FA No.1097/2008 against CD.No.43/2006 District Consumer Forum-I, Hyderabad.

Between:

1.Modi Properties & Investments Pvt. Ltd.

   Off: 5-4-187/3 & 4, III Floor, Soham Mansion,

   M.G.Road, Secunderabad,

   Rep. by its Managing Director,

   Mr.Soham Modi, S/o.Sri Satish Modi,

   Aged 37 years.

2.Mr.Soham Modi, S/o.Satish Modi,

   Aged 37 years, Occ: Business,

   At 5-4-187/3 & 4, III Floor, Soham Mansion, M.G.Road,

   Secunderabad.

3.Mr.Jagadish Kanaiya,

   Aged about 50 yrs. Occ: Service,

   R/o.May Flower Park, Mallapur, Hyderabad.

(Appellant No.3 is not necessary party)

…Appellants/O.Ps.1 to 3.

And

1.P.B.Venkatesh, S/o.P.B.Ananthaiah,

   Aged about 54 years, Occ: Business.

2.Smt.P.B.Jyotsna Rani, W/o.P.B.Venkatesh,

   Aged about 46 years.

3.B.Ananth, S/o.P.B.Venkatesh,

   Aged about 24 years, Occ: Business.

4.B.Mohit, S/o.P.B.Venkatesh,

   Aged about 21 years, Occ: Business.

All are R/o.1-2-63/A, Kakatiyanagar, Habsiguda,

Hyderabad.

…Respondents/Complainants.

Counsel for the Appellants          :      Mr.C.Balagopal.

Counsel for the Respondents      :      Admn.Stage.

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

SMT.M.SHREESHA,HON’BLE LADY MEMBER,

AND

SRI G. BHOOPATHI REDDY, HON’BLE MALE MEMBER.

THURSDAY, THE TWENTY EIGHTH DAY OF AUGUST,

TWO THOUSAND EIGHT.

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

*******

            Heard the learned counsel for the appellants. 

1.         This is an appeal preferred by the opposite parties against the order of the District Consumer Forum-I, Hyderabad, dated 24.01.2008 in CD.No.43/2006 directing them to refund Rs.1,07,000/- with interest at 12% per annum besides compensation of Rs.10,000/- and costs of Rs.2,000/-.

2.         The case of the complainants in brief is that the appellants had offered to sell two flats at May Flower Park covered by S.No.174, Mallapur, Near Nacharam, Hyderabad on payment of consideration of Rs.8,27,000/-each  inclusive of registration and stamp duty.  The extent of each flat is 700 sq.feet and the total consideration was Rs.8,27,000/-.  After much persuasion the appellants had executed sale deeds on 21.04.2004.  Though the agreed amount was paid  by way of cheque as long back as on 24.06.2003 by reposing confidence, however on calculation it was found that an amount of Rs.1,90,500/- was collected in excess.  They have failed to credit the payments made on 28.05.2003, 18.06.2003, 24.06.2003 and 28.07.2003 totaling to Rs.1,90,000/-.  When a registered notice was issued demanding refund of the amount, they did not even send a reply.  This amounts to deficiency in service.  Therefore, they prayed that the said amount be paid to the complainants with costs.

3.         The opposite parties resisted the case by filing counter.  It was alleged that the total consideration that was agreed to be paid was Rs.8,27,000/-.  It was not inclusive of registration charges and stamp duty.  As per the terms of booking, an amount of Rs.9,42,400/- had to be paid.  However, the sale consideration was shown at Rs.8,27,000/- in order to save stamp duty and registration charges.  The complainants  had to pay the difference of sale price.  The claim was also barred by limitation and prayed for dismissal of the complaint with costs.

4.         The complainants in proof of their case filed documents, Exs.A.1 to A.21, while the respondents did not choose to file any documents. 

5.         The District Forum after considering the documentary evidence placed on record opined that an amount of Rs.1,07,000/- was received in excess.  The contention that in order to save stamp duty and registration charges less consideration was mentioned in the sale deed cannot be countenanced.  It is an offence under Registrations Act.  Therefore, the complaint was allowed in part directing opposite parties 1 to 3 to refund Rs.1,07,000/- with interest at 12% per annum together with compensation of Rs.10,000/- and costs of Rs.2,000/-. 

6.         Aggrieved by the said decision, the opposite parties preferred this appeal contending that the District Forum did not appreciate the facts in correct perspective.  There was no excess payment as claimed by the complainants.  In order to save the stamp duty and registration charges, a lesser value was shown in the sale deed as they would get exemption under Sec.80 1 (B) of the Income Tax Act.  Therefore, there was no need for them to refund the amount that was paid by the complainants.  The appeal be allowed dismissing the complaint. 

7.         It is an undisputed fact that the complainants had paid Rs.9,43,000/- evidenced under Exs.A.1 to A.4 and Ex.A.5 to A.15.  In the very counter at para 9 the appellants had admitted that the excess amount was paid by the complainants.  It intends to explain that the sale consideration as per booking was Rs.8,27,000/- and an amount of Rs.1,15,000/- was collected towards registration and other charges.  This is to avoid payment of excess registration and stamp duty.  We reiterate that this amounts to cheating the government.  Avoidance of this amount is to benefit itself.  It is unjust enrichment.    Yet another contention is that the difference was wrongly arrived at by the complainants without taking into consideration the charges paid towards registration and other incidental charges.  In Ex.A.17 and A.18 the details of cost of flats were given showing market value for the purpose of execution of sale deeds and registration.  The appellants did not include Rs.1,90,000/- paid by the complainants.  Necessarily, they have to account for it which are covered under Exs.A.5 to A.15.  When the appellants knew full well that the entire sale consideration was not shown in the sale deeds, and lesser value was shown, they cannot defend such an action being contrary to law and unholy.  The appellants ought not to have subscribed such sort of contention.  Therefore, the District Forum after considering this aspect of the matter opined that the appellants had to refund Rs.1,07,000/- with interest at 12% per annum and a reasonable compensation of Rs.10,000/- and costs.  Necessarily refusing to pay the said amount despite a registered notice being served on them amounts to deficiency of service.  At the cost of repetition, it may be stated that the appellants even did not give any reply to the notice issued by the complainants in this regard.  Necessarily, adverse inference has to be drawn.  We do not see any error either in appreciation of fact or law.  We do not see any merits in the appeal.

8.         In the result, the appeal is dismissed at the stage of admission.  No costs.  Time for compliance four weeks.

PRESIDENT              LADY MEMBER         MALE MEMBER

Dt:28.08.2008.

Vvr.