Andhra Pradesh

Visakhapatnam-II

CC/346/2012

Bharavi Engineering Private Limited - Complainant(s)

Versus

Peketi Venkata Ramana - Opp.Party(s)

N. Nageswara Rao

19 Jun 2015

ORDER

                                              Date of Registration of the Complaint:17-10.2012

                                                                                                Date of Order:19-06-2015

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

 

                                 Thursday, the19^th day of June 2015.

                                 CONSUMER CASE No.346/2012

Between:-

Bharavi Engineering (P) Ltd., Door No.6-174,

Besides Ayyappa Temple, Ayyappa Nagar,

Sheela Nagar, BHPV Post, Visakhapatnam-12,

Rep. by its Managing Director, Chada Someswara Rao,

S/o Late Satyanarayana, Visakhapatnam-12.

….. Complainant

And:-

1.Peketi Venkata Ramana, S/o Tatabbayi, Hindu,

   about 40 years, residing in the 2^nd Floor, Plot No.303,

   V.V. Krishna Plaza, Opp: BHPV Town Ship Gate,

  BHPV Post, Visakhapatnam-12.

2.Vemuri Rama Krishna, S/o Nageswara Rao, Hindu,

   aged about 35 years, R/o 49-36-3/7, N.G.G.O’s

   Colony, Akkayyapalem, Visakhapatnam-16.

                                                                                     …  Opposite Parties       

                     

          This case coming on 08.06.2015 for final hearing before us in the presence of Sri N. Nageswara Rao, Advocate for the Complainant and Sri M.A. Rasool, Advocate for the 2^nd Opposite Party and the 1^st Opposite Party  being exparte 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 consumer complaint is filed by the Complainant against the  Opposite Parties directing them to pay an amount of Rs.17,51,300/- (Rupees Seventeen lakhs, fifty one thousand and three hundred only), Rs.1,00,000/- (Rupees One lakh only) towards compensation and Rs.5,000/- (Rupees Five thousand only) towards costs.

2.       The case of the Complainant in brief is that the 1^st Opposite Party is the site owner and the 2^nd Opposite Party is the builder and they entered into a sale agreement dated 04.11.2008 with him in respect to a sale of a flat measuring not less than 1000 Sq. feet in a G+2 apartment to be constructed in an area of 733 Sq. yards covered by S. No. 132/14A situated in Tunglam Village, BHPV Post, Visakhapatnam-12.   At the time of executing the said sale agreement, he paid Rs.10,00,000/- to the Opposite Parties by way of a Cheque bearing No.745637 dated 04.11.2008, drawing on Canara Bank, Chettivanipalem, Visakhapatnam-12 and the same was received by the Opposite Parties and agreed to pay the balance of sale consideration at the time of construction, and accordingly the said sale agreement was executed by the Opposite Parties in his favour.

 

3.       From the date of sale agreement till today the Opposite Parties have made no effort to construct the said apartment and when he questioned them, the Opposite Parties began giving evasive replies and always postponed the construction, doubting their bonafides and upon personal enquiries, he came to know that the Opposite Parties have no capacity to construct any apartment much less the apartment in question and that they have indebted to several people as they failed to construct the said flat, he got issued lawyer’s notice on 25.10.2011 to them but there is no response.   Hence, this complaint.

 

4.       The 1^st Opposite Party is set exparte and the 2^nd Opposite Party filed a counter.   That he is the site owner and executed sale agreement of flat dated 4.11.2008.    The 2^nd Opposite Party is the builder and the Complainant paid the cheque amount in favour of the 1^st Opposite Party but not in his favour and hence it is false to state that he received the amount in the sale agreement is only for sale of flat but not for construction .   There is no any kind of Development Agreement in between them.  He further stated on due enquiry in past that the 1^st Opposite Party, who is the owner of the site already sold away the undivided property, which was offered to him.   Therefore, the question of avoiding construct the flat by him does not arise.   The 1^st Opposite Party and the Complainant colluded and filed this case.  

 

5.       On that receipt of the receiving of notice he approached the Complainant personally and explained the above said facts.  There is no kind of deficiency of service on his part, there are no bonafides therefore, the Complaint is liable to be dismissed.

 

6.       To prove the case on behalf of the Complainant, he filed his affidavit   and got marked as Exs.A1 to A4.   On the other hand, on behalf of the 2^nd Opposite Party, he filed his evidence affidavits, but no documents were marked.

 

7.       Ex.A1 is the Sale Agreement entered into between the Complainant and the Opposite Party dated 04.11.2008.  Ex.A2 is the office copy of Registered Lawyer’s Notice issued by the Complainant’s counsel to the Opposite Parties dated 25.10.2011.    Ex.A3 is the Returned Postal Cover of OP-1 dated 27.10.2011. Ex.A4 is the office copy of
Registered Lawyer’s Notice along with photo copy of Sale Agreement issued by the Complainant’s counsel to the Opposite Parties dated 25.10.2011.

 

8.       Both parties filed their respective written arguments.

9.       Heard oral arguments from both sides.

10.     Now the point that arises for determination is:-

Whether there is any deficiency in service on the part of the Opposite   Parties and the Complainant is entitled for the reliefs for?

 

11.     As seen from the counter averments, it is an admitted fact that Ex.A1 Sale Agreement was executed by the Opposite Parties in favour of the Complainant for sale of flat dated 04.11.2008 and the 1^st Opposite Party is the site owner and is the builder and further admitted the Complainant paid the amount by way of cheque.   In view of the admission it is for the Opposite Parties to state why they have not complied with the terms and conditions of the agreement after receiving the amount of Rs.10,00,000/- on 04.11.2008.    There is no proper explanation either as seen from their counter or from evidence affidavit.   The acts of the Opposite Party clearly indicate, there is a deficiency of service on their part while performing their obligation under Ex.A1 agreement.   Therefore, they are liable to pay the amount which they have received by way of cheque on 4.11.2008 along with interest. 

 

12.     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. on Ex.A1 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.

 

13.     Whether the Complainant is entitled for compensation of Rs.,1,00,000/- 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 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 1,00,000/- would serve the ends of justice.   We therefore, proposed to award compensation of Rs.1,00,000 /-,  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 sum of Rs.17,51,300/- 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 claims for cost deserves to be allowed.   In our considered and unanimous opinion awarding a sum of Rs. 5,000/- as costs would appropriate and reasonable.   Accordingly costs are awarded.

 

15.     In the result, the Complainant is allowed directing the Opposite Parties to pay a sum of Rs.10,00,000/- (Rupees Ten lakhs only) with interest @ 9% p.a. from the date of receipt of the cheque i.e., from 04.11.2008 till the date of realization, a compensation of Rs.1,00,000/- (Rupees One Lakh only) and Costs of Rs.5,000/- (Rupees Five thousand 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 19^th day of June, 2015.

 

Sd/-                                     Sd/-                                               Sd/-

Male Member                      Lady Member                                 President

 

 

 

                                       APPENDIX OF EVIDENCE

For the Complainant:-

NO.	DATE	DESCRIPTIONOFTHEDOCUMENTS	REMARKS
Ex.A01	04.11.2008	Sale Agreement entered into between the Complainant and the Ops	Original
Ex.A02	25.10.2011	Registered Lawyer’s Notice issued by the Complainant’s counsel to the Ops	Office copy
Ex.A03	27.10.2011	Returned Postal cover of the3 OP-1	Original
Ex.A04	25.10.2011	Registered Lawyer’s Noticed along with photo copy of Sale Agreement issued by the Complainant’s counsel to the Ops	Office copy

For the Opposite Parties:-

                  

                                      -Nil-

Sd/-                                      Sd/-                                                  Sd/-

Male Member                       Lady Member                                   President