BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT  HYDERABAD.

F.A. 1569/2008  against C.C. 80/2006,  Dist. Forum, Rajahmundry    

Between:

1)  Kiran Krishna  Real Estate & Constructions

Pvt. Ltd., Rep. by its  Managing Director

D.No. 6-3-347/P/I, IInd  Floor

Near Saibaba Temple

Dwarakapuri Colony, Punjagutta

Hyderabad.                                                           ***                           Appellant/

            Opposite Party

                                                                   And

Kompella Suryanarayana Murthy

S/o.  Rama Murthy, 71 years

D.No. 46-17-36/A

Danavati Peta, Rajahmundry

East Godavari Dist.                                     ***                         Respondent/

Complainant.

Counsel for the Appellant:                          M/s.  V.G.S. Rao.  

Counsel for the Respondent:                       M/s.   S.S.R. Murthy

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

    &

                                 SMT. M. SHREESHA,  MEMBER.

MONDAY, THIS THE TWENTY SECOND DAY OF TWO THOUSAND TEN

ORAL ORDER:  (Per Hon’ble Sri Justice D.Appa Rao, President.)

***

1)                This is an appeal preferred by the  opposite party against the  order of the Dist. Forum  directing  it pay Rs. 2,53,896/-  together with interest  besides compensation of Rs. 30,000/- and costs.

2)                The case of the complainant in brief is that   in the venture floated by the appellant for allotment and  sale of plots, he joined as a member.  It had allotted plot No. 114  comprising 311 sq.yds  at a total cost of Rs. 2,56,575/- at Rs. 825/- per sq.yd to be paid in 40 monthly instalments under letter dt.  6.3.1999.    He paid the entire amount.    The appellant company had not delivered the registered plot despite several requests made,  and on that it assured that it would complete the development in all respects by letter dt.  21.7.2002. However, it did not,  and therefore he got issued registered notice dt. 17.9.2003 for which the Managing Director promised to settle the matter, however agreed to register the sale deed for 200 sq.yds,  and return difference of price for  111 sq.yds.  He had agreed for the said proposal.  The appellant gave demand draft for Rs. 50,000/- towards part payment.  There upon he got issued a legal notice dt.  8.5.2006 for which it did not give any reply.    Alleging deficiency in service on this aspect filed the complaint to execute registered sale deed for the property or in the alternative to pay Rs.  2,23,896/- together with compensation of Rs. 20,000/- for mental agony,  and costs. 

3)                The appellant resisted the case.   While admitting that it had floated  a  venture  for selling the plots  and  that  it had allotted  plot No. 114 comprising of 311 sq.yds  for Rs. 2,56,575/- at Rs. 825/- per sq.yd  to be paid in 40 instalments  it alleged that the complainant  had failed to pay the instalments as promised violating the terms of the contract wherein there was provision if the member failed  to pay the instalments for a continuous period of three months his membership would be cancelled without any intimation and the amount would be forfeited.  The complainant had paid Rs. 1, 04,100/-.  It did not receive any amount after 15.3.2001.    The receipts filed  by  the complainant were fabricated and forged.   There was no site in order to execute the sale deed in favour of complainant.    The complainant agreed for settlement at Rs. 1 lakh and in fact received Rs. 50,000/- as part payment.    It had agreed to pay the remaining balance in the month of February. He had in fact received Rs. 50,000/- however the complainant demanded interest on the balance at 9% p.a.  Therefore it 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 A10 marked while the appellant did not file  either affidavit evidence or any documents. 

5)                The Dist. Forum after considering the evidence placed on record opined that   the appellant had  floated a venture  wherein it agreed to sell  311 sq.yds  for Rs. 2,56,575/-  under allotment letter Ex. A2 and promised that the venture  would be completed  in March, 2001,  and the registration would also be done.    It could not deny the receipts that were filed by the complainant.   The appellant having  received the amount towards sale consideration without sticking to the dates, cannot turn round and say that the allotment was cancelled and therefore not liable to pay the amount.   Since there was escalation of prices  in regard to immovable property  awarded damages of Rs. 30,000/-together with costs with a direction to refund Rs. 2,53,896/- with interest @ 12% p.a.,

6)                Aggrieved by the said order, the appellant preferred the appeal contending that the Dist. Forum did not appreciate either facts  or law in correct perspective.  It ought to have seen that the receipts filed by the complainant subsequent to 15.3.2001 were forged and fabricated.    In fact the dispute was settled for Rs. 1 lakh and he had received Rs. 50,000/-.   He was entitled to balance of Rs. 50,000/- only.    Awarding interest @ 12% p.a., is excessive and therefore it prayed that an amount of Rs. 50,000/- could be directed to be paid by it. 

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 the appellant dealing in real estate    business floated a venture wherein it had agreed to sell plot No. 114 comprising 311 sq.yds. for Rs. 2, 56,575/- at Rs. 825/- per sq.yd to be paid in 40 monthly instalments evidenced under Ex. A2.  Later at the instance of appellant the extent was reduced to 200 sq.yds,  and therefore difference amount for 111 sq.yds was paid evidenced under Ex. 10.    It may be stated that the complainant had categorically stated about the payment and filed receipts marked as Ex. A1.    Except stating that it had received only  Rs. 1,04,100/- and the receipts  that were filed from 15.3.2001 on wards were all fabricated and forged, the appellant did not take any steps to send it to hand writing expert or any other evidence to prove that these receipts  were all forged

Even he did not file his own affidavit evidence to deny the genuineness of those receipts on oath.    The evidence of the complainant stands  uncontroverted in this regard.    It is not sufficient if a plea is taken, the burden lies on the appellant to prove the same.    Had these documents were created undoubtedly the appellant would not have addressed letters  Ex. A3 & A4 to the complainant promising that it would fulfil  its commitment for registration of plot.    In fact in Ex. A4 it made it clear that “We will be happy to receive your prompt payments along with pending instalments if any on or before 30.4.2000 to regularize your membership.  Kindly extend your co-operation in this regard, without which we will have to reconsider your membership.”   There was no mention that the complainant did not pay the amount,  and therefore his membership was cancelled and that the amount was forfeited.    In fact there is no clause or condition wherein the appellant could forfeit the amount.   There is no reason why the appellant did not respond to the legal notice issued under Ex. A7 wherein there was a categorical mention  that he had paid Rs. 2,53,925/-.  The complainant himself has stated that an amount of Rs. 50,000/- was paid towards difference of amount pertaining to the extent.      

9)                The appellant had no compunction to receive the amounts even beyond the stipulated period and never returned the amount on the ground that it was beyond the period stipulated.  The appellant cannot turn round and contend that since payments were irregular it was entitled to forfeit the amount.  It cannot blow hot and cold at the same time.    The appellant could not prove that he had only paid Rs. 1, 04,100/- as against sale consideration of Rs. 2, 56,575/-.    An amount of Rs. 50,000/- that was paid towards difference of extent which the complainant had stated in his complaint.    The appellant could not prove that there was settlement for Rs. 1 lakh and that he paid Rs. 50,000/- and therefore he was entitled to Rs. 50,000/- only.  This contention has no legs to stand. 

10)               The learned counsel for the appellant contended that granting interest @  12% p.a., is on higher side and it could have been only at 9% p.a.  Recently the Supreme Court in New India Assurance Company Ltd. Vs.  Protection Manufacturers Pvt. Ltd., reported in (2010) 7 SCC 386  observed that awarding interest @12% p.a., at the prevailing bank rates cannot be said to be on higher side,  and the same could be granted.

11)               An amount of Rs. 30,000/- was awarded towards compensation for deficiency in service on the ground that despite payment of amount by the complainant, the appellant could not complete the transaction.  It had agreed to sell the plot however sold away the same to a third party without disclosing the amount collected towards said transaction.    In the process it must have been benefited.    It is an undisputed fact that the value of house sites in and around Hyderabad has been on increase.   A mere Rs. 30,000/- towards damages for the transaction that was entered into by the appellant in 1999 and for the claim made by the complainant in 2006 cannot be said to be high.    The appellant had the advantage of this amount all through.    The complainant has lost the facility of the plot all through.    Therefore, we do not see any mis-appreciation of fact or law in this regard by the Dist. Forum.

12)               In the result the appeal is dismissed with costs computed at Rs. 2,000/- Time for compliance four weeks.   

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

   Dt.   22. 11. 2010.

*pnr

“UP LOAD – O.K.”