Yelchuri Subrahmanyam vs Buddi Sankara Babu

AMICUS Curiae for the petitioners present. The case was dismissed in default. In the interest of justice, the case is restored to its original number. The other parties have already been proceeded against ex -parte. M.A. No. 4 of 2015 stands disposed of.

ARGUMENTS heard. The complainants namely, Yelchuri Subrahmanyam, Yelchuri Lakshmi Parvathi and Yelchuri Padmaja Kumari - husband, wife and their daughter, entered into an agreement with Buddi Sankara Babu -OP -1 and Konijeti Bhadarnarayana -OP -2, who claim to be the owners of vacant site under "Suryanarayana Housing Colony (Vema Vari Colony)", Swarna Road, Chirala. An advance payment in the sum of Rs.10,000/ - was taken by the OPs on 27/06/2005 and 29.06.2005. Registered sale deed was executed by the OPs -1 and 2. Although, they had promised that the plot No. 33 would be given but the sale deed showed plot No. 39 instead of plot No. 33. They also took the full payment in the sum of Rs.63,000/ -.

SUBSEQUENTLY , it transpired that flat No. 39 was not approved in the original layout plan. The complainants had to spend Rs.15,914/ - for the layout approval. OPs -1 and 2 claimed that OP -3 Vema Mallikarjuna Rao, Vema Adiseshu OP -4 and Bandaru Sankara Rao -5 were their partners. The complaint was filed before the District Forum with the following prayers: - "a) to take the complaint on record b) to direct the respondents to pay the advance amount of Rs.10,000/ - with interest at 24% from the date of receipt till the date of payment.

c) to direct the respondents to pay layout approval charges of Rs.15,914/ -

d) to direct the respondents to give an extent of 68 Sq.yards site from the O.P.s site or compensation amount equal to 68 Sq.yards as per market rate at the time of payment with Interest at 24%.

e) to pay compensation of Rs.2 lakhs towards abnormal increase of material etc. as they failed to discharge their duties.

f) for costs of Rs.1000/ -

e) pass just and equitable orders as the Hon''ble forum deems fit and proper".

THE District Forum partly allowed the complaint and passed the following orders: - "In the result petition is allowed in part directing the opposite parties 1 and 2 to pay Rs.15,914/ - towards the amount spent for approval of lay out plan charges and Rs.10,000/ - towards advance paid (total Rs.25,914/ -) to the complainant with interest at 12% p.a. from the date of filing of this complaint till realization and Rs.5,000/ - towards compensation for mental agony and Rs.1,000/ - towards costs of litigation. Petition against opposite parties 3 to 5 is dismissed without costs since there is no case was made out against them."

However, the State Commission dismissed the complaint on the ground that the OPs are not service providers.

LD . Amicus Curiae supported the District Forum''s order with vehemence. She argued that the said relationship stands established.

WE clap no force with these arguments. It stands established that there is no relationship of consumer and service provider between the parties. The complainants/petitioners failed to prove that "Suryanarayana Housing Colony (Vema Vari Colony), Swarna Road, Chirala" was in existence. Their receipts and sale deed are conspicuously silent about this fact. Their case is based on oral submissions only. Again, there is no inkling on the record that the OPs -1 and 2 promised them that they would allot plot No. 33. OPs -3 to 5 have got no privity of contract with the complainants. No document proves the case to this extent. It is rudimentary principle of jurisprudence that the documentary evidence will always get preponderance over the oral submissions because it is well known axiom of law that "men may tell lies but the documents cannot".

THERE is no evidence that the petitioners are working as builders. They are sellers simpliciter. It must be borne in mind that the sale of plot simpliciter is different from the plot sold by the builders or the promoters. The Appex Court in a latest authority reported in "Ganeshlal S/o Motilal Sahu Vs. Shyam" in Civil Appeal No. 331 of 2007 decided on 26.09.2013, was pleased to hold: - "6. It is submitted that failure to hand over possession of the plot of land simpliciter cannot come within the jurisdiction of the District Consumer Forum, State Commission or National Commission. We quite see merit in this submission of Mr. Lambat, particularly having seen the definition of ''deficiency'' as quoted above. We may, however, note that when it comes to "housing construction", the same has been specifically covered under the definition of ''service'' by an amendment inserted by Act 50 of 1993 with effect from 18th June, 1993. That being the position, as far as the housing construction by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of land simpliciter is concerned, and if there is any complaint, the same would not be covered under the said Act".

CONSEQUENTLY , we see no merit in this Revision Petition and therefore, the same is dismissed. However, Liberty is granted to the complainants to approach the appropriate Forum, for redressal of their grievances. So far as the limitation is concerned, they can seek help from Laxmi Engineering Works Vs. P.S.G. Industrial Institute, 1995 3 SCC 583.