Andhra Pradesh

Visakhapatnam-II

CC/450/2011

Locherla Ramanaji - Complainant(s)

Versus

Balivada Prasada Rao - Opp.Party(s)

N. Sai Krishna

11 Nov 2014

ORDER

                                              Date of Registration of the Complaint:23.11.2011

                                                                                                Date of Order:11-11-2014

BEFORE THE DISTRICT CONSUMERS FORUM-II AT

                             VISAKHAPATNAM

 

P  r  e  s  e  n  t:

1.  Sri H. Ananda Rao, M.A., L.L.B.,

     President           

2. Smt K. Saroja, M.A. B.L.,

     Lady Member 

                                3. Sri C.V. Rao, M.A., B.L.,

                                     Male Member

 

                          Tuesday, the 11^th day of November, 2014.

                                 CONSUMER CASE No.450/2011

Between:-

Sri Locherla Ramanaji, S/o late Chakrapani,

Hindu, aged 56 years, residing at D.No.6-289,

Goutham Nagar, Vepagunta (P.O),

Visakhapatnam.

….. Complainant

And:-

Sri Balivada Prasada Rao, S/o late Satyanarayana,

Hindu, aged 55 years, residing at Flat No.601,

S.L. Towers, Maharanipeta, Visakhapatnam.

                                                                                         …  Opposite Party      

                     

          This case coming on 03.11.2014 for final hearing before us in the presence of Sri N. Sai Krishna, Advocate for the Complainant and Sri N.S. Gangadharam, Advocate for the Opposite Party and having stood over till this date for consideration, this Forum made the following:

 

                                                ORDER

          (As per Sri. H. Ananda Rao, Honourable President, on behalf of the Bench)

 

1.       This consumer complaint is filed by the Complainant against the Opposite Party directing him a) to pay an amount of Rs.5,00,000/- together with interest @ 18% p.a., b) to pay Rs.50,000/- towards compensation and c) to pay Rs.20,000/-  towards costs of the case.

 

 2       The case of the Complainant in brief is that on offering by the Opposite Party in respect of constructing of group house with 5 flats at Pothinamallayyapalem, Madhurawada, Visakhapatnam, and the Opposite Party offered to sell two bed room flats measuring 850 Sft. for Rs.17,00,000/- for which the Complainant agreed to purchase and on request of the Opposite Party, he paid Rs.5,00,000/- on 18.11.2010, as advance by way of cash for Rs.2,00,000/- and by way of cheque for Rs.3,00,000/- and the Opposite Party  has issued a receipt was to that effect.   Inspite of requests for entering into a written agreement, the Opposite Party did not execute and he failed to start construction of the above said group house and whenever, he asked him with regard to construction, he used to tell cock and bull stories.   Ultimately, he got issued a legal notice but no payment was made which resulted mental agony.   Hence, this Complaint.  

 

3.       The case of the Opposite Party denying all the material averments is that this complaint is filed to make wrongful gain and thereby cause wrongful loss to the Opposite Party and he further stated that there is no relationship between him and that the Complainant and he did not pay any amount to him, much less the alleged amount of Rs.5,00,000/- towards purchase of the alleged flat and there was no proof for the same.    It is also his case that the amount of Rs.3,00,000/- paid by the Complainant to him by way of cheque was not belongs to the sale transaction and it is in respect of another transaction held between the Opposite Party and the Complainant.     

 

4.       To prove the case of the Complainant, the Complainant himself filed his evidence affidavit and got marked Exs.A1 to A3.     On the other hand, no documents were marked on behalf of the Opposite Party, so also his evidence affidavit.

 

5.       The Complainant filed written arguments.

 

6.       Heard arguments of the Complainant.

 

7.       Now the points that arise for determination are:-

Whether there is any deficiency in service on the part of the Opposite   Party and the Complainant is entitled for the reliefs af advance amount with interest, compensation and costs.

 

 

8.       In order to prove the case of the Complainant, he filed has sworn affidavit to the relevant contents of the complaint.    His evidence is substantiated by Ex.A1 receipt dated 18.11.2010 stated to have been issued by the Opposite Party in his favour for Rs.5,00,000/- i.e., Rs.2,00,000/- and en-cash of Rs.3,00,000/- by way of cheque.   It appears as seen from the counter averments, though the Opposite Party denied his relationship with the Complainant so also payment towards the alleged flat, he admitted that there was a money transaction in between himself and the Complainant  paid Rs.3,00,000/- to him  by way of a cheque.   In view of this admission now it is to be seen.  Whether the Opposite Party received Rs.3,00,000/- for the proposed construction of the group house, towards advance of flat.  

 

9.       It is the case of the Complainant, he paid Rs.5,00,000/- on 18.11.2010 towards advance for flat i.e., Rs.2,00,000/- by way of cash and Rs.3,00,000/- by way of cheque and by way of receipt.   Therefore, it is relevant for me to verify Ex.A1 which is the receipt clearly goes to show “received with thanks from L. Ramanaji of Rs.5,00,000/- en-cash and by cheque No.664597 dated 18.11.2010 drawn on Andhra Bank.   However, at relevant coloum of receipt, it was noted Rs.5,00,000/-, it further appears seen from Ex.A1 there was a signature on revenue stamp of the Opposite Party.   Perusal of the signature of Ex.A1 and the signature on Vakalat and counter, it appears, they are one and the same on scrutiny of them, we are of the considered opinion, the pen movement strokes are one and the same and held that Ex.A1 was duly issued by the Opposite Party. 

 

10.     It is also relevant for him to note as seen from Ex.A1 originally it was issued for Rs.3,00,000/-.   It further appears as seen from the figures of Rs.5,00,000/- originally three was corrected as five without putting any initial under thereto.   It further appears as seen from Ex.A1 originally, it was issued for Rs.3,00,000/- but subsequently, the figures are noted as Rs.5,00,000/- only.  on a careful scrutiny  of Ex.A1.   We are of the considered view that originally the complaint issued a cheque for Rs.3,00,000/- only but for the reasons best known to him, it is corrected as Rs.5,00,000/- by way of over writing.   Having regard to all these facts and circumstances, we are of the considered opinion, that the Complainant gave an amount of Rs.3,00,000/- only to the Opposite Party towards advance of the flat but not Rs.5,00,000/- as contended by him.   We also held that having received amount for allotment of flat, the Opposite Party failed to deliver the same which comes under clearly deficiency of service.  Therefore, the Complainant is entitled to receive an amount of Rs.3,00,000/- only from the Opposite Party with interest thereon.

 

 11.    Now the question that comes up for consideration, at this stage of our discussion what is the rate of interest for which the Complainant is entitled.   The rate of interest claimed by the Complainant is 18% p.a.   This rate of interest claimed by the Complainant appears to be excessive, of course, it is a fact that the transaction covered by Ex.A1 is a commercial in nature, but that does not and cannot mean to say that the Complainant is a licenced to claim interest @ 18% p.a. on his advance amount.    But at the same time, it is imperative on our part to award a reasonable interest.    Having regard to all these facts and circumstances, we sincerely feel having considered the case on hand awarding of interest @ 9% p.a. would better serve the ends of justice.    Consequently, we proposed to fix the rate in question @ 9% p.a..  Accordingly interest is ordered.

 

12.     Whether the Complainant is entitled for compensation of Rs.50,000/- is to be considered.    It appears as seen from the evidence of PW-1 and Ex.A2 notice got issued by him, that the Complainant was compelled to approach the Opposite Party and therefore experienced a lot of physical strain besides mental agony and financial loss, it is an un-dispute the fact that the Opposite Party did not refund the amount subscribed by the Complainant.     Naturally that made have put the Complainant to suffer the some mental agony besides physical stress and strain.      In this view of the matter, we sincerely feel that it is a fit case to award compensation.   But that does not and cannot mean to say that the Complainant claim for compensation is acceptable.   Having regard to all these facts and circumstances, we are of the considered opinion, award and compensation of Rs.30,000/- would serve the ends of justice.   We therefore, proposed to award compensation of Rs.30,000/-, in the circumstances of the case on hand.   Accordingly this point is answered.

 

13.     Before parting our discussion, it is incumbent and imperative on our part to consider the costs of litigation.    The Complainant ought not have to approach this Forum had his claim for refund of the sum of Rs.3,00,000/- or reliefs sought have been honored by the Opposite Party, within a reasonable time and in view of the matter, the Complainant’s claim for costs deserves to be allowed.   In our considered and unanimous opinion awarding a sum of Rs. 5,000/- towards costs would, appropriate and reasonable.  Accordingly costs are awarded.

 

14.     In the result, this Complaint is allowed in part directing the Opposite Party: a) to pay an amount of Rs.3,00,000/- (Rupees three lakhs only) with interest @ 9% p.a. from 18.11.2010 to till the date of realization, and to pay b) a compensation of Rs.30,000/- (Rupees thirty thousand only) and c) Costs of Rs.5,000/- (Rupees five thousand only) to the Complainant.  Time for compliance, one month.    Advocate fee is fixed at Rs.2,500/- (Rupees two thousand and five hundred only).   

 

     Dictated to the Steno, transcribed by him, corrected and pronounced by us in the Open Forum, this the 11^th day of November, 2014.

Sd/-                                          Sd/-                                                   Sd/-

Male Member                       Lady Member                                     President

 

 

                             APPENDIX OF EVIDENCE

For the Complainant:-

NO.	DATE	DESCRIPTIONOFTHEDOCUMENTS	REMARKS
Ex.A1	18.11.2010	Cash Receipt for an amount of Rs.5,00,000/- issued by the OP in favour of the Complainant.	Original.
Ex.A2	03.08.2011	Lawyer’s Notice issued by the Complainant’s counsel to OP	Office copy
Ex.A3	11.08.2011	Acknowledgement card	Original

For the Opposite Party:-                                             

                                      -Nil- 

Sd/-                                          Sd/-                                                   Sd/-

Male Member                         Lady Member                                   President