F.A.No.1186/2010 against  C.C.No.311/2009, DISTRICT FORUM-I, VISAKHAPATNAM

Between

Smt.Parimi Bhavani, W/o.Parimi Nageswara Rao,

Indian, aged 37 years, Occ:Housewife,

R/o.Flat No.4, Raghavendra Nilayam,

Sathavahana Nagar, Near Sri Shridi Saibaba Temple,

Kuramannapalem, Near Sri Shiridi Saibaba Temple,

Kurmannapalem, Visakhapatnam.                                                                    …Appellant/

                                                                                                                                 Complainant

          And

Heritage Homes ( A Division of Moon & Moon 

Resorts India (P) Ltd.,)

Rep. by its Director, Gampala Giridhar,

S/o.Venkata Ramana, Indian, aged about 29 years,

Office Door No.49-18-07, Madavaripeta,

Dondaparthi, Visakhapatnam-16.                                                                       Respondent/

                                                                                                                                 O.P

Counsel for the Appellant      :  M/s.V.Gouri Sankara Rao

Counsel for the Respondent  :  Mr.N.V.Anantha Krishan

QUORUM:THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT

AND

SRI R.LAKSHMINARASIMHA RAO, MEMBER

THURSDAY, THE TWENTY FIRST DAY OF JULY,

TWO THOUSAND ELEVEN.

Oral Order (Per  Hon’ble Justice Sri D.Appa Rao, President )
                                                          *****

This is an appeal preferred by the complainant against the order in denying the relief of refund of Rs.39,000/- paid on 28-5-2005 and non awarding of interest from the dates of payment at 24% p.a. instead of interest at 9%.

The case of the complainant in brief is that in a venture floated by the opposite party for sale of plots for construction of homes, the complainant joined as a member and paid Rs.1,50,000/- on 10-6-2003 on which plot No.69 with an extent of 267 sq. yds. was allotted.  The total consideration was Rs.2,80,350/-.  The opposite party sent a letter dated 20-12-2003 to get ready for registration by which time she paid Rs.1,50,000/-,  Rs.18,000/- on 04-9-2004 and Rs.39,000/- on 28-5-2005, in all Rs.2,07,000/-.  Despite her repeated requests, the opposite party did not come forward to register the plot.  On that she issued a notice and when the opposite party did not come forward to register the plot, she filed the complaint for registration of the plot or refund Rs.2,07,000/- with interest at 24% p.a.  from 28-5-2005 till the date of realization together with damages of Rs.2,00,000/-, compensation of Rs.20,000/- for mental agony and costs.

The opposite party resisted the matter.  It contended that the complaint was not maintainable as the complainant was seeking specific performance of contract and the civil court alone is competent to grant such a relief. After execution of Kararnama, the complainant never evinced any interest nor paid the balance amount.  As per the terms and conditions, the complainant has to pay Rs.2,80,350/- and Rs.40,050/- towards development charges in all Rs.3,20,400/- out of which the complainant has paid only Rs.1,68,000/- in three instalments.  The plea that she paid Rs.39,000/- is not true.  The receipt is false and fabricated.  The complainant is entitled for registration of the plot only after fulfillment of her obligation and prayed for dismissal of the complaint with exemplary costs. 

The complainant in proof of her case filed her affidavit evidence and got marked Exs.A1 to A13 while the opposite party filed the affidavit evidence of its director.

The District Forum after considering the evidence placed on record, opined that the complainant had paid Rs.1,68,000/- covered by Exs.A2, A3 and A6.  However it disbelieved that an amount of Rs.39,000/ was paid under Ex.A7 and directed the opposite party to refund Rs.1,68,000/- together with interest at 9% p.a. from 16-10-2008 till the date of payment together with compensation of Rs.5,000/- and costs of Rs.5,000/-.

 Aggrieved by the said order, the complainant preferred this appeal contending that the District Forum did not appreciate the facts in correct perspective.   It ought to have awarded Rs.39,000/- covered under Ex.A7 which was issued by the clerk of the opposite party and also interest on the amounts paid at 24% p.a. from the respective dates of payment.

The point that arises for consideration is whether the complainant is entitled to Rs.39,000/- the amount paid under Ex.A7 and whether the complainant is entitled to any interest, if so at what rate and from which dates?

It is an undisputed fact that the respondent/developer had floated a venture wherein it intended to sell a plot consisting of 267 sq. yds. for Rs.2,80,350/- evidenced under letter Ex.A1 dated 10-6-2003.  It is also not in dispute that the complainant had paid Rs.1,50,000/- under receipts Exs.A2 and A3 dated 10-6-2003 respectively and an amount of Rs.18,000/- under Ex.A6 in all Rs.1,68,000/-.

The complainant when preferring appeal did not seek the relief of specific performance.  Obviously she does not want to pay the remaining sale consideration and obtain the sale deed.  Whatever be the ground, she intends to get back the amount paid as also the amount of Rs.39,000/- paid under Ex.A7 with interest at 24% p.a. on the amounts paid from the respective dates of payment.  The complainant while filing Ex.A7, said to have been issued by the respondent for Rs.39,000/- did not mention as to whom she paid the amount.  No particulars were furnished.  The said receipt is a loose torn sheet from a diary.  It was not on the letter head or on printed receipt paid to the authorized representative of the respondent company.

For the first time in the appeal, she mentioned that she paid amount to the clerk, she did not mention the name of the clerk.  Despite the fact that the respondent disputed this receipt, the complainant did not adduce any evidence nor prove Ex.A7.  Therefore, we are of the opinion that the District Forum has rightly rejected the claim of the complainant under Ex.A7.

Coming to the claim of interest at 24% p.a. the Supreme Court has constantly granted interest at 18% p.a.  when the dispute pertains to allotment of plots and we rely on decisions reported in 2005(9) SCC 464 in HARAYANA URBAN DEVELOPMENT AUTHORITY v. SHAKUNTALA DEVI and 2004 sc 4123.  In fact the Supreme Court also in the case of  Brij Pal Sharma Vs.   Ghaziabad  Development Authority  reported in III (2005) CPJ 43 (SC)   opined that grant of interest @ 18% p.a., by way of damages and compensation  is justified.   Their lordship referring to an earlier decision in  Ghaziabad  Development Authority Vs. Balbir Singh  reported in II (2004) CPJ 12  held by stating that “ in our view, irrespective of whether there was genuine reason to cancel or not, the monies must be returned with interest at the rate of 18%.  We say so because it  is  clear that  even if the body has not already floated  another scheme on the same land it is clear that the body is going to derive great profit from the land and therefore compensating the allottee  with interest @ 18% p.a. is just and fair.”   Therefore granting of interest @ 18% p.a.  was up held.  

We may also mention herein that  when the State Commission has reduced the interest from 18% to 12% the Supreme Court  in  Haryana Urban Development Authority Vs. Soma Devi reported in 1(2005) CPJ 11 (SC) set-aside  the finding  and awarded interest @ 18% p.a.   When consistently the Supreme Court has been awarding interest @ 18% p.a.,  in cases where the dealings  pertain to real estates,  we do not see any reason for reducing the rate of interest. 

Therefore, we are of the opinion that the complainant is entitled to interest at 18% p.a. however, restricting the claim from the date of filing of the complaint i.e. 08-6-2009.  The complainant in the usual course would be entitled to interest from the dates of payment, however in view of the fact that she did not pay the amount as stipulated under Ex.A1 and also made a false claim for Rs.39,000/-, we do not intend to grant interest from the dates of payment.

In the result this appeal is allowed in part modifying the order of the District Forum and directing the respondent to refund an amount of Rs.1,68,000/- together with interest at 18% p.a. from the date of complaint i.e. 08-6-2009 till the date of realization while confirming the compensation and costs awarded by the District Forum and granting costs of Rs.1,000/- in this appeal to be paid within one month from the date of this order.

Sd/-PRESIDENT.

Sd/-MEMBER.                   

JM                                                                                                     Dt. 21-07-2011