Andhra Pradesh

Chittoor-II at triputi

CC/3/2017

Gali Kalavathi, W/o M.Kesavulu, S/o M.Venkatamuni - Complainant(s)

Versus

B.Sundara Raj, S/o Late B.Nagarajachar - Opp.Party(s)

M.Vani and P.Murali Krishna Reddy

08 Nov 2017

ORDER

Filing Date: 06.01.2017

Order Date:08.11.2017

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

WEDNESDAY THE EIGHTH DAY OF NOVEMBER, TWO THOUSAND AND SEVENTEEN

 

 

 

C.C.No.03/2017

 

 

Between

 

 

Gali Kalavathi,

W/o. M.Kesavulu,

Hindu, aged about 37 years,

D.No.30-194, Muddukrishnapuram,

Puttur,

Chittoor District.                                                                              … Complainant.

 

And

 

 

1.         B.Sundara Raj,

            S/o. late. B.Nagarajachar,

            Hindu, aged about 67 years,

            D.No.8-221, Brahmin Street,

            Chittoor.

 

2.         Duddi Gajendra Babu,

            Managing Partner,

            Hindu, aged about 66 years,

            M/s. Sree Medhinee Builders,

            D.No.19-9-29/5, Lakshmipuram,

            Tiruchanoor Road,

            Tirupati.                                                                                 …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 26.10.17 and upon perusing the complaint and other relevant material papers on record and on hearing M.Vani, counsel for complainant, and Sri.K.Nagesh, counsel for the opposite party No.2, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section –12(1) of C.P.Act 1986, by the complainant against the opposite parties for the following reliefs 1) to direct the opposite party No.2, to repay the advance sale consideration of Rs.6,00,000/- with interest at 24% p.a. from the date of agreement of sale dt:06.07.2015 till realization, alternatively, to direct the opposite party to receive the balance of sale consideration of Rs.8,50,000/- and execute a registered sale deed in terms of agreement pertaining to the complaint schedule property, 2) to direct the opposite party to pay Rs.50,000/- towards compensation for causing mental agony and hardship, 3) to direct the opposite party to pay the costs of the complaint and pass such other or further reliefs as the Forum deems fit and proper in the circumstances of the case.

            2. The brief averments of the complaint are:-  That the opposite party No.1 is the land owner, over which an apartment under the name of Medhinee Residency is constructed and opposite party No.2 is the builder / developer and also the GPA of opposite party No.1.

            3.  Opposite party No.1 entered into a development agreement / general power of attorney in favour of opposite party No.2, for the purpose of development and selling flats in the said Medhinee Residency, proposed to be constructed in the land of opposite party No.1, including the property mentioned in the complaint schedule.

            4.  That the opposite party No.2, offered to sell the schedule mentioned flat i.e. semi finished flat No.402 admeasuring 767.715 sq.yards equivalent to 1/15 undivided share of land mentioned in Schedule-A, situated in S.No.147/1, Avilala village accounts, Jaya Nagar, Sai Nagar Panchayat, Tirupati Rural, for which layout is approved by TUDA in Roc.No.2716/G1/1986 dt:12.10.1987. The schedule property is a semi constructed residential flat of super build-up area of 1000 sq.ft. including common area, for Rs.13,00,000/-, for which the complainant agreed to purchase the same and entered into agreement of sale on 06.07.2015, and paid Rs.3,00,000/- as advance of sale consideration on the same day to opposite party No.2. That opposite party No.2 expressed that there is a need of another amount of Rs.1,50,000/-, for providing extra amenities, on that the complainant paid Rs.3,00,000/- on the same day i.e. on 06.07.2015, and both the complainant and opposite party No.2 entered into a supplementary agreement dt:06.07.2015. Opposite party No.2 agreed to complete the construction of flat No.402 within 10 months i.e. by 06.05.2016, and the balance of sale consideration is to be paid by them. But opposite party No.2 did not complete the construction of semi finished flat of the complainant so far.

            5.  Whenever, the complainant questioned about non-completion of construction, opposite party No.2 used to give evasive reply. Therefore, a legal notice got issued by the complainant on 01.11.2016 and the same was served on both the opposite parties. Opposite party No.2 alone acknowledged the notice, whereas opposite party No.1 neither received the same nor returned. Opposite parties 1 and 2 neither complied with nor gave reply to the notice. Opposite party No.2, having received Rs.6,00,000/- failed to complete the work and also violated the terms and conditions of the agreement, which amounts to deficiency in service on the part of the opposite parties, which caused much mental agony to the complainant. Hence the complaint.

            6.  Opposite party No.1, remained exparte.

            7.  Opposite party No.2, filed the written version denying parawise allegations in the complaint and further contended that opposite party No.1 is the land owner, over which the apartment namely Medhinee Residency is constructed, and that opposite party No.2 is the builder / developer and also GPA of opposite party No.1. That opposite party No.1 entered into development agreement / general power of attorney with opposite party No.2 for the purpose of development and selling of flats in the said Medhinee Apartment and the schedule mentioned property is one of such flats. He further contended that complainant along with her husband M.Kesavulu and two mediators have approached opposite party No.2 and expressed her intention to purchase flat No.402 in the said apartment. On negotiations the sale price of the flat was fixed at Rs.2,600/- per sq.ft., the extent of flat No.402 is 1000 sq.ft., thus the cost of the flat comes to Rs.26,00,000/-, apart from Rs.1,50,000/- as additional amount for providing extra amenities mentioned in the agreement. Complainant agreed to purchase flat No.402 for Rs.27,50,000/- (Rs.26,00,000/- + Rs.1,50,000/-).

            8.  That opposite party No.2, asked the complainant to pay Rs.15,00,000/- as advance on the date of agreement, for which complainant agreed to pay Rs.10,00,000/- to opposite party No.2. Complainant got prepared two agreements i.e. agreement of sale and construction of semi finished flat No.402 with some terms and conditions along with a supplementary agreement both dt:06.07.2015, wherein those agreements advance amount of Rs.3,00,000/- is shown under each agreement, totaling Rs.6,00,000/-. Opposite party No.2 on verifying those agreements stated that unless Rs.15,00,000/- out of the total sale consideration is paid, he will not sell flat No.402 to the complainant. Then the complainant and her husband insisted opposite party No.2 like anything to receive Rs.6,00,000/- in total and execute two agreements. The opposite party No.2 refused to receive the meager amount of Rs.6,00,000/- and demanded to execute only one agreement instead of two agreements, due to which there was some altercation between the opposite party No.2 and complainant, then the complainant went away along with two agreements dt:06.07.2015 by using unhealthy comments on opposite party No.2, opposite party No.2 kept quiet.

            9.  That opposite party No.2 never sold flat No.402 to the complainant and he never received Rs.6,00,000/- i.e. Rs.3,00,000/- under each agreement, at any point of time. He never executed the above alleged two agreements dt:06.07.2015. The signatures of opposite party No.2 were forged on the agreements dt:06.07.2015 and filed false, frivolous, vexatious and untenable complaint for wrongful gain. Opposite party No.2 is ready to send the forged agreements to handwriting expert for his opinion. Complainant is not a consumer as defined under C.P.Act, as such this Forum has no jurisdiction to entertain the complaint. Opposite party No.2 is not in obligation to repay the amounts under the agreements or to pay any damages to the complainant, and prays the Forum to dismiss the complaint with exemplary costs.

            10.  Heard the counsel for complainant. Complainant filed her evidence affidavit as P.W.1 and got marked Exs.A1 to A4. Similarly, opposite party No.2 filed his evidence affidavit as R.W.1 and reported no documents. Arguments on behalf of opposite party No.2 were taken as heard, as no representation was there. Both the parties have filed their respective written arguments.

            11.  Now the points for consideration are:-

            (i).  Whether the agreement of sale and supplementary agreement

                  dt:06.07.2015 are forged?                

            (ii).  Whether there is deficiency in service on the part of opposite parties?

            (iii). Whether the complainant is entitled for refund of the amount paid in a

                   sum of Rs.6,00,000/- with interest as prayed for?

            (iv).  To what relief?

            12. Point No.(i):-  To answer this point, burden lies on the opposite party No.2. He contended that Exs.A1 and A2 were created by the complainant on forging his signatures, and he will take steps to prove that signatures said to have been signed by him as executant on Exs.A1 and A2 are forged one, and those disputed signatures will be sent to handwriting expert for his opinion, but no such steps were taken. The 2^nd opposite party specifically contending that his signatures on written version, his evidence affidavit and on written arguments are different from that of the signatures on Exs.A1 and A2 and they can be seen by naked eye. The written version as well as chief affidavit and written arguments were filed subsequent to his appearance through advocate. Opposite party No.2 specifically contended that he never executed Exs.A1 and A2 and he never received any amount much less Rs.6,00,000/- or Rs.3,00,000/- at any point of time. He further stated that opposite party No.1 is the land owner in which opposite party No.2 constructed an apartment in the name and style of Sree Medhinee Residency, as a builder / developer, and also as a GPA of opposite party No.1 entered into development agreement with opposite party No.1 on 14.09.2012, for the purpose of development and sale of flats in the said Medhinee Residency apartment, that was proposed to be constructed in the land of opposite party No.1. The schedule mentioned property is one among the said flats. 

            13.  That the complainant, who approached opposite party No.2 on her own accord, has chosen to purchase flat No.402. On negotiations with opposite party No.2, the price finally fixed at Rs.2600/- per sq.ft., as the schedule mentioned property is 1000 sq.ft., the price comes to Rs.26,00,000/-, apart from Rs.1,50,000/- as additional amount for providing extra fixtures mentioned in the agreement. Thus it comes to a total sum of Rs.27,50,000/-, out of which opposite party No.2 asked the complainant to pay an advance amount of Rs.15,00,000/- on the date of agreement, but the complainant agreed to pay only Rs.10,00,000/- towards advance. The complainant got prepared two agreements i.e. Exs.A1 and A2, out of which one is agreement for sale and construction of semi-finished flat No.402 with some terms and conditions and another one is supplementary agreement for extra amenities and construction of balance work. Both the agreements are dt:06.07.2015, wherein the said agreements an advance amount of Rs.3,00,000/- under each agreement totaling Rs.6,00,000/- is mentioned. On verifying the said agreements, opposite party No.2 stated to the complainant that unless Rs.15,00,000/- is paid out of total amount, he is not willing to sell the flat No.402, and he insisted to prepare one agreement instead of two agreements. The husband of complainant insisted like anything to receive Rs.6,00,000/-, for which opposite party No.2 refused to receive the said meager amount of Rs.6,00,000/-. On that some altercation took place between the parties. Thereupon, complainant and her husband made some unhealthy comments on opposite party No.2 and went away, except that nothing was took place. However, he never sold flat No.402 to the complainant, and his signatures on Exs.A1 and A2 were forged and got filed the complaint for unlawful gain.

            14.  When comparing the admitted signatures of opposite party No.2 on the  vakalat given to his advocate on 09.02.2017, it is quite similar to that of the signatures on Exs.A1 and A2. Subsequently, while signing in his written version, evidence affidavit, written arguments etc., opposite party No.2 changed his signatures and the word “Babu” is added clearly. Therefore, the plea of forgery cannot be accepted in view of his admitted signature on vakalat, and Exs.A1 and A2 appears to be true and genuine. Accordingly, this point is answered.

            15.  Point No.(ii):-  Before answering this point, it is pertinent to discuss the nature of Exs.A1 and A2. Ex.A1 is titled as “Agreement for sale and construction of semi finished flat No.402 at Medhinee Residency, Tirupati” dt:06.07.2015, in which it was mentioned that B.Sundara Raj is the land owner / principal executed the registered development agreement / GPA as on 14.09.2012, in favour of M/s. Sree Medhinee Builders, a registered firm represented by its managing partner Mr.D.Gajendra Babu (opposite party No.2) Developer / Agent / First Party. This agreement of sale is executed by opposite party No.2 in favour of Gali Kalavathi, complainant herein on 06.07.2015 in respect of flat No.402, a semi finished flat in Medhinee Residency for a total cost of Rs.13,00,000/-, which was mentioned at page.2, para.2 of Ex.A1 that “purchasing owner agrees to pay a total sum of Rs.13,00,000/- (Rupees thirteen lakhs only) to the builders towards the cost of the extra provision, fixtures, fitting, etc. including the service charges rendered by the builder, the purchaser today has paid a sum of the Rs.3,00,000/- (Rupees three lakhs only) as an advance by way of cash, the purchaser shall pay the remaining balance to the builder to the stipulated period”.  In Ex.A1 at para.3 it was further stated that “builder undertakes to complete the finishing work as per the specifications annexed herewith within 10 (Ten) months from the date of this agreement”. Though these two paragraphs 2 and 3 say in such manner, no time is stipulated for payment of balance of amount. Similarly, no annexure was annexed to Ex.A1. Another clause shows that incase the purchaser failed to pay the balance amount to the builder within the stipulated time, the balance amount shall carry interest at 24% p.a.

            16.  Now coming to Ex.A2, it is titled as “supplementary agreement for extra amenities and construction of balance work” dt:06.07.2015, page.2 of Ex.A2 runs as follows:

 

“Now this agreement of providing extra amenities construction witnessed as follows: 1) The promoters hereby agreed to provide extra amenities and to construct the residential flat in the proposed building over the “Schedule-A” mentioned property for consideration of Rs.14,50,000/-, 2) And the second party purchaser, has paid an amount of Rs.3,00,000/- (Rupees three lakhs only) as advance to the first party by way of cash. The second party agreed to pay the balance consideration of Rs.11,50,000/- (Rupees eleven lakhs fifty thousand only) to be paid by the second party / purchaser to the promoter the following amounts to the first party, 3) (a). An amount of Rs.7,50,000/- (Rupees seven lakhs fifty thousand only) at the time of teak door and window frames fixing at the time of flooring. b) An amount of Rs.3,50,000/- (Rupees three lakhs fifty thousand only) at the time of painting work and electricity fixing. C) The remaining amount of Rs.50,000/- (Rupees fifty thousand only) at the time of possession (before finishing of apartment work).

               

            So, the total amount under Ex.A2 is Rs.14,50,000/- and under Ex.A1 is Rs.13,00,000/-. Works to be carried out by the 2^nd opposite party were shown in Schedule-C of Ex.A1. Similarly Schedule-C of Ex.A2 also shown the works to be carried out. Both the works shown in Schedule-C of Exs.A1 and A2 are one and the same. There is some difference of work in respect of water supply mentioned in Schedule-C of Exs.A1 and A2. In Ex.A1 water supply is referred as “24 hours water supply”, whereas in Ex.A2 water supply is referred as “24 hours water supply telugu ganga, panchayath water connection will be provided”. The remaining works to be carried out are one and the same in both the agreements Exs.A1 and A2. So, it is clear that both the agreements Exs.A1 and A2 are only in respect of providing extra amenities and for completion of the balance of works in the semi finished flat No.402. The difference amount of Rs.1,50,000/- might have charged for the supply of telugu ganga water, panchayath water connection, as shown in Schedule-C of Ex.A2. So, there is no agreement of sale of flat No.402 separately. Since a sum of Rs.13,00,000/- was mentioned in Ex.A1, after completion of drafting of Ex.A1, perhaps additional amount of Rs.1,50,000/- was agreed upon by both the parties for providing extra amenities such as 24 hours water supply telugu ganga, panchayath water connection, that is why Ex.A2 might have came into existence. If these two agreements were executed on different dates, at different time, and for different purpose, payment of Rs.3,00,000/- under each agreement would have been mentioned separately in these two agreements. It was mentioned that only Rs.3,00,000/- was paid by the complainant to opposite party No.2 by way of cash in both Exs.A1 and A2. Therefore, these two agreements, in our opinion, are for one and the same purpose i.e. in respect of providing extra amenities and for completion of semi finished flat No.402. As per Schedule-A of Exs.A1 and A2 the property situated in S.No.147/1 (Part) in Jaya Nagar area of Sai Nagar Panchayath, No.49 Avilala Village Accounts, Tirupati Rural Mandal, Chittoor District, and the said land was approved by TUDA in Roc.No.2716/G1/1986 dt:12.10.1987. These agreements under Exs.A1 and A2 came into existence on 06.07.2015. The extent of flat No.402 in Medhinee Residency as shown in     Schedule-C is 1000 sq.ft., the amounts referred under Exs.A1 and A2 can be considered only as Rs.14,50,000/-, that was fixed for providing extra amenities as shown in Exs.A1 and A2, but not for total cost of the flat, in this fast growing city of Tirupati, Chittoor District.

            17.  If these two agreements are considered to be different for cost of the flat as well as for extra amenities, it’s worth will be Rs.27,50,000/-, it is not the case of the complainant, but it was mentioned in the written version of opposite party No.2. When such is the case, the supplementary agreement ought not have executed on one and the same day and on which Ex.A1 is executed. Therefore, we are of the opinion that the complainant paid only Rs.3,00,000/- on 06.07.2015 to opposite party No.2 as advance amount to carry out extra amenities and the balance of work in the semi finished flat No.402 in Medhinee Apartments.

            18.  The opposite party No.2, having executed Exs.A1 and A2, he ought to have confined to the recitals of  Exs.A1 and A2 and also ought to have completed the balance work in the semi finished flat No.402. If the complainant has purchased flat No.402, then there may not be any agreement of sale, but there should be a registered sale deed in respect of purchase of semi finished flat No.402. The opposite party No.2 is deemed to have been collected Rs.3,00,000/- only from the complainant towards advance amount for completion of balance of work in the semi finished flat and subsequently taken a different view. In this regard, the learned counsel for the complainant while advancing arguments specifically contended that since the rates of flats were increased, opposite party No.2 deviated from the terms and conditions of Exs.A1 and A2 and demanding payment of Rs.27,50,000/- instead of Rs.13,00,000/- or Rs.14,50,000/-. This version appears to be unsustainable. In this regard, both the parties have not approached the Forum with clean hands and they are sailing in different boats with different pleas bi-passing the recitals of Exs.A1 and A2.

            19.  Since the opposite party No.2 failed to complete the balance of works in the semi finished flat as per Schedule–C of Exs.A1 and A2 and disputing his own signatures in Exs.A1 and A2, it can be safely held that there is deficiency in service on the part of the opposite party No.2. Accordingly this point is answered.

            20. Point No.(iii):-  The complainant’s counsel fairly held that the complainant is not in a position to pay such a huge amount of Rs.27,50,000/- as demanded by opposite party No.2 and prayed for refund of the amount paid. As discussed above, since it appears that the complainant has paid Rs.3,00,000/- under Exs.A1 and A2, that amount shall be refunded to the complainant, but not Rs.6,00,000/- as pleaded by the complainant. Thus, complainant is entitled for refund of Rs.3,00,000/- with interest at 9% p.a. from 06.07.2015 till realization, and also for compensation. Accordingly this point is answered.

            21.  Point No.(iv):-  In view of our holding on points 1 to 3, we are of the opinion that the complainant is entitled for Rs.3,00,000/- with interest at 9% p.a. from 06.07.2015 till realization, and Rs.25,000/- towards compensation for deficiency in service on the part of the opposite party No2. and for causing mental agony to the complainant, and the complaint is to be allowed accordingly.

            In the result, complaint is partly allowed directing the opposite party No.2, to refund a sum of Rs.3,00,000/- (Rupees three lakhs only) to the complainant with interest at 9% p.a. from 06.07.2015, till realization. Opposite party No.2 is also directed to pay Rs.25,000/- (Rupees twenty five thousand only) towards compensation for deficiency in service on the part of opposite party No.2 and for causing mental agony to the complainant. Opposite party No.2 also directed to pay Rs.2,000/- (Rupees two thousand only) towards costs of the complaint. Opposite party No.2 further directed to comply with the orders within six (6) weeks from the date of receipt of copy of this order, failing which the compensation amount of Rs.25,000/- shall also carry interest at 9% p.a. from the date this order, till realization.

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 8^th day of November, 2017.

 

       Sd/-                                                                                                                      Sd/-                                      

Lady Member                                                                                                      President

 

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: Gali Kalavathi (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: Duddi Gajendra Babu (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Original copy of Agreement of Sale executed by the opposite parties in favour of the complainant. Dt: 06.07.2015.
	Original copy of Supplementary Agreement for extra amenities executed by the opposite parties in favour of the complainant. Dt: 06.07.2015.
	Office copy of the Legal Notice issued by the complainant to the opposite party with postal receipt. Dt: 01.11.2016.
	Acknowledgement Card. Dt: 03.11.2016.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

-NIL-

      

                                                                                                                                    Sd/-

                                                                                                                      President

     // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

 

  

   Copies to:- 1.  The complainant.

                        2.  The opposite parties.