Andhra Pradesh

Visakhapatnam-II

CC/190/2012

P. Surendra Kumar - Complainant(s)

Versus

M/s Subham Real Estate - Opp.Party(s)

Ch. Papa Rao

30 Dec 2014

ORDER

Reg.of the Complaint:21-06-2012

                                                                                                                                 Date of Order:30-12-2014

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

 

TUESDAY, THE 30^TH DAY OF DECEMBER, 2014

CONSUMER CASE NO.190/2012

 

BETWEEN:

 

P.SURENDRA KUMAR S/O BACHIRAJ PANCHI,

HINDU, AGED 45 YEARS, OWNER,

M/S RAGINI ENTERPRISES, D.NO.10-5-4/1,

RAMNAGAR, VISAKHAPATNAM-2.

…COMPLAINANT

AND:

1.M/s SUBHAM REAL ESTATES, REP. BY ITS

MANAGING PARNTER, GUNDALA ESWARA RAO,

S/O LATE SANYASI NAIDU HINDU, AGED 51 YEARS,

FLAT NO.203 &306, SRIDEVI NILAYAM,

BESIDES VENKATA RAMANA HOSPITAL,

NEAR DIOMAND PARK, DWARAKANAGAR, 4^TH LANE,

VISAKHAPATNAM-16, BUSINESS PRESENTLY WORKING AS

C.E.O., AT M/s VISWAS REAL ESTATES (INDIA) PVT. LTD.,

HAVING ITS REGISTERED OFFICE AT D.NO.1-90-12,

HABSIGUDA, X ROADS, OPP:CCMB, HYDERABAD.

 

2.TURANGI VEERABHADRA RAO S/O T.KAMESWARA RAO,

HINDU, OFFICE AT FLAT NO.203 &306, SRIDEVI NILAYAM,

BESIDES VENKATA RAMANA HOSPITAL, NEAR DIOMAND PARK, DWARAKANAGAR, 4^TH LANE, VISAKHAPATNAM-16.

…OPPOSITE PARTIES

This case coming on 23-12-2014 for final hearing before us in the presence of SRI CH.PAPA RAO and the 1^st OP is being exparte, and having stood over till this date for consideration, this Forum made the following.

 

ORDER

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

1.     The present complaint is filed by the Complainant against the 1^st OP to refund an amount of Rs.2,00,000/- with accrued interest @ 24% p.a., from the date of payment till the date of realization, an amount of Rs.5,00,000/- towards compensation for causing mental agony and  Rs.10,000/- towards legal expenses.

2.     The case of the complainant in brief is that both the OPs  have jointly established the Real Estates under the name and style of M/s Subham Real Estate by establishing their Corporate Office at Visakhapatnam and appointed agents, mediators to tell about their ventures  and also explained to public in general about their layouts and offered discounts to the members and subscribers and promised to allot after development as per the norms of VUDA and sale consideration was payable on easy monthly installments and believing their version, he joined as member in Mythri Nagar layout to obtain house plot and paid sale consideration of Rs.2,00,000/- from 15-04-2008 on 10-06-2008 and the OPs issued receipts in his name in respect of Plot No.5 measuring 183sq.yds in Mythri Nagar Layout in S.No.40P and 45P of Kopperla Village, Pusapatirega Mandal, Vizianagaram District. It is also his case that the OPs have executed an unregistered agreement at Visakhapatnam on 25-07-2008 incorporated the details of the flat and about Rs.2,00,000/- towards advance etc., Thereafter he and his family members visited the location of the layout and on coming to know, it was not developed  as per the norms and contentions of VUDA and that there is no possibility to construct dwelling colonies immediately, he approached the OPs and their officials requested him to wait for some time and then he waited for some time and at last on coming to know, the OP1 escaped from his liability and shifted his family from Visakhapatnam to Hyderabad without any information to him, he addressed letters, but, there is no response and finally got issued legal notice and filed the present complaint.

3.     The 1^st Opposite Party did not resist the case of the Complainant, for the reasons best known to it inasmuch as it remained exparte.

4.     The case against the 2^nd Opposite Party is dismissed.

5.     To prove the case of the complainant, he filed his evidence affidavit and also got marked Exhibits A1 to A6.

6.     Exhibit A1 is the Receipt bearing No.51 dated 15-04-2008, Exhibit A2 is the Receipt bearing No.54 dated 05-05-2008, Exhibit A3 is the Receipt bearing No.117 dated 09-05-2008, Exhibit A4 is the Receipt bearing No.121 dated 02-06-2008, Exhibit A5 is the Receipt bearing No.123 dated 10-06-2008, Exhibit A6 is the Agreement dated 25-07-2008.

7.     The Complainant filed his Written Arguments.

8.     Heard the arguments of the Complainant.

9.     Now the point that would arise for determination in this case is?

Whether there is any deficiency of service on the part of the OPs and the complainant are entitled to any reliefs asked for?

10.    Exhibit A1 is the agreement dated 25-07-2008 entered into between the complainant and the OP which clearly shows that the OP is dealing with the Real Estate Business and the Complainant herein agreed to join as a member in Mythrinagar layout in Plot No.24, measuring 183sq.yds of Kupperla Village, Pusapatirega Mandal, Vizianagaram District, do further stipulates total cost of the plot is Rs.4,75,983/- and the complainant paid a sum of Rs.2,00,000/- towards advance and the rate agreed is Rs.2,601/- per sq.yd and the complainant further agreed to pay the balance amount of Rs.2,75,983/- on or before 31-08-2008. Clause 5 stipulates, if the OP failed to allot and register the said plot, they shall return the advance amount together with Bank interest. Exhibit A1 to A5 discloses that the OP received Rs.2,00,000/- advance amount from time to time from the complainant, total for an amount of Rs.2,00,000/- and passed receipts in his favour in respect of the flat offered in Exhibit A6. On a careful perusal of Exhibit A1 to A6, we are of the considered view that the complainant paid the advance of Rs.2,00,000/- to OP towards advance amount for the purpose of plot as offered in Exhibit A6. The evidence of the complainant clearly reveals about execution of the Agreement vide Exhibit A6 and payment of advance amount vide Exhibit A1 to A5 but in spite of receipt of notices, the OP failed to rebut the evidence let in by the complainant, therefore, it can be held that the evidence of Pw1 is unchallenged.

11.    The complainant averred in his sworn affidavit that after execution of the agreement, he visited the location of the aforesaid flat and on coming to know, it was not developed as per the norms and conditions of the VUDA. Accordingly, the OPs had enquired about the development, he could not get proper response and thereafter, he came to know that the OP left away from Visakhapatnam and doing business at Hyderabad without informing or developing about the Plot. The evidence of the complainant clearly and categorically caused to show that there is a clear deficiency of service form the acts of the OP, therefore, the complainant is entitled for recovery of the advance amount paid by him from the OPs with interest thereon.

12.    Now the question that comes up for consideration, at this stage 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.A6 is in commercial in nature, but that does not and cannot mean to say that the Complainant is licensed to claim interest @ 24% p.a. on from the date of last payment i.e., Ex.A5.     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 having considered the case on hand awarding of interest @ 12% p.a. would better serve the ends of justice.    Consequently, we proposed to fix the rate in question @ 12% p.a. on Ex.A5 in question.   Accordingly interest is ordered.

13.    Whether the Complainant is entitled for compensation of Rs.5,00,000/- is to be considered.   It appears as seen from the evidence of PW-1 that the Complainant was compelled to approach the Opposite Party and therefore experienced a lot of physical strain besides mental agony and financial loss.   It is a un-dispute fact that the Opposite Party 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 25,000/- would serve the ends of justice.   We therefore, proposed to award compensation of Rs.2,500 /-,  in the circumstances of the case on hand. Accordingly this point is answered.

14.    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 advance amount of Rs.2,00,000/- 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.

15.    In the light of our discussion, referred supra, the complainants are entitled to receive the amount which was paid by the complainant i.e., Rs.2,00,000/- together with subsequent interest @12% p.a., from the date of last payment i.e., 10-06-2008 and a compensation of Rs.25,000/- towards compensation and also costs of Rs.2,500/- to the Complainant.

16.    In the result, the complaint is allowed in part, directing the OPs 1 and 2 to refund a sum of Rs.2,00,000/- (Rupees Two lakhs only) with subsequent interest @12% p.a., from the date of last payment 10-06-2008 till the date of realization and further directed to pay an amount of Rs.25,000/- (Rupees Twenty Five Thousand only) towards compensation and costs of Rs.2,500/- (Rupees Two Thousand and Five hundred only) to the Complainants. 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 30 day of December, 2014.

   Sd/-                                                                                                    Sd/-

M.MEMBER                                                                                                             PRESIDENT

 

 

 

 

 

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainants:

Exhibits	Date	Description	Remarks
A-1	15-04-2008	Receipt bearing No. 51	Original
A-2	05-05-2008	Receipt bearing No.54	Original
A-3	09-05-2008	Receipt bearing No.117	Original
A-4	02-06-2008	Receipt bearing No.121	Original
A-5	10-06-2008	Receipt bearing No.123	Original
A-6	25-07-2008	Agreement	Photostat copy

 

Exhibits Marked for the OPs     -nil-

  Sd/-                                                                                                      Sd/-

M.MEMBER                                                                                                             PRESIDENT