AT HYDERABAD.

F.A. 1826/2005 against C.D. 131/2003, Dist. Forum-I, Hyderabad

Between:

D. Vijaya Kumar

S/o. D. Ram Narasimha Rao

Age: 49 years,  Business

R/o. F-5, Totom Pradham Apartments

F.S. Lane, Abids,

Hyderabad.                                                            ***                         Appellant/

                                                                                                 Complainant

                                                                    And

M/s. Sai Victory Constructions

Rep. by its Managing Partners

N. Surender Rao  &

T. Prakash, Flat No. 201

Lumbini Enclave

Punjagutta, Hyderabad.                               ***                        Respondent/

                                                                                                Complainant       

Counsel for the Appellant:                          Mr. V. Gourisankar Rao

Counsel for the Resp:                                 Respondent Served.

                                                                   (Substitute Service)

QUORUM:

                          HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

&

                                          SMT. M. SHREESHA, MEMBER

TUESDAY, THIS THE  SECOND  DAY OF SEPTEMBER  TWO THOUSAND EIGHT

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

          The appellant is the unsuccessful complainant.

          The case of the complainant in brief  is that  the respondent is a builder.  He represented that he got GPA  from the original land owners of plot admeasuring 1333 sq.yds situated at Himayatnagar, Hyderabad in which  he proposed to construct residential complex.  He offered to sell  flat No.  G1  in ground floor for a total sale consideration of Rs. 10 lakhs.   As agreed upon,  he paid  an amount of Rs. 4 lakhs by way of cheques as well as cash under Exs. A1 & A2 receipts. The respondent did not execute formal agreement of sale.  Later he learnt that without informing  him  he sold the said flat to  third parties  and delivered possession to them.   Non-execution of agreement having

received substantial sale consideration  of Rs. 4 lakhs is contrary to  the provisions of A.P. Apartments (promotion of construction) Act.  He gave registered notice directing  him to refund the amount under Ex. A3.  Respondent gave reply with false averments.  As he failed to refund the amount  or execute the formal agreement, he was entitled to refund of Rs. 4 lakhs with interest  @ 24% p.a., together with compensation of Rs. 20,000/- and costs of Rs. 10,000/-.

          Respondent resisted the complaint. While admitting that he was a builder engaged in the construction of residential complexes, however,  denied that he offered  to sell residential flat  in ground floor to the complainant.  He also denied having received Rs. 4 lakhs.   He sold away  G1 flat under registered sale deed  and delivered possession to the buyer.  He gave correct reply to the  notice issued.  Claim made by the complainant is time barred. The Dist. Forum has no jurisdiction to entertain the complaint.  He has to file a civil suit for recovery of the amount.  Therefore, he prayed for dismissal of the complaint with costs.

          The complainant in proof of his case filed   his affidavit evidence and Exs. A1 to A10 while the respondent  filed affidavit evidence of  its partner but did not file any document.   The Dist. Forum after considering the evidence placed on record opined that there was no formal agreement executed in favour of complainant.   At any rate, the agreement  having been entered into on 13.8.1997, and the complaint having been filed on  3.2.2003  is barred by limitation.   The complainant can as well file a civil suit for recovery of the amount, and dismissed the complaint.

          Aggrieved by the said decision, the complaint preferred this appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective.  While receiving part of consideration he admitted in the receipts it was towards sale of flat.  When the respondent received consideration exceeding 20% of sale consideration, he ought to have executed written agreement as provided u/s  5 of the A.P. Apartments (promotion of construction) Act.  Having agreed to sell the flat he ought not to have sold it away to third parties nor handed over the possession to them.   The building activity attracts the jurisdiction of the Dist. Forum.  Apart from it, the finding that it was barred by limitation is contrary to the law laid down  by the National Commission in  2005(2) CPR 1 NC.

          It is an undisputed fact that the respondent is a builder  engaged in the construction of residential complex.  They are GPA holder in respect of  plot admeasuring 1333 sq.yds  situated at Himayatnagar, Hyderabad.    They constructed flats in the said site.   The case of the complainant is that the respondent agreed to sell a flat bearing No. G1 in ground floor for a total consideration of Rs. 10 lakhs out of which  he paid Rs. 1,00,000/- by way of cash and Rs. 1,00,000/- by way of cheque  Dt. 18.9.1997 drawn on State Bank of Saurashtra evidenced under Ex. A1 receipt,  and    an amount of Rs. 50,000/- by way of cheque drawn on ANZ Grindlays Bank and Rs. 50,000/- by way of cheque drawn on State Bank of  Saurashtra both Dt. 13.8.1997  and Rs. 1,00,000/- by way of cash evidenced under Ex. A2.  The fact that the amounts were received  “towards advance and  earnest money  of  the flat  No. G1 in ground floor, situated at Himayatnagar known as Victory Vihar” was made a mention in  Exs. A1 & A2.   They bear the signatures of partners of the respondent builder.

          When the respondent did not respond for execution of formal agreement or sale deed  the complainant got issued  Ex. A3 legal notice Dt. 15.11.2002  alleging  it was postponing on one pretext or the other.  The respondent gave reply  under Ex. A4 Dt. 9.12.2002 denying the receipt of consideration or the execution of receipts.

          Obviously, in view of their total denial, the complainant obtained certificates from the bank to show that that the respondent had encashed the cheques issued by him towards part of sale consideration.   In Ex. A5 certificate issued by State Bank of Saurashtra  it had confirmed that  “We confirm that the cheque No. 107840 Dt. 18.9.1997 for Rs. 1,00,000/- (Rupees one lakh only) favouring Victory Construction drawn by  Mr. D. Vijay Kumar, A/c. No. 0119005433 (Old A/c. No. 5633)  had been paid by us on 18.9.1997 through clearing to ICICI Bank.”  It is also certified that  second cheque No. 107837  Dt. 13.8.1997 for Rs. 50,000/- was also encashed by the respondent.  This was confirmed by  State Bank of Saurashtra under Ex. A7 bank statement of the respondent. 

  When the complainant has filed irrefutable documentary evidence showing payment of amount, the respondent except denying could not prove that the cheques did not relate  to them nor they had encashed them.  When the complainant has proved positively with unimpeachable documentary evidence, the respondent  could have filed documentary evidence  in order to show that the said cheques were not encashed by them.   It did not deny these facts, in its affidavit.  The account maintained by the bank wherein it was shown that they have encashed these cheques.   It is easy for the respondent to deny the transactions.  When un-controverted  evidence was placed  by the complainant it is for them to file documentary evidence to rebut the same.  Undoubtedly  the documentary evidence proves  the case of the complainant.   The respondent in order to evade payment refuted the case of the complainant in its entirety. 

          Therefore, we are of the opinion that the respondent being a builder  admitted by it in its counter  ought to have executed  an agreement having  received the amount towards part of sale consideration by virtue of  Section 5 of  A.P. Apartments (promotion of construction) Act.  It ought not to have received the amount contrary to the said section.

          The respondent had received the amounts towards part of  sale consideration evidenced under Exs. A1 & A2  on 13.8.1997, 14.8.1997, 17.9.1997 and 18.9.1997.  Having waited for  sufficient time and having repeatedly  requesting  the respondent to execute either agreement of sale or sale deed, he has issued  Ex. A3 notice on 15.11.2002.  The respondent for the first  time  refuted the agreement  on  9.12.2002.   The complaint was field on  3.2.2003.  At this juncture it is useful to  refer to the decision of  National Commission reported in  2005(2) CPR 1 (NC).  It was held that when the developer failed to give possession of the land or refund  the money as demanded by the complainant, the cause of action would be continuing.  In the circumstances,  it could not be said that the cause of action  was barred by limitation. 

          It is too late a day to contend that the dispute does not attract the provisions of Consumer Protection Act, 1986.  In regard to purchase of flats  or construction activity by  builders, amendment  inserted by  Act 62/2002  would undoubtedly  attract the provisions of the Consumer Protection Act.

          To sum up the respondent having received the amount towards sale price of flats  evidenced by Exs. A1 & A2 receipts, wherein they spelled out the agreement cannot turn round and deny.  But for Ex. A1 & A2 there was no reason for them to receive the amount  sent by cheques.  Ex. A7  is the account copy of the respondent  certified by the Nationalised Bank wherein these accounts were shown.  They have withdrawn the amount.  There was no denial of these  bank statements  in the affidavit filed by the respondent.   They could not give any explanation.  When facts are self evident  from these documents , we are of the opinion that  the respondent is bound to repay  having received the same.   The respondent had advantage of  amount with it.  It is undoubtedly, an unlawful enrichment.   Non-performance of agreement under Ex. A1 & A2  would amount to deficiency in service.   Necessarily the complainant is not only entitled to the amount paid by him  but also compensation. 

Considering the circumstances of the case, we direct the respondent to refund  Rs. 4,00,000/- received towards part of sale consideration  with interest @ 12% p.a. from the date of receipt i.e., 18.9.1997 till the date of realization.  The complainant is also entitled to a compensation of Rs. 20,000/- towards mental agony and inconvenience which we feel just and modest.  They had unjustly repudiated the claim. 

In the result the appeal is allowed,  consequently the complaint  is allowed.  The respondent is directed to refund Rs. 4,00,000/- with interest @ 12% p.a., from 18.9.1997 till the date of realization together with compensation of  Rs. 20,000/- with costs computed at Rs. 5,000/-.   Time for compliance four weeks.

PRESIDENT                                     LADY MEMBER

                             Dt.  02.09.2008.