Andhra Pradesh

Visakhapatnam-II

CC/112/2012

Behara Kalyan Chakravarthi - Complainant(s)

Versus

M/s Srimitra Townships Private Limited - Opp.Party(s)

K. Nagamani

12 Jan 2015

ORDER

                                              Date of Registration of the Complaint:09-04.2012

                                                                                                Date of Order:12-01-2015

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

 

                          Monday, the 12^th day of January, 2015.

                                 CONSUMER CASE No.112/2012

Between:-

Behara Kalyan Chakravarthi,
S/o B.J.R. Patnaik, Assistant Accounts Officer,

Resident of P 76/10, D.A.D. Quarters,

Lekhanagar, Nasik-422 009.

….. Complainant

And:-

M/s. Sreemitra Townships Pvt. Ltd.,

Represented by its Authorized Signatory,

47-10-25/1, IInd Floor, Sai Trade Centre,

Dwarakanagar, 2^nd Lane, Visakhapatnam-530 016.

                                                                                         …  Opposite Party     

                     

          This case coming on 31.12.2014 for final hearing before us in the presence of K. Nagamani & Sri V.S.R. Bavaji Advocates for the Complainant and Sri T. Ravi Kumar, Advocate for the Opposite Party and having stood over till this date for consideration, this Forum made the following:

 

                                                ORDER

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

 

1.       This present complaint is filed by the Complainant against the Opposite Party directing him to pay an amount of Rs.2,00,300/- (Rupees Two lakhs and three hundred only) towards refund an amount of Rs.2,50,000/- (Rupees two lakhs and fifty thousand only) towards compensation and Rs.5,000/- (Rupees five thousand only) towards costs.

 

 2.      The case of the Complainant in brief is that he joined in the proposed Township called Sreemitra Townships Pvt. Ltd., Sowbhagyarayapuram at Pendurti Mandalam, Visakhapatnam District enrolled as a member through their agent Smt. P. Haritha Reddi on 31.10.2010 and remitted an amount of Rs.2,00,300/- .   After noticing their advertisement on agreeing their terms and conditions, where in the Opposite Party assured him that the registration will be informed during the month of March, 2011 and on 26.08.2011 the Opposite Party addressed a letters stating that they got approval from VUDA and requested to arrange the balance i.e., full and final payment on or before one month of the plot registration and in the month of 2011 again their addressed a letter and there was delay in approval due to technical reasons and on that he waited till November, 2011 and on noticing several controversies in the letter addressed by the Opposite Party on 10.11.2011, he addressed a letter requesting them to refund an amount paid by him on or before 30.11.2011 but they did not respond.

 

3.       That on 03.11.2011 he approached Vuda and came to know the Vuda has not issued L.P. No. to the above layout latter inspite of the repeated demands the Opposite Party did not refund an amount.   Hence, he got issued a Lawyer’s Notice for which they gave reply with false contents.   Hence, this Complaint.

 

4.       The Case of the Opposite Party denying the material averments of the Complainant admitted that in the years 2011 their company launched new venture in the name and style of the SIMHADRI and offered plots to the customers in two schemes and as per their terms the registration of the plots will be done only after completion of the scheme period and after getting layout approval from VUDA Authorities but their complaint never interested in paying full amounts of plot costs.  Hence, there is no question of considering him on outright basis.  

 

5.       The Complainant entered into an oral agreement with their company and joined in 12 months installments scheme and paid Rs.2,00,000/- on different dates and he has to pay installments @ Rs.30,000/- from December, 2010 onwards including four special installments of Rs.1,00,000/- each.    Inspite of requests made by the Complainant did not comply with the terms and conditions of their company.   They never assured the Complainant orally, that registration will be performed during March, 2011 as they were expecting approval of Vuda.

6.       The Complainant never cared to pay the monthly installments at any given point of time and that in order to enter into a written agreement with him as per the scheme conditions, the Complainant has to pay at least 2 installments which the Complainant did not do and that though got approval from Vuda on 19.03.2012 and even today they are ready to register the plot in the name of the Complainant and the Complainant is entitled to full refund.   Since, the Complainant was default in payment of monthly installments, they will have to deduct 16.45% of Rs.32,900/- as commission besides site visit charges of Rs.1,000/- and administration charges of Rs.10,000/- as per the terms and conditions and depositing of Rs.1,56,100/- D.D. drawn in favour of the Complainant after deducting the above charges.   Even though, they offered the above amount earlier the Complainant rejected to receive the same and demanded total amount of Rs.1,00,000/- with interest which is not possible and against the contract.   For these reasons, the Complaint filed by the Complainant is liable to be dismissed.  

 

7.       To prove the case on behalf of the Complainant, he filed his evidence affidavit and got marked as Exs.A1 to A10.   On the other hand, on behalf of the Opposite Party the Assistant General Manager and the Regional Branch Manager of the Opposite Party filed their Sworn affidavits and got marked as Exs.B1 to B10.

 

8.       Ex.A1 is the Bunch of Receipt Nos.0529, 0530, 0547 and 0621 for Rs.50,000/- issued by the Opposite Party in favour of the Complainant dated 31.10.2010.  Ex.A2 is the office copy of letter addressed b the Opposite Party to the Complainant dated 11.02.2011.   Ex.A3 is the OP Terms & Conditions.  Ex.A4 is the Letter of registering your plot sent by Opposite Party to Complainant dated 24.08.2011.   Ex.A5 is the letter of Delay in Registration of plot sent by the Opposite Party on 26.08.2011.  Ex.A6 is the letter and Postal Receipt sent by the Opposite Party to the Complainant on 10.11.2011.   Ex.A7 is the Acknowledgement dated 11.11.2011.  Ex.A8 is the office copy of letter addressed by Public Information Officer, VUDA to the Complainant on 29.12.2011.  Ex.A9 is the office copy Legal Notice with Postal Receipt issued by the Complainant’s counsel to the Opposite Party dated 28.01.2012.   Ex.A10 is the office copy of letter sent by Opposite Party’s counsel to Complainant.

 

9.       Ex.B1 is the VUDA Approval Plan issued by Vice-Chairman on 21.02.2012.   Ex.B2 is the photo copy of Details of Venture Registration Documents Dispatch Register dated 06.03.2012 to 18.06.2012.  Ex.B3 is the 4 (four) Photos.  Ex.B4 is the Land Purchase Offer Passbook No.128 in four of the Complainant on 31.10.2010.   Ex.B5 is the photo copy of Circular sent by the Opposite Party to all the Sales & Marketing Personnel. Ex.B6 is the Photo copy of Sale Deed dated 17.03.2012.  Ex.B7 is the Photo copy of Sale Deed dated 13.04.2012.   Ex.B8 is the Photo copy of Sale Deed dated 29.05.2012.    Ex.B9 is the photo copy of Sale Deed dated 9.05.2012.   Ex.B10 is the photo copy of Sale Deed dated 29.03.2012.

 

10.     Both parties are filed their respective written arguments.

 

11.     Heard oral arguments from both sides.

 

12.     Now the points that arise for determination is:-

Whether there is any deficiency in service on the part of the Opposite Party and the Complainant is entitled for the reliefs of advance amount with interest, compensation and costs.

 

13.     As seen from record, it is not in-dispute that the Opposite Party’s company launched the venture under the name and style of SIMHADRI and the Complainant approached the company by seeing their advertisement to have a plot measuring 200 sft. referred supra and joined in 12 months installments scheme under which the Complainant paid of Rs.2,00,000/- on various dates and he has to pay installments @ Rs.30,000/- from December, 2010 onwards including four special installments of Rs.1,00,000/- and that there were exchange notices in between the parties prior to filing of this complaint and the Opposite Party obtained Vuda approval for the said layout on 19.03.2012. 

 

14.     Now the point in dispute is on coming to know through the letters addressed by the Opposite Party that they may take some time for getting Vuda approval the Complainant felt refund of amount from the Opposite Party and approached them but they have not returned nor registered the plot as agreed according to the Complainant.   Whereas, according to the Opposite Party the Complainant failed to comply with the terms and conditions agreed i.e., as he has not paid the entire installments amounts as agreed, after deducting them relevant commission in this scheme when they offered to pay the balance amount of Rs.1,56,100/- the Complainant did not come forwarded, hence they took DD in the name of the Complainant and filed the same along with counter.

 

15.     Now it is to be seen whether the Complainant is entitled for refund amount of Rs.2,00,300/- or as per the contention of the Opposite Party an amount of Rs.1,56,100/-.    It is evident as seen from record, both parties are relied upon Ex.B4 land approach offer letter under which the Complainant paid Rs.2,00,300/-.    As seen from the terms and conditions of the over lead of Ex.B1 “if any member seeks to cancel his membership will not be considered during the scheme period and it will be considered after the scheme period deducting marketing expenses, administrative expenses and development expenses.   It is a fact that what are the percentages of expenses will be deducted towards marketing expenses, administrative expenses and development expenses.    It is an admitted fact that the Opposite Party has not deducted any amount towards development expenses and they have deducted Rs.1,000/- towards site visiting expenses, which is not born out from the terms and conditions.    Therefore, the Opposite Party is not entitled to deduct from out of the total amount payable to the Complainant towards site visiting parties. 

 

16.     In order to prove the deduction for 16.45% of Rs.32,900/- as commission besides administration charges of Rs.10,000/- the Opposite Party relied upon Ex.B1 the circular dated 17.10.2010 issued by the “Sreemitra Townships Pvt. Ltd”.   It shows that the circular was addressed to all sales and marketing approval of Visakhapatnam Branchs only by marketing copies to Vice-President, General Manager, Deputy Manager, Assistant General Manager, General Manager Accounts and Accounts Departments, but not to any of the alleged plot owners who intended to purchase the plots.   Thus, it can be held Ex.B1 relates to the Office Staff and the concerned of “Sreemitra Townships Pvt. Ltd” only.   Though there is a clause in Ex.B4 about deduction of expenses towards administration and marketing what was the percentage to be deducted from out of the Complainant’s total amounts was not mentioned, in the absence of specific clause, in respect of commission charges it can be held that Ex.B1 is self styled document for the office use only.   Further there is no evidence whatsoever, placed by the Opposite Party with the amount deducted towards aforesaid commission was disbursed to concern the persons who received the amounts and affidavit are not filed.   Further the Complainant clearly stated in the notices addressed to the Opposite Party vide Exs.A4 to A6 and A9 and in the Complainant requesting the Opposite Party to refund the amounts paid by him of Rs.2,00,300/- stating the reasons therein .   Even at that juncture also, the Opposite Party did not state regarding the deduction of percentage under what rule vide Ex.B1.   For all these reasons, we are of the considered opinion that the Complainant is entitled for refund of the amount deducted towards expenses of administration charges, site visit charges and marketing expenses of Rs.46,900/- besides the admitted amount deposited by way of DD of Rs.1,56,100/-.

 

17.     In respect of interest is concerned, since the amount of Rs.46,900/- is lying with the Opposite Party and the Complainant is entitled for the same,  the Complainant is entitled for interest for the said amount.   Now the question that comes up for consideration, at this stages of our discussion 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 in commercial in nature, but that does not and cannot mean to say that the Complainant is a licenced to claim interest @ 24% p.a. on Ex.A1.    But at the same time, it is an imperative on our part to award a reasonable interest.   Having regard to all these facts and circumstances, we sincerely feel 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. on Ex.A1 in question.   Accordingly interest is ordered.

 

18.     Whether the Complainant is entitled for compensation of Rs.2,50,000/- is to be considered.   It appears as seen from the evidence of PW-1 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 un-dispute fact that the Opposite Parties did not refund the amount subscribed by the Complainant.   Naturally that made 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 5,000/- would serve the ends of justice.   We therefore, proposed to award compensation of Rs.5,000 /-,  in the circumstances of the case on hand. Accordingly this point is answered. 

 

19.     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 the sum of Rs.2,00,300/- or reliefs sought for have been honored by the Opposite Party within a reasonable time and in view of the matter, the Complainant’s claim for claims for cost 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.

 

20.     In the result, Complaint is allowed, in part directing the Opposite Party to pay an amount of Rs.46,900/- (Rupees Forty six thousand and nine hundred only) with interest @ 9% p.a. from 28.01.2012 i.e., from the date  issue of notice till the date of realization, besides the Complainant is permitted to receive the DD lying in his name for Rs.1,56,100/- (Rupees One lakh, fifty six thousand and one hundred only and to pay Rs.5,000/- (Rupees five thousand only) towards compensation and costs of Rs.2,500/- (Rupees two thousand and five hundred only) to the Complainant.   Time for compliance, one month.

     Dictated to the Steno, transcribed by him, corrected and pronounced by us in the Open Forum, this the 12^th day of January, 2014.

Sd/-                                     Sd/-                                          Sd/-

Male Member                   Lady Member                                          President

 

 

                             APPENDIX OF EVIDENCE

For the Complainant:-

NO.	DATE	DESCRIPTIONOFTHEDOCUMENTS	REMARKS
Ex.A01	31.10.2010	Bunch of ReceiptNos.0529,0530,0547and 0621  for Rs.50,000/- issued by the OP in favour of the Complainant	Original
Ex.A02	11.02.2011	Letter issued by the OP to Complainant	Office copy
Ex.A03		OP Terms & Conditions	Original
Ex.A04	24.08.2011	Letter of Registering your plot issued by OP in favour of the Complainant	Original
Ex.A05	26.08.2011	Letter of Delay in Registration of plot issued by OP in favour of the Complainant.	Original
Ex.A06	10.11.2011	Letter sent by the OP to Complainant with Postal Receipt	Original
Ex.A07	11.11.2011	Acknowledgement	Original
Ex.A08	29.12.2011	VUDA addressed to Complainant	Office copy
Ex.A09	28.01.2012	Legal Notice issued by the Complainant’s counsel to OP with Postal Receipt.	Office copy
Ex.A10	21.02.2012	Reply letter sent by Ops’ counsel to Complainant.	Office copy

For the Opposite Party:-                                             

No.	DATE	DESCRIPTIONOFTHEDOCUMENTS	REMARKS
Ex.B1	21.02.2012	VUDA Approval Plan issued by Vice-Chairman	Original
Ex.B2		Venture Registration documents Dispatch Register dated 6.13.12 to 18.6.12	Photo copy
Ex.B3		4 (Four) Photos	Original
Ex.B4	31.10.2010	Land Purchase Offer Passbook No.128 in favour of the Complainant	Original
Ex.B5	17.10.2010	Circular sent by OP to All the Sales & Marketing Personnel	Photo copy
Ex.B6	17.03.2012	Sale Deed	Photo copy
Ex.B7	13.04.2012	Sale Deed	Photo copy
Ex.B8	29.05.2012	Sale Deed	Photo copy
Ex.B9	09.05.2012	Sale Deed	Photo copy
Ex.B10	29.03.2012	Sale Deed	Photo copy

         

Sd/-                                     Sd/-                                          Sd/-

Male Member                          Lady Member                      President