Andhra Pradesh

Visakhapatnam-II

CC/174/2011

Kothapalli Bhargava Kumar - Complainant(s)

Versus

M/s Sri Sai Constructions Builders and Developers - Opp.Party(s)

I Ramakrishna

06 Sep 2014

ORDER

                 Registration of the Complaint:27-04-2011            Date of order:06-09-2014

BEFORE THE DISTRICT CONSUMERS FORUM-II 

AT VISAKHAPATNAM
 
Present:-

   

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

                   President (FAC)      

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

                   Male Member    

 

 

              

SATURDAY, the 06TH day of SEPTEMBER, 2014      
CONSUMER CASE NO.174/2011

 

Between:

SRI KOTHAPALLI BHARGAVA KUMAR

S/O HARI GOPALA RAO, HINDU,

AGED 43 YEARS, R/A MIG-II,

D.NO.49-58-17, GREEN PARK COLONY,

AKKAYYAPALEM, VISAKHAPATNAM-530 016.

                             …COMPLAINANT

And:

1.M/S SRI SAI CONSTRUCTIONS, 

BUILDERS  AND DEVELOPERS,

REP. BY ITS PROPREITOR

SRI MUPPARTHI LAKSHMI BABU,

S/O LATE VENKATA SATYAM,

D.S.R.RESIDENCY, PARVATHI NAGAR,

MARRIPALEM, VISAKHAPATNAM.

 

2.SRI MUPPARTHI LAKSHMI BABU,

S/O LATE VENKATA SATYAM, HINDU,

AGED 45 YEARS, FLAT NO.201, 

AMMA RESIDENCY APARTMENT,

OPP.GAYATHRI SCHOOL, MURALINGAR,

VISAKHAPATNAM.

   …OPPOSITE PARTIES

 

 

This case coming on 27-08-2014 for final hearing before this Forum in the presence of Sri I.RAMA KRISHNA, advocate for the Complainant, and of                                                                                      SRI M.TULASI RAM AND SRI K.P.KUMAR, Advocates for the Opposite Parties, and having stood over till this day for consideration, the Forum made the following:

 

 

O  R  D  E  R

(As per SRI C.V.RAO, the Honourable Member on behalf of the Bench)

 

1.   The Complainant asks the Forum to issue an order against the Opposite Parties 1 and 2; to pay an advance amount of Rs.6,10,000/- with accrued interest @ 24% p.a., for damages of Rs.3,00,000/-, for compensation to the Complainant for causing mental agony by the Opposite Parties , for costs of the complaint and for such other relief or reliefs as the Forum may deem it proper in the circumstances of the case. 

3.   The Opposite Parties 1 and 2 strongly resisted the claim of the complainant and asked the Forum to dismiss the complaint with exemplary costs.

4.   The case of the Complainant, as can be seen from the Complaint, is that the complainant is an employee in Visakhapatnam Steel Plant, Vukku Nagar, Visakhapatnam. The Opposite Party no.2 is doing building constructions under Opposite Party no.1 M/s Sri Sai Constructions Builders and Developer situated at D.S.R.Residency, Parvathi Nagar, Marripalem, Visakhapatnam. The Opposite Party No.2 is doing building constructions in and around Visakhapatnam City, is the sole proprietor to the above said firm, and the Opposite Party No.2 has approached the complainant and requested him to purchase a flat in Parvathi Nagar, Marripalem, Visakhapatnam and the complainant agreed to the request of the Opposite party NO.2 to purchase a flat from the Opposite party No.2.  The Opposite Party No.2  executed an agreement to sell in favour of the complainant on 17-03-2008 and the Opposite Party no.2 allotted a flat no.509 to the complainant for total sale consideration of Rs.12,89,500/-. The OP no.2 received an amount of Rs.2,00,000/- from the complainant on the previous day i.e., on 16-06-2008 and issued receipt for Rs.2,00,000/- in favour of the complainant, but by mistake the said amount was not mentioned in the agreement dated 17-03-2008, the agreement between the complainant and the opposite parties was entered into the morning time dated 17-03-2008 and the Opposite party No.2 received an amount of Rs.10,000/- as further advance from the complainant, the same is mentioned in the agreement. After completion of the agreement dated 17-03-2008, the Opposite Party No.2 again approached on the same day at about 12.00 a.m. and requested the complainant for further advance of Rs.4,00,000/- and accordingly, on the request of the Opposite party no.2, the complainant paid an amount of Rs.4,00,0000/- by way of cash towards further advance amount for purchase of Flat bearing No.509 and subsequently, the Opposite Party no.2 issued receipt for an amount of Rs.4,00,000/-and thus, the Opposite party no.2 received an amount of Rs.6,00,000/- from the complainantand the Opposite Party no.2 issued receipt in favour of the complainant for an amount of Rs.2,00,000/- plus Rs.4,00,000/- total amount of Rs.6,00,000/- and the complainant filed a complaint against the Opposite Parties under Section 138 and 142 of NI Act on the file of I Addl. Chief metropolitan Magistrate, Visakhapatnam and the same is pending before the Honourable Court. Even though the opposite parties executed an agreement in favour of the complainant and promised to construct the flat to hand over to the complainant within 6 months, the OPs did not stand on their words and the Opposite parties did not hand over the Flat No.509 within promised time though the complainant repeatedly  requested them to hand over the Flat No.509, thus the Opposite parties cheated the complainant willfully with ulterior motive. The complainant made repeated oral demands to repay the advance amount of Rs.6,10,000/- with accrued interest at 24% p.a., from 17-03-2008. They agreed to pay Rs.6,00,000/- towards part payment and accordingly, the Opposite Party issued two cheques bearing nos. 019128 and 019129 respectively  in favour of the complainant on 24-06-2010 for an amount of Rs.3,00,000/- each of ICICI Bank Ltd., Visakhapatnam Branch, Dwarakanagar, Visakhapatnam and accordingly the complainant presented the above two cheques in his Banker i.e., State bank of India, Vukkunagar, Visakhapatnam on 10-11-2010 for clearance and the complainant was surprised on the same day i.e., on 10-11-2010 as the cheque was returned with an endorsement “insufficient funds” in their account. The Opposite party issued cheque knowing fully well that there are no sufficient funds in their account and wantonly issued the aforesaid two cheques to play fraud with the complainant. Hence, this complaint.

4.   The complainant filed an evidence affidavit and also written arguments to support his claim. Exhibits A1 to A9 are marked for the Complainant.

5.   On the other hand, the Opposite Parties 1 and 2 resisted the claim of the complainant by contending, as can be seen from their counter, that it is fact that the Opposite parties intended to develop the property situated at Marripalem and in that process, the complainant approached the Opposite parties and booked plot no.509 by paying Rs.10,000/- as initial advance and subsequently, he paid Rs.4,00,000/-. In the meanwhile some disputes arose in between the Opposite parties and the landlords. As such, he could not complete the construction and hand over the same to the Complainant. The Opposite Parties further stated that the complainant also booked another flat in the same apartment and as this Opposite party could not complete the construction within time, he requested the complainant to wait for some more time, up to that period, he has given a cheque towards security for the amounts paid by the complainant in respect of the flats booked by him. But the complainant, without waiting, approached this forum with all false allegations. Except Rs.4,00,000/- this Opposite Parties never received any amount as stated by the complainant.

6.   The Opposite Parties filed evidence affidavit by the 2nd Opposite party to buttress their contention. It is treated as no written arguments for the Opposite parties.

7.   The matter has been heard on behalf of the Complainant. The matter was treated as no arguments  on behalf of the Opposite Parties.

8.   After careful perusal of the case record, this Forum finds that this case springs from Exhibit A1 Agreement To Sell between the complainant and the Opposite Parties. According to this Agreement To Sell, the complainant has to pay the total consideration of Rs.12,89,500/- to the complainants within 6 months from 17-03-2008-the date on which the Agreement To Sell was executed. Exhibit A5 receipt dated 16-03-2008 clearly shows that the 2nd OP, personally on behalf of the 1st OP, received Rs.6 lakhs from the complainant. In this receipt, the 2nd Opposite Party clearly mentioned that he received Rs.2,00,000/- on 16-03-2008, also received another Rs.4 lakhs on 17-03-2008, he also put 17-03-2008 time 11.15 am at the bottom of the said receipt and also wrote clearly that he received the total amount of Rs.6 lakhs on that day. Moreover, we can also see from the Exhibit A1 Agreement To Sell that on that day, Rs.10,000/- was paid by the complainant. So, in all, it is clear that the complainant paid only Rs.6,10,000/- to the OPs. But clause No.4 of Exhibit A1 Agreement To Sell clearly stipulates that the total payment of Rs.12,89,500/- should be completed by 16-09-2008 i.e., within 6 months from 17-03-2008, the date on which the Agreement To Sell was executed. So, it is as clear as daylight that the complainant is a defaulter. He did not come to this forum with clean hands. As such, he cannot allege any deficiency of service on the part of the OPs. Exhibit A1 i.e., the Agreement To Sell clearly stipulates, as per clause 5 and 6 of the said agreement, the OPs have to complete registration and construction only after the entire  payment of Rs.12,89,500/-. So, we find no deficiency of service on the part of the Opposite Parties. As such the complainant is not entitled to any compensation. All the same, when the Opposite parties encountered some disputes with the land lords and as a consequence could not complete the construction, as admitted by the Opposite parties in their counter and affidavit, as reasonable builders, they should have returned the amount received from the Complainant to the complainant without any delay. But, they did not do this. Moreover, it is also admitted by the Opposite parties that the cheques, (Exhibits A6 to A7) bounced when presented by the Complainant. As such, the OPs are bound to refund the amount of Rs.6,10,000/- with interest from 17-03-2008. Moreover, as the complainant is forced to file this complaint, because the OPs failed to refund this amount promptly, he is entitled to costs of this complaint too.

9.   In the result, this forum directs the Opposite Parties 1 and 2; a) to refund Rs.6,10,000/- (Rupees Six Lakhs and Ten Thousand only) with interest @ 9% p.a., from 17-03-20008 till the date of actual realization and also b) to pay costs of Rs.6,000/- (Rupees Six thousand 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 6th day of September, 2014.

 

Sd/-                                        sd/-

President                                  M.Member

 

Documents Marked

 

 

For the Complainant:-

 EXHIBITS    DATE    DESCRIPTION OF THE DOCUMENT    REMARKS 
A-1    17-03-2008    Agreement to Sell     Original
A-2    29-11-2010    Legal Notice     Office copy
A-3    
     Returned cover     Original
A-4    
     Returned Cover     Original

A-5    
16-03-2008    Receipt    Xerox copy

A-6    
24-07-2010    Cheque bearing no.019129 drawn on ICICI Bank      Xerox copy 

A-7    
24-07-2010    Cheque bearing no.019128 drawn on ICICI Bank      Xerox copy 

A-8    
10-11-2010    ICICI BANK ENDORSEMENT    Xerox copy

A-9    
10-11-2010    ICICI BANK ENDORSEMENT    Xerox copy

 

 

For the Opposite Parties:-    -nil-

                                                                                                                

Sd/-                                        sd/-

President                                  M.Member