Andhra Pradesh

Nellore

CC/61/2015

Yedla Eswar Reddy Represented by his father and Authorized Agent Yedla Ramachandra Reddy son of Late Venka Reddy - Complainant(s)

Versus

Iska Bramhananda Reddy, son of Sundararami Reddy - Opp.Party(s)

K.Raghunatha Reddy

04 Feb 2016

ORDER

                                                            Date of filing       :  11-11-2014

                                                             Date of disposal  :   04-02-2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Thursday, this the 4th day of February, 2016.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                             

         

                                 C.C.No.61/2015

 

Yedla Eswar Reddy,

Represented by his father and

  Authorized Agent,

Yedla Ramachandra Reddy,

Son of Late Venka Reddy,

Flat no:08, VBAA Diamond Apartment,

3^rd lane, Ramjinagar, Nellore-3                               …         Complainant

 

                      Vs.

                                                                            

1)Iska Bramhananda Reddy,

   Son of Sundararami Reddy,

   D.No.27-1-90, Audityanagar,

   Nellore-3.

 

2) Iska Meera Devi,

   Wife of Brahmhananda Reddy,

   D.No.27-1-90, Audityanagar,

   Nellore-3.

 

3. M/s.ABR Infra Projects (P) Ltd.,

   Office at P.V.R.Prestige,

   1^st floor, 2^nd lane, Ramjinagar,

   Near Children’s park, Nellore-2

   Represented by it’s Director,    

   Perumareddy Vijayakumar Reddy

 

4. Perumareddy Vijaya Kumar Reddy,

    Son of Dasaradharami Reddy,

    Sriharinagar, Ramalingapuram Extention,

    Nellore- 524 003                                              …    Opposite parties

 

This matter coming on  02-02-2016  before us for final hearing in the presence of Sri  K.Raghunatha Reddy, Advocate for the complainant and  opposite parties 1 to 3 remained absent and Sri P.Nageswara Rao, Advocate for the  opposite party No.4 and

having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

       This complaint is filed by the complainant against opposite parties 1 to 4 to direct the opposite parties 3 and 4 to refund the amount of Rs.35,000/- along with interest thereon at 24% p.a. from the date of their receipt i.e., on  17-12-2011 till the date of realization; to pay damages of Rs.50,000/- to him for causing harassment, compulsion and mis-leading him and to pay the costs of Rs.10,000/- of the complaint and also grant such other relief or the relief as the Honourable Consumer Forum may deeded it fit and proper in the circumstances and the interest of justice.

 

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I(a) It is the case of the complainant that the 1^st opposite party is the son of Sundararami Reddy, 2^nd opposite party is the wife of 1^st opposite party and both are residing at D.No.27-01-90, Audityanagar, Nellore-3.  The 3^rd opposite party is the private limited company duly registered under Indian Companies Act, represented by its Director Perumareddy Vijayakumar Reddy son of Dasaradharami Reddy, having its office at P.V.R. Prestige Apartment, 1^st floor, 2^nd lane, Ramjinagar, near Children’s park, Nellore-3.  The 4^th opposite party is residing at Sriharinagar, Ramalingapuram Extension, Nellore-3.

 

       While so, 1^st and 2^nd opposite parties are the owners of the site an extent of 86 ankanams and 66 Sq.Feet, comprised in Survey nos.842 and 849 of Nellore Bit – II area, Audityanagar area of Nellore city, bearing ward no.27-1, door no.1120 within the Nellore Municipal Corporation limits.  They had purchased the above said extent of land under a registered sale deeds dt.21-03-1988 under registered documents nos.3429/88 and 1885/1988 S.R.O. Nellore.  They are being the absolute owners of the said vacant site and entered into development agreement cum General Power of Attorney with the builder M/s.ABR INFRA PROJECTS (P) Ltd., Nellore represented by its Director P.Vijaya Kumar Reddy and the said development agreement cum GPA was registered  as document no.754/2009 dt.16-02-2009 at S.R.O., Nellore.

 

 (b)  It is also submitted by the complainant in para-4 at page no.2 of his complaint that as per the terms and conditions of the said development agreement cum GPA, the owners of said site, owners who are the opposite parties 1 and 2 and the builder who are the opposite parties 3 and 4 herein jointly and severally under took to construct multi-storied apartment complex in the said site under the name and style of V.B.A.A. Diamond Apartment which consisting of ground  + 4 floors, each floor consisting of three Flats. Accordingly, the opposite parties had constructed apartment complex in the said site and sold the entire flats to various persons under registered sale deeds.  All the purchasers had been in possession and enjoyment of their respective flats.  All the flat owners in the said apartment had also formed an association to solve their common problems in and around their apartment and it was registered as VBAA Diamond Apartment Flat Owners Welfare Association.

( c )     It is also further submitted by the complainant that in para-5  at page no.3 of his complaint that he had purchased  flat no.8 in the above said apartment.  He obtained registered sale deed from the opposite parties.  He is doing job at Chennai, because of that his father Yadla Ramachandra Reddy had been looking after the entire affairs on his behalf from the beginning.  At the time entertaining into the agreement for construction of flats, the opposite parties committed to provide all provisions and amenities to the flat owners for the purpose of their residence in the said complex.  Those were detailed in the construction agreement and also in the broacher given by the opposite parties.  As per the terms and conditions of the said construction agreements, the complainant paid the entire amount whatever agreed by the opposite party within the stipulated time.  But the opposite party did not comply their side terms and conditions and delivered possession of the said flats in an incomplete stage, without complying the agreed conditions and further made constructions in a poor quality and some of the works  in an incomplete stage and left those flats to the purchasers.  The following are the poor quality and temporary.

          Works made by the opposite party:

(a)4 persons temporary lift;

(b)installed second hand defective generator;

(c)made poor quality bathroom plumbing work;

(d) made poor quality 5^th floor roof slab and due to that heavy seepage from the roof and due to that all the walls are moisturizing.

 

(d)   It is also further submitted by the complainant in para-6 at page no.3 of his complaint that the opposite parties have to execute all the works as agreed and complete the construction of Flats. They have to provide new reputed company Solar power generator containing sufficient capacity for the said complex.  They have to provide good quality bath room plumbing by using good quality material.  They have to make alternate arrangements to stop the leakage from 5^th floor top roof and due to that the moisturizing of side walls.  But they did not comply the same and they have been postponing to perform their part of contract in doing the above mentioned works on some pretext or the other even in spite of repeated requests made by them and also issue of legal notice dated 15-06-2013.  The opposite parties sent a reply dt.24-07-2013 with all false and invented allegations and they alleged in the said reply that the Director and authorized person  Perumareddy Vijayakumar Reddy has no responsibility to do the said works as he resigned from the said company. Having no other go the said Flat Owners Association filed a complaint under C.C.No.03/2014 on the file of this Hon’ble Forum and the same is pending for disposal.

(e) It is also further submitted by the complainant in para-7 at page no.4 of his complaint that the opposite parties 3 and 4 by way of compelling and illegally collected extra amount of Rs.35,000/- from him and promising to provide generator and solar system to his flat even though he paid entire amount for his flat.  He also paid the said amount of Rs.35,000/- to the opposite parties 3 and 4 by way of cheque bearing no:776723 dated 17-12-2011 drawn on HDFC Bank, Nellore.  But they did not comply the said promise and they have been postponing the same on some pretext or the other.  They have no right to collect the said extra amount of Rs.35,000/- from the complainant.  In that connection, the opposite parties 3 and 4 executed a Ratification letter  dated 17-12-2011 in favour of the complainant.  Providing Generator and Solar System to the Apartment Complex is one of their part of contract.  But, they had been without fulfilling the same they illegally collected an extra amount of Rs.35,000/- from the complainant.  The opposite parties 3 and 4 have to refund the said amount along with interest at 24% p.a., and also damages for the fraud played by them.  The complainant issued legal notice demanding to refund the said amount along with interest @24% p.a.. The said notice was duly served on the opposite parties.  The opposite parties 3 and 4 sent a reply with all false and invented allegations.  The complainant sent a rejoinder to the reply denying their allegations.

(f)  There are causes of action to file the complaint arose on 17-12-2011 when the opposite parties 3 and 4 illegally collected extra amount from the complainant and in consideration they executed a ratification deed in favour of the complainant even though he paid the entire sale consideration.  They have to refund the above said amount along with interest at 24% p.a. The opposite parties 3 and 4 had not complied to refund the said amount even inspite of repeated demands and also issue of legal notice.  It all arose at Nellore where the said apartment is situated and the opposite parties are residing within the jurisdiction of this Honourable Forum, Nellore.  Hence, the complaint.

II.  DEFENCE:

Even though registered notices are served on opposite parties 1 to 4, but the opposite parties 1 and 2 are continuously absent and opposite party No.3 is refused. After filing Vakalat by opposite party No.4’s learned counsel had filed his written version on 3-12-2015. The complainant is continuously not showing any interest to get on with the case from 8-12-2015 and absent to the proceedings thereafter also, occasionally.

The contents of the written version of 4^th opposite party

(i)It is submitted by 4^th opposite party in para-1 at page no.1 of his written version/counter that the complaint is neither just nor maintainable either at law or on the facts of the case and it is only abuse of process of Law, it is liable to be dismissed with costs.

(ii) The 4^th opposite party had further submitted that the allegations of the complainant in the complaint are denied except that are specifically admitted herein.  The complainant is put to strict proof of the same.

(iii) It is also further submitted by 4^th opposite party that in paras-3 to 5 of his written version/counter that the person who had verified the complaint, is not entitled to file it, without proper authorization and it is incurable defect and it is liable to be dismissed on that ground alone.  He had also further stated that he has nothing to do with the 3^rd opposite party M/s.ABR Infra Projects (P) Ltd. and he is not the director of the said company as he had resigned long back.  It is a fact and it is by way of reply notice from the complainant to this 4^th opposite party that Mr.Thati Venkata Reddy became the director of the said company.  The complaint is filed with all false descriptions. It is true that the opposite parties 1 and 2 are the owners of site.  The complainant had purchased the flat from opposite parties 1 and 2 and development agreement cum G.P.A. is in between them.  He cannot claim any benefits and he is a third party as there is no privity of contract.  The 4^th opposite party has no personal obligation or liability as 3^rd opposite party is registered company.   In view of T.Venkata Reddy is the director of the said company, impleading 4^th opposite party is unnecessary as a party.  The said company is continuing its activity, without 4^th opposite party and he had resigned long back from directorship.  The complaint is filed with a malafide intention and impleading 4^th opposite party, in his individual capacity as a party.

(iv) It is also further submitted by 4^th opposite party that in para-6 of his written version/counter that the complainant had purchased flat no.11 in the said VBAA DIAMOND Apartment and obtained a registered sale deed from the opposite parties and it is prevaricative.  The executants of the said document no.1 are only 1^st and 2^nd opposite parties and now without specifying them from whom they purchased the property among the opposite parties but making a blanket allegations by the complainant against 3^rd and 4^th opposite parties also, is nothing but mis-leading and with a ulterior motives only.  It is a invention for the purpose of filing this complaint by complainant against the 3^rd and 4^th opposite parties and it is contrary to his own document no.1.   The complainant had purchased only a completed flat that fell to the share of 1^st and 2^nd opposite parties and either the 3^rd opposite party or 4^th opposite party is in no way concerned with the said transaction.  He has no privity of contract with regard to reply legal notice dt.15-06-2013 and it is not placed before this Hon’ble Consumer Forum by the complainant,  to verify it, for the reasons best known to him.  The complainant and his father alleged in the said notice that the then director and authorized person Mr.P.Vijaya Kumar Reddy has no responsibility to do the works as he resigned from the said company.  C.C.No.3/2014, complaint against 4^th opposite party is relating to the flat owners association and the said complaint was dismissed by the Hon’ble Consumer Forum, Nellore. The complainant did not establish any relation of him to the said complaint.

(v)  The allegations are made by the complainant against the opposite parties 3 and 4 and, that they collected an extra amount of Rs.35,000/- from him to provide generator and solar system, is false.  The opposite parties 3 and 4 have received by way of cheque from the complainant, is again false.  The claim against 4^th opposite party, is time barred.  It is therefore, prayed that the Hon’ble Consumer Forum may be pleased to dismiss the complaint with costs.

III.  The complainant had not filed any affidavit and he had also not filed his written arguments before this Forum and the documents are filed but not marked on his behalf, whereas the opposite parties 1 to 3 not filed any affidavit, documents and their written arguments but only the 4th opposite party alone had filed documents and which are marked as Exs.B1 to B4 and also the 4th opposite party filed an affidavit as RW1.  He is also filed written arguments on 28-01-2016 in support of his case.

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

(a)Is there any deficiency in service on the part of the opposite

    parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

           (c) To what relief?

V.  POINTS 1 AND 2 :

     In view of these two points are inter-related and depends on each other, they have been taken up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint alone.  It is nothing but repetition of them once again in his complaint.

Oral Submissions by the learned counsel for the complainant:

         Sri K.Raghunatha Reddy, the learned counsel for the complainant has vehemently argued that the opposite parties 1 and 2 are absolute owners of the site and entered into development agreement cum G.P.A. with the builder M/s.ABR Infra Projects (P) Ltd., Nellore represented by its director P.Vijaya Kumar Reddy (4^th opposite party).  The 3^rd opposite party is the said company.  He has further contended that the opposite parties 3 and 4 have collected an extra amount of Rs.35,000/- from the complainant to provide generator and solar system to the said apartment complex and they have executed a ratification letter dt.17-12-2011 in favour of the complainant.  The opposite parties 3 and 4 have to refund the said amount with interest 24% and also pay damages for the fraud played them.  Finally, the said learned counsel for the complainant has prayed the Hon’ble Consumer Forum that the complaint may be allowed with costs.

Oral Submissions by the learned counsel for the  4^th opposite party:

  On the other hand, Sri P.Nageswara Rao, the learned counsel for 4^th opposite party has also vehemently argued that the 4^th opposite party is not the director of the said company as he resigned from the directorship from it.  Ex.B1 is specifically denotes that fact and opposite party no.4 is not responsible for any liabilities incurred for the acts of 3^rd opposite party i.e., the said registered company. He has also further argued that Ex.B2 is the certified copy of the letter of the said company dt.10-08-2011 appointing Thaniparthi Venkata Reddy, director of the said company, an authorizing him to do the activities in this regard.  He has also further contended that Ex.B3 is the extract of Minutes of the meeting of Board of Directors of the said company dt.05-04-2011 authorizing new director of the company and honour its cheques.  Ex.B4 is the reply legal notice dt.16-07-2014 by the opposite party no.4 to the counsel for the complainant that the fact of his resignation as a director of the said company, intimated to him.  But, the complainant is unnecessarily impleaded 4^th opposite party in the complaint, as a party and harassed him on 25-08-2015.  Finally, the said learned counsel for the opposite party no.4, is stressed much during the course of his oral arguments of the case that, in view of documentary evidence of the facts which are established and it is prayed that the Hon’ble Consumer Forum may be pleased to dismiss the complaint with costs.

Forum’s Findings and observations

       Heard, the learned counsel for the both parties and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. The 4^th opposite party has filed his chief-affidavit that describing the facts again with documentary evidence to establish his case, in his favour.  First of all, one must come to the Forum/Court with clean hands, to seek justice.  Every case has to be judged on its own facts.

Case-Law:-

1.Deficiency in service: To bring home an allegation of deficiency in

   service, the element of willful action (oras the case may be, inaction) 

   needs to be established and onus of proof of such action or inaction

   lies on the complainant – 2010(2) CPR 89(NC).

2.The complainant must prove its claim by reliable evidence – 2011(3)

   CRP 81 (NC).

3. A person who himself is negligent cannot attribute deficiency in service

    to others – 2011(3) CPR 520 (NC).

4. The complaint based on deficiency in service must establish the same

     by leading cogent evidence – 2011(2) CPR 68 (NC).

The concept of Limitation as per Section 24-A of C.P.Act, 1986:-

   The expression, shall not admit a complaint occurring in section   24-A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed there under. As a matter of law, the Consumer Forum must deal with the complaint on merits only of the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing.  In other words, it is the duty of the Consumer Forum to take notice of section 24-A and give effect to it.  Case:- State Bank of India Vs. M/s.B.S.Agricultural Industries, AIR 2009 SC 2210.

      In the present case, the complaint was filed on 11-11-2014.  According to the contents in para – 7 of the complaint, the complainant had paid Rs.35,000/- to the opposite parties 3 and 4 by way of a cheque which was bearing no.776723 dt. 17-12-2011 drawn on HDFC Bank, Nellore. Anyhow, there is no proof of that fact which is not filed in to the Forum, for the reasons best known to the complainant.

       Section 24-A of C.P.Act, 1986, for the first time, prescribed that District Forum, State Commission or the National Commission shall not admit a complaint unless the same was filed within two years from the date on which the cause of action arose. “Prescribed period” means the period of limitation computed in accordance with the provisions of the Act.   Admittedly, no period of limitation had been prescribed in the Act before insertion of section-24A vides amendment made w.e.f. 18-06-1993.  It is conceded before us that provisions of the Limitation Act, 1963 have not been specifically made applicable to the proceedings under the Act.  The limitation Act does not extinguish a right but only bars a remedy after a prescribed period of limitation.  In view of that above discussion, the complaint is apparently barred by limitation.   

 

Cause of action: The cause of action for the present complaint which was arose on 17-12-2011, it means from this date within two years means 16-12-2013 and whereas this complaint is filed on 11-11-2014 and it is clearly barred by limitation.

Lapses on the part of the complainant:

1.The complainant is not at all specific in his case in filing his complaint against 4^th the opposite party.

2.In view of reply notice by the said learned counsel for the 4^th opposite party to the said learned counsel for the complainant on the points that 4^th opposite party had already resigned as a director of the said company but the complainant is added him unnecessarily.  It is an admitted fact by the complainant himself but alleged and impleaded 4^th opposite party as a party to the quasi judicial proceedings.  He is an unnecessary party.  Knowing full well about it by the complainant earlier, inspite of new director of the said company to be added by filing a complaint against him but the fact is neglected.  New Director is represented by the said company (opposite party No.3) and the complainant is ought to have joined the necessary parties at the time of filing the complaint as opposite parties but  for the reasons best known to him, perhaps it is forgotten as the case may be.  The Law will not permit the complainant to do so.  It is illegal and invalid for mis-joinder, of proper parties as the opposite parties.

3.  The complainant has to know the full description of the addresses of the opposite parties before filing a complaint by him.  The 3^rd opposite party is represented the said company.  Whenever, the complainant paid the amount to the then director (4^th OP), it should be paid only through a cheque or draft as the case may be, in the said company’s name but not an individual name.  According to the complainant, it is for the generator and solar system, to provide such facility.

4.When the reliefs are sought for against the opposite parties 3 and 4 specifically by the complainant in his complaint, why so much of elaborate narration of the facts of the case which are irrelevant but stated in it.  To decide a particular fact whether it is true or not, the complainant must confine himself a precise point that is involved in the consumer case instead of providing immaterial matter unnecessarily.  What is the relief as he wants from the Forum, not explained properly?

5. There are so many admissions and contradictions of the complainant in his complaint against the opposite parties.  In his complaint, it is stated as opposite parties and at the same time ‘opposite party’ singular form to allege and motivate all the opposite parties, without proof of those statements.  He is not certain about the facts of the case.

6. The complainant, for the reasons best known to him, is not at all present and put-forth his evidence in support of his pleas in the form of Chief-affidavit and with documentary evidence.  Throughout the proceedings of the Forum, complainant himself unrepresented occasionally and not filed the relevant documents, to seek reliefs as the case may be.  He filed I.A.No.3/2016 to implead necessary parties again after filing of the complaint i.e., 4 months later.   How far it is justified? It is nothing but to drag the case further.  He must be vigilant and be careful while preparing the draft of the complaint against the opposite parties properly.  He has not added proper parties as opposite parties at that time. The complaint itself is clearly barred by Limitation.

    The Indian Judiciary vested with enormous power, can alone decide questions regarding norms or law.  In other words, the Law can act as a watch dog and not as blood hound”.  Basically, it is the cardinal principle of Law that one makes an allegation is required to prove it beyond any doubt – 2011 CTJ 627(NC).  The Consumer Forum is primarily would function on the principles of Natural justice.  It is conferred with power to decide the cases on the basis of Justice, equity and good conscience.

       Having the considered the above facts and law on the subject matter of this consumer case, in the light of the above said observations, we are of the considered opinion that ends of justice would be meet if the complaint be dismissed for want of fairness on the part of the complainant. The complainant is unable to establish deficiency in service against the 4^th opposite party.  We are convinced with the arguments of the said learned counsel for the 4^th opposite party.   The complainant is miserably failed in his attempt to bring his case with proof of his allegations with documentary evidence.  He is alleged the facts but not proved them at all by cogent evidence.  These two points are held in favour of the opposite parties and against the complainant, accordingly.

 

 

POINT NO.3:   In the result, the complaint is dismissed without costs.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 4th day of February,              2016.    

 

              Sd/-                                                                             Sd/-                                                                         

         MEMBER                                                                 PRESIDENT(FAC)

 

  APPENDIX OF EVIDENCE

 

 WITNESSES EXAMINED FOR COMPLAINANT:

 

N I L -

 

 

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

08-12-2015

:

Perumareddy Vijaya Kumar Reddy, Son of Dasaradharami Reddy, Hindu, aged about 40 years, Sriharinagar, Ramalingapuram Extension, Nellore.

                                                                              

EXHIBITS MARKED FOR COMPLAINANT:

 

NIL -

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

 

Ex.B1	20-12-2011	:	Photostat copy of letter addressed by the 3rd opposite party to the Board of Directors, M/s.ABR INFRA PROJECTS (P) Ltd., Hyderabad.
Ex.B2	10-08-2011	:	Photostat copy of certified copy of extract from the minutes of the meeting of the Board of Directors of the 3rd opposite party.
Ex.B3	05-04-2011	:	Photostat copy of extract of minutes of the meeting of the Board of Directors of the 3rd opposite party.
Ex.B4	16-07-2014	:	Photostat copy of letter addressed by the Govt. of India, Ministry of Corporate Affairs DIN Cell to the 4th opposite party along with copy of legal notice.

 

 

         Id/-                                                                                               RESIDENT(FAC)

 

 

Copies to:

 

1. Sri K.Raghunatha Reddy and D.Surendranatha Reddy,Advocates, 15/790, Jamesgarden, Nellore-524 002.

 

     2) Iska Bramhananda Reddy,  Son of Sundararami Reddy,  D.No.27-1-90,

        Audityanagar,  Nellore-3.

 

     3) Iska Meera Devi, Wife of Brahmhananda Reddy, D.No.27-1-90, Audityanagar,

         Nellore-3.

 

    4) M/s.ABR Infra Projects (P) Ltd.,    Office at P.V.R.Prestige,    1^st floor, 2^nd lane,   

      Ramjinagar,   Near Children’s park, Nellore-2  Represented by it’s Director, 

      Perumareddy Vijayakumar Reddy

 

5. Sri P.Nageswara Rao and K.Praveen Kumar, Advocates, Flat No.4, 1^st Floor, C & B Apartments, Dargamitta,Nellore- 524 003.

 

          

Date when order copies are issued: