K Rama Rao vs Narne Estates (P) Limited

THIS revision is directed against the order of the Andhra Pradesh State Consumer Disputes Redressal Commission dated 08.10.2013 whereby the State Commission dismissed the application of the petitioners complainants seeking amendment of the prayer clause to include alternative relief of refund of Rs.14,24,850/ - with interest.

BRIEFLY put, the facts relevant for the disposal of the revision petition are that the petitioners filed a consumer complaint alleging deficiency in service on the part of the respondent opposite party (developer) with following prayer : "It is therefore prayed that this Hon''ble Forum may be pleased to direct the opposite party to obtain the lay out and to receive the balance sale consideration amount to execute and register the sale deeds, conveying the Plot Nos. 260, 61, 26 and 263 total admeasuring 1200 sq. yards out of the layout known as ''ROLLING MEADOWS'' situated at Madinaguda Village, Serillingampally Mandal, R.R.District and pass such other and further order or orders as are deemed fit and proper in the circumstances of the case and in the interest of justice."

THE respondent resisted the complaint mainly on the ground that the petitioners has no locus standi to maintain the consumer complaint as they are not the consumers as defined under Consumer Protection Act, 1986. The District Forum accepted the objection raised by the respondent and rejected the complaint. Being aggrieved, the petitioners filed appeal and the State Commission set aside the impugned order of the District Forum and remanded the matter back with the direction to the District Forum to conduct Denovo inquiry and decide the matter on merit.

THE District Forum in the second round of litigation, on appraisal of the pleadings and evidence produced by the parties partly allowed the complaint and directed as under: "In the result, the complaint is allowed in part 1, The complainants are directed to pay Rs.14,24, 850/ - ( Rupees Fourteen Lakhs Twenty Four Thousand Eight Hundred and fifty only) to the opposite party. After receiving Rs.14,24,850/ - from the complainants, the opposite party shall register the "4 plots 260, 261, 262 and 263 in favour of complainants. The opposite party is directed to pay Rs.5000/ - ( Rupees Five Thousand only) compensation to the complainants for causing hardship. No order as to costs. Time for compliance is 30 days from the date of receipt of this order."

BEING aggrieved of the said order, the opposite party preferred an appeal. During the pendency of the appeal, the petitioners moved an application for amendment of prayer clause in the consumer complaint in order to incorporate the alternative relief for refund of Rs.14,24,850/ - on the plea that direction of the District Forum requiring the opposite party to register conveyance deed in respect of subject plots in favour of the complainants would not be executable without the approval of layout by the concerned authorities which was not forthcoming and this circumstance necessitated the alternative relief for refund of money paid towards sale consideration with interest.

THE State Commission, however, dismissed the application with following observations: "There is no quarrel with the proposition of law that the Courts or tribunals can exercise power to permit amendment of the pleadings in the circumstances of the case, even there is no specific provision of law meant therefor. However, the proposed amendment of pleadings or prayer portion of the complaint is subject to various parameters such as law of limitation, necessity of the proposed amendment for the purpose of determining the real question in the lis in between the parties. Usually, no application for amendment after trial in the matter of civil disputes can be allowed with exception that the court unless comes to conclusion that in spite of due diligence, the party seeking for proposed amendment of the pleadings would not have raised the matter before commencement of trial. The petitioners have entered into agreement for purchase of the aforementioned plots and paid certain amount towards part of sale consideration and filed the complaint seeking for execution of the sale deed in respect of the plot under purchase. The petitioners had not raised any plea as to amendment of the relief sought for, for refund of the amount during pendency of the complaint before and after the matter was remitted back by this Commission to the District Forum. It is also an undeniable fact that even in a suit for specific performance of contract, alternative relief for refund of the amount cannot be granted unless there is a specific prayer sought for. The petitioners, by the efflux of time, have lost the right to claim for refund of the amount and as such the proposed amendment seeking for amendment of the prayer portion in the complaint for refund of the amount paid by the petitioners cannot be allowed."

SHRI M. Vijay Bhaskar, Advocate for the petitioner has contended that the order of the State Commission is not sustainable because State Commission has failed to appreciate that opposite party has not been able to obtain approval of the layout plan and without such approval, the order of the District Forum to register the sale deed cannot be effectively executed. It is further contended that the alternative relief sought to be incorporated by way of amendment in the prayer clause is extension of the main relief sought by the petitioners, as such, there is no question of the alternative relief having become time barred by limitation. Thus, it is just and equitable that in such a situation, the opposite party may be directed to refund the consideration amount received by it with interest and for this purpose only, the prayer clause is sought to be amended.

LEARNED Shri Bhagwati Prasad Padhy, Advocate on the contrary has argued in support of the impugned order. Learned counsel has contended that the petitioner did not care to amend the prayer clause earlier. Now at this late stage when the claim for seeking refund of money has become time barred, the amendment cannot be allowed.

ON careful consideration of record, I find merit in the contention of learned counsel for the petitioners. On perusal of the order of the District Forum, it is evident that opposite party has been directed to register the sale deed in respect of subject plots after receiving the consideration amount from the complainants. The registration obviously is dependent upon necessary sanction of the layout plan by the concerned authorities. Admittedly, necessary approval of lay out plan has not been received as yet. In such a situation, the order of the District Forum cannot be executed in true spirit. This does not mean that the opposite party can retain the consideration amount received by it despite of its failure to perform their part of contract. Therefore, the equity demands that amendment sought to be done by the petitioners be allowed so as to grant just and proper relief to the petitioners if they are able to prove their case. The State Commission has failed to appreciate that refusal of amendment would render the petitioners remediless despite of having succeeded in establishing deficiency in service on the part of the opposite party. Thus, impugned order cannot be sustained. As regards limitation, it is suffice to say that since alternative relief by way of amendment is being sought as an extension of the main relief, it cannot be said that the aforesaid relief has become time barred particularly when the complaint on the same cause of action was filed within limitation.

IN view of the discussion above, I allow the revision petition, set aside the impugned order and allow the proposed amendment sought by the petitioners in the prayer clause of their complaint. Revision petition is disposed of accordingly with no order as to costs.