Andhra Pradesh

Chittoor-II at triputi

CC/72/2012

G. Sarala,W/o. G. Krishnaiah, - Complainant(s)

Versus

Brunda Housing Pvt. Ltd.,Rep. by its Managing Director K. Subramanyam,Formerlya the 2-E, Brunda Towe - Opp.Party(s)

G.Ramaiah Pillai

08 May 2015

ORDER

Date of first filing:28.09.2012

Date of first disposal: 31.01.2013

Matter remanded and case restored on :12.01.2015

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.72/2012

 

Between

 

1.         G.Sarala,

            W/o. G.Krishnaiah,

            Hindu, aged about 54 years, House-wife,

 

2.         G.K.Sivaji,

            S/o. G.Krishnaiah,

            Hindu, aged about 30 years,

 

Both are residing at:

 

D.No.24-15-29/3, Padmavathi Nagar,

Tirupati,

Chittoor District.                                                                              … Complainants

 

 

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, Visalandhra Road,

Vijayawada – 2,

Krishna District.                                                                               …  Opposite party.

 

 

            This complaint coming before us for final hearing on 28.04.15 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.G.Ramaiah Pillai, counsel for the complainants, and Sri.Venkat SPM, counsel for the opposite party, and  having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

 

            This complaint is filed under Sections-12 and 14 of the C.P.Act 1986, by the complainants 1 and 2 (mother and son) against opposite party for the following reliefs, a) to direct the opposite party to pay the present market value of each plot at Rs.6,00,000/- each; b) to direct the opposite party to pay Rs.2,00,000/- towards compensation for the mental agony caused to the complainants and to direct the opposite party to pay Rs.2,000/- towards costs of the litigation.

            2.  The brief averments of the complaint are:-  that the opposite party being a realtor started a housing scheme under the name and style of SAI PADMA as a residential township in the land located in the survey Nos.514, 515 and 448 of Tiruchanur Gram Panchayat. Complainants 1 and 2 have purchased two plots, one each, bearing Nos. 392-A and 392-B. Cost of each plot is Rs.69,000/- payable in monthly installments @ Rs.900/- pre month, commencing from 01.07.1999 and the claim will be completed by 30.06.2002. The opposite party has given pass books to complainants 1 and  2 bearing Nos.438 and 439 respectively, each plot admeasuring 200 sq.yards (50 Ankanams). The opposite party has thus collected full cost of each plot by 15.12.2001 itself and also collected Rs.14,000/- from each complainant on 30.01.2002 towards development charges. The opposite party also made the complainants to purchase non-judicial stamps worth of Rs.7,655/- each for registration, but failed to turn-up for registration. When the complainants approached opposite party and demanded to execute registered sale deed in their favour, in respect of plots allotted to them or pay back the amounts paid, the opposite party gave a cheque for Rs.3,00,000/-, which was bounced / dishonoured, as such a private complaint in C.C.No.5/2005 was lodged against the opposite party on 27.08.2004, which was finally ended in acquittal on 14.03.2012 after full trial. Even then the opposite party failed either to execute a registered sale deed or to refund the amounts paid. Hence the complaint.

            3.  The opposite party filed his written version on 12.02.2015 denying the complaint allegations and further contending that the complainant failed to produce the original receipts issued by the opposite party company in support of the entries made in their pass books. Due to some false and baseless allegations made by rival parties of the opposite party, their records, books and ledgers were seized by the police, his employees also scattered. Taking advantage of the situation, complainants and some others filed complaint against the opposite party. That the opposite party is a company, K.Subramanyam is a Director and he has retired long back, as such complaint against opposite party personally not maintainable, complaint also bad for non-joinder of necessary and proper parties, complaint is barred by limitation, complainant are not consumers and this Forum has no jurisdiction to entertain the complaint. Cheque bounce case shows that the matter was already settled between the parties and prays the Forum to dismiss the complaint with costs.

            4.  Complainant (Smt.G.Sarala) and the opposite party (Sri.Kuchimanchi Subramanyam) filed their respective evidence affidavits and written arguments. Exs.A1 to A14 were marked on behalf of complainants and no documents were marked for the opposite party.

            5.  Now the points for consideration are:-

            (i).  Whether the complaint is barred by limitation?

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

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

                    parties?           

            (iv).  Whether the complainants are entitled to the reliefs sought for?

            (v).  To what relief?

            6.  Point No.(i):-  Section-24A of the C.P.Act 1986 deals with limitation period, so far as consumer disputes are concerned.

“Section-24A(1) The District Forum, The State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.         Clause.(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section(1), if the complainant satisfies the District Forum, the State Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.        Provided that no such complaint shall be entertained unless the National Commission or the District Forum, as the case may be, records its reasons for condoning such delay.

 

            In the case on hand, the cause of action begins from 01.07.1999 on which date the opposite party sold plot No.392-A to the 1^st complainant and another plot No.392-B sold to the 2^nd complainant and issued pass book bearing Nos.438 and 439 in favour of the complainants by the opposite party. Installments were to be collected up to 30.06.2002 from the complainants, but the opposite party has collected all the installments by 15.12.2001 itself i.e. about 6^1/2 months before completion of the agreed period. The opposite party has collected the development charges at Rs.14,000/- each from the complainants on 30.01.2002. The opposite party made the complainants to purchase non-judicial stamps worth Rs.7,655/- each by complainants 1 and 2 on 19.06.2004. The opposite party issued cheque bearing No.246334 for Rs.3,00,000/- in favour of the complainants on 17.06.2004. The said cheque was presented before the banker of the 1^st complainant i.e. Andhra Bank and it was dishonoured on 30.06.2004. Therefore, a complaint was lodged against opposite party on 27.08.2004, which was taken cognizance under Section-138 of N.I.Act and registered as C.C.5/2005, after trial C.C.5/2005 was ended in acquittal on 14.03.2012, thereafter this complaint is filed on 28.09.2012 i.e. within 6 months from the date of disposal of C.C.5/2005. It is the settled proposition of law that the period during which another proceedings were pending shall be excluded while computing the limitation period. That apart, so far as the plots are concerned, it would be a continuous process until the sale is registered by way of executing the registered sale deed by the opposite party / builder / realtor or the amounts so paid by the consumers are paid back with reasonable interest. In our view, this complaint is very much within time and the complaint is not barred by limitation. In support of his 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 continue till allotment or refund of deposited amount, complaint not time barred. Their Lordships further held that the complaint was filed in the year 1994whereas the amount deposited for allotment of shop was prior to 1986. We do not agree with this plea because the cause of action will continue to arise till such period the shop is allotted or alternatively the amount deposited is refunded. It was the duty of the Housing Board to have informed the complainant about the fact of cancellation of the scheme and should have remitted the amount deposited by the complainant. Since the appellants have retained the amount with themselves and appropriated it for their own use, the interest is certainly liable to be paid. As a matter of fact, the District Forum should have awarded interest from the date of deposit but since there is no appeal from the complainant on this count, we cannot interfere with the judgment and order of the District Forum. In the circumstances, the appeal is liable to be dismissed and the judgment and order of the District Forum are liable to be confirmed and appeal filed by the Housing Board was dismissed. Accordingly this point is answered holding that the complaint is not barred by limitation and it is filed well within limitation.

            7.  Point No.(ii):-  to answer this point Exs.A2 and A3, the copies of the pass books issued in favour of complainants 1 and 2, the brochure under Ex.A1 are necessary documents to be looked into. The opposite party did not deny the transactions that were took place under Exs.A2 and A3. The entries made under Exs.A2 and A3 were also not in dispute. The contest that was made by the opposite party with regard to entries made in Exs.A2 and A3 is that the complainants have failed to produce the original receipts issued by the opposite party in support of the entries made in the pass books. It is not the case of opposite party that those entries in Exs.A2 and A3 pass books were not made by the opposite party or its company. Therefore the admitted facts require no proof. Nowhere in the written version or in the evidence affidavit or in the written arguments filed on behalf of opposite party denied the payments made by the complainants 1 and 2 and the entries made to that effect in Exs.A2 and A3 pass books. The opposite party also not disputed genuineness of the pass books and no whisper that the pass books are not genuine, were made in the pleadings or evidence affidavit or written arguments filed by the opposite party.

            8.  It is the opposite party, who sold the plot Nos.392-A and 392-B in favour of the complainants 1 and 2 respectively and also issued pass books bearing Nos.438 and 439 in favour of the complainants 1 and 2 respectively. It is the opposite party, who collected the installments at Rs.900/- p.m. commencing from 01.07.1999 towards cost of each plot from each complainant and fully collected the cost by 15.12.2001 itself as against 30.06.2002. It is also un-disputed that the opposite party has collected Rs.14,000/- from each complainant towards development charges on 30.01.2002. It is also not in dispute that the opposite party gave cheque bearing No.246334 dt:17.06.2004 for Rs.3,00,000/-. The opposite party also not disputed issuing of cheque for Rs.3,00,000/-. The opposite party also not disputed the criminal proceedings under C.C.5/2005 under Section-138 of N.I.Act. Though the complainants 1 and 2 were running pillar to post right from 2001 itself, the opposite party taking advantage of their innocence asked them not to present the cheque issued by him for encashment and promised that he will execute the registered sale deed in their favour and made them to purchase non-judicial stamps worth Rs.7,655/- each for the purpose of said registration and failed to stick on to his promise. Thus again made the complainants to sustain loss of Rs.7,655/- for purchasing non-judicial stamps. During the pendency of criminal proceedings under C.C.5/2005, the opposite party contended that the case was filed against the Company / Corporation, as such the II Addl. Judl. Magistrate of First Class, acquitted the case on the ground that the Corporation itself cannot issue cheque and the complaint therefore was un-sustainable and finally acquitted the accused therein (the opposite party herein). Taking advantage of the acquittal orders dt:14.03.2012 in C.C.No.5/2005 on the file of II Addl. Judl. Magistrate of First Class, Tirupati, the opposite party contending that the dispute was already settled between the complainants and opposite party. Therefore, the Consumer Forum has no jurisdiction to entertain the case and also gone to an extent to say that the complainants are not consumers. While coming to consumer dispute, the opposite party having admitted the issuance of pass books under Exs.A2 and A3 in favour of complainants by him and having admitted the collection of Rs.69,000/- from each complainant towards cost of the plot allotted to them and also having admitted the collection of Rs.14,000/- from each complainant towards development charges and also having admitted the issuance of cheque bearing 246334 in favor of the complainant for Rs.3,00,000/-, now raised another query that the complaint is barred by limitation. When a private complaint is lodged against the opposite party in C.C.No.5/2005 in the year 2004 itself, the opposite party ought to have either registered the sale deed in favour of the complainants or to refund the amounts paid by them with interest, but so far he did not make any such efforts to justify the complainants or to redress their grievances either by registering the plots or by paying back the money he collected from the complainants. Therefore, the attitude of the opposite party clearly amounts to unfair trade practice. It is the right case, where the process of 3D system is to be applied i.e. 1) D for defective goods / service 2) D for deficiency in service and 3) D for deceptive practice, all the qualities are found in the character and attitude of the opposite party. Having collected the amounts from complainants 1 and 2, failed to refund the amounts so collected and also failed to execute registered sale deed in respect of the plots allotted to complainants 1 and 2, that apart he has shifted his office to Vijayawada. Therefore, there is clear case of deficiency in service on the part of opposite party. The provisions of C.P.Act have to be construed in favour of the consumer to achieve the purpose of enactment, as it is a social benefit oriented legislation. In AIR 1996 SC P.550 – Indian Medical Association Vs. V.P.Shanta  the Hon’ble Supreme Court held that the provisions of the Act, they should be construed in favour of the consumer. In AIR 1960 SC P.309, the State of Madras Vs. C.P.Agencies & Anr., their Lordships Apex Court discussed the meaning of cause of action and defined as under:

 

“every fact, which it would be necessary to prove, if traversed, in order to support his right to the judgment of the Court. It dost not comprise every piece of evidence, which is necessary to prove each fact but every fact, which is necessary to be proved”

                      

            In another case reported in AIR 1939 Bombay High Court in Narayana Givaji Vs. Durmat Gowda, was pleased to give the meaning of cause of action as under:

“the cause of action briefly means right of the infringement of that right where a party has a undoubted right and that right was infringed cause of action at once accrues to him.

 

            In the case on hand, the rights of the complainants were infringed not only once but every time because of the attitude of the opposite party. The complainants are the consumers well within the meaning of Section-2(1)(d) of the Act. The opposite party comes within the purview of service provider under Section-2(1)(o). Therefore, the opposite party is liable to justify the grievances of the complainants, as there is deficiency in service on the part of the opposite party and also he adopted unfair trade practice with regard to the real-estate business he did and caused much mental agony and physical strain to the complainants. In our view there is deficiency in service on the part of the opposite party and also unfair trade practice. Accordingly this point is answered.

            9. Point No.(iii):-  to answer this point, we are of the view that it is the opposite party, who allotted the plots to the complainants 1 and 2, plot Nos.392-A and 392-B and issued pass books bearing Nos.438 and 439 to the complainants 1 and 2 respectively and it is the opposite party, who collected the total Rs.69,000/- from each complainant and also Rs.14,000/- each from the complainants towards development charges and it is the opposite party, who issued a cheque bearing No.246334 in favour of the complainants for Rs.3,00,000/- and it is the opposite party, who faced the trial in C.C.No.05/2005 under Section-138 N.I.Act. It was held in the judgment in C.C.No.5/2005 that the Corporation cannot issue cheque physically. Therefore, the Corporation is not liable for the offence under Section-138 N.I.Act, which implies that a person, who issued cheque, it was dishonoured by the banker is liable. So, though the opposite party retired from service from the Brunda Housing Private Limited, as Managing Director, he is personally responsible for all the transactions that were covered by the pass books under Exs.A2 and A3 and the entries thereof. Therefore, the opposite party is personally liable either to execute registered sale deed in respect of the plots allotted to the complainants 1 and 2 or to refund the amount collected from complainants 1 and 2 along with interest. The complaint is thus not bad for mis-joinder or non-joinder of necessary or proper parties. Accordingly this point is answered.

            10. Point No.(iv):-  In view of our discussions in points 1 to 3, we are of the view that the complainants 1 and 2 are the consumers well within the meaning of Section-2(1)(d) of C.P.Act 1986 and that there is deficiency in service on the part of opposite party and also he adopted unfair trade practice and deceptive trade practice and deceived the complainants by shifting his office from Tirupati to Vijayawada and still contesting that the complainants are not entitled for the reliefs on various grounds. The C.P.Act is a social benefit oriented legislation. It is made for  protection of the rights of the consumer, whether there is deficiency in service on the part of opposite party i.e. service provider. They should be dealt with as they have adopted unfair trade practice and deceptive trade practice to promote their business and infringed the rights of the consumers. The complainants in this case, being the consumers purchased the plots from the opposite party and sustained loss and suffering and running from pillar to post since 2004 because of the adamant nature of the opposite party, deceptive practice and unfair trade practice adopted by the opposite party, there is justification in the reliefs sought for by the complainants and therefore the complainants are entitled to the reliefs sought for. Accordingly this point is answered.

            11.  Point No.(v):- In view of our holding on points 1 to 4, we are of the opinion that the complainants being the consumers are entitled to refund of cost of each plot at Rs.69,000/- along with interest at 9% p.a. from the date of last payment i.e. 15.12.2001, till realization. That the complainants 1 and 2 also entitled to compensation of Rs.50,000/- each and complainants 1 and 2 also entitled to a sum of Rs.2,000/- each towards litigation expenses and the complaint is to be allowed accordingly.

            In the result, the complaint is allowed in part and opposite party is hereby directed to pay a sum of Rs.69,000/- + Rs.14,000/- (added as per orders in I.A.No.27/2015 dated 24.06.2015), totaling Rs.83,000/- (Rupees eighty three thousand only) to each complainant with interest at 9% p.a. from 15.12.2001, till realization and the opposite party is also directed to pay a sum of Rs.50,000/- (Rupees fifty thousand only) to each complainant towards compensation for the mental agony caused to the complainants and also directed to pay a sum of Rs.2,000/- (Rupees two thousand only) to each complainant towards litigation expenses. The opposite party is further directed to comply with the orders within six (6) weeks from the date of receipt of copy of order, failing which the compensation amount of Rs.1,00,000/- i.e. Rs.50,000/- awarded to each complainant also shall carry interest at 9% p.a. from the date of the order, till realization. 

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

 

        Sd/-                                                                                                                     Sd/-                                                            

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

 

PW-1: G.Sarala W/o. G.Krishnaiah (Affidavit filed).

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

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Description of Documents
Ex.A1	A Photo copy of Broucher under Sai Padma Housing Scheme.
2.	A Photo copy of Pass book in respect of complainant No.1 containing the entries for payment of cost of the plot of Rs.69,000/-
3.	A photo copy of Pass book in respect of complainant No.2 containing the entries for payment of cost of the plot of Rs.          69, 000/-.
4.	A photo copy of cheque bearing No.246334 for Rs.3,00,000/- in favour of complainant No.1.
5.	A photo copy of cheque return memo. Dt: 28.06.2004.
6.	A photo copy of legal notice. Dt: 13.07.2004.
7.	A photo copy of postal acknowledgement. Dt: 15.07.2004.
8.	A photo copy of letter from Sub-Divisional Police Officer to the complainants No.1under RTI Act. Dt: 17.07.2011.
9.	The complaint copy of Judgment in C.C.No.5/2005 on the file of II ADMM Tirupati.
10.	Office copy of legal notice to the Opposite Party. Dt: 05.09.2012.
11.	Returned undelivered cover with an endorsement as refused from the Opposite Party. Dt: 08.09.2012.
12.	Market value furnished by the Sub-Registrar, Renigunta at Rs.3,000/- per sq.yard covering under Survey No. 514,515,448 of Tiruchanur village. Dt: 21.08.2012.
13.	A photo copy of Aadhaar card of complainant No.1. Aadhaar No.875255175182.
14.	A  photo copy of Aadhaar card of complainant No.2. Aadhaar No. 417963312279.

 

 

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 Complainants.

                        2. The opposite party.