BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
C.C. 62 of 2012
Between:
1. Smt Meenakshi Rao W/o Jagnnath Rao
aged 67 years, Occ: Household, R/o C-23/2
Sterling Villa, Vikrampuri, Secunderabad
2. Sri Bhaskar Rao S/o Jagannath Rao
aged 38 years, Occ: Private Service
R/o C-23/2, Sterling Villa, Vikrampuri
Secunderabad, both rep. by her GPA Holder
Smt Priyanka W/o Bhaskar Rao aged about
37 years, R/o C-23/2, Sterling Villa
Vikrampuri Secunderabad
A N D
Complainants
City Square Enterprises Pvt Ltd.,
rep. by its Managing Director and also
by Mr.Mustafa Kamal, Project Director
having its Regd. Office at # 312, III Floor
K.H.Road, Bangalore-027
Opposite party
Counsel for the Complainant: Mr.M.Goverdhan Reddy
Counsel for the opposite party: Served
QUORUM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
SMT. M. SHREESHA, MEMBER
&
SRI S.BHUJANGA RAO, MEMBER
THURSDAY THE NINETH DAY OF AUGUST
TWO THOUSAND TWELVE
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President)
***
1. This is a complaint filed u/s 17(a)(1) of the Consumer Protection Act against the builder/developer to pay/refund Rs.72,12,000/- together with costs.
2. The case of the complainant in brief is that the opposite party is a builder and after seeing advertisement in newspapers and also brochures in regard to the project floated under the name and style “Radiant residency”(Nisha Park) for construction of duplex houses in an open plot of their (complainant’s) choice, they had agreed to purchase a plot as mentioned in the brochure. In fact initially they have chosen open plot no.93 but the opposite party got transferred Plot No.5 in their name directly from their vendors under a sale deed dated 25.3.2010. In all they had paid `58,00,000/- out of `60,00,000/- on various dates. Despite the fact that a period of four years had elapsed, they did not commence construction and dragging on the matter on one pretext or the other. When they had given a notice dated 26.12.2011 to refund `7,12,000/- after deducting the open plot price of Rs.10,88,000/- along with interest @ 24% per annum and damages, they did not choose to give any reply. Therefore, they sought direction against the opposite party to refund `47,12,000/- after deducting `10,88,000/- towards cost of the open plot, and `25 lakhs towards interest and costs, in all `72,12,000/-.
3. The opposite party did not choose to contest the matter despite notice being served on it.
4. The first complainant in proof of their case filed his affidavit evidence and got Exs. A1 to A18 marked.
5. It is an undisputed fact that the opposite party, a developer floated a project under thename and style Radiant Residency to construct duplex house in openplot of the complainants choice for a sum of `60 lakhs vide brochures Exs.A1 and A2. The complainant had paid `58,00,000/- on different dates under seven receipts marked as Exs.A3 to A5. The original owner of the plot had executed a sale deed in their favour on 25.3.2010 vide Ex.A7. Despite the fact that the issue of legal notice Ex.A11 and A9 and having received it under acknowledgement Ex.A10, he did not choose to give any reply. Since the evidence of the complainant was not contradicted and in the light of the documents, the developer having failed to fulfill its duty of constructing duplex house liable to refund `58,00,000/-. However, the complainants intend to keep the plot worth `10,88,000/- and therefore sought `47,12,000/-. The opposite party did not question the entitlement of the plot by the complainants in this regard.
6. The complainants though claimed `25 lakhs towards damages did not adduce evidence to show that there was hike of rise of price and therefore he had sustained loss on that account. No doubt, for all these years opposite party has the advantage of the amount and must have utilized the amount for its benefit. It had collected the amount, however did not fulfill its part of contract. Since the complainant could prove latches on the part of opposite party, it is a fit case where the complainant should not only be entitled to refund of the amount paid but also interest and damages. The complainant all through suffered mental agony. Considering the amount involved, we are of the opinion that an amount of `5 lakh could be directed to be paid towards compensation. All through the opposite party had the advantage of the amount and in the light of the decision of the Hon’ble Supreme Court in SMT. KAUSHNUMA BEGUM AND ORS Vs THE NEW INDIA ASSURANCE CO. LTD. AND ORS reported in 2001 (1) SCALE page 1 held that a reasonable interest at 9% per annum would be fair.
7. In the result the complaint is allowed in part directing the opposite party to pay `47,12,000/- with interest @ 9% p.a., from 26.12.2007 till the date of realization. The complainant is also entitled to compensation of `5 lakh towards damages and costs of `10,000/-. Time for compliance four weeks.
PRESIDENT
MEMBER
MEMBER
Dt.09.08.2012
KMK*
APPENDIX OF EVIDENCE
EXHIBITS MARKED
For the complainants
Ex A-1 Brochure Published by OP (Life Extraordinaire)
Ex A-2 Brochure Published by OP (Radiant Residency)
Ex A-3 Cash Receipts (3)
Cash receipt no. 715 dated : 27.11.2007 for Rs.8,00,000/-
Cash receipt no. 1413 dated : 26.12.2007 for Rs.5,00,000/-
Cash receipt no. 1404 dated : 18.12.2007 for Rs.10,00,000/-
Ex A-4 Cash Receipts (3)
Cash receipt no. 1411 dated : 26.12.2007 for Rs.10,00,000/-
Cash receipt no. 1412 dated : 26.12.2007 for Rs.10,00,000/-
Cash receipt no. 1394 dated : 20.11.2007 for Rs.5,00,000/-
Ex A-5 Cash Receipt no. 1414 dated : 26.12.2007 for Rs.10,00,000/-
Ex A-6 Receipt issued by Sub Register in
original vide No.1453
dated : 25.3.2010 for Rs.1,03,360/-
in favour of Arvind Kumar
Ex A-7 Original Sale Deed dated 25.3.2010 .
between Sri M. Arvind Kumar and three others
favouring Mrs. Meeanakshi Rao and Mr. Bhaskar Rao
Ex A-8 Permission certificate issued by
office of the Gram Panchayat , Medchal to Mr. Arvind Kumar
and others. Dated : 7.12.2006
Ex A-9 Legal notice dated : 2.1.2012 from
complainant advocate to OP
Ex A-10 Postal receipt and postal acknowledgement.
Ex A-11 Legal notice dated : 26.12.2011 from
complainant advocate to OP
Ex A-12 Postal receipt and returned cover
Ex A-13 Payment schedule , area statement and salient features
ExA-14 General Power of attorney dated : 25.3.2012 nominating
Smt. Priyanka as GPA by Smt. Meenakshi Rao and
Sri Bhaskar Rao
Ex A-15 Receipt for Rs.400/- issued
Deccan Chronicle dated : 16.5.2012
Ex A-16 Paper cutting dated 14.12.2007 of Deccan
Chronicle paper in Estates
Ex A-17 Photos
Ex A-18 Bank account Pass book showing accounts
from 14.8.2007 to 15/12/2007
of Smt. Meenakshi Rao vide No.
10028838639 SBI, Airport Road, Hyd.
For the opposite parties :
NIL
PRESIDENT
MEMBER
MEMBER
