VINAYAGA AGENCIES (REGD.) vs G.P.SEETHAPATHY (DECEASED)

THE opposite party in O.P. No. 114 of 2000 on the file of the District Consumer Disputes Redressal Forum, Chennai (South), is the appellant herein. He remained ex parte before the District Forum.

THE case of the complainant was as follows: THE complainant entered into three agreements respectively dated 10.9.1972, 10.9.1972 and 11.9.1972 with the opposite party for allotment of plots 255, 268 and 12 measuring 1200 sq. ft. each in Survey No. 278/2, Anakaputhur village, Chingleput District. He had paid the full consideration of Rs. 750 per plot, totalling to Rs. 2,250 to the opposite party in instalments and secured receipts from the opposite party. As per the terms of the agreements, the opposite party had to make immediate arrangement for execution of sale deeds in respect of plots, subject matter of the agreements. THE opposite party failed to comply with the provisions of the agreements. THE complainant took up the matter finally with the opposite party on 24.10.1997 and 15.10.1999 urging him to convey the properties by executing sale deeds. THE opposite party did not comply with the demand necessitating the filing of the present complaint. As already noted, the opposite party remained absent before the District Forum and was set ex parte.

The District Forum accepted the case of the complainant and directed the opposite party to register the sale deeds conveying the ownership of plots mentioned in the respective agreement in favour of the complainant within a month and to pay a compensation of Rs. 5,000 with cost of Rs. 500. The District Forum granted two months time for compliance.

AS against this order, the present appeal has been filed. During the pendency of the appeal, the complainant died and his legal representatives have been brought on record, as respondents 2, 3, 4, and 5 herein. It is submitted on behalf of the appellant/opposite party that the opposite party had a fracture and, therefore, he could not attend the Court, that the District Forum failed to consider that the complaint was barred by limitation, that the District Forum had no territorial jurisdiction since the properties were situated outside the jurisdiction, that the proper remedy, if at all, for the complainant was to move the Civil Court for specific performance, that the complainant had not obtained permission under Section 12(c) of the Consumer Protection Act for filing a single complaint in respect of three agreements, all of which did not relate to him, that the complainant had also committed default in the payment of the instalments, that the opposite party having waited for decades sold the plots in 1993, 1994 and 1999 respectively, that he had closed his business and vacated his business place in 1989 itself, that the present complaint on a non-existing firm/opposite party was not sustainable, that the complainant never approached the opposite party for execution of the sale deed, that the letters alleged to have been sent by the complainant, Ex. A4 to Ex. A8 were not served on the opposite party, that Ex. A9 filed by the complainant did not relate to the complainant, that Ex. A10 would clearly show that it was only the complainant, who was in default as Ex. A10 showed that there was a balance of Rs. 3,570 payable by the complainant for completing the sales.

THE learned Counsel for the complainant''s legal representatives submitted that the opposite party having entered into agreement and after receiving full consideration, failed to register the plots, that the complainant had been pursuing the matter with the opposite party from 1972, that the continuous letters from the complainant to the opposite party would show that there was no question of any limitation being involved, that the complaint itself had been filed within the time stipulated in the Act, that the District Forum had passed a proper order and no exception could be taken to the same. A further memo has been filed by the Counsel for the legal representatives of the complainant, that the Commission should pass orders for payment of Rs. 9.75 lakh, being the current value of the plots as per the guideline value. The point for consideration in the appeal is: whether the opposite party is entitled to have the complaint rejected. It is seen that the agreements had been entered into between the complainant and the opposite party in the year 1972. The instalments were 30 in number. Each instalment was for Rs. 25. It is seen from Ex. A10 that the entire consideration for the plots had been paid by the complainant. But it should be further seen that the entire payment had been made within a period of 30 months from the date of the agreement, namely, September, 1972. Immediately after paying the entire consideration, the complainant ought to have called upto the opposite party to complete the sale transaction. It does not appear that the complainant did any such thing. It should be incidentally noted that only one agreement is in favour of the complainant. The other two agreements are in favour of his wife and son. Admittedly, they did not join as complainants nor was any permission obtained under Section 12(c) of the Act for filing a similar complaint. The complaint ought to have been rejected on this solitary ground. That apart, if according to the complainant, he had been persistently calling upon the opposite party to comply with the terms of the agreement and execute and register sale deeds in favour of the agreement holders, then he ought to have on finding nil reaction on the part of the opposite party, should have moved the Court within a period of three years under Article 54 of the Limitation Act. It must be deemed that the opposite party had refused to comply with the demand. This had happened long time ago and by merely producing letters alleged to have been sent to the opposite party, the running of limitation cannot be arrested.

IN our view, it is a belated claim and the District Forum was in error in granting relief to the complainant merely on the basis of the documents produced and the fact that the opposite party had remained absent and had been set ex parte. If only the District Forum had perused the documents, it would not have escaped its attention that the claim was barred by limitation, was bad for non-joinder of parties. Of course, the opposite party ought to have appeared before the District Forum and contested the claim. But that by itself would not entitle the complainant to have an order in his favour, particularly when the claim was barred by limitation. The jurisdiction of the District Forum to entertain the complaint is also doubtful as the plots are situated outside the city limits of Chennai. The District Forum had clearly erred in not dismissing the complaint on the question of limitation and want of territorial jurisdiction.

IN view of the discussion above, the appeal is accepted. The order of the District Forum is set aside and the complaint is dismissed. However, there will be no order as to costs. Appeal allowed.