Andhra Pradesh

Visakhapatnam-II

CC/290/2011

Arisetty Venkata Satyanarayana Gupta - Complainant(s)

Versus

M/s Kanka Sai Engineers - Opp.Party(s)

U.S.V. Prasad

26 Mar 2015

ORDER

         Registration of the Complaint:05-08-2011                                                                            Date of Order :26-03-2015

BEFORE THE DISTRICT CONSUMERS FORUM-II:AT VISAKHAPATNAM

 

                             Present:

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

       President

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

                                             Male Member

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

       Lady Member

 

THURSDAY, 26^TH DAY OF MARCH, 2015

        CONSUMER CASE NO.290/2011

 

BETWEEN:

 

SRI ARISETTY VENKATA SATYANARAYANA GUPTA,

S/O LATE SANYASI RAO, HINDU, AGED 45 YEARS,

RESIDING AT FLAT NO.308, PAVAN RESIDENCY,

OPPOSITE CITY BUS STAND, KURMANNAPALEM,

VISAKHAPATNAM-530 046.

                                                                                      …COMPLAINANT

A N D:

 

M/S KANAKA SAI ENGINEERS, REP. BY ITS

MANAGING PARTNER SRI SANAPALA APPALA RAJU,

S/O LATE SEETHARAMAIAH, HINDU, AGED 52 YEARS,

D.NO.39-10-3-24, AYYAPPANAGAR, MURALINAGAR,

VISAKHAPATNAM.

          …OPPOSITE PARTY

 

This case coming on 26-02-2015 for final hearing before this Forum in the presence of SRI U.S.V.PRASAD, Advocate for the Complainant and of             SRI D.V.V.R.PRATAP, Advocate for the OP, and having stood over till this day for consideration, the Forum made the following:

 

O  R  D  E  R

(As per the Honourable President on behalf of the Bench)

1.       The Complainant filed the present Complaint against the Opposite Party, directing them to refund the amount of Rs.4,99,000/- together with interest @ 24% p.a., from the date of payment, Rs.10,00,000/- towards compensation and Rs.10,000/- towards costs.

2.       The case of the complainant in brief is that the Opposite Party is the Managing Partner of the Firm M/s Kanaka Sai  Engineers, approached him stating that he entered into a Development Agreement dated 22-08-2007 from the Land Owner Smt.Surapuneni Sri Krishna Kumari w/o Subrahmanyam for development of the land in an extent of 450sq.yds  covered by S.No.121/2 of Kurmannapalem village, GVMC, Visakhapatnam who got by way of a registered sale deeds dated 6-04-1990. Further informed him that he is going to construct a group house  in the said site in the name and style of Neelima Mansions and he expressed his intention to alienate the flat bearing no.FF1 in an extent of 1000sft in first floor with all amenities and believing his representation, he agreed to purchase the said flat for Rs. 18 Lakhs and thereby both of them entered into agreement for construction of residential flat for Rs.18 lakhs on 31-07-2008 for the same and in total, he paid an amount of Rs.4,99,000/- on different dates to the OP,  in turn he issued receipts for all the payments.  Further, he stated that he came to know that the OP has entered into sale agreement with several other persons though there was no sufficient number of flats in the Neelima Mansions  and having lost belief and confidence on OP, he demanded to refund the amount of Rs.4,99,000/- with interest thereon but he failed to do so, on one pretext or other. Hence, this complaint.

3.       The case of the Opposite Party, denying the material averments of the complaint, admitted that the complainant agreed to purchase the flat FF1 to an extent of 1000sft in the first floor with all amenities and rate was fixed  at     Rs.18 lakhs and they both have entered into agreement for construction of flat for Rs.18 lakhs on 31-07-2008 and the complainant paid total amount of Rs.4,99,000/- and that there are no disputes in between himself and the complainant but as per agreement, the complainant has to pay the remaining balance sale consideration amount of Rs.15,01,000/- within time but he failed to pay the same and after paying the same, he will compete the remaining 10% of the work and hand over the finished flat. Since, the complainant has not paid the balance amount, he has no right to file the present complaint. Further, the complainant never approached him and expressed his ready and willingness to pay the balance amount. As such, there is no deficiency in service on his part. In fact, he is requesting the complainant to pay the balance amount as per agreement but without paying all of a sudden, filed the present compliant. As per section 27 of the Construction Agreement, this Forum has no jurisdiction. For these reasons, the complaint is liable to be dismissed.

4.       To prove the case of the complainant, he filed his affidavit and got marked Exhibits A1 to A12,  on other hand, on behalf of the OP, he filed his affidavit and no documents are marked on their behalf.

5.       Exhibit A1 is the Agreement for construction of Flat dated 31-07-2008, Exhibit A2 is the Receipt dated 13-07-2008, Exhibit A3 is the Receipt dated 22-07-2008, Exhibit A4 is the Receipt, dated 23-07-2008, Exhibit A5 is the Receipt, dated 10-08-2008, Exhibit A6 is the Receipt dated 11-08-2008, Exhibit A7 is the is Receipt, dated 12-08-2008, Exhibit A8 is the Receipt, dated 01-09-2008, Exhibit A9 is the Receipt, dated 20-09-2008, Exhibit A10 is the Receipt, dated 05-01-2009, Exhibit A11 is the Development Agreement dated 22-08-2007 and Exhibit A12 is the sale deed bearing no.3323/2008, dated 12-12-2008.

6.       Both parties filed their respective written arguments.

7.       Heard oral arguments from both sides.

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

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

9.       As seen from record, it is the admitted case of both sides that the OP obtained Development Agreement dated 22-08-2007 from the Original Land Owner for Construction of Group House in the name and style of Neelima Mansions and he got 50% out of the total flats to be constructed by him and the OP entered into an agreement for construction of residential flat for Rs.18 lakhs  with the complainant on 31-07-2008 for Flat No.FF1 in first floor and the OP received advance amount from time to time for an amount of Rs.4,99,000/- from the complainant and issued receipts for all the payments and that as per the recital No.2 of the Constructional Agreement between the Complainant and the OP dated 31-07-2008, the OP shall complete the construction of the flat and hand over possession of the same within 12 months from the date of this agreement.  The above admitted facts were also evidenced as seen from Exhibit A1 to A12.

10.     It is the case of the complainant that he is ready and willing to pay the balance sale consideration and in spite of requesting the OP to complete the construction and execution of the Registered Sale Deed in his favour, the OP has been postponing the same on some pretext or the other and further failed to complete the construction as agreed as per Construction Agreement dated       31-07-2008 on the other hand, the case of the OP in this regard is that, he completed 90% of the construction work and the balance is only 10% and as the complainant failed to pay the remaining balance amount of Rs.                                                          15,01,000/- within 12 months period from the date of entering into                                                                                                                                                                                                                                                                                                         the construction agreement and due to the blocking of amount from the complainant, he failed to complete the construction and if the complainant pays the remaining, he will finish the remaining work and hand over the flat.  The complainant denied the said contention raised by the OP.

11.     In view of the contentions, it is relevant for me to note the recitals of Exhibit A1 Agreement for Construction of Flat which clearly goes to show that as per Clause No.2, the builder shall complete the construction  of the flat and hand over possession of the same within 12 months from the date of agreement and the owner has paid a sum of Rs. 3 Lakhs as advance by way of cash and shall pay the balance amount of Rs.15,00,000/- in the following manner. A. At the time of Brick work Rs.1,99,000-00, B, C, D, kept in blank. Admittedly, the OP has not handed over possession of the flat within 12 months as agreed to the complainant, there is no recital in Exhibit A1 that the complainant has to pay the so much so amount within so and so date clause 2 ABCD columns are kept in  blank.  In this view of the matter, we are of the considered view that the complainant need not pay the entire amount as contended by the OP before completion of the construction etc., 

12.     According to OP, he completed the construction to an extent of 90% but he failed to file evidence affidavit of the concerned person i.e., either mason  or the owners of the remaining flats owners adjacent flat owners etc. There is no evidence whatsoever let in by the OP to show that he completed the construction of 90%. Further if really, he completed the construction as alleged by him, he would have issued notice to the complainant, demanding payment of balance amount but he did not do so. From all these facts and circumstances, it can be held that in spite of payment of reasonable amount by the complainant, the OP failed to either to construct or to deliver the flat as agreed upon vide Exhibit A1.  It can be also held that after filing of the complaint by the complainant, he came forward with  such a plea as an afterthought with a view to avoid the refund of the amount, etc., on a careful reading of the documents filed by the complainant vide Exhibits A1 to A12 we are of the considered opinion that he successfully establishes that he paid an amount of Rs.4,99,000/- to the OP but they failed to complete the construction within the time stipulated, which clearly indicates that there is a clear deficiency of service on the part of the OPs. Therefore, they are liable to refund the amount of Rs.4,99,000/-  together with interest thereon i.e., subsequent to 12 months period from the date of entering into the construction Agreement.

13.     Now the question that comes up for consideration, at this stage of our discussion is, 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 commercial in nature, but that does not and cannot mean to say that the Complainant is licensed 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 that 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. from 1-08-2009.   Accordingly interest is ordered.

14.     Whether the Complainant is entitled for compensation of Rs.10,00,000 /- is to be considered.   It appears as seen from the evidence of Complainant 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 an un-disputed fact that the Opposite Parties did not refund the advance amount paid by the Complainant.   Naturally, that might 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 of compensation of 50,000/- would serve the ends of justice.   We therefore, proposed to award compensation of Rs.50,000 /-,  in the circumstances of the case on hand. Accordingly this point is answered.

15.     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 amount of Rs.4,99,000/- or reliefs sought for have been honored by the Opposite Parties 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.2,500/- as costs would appropriate and reasonable.   Accordingly costs are awarded.

16.     In the light of our discussion, referred supra, the complainants are entitled to refund of the Advance amount of Rs.4,99,000/- together with subsequent interest @ 9% p.a., from 01-08-2009 till the date of realization, a compensation of Rs.50,000/- and also costs of Rs.2,500/- to the Complainant. Time for compliance, one month from the date of this order.

17.     In the result, this complaint is allowed in part, directing the Ops to refund Rs.4,99,000/- (Rupees Four Lakhs Ninety Nine thousand only) together with interest @ 9% p.a., from 01-08-2009   till the date of actual realization, a compensation of Rs.50,000/- (Rupees sixty thousand only) and costs of Rs.2,500/- (Rupees two thousand and five hundred only) to the complainant. Time for compliance, one month from the date of this order.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the 26^th day of March, 2015.

Sd/-                                              Sd/-                                        Sd/-

LADY MEMBER                            MALE MEMBER                        PRESIDENT       

                                      

APPENDIX OF EVIDENCE

  For the Complainant:-

Exhibits	Date	Description	Remarks
A-1	31-07-2008	Agreement for construction of flat	Original
A-2	13-07-2008	Receipt	Original
A-3	22-07-2008	Sale Deed no.2854/81	Original
A-4	23-07-2008	Plan Approval	Original
A-5	10-08-2008	Receipt	Original
A-6	11-08-2008	Receipt	Original
A-7	12-08-2008	Receipt	Original
A-8	01-09-2008	Receipt	Original
A-9	20-09-2008	Receipt	Original
A-10	05-01-2009	Receipt	Original
A-11	22-08-2007	Development Agreement	Photostat copy
A-12	12-12-2008	Sale Deed bearing no.3323/2008	Photostat copy

 

For the Opposite Parties:-  -nil-

Sd/-                                              Sd/-                                        Sd/-

LADY MEMBER                            MALE MEMBER                        PRESIDENT