AT HYDERABAD.

F.A.  207/2010  against C.C. 583/2009, Dist. Forum-II, Hyderabad.     

Between:

S. L. Narasimha Rao

Rep. by G.P.A. Holder

S. S. Rao, S/o. Late S.L.N. Rao.

Plot No. 91 & 92, Manasani Colony

Jodimetla X Roads, Warangal Highway

Ghatkeswara Mandal

Hyderabad-500 088

Ranga Reddy Dist.                                      ***                         Appellant/

                                                                                                Complainant.

                                                                   And

Amareswara Rao,

Rep. by its Executive Director

Chalapathy Estates Pvt. Ltd.

502, Nilgiri  Block,

Aditya Enclave, Ameerpet

Hyderabad-16.                                            ***                         Respondent/

                                                                                                Op

Counsel for the Appellant:                          P.I.P.

Counsel for the Resp:                                 Mr. M. Sreenivas Swarup.                                                                

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

                 SMT. M. SHREESHA, MEMBER

MONDAY, THIS THE FIFTH DAY OF JULY TWO THOUSAND TEN

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

                                                          *****

1)                Appellant is unsuccessful complainant.

2)                The case of the complainant in brief is that he  had paid Rs. 1,01,000/-  as  an advance  evidenced under  Ex. A2 & A3  as against  total cost of Rs. 7 lakhs  for allotment of  plot No. 202,  admeasuring  200 sq.yds in Chalapathi  Melbourne House  Project at Kadthal.    One Sri  Prakash Ojha, Regional Manager has given discount of Rs. 40,000/- evidenced under  letter Ex. A4.   Later when the respondent was not  responding he issued  Ex. A5  notice dt.  31.12.2008  requesting the respondent  to refund the amount, in view of the fact that  there was lack of  transparency  and no agreement was even executed, and he was kept in dark as to the existence of any rules.    A belated reply  Ex. A6 dt.  4.2.2009  was given  directing the complainant to pay Rs. 2,55,000/- towards backlog of EMIs.    At any rate he was entitled to 40% of the deposit amount and  even 60% was forfeited  by virtue of clause 10  of  the terms and conditions  in  the pass book.    The complainant  thereupon   claimed refund of  Rs. 1,01,000/- with interest  and costs.

3)                 The respondent resisted  the complaint on the ground that the complaint was not filed against  Chalapathi  Estates  which had floated the venture  but against M. Amareswara Rao  in his individual capacity and therefore not maintainable.   The complainant having paid  the amounts in part, could not have the benefit of  Rs. 40,000/-.   It would be extended  only for those  people who had paid the amount in lump sum.   As against  total cost of Rs. 7 lakhs  the complainant  has to pay Rs. 6,60,000/-  besides charges for registration etc.    He did not pay any instalment amounts except the amount paid initially,  despite the pass book given to him  categorically mentioning  that he had to pay the  EMIs  as per the scheme.    Since the complainant was seeking refund of the amount without payment of any balance towards plot  he was  not entitled to any amount.  He could not be termed as consumer.   Therefore he prayed for dismissal of the complaint with costs. 

4)                 The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A7 marked while the respondent filed the affidavit evidence of  M. Pandu Ranga, General Manager, Chalapathi Estates Pvt. Ltd. and  he did not  file any documents to  substantiate the contention. 

5)                 The Dist. Forum  dismissed the complaint solely on the ground that  the complaint was filed against the respondent in his individual capacity without impleading   M/s. Chalapathi Estates Pvt. Ltd. as a party.    At any rate default was  committed by the complainant.   The complaint was dismissed  accordingly. 

6)                 Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective.   It ought to have seen that all through  Sri M. Amareswara Rao,  Executive Director was representing   M/s. Chalapathi Estates Pvt. Ltd.   In fact he received the notice and got issued a reply.   At no time it was revealed the status of the parties  in order to file the complaint.    At any rate, he filed a petition to implead  M/s.  Chalapathi  Estates Pvt. Ltd. represented by  M. Amareswara Rao, Executive Director and  M. Pandu Ranga, General Manager.    Therefore he prayed that the appeal be allowed.

7)                 The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                 It is an undisputed fact that  in the venture floated by the respondent  for sale of  house plots  the complainant  had paid Rs. 1,01,000/-  on  7.12.2007  evidenced under Exs. A2 & A3, basing on which plot No. 202  was allotted  evidenced under Ex. A4.  It is also not in dispute that  one  Prakash Ohja,  Regional Manager gave discount of Rs. 40,000/-  vide Ex. A4.    One year after payment of the amount, the complainant himself in the first instance gave  notice  on 31.12.2008 evidenced under Ex. A5  to  M. Amareswara Rao, designating him as  Executive Director mentioning that  there was no transparency  in the transaction and no agreement was taken.   He was not aware of the terms and conditions  and therefore he sought for refund of the amount paid by him. 

8)                 It is important to note that  M. Amareswara Rao  had received the notice  when it was sent to him as  Executive Director of the company.    The Chief Branch Manager, Chalapathi Estates Pvt. Ltd.  issued a belated reply  Ex. A6 dt.  4.2.2009  mentioning that  pass book was issued  wherein terms and conditions were made a mention, and clause -10  of the  pass book stipulates that  in case of default of  three months consecutively,   60% of the amount paid would be forfeited and 40% would be refunded.    Despite the fact that the complainant   has all through complaining that  he was not given pass book  and that he was not aware of  the terms and conditions, the respondent for the reasons best known did not even file  a copy of the pass book  maintained by it in order to  prove that  the complainant had to pay the amounts  by way of EMI every month  commencing from a particular date.   Except taking the plea that  the complainant had to pay  the amounts towards EMIs every month by way of instalments, we repeat  that the respondent did not  file any document  in order to substantiate that  the complainant  had failed to adhere  to the terms of the agreement.    

9)                The reason given by the respondent  for not contacting the complainant  was that he had changed his  address.   The respondent could not prove as to the exact address  that was given by the complainant and  later the address that was changed in order to show  that  it had tried to contact the complainant.    There  is no reason why  the  respondent did not issue any notice  all through, demanding the complainant to pay the amount.   It did not issue any notice informing that he had committed default.  Only on the notice given by the complainant, it has given a reply.    By then the complainant  has sought for refund of the amount.  Therefore,  demanding the complainant to pay  Rs. 2,55,000/-  towards EMI backlog  has no meaning.   We may also state that  the respondent being a company  incorporated under the Companies Act  would undoubtedly maintain accounts.  It could have filed the  documents  in order to substantiate  that the purchasers had to  pay the amounts in instalments.    When the evidence filed by the complainant could not be refuted  by filing  documents, the respondent cannot retain the amount.   It had already utilized the amount for its business.

10)               No doubt the complainant  did not implead the company represented by its  Executive Director.   On the other hand he impleaded the executive director by  his name, mentioning the name of the company.  It is purely technical.    Unlike  a civil suit, where provisions  of C.P.C. are to be adhered to  wherein a  separate procedure is prescribed  for filing a complaint against  the partnership firm and the companies,  no such procedure is contemplated in regard to complaints filed  before the consumer fora  under the Consumer Protection Act.    In fact in the preamble  in the statement of objects and reasons, the Parliament has categorically mentioned that consumer fora had to observe  the principles of natural justice and have been empowered to give reliefs of a specific nature  and to award wherever appropriate compensation to  consumers.    Therefore the contention that  Chalapathi Estates Pvt. Ltd.,   which had floated the scheme  was not impleaded  would in no way  debar the complainant  from seeking refund of the amount paid by him.    Impleading the Executive Director as  a party,   who in fact had received the notice Ex. A5 and gave reply Ex. A6  would suffice.    He never took any objection for issuing notice  in his personal capacity.      Therefore he cannot turn round and contend that the complaint was  not filed against the company  and therefore he was  not  liable.   These are all  hyper technical pleas  which had no place in  the proceedings taken under the  Consumer Protection Act.    Since this Commission  has no advantage of verifying  the terms and conditions of the venture, and more so  when the complainant disputes  about the issuance of pass book, relying  on some of the clauses,  the respondent cannot forfeit the amount.    We repeat, we do not have the advantage  of looking  into those terms and conditions  in order to find out  whether the company  can forfeit the amount.   It is not the case  where the complainant  is not entitled to any amount.  Even assuming that the contention of the respondent is true  by its own contention  it is bound to refund 40% of the amount which it did not pay.    Therefore, we are of the opinion that the Executive Director is bound to  refund the amount together with interest  @ 9% p.a.,  from the date  of complaint.

11)               In the result the appeal is allowed  in part, consequently the complaint  is allowed in part  directing the respondent to refund Rs. 1,01,000/- together with interest @ 9% p.a., from the date of complaint viz., 23. 7. 2009  till the date of realization together with costs of Rs. 5,000/-.  Time for compliance four weeks.

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

   Dt.  05. 07.  2010.

*pnr

“UP LOAD – O.K.”