Andhra Pradesh

Visakhapatnam-II

CC/373/2007

P. S. Chandrasekhara Rao - Complainant(s)

Versus

M/s Kiran Krishna Real Estates and Constructions Private Limited - Opp.Party(s)

K.P. Desai

29 May 2015

ORDER

Registration of the Complaint:26-05.2007

Date of Remand:23-05-2012

Date of Order:29-05-2015

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

FRIDAY, THE 29^TH DAY OF MAY, 2015.

CONSUMER CASE NO.373/2007

Between:-

Sheetam Samal, S/o Sarangadhar Samal,Hindu,

aged 19 years, resident N-2/152,IRC Village,

P.S. Nayapalli, Bhubaneswar,Odisha-751015,

Rep. by his father and Special Power of Attorney Holder

Sarangadhar Samal, R/o N-2/152, IRC Village,

P.S. Nayapalli, Bhubaneswar, Odisha-751015.

(Amended as per orders in I.A. 102/2013 Dt. 21.04.2014

and the Special Power of Attorney allowed in I.A.101/2013 Dt. 1.04.2014).

….. Complainant

And:-

1.M/s. Kiran Krishna Real Estates and

Constructions (P) Ltd., rep. by its Managing

Director V. Krishna Prasad, D. No. 50-40-13/A,

T.P.T. colony, Seethammadhara , Visakhapatnam.

2.M/s. Kiran Krishna Real Estates and

Constructions (P) Ltd., rep. by its Director

P. Ananda Babu, residing at D. No. 50-40-13/A,

T.P.T. colony, Seethammadhara , Visakhapatnam.

… Opp. Parties

This case coming on 12.05.2015 for final hearing before us in the presence of Sri K.P. Desai, Advocate for the Complainant and Sri P.Veeraraju & T.Ravi Kumar, Advocates for the Opposite Parties and having stood over till this date for consideration, this Forum made the following:

ORDER

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

1. This Consumer Complaint is filed by the Complainant against the Opposite Parties, directing them to register the plot of house site in his favour (or) in the alternative to pay the present market value of that house site of 444 Sq. yards besides to pay a compensation of Rs.10,000/- and costs of Rs.3,000/-.

2. The case of the Complainant in brief is that the Opposite Parties have been doing Real Estate business under the name and style of Kiran Krishna Real Estate and Constructions Pvt. Ltd., and they have started a venture viz., “Sagarika Nagar” in Nerellavalasa Village of Bheemunipatnam Revenue Mandal in the area covered by S. Nos. 52P, 53P, 56, 57, 59, 60P, 77P & 78P and that therefore, the Complainant joined as a subscriber of that venture for purchasing a plot of house site of 444 Sq. yards and as such, agreement was entered into in between them on 05.07.1998 and he subscribed a sum of Rs.3,09,105/- towards the total amount payable, towards the cost of the plot besides development charges as well as registration charges etc. and that the last payment was made by the Complainant on 07.11.2002. Thereafter, in spite of his readiness and willingness, completed the formalities on behalf of the Complainant for execution of a registered sale deed for the said plot., the Opposite Parties did not hand over and failed to execute the sale deed, inspite of his best efforts and negotiations.

3. That the Opposite Parties issued a press notice on 11.12.2006 in Eenadu News Daily, calling upon their clients to approach them for settlement and on that when he approached, they did not settle his claim and on that he got issued a legal notice on 13.03.2007 and it was received by the 1^st Opposite Party and in spite of that, there was no reply from the Opposite Party. Hence, this Complaint.

4. The Case of the Opposite Parties, denying the material averments of the Complaint is that the Complainant had paid only a sum of Rs.89,213/- by 19.07.1998 and that there-after, he failed to pay the balance amount of Rs.34,167/- and thereby he acquired the status of a defaulter. It is also their case that there is no meaning in the contest of the Complainant to say that he subscribed a sum of Rs.3,09,105/- when admittedly the cost of the plot was only Rs.1,23,400/-. It is also their case that they did not issue the acknowledgements dated 10.01.2002 & 07.11.2002 in respect of the alleged Demand Drafts for Rs.78,742/- & Rs.12,000/- much less the receipts for Rs.1,11,000/- & Rs.18,000/- and that those acknowledgements as well as receipts also were created by the Complainant with an evil intention to have a wrongful gain and that therefore, those acknowledgements cannot bind them. The contention of the complaint is barred by limitation.

5. The purchase under agreement in question is a minor aged about 14 years therefore, he has to be represented by his next friend but not by any third person and alleged the GPA Holder of the Complainant is a third party and as such, he cannot represent the present complainant. Therefore, the complaint is liable to be dismissed.

6. The Additional counter is filed by the 1^st Opposite Party is that the Complainant never approached this Forum to declare him as major, without seeking such declaration, he cannot appoint his father as agent to look after the case. The father of the Complainant did not file any documents to show that he turned as a major and that his name is “SARANGADHAR SAMAL”.

7. To prove their respective cases, on behalf of the Complainant, he filed his evidence affidavit and got marked Exhibits A1 to A17 and on the other hand, on behalf of the OPs, Exhibits B1 to B2 are marked.

8. Exhibit A1 is the Original Sale Agreement entered into between the Defacto Complainant and the OPs dated 05-07-1998, Exhibit A2 is the Original receipt bearing No.3851 for Rs.8,150/- issued by the Ops to the Complainant, dated 05-07-1998, Exhibit A3 is the Original receipt bearing No.44328 for Rs.80,213/- issued by the Ops to the Complainant, dated 19-07-1998, Exhibit A4 is the Original receipt bearing No.3852 for Rs.1,000/- issued by the Ops to the Complainant, dated 19-07-1998, Exhibit A5 original Receipt bearing No.74067 for Rs.78,742/- issued by the Ops to the complainant and Exhibit A6 is the Original Acknowledgement bearing No.10627 issued by the Ops to the complainant, dated 10-01-2002, Exhibit A7 is the Original Acknowledgement bearing No.10627 issued by the Ops to the complainant, dated 10-01-2002, Exhibit A8 is the Xerox copy of DD bearing No.783667 for Rs.12,000/- issued by by SBI Branch of Visakhapatnam, 07-01-2002, Exhibit A9 is the O/c of Register Lawyer’s Notice got issued by the Advocate for the complainant to the Ops, dated 13-03-2007, Exhibit A10 is the Original Postal Acknowledgement of the 1^st OP, dated 14-03-2007, Exhibit A11 is the Original letter addressed by the AGM, SBI, Visakhapatnam to the Complainant, dated 25-10-2007, Exhibit A12 is the Xerox copy of publication in Eenadu News Daily, dated 11-12-2006, Exhibit A13 is the Original SB Account pass book of Sarangdhar Samal, Exhibit A14 is the Xerox copy of Certificate of Valuation, dated 26-09-2007, Exhibit A15 is the Xerox cop of finger prints of the complainant, Exhibit A16 is the O/c of letter addressed by the complainant to the 1^st OP, dated 10-01-2002, Exhibit A17 is the Special Power of Attorney, dated 14-08-2012.

9. Exhibit B1 is the Xerox copy of Details of the Demand Drafts issued by the Complainant and Exhibit B2 is the Xerox copy of General Power of attorney of the 2^nd OP.

10. Both parties filed their respective 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. The record clearly shows that after dismissal of the complaint, the complainant preferred an Appeal in FA 197/10 on the file of Honourable State Commission and on hearing, the Honourable State Commission allowed the appeal setting aside the order passed by the District Forum vide its order dated 23-05-2012, directing the complainant to rectify any defect in the cause title etc.,

After issuance of notice, both sides appeared and the complainant filed I.A.102/13 to declare the minor complainant as a major being represented by his father Special Power of Attorney Holder as per I.A.101/13.

14. The case of the complaint in brief is that the OPs are engaged in the business in real estates and construction started a venture viz., Sagarika Nagar wherein he joined as a subscriber for purchasing the flat of 444sq.yds and an agreement was entered into between them and on 5-7-1998 and on that OP issued a pass book and he paid a total amount of Rs.3,09,105/- towards the cost of the flat besides other development and registration charges but the Op failed to develop and register the said flat.

15. On the other hand, the case of the Op is that the total cost of the flat is Rs.1,23,400/- and the complainant paid only Rs.89,213/- by 19-07-1998 leaving unpaid the balance amount and finally contended the complaint is a defaulter in the scheme and the purchaser under the agreement is minor aged about 14 years and he has to be represented by his next friend and not by 3^rd person and finally contended the complaint is barred by limitation.

16. The counter filed by the OPs dated 18-09-2007 at para 12 clearly stated as the agreement in question is in the name of the minor aged 14 years, therefore, it cannot be represented by anybody other than the next friend much less under GPA by some 3^rd party. Thus, it is clear that OP admitted that in the agreement in question, it is in the name of minor aged 14 years. Subsequent to the remand from the Honourbale Statement Commission, the complainant by virtue of orders in I.A.No.102/2013 and dated 12-04-2014 i.e., Seethamsamal represented by his father and special power of attorney holder Sarangadhar Samal. Thus, it is clear that the complainant is a minor at the time of filing of the complaint and subsequently, he was represented by his father guardian, Special Power of Attorney Holder by virtue of the Court Orders.

17. This is an admitted fact that the complainant had proposed to purchase a flat of house site 444 sq.yds from the proposed venture Sagarikanagar, and the agreement covered by Exhibit A1 was concluded between the complainant and the OP. The terms and conditions are also dealt with on its redressal site. Condition No.5 deals with the payment schedule relating to the sale of flat house site admeasuring 444sq.yds which shows the proposed flat cost would comes to 1,92,000/-. But the complainant contended that he subscribed a sum of Rs.3,09,105/-. According to him, it includes development and road widening charges etc., The case of the OP regarding the acknowledgements, the receipt and Photostat copies of the D.D., covered by Exhibit A5 and A8 is that they did not issue the 4 documents covered by A5 to A8 and that those documents were created by the complainant to have a wrongful gain. Therefore, the burden lies on the complainant to prove the same.

18. It is observed by the Honourable State Commission that it is not the case of the OP that the DD and Acknowledgement were fabricated. The contention of the OPs is that they have no relationship with the persons who issued the acknowledgements and they did not receive the amount covered under the DDs. At this stage, it is relevant for me to note the notice got issued by the complainant for the first time on 13-03-2007 which is marked as Exhibit A9 wherein it is clearly stated that the mode of payment and the receipt of amount by the concerned etc., Exhibit A10 is the acknowledgement which clearly goes to show it was duly served on the OP but there was no response from them which promoted the complainant to file the present complaint. Failure to give reply, it can be held an adverse inference is to be drawn against the OP.

19. Coming to the Contention raised by the learned counsel for the OP, exhibit A11 is the letter issued by the Assistant General Manager, SBI Branch at Visakhapatnam on 25-10-2007, regarding the payments of the amounts covered by the 2 DDs bearing No.410915 dated 06-02-2002 and 783667 dated 07-11-2002. The letter contents clearly shows that an amount of Rs.78,742/- covered by aforesaid DD dated 06-02-2002 were paid on 09-02-2002 and the amount of Rs.12,000/- covered by the aforesaid DD dated 07-11-2002 were paid on 15-11-2002 respectively. Perusal of Exhibit A11 letter coupled with the evidence affidavit of the complainant etc., we are of the considered view that the complainant substantiate the amount covered by the 2 DDs were paid. Exhibit A13 is the Bank Pass Book which discloses that the disputed amount of Rs.18,000/- and Rs.1,10,000/- were taken from his account and it was duly signed at the relevant column. On scrutiny of Rs.A13 together with evidence on record, it can be held that the complainant proved that those amounts were taken from the account of the Complainant.

20. Regarding Exhibit A6 & A7, the contention of the OP is that they did not issue these two Acknowledgements A6 and A7 are the original acknowledgements issued by OPs to the Complainant bearing Nos.1062610627 respectively. Exhibit A8 is the Xerox copy of DD bearing No.683667 dated 07-11-2002 and it was obtained for a sum of Rs.12,000/-. The Evidence on record, as well as the affidavit averments of the complainant, clearly goes to show that it was delivered to the OPs on a careful scrutiny of the documentary evidence marked on behalf of the complainant, we are of the considered view that the contention of the OPs that Exhibit A11, A12, A13, A6 to A8 have no relationship with the persons who issued the acknowledgments and they did not receive the amount covered under DDs, have no legs to stand.

21. It is observed by the Honourable State Commission that the complainant can also give an opportunity to rectify any defect in the cause title. After appearing, the complainant filed I.A.101 & 102 of 2013 to rectify the defect in cause title and it is allowed after hearing both sides as per order dated 21-04-2014 i.e., the complainant who is a minor daughter represented by his father and special power of attorney holder Sarangadhar Samal and further allowed the special power of attorney holder Sarangdar samal as per the above orders i.e., vide Exhibit A17 (Special Power of Attorney). On scrutiny of them, we hold that the complainant complied the observations observed by the Honourable State Commission.

22. In the light of our discussion, we hold that since the complainant paid a total sum of Rs.3,09,105/- towards installment of flat cost including registration charges by making last payment on 7-11-2012. The complainant is entitled to for the relief sought for; we further hold that the acts of the Opposite Parties clearly indicates that there is a deficiency of service on their part.

23. The case record goes to show that the complainant after noticing exhibit A12 paper publication issued by the Ops, he approached them for registration of his flat but they failed to register the same. At that time, he obtained market value certificate from the competent authority, Sub-Registrar Office, in respect of site in question 444sq.yds and at that time, the value per sq.yd is Rs.2,700/-. Thus, it is clear that as on 26-09-2007 , the Marked value of the site in question is Rs.2,700/-.

24. The case of the complainant is that the rates of the house sites in and around the city of Visakhapatnam have been escalating day by day and more particularly the rates in and around the city meant for developing the proposed layout being increased manifold and therefore, he is interested in getting delivery of site of 444sq.yds of the said venture. It is an undisputed fact that the prices of house sites not only in and around the city of Visakhapatnam but also everywhere they are or an ascending part. Of-course, the volume of increase of prices made out from area to area and place to place. We did not find any flaw this contest of the complainant to show that they cannot get a similar site in the disputed area at the rate as mentioned in the complaint in the present day circumstances. The complainant is therefore, right in demanding for execution of a sale deed in his favour for and in respect of the proposed Sagarikanagar Venture situated in Nerrellavasala Village, Bheemili Beach Road in an extent of 444sq.yds in S.No. 53/P 56, 58, 60/p 77/p 78/p , the venture floated by the OP in the name and stile of ‘Sagarikanagar’ because awarding any amount of monetary damages will not be commensurate with the present rates of house sites prevailing in the vicinity of the disputed venture and also for delivery of the said extent 444sq.yds to him and in this view of the matter, the complainant is entitled to claim for allotment of the house site, referred supra.

25. Whether the Complainant is entitled for compensation of Rs.2,00,000/- 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 register the plot. 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 2,00,000/- would serve the ends of justice. We therefore, proposed to award compensation of Rs.2,00,000 /-, in the circumstances of the case on hand. Accordingly this point is answered.

28. Before parting our discussion, it is incumbent and imperative on our part to consider the costs of litigation. The Complainants ought not have to approach this Forum had his claim for registration of the Plot 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.5,000/- as costs would appropriate and reasonable. Accordingly costs are awarded.

29. In the light of our discussion, referred supra, the complainant is entitled to execution of the registered sale deed for and in respect of an extent of 444sq.yds of site in Sagarika Nagar Venture situated in Nerellavavalasa Village, Bhimili Beach Road, Visakhapatnam and interest on the value of the above said site of Rs.3,09,105/- @ 9% p.a., from 07-11-2002, being the payment of last installment till the execution of the necessary sale deed and compensation of Rs.2,00,000/- and costs of Rs.5,000/-).

30. In the result, this Complaint is allowed in part, directing the OPs to execute the registered sale deed in favour of the complainant for and in respect of an extent of 444sq.yds of site in Sagarika Nagar Venture situated in Nerellavavalasa Village, Bhimili Beach Road, Visakhapatnam, within two months from the date of this order. The OP is further directed to pay interest on the value of the above said site of Rs.3,09,105/- @ 9% p.a., from 07-11-2002, being the payment of last installment till the execution of the necessary sale deed in favour of the complainant in respect of the above said extent of land in the said venture. The OP is further directed to an pay an amount of Rs.2,00,000/- (Rupees two lakhs only) and Rs.5,000/- (Rupees five thousand only) towards costs within the time stipulated above.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the 29^th day of May, 2015.

SD/- SD/- SD/-

LADY MEMBER MALE MEMBER PRESIDENT

APPENDIX OF EVIDENCE

For the Complainant:-

Exhibits	Date	Description	Remarks
A1	05-07-1998	Sale Agreement entered into between the Defacto Complainant and the Ops	Original
A2	05-07-1998	Receipt bearing No.3851 for Rs.8,150/- issued by the Ops to the Complainant	Original
A3	19-07-1998	Receipt bearing No.44328 for Rs.80,213/- issued by the Ops to the Complainant	Original
A4	19-07-1998	Receipt bearing No.3852 for Rs.1,000/- issued by the Ops to the Complainant	Original
A5	08-02-2002	Receipt bearing No.74067 for Rs.78,742/- issued by the Ops to the Complainant	Original
A6	10-01-2002	Postal Acknowledgement	Original
A7	10-01-2002	Postal Acknowledgement	Original
A8	07-11-2002	DD bearing No.783667 for Rs.12,000/- issued by the SBI Branch of Visakhapatnam	Photocopy
A9	13-03-2007	Lawyer’s Notice got issued by the Complainant to the Ops	Office copy
A10	14-03-2007	Postal Acknowledgement	Original
A11	25-10-2007	Original Letter addressed by AGM, SBI of Visakhapatnam	Original
A12	11-12-2006	Paper Publication	Photocopy
A13		Original SB A/c Pass Book of Sarangdhar Samal
A14	26-09-2007	Market Value Certificate	Photocopy
A15		Finger Prints of the Complainant	Photocopy
A16	10-11-2002	Letter addressed by the complainant to the 1^st OP	Office copy
A17	14-08-2012	Special power of attorney executed by Sheetham Samal in favour of Sarangadhar Samal	Original

For the Opposite Parties:-

Exhibits	Date	Description	Remarks
B1		Details of the Demand Drafts issued by the Complainant	Photocopy
B2	07-12-2003	GPA of the 2^nd OP	Photocopy

SD/- SD/- SD/-