F.A.No.1347/2010 against  C.C.No.512/2009 , District Forum-II, Visakhapatnam.

Between:

1. M/s.Janachaitanya Housing Pvt. Ltd.,

    Represented by its Managing Director,

    Situate at D.No.47-3-13, 5^th lane, Dwarakanagar,

    Visakhapatnam.

2. M.Sudhakar,

    Managing Director,

    M/s.Janachaitanya Housing Pvt. Ltd.,

    Situate at D.No.47-3-13, 5^th lane, Dwarakanagar,

    Visakhapatnam.                                                                 Appellants/

                                                                                                 Opp.parties

And

Lanka Sridevi,

W/o.Madhusudhana Rao, Hindu, aged

36 years, Housewife, residing at

D.No.13-28-8, Maharanipeta,

Visakhapatnam.                                                           Respondent/

                                                                                      Complainant

Counsel for the Appellants: Ms.V.Chaitanya Latha

Counsel for the Respondent:  served.

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

SRI SYED ABDULLAH, MEMBER.

AND

SRI R.LAKSHMI NARASIMHA RAO,  MEMBER

TUESDAY, THE TWENTY FIRST DAY OF DECEMBER,

TWO THOUSAND TEN

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

        This is an appeal preferred by the opposite party, developer, against the order of the District Forum directing it to pay Rs.16,000/- together with interest at 12% p.a. from 30-3-2009 till the date of realization together with compensation of Rs.1500/- and costs of Rs.1500/-.

     The case of the complainant in brief is that she is a house wife and applied for plot of land in the venture floated by the appellants under the name and style “Sai Keerthana Layout” in survey numbers 5 to 7, 10, 70 situated at Pedagadi Village Pendurthi Mandal, Visakhapatnam admeasuring 220 Sq Yards for a total cost of Rs.68,200/-.  Accordingly she paid rupees 16000/- on 4-5-98 evidenced under pass book number 522.  Despite her persistent requests to take balance of sale consideration and register the plot, it did not do so. There upon she issued a lawyer notice on 30-3-2009 for refund of the amount or registration of the plot after receiving the balance of sale consideration but did not receive any reply.  Therefore she filed the complaint seeking refund of the amount together with interest of 18% p.a. compensation of Rs.25,000/- and costs.

The appellants resisted the case.  While admitting that it has floated the venture “Sai Keerthana Layout” for sale of house plots at Rs.68,200/- however denied that the complainant had paid Rs.16,000/- on 4-5-1998.  She had opted to purchase two plots.  Having received the cheque bearing 953682 dated 7-5-98 for Rs.16,000/-, they have given pass books.  However on presentment of the cheque, it bounced due to insufficient funds therefore no permanent receipt was given to her.   The complainant had to prove that the cheque issued by her was encashed.  The allegation that the copy of the agreement was given is false and it pertains to a different complaint and the complainant suppressed the material information.  Therefore it prayed for dismissed of the complaint with exemplary costs.

The complainant in proof of her case filed her affidavit evidence and got marked Exs A-1 to A-5 while the opposite parties filed affidavit evidence of the second opposite party and got Exs.B-1 and B-2 marked. 

The District Forum after considering the  evidence on record opined that the appellant having received a cheque for Rs.16000/- issued acknowledgement under Ex. A-1 and pass book Exhibit A-2 and did not give reply to the notice issued by the complainant and therefore the complainant proved that she paid Rs.16,000/-.  The appellant did not choose either to execute the sale deed after collecting the remaining amount or refund the amount and therefore it directed  to refund the same with interest at 12% p.a. together with compensation of  Rs.15000/- and costs of Rs.500/-.

Aggrieved by the said order, the opposite parties preferred this appeal contending that the District Forum did not appreciate either facts or law in correct perspective.  It ought to have seen that the complainant could not prove that the cheque issued by her was encashed by it.  What all it has issued was a temporary receipt and that the complainant could not prove that the cheque was honoured and an amount of Rs.16,000/- was encashed.  Therefore it prayed that the complaint be dismissed. 

The point that arises for consideration is whether the order of the District Forum suffers from material irregularity or vitiated by law. 

It is an undisputed fact that the appellants agreed to sell house plots in the Venture “Sai Keerthana Layout” on payment of
Rs.68,200/- consisting of 220 sq yards.  Admittedly the complainant has issued a cheque on 7-5-98 for Rs.16,000/- in order to purchase plot.  It  is also not in dispute that appellant had issued pass book Ex.A-2.  The receipt Ex A-1 evidences the receipt of cheque.  The appellant now contends that it was only a temporary receipt and the cheque that was issued was dishonored.  Therefore it did not receive Rs.16,000/- as alleged by the complainant.  The appellant is admittedly a Private Ltd Company.  It would maintain accounts in its regular course of business.  The fact that the cheque was bounced is not evidenced by any document.  It is not known why the appellant did not file the bounced cheque along with memo issued by the bank in order to prove that the amount covered by the cheque was never received by it.  Equally the appellant could not prove as to why it  has issued passbook Ex A-2.  It has even supplied a copy of the agreement Ex A-5

Apart from all these documents the complainant has mentioned in         categorical terms that she has issued a cheque for Rs.16,000 towards part of sale consideration by issuing a registered notice under Ex A-3.  The appellant having received the same under acknowledgement, Ex A-4, did not choose to reply.  No reason what so ever was mentioned as to why it could not give reply. The enormous silence on its part invites adverse inference. Now it intends to refute the very agreement solely on the ground that the complainant might not be able to produce the returned cheque. Ex B-1, the entries in the ledger, is self serving equally Ex B-2.  We do not see any mis-appreciation of law in this regard by the District Forum.  The District Forum after considering the entire evidence has correctly come to the conclusion that the appellant had received Rs 16,000 covered under the cheque evidenced by Ex A-1.  We do not see any merits in the appeal.

In the result this appeal is dismissed with costs of Rs.1,000/-  Time for  compliance four weeks.     

Sd/-PRESIDENT.

                                                                                                Sd/-MEMBER.

Sd/-MEMBER.

JM                                                                                                     Dt.21-12-2010