Andhra Pradesh

Visakhapatnam-II

CC/146/2012

G. Srinivasa Rao - Complainant(s)

Versus

M/s Ganesh Township Private Limited - Opp.Party(s)

P. Mariadas

12 Feb 2015

ORDER

                                              Date of Registration of the Complaint:10-05.2012

                                                                                                Date of Order:12-02-2015

BEFORE THE DISTRICT CONSUMERS FORUM-II AT

                             VISAKHAPATNAM

 

P  r  e  s  e  n  t:

1.  Sri H. Ananda Rao, M.A., L.L.B.,

     President           

2. Smt K. Saroja, M.A. B.L.,

     Lady Member 

                                3. Sri C.V. Rao,  M.A., B.L.,

                                     Male Member

 

                          Thursday, the 12^th day of February, 2015.

                                 CONSUMER CASE No.146/2012

Between:-

Sri Gadisetti Srinivasa Rao, S/o Peddiraju,

presently residing at 4785 Boxwood way,

Bublin California 94568, USA, represented

by his Special Power of Attorney Holder,

Sri Machetti Thrinadh, S/o M.S. Bhagavanlu,

Hindu, aged 38 years, residing at Door

No.50-117-3/3, North Extension, Seethammadhara,

Visakhapatnam-13.

….. Complainant

And:-

M/s. Ganesh Township Private Limited.,

represented by its Managing Director,

E. Kameswara Rao, Office at D.No.43-20-25A,

Dondaparthy Junction, Visakhapatnam-530 016.

                                                                                            …  Opposite Party  

                           

          This case coming on 27.01.2015 for final hearing before us in the presence of Sri P. Mariadas & Sri B. Ganesh Patro, Advocates for the Complainant and Sri S.K.S.K. Sarma & Sri R. Srinivas , Advocates for the Opposite Party and having stood over till this date for consideration, this Forum made the following:

 

                                                ORDER

          (As per Sri. H. Ananda Rao, Honourable President, on behalf of the Bench)

 

1.       This consumer complaint is filed by the Complainant against the Opposite Party directing him to pay an amount of Rs.1,45,000/- (Rupees One lakh and forty five thousand only) with interest @ 24% p.a. from 08.11.2005 till the date of realization, Rs.5,00,000/- towards compensation and Rs.2,000/- towards costs.  

 

 

 2.      The case of the Complainant in brief, is that the Opposite Party has been doing Real Estate business by preparing layout and demarcating plots with different extent to allot its members and he joined as a member on 12.08.2000 in the venture namely Sindu Nagar and he was issued a Pass Book bearing No. VSP/139 with a promise to allot Plot No.498 to an extent of 400 Sq. yards in the housing plots layout at Chepaluppada Village, Bheemunipatnam Mandal of Visakhapatnam District and paid Rs.25,000/- towards initial amount to the Opposite Party by way of DD which was acknowledged by letter dated 9.9.2000 and that the duration of this scheme 30 months on installments of Rs.7,000/- has to be paid for each installment.   It was further stated that all the statutory permissions shall be obtained for the land acquisition and approvals by concerned authorities for layout and prepare the plots under the scheme.

 

3.       That he paid the total amount of Rs.1,25,000/- to the Opposite Party who executed an Agreement for Sale in his favour on 5.6.2002.  However, the Opposite Party failed to acquire land and prepare the layout as promised and the Opposite Party addressed a letter dated 14.12.2002 to him stating that he was going ahead with land acquisition and on that he visited the office of the Opposite Party and asked for the layout physically on ground the Opposite Party has not responded positively and finally with a hope that he will obtain permission he paid an amount of Rs.15,000/- on 8.11.2005 which come to a total figure of Rs.1,45,000/-. 

 

4.       That the Opposite Party assured registration of plot in coupled of months and thereby he could pay the balance amount Rs.55,000/- at a time at the time of registration but the Opposite Party successfully postponed the same on one ground or other.   There upon he demanded the Opposite Party to return the amount with interest on several occasions but there is no proper response and on that he got issued a Legal Notice dated 19.08.2011.   Hence, this case.

 

5.       The case of the Opposite Party denying the material averments of the complaint admitted the Complainant joined as a member in the venture viz., “Sindhu Nagar” on 12.08.2000 by executing admission form and as per scheme the Complainant has to pay monthly installment of Rs.7,000/- for a period of 30 months without any default then only it is obligation on him to handover the plot at the end of the scheme and at the time of registration of sale deed.    But the Complainant committed default in payment of amount as per agreement and further stated they have not received initial amount of Rs.25,000/- and question of the acknowledged by the Opposite Party letter dated 9.9.2000 does not arise.    He further denied the receipt of total amount of Rs.1,25,000/- and execution an agreement for sale he also stated the Complainant violated the terms and conditions of the scheme.    The allegations of the Opposite Party failed to acquire land and prepare the layout as promised by it are all invented for the purposes of this complaint.   The Complainant never visited their office.   The member who paid installment under the scheme, they have allotted plots.   The Complainant knows very well that he committed default in payment of installments under the scheme, as per the condition No.13 his membership was removed and he is only entitle refund of amount after deducting over heads at the end of scheme.  

 

6.       That the Complainant is a defaulter.   The Complainant paid an amount of Rs.15,000/- on 8.11.2005 i.e., the total amount of Rs.1,45,000/- and that they assured registration of the plot are all false and they are created for the purpose of the petition.   This Forum has no jurisdiction and the Civil Court alone his having jurisdiction.   For these reasons, the complaint is liable to be dismissed.

 

7.       To prove the case on behalf of the Complainant, he filed his evidence affidavit and got marked Exs.A1 to A18.   On the other hand, on behalf of the Opposite Party, he filed his affidavit and got marked as Ex.B1.

 

8.       Ex.A1 is the Pass Book issued by the Opposite Party in favour of the Complainant dated 12.08.2000.   Ex.A2 is the Receipt No.331 an amount of Rs.5,000/- issued by the Opposite Party in favour of the Complainant dated 12.08.2000.   Ex.A3 is the Receipt No. 368 an amount of Rs.20,000/- issued by the Opposite Party in favour of the Complainant dated 30.08.2000.   Ex.A4 is the Receipt No. 2063 an amount of Rs.20,000/- issued by the Opposite Party in favour of the Complainant dated 10.11.2000.   Ex.A5 is the Receipt No.3231 an amount of Rs.20,000/- issued by the Opposite Party in favour of the Complainant dated 20.03.2000.   Ex.A6 is the Receipt No.3759  an amount of Rs.20,000/- issued by the Opposite Party in favour of the Complainant dated 16.05.2000.   Ex.A7 is the Receipt No.1387 an amount of Rs.20,000/- issued by the Opposite Party in favour of the Complainant dated 11.02.2002.   Ex.A8 is the Letter addressed by the Opposite Party to the Complainant dated 08.09.2000.   Ex.A9 is the letter addressed by the Opposite Party to the Complainant dated 09.09.2000.  Ex.A10 is the letter addressed by the Opposite Party to the Complainant dated 10.10.2000.   Ex.A11 is the letter addressed by the Opposite Party to the Complainant dated 16.11.2000.   Ex.A12 is the letter addressed by the Opposite Party to the Complainant dated 14.12.2002.   Ex.A13 is the Complainant’s payment particulars issued by the Opposite Party dated 06.08.2002.    Ex.A14 is the Complainant’s payment particulars issued by the Opposite Party dated 04.12.2002.   Ex.A15 is the complainant’s payment particulars issued by the Opposite Party dated 08.11.2005.   Ex.A16 is the Agreement for Sale executed by the Opposite Party in favour of the Complainant dated 15.02.2002.   Ex.A17 is the Registered Lawyer’s Notice issued by the Complainant’s counsel to the Opposite Party’s counsel dated 19.08.2011.   Ex.A18 is the Acknowledgement from the Opposite Party dated 24.08.2011.

 

          Ex.B1 is the Application of the Complainant dated 30.08.2011.

 

9.       Both parties filed their respective written arguments.

 

10.     Heard oral arguments from both sides.

 

11.     Now the point that arises for determination is:-

Whether there is any deficiency in service on the part of the Opposite   Party and the Complainant is entitled for the reliefs of advance amount with interest, compensation damages and costs.

 

12.     The contention of the Opposite Party is that this Forum has no jurisdiction to entertain this complaint.   Even according to the case of the Opposite Party, the Complainant paid some amount after joining under the relevant scheme.    Therefore, the Opposite Party has no right to blame the Complainant as a defaulter when it has failed utterly to acquire land and show a layout physically on ground.   To show that the membership of the Complainant has been cancelled, no proof is failed by the Opposite Party therefore, the Opposite Party is not competent to speak about anything of the contract when it has filed absolutely to bring out the layout for allocating the housing plots of its members and thus committed a breach of contract which certainly amounts to deficiency in service and there is a consumer relationship between the Complainant and the Opposite Party.   Though it is a fit case to be filed in the Civil Court for specific performance but it is no bar to obtain a remedy under the Consumer Protection Act.   For these reasons, we hold that this Forum has jurisdiction to adjudicate the matter.

 

13.     There is no dispute regarding the membership and the payment of amount towards installments and the contract under the sale agreement vide Ex.A16 dated 5.6.2002, and with regard all the relevant documents filed along with the Complaint much less Exs.A2 to A15.   The Opposite Party has been doing business in real estate by purchasing land   and preparing layout and demarcating plot with different extents to allot to its members joined under the relevant schemes.    The Complainant joined as a member on 12.08.2000 in the venture namely “Sindhu Nagar” and he was issued a Pass Book bearing No.VSP/139 with a promise to allot Plot No.498 vide Ex.A1 to an extent of  400 Sq. yards in the housing plots layout at Chepaluppada Village, Bheemunipatnam Mandal, Visakhapatnam District.   Ex.A1 clearly goes to show the Authorized Signatory i.e., the Incharge of Ganesh Township (P) Limited, Sindhu Nagar signed there in and if shows an initial amount of Rs.25,000/- was paid to Opposite Party by way of DD.

 

14.     The record shows that the duration of the scheme was 30 months and the monthly installments was Rs.7,000/-  and it was also promised by the Opposite Party that all the statutory permissions for the land acquisition and the preparing layout would be obtained from the concerned authorities.   The exhibits marked on behalf of the Complainant i.e., the relevant receipts clearly shows the Complainant paid a total amount of Rs.1,25,000/- and on that the Opposite Party executed Ex.A16 agreement on 5.6.2002.   The evidence of the Complainant further goes to show the Opposite Party failed to acquire land even by 5.6.2002.   The Opposite Party assured the Complainant through Ex.A12 letter dated 14.12.2002 that it was going ahead with land acquisition and departmental approvals of land conversion by March, 2003.   His evidence also reveals when he visited the office of the Opposite Party and insisted to show the layout physically on ground  particulars of the land acquired for preparing layout, the Opposite Party did not respond properly.   The record further shows he paid an amount of Rs.15,000/- believing that the Opposite Party would prepare the layout and allocate a plot to him.   Thus, the evidence of the Complainant together with Ex.A1 to A15 clearly goes to show that the Complainant paid a total sum of Rs.1,45,000/- by assuring the balance of Rs.55,000/- will be paid on the day of registration of sale deed, but the Opposite Party failed to acquire the land by saying one reason or other;  and due to the attitude of the Opposite Party, the Complainant not only demanded orally but also issued notice to the Opposite Party to refund the amount paid by him together with interest thereon vide Ex.A17 but there was no response from the Opposite Party receipt of notice vide Ex.A18.    All these acts of the Opposite Party indicate there is a deficiency of service on the part of the Opposite Party; therefore, the Complainant is entitled for recovering of the amount paid by him i.e., Rs.1,45,000/- (One lakh and forty five thousand only). 

 

15.     The contention of the Opposite Party is that as the Complainant became a defaulter of the installments and his membership had been removed and his only entitled to refund of the amount after deducting over heads at the end of the scheme.   To prove the same there is no recorded evidence let in by the Opposite Party, therefore, the contention of the Opposite Party has no legs to stand.   For all these  reasons, we are of the considered view that the Complainant is entitled for an amount of Rs.1,45,000/- with interest from the date of issuing of notice i.e., from 19.08.2011 till the date of realization.

 

 16.    Now the question that comes up for consideration, at this stage of our discussion what is the rate of interest for which the Complainant is entitled.   The rate of interest claimed by the Complainant is 24% p.a.  This rate of interest claimed by the Complainant appears to be excessive, of course, it is a fact that the transaction covered by Ex.A1 is in commercial in nature, but that does not and cannot mean to say that the Complainant is a licenced to claim interest @ 24% p.a. on Ex.A1.    But at the same time, it is imperative on our part to award a reasonable interest.   Having regard to all these facts and circumstances, we sincerely feel having considered the case on hand awarding of interest @ 9% p.a. would better serve the ends of justice.    Consequently, we proposed to fix at rate in question @ 9% p.a. on Ex.A1 in question.   Accordingly interest is ordered.

 

17.     Whether the Complainant is entitled for compensation of Rs.5,00,000/- is to be considered.   It appears as seen from the evidence of PW-1 that the Complainant was compelled to approach the Opposite Parties and therefore experienced a lot of physical strain besides mental agony and financial loss. It is un-dispute fact that the Opposite Parties did not refund the amount subscribed by the Complainant.   Naturally that made have put the Complainant to suffer some mental agony besides physical stress and strain.   In this view of the matter, we sincerely feel that it is a fit case to award compensation.   But that does not and cannot mean to say that the Complainant claim for compensation is acceptable.    Having regard to all these facts and circumstances, we are of the considered opinion, award and compensation of Rs.15,000/- would serve the ends of justice.   We therefore, proposed to award compensation of Rs.15,000 /-,  in the circumstances of the case on hand. Accordingly this point is answered.

 

18.     Before parting our discussion, it is incumbent and imperative on our part to consider the costs of litigation.    The Complainant ought not have to approach this Forum had his claim for refund of the sum of Rs.1,45,000/- or reliefs sought for have been honored by the Opposite Party within a reasonable time and in view of the matter, the Complainant’s claim for costs deserves to be allowed.   In our considered and unanimous opinion awarding a sum of Rs. 5,000/- as costs would appropriate and reasonable.   Accordingly costs are awarded.

 

19.     In the result, the Complaint is allowed, in part directing the Opposite Party to pay an amount of Rs.1,45,000/- (Rupees One lakh and forty five thousand only) with interest @ 9% p.a. from 19.8.2011 till the date of realization, a compensation of Rs.15,000/- (Rupees fifteen thousand only) and Costs of Rs.2,000/- (Rupees two thousand only) to the Complainant.   Time for compliance, one month.

 

     Dictated to the Steno, transcribed by him, corrected and pronounced by us in the Open Forum, this the 12^th day of February, 2015.

  Sd/-                                        Sd/-                                            Sd/-

Male Member                           Lady Member                                President

 

 

                             APPENDIX OF EVIDENCE

For the Complainant:-

NO.	DATE	DESCRIPTIONOFTHEDOCUMENTS	REMARKS
Ex.A01	12.08.2000	Pass Book issued by the Opposite Party in favour of the Complainant	Original.
Ex.A02	12.08.2000	Receipt No.331 an amount of Rs.5,000/- issued by the op in favour of the Complainant	Original
Ex.A03	30.08.2000	Receipt No.368 an amount of Rs.20,000/- issued by the OP in favour of the Complainant	Original
Ex.A04	10.11.2000	Receipt No.2063 an amount of Rs.20,000/- issued by the OP in favour of the Complainant	Original
Ex.A05	20.03.2000	Receipt No.3231 an  amount of Rs.20,000/- issued by the OP in favour of the Complainant	Original
Ex.A06	16.05.2000	Receipt No.3759 an amount of Rs.20,000/- issued by the OP in favour of the Complainant	Original
Ex.A07	11.02.2002	Receipt No.1387 an amount of Rs.20,000/- issued by the OP in favour of the Complainant	Original
Ex.A08	08.09.2000	Letter addressed by the OP to the Complainant	Original
Ex.A09	09.09.2000	Letter addressed by the OP to the Complainant	Original
Ex.A10	10.10.2000	Letter addressed by the OP to the Complainant	Original
Ex.A11	16.11.2000	Letter addressed by the OP to the Complainant	Original
Ex.A12	14.12.2992	Letter addressed by the OP to the Complainant	Original
Ex.A13	06.08.2002	Complainant’s Payment Particulars issued by the OP	Original
Ex.A14	04.12.2002	Complainant’s Payment Particulars issued by the OP.	Original
Ex.A15	08.11.2005	Complainant’s Payment particulars issued by the OP.	Original
Ex.A16	15.02.2002	Agreement for Sale executed by the OP in favour of the Complainant	Original
Ex.A17	19.08.2011	Registered Lawyer’s Notice issued by the Complainant’s counsel to the OP’s counsel	Original
Ex.A18	24.08.2011	Acknowledgment from the OP	Original

For the Opposite Party:-                                             

NO.	DATE	DESCRIPTIONOFTHEDOCUMENTS	REMARKS
Ex.B1	30.08.2011	Application of the Complainant	Original.

 

  Sd/-                                        Sd/-                                           Sd/-

Male Member                     Lady Member                                   President