Andhra Pradesh

Visakhapatnam

CC/149/2013

M.UMADEVI - Complainant(s)

Versus

DATLA HOMES (P) LTD.,MANAGING DIRECTOR. - Opp.Party(s)

K.SAMBA MURTHY

13 Nov 2014

ORDER

      Date of registration:12.06.2013

      Date of order        :13.11.2014

 

BEFORE THE DISTRICT CONSUMERS FORUM-I,

VISAKHAPATNAM : AP

 

PRESENT:  Smt K.V.R.Maheswari, B.A., B.L., LL.M.,

 Lady Member & FAC President

 

Sri V.V.L.Narasimha Rao, B.A., LL.M., PGDHR,

Member

 

Thursday, the 13^th day of November, 2014

 

Consumer Complaint No:149/2013

Between:    

 

Smt. M.Umadevi W/o M.V.Nageswara Rao, aged 40 years, residing at H.No.3, SBI Colony, Sector-VII, MVP Colony, Visakhapatnam.

                                                                             …   Complainant

And:

 

Datla Homes (P) Ltd., rep. by its Managing Director, Flat No.204, Eswar palace, Dwarakanagar, Visakhapatnam.             

                                                                             …       Opposite Party

 

This case is coming for final hearing on 05.11.2014 in the presence of Sri K.Samba Murthy Advocate for the Complainant and of Sri U.S.V.Prasad Advocate for Opposite Party absent and having stood over till this date, the Forum delivered the following:

                                                                                                                                             

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on

behalf of the Bench)

 

1.       The case of the complainant is that the opposite party is doing real estate business and with a fond belief on the assurance given by the opposite party, the complainant joined as one of the members in Royal Hills-II, situated at Relli Village, covered by S.Nos.74 to 77 and 90 of Appannadorapalem Gram Panchayat, Kottavalasa Mandal, Vizianagaram District.  The Opposite party executed an Impugned Deed of Agreement of Sale of Plot on 10.06.2009 in favour of complainant for the Plot No.723 with a promise to provide the said Plot with all facilities including VUDA approvals and in case of any delay or problem in registering the Sale Deed, the opposite party agreed to return back the entire amount with interest after one year from the date of commitment.  The Opposite party executed the Sale Agreement and received the entire sale consideration of Rs.89,000/- and Rs.100/- towards administration charges during the period from 19.03.2009 to 10.06.2009 and issued receipts to that effect, but after receiving the entire sale consideration, the opposite party failed to register the sale deed in favour of the complainant even after the scheme period of 12 months is also completed.  The Complainant stated that he came to know that there were no developments in the said layout and opposite party failed to obtain VUDA approval and no registrations were took place in the said layout which clearly shows deficiency of service on the part of the opposite party in developing the layout even after collecting the entire sale consideration by adopting the unfair trade practice and the acts of the opposite party caused lot of suffering and mental agony and financial loss to the complainant.  Inspite of repeated demands made by the complainant and after completion of three years 10 days, the opposite party issued a multicity cheque No.306561 dated 20.06.2012 for an amount of Rs.89,000/- which was realized by three installments without paying any interest on the sale consideration and the complainant accepted that payment under protest.  The opposite party violated the terms and conditions of para-11 of the agreement, which clearly speaks that non performance of obligation on the part of the opposite party which leads to gross negligence on their part.  The Complainant invested huge amount and there is no possibility to get the plot for the said amount due to increase of prices and thereby the complainant suffered with mental agony and also lost the chance for getting house pot; hence she seeks for compensation.  The Complainant stated that as per Clause-11 of the sale agreement dated 10.06.2009 “in case of any delay or any problem arises for obtaining necessary approvals, company will pay the money back with 15% interest p.a. for the paid amount after 12 months from the date of commitment”.  But the opposite party failed to obtain necessary approvals and also failed to register the plot allotted to the complainant and as such the opposite party is liable to refund Rs.89,0000/- with 15% interest but the opposite party paid only Rs.89,000/- and failed to pay the interest.  The complainant demanded the opposite party to pay interest for the said amount to opposite party is postponing the issue without assigning any valid reason then, the complainant issued register lawyer’s notice on 01.09.2012 and the same was received by the opposite party but there was no response from them.  Hence, this complaint to direct the opposite party;

a)      to pay 24% interest on the total amount of Rs.89,100/- from the dates of respective payments till realization.

b)      to pay Rs.50,000/- towards compensation besides costs of Rs.5,000/-

 

2.       On the other hand, the opposite party filed its counter and admitted regarding their real estate business and their venture Royal Hills Phase-II and also admitted about the membership of the complainant in respect of Plot No.723 and executed Deed of Agreement in favour of Complainant.  The opposite party stated that it put all its efforts to secure approval from VUDA, but it is still pending, in those circumstances, when the complainant approached the opposite party to ascertain the stage of approval, the opposite party explained the practical difficulty that, it has been facing with the VUDA in securing approval. After hearing, the complainant has agreed to receive the amount paid by her, in accordance with that the opposite party had issued a cheque bearing No.306561 dated 20.06.2012 for Rs.89,000/- was issued and that cheque was accepted by the complainant voluntarily without any protest.  Thus, the complainant received the total amount as on 05.07.2012 and acknowledged the said amount towards full and final settlement of her claim.  The opposite party stated that the failure in developing the layout within stipulated time is not intentional but due to Government policies and technical reasons which is not in the hands of opposite party, hence there is no willful deficiency of service on the part of the opposite party.  Hence, this complaint is to be dismissed.

 

3.       At the time of enquiry, the complainant filed her evidence affidavit along with documents which are marked as Ex.A1 to A9.  Complainant not filed written arguments, hence treated no written arguments for complainant.  On the other hand, the opposite party filed evidence affidavit and written arguments.  Heard both the counsels who reiterated their versions.  Ex.B1 is marked on behalf of opposite party. 

 

4.       In view of the respective contentions, the point that would arise for determination is:-

Whether there is any deficiency in service on the part of the opposite party, if so can the complainant entitle for the reliefs prayed for?

5.       The fact that as per Ex.A1, Ex.A2, Ex.A3, Ex.A4 and Ex.A5 are the receipts and agreement issued by the opposite party regarding payments made by the complainant for allotment of Plot No.723 is not in dispute.  The Complainant’s allegations is that the opposite party failed to develop  the Plot and also failed to obtain VUDA approval and she want her amount back with interest as per Ex.A5 i.e., agreement dated 10.06.2009.  The Complainant issued a letter on 27.01.2012 to the opposite party i.e., Ex.A6 regarding the refund of her paid amount of Rs.89,000/- with 24% interest.  Ex.A7 is the cheque issued by Opposite party to the complainant for amount of Rs.89,000/-.  The complainant accepted that the payment made by the opposite party is under protest and also demanded for payment of interest by issuing registered lawyer’s notice i.e., Ex.A8 i.e., 1.09.2012.  Ex.A9 is the acknowledgment of Ex.A8.  But there was no reply from the opposite party.

6.       The version of the opposite party is that because of practical difficulties, it cannot obtain VUDA approvals and on request made by the complainant, the opposite party paid total amount to the complainant which was paid by her and the same was accepted by the Complainant without protest and also that amount was accepted by the complainant towards full and final settlement.  Ex.A1 is the payment voucher dated 05.07.2012. 

7.       It is to be noted that in Ex.A5 and clause No.11 it was clearly mentioned that “if there any delay or problem arises for obtaining approvals company will pay the money back with 15% interest for the paid amount after 12 months from the date of commitment”.  There itself in clause No.4 “VUDA approval and layout infrastructure will be completed within 12 months from the date of commencement of first installment”.  Hence, as per that agreement, the 1^st installment was paid by the complainant on 23.03.2009, hence there was time up to 22.03.2010 to opposite party to obtain VUDA approval.  But it failed to obtain necessary approvals from official authorities.  The plea of the opposite party is that it paid the total amount as on 05.07.2012 as per Ex.B1 and there itself it was endorsed as full and final settlement of claim, but when the Forum observed, then came to know that there is no signature of the complainant for the payment voucher to know that the complainant received that amount towards full and final settlement of claim or not and that too there are the signatures of M.D and cashier only, hence how the Forum can come to know that it is towards full and final settlement.  Hence, in our view, the complainant received that amount towards part payment only and he is entitled for interest. More over, the complainant issued a registered lawyer’s notice on 01.09.2012 i.e., nearly 2 months from the date of Ex.B1.  Hence, it clearly shows that the complainant is not satisfied with the amount paid by the opposite party and he requested the interest amount several times and finally after two months, the complainant issued lawyer’s notice regarding that balance interest amount, even after receipt of that notice there was no reply from the opposite party.  Hence, the complainant is entitled for only interest which is due from opposite party from 10.06.2010 i.e., one year after final payment made by the complainant to 04.07.2012 i.e., final payment of principal amount made by the opposite party with 15% interest as per Ex.A5 i.e., agreement of sale.

8.       If there is signature or acknowledgement by the complainant regarding the full and final payment in Ex.B1 then, the Forum can assume that the complainant has knowledge that the opposite party settled the issue towards full and final settlement.  But in our view the complainant has no knowledge and the opposite party itself endorsed as full and final settlement in Ex.B1, hence this plea is not considered by the Forum.

9.       The Complainant invested amount to obtain house plot but deprived of having own plot because of acts of opposite party and at present he has to invest huge amount to obtain a house plot, which would cause financial hardship to the complainant and to compensate it, the opposite party is liable to pay Rs.3,000/- towards compensation besides costs which would be just and reasonable.

          Accordingly, this point is answered.

10.     In the result, the complaint is allowed directing the opposite party to pay 15% p.a. interest only on Rs.89,000/- from 10.06.2010 to 4.07.2012 to the complainant besides compensation of Rs.3,000/- and opposite party is further directed to pay costs of Rs.2,000/-.  Time for compliance is three months.

Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 13^th day of November, 2014.

 

    Sd/-                                                                       Sd/-

Member                                                                 President (FAC)

                                                                   District Consumer Forum-I

                                                                             Visakhapatnam

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Ex.A1	19.03.2009	Receipt for Rs.100/-.	Photostat copy
Ex.A2	23.03.2009	Receipt for Rs.5,000/-.	Photostat copy
Ex.A3	21.04.2009	Receipt for Rs.4,000/-.	Photostat copy
Ex.A4	10.06.2009	Receipt for Rs.80,000/-.	Photostat copy
Ex.A5	10.06.2009	Agreement.	Photostat copy
Ex.A6	27.01.2012	Letter addressed by the complainant.	Photostat copy
Ex.A7	20.06.2012	Cheque issued by OP for Rs.89,000/-	Photostat copy
Ex.A8	01.09.2012	Registered Lawyer’s notice.	Office copy
Ex.A9		Acknowledgment card.	Original

Exhibits Marked for the Opposite Party:

Ex.B1

05.07.2012

Payment Voucher/receipt.

Photostat copy

 

    Sd/-                                                                       Sd/-

Member                                                                  President (FAC)

                                                                   District Consumer Forum-I

                                                                             Visakhapatnam

 

 

 

 

 

 

 

 

 

//VSSKL//