Andhra Pradesh

Visakhapatnam-II

CC/362/2011

V Kamala Patnaik - Complainant(s)

Versus

Peketi Venkata Ramana - Opp.Party(s)

N Nageswara Rao

22 Jan 2015

ORDER

Reg. of the Complaint:20-09-2011

                                                                                                                                 Date of Order:22-01-2015

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

                                            

 

THURSDAY, THE 22^ND DAY OF JANUARY, 2015

CONSUMER CASE NO.362/2011

 

BETWEEN:

V.KAMALA PATNAIK W/O LATE V.V.R.PATNAIK,

HINDU, HOUSE WIFE, AGED 80 YEARS,

R/O D.NO.63-3-68, JAWAHAR NAGAR,

MALKAPURAM POST, VISAKHAPATNAM-11.

                                                                                             …COMPLAINANT

A N D:

1.PEKETI VENKATA RAMANA S/O TATABBAI,

HINDU, AGED 36 YEARS, 2^ND FLOOR, PLOT NO.303,

V.V.KRISHNA PLAZA, OPP:BHPV GATE, VIZAG-12.

2.KONJETI NAGESWARA RAO S/O RADHA KRISHNA MURTHY,

HINDU, AED 39 YEARS, R/O 1-23-5, VYKUNKTAPURAM,

CHIRALA, PRAKASAM DISTRICT.

3.BANDARU RAMBABU S/O SEETHARAMAIAH,

HINDU, AGED 48 YEARS, R/O 3-155-1,

MULAGUNTAPADU, SINGARAYA KONDA, PRAKASAM DISTRICT.

4.SOLLETI MALLIKARJUNA RAO, S/O BALA KONDAIAH,

HINDU, AGED ABOUT 36 YEARS, 13/4, KUMMARI STREET,

GUDURU, NELLORE DISTRICT.

5.GUBBA PRAKASA RAO, S/O NARASAISH, HINDU,

AGED 50 YEARS, BATCHIREDDIPALEM, NELLORE DISTRICT.

6.KANDAGATLA MANOJ KUMAR S/O SIVAIAH, HINDU,

AGED ABOUT 25 YEARS, D.NO.9-52, PALLETI VARI STREET,

GUDURU, NELLORE DISTRICT.

7. SOLLETI VENKATA GURU PRASAD S/O SUBBARAYULU,

HINDU, AGED ABOUT 43 YEARS, RAJA STREET, GUDUR,

NELLORE DISTRICT.

8. NAGASURU SUNIL S/O LATE RAMA MURTHY,

HINDU, AGED ABOUT 31 YEARS, KURUGONDA VILLAGE,

OJILI MANDAL, NELLORE DISTRICT.

9.MADIRI KRISHNAIAH S/O SIDDAIAH, HINDU,

AGED ABOUT 50 YEARS, 6-97, CHENNUR,

GUDUR, NELLORE DISTRICT.

10.CHINNI SATISH BABU S/O VENKATA SUBBA RAO,

HINDU, AGED ABOUT 29 YEARS, 18-496,

GUDUR, NELLORE DISTRICT.

11.GADAMSETTY SUDHAKARA RAO, S/O VENKATA SUBBAIAH,

HINDU, AGED ABOUT 41 YEARS, 7-41, BAZAAR STREET,

GUDUR, NELLORE DISTRICT.

12.RAO VENKATA SUKUMAR RAO, S/O R.V.APPA RAO,

HINDU, AGED ABOUT 46 YEARS, 31-6-1, 1^ST FLOOR,

103, SAI SOWBHAGYA NILAYAM, MOGALRAJPURAM,

VIZIAWADA-10.

13. SUGGUNNA SIVA NARAYANA, S/O SAMBASIVA RAO,

HINDU, AGED ABOUT 35 YEARS,  D.NO.54-20-2/5A,

8^TH STREET, BHARATEEYA NAGAR, VIZIAWADA-530008.

14.M/S BHANODAYA INFRASTRUCTURES, REP.BY ITS MANAGING PARTNER, DAMERLA SRINIVASA RAO, S/O VENKATESWARA RAO,

R/O D.NO.39-6-48, FLAT NO.105, MURALI NAGAR, VISAKHAPATNAM.

15.DWIBHASI SESHAGIRI RAO S/O D.L.N.RAO, HINDU,

AGED ABOUT 31 YEARS, 4-70-8, FLAT NO.G-1, GODAVARI APARTMENTS, LAWSONS BAY COLONY, VISAKHAPATNAM-530 017.

16. AKKIREDDI GOVINDA RAO S/O A.NAGESWARA RAO,

HINDU, AGED ABOUT 31 YEARS, 32-1-67/2, NATAYYAPALEM,

TUNGLAM VILALGE, VISAKHAPATNAM-530 012.

 

                                                                            …OPPOSITE PARTIES

 

This case coming on   for final hearing before this Forum in the presence of SRI N.NAGESWARA RAO, Advocate for the Complainant, and of                  SRI  D.CHANDRA RAO, Advocate for the 14^th and 15^th Opposite Parties, and of        Opposite Parties 1 to 13 and 16, being exparte, 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.6,17,600/- + Rs.10,34,480/- with subsequent interest @ 24% p.a., from the date of complaint till date of realization or in the alternative deliver physical possession of flat bearing No. 205 as per Agreement dated 08-05-2009, Compensation of Rs.27,000/- and Rs.3,000/- compensation towards delay of delivery of flat from August, 2011 till the date of delivery.

2.       The Case of the Complainant in brief is that the OPs 1 to 16 have sold an extent of 50sq.yds being undivided and unspecified share out of total extent of 3879sq.yds  covered by S.No.131/P 132/18/A of Tunglam Village within the limits of GVMC through a sale deed dated 08-05-2009 and OP No.14 is the Managing Partner and Builder of M/s Bhanodaya Infrastructures which is a Partnership Firm  constituted by OPs and he entered into an agreement in respect of Flat No.205 measuring 1050sq.ft inclusive of common areas in the first floor and car parking measuring 100sq.ft in the stilt floor under the name and style of Viswanethra Heights for which, he paid an amount of Rs.Rs.6,70,000/- by way of 2 consolidated  pay orders bearing nos.703106 and 703107  dated 19-03-2009 drawn on SBH, Visakhapatnam and paid Rs.4,00,000/- for purchasing 50sq.yds  of undivided and unspecified share vide registered sale deed dated 8-5-2009 and this mode of joint payment for the 2 documents shows that they are part and parcel of the single transaction. Therefore, vendors of the sale deed and builder namely OP-14 are jointly and severally liable for entire transaction.

3.       That it was further agreed as per Construction Agreement dated 8-5-2009  that the flat would be constructed within 18 months from the date of agreement and in the event of delay, he shall be payable a compensation of Rs.3,000/- per month from the due date of delivery till the date  of actual delivery and that in spite of two years lapse, no construction took place and she came to know that the property is under dispute and the OPs have no proper title.

4.       It is also the case of the complainant that he paid a sum of Rs.10,00,000/- vide cheque bearing No.184286 dated 30-04-2008 drawn on SBH, Sriharipura, Visakhapatnam to OP No.1 and another sum of Rs.10,70,000/- through consolidated pay orders dated 19-03-2009 of the above referred bank towards purchase of the vacant site and the flat as part payment and subsequently, paid a sum of Rs.6,00,000/-  in cash  on 26-02-2010 towards the balance sale consideration in spite of construction of the said flat and thereby, he paid total amount of Rs.26,70,000/-  towards purchase of the flat but they failed to deliver as agreed. Hence, this complaint.

5.       Inspite of receipt of summons and appearance through Advocate, Except 14 and 15 has not filed any counter.

6.       The case of the OPs 14 and 15 by denying the material averments of the complaint, admitted that OPs 1 to 16 have sold an extent of 50sq.yds being undivided and unspecified share out of the total extent of 3879sq.yds referred supra to the complainant for a sum of Rs.4,00,000/- by Registration No.918/2009 dated 8.5.2009, they further admitted OPs 1 and 16 are the owners of the aforesaid extent among which the complainant purchased 50sq.yds only and that OP 14  is the Managing Partner and builder of M/s Bhanodaya Infrastructures which is a partnership firm constituted by OPs 1 to 16 and that the complainant entered into an agreement for construction of a flat with Bhanodaya Infrastructures  whereunder flat No. 205 measuring 1050 sq.ft in the first floor and car parking measuring 100sft in the stilt floor in the proposed Viswanethra Heights would be constructed for which the complainant paid a sum of Rs.6,70,000/- by way of consolidated pay orders.  They also admitted that the complainant paid a sum of Rs.7,50,000/- to OP 14 vide 2 consolidated pay orders dated 19-03-2009 and both the documents are part and parcel of a single transaction. Hence, all the OPs are jointly and severally liable for the entire transaction.

7.       It is further admitted in the construction agreement respect of the flat dated 8-5-2009, it would be constructed within 18 months from the date of agreement and in the event of delay on the part of the OP14, he would be liable to pay a compensation of Rs.3,000/- per month from the date of delivery till the date of actual deliver. They further admitted that the complainant paid a sum of Rs.10,00,000/- vide cheque no.184286 dated 30-04-2008 drawn on SBH Sriharipuram to OP No.1 and another sum of Rs.10,70,000/- through two consolidated pay orders towards purchase of the vacant site and the flat as part payment and subsequently, the complainant paid another sum of Rs.6,00,000/- in cash on 26-06-2010 towards the balance sale consolidation in respect of construction of the said flat and in total, the complainant paid a sum of Rs.26,70,000/-  towards purchase of the flat but the complainant never demanded about the project and they are trying to complete the construction as clearly as possible and there is no intention to them to cheat the complainant. Therefore, there is no deficiency of service, hence the complaint is liable to be dismissed.

8.       To prove the case on behalf of the complainant, he himself filed his sworn affidavit and got marked Exhibits A1 to A6 and on the other hand, on behalf of the OPs neither filed affidavits nor documents.

9.       Exhibit A1 is the Sale Deed executed by the OPs in favour of the complainant, Exhibit A2 is the Agreement for construction of flat executed by OP No.14 in favour of the complainant dated 08-08-2009, Exhibit A3 is the Lawyer’s Notice dated 21-05-2011      , Exhibit A4 is the acknowledgements of OPs 1,2,3,5,6,7,9,11,14,15 and 16, Exhibit A5 is the Returned Postal covers of OPs No.8,10, and 13 dated 24-05-2011 and Exhibit A6 is the Lawyer Notice registration slips of OPs 4 and 12.

10.     The Complainant filed his written arguments.

11.     Heard oral arguments of the complainant.

12.     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?

13.     As seen from the record, it is not in dispute that the OPs 1 to 16 have sold an extent of 50sq.yds being undivided and unspecified share from out of the total extent of 3879sq.yds covered by S.No.131/P and 138/A/18 part of Tunglam village within the limits of GVMC to the complainant by way of registered sale deed vide Registration No.918/2009 dated 8-5-2009 for a sum of Rs.4,00,000/-. Exhibit A1 is the sale deed reveals that OPs 1 to 16 are owners of the plots  which are continuous each other and they have made the said site into compact block of 3879sq.ds, with a view to develop the said property, the complainant purchased an extent of 50sq.yds. It is the contention of the complainant besides 4 lakhs, he paid a sum of Rs.6,70,000/- to OP 14 vide 2 consolidated pay orders for agreement for construction of flat vide Exhibit A2. Both these documents clearly shows that they are part and parcel of a single transaction.

14.     The complainant sought for in the relief para, that he is willing to relinquish his rights over the property since the complainant got right over the  property by virtue of Exhibit A1 and thereby got title thereto. At this stage,  question of relinquishing his rights over the property, in our view, does not arise. Therefore, we hold that as the complainant got right and title over 50sq.yds of undivided and unspecified share, he is not entitled to the said sum together with interest thereon as sought for.

15.     Further, it is born out as seen from the written endorsement dated 25-08-2011, that it may be explained how the complaint is maintainable against OPs 1 to 13, 15&16 when they are already owners of the site and there was no construction agreement from them vide representation dated 2-9-2011. It is endorsed that OPs 1 to 16 are the owners of the site and all of them together formed a single plot for development and they are all parties of the project. With a view to develop the property, they have demolished the existing structures and OPs 1 to 16 are all partners of Bhanodaya Infrastructures and hence all of them are liable because it is a joint venture, he further endorsed regarding reserving the right by the complainant. It may be noted that the transaction covered under Para H of the complaint is a separate transaction supported by a separate documents. Moreover, it is only against OP NO.1 which has no bearing to this complaint for which, the complainant is at liberty should take action against OP1 in a Civil Court.

16.     Having regard to all these facts and circumstances, we are of the considered view that the complainant is not entitled for the relief of the valuation of the sale deed dated 8-5-2009 together with interest thereon.

17.     The sworn affidavit of the complainant goes to show that on 8-5-2009 himself and OP entered into an agreement for construction of flat with OP14 vide Exhibit A2 that the flat would be constructed within 18 months from the date of agreement and in the event of delay, the OP 14 shall be liable to pay a compensation of Rs.3,000/- per month from the due date of delivery till the date of actual delivery and inspite of all years lapse, the OP 14 failed to make any construction as agreed and the site is still lying vacant, which is the admitted case of OP-14. On a careful reading of the terms and conditions of the Exhibit A2 Construction Agreement dated 8-8-2009 together with the admission made by OP 14, it can be held that there is a clear deficiency of service on the part of the OP 14.   For all these reasons, we are of the considered view that the complainant is entitled for the amount paid towards Construction Agreement i.e., Rs.6,70,000/- together with interest thereon from  9-5-2009 till this date. Exhibit A2 also shows in default or in the event of delay in construction and delivery of the flat, the builder agreed to pay Rs.3,000/- as compensation from the due date of delivery i.e., 8-11-2010 till the date of actual delivery which is the admitted case of OP14 as seen from its counter. Thus, the complainant is further entitled from OP-14, an amount of Rs.3,000/- per month as compensation from the due date of delivery i.e., 8-11-2010 till this date or till the delivery of the flat whichever is earlier.

18.     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.A2 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 Exhibit A2 from the due date of delivery of the flat i.e., Ex.A2.   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 @ 9% p.a. on Ex.A2 in question.   Accordingly interest is ordered.

19.     Whether the Complainant is entitled for compensation of Rs.2,00,000/- is to be considered.   It appears as seen from the evidence of Complainant 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 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.

20.     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 payment of the amount of Rs.6,70,000/- 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 be appropriate and reasonable.   Accordingly costs are awarded.

21.     In the light of our discussion, referred supra, we held that the acts of the OP 14 clearly comes under the purview of the deficiency of service. Therefore, it is liable to pay an amount of Rs.6,70,000/- together with interest @ 9% p.a., and the OP 14 is further liable to pay an amount of Rs.3,000/- per month as compensation from the due date of delivery of that flat agreed, i.e., 8-11-2010 till this date or till the delivery of the flat whichever is earlier and compensation of Rs.1,00,000/- and costs of Rs.2,500/-. 

22.     In the result, the complaint is allowed in part, directing the OP 14 to pay an amount of Rs.6,70,000/- (Rupees Six Lakhs Seventy Thousand only) together with interest @ 9% p.a., further directing him to pay an amount of Rs.3,000/- (Rupees three thousand only) per month as compensation from the due date of delivery i.e., 8-11-2010 till this date or till the delivery of the flat, whichever is earlier and compensation of Rs.1,00,000/- (Rupees one lakh 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 22^nd day of January, 2015.

Sd/-                  Sd/-                           Sd/-

LADY MEMBER                       MALE MEMBER                       PRESIDENT        

 

APPENDIX OF EVIDENCE

  For the Complainant:-

Exhibits	Date	Description	Remarks
A 1	08-05-2009	Sale deed executed by the OPs in favor of the complainant	Original
A2	08-08-2009	Agreement for construction of flat	Original
A3	21-05-2011	Laywer’s Notice	Office copy
A4	24-05-2011	Acknowledgements cards of OP1,2,3,5,6,7,9,11,14,15 & 16	Originals
A5	24-05-2011	Returned postal covers of OP No.8,10, and 12	Originals
A6	24-05-2011	Lawyer Notice Registration slips of OP No.4 and 12	Original

For the Opposite Parties:- nil

 

Sd/-                 Sd/-                            Sd/-

LADY MEMBER                       MALE MEMBER                       PRESIDENT