IMPORTANT POINT
Opposite party cannot retain consideration amount received by it despite of its failure to perform their part of contract.

Ajit Bharihoke, Presiding Member—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.

2. 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.”

3. 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.

4. 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.

5. 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.”

6. 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.

7. 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