission. Subsequent post cancellation on 3.12.2008 neither betters the case of the petitioner nor revives a time barred claim. Hence, the respondent no.4 sought for dismissal of the petition.
05. The point for consideration is whether the petitioner has shown sufficient cause for condoning the delay?
06. The petitioner in his affidavit filed in support of the petition has stated that the respondents induced him to part with money without entering into agreement of sale for purchase of Flat bearing number BX EXCL TB- F09-B2-02/B2 and he came to know on 23.12.2013 that the respondents had not obtained permission for the project and of this Commissions order dated 19.10.2012 in C.C.No. 54 of 2011. The learned counsel for the petitioner has submitted that the fraud played on the petitioner vitiated every transaction and the cause of action is continuous and as a matter of precaution, the instant petition is filed.
07. The learned counsel for the respondents have contended that the delay in filing the petition is not 35 days and it has to be reckoned from the date of cancellation of the agreement, i.e., 25.12.2010. The complaint should have been filed 25.12.2012 and the period beyond thereof has to be considered for the purpose of computation of limitation period. The learned counsel for the respondent no.4 has placed reliance upon the following decisions:
i) Improvement Trust Faridkot through its Executive
ii) Officer and another vs Bhupender Kaur II (2000) CPJ 56.
iii) Anu Enterprises India vs HUDA and another I(2012)CPJ 552.
iv) Ramratan vs Jayanth H.thakur IV (2011) 114(NC).
v) N.Y.Thajudheen vs K.J.Marbles & others Ii (2012)CPJ 23(NC).
vi) SBI vs B.S. Agricultural Industries AIR 2009 SC 2210.
08. The learned counsel for the petitioner has contended that the petitioner made correspondence with the respondents subsequent to 25.12.2010 and the respondent no.4 informed the petitioner that owing to the orders of the High Court and Supreme Court it was not possible to complete process of registration and it would let the petitioner know the concrete date for registration of sale deed by 30.11.2011. He has contended that the cause of action for filing the complaint is continuous. He has relied on the following decisions:
i) Transport Corporation of India Ltd vs Veljan Hdrair Ltd (2007)3 SCC 142.
ii) France B Martins and another vs Mafalda Maria Teresa Rodrigues (1999) 6 SCC 627.
iii) Milk Specialties Ltd vs Rajiv Singh (2005) 11 SCC 402.
iv) Rameshwar Dubey and others vs Masomat Asha Kaur and others (1996) 11 SCC 160.
v) Lata Construction and others vs Dr.Ramesh Chandra Ramniklal Shah (2000) 1 SCC 586.
vi) Santosh vs Jagr Ram and another (2010) 3 SCC 251.
vii) Meghhmala and others vs G.Narasimha Reddy and others (2010) 8 SCC 383.
09. The petitioner has stated that he paid an amount of Rs.39,05,151/- to the respondents towards part sale consideration of the Flat bearing number BH EXCL TB- F09-B2-03/B2 and he has to pay the balance sale consideration and the respondents had to complete construction and deliver the Flat within 36 months there from. He addressed letter dated 25.12.2010 informing the respondents that in view of there being no permission obtained by the respondents for construction of the Building and expressing his intention to cancel the agreement, he requested the respondents to return the amount. There was no response to the letter from the respondents. The petitioner addressed letters on 12.04.2010, 14.07.2010, 23.08.2010 and 26.10.2010 which had not drawn any response from the respondents.
10. The petitioner got issued notice dated 25.12.20101 and 27.12.20101 with a demand for refund of the amount and there was no reply from the respondents. The respondent no.4 had sent email on 14.07.2011 requesting the petitioner to clear the overdue payments and he has to execute buyer agreement in duplicate and thereafter the respondent no.4 addressed letter dated 8.09.2011 informing the petitioner that process of registration could not commenced in view of orders of High Court and Supreme Court and the date therefor would be informed by 30th November,2011. Thus, as could be seen from the intention of the parties, the petitioner opted for cancellation of the agreement on 25.12.2010 which was not acceptable to the respondents who proceeded to demand for overdue payments and failed to inform by 30th November,2011 the date for registration of the sale deed. Thus, the cause of action for filing the complaint is continuous till the respondents informed the date for registration of the Flat. In the matter of specific performance of agreement, the petitioner has two options either to seek for execution of sale deed or for return of the amount received by the respondents.
11. In Improvement Trust, Faridkot (supra), the complainant purchased a shop in open auction, the sale consideration was payable in installments which was paid beyond schedule and the allotment was cancelled which was resumed on 11.01.1994 on payment of the installments with penalty. The complaint was filed on 2.12.1997. Punjab State Commission held that correspondence between the parties does not give a fresh cause of action and the complaint was barred by time.
12. In Annu Enterprises India the complainant was allotted plot and possession thereof was given to him on 28.06.1996. Conveyance deed was executed in favour of the complainant who got sanctioned the site plan for raising construction and completed construction of basement on the plot and thereafter he filed complaint before District Forum alleging that high tension electric line was passing on his plot was not removed despite his repeated requests. The National Commission held that the complaint could have been filed within two years from the date of taking possession of the plot.
13. Ramratans is a case where the complainant entered into an agreement with the opposite party on 21.01.1992 and in pursuance of the agreement the builder delivered possession of the Flat to the complainant on 16.06.1993 and the purchaser filed complaint before the District Forum on 23.03.1998 alleging the opposite party had not honoured number of commitments made in the agreement. The District Forum dismissed the complaint on the ground of limitation and State Commission confirmed the order of the District Forum. The National Commission dismissed the Revision holding that once the period of limitation starts, it cannot be enlarged or extended by prolonged correspondence between the parties.
14. In N.Y.Thajudheen , the National Commission declined to condone delay of 279 days in filing the Revision for the reason that the complainant who was the revision petitioner had not shown sufficient cause and his absence from his hometown and that his trip to Dubai at the time the State Commission passed the order is not sufficient cause to condone such period of delay.
15. The aforementioned decisions are not applicable to the case of the respondents as the facts are not the same and in any of the cases there is no circumstances obtained similar to those of the instant case. In the case on hand the respondents promised to inform the petitioner the exact date of registration of sale deed by 30th November, 2011 and they had not intimated so far. As the cause of action is continuing, the complaint can be considered to have been filed within the period of limitation.
16. In Transport Corporation of India Ltd (supra), the question that fell to the consideration of the Honble Supreme Court is the scope of cause of action for filing complaint before the District Forum. A consignment booked and rebooked was stated to have been missing and the carrier by its letters, continuously went on assuring the complainant that the process of locating the goods was on and subsequently assured him that it would inform him the status and failed to give any intimation. The Supreme Court held that the complainant on various dates demanded the carrier for delivery of the goods and the carrier even after assuring the complainant that it would locate the good and give intimation thereof, failed to inform the status. The Court held that in view of request of the carrier to the respondent to wait till the consignment was traced, the limitation for an action would not start to run until there was a communication from the carrier either informing about the loss or expressing its inability to deliver the consignment.
17. In Fracne B Martins the respondent entered into an agreement for sale of a flat with the developer and of the sale consideration of Rs.2,10,000/- a sum of Rs.2,00,000/- was paid and possession of the flat was delivered to her in September, 1985. The appellant issued notice dated 30.08.1991 admitting receipt of Rs.2,00,000/- and demanded for balance amount. The respondent claimed that the construction of the flat was sub-standard and she incurred an amount of Rs.26,000/- and she filed complaint before District Forum on 19.06.1992 seeking for execution of sale deed. The District Forum dismissed the complaint on the ground of limitation and the State Commission allowed the appeal and the National Commission confirmed the order of the State Commission. The Supreme Court held that the agreement was executed in 1983 and possession of the premises was delivered in 1985.The developer had not denied their liability to execute sale deed. No period for specific performance of the agreement was prescribed by the parties. The complainant was held to have knowledge of the fact that the developer was not interested in specific performance of contract only when the developer issued letter dated 30.08.1991demainding for balance sale consideration of Rs.20,000/-.
18. In Milk Specialties Ltd (supra), the Supreme Court opined that a small delay of 57 days in filing the appeal should have been condoned by the National Commission and it restored the appeal to the file of Uttaranchal State Commission. Rameshwar Dubeys a case where the Apex Court considered limitation period for filing suit based on fraud played upon the plaintiff who was dispossessed by the defendants and their lordships held that the limitation for filing the suit for the plaintiff arose when she was sought to be dispossessed from the land purchased by her through registered sale deed whereupon she came to know that her vendor sold the land earlier to the defendant and both of them played fraud upon her. The Supreme Court held that limitation for filing of the suit would commence from the date on which the plaintiff came to know of the fraud played upon her consequently to which dispossession was sought to be made.
19. In Lata Constructions (supra), the question that fell to the consideration of the Supreme Court was where there are two contracts inconsistent and cannot stand together , whether the old contract can be considered as valid. The purchaser of flat entered into agreement with the developer on 27.01.1987 for construction and handing over of flat and he paid an amount of Rs.5,70,000/- to the builder. Subsequently the developer entered into another agreement with the purchaser that in lieu of the Flat, it would pay an amount of Rs.9,70,000/- to the purchaser and it was agreed that until the entire amount is paid by the developer, the terms of the original contract would remain unaffected.
20. The developer failed to honour commitment under both agreements and the National Commission which allowed the complaint filed by the purchaser. In appeal preferred by the developer, the Supreme Court held on the point of limitation that rights under the first agreement were not given up and the developer was constantly under the obligation of providing flat to the complainant, the cause of action is treated as continuing cause of action. The ratio laid therein is squarely applicable to the facts of the case on hand The decision in Santosh (supra) need not be discussed in view of the same ratio relating to fraud vitiating the transactions laid in Rameshwer Dubey.
21. In the case on hand the respondent no.4 informed the petitioner on 8.09.2011 that the registration process could not be taken up in view of the orders of the High Court and Supreme Court and it would intimate the concrete date for registration of sale deed by November, 2011 which however, was not done and as such the cause of action still continues. Once the respondents inform the petitioner the date for registration of sale deed , it is for the petitioner to proceed with the registration of the sale deed or claim for refund of the amount depending on the terms of the agreement and circumstances of the case. Even otherwise, the petitioner has shown sufficient cause to condone the delay and the delay is accordingly condoned.
22. For the foregoing reasons, we are of the considered view that the complaint is filed within the limitation period of two years from the date of accrual of cause of action. Accordingly, the petition is disposed of. There shall be no separate order as to costs.
PRESIDENT MEMBER Dated : 23.04.2014