Andhra Pradesh

Visakhapatnam-II

cc/48/2013

SK. Latha - Complainant(s)

Versus

M/s Suvarnabhoomi Developers Private Limted - Opp.Party(s)

Ch. Papa Rao

27 Mar 2015

ORDER

         Registration of the Complaint:01-03-2013

Date of Order:27-03-2015

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

3.Smt.K.SAROJA, M.A., B.L.,

       Lady Member

 

FRIDAY, 27^TH DAY OF MARCH, 2015

        CONSUMER CASE NO.48/2013

 

BETWEEN:

SK.LATHA W/O SK.MASTAN VALI, HINDU,

AGED 40 YEARS, R/O D.NO.10-10-65,

SAI RAM NAGAR, GAJUWAKA,VISAKHAPATNAM

DOING BUSINESS AT GAJUWAKA, VISAKHAPATNAM.

                                                                                      …COMPLAINANT

A N D:

1.M/S SUVARNABHOOMI DEVELOPERS PVT. LTD.,

AND MARKETING SERVICES (INDIA) PVT., LTD.,

AN ISO 9001:2000, 14001:2004, OHSAS 18001:2007

CERTIFIED COMPANY REP. BY ITS CHARIMAN &

MANAGING DIRECTOR, HEAD OFFICE SITUATED AT

8-2-595/3, EDENGARDENS, ROAD NO.1

BANJARA HILLS, HYDERABAD-500 034.

2.M/S SUVARNABHOOMI DEVELOPERS PVT. LTD.,

AND MARKETING SERVICES (INDIA) PVT., LTD.,

AN ISO 9001:2000, 14001:2004, OHSAS 18001:2007

CERTIFIED COMPANY REP. BY EXECUTIVE DIRECTOR,

SRI MEKA SRINIVASA RAO, HINDU, AGED 45 YEARS,

HEAD OFFICE SITUATED AT 8-2-595/3, EDENGARDENS,

ROAD NO.1, BANJARA HILLS, HYDERABAD-500 034.

3.M/S SUVARNABHOOMI DEVELOPERS PVT. LTD.,

AND MARKETING SERVICES (INDIA) PVT., LTD.,

AN ISO 9001:2000, 14001:2004, OHSAS 18001:2007

CERTIFIED COMPANY REP. BY ITS OFFICE INCHARGE,

SMT. SUDHA, AGED ABOUT 50 YEARS,  REGIONAL OFFICE,

SITUATED AT 5-27-6, IIND FLOOR, SRINIVASA NILAYAM,

NRI HOSPITAL ROAD, NEAR GURUDWARA, NORTH EAST LAYOUT,

SEETHAMMADHARA, VISAKHAPATNAM-530013.

          …OPPOSITE PARTIES

 

This case coming on 12-03-2015 for final hearing before this Forum in the presence of SRI CH.PAPA RAO, Advocate for the Complainant and of             SRI K.S.SURESH KUMAR, Advocate for the OPs, and having stood over till this day for consideration, the Forum made the following:

 

O  R  D  E  R

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

1.       The Complainant filed the present Complaint against the Opposite Parties, directing them to refund an amount of Rs.35,300/- with interest @ 24% p.a, from date of payment till the date of realization, Rs.10,000/- towards compensation and Rs.10,000/- towards costs.

2.       The case of the complainant in brief is that the Opposite Parties have established their head office at Hyderabad, Rajahmundry and Visakhapatnam and doing Real Estate Business  by making vide publicity through Cine Artist believed the versions of the OPs, she paid an amount of Rs.35,300/- towards sale consideration for the vacant house of plot no.154 North, Sri Santhi Suvarna Kuteer, Phase-III, Vizinagaram  and the 3^rd OP has issued a receipt bearing No.420 dated 21-06-2012 in her name and later on coming to know the said layout venture is not developed as per the norms of VUDA and there is no possibility to construct residential house, she demanded the OPs to show the original LP issued by the VUDA, there is proper response.

3.       That the agents and officials of the OPs have approached while she was in her house and compelled her to change her plot No. 154  and they informed her that they have already allotted Plot No.159 which is not shown earlier. At the first instance, she was allotted Plot No.154, but later the OPs with malafied intention changed the flat without any prior intimation. Therefore, she is not wished to continue with the OPs and requested them to refund her amount. Instead of her demands and notices, they failed to return back her amount. Hence this complaint.

4.       The case of the OP, denying the material averments of the complaint is that this Forum has no jurisdiction to entertain the complaint. They further submitted that the complainant herself chosen plot no.159 and the same is mentioned in the application form also. Now only for the purpose of refund of money, she made false allegations. The OPs will not force any one to chose any particular plot and it is for the complainant to chose. As per Clause No.11 of the application, the complainant has applied for the provisional allotment of flat with specific knowledge that the location and number of the plot are tentative and are liable to change. However, it is reiterated that they have not made any changes and the complainant herself opted Plot No.159 and signed in the application.

5.       That the complainant fails to pay the remaining amount as per the agreement and as per the terms and conditions, they have every right to cancel the said allotment and allotted the same to some other intending purchasers. As per Clause No.15 of the application, they shall be entitled to forfeit the advance amount along with other amounts in case of breach of terms and conditions of the application. As the complainant failed to pay the remaining sale consideration, they have having every right to forfeit the advance amount. For these reasons, the complaint is liable to be dismissed.

6.       To prove the case of the complainant, he filed his affidavit and got marked Exhibits A1 to A5, on other hand, on behalf of the OPs, they filed their affidavits and Exhibit B1 is marked on their behalf.

7.       Exhibit A1 is the Receipt No.420 issued by the OPs dated 21-06-2012, Exhibit A2 is the Letter and reminder notice issued by the OPs to the complainant, dated 10-12-2012, Exhibit A3 is the letter from the complainant to the OP Visakhapatnam Branch, dated 04-10-2012, Exhibit A4 is the Letter from the complainant to OP, Visakhapatnam by RPAD., and Exhibit A5 is the Letter from the complainant to the OP, Hyderabad by Regd., Post with receipt and acknowledgement.

8.       Exhibit B1 is the Application for Provisional Allotment

9.       Both parties filed their respective written arguments.

10.     Heard oral arguments of Complainant and treated as heard the OPs.

11.     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?

12.     It is evident as seen from record, the Branch Office of M/s Suvarnabhooi Developers Private Limited represented by its Managing Director cum Chairman, Hyderabad and two others is situated at Visakhapatnam and the complainant is residing at Visakhapatnam. The agent collected part of sale consideration from the complainant at Visakhapatnam and the OP established their Branch Office in all the states and appointed 1000 of agents to promote their business. Therefore, the complainant is having every right to file this case against the OPs, for seeking refund of her amount in this forum. Therefore, the contention raised by the complainant counsel for the OP has no legs to stand. The case of the complainant is that at the time of joining, the OPs promised her that the flat No.154 is situated at north corner as such, she was very much interested to join as the member of the said layout and paid Rs.35,300/- only for flat no.154 but later the OPs with a malafied intention changed the flat without any prior information to her, as such, she lost good faith on them and expressed her wish not to continue and requested them to refund her amount, but, they bluntly refused to prove her case, she relied upon Exhibit A1 the receipt No.420 dated 21-06-2012 for Rs.35,300/- issued in her name. On the other hand, the case of the OP is that the complainant herself personally visited and selected flat no.159 which is mentioned in her application form also and now for the purpose of refund of money, she is making false allegations against them and in view of the terms and conditions of the application, she is not entitled for refund of amount and relied upon Exhibit B1 and A3.

13.     Exhibit B1 is the application form duly signed by the complainant and OP Administrative Officer which indicates the complainant was allotted flat no.159 facing north, however, it is an apparent as seen from record, the figure is being corrected without any initial, as such it can be held that there is any amount of doubt, with regard to the allotment no.159 in favour of the complainant.

14.     It is the duty of the OP to file the relevant administrative officer evidence affidavit who signed in Exhibit B1 i.e., corrected by him and what made him to correct in figure ‘9’. On perusal of it, it appears that the figure ‘4’ is being corrected as ‘9’. Exhibit A3 subsequent to Exhibit B1 and A1 do appear as seen from Exhibit A3 dated 10-12-2012 addressed by OP to the complainant subsequent to demand of payment of her money which is not useful for the issue in controversy. Though it was noted therein that the complainant was allotted flat no.159. In their phase III through Santhi Suvarna Kuteer. Now coming to Exhibit A1 which was admittedly issued by the OP clearly goes to show that the complainant was allotted SRI SANTHI SUVARNA KUTEER-3, Vizianagaram phase-III Flat No.154 north and they received Rs.35,300/- on 21-06-2012 since Exhibit A1 was not denied by OP, we are of the considered view that originally the complainant was allotted Flat No.154 North facing only.

15.     The evidence of the complainant clearly goes to show that they visited the venture and found it is not developed as per the norms of the VUDA and on demand to show the original LP issued by VUDA they failed to supply the same. This probably prompted the complainant to approach the OP for refund of the amount and on that it appears the OPs came with a new story as alleged by them. From all these facts and circumstances, it can be held that there is a unfair trade practice coupled with deficiency of service. The documents filed by the complainant marked as Exhibits clearly goes to show that in spite of her approach and by way of registered letters for demanding of the advance amount, the OPs failed to return back the same. Therefore, the complainant is entitled to receive the advance amount paid by her.

16.     Now the question that comes up for consideration, at this stage of our discussion is, 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 commercial in nature, but that does not and cannot mean to say that the Complainant is licensed to claim interest @ 24% p.a. on Ex.A 1.  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 @ 9% p.a., would better serve the ends of justice.    Consequently, we proposed to fix at rate in question @ 9% p.a. on Ex.A-3 i.e., Request letter from the complainant to the OP.   Accordingly, interest is ordered.

17.     Whether the Complainant is entitled for compensation of Rs.10,000 /- 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 refund the advance amount paid by the Complainant.   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 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.

18.     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 refund of the enrolment amount of Rs.35,300/- 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.

19.     In the light of our discussion, referred supra, the complainants are entitled to refund of the Advance amount of Rs.35,300/- together with subsequent interest @9% p.a., from October, 2012 till the date of realization, a compensation of Rs.5,000/- and also costs of Rs.2,500/- to the Complainant. Time for compliance one month from the date of this order.

20.     In the result, this complaint is allowed in part, directing the Ops to refund the advance amount of Rs.35,300/- (Rupees thirty five thousand only) together with interest @ 9% p.a., from October, 2012 till the date of actual realization,  a compensation of Rs.5,000/- (Rupees fife thousand only) and costs of Rs.2,500/- (Rupees two thousand and five hundred 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 26^th day of March, 2015.

Sd/-                                             Sd/-                                         Sd/-

LADY MEMBER                            MALE MEMBER                        PRESIDENT       

 

APPENDIX OF EVIDENCE

  For the Complainant:-

Exhibits	Date	Description	Remarks
A-1	21-06-2012	Exhibit A1 is the Receipt No.420 issued by the OPs	Original
A-2	10-12-2012	Letter and reminder notice issued by the OPs to the complainant	Original
A-3	04-10-2012	letter from the complainant to the OP Visakhapatnam Branch	Photocopy
A-4	29-10-2011	Letter from the complainant to OP, Visakhapatnam by RPAD.,	Photocopy
A-5	26-12-2012	Letter from the complainant to the OP, Hyderabad by Regd., Post with receipt and acknowledgement.	Photocopy

For the Opposite Parties:- 

Exhibits	Date	Description	Remarks
B-1		Application for Provisional Allotment	Photocopy

 

Sd/-                                              Sd/-                                        Sd/-

LADY MEMBER                            MALE MEMBER                        PRESIDENT