Andhra Pradesh

Visakhapatnam-II

CC/48/2012

Buddepu Madhava Sai Kumar - Complainant(s)

Versus

M/s Kamal Builders - Opp.Party(s)

Ch. Papa Rao

29 Jul 2015

ORDER

                  Reg. of the Complaint:14-02-2012                                                                                           

Date of Order:29-07-2015

BEFORE THE DISTRICT CONSUMERS FORUM-II

AT VISAKHAPATNAM

                   Present:

1.Sri H.ANANDA RAO, M.A., L.L.B.,

       President

2.Sri C.V.RAO, M.A., B.L.,

                                                       Male Member

3.Smt.K.SAROJA, M.A., B.L.,

       Lady Member

                                            

WEDNESDAY, THE 29^TH DAY OF JULY, 2015

CONSUMER CASE NO.48/2012

 

BETWEEN:

Buddepu Madhava Sai Kumar, S/o Sankara Narayana,

Hindu, aged 29 years,  presently Working as

Engineer System Administration and r/a Plot No.932,

G1, RK Residency, Secretariat Colony,

Manikonda, Hyderabad, Temporarily came to Visakhapatnam

for the  Purpose of filing this case.

…Complainant

AND:

1.M/s Kamal Builder, Sudia Rama Rao,

S/o late Appa Rao, rep. by its Managing Partner,

Hindu, aged 65 years, D.No.45-58-17,

Pent House, Indu Enclave, Narasimhanagar,

Visakhapatnam.

2. M/s Kamal Builder, rep. by its Partner,

Sudia Kamal Kumar S/o Sudia Rama Rao,

Hindu, aged 30 years, D.No.45-58-17,

Pent House, Indu Enclave, Narasimhanagar,

Visakhapatnam.

…Opposite Parties

 

This case coming on 27-07-2015 for final hearing before us in the presence of       SRI CH.PAPA RAO, Advocate for the Complainant, and of SRI S.ARUN DEV, Advocate for the Opposite parties, and having stood over till this date for consideration, this Forum made the following.

 

 

 

 

O R D E R

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

1. The Complainant filed the present complaint against the Opposite Parties, directing them to refund an amount of Rs.1,50,000/- towards balance of sale consideration, Rs.3,15,000/- towards balance of profit, Rs.2,89,500/- towards interest @ 12% p.a.,  on Rs.6,00,000/- for a period of 59 months, Rs.2,00,000/- towards compensation and Rs.50,000/- towards costs.
2. The case of the complainant in brief is that the Opposite parties are doing Real Estate Business in the name and style of KAMAL BUILDERS and they have approached him and explained about their proposal of construction of two apartments viz., Annapurna Arcade and Indu Enclave, Madhurawada and promised them that the sale consideration payable on easy installments  and provided the house flat for a reasonable rates and believing their versions, they joined as  members and OP promised him that they shall allot House Flat No.407 in Annapurna Arcade, 5^th floor, Madhurawada and they both orally came to an understanding and fixed the rate of the flat  at Rs.1200/- per square yard and allotted total extent of 1050 sq.ft  to him for a total sale consideration and thereupon,  he approached OP and expressed his readiness for his house flat in his name but he was informed by OPs that the said flat was already sold away to another and when he questioned the OPs requested him that they shall provide another house flat in Indu Heights at Madhurawada and further promised that they shall adjust the profits of Rs.3,15,000/- from the sale of Flat No.407 of Annapurna Arcade since it was sold @ Rs.1500/- per sq.ft and they got benefit of Rs.3,15,000/-, thereupon he paid Rs.49,900/-  on 2-5-2007 and Rs.1,00,000/- on 14-07-2007 and the OPs executed under registered agreement in his favour on 30-06-2007 towards allotment of Indu Heights flat wherein they have agreed to receive an amount of Rs.3,99,900/-  towards advance.
3. That on 09-02-2008 an agreement was executed in the name of the wife of elder brother of the complainant wherein it is stated that they have received the amount of Rs.2,00,000/- towards advance thus in total Rs.6,00,000/- from him. As per Unregistered Agreement dated 30-06-2007, the sale consideration is Rs.17,14,800/-  fixed by both of them and for total sft of 1257. Later, the OPs applied for approval of the building plan but for some reasons, it was rejected and later approved the Revised Plan wherein his plinth area was also revised from 1257sft to 1386sft and thereby OPs demanded the rate @ 1600sft and additional sum of Rs.1,50,000/- when he questioned  the builder demanded to pay the additional sale consideration which is unfair trade practice. In the mean while, the OPs sold away the said flat without his permission and when he approached and questioned them, they promised and requested him that they shall refund the total amount of Rs.6,00,000/-  and Rs.1,50,000/- but he received only an amount of Rs.4,50,000/-.
4. The OPs have got the said amount of Rs.6,00,000/- from December, 2006 and enjoying its fruits and thereby caused much loss to him. The OPs came to his house requested to hand over the original agreement and promised to refund an amount of Rs.7,50,000/- but after receiving the originals they paid only Rs.4,50,000/-, promising to pay the balance within 6 months but they failed to keep their promise and hence this complaint. 
5. The case of the OPs, denying the material averments of the complaint is that the complainant approached to by one flat bearing no.407 in Indu Heights and paid an amount of Rs.3,99,000/- in the year 2007 and accordingly an agreement was entered into on 30-06-2007, thereupon the complainant did not pay the balance sale consideration and further stated that he is not willing purchase the flat and asked to refund the advance amount and when they expressed that they could not return the advance amount,  once the flat was reserved for the complainant is sold to third party and since the complainant had all through stated that he would buy the property, the same was withheld and no bookings can be made for the same.
6. That the sister-in-law of the complainant approached them to buy Flat No.G-11 and accordingly entered into an agreement on 9-2-2008 later on she  wanted to cancel the agreement and demanded to refund the advance amount of Rs.2,00,000/- and accordingly, they refunded the same thereupon the agreement dated 9-2-2008 had cancelled and the original agreement was returned to them. It is also their case that they have refunded the advance amount of Rs.3,99,900/- to the complainant and on receiving money, he also returned the original agreement to them. The payment of Rs.1,50,000/- was done while the original agreement was returned to the OPs. But, they did not insisted for a separate receipt and taking advantage of the same, the complainant filed the present complaint to have a wrongful gain. All the contractual obligations between themselves and the complainant stood cancelled   and discharged and there remains nothing to be executed are done by either party pursuant to the agreement in the name of the complainant. The complainant has no right to file the complaint without adding his sister-in-law.  The complainant has failed to file original sale agreements in case, if any obligations are due under the same are pending to be performed by them, the original would be with the complainant only. The complainant has not filed any document to substantiate his claim on payment of any amount in excess although mentioned in the sale agreement, there is no explanation in the complaint as to why he could not file the original agreement of sale for that the complainant could not file any receipt evidencing payment of amount as alleged by him. The complainant is not a consumer and this complaint is not maintainable. For these reasons, the complaint is liable to be dismissed.
7. To prove the case on behalf of the complainant, the complainant filed his affidavit and got marked Exhibits A1 to A5 and on the other hand, on behalf of the OPs, they filed their affidavit and got marked Exhibits B1 and B2.

8.  Exhibit A1 is the Unregistered Sale Agreement dated 30-06-2007, Exhibit A2 is the Unregistered Sale Agreement, dated 09-02-2008, Exhibit A3 is the ICICI Bank Receipt, dated 17-05-2007, Exhibit A4 is the ICICI Bank Account Copy, dated 09-04-2010 and Exhibit A5 is the ICICI Bank Account Copy, dated 19-07-2010.

9.  Exhibit B1 is the Agreement to sell in the name of Complainant, dated 30-06-2007 and Exhibit B2 is the Agreement to sell in the name of B.Tejasree.

10.         Both parties filed their written arguments.

11. Heard oral arguments from both sides.

12.          Now the point for determination to be determined in this case is;

Whether there is any deficiency of service on the part of the OPs and the Complainant is entitled to any reliefs asked for?

13.          On scrutiny of the evidence of the OP, it is evident that the complainant has not filed any proof evidencing that he entered into an agreement to sell for purchase of Flat No.407 in 5^th floor of Annapoorna Arcade and that he paid Rs.4,50,000/- in 2 installments in December, 2006 towards part sale consideration. So also he approached to buy one flat in Indu Heights and paid an amount of Rs.3,99,000/-  in the year 2007. It is the case of the OP that they have refunded an advance amount of Rs.3,99,000/- to the complaint and on receiving the amount by way of cash. Exhibit B1 and B2 clearly shows the original agreement stands cancelled and that is the reason why,  now it is under the custody of the OPs.  If any obligation due under the same are pending to be performed by the OPs, the Originals would be with the complainant only. There is no explanation as to why the complainant could not filed the original agreement of sale. Assuming for a moment without admitting that some contractual obligations subsist between him and the OPs.

14.          The complainant could not file any receipt evidencing payment of amount as alleged by him and it is a matter of prudence that the complainant who is the son of Income Tax Officer, would not have paid any amount without insisting for receipt. More particularly when his father has been dealing with the OP. On a careful scrutiny of the evidence let in by the complainant, we are of the considered view that he failed to prove any of the allegations made in the complaint either by documentary or by 3^rd party affidavits. Perusal of record, we are of the further view that there is no deficiency of service as seen from the acts of the OPs.  For these reasons, the complaint filed by the complainant deserves to be dismissed.

15. In the result, this complaint is dismissed. No costs.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the 9^th day of July, 2015.                                   

 Sd/-                                             Sd/-                                          Sd/-

LADY MEMBER           MALE MEMBER                   PRESIDENT       

APPENDIX OF EVIDENCE

  For the Complainant:-

Exhibits	Date	Description	Remarks
A1	30-06-2007	Unregistered Sale Agreement	Photocopy
A2	09-02-2008	Unregistered Sale Agreement	Photocopy
A3	17-05-2007	ICICI Bank Receipt	Original
A4	09-04-2010	ICICI Bank Account Copy	Photocopy
A5	19-07-2010	ICICI Bank Account Copy	Photocopy

For the Opposite Parties:-                                                     

Exhibits	Date	Description	Remarks
B1	30-06-2007	Agreement to sell in the name of the Complainant	Original
B2	09-02-2008	Agreement to sell in the name of B.Tejasree	Original

  Sd/-                                               Sd/-                                  Sd/-

LADY MEMBER             MALE MEMBER                               PRESIDENT