Andhra Pradesh

Chittoor-II at triputi

CC/70/2012

C.B.Abhishiktha Reddy, D/o. C.Bala Chandra Reddy - Complainant(s)

Versus

Brunda Housing Pvt., Ltd., by its Managing Director, K.Subramanyam - Opp.Party(s)

G.Ramaiah Pillai

08 May 2015

ORDER

                                                                      Date of First Filing:-16-08-2012

                                                                      Date of First Disposal:-22.01.2013

                                                                      Matter remanded and case Restored

                                                                                                    On:-20.01.2015

                                                                       Date of Disposal:-08-05-2015.

 

     BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

                                                 CHITTOOR AT TIRUPATI.

PRESENT: - SRI.M.RAMAKRISHNAIAH, PRESIDENT.

                                                 SMT.T.ANITHA, MEMBER

       FRIDAY, THE EIGHTH DAY OF MAY, TWO THOUSAND AND FIFTEEN.

C.C.No.70/2012

Between

C.B. Abhishiktha Reddy,

D/o. C.Balachandra Reddy,

Hindu, Aged 20 years, 1-532,

Eswara Temple Street,

Kattamanchi, Chittoor.                                                                             …. Complainant

 

And                                                      

Brunda Housing Pvt., Ltd., by its Managing

Director, K.Subramanyam, S/o. late K. Subba

Rao, presently At Manyam properties and 

Wealth Management Systems Ltd.,

Surya Heights, 1^st Floor, Visalandra Road,

Vijayawada-2, Krishna District.

(Amended as per orders in IA.No.13/2015,

Dt: 08.04.2015).                                                                                    …. Opposite party

 

            This complaint coming on before us for final hearing on 28.04.2015 and upon perusing the complaint, written version and written arguments of the complainant and opposite parties and other relevant material papers on record and on hearing of Sri.G.Ramaiah Pillai, counsel for the complainant, and Sri. Venkat S.P.M. counsel for the opposite party having stood over till this day for consideration, the Forum made the following.

ORDER

DELIVERED BY SMT. T. ANITHA, MEMBER

ON BEHALF OF THE BENCH

           This complaint is filed under Sections 12 & 14 of Consumer Protection Act 1986 by the complainant for refund of amount which was deposited to purchase a plot from opposite parties.

           2. The brief facts of the case are: The opposite party made an advertisement to the effect that he started a scheme for the house plots in survey No. 477/P 476 & 476/2P and each plot consisting of 50 ankanams in Tiruchanur Panchayat. The father of the complainant agreed to join in the scheme for the benefit of the complainant who is minor by the date of joining in the scheme on 29.8.1996 and obtained a pass book no.471 and paid an amount as per the installments to a tune of Rs.38,000/- (Thirty eight thousands only)and in addition to that he paid developmental charges of Rs.9,600/- (Nine thousand six hundred only)on 16.8.1999 and he paid a total amount of Rs.47,600/-(Forty seven thousand six hundred only). And the complainant’s father was repeatedly making demands to the opposite party for getting plots approved and to execute register sale deed. But the opposite party who was floated number of ventures, suddenly disappeared in Tirupati the business place of him and the father of the complainant making efforts to trace out the address of the opposite party and finally he trace out the address of the opposite party and he sent notice on 07.05.2012 requesting for registration of plot or to refund the amount. But it was returned with an endorsement as insufficient address. And again the father of the complainant made enquiry and trace out the present address and sent a legal notice on 20.07.2012, it was returned as unclaimed. Meanwhile the complainant became a major and she filed this complaint praying this Forum to direct the opposite parties to pay sum of Rs.47,600/-(Forty seven thousand six hundred only) with interest @ 24% per annum from the date of payment i.e. 16.08.1999 and to pay Rs.2,00,000/-(Two lakhs only) towards compensation for causing mental agony and to pay cost of Rs.2,000/-(Two thousand rupees only) towards litigation expenses.

              3. The opposite parties came in to appearance and filed their written version by denying the contention of the complainant and stated that this Forum has no jurisdiction to entertain the present case and also this complaint is bad for non-joinder of necessary parties and also the present complaint is barred by limitation.    

              4.  The opposite party further contended that it is a company incorporated under the Indian Companies Act, 1956 and long back represented by sri.K. Subramanyam as a director who retired from the said company and hence he is not personally liable to the claim raised by the complainant. The opposite party  further contended that as per  the terms and conditions mentioned in the pass book filed by the complainant clearly manifest that payments have to be made as per given scheme and schedule  without fail. And also payments made without obtaining companies original receipts will not be valid and that the company is not responsible for such payments. But in this particular case except filing of the pass book and one receipt evidencing payment of 9,600/-(Nine thousand six hundred only) which was also not reflected in the pass book and fail to produce the original receipts obtained by her from the company signed by concerned persons for the remaining amount which gives rise to the suspicion that the entries shown in the pass book as well as receipts are fictitious, fabricated and concocted for the purpose of filing the present complaint. The opposite party further contended that due to the false and baseless rumors spread by rival parties of the company during the period mentioned by the complainant due to which the entire records together with books, ledgers etc were seized by the police. Hence the employees of the company were also scattered here and there for their livelihood. Taking advantage of the above situation certain persons started filing false and baseless claims, as if they have paid the entire amounts without producing necessary documents evidencing   payments made by them. Hence the opposite party is not liable to pay for such claim. Since the payments were fictitious and cannot be proved before a competent civil court and she kept quite all these years and suddenly after a long gap she approached this Honourable Forum. Hence the complainant cannot be termed as a   ‘consumer’ as defined under section 2(1) of the C.P.Act.  

         5. The opposite party further stated that the claim made by the complainant is exorbitant without any documentary evidence and hence they are not liable to pay any amount since the opposite party is dis-associated with the company long back. Hence the complaint is liable to be dismissed against the opposite party.

       6. Both parties filed their evidence on affidavits, on behalf of the complainant Ex: A1 to A8 were marked and no documents were marked on behalf of the opposite party. Both parties filed their written arguments and heard oral arguments.

         On the basis of the pleadings, affidavits, and documents filed by both parties the points for consideration are:

              (i)     Whether the complaint is barred by limitation?

             (ii)     Whether the complaint is bad for non-joinder of necessary and proper       

                        Parties?

             (iii)     Whether there is any deficiency of service on part of the opposite party?

              (iv)    Whether the complainant is entitled to the reliefs as prayed for?

              (v)      To what result?

          

            6. Point:- (i). In the present case the father of the complainant obtained a pass book in the name of the complainant who is a minor by the date of joining in the scheme of the opposite party and obtained a pass book bearing no.471 dated 29.08.1996 and he paid   first installment amount Rs.700/- and by the date of 17.10.1998 he paid total cost of the plot Rs.38,000/-(Thirty eight thousands only), and again on 16.08.1999 he paid Rs.9,600/- towards development charges, in total the opposite party collected 47,600/-(Forty seven thousand six hundred only). After receiving the total cost of the plot the opposite party failed to register the plot and abruptly closed the office in Tirupati. After several efforts made by the father of the complainant to trace out the address of the opposite party finally he traced out the present address and the complainant after attaining the majority she issued legal notice on 7.5.2012 to the opposite party to discharge his obligation to register the plot or refund the amount which he has not done. Therefore the cause of action is continuous till the plot is registered or till the refund of amount deposited by the complainant.   In support of her version, the learned counsel for the complainant relied on a decision reported in I (2002) CPJ 317 – Housing Commissioner U.P   Housing & Development Board &  Anr.  Vs. Purushottamkumar, in which their lordships held in respect of limitation that cause of action continued till allotment or refund of deposit amount, complaint not time barred. In the present case also the opposite party till today failed to refund the amount paid by the complainant or to register the plot in the name of the complainant as agreed by the opposite party. Hence it would be a continuous process untill the plot is registered by way of executing registered sale deed by the opposite party. In our view, this complaint is very much within time and the complaint is not barred by limitation. Accordingly this point is answered. 

          7. Point:- (ii) To  answer this point , we are of the view that  the main contention of the complainant is that the opposite party who collected the amount from the complainant for registering the plot and issued pass book under Ex.A1 and collected total amount of Rs.38,000/- (Thirty eight thousands only) towards plot and collected 9,600/- (Nine thousand six hundred only)towards development charges. After receiving the above said amount the opposite party fails to register the plot. The counsel for the opposite party argued that the opposite party is a company incorporated under the Indian Companies Act, 1956 and long back represented by Sri.k.Subramanyam as a director who retired from the said company and hence personally he is not liable to the claim raised by the complainant. But in order to prove his contention the opposite party fails to place any documentary evidence to prove their contention. So, though the opposites party retired from service from the Brunda Housing Private Ltd., as a Managing Director, he is personally responsible for all the transactions that were covered under Ex.A1 and A4 and the entries there of. Therefore the opposite party is personally liable either to execute registered sale deed in respect of the plot or to refund the amount collected from the complainant. Therefore he cannot escape from the liability by contending that he is not a proper and necessary party. Hence the present complaint is not bad for mis-joinder and non-joinder of necessary parties. Accordingly this point is answered.

              8. Point:- (iii). There is no dispute that the opposite party floated a scheme where in and whereby made an offer to sell the approved plot on the condition of paying the amount in installments and as per Ex.A1 the complainant has paid a sum of Rs.38,000/-(Thirty eight thousands 0nly) and also as per Ex.A4 the complainant paid development charges of Rs.9,600/- (Nine thousand six hundred only)and also the opposite party issued the brochure and  layout plan under Ex.A3. The opposite party did not deny the transaction under Ex. A1 and hence the entries made under Exs.A1 and A4 were also not in dispute. The main contention of the opposite party is with regard to the entries made in Ex.A1 and A4 is that the complainants fail to produce the original receipts issued by the opposite party in support of the entries made in the pass books. And also contended that the Exs.A1 to A4 were all created and fabricated by the complainant for the purpose of this present case in order to get wrongful gain. Nowhere in the written version or in the evidence affidavit or in the written arguments filed on behalf of the opposite party denied the payments made by the complainant under Ex.A1 and A4.  Hence, it can be presumed that the opposite party received the amounts from the complainant for the registration of the plot. Ex.A3 clearly indicates that the opposite party started a venture in the name of Sai Sudha. Hence the admitted facts need not be proved. Having collected the amounts from the complainant the opposite party fail to refund the amount so collected and also fail to execute registered sale deed  in respect of the plots, that apart he has shifted his office to Vijayawada, that itself clearly shows that in order to  defraud their customers the opposite party realtor promoted a scheme and collected the hard earned money from their customers and in order to evade the payments he has created a story and failed to prove his contentions by the way of documentary evidence. Hence we are of the opinion that there is a clear deficiency of service and unfair trade practice of the opposite party. Hence, therefore there is a clear observation of deficiency of service on part of the opposite party. This point is answered against the opposite party.

                9. Point:- (iv).  In view of our discussions in point No.1 to 3 we are of the view that the complainant will come under the purview of the consumer under section 2(1) (d) of C.P.Act 1986, and there is deficiency in service on part of the opposite party and he also adopted un fair trade practice and deceptive trade practice and deceived the complainant by shifting his office from Tirupati to Vijayawada and still contesting that the complainant are not entitled for the reliefs on various grounds. They should be deal with as they have adopted unfair trade practice and deceptive trade practice to promote their business and infringed the rights of the customers. The father of the complainant invested his hard earned money with the opposite party’s scheme for his minor daughter’s future, but the main purpose was defeated by the illegal attitude of the opposite party since in order to defraud their customers the opposite parties have chosen this type of deceptive trade practice which should not be encouraged.  The complainant in this case being the customer purchased the plot from the opposite party and sustained loss and suffering and running from  the pillar to post since 1999 to trace out the where abouts of the opposite party. Hence there is a justification in the reliefs, hence as per Ex.A8 clearly shows that the market value of the land was also increased in 20 times from the date of the last payment i.e. 16.08.1999. Hence the complainant is entitled for refund amount of   Rs.47,600/- (Forty seven thousand six hundred only) with interest @ 9% per annum from the last date of payment 16-08-1999 and also she is entitled for Rs.50,000/- (Fifty thousands only) towards compensation for mental agony and also she is entitled for the costs. Hence this point is answered accordingly.  

             10. Point:- (v). In the result the complaint is allowed in part and opposite party is here by directed to pay Rs.47,600/- (Forty seven thousand six hundred only) with interest @ 9% per annum from the last date of payment  i.e. on 16.08.1999 till  realization and the  opposite party  is also directed to pay sum of Rs.50,000/- (Fifty thousands only) towards  compensation for the mental agony caused to the complainant and also directed to pay a sum of Rs.2,000/- (Two thousand rupees only) towards litigation expenses. The opposite party further directed to comply with orders within 6 weeks from the date of receipt of the copy of the order, failing which the compensation amount of Rs.50,000/-(Fifty thousands only) shall  carry interest @ 9% per annum from the date of the order till  realization.

                  Typed by the stenographer, to the dictation in Open Forum, corrected by me and pronounced in the Open forum this the 8^th day of May, 2015.

 

           Sd/-                                                                                                   Sd/-            

  Lady Member                                                                                                 President

 

 

 

 

                                                    C.C.No.70/2012

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF BOTH SIDES

 

 

PW-1: C.B.Abhishiktha Reddy (Chief Affidavit filed).

RW-1: Kuchimanchi Subramanyam (Chief Affidavit filed).

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Description of Documents
Ex.A1	Dt:29.08.1996, Pass book original bearing No.471 issued by Brunda Housing Pvt. Ltd., Tirupati, in favour of the complainant containing the payment particulars of Rs.38,000/- towards cost of the plot.
2.	Dt: 12.11.1996, Intimation to pay installments towards the costs of the plot by way of post card.
3.	Map containing the location of Sai Sudha and mode of payments.
4.	Dt: 16.08.1999, Original Payment of receipt for Rs.9,600/- towards development charges. Receipt No.23635.
5.	Dt: 22.07.2005, Photo copy of house holding card of C.Balachandra Reddy containing the family members.
6.	Dt: 07.05.2012, Office copy of legal notice to the opposite party along with undelivered registered cover.
7.	Dt: 20.07.2012, Another legal notice to the opposite party which returned undeliver.
8.	Valuation Certificate. Dt: 16.08.2012.

 

 

 

 

 

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:  The Complainant.

                  The opposite party.