Oral Order (Sri R.Lakshminarasimha Rao, Honble Member)
1. The opposite parties no. 1 and 2 have filed appeal contending that the respondent has to pay balance sale consideration of `2,00,000/- and get the plot registered in his name and the District Forum ought not to have directed for refund of the amount and that the respondent is a defaulter and that as per the contents of the agreement of sale, the respondent has to pay an amount of Rs.2,00,000/- to the first respondent on or before 28.02.2009. It is contended that the complaint is not filed within the period of limitation and that the respondent is not a consumer as also that there was no deficiency in service on the part of the appellants.
2. The case of the respondent is that he paid an amount of Rs.4 lakh towards the cost of the plot measuring 200 sq.yards @`3,000/- per square yard, to the appellants during the month of November,2007 and as no development work was commenced, the respondent demanded the appellants to return the amount paid by him and he got issued notice dated 15.03.2010 with a demand for return of the amount .
3. The appellants resisted the claim on the premise that the respondent is a defaulter and the second respondent is not their agent. It is contended that the appellants sold the plots to the customers at reduced rate in view of the slowdown in the real estate market and that the first respondent had not demanded for refund of the amount and the letter of the second respondent is not binding on the appellants and that on request of the first respondent, the appellants reduced the cost of the plot and that the appellants are ready to execute sale deed in favour of the first respondent.
4. The first respondent field his affidavit and the documents, ExA1 to A7 and on behalf of the appellants and the second respondent, filed his affidavit and the documents, ExB1 and B2.
The District Forum allowed the complaint on the premise that the appellants had not developed the venture as per the layout and the first respondent cannot be labeled as defaulter since the balance sale consideration is payable only at the time of execution of the sale deed.
5. The point for consideration is whether the order of the District Forum suffers from mis-apprecition of facts or law?
6. The first respondent entered into agreement with the appellants to purchase plot admeasuring 200 sq.yards in diamond City floated by the appellants. The first respondent contended that the appellants failed to develop the venture as promised by them in the brochure. The brochure issued by the appellants contains the amenities promised to be provided by the appellants to the plots and the development of the plots etc., It reads as under:
Project will be developed with HUDA normas and to be approved by Directorate of Town and Country Planning (DTCP)
Barbed Wire Fencing for Total Project
Black Top Roads
Undergound Water Lines and Overhead Water Tank
Underground Drainage System, Parks with Landscaping and Electricity Lines with Butterfly lighting
Avenue Plantation.
7. The first respondent paid an amount of Rs.3,50,000/- on 24.11.2007 and Rs.50,000/- on 10.01.2008 and thus a total amount of Rs.4,00,000/- to the appellants till 10.01.2008. The agreement of sale provides for the terms and conditions of payment of the amount and the terms of the Sale Agreement
â The vendee hereby agree to pay the total sale consideration of Rs.6,00,000/- (Rupees Six Lakhs Only) and paid Rs.4,00,000/- (Rupees Four Lakhs Only) ( vide Receipt No.9127, Cheqno.286879 Date: 24.11.2007, Rs:350000/- and Receipt No.9246, Date: 10-01-2008 for Rs.50000/- by cash) by the VENDEE towards part of sale consideration for the plot cost. The VENDEE here by agree to pay the balance sale consideration of Rs.2,00,000/- (Rupees Two Lakhs Only) will be paid at the time of registration on her before 28th February 2009â.
8. It is an admitted fact that the first respondent had paid the amount of `4 lakh towards part of the sale consideration to the appellants and the balance sale consideration in terms of the agreement of sale is payable at the time of execution of the sale deed. The first respondent had performed his part of the contract and it is for the appellants to develop the venture as promised in the brochure , with HUDA norms and obtain approval of Directorate of Town and Country Planning, lay black top roads and lay underground water lines and construct overhead tank etc., The appellants have not established that they had completed any of the aforesaid items and thus the first respondent had demanded for return of the amount paid by him.
9. The second respondent who is the agent of the appellant and at whose instance the first respondent agreed to purchase the plot from the appellants had executed undertaking on behalf of the appellants promising to return the amount paid by the first respondent for the reason that the appellants could not obtain approval layout within the stipulate period. The undertaking of the second respondent executed on 30.10.2008 would establish that the appellants had not developed the venture even after collecting the amount from the first respondent and other purchasers fo the plots.
10. The first respondent got issued notice to the appellants stating that the second respondent induced him to purchase the plot from the appellants and that he paid an amount of Rs.4 lakh to the appellants for which the appellants had issued receipts as also that the appellants failed to perform their part of contract by taking steps to develop the venture and register sale deed in favour of the first appellants. The first respondent in his notice referred to the undertaking executed by the second respondent promising to refund the amount to him. The appellants had received the notice and did not choose to give reply or deny the contents of the notice. In the circumstances, the appellants cannot disown the authority of the second respondent as it agent.
11. For the foregoing reasons, the appellants cannot blame the first respondent to rescind the contract and seek for refund of the amount paid by him. In the circumstances, the appellants cannot retain the amount paid bt the first respondent as part of sale consideration of the plot and brand the first respondent as a defaulter. The appellants have rendered deficient service by not developing the venture as per the terms of the agreement , application form and the brochure and by retaining the amount paid by the first respondent without having any valid right to do so. The appeal is liable to be dismissed.
12. In the result, the appeal is dismissed confirming the order of the District Forum. The costs of the proceedings quantified at `3,000/-. Time for compliance four weeks.