Complaint is filed on 30-07-2009
Compliant disposed on 25-11-2009
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM::AT:: KARIMNAGAR
PRESENT: HON’BLE S.M. RAFEE, B.Sc., B.L.,CHAIRMAN, L.R.A.T.-cum-III ADDL.DIST & SESSIONS JUDGE &
PRESIDENT (F.A.C.)
HON’BLE SMT. E. LAXMI, M.A.LL.B., MEMBER
WEDNESDAY, THE TWENTYFIVE DAY OF NOVEMBER,TWO THOUSAND NINE
CONSUMER COMPLAINT NO. 117 OF 2009
Between:
Velma Sudhakar Rao, S/o. V. Rama Rao, Age 61 years, Occ: Retired Dy. Manager in NTPC R/o. H.No.5-1-154, Krishnanagar, NTPC, Jyothinagar – 505 215, district Karimnagar.
…Complainant
AND
- M/s. M-Cube Associates having its registered office at 6-1-298/3B, Padmaraonagar, Secunderabad rep. by its Managing partner K.V.K. Murthy.
- K.V.K. Murthy, S/o. K. Raja Rao, Age 44 years, Occ: Business/managing partner of M/s. M Cube Associates R/o. H.No.2-220/B13(1-20) lane behind Ahobilmut, Hyderabad.
…Opposite Parties
This complaint is coming up before us for hearing on 18-11-2009, in the presence of Sri. M. Mahender, Advocate for the complainant and opposite party no.1 dismissed. The opposite Party no.2 remained exparte, and on perusing the material papers on record, and having stood over for consideration till this day, the Forum passed the following
::ORDER::
1. This complaint is filed under Section 12 of C.P. Act, 1986 seeking direction to the opposite parties to refund Rs.6,25,000/- with agreed interest and to pay damages, compensation and costs.
2. The brief averments of the complaint are that the opposite parties are doing Real Estate Business. The opposite party no.2 approached the complainant on 5.12.2001 at NTPC, Ramagundam requesting him to purchase flat bearing no.205. Accordingly the complainant agreed to purchase the same and paid Rs.5,10,000/- on 8.12.2001 to the opposite party no.2 who has executed an agreement of sale acknowledging receipt of the same and promised to execute registered Sale Deed for valid transfer of the property. After some period the complainant came to know that the opposite party no.2 has transferred flat no.205 to some other person by executing registered Sale Deed. When the complainant demanded for transfer of flat the opposite party no.2 settled the matter and executed a Memorandum of Understanding on 1.2.2004 agreeing to refund Rs.6,25,000/- within a period of 3 months 15 days. He has also issued a cheque for the said amount. When the complainant presented the cheque for collection of the amount on three occasions it was dishonoured by the Banker of opposite party no.2 on account of Insufficient Funds. The complainant got issued a Legal Notice demanding opposite party no.2 for payment of the amount covered by the cheque, but he failed to pay. The complainant initiated criminal prosecution under NI Act. The opposite party no.2 was convicted by the Court of JMFC, Godavarikhani in C.C.No.186/2004 for the offence under Sec 138 of NI Act sentencing him to undergo imprisonment for three months and to pay fine of Rs.6,25,000/-. The appeal filed by opposite party no.2 in criminal Appeal No.81/2007 was also dismissed by the Court of Hon’ble III Addl. Sessions Judge at Karimnagar confirming the judgment of the Trial Court. Inspite of it the opposite party no.2 failed to pay the agreed amount of Rs.6,25,000/-. Non-payment of the amount constitutes deficiency of service, hence the complainant prayed for an order for payment of said amount with compensation, damages, interest and costs.
3. The CC against opposite party no.1 is closed on 28.10.2009. The opposite party no.2 remained exparte and did not choose to file any counter.
4. The complainant filed his Proof Affidavit reiterating the averments made in the complaint and filed the documents which are marked as Ex.A1 to A7. Ex.A1 is the copy of judgment in Criminal Appeal No.81/2007 on the file of the Hon’ble III Addl. Sessions Judge at Karimnagar, Dt: 30.6.2009. Ex.A2 is the Xerox copy of Cheque No.995741 issued by opposite party no.2 Dt: 15.5.2004. Ex.A3 is the copy of Memo issued by SBI Lalaguda Branch Dt: 9.9.2004. Ex.A4 is the copy of Memo issued by SBI Jyothinagar Branch Dt: 19.9.2004. Ex.A5 is the copy of Legal Notice issued by Sri B.Amarendar Advocate, Godavarikhani Dt: 8.10.2004. Ex.A6 is the copy of complaint in CC No.186/2005 on the file of JMFC at Godavarikhani Dt: 6.12.2004. Ex.A7 is the copy of judgment in CC. 186/2005 on the file at JMFC, Godavarikhani Dt: 10.7.2008.
5. Heard the complainant.
6. The points for consideration are:
1. Whether there is any deficiency of service on the part of opposite party?
2. If so, to what relief the complainant is entitled?
7. The case of the complainant is that the opposite party no.2 sold flat no.205 by receiving Rs.5,10,000/- from him on 8.12.2001 and executed an agreement of sale. But the opposite party no.2 transferred the said flat to some other person without returning the amount paid by the complainant. When the complainant demanded for transfer of the flat is settled the same by executing the Memorandum of Understanding on 1.2.2004 undertaking to refund Rs.6,25,000/- within a period of three months 15 days and issued a cheque under Ex.A2. Subsequently when the complainant presented the cheque it was dishonoured on account of Insufficient Funds and returned through memos under Ex.A3 and Ex.A4. Inspite of service of Legal Notice under Ex.A5 Dt: 7.10.2004 the opposite party no.2 failed to pay the amount. In the criminal case filed by him opposite party no.2 was convicted and sentenced to undergo imprisonment for three months and to pay Rs.6,25,000/- as damaged and the same was confirmed by Appellate Court. The judgments are under Ex.A1 and Ex.A7. Even after service of summons in this case the opposite party no.2 failed to pay the agreed amount of Rs.6,25,000/-.
8. A perusal of documents under Ex.A1 to A7 clearly established that the opposite party no.2 sold flat no.205 by receiving Rs.5,10,000/- from the complainant but failed to transfer the same in his name. When demanded, the opposite party no.2 agreed to refund Rs.6,25,000/- but he failed to pay the same. Having received amount promising to sell flat, the opposite party no.2 is under an obligation to fulfill the promise and failure to do so, constitutes deficiency of service. To recover the amount paid by him the complainant had to go round the Courts putting him to lot of expenditure and mental agony for which the opposite party no.2 is bound to pay compensation of Rs.25,000/- along with costs of the proceedings. By filing documents under Ex.A1 to A7 the complainant established his case for Rs.6,25,000/- and Rs.10,000/- towards compensation.
9. From the foregoing reasons we hold, that there is deficiency of service on the part of opposite party no.2 in refunding the amount to the complainant, as such opposite party no.2 is liable to pay Rs.6,25,000/- with compensation of Rs.10,000/- and Rs.1,000/- towards costs of the proceedings.
10. In the result the complaint is partly allowed directing the opposite party no.2 to pay Rs.6,25,000/- together with Rs.10,000/- towards compensation and Rs.1,000/- towards costs of the complaint within one month from the date of receipt of this order.
Typed to my dictation by Stenographer, after correction the orders pronounced by us in the open Court this the 25th day of November, 2009.
Sd/- Sd/-
MEMBER PRESIDENT
NO ORAL EVIDENCE HAS BEEN ADDUCED ON EITHER SIDEFOR COMPLAINANT:
Ex.A1 is the copy of judgment in Criminal Appeal No.81/2007 on the file of the Hon’ble III Addl. Sessions Judge at Karimnagar, Dt: 30.6.2009.
Ex.A2 is the Xerox copy of Cheque No.995741 issued by opposite party no.2 Dt: 15.5.2004.
Ex.A3 is the copy of Memo issued by SBI Lalaguda Branch Dt: 9.9.2004.
Ex.A4 is the copy of Memo issued by SBI Jyothinagar Branch Dt: 19.9.2004.
Ex.A5 is the copy of Legal Notice issued by Sri B.Amarendar Advocate, Godavarikhani Dt: 8.10.2004.
Ex.A6 is the copy of complaint in CC No.186/2005 on the file of JMFC at Godavarikhani Dt: 6.12.2004.
Ex.A7 is the copy of judgment in CC. 186/2005 on the file at JMFC, Godavarikhani Dt: 10.7.2008.
FOR OPPOSITE PARTIES: -NIL-
Sd/- Sd/-
MEMBER PRESIDENT
