BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL HYDERABAD.
F.A.No. 218/2013 C.C.No.2/2010, Dist. Forum, Srikakulam.
Between:
1.Janachaitanya Consultancy,
Rep. by its Chairman and Managing Director,
S.Srinivasa Rao, S/o. Raghu
Aged 40 years, R/o.43-9-39, 1st Floor,
Visakhapatnam.
2. Janachaitanya Consultancy,
Rep. by Branch Manager,
CH.Prasada Rao,
S/o.Rammurthy Naidu,
Aged : 46 years, Branch Office,
D.No.3-2-66/8,
P.S.N.M.H. School , Main Road,
Town …Appellants/
Opp.parties
And
Potnuru Chinnababu,
S/o.Narasimhamurthy,
Aged about 35 years,
residing in the house of Y.S.N.Murthy,
Opp. Sai ITI, Arasavilli,
Srikakulam Mandal and District. …Respondent/
Complainant
Counsel for the Appellants : Mr.A.Rama Rao
Counsel for the Respondent : Mr.A.Jaya Raju
QUORUM: SMT.M.SHREESHA, HON’BLE INCHARGE PRESIDENT,
And
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
THURSDAY, THE DAY OF MARCH,
TWO THOUSAND THIRTEEN .
Oral : (Per Sri S.Bhujanga Rao, Hon’ble Member).
***
After hearing the arguments of both sides after perusing the entire record, we are of the opinion that the matter can be disposed of at the stage of admission.
The appellants are the opposite parties and respondent is the complainant in C.C.No.2/2010 filed by the respondent/complainant seeking direction to the opposite parties either to register the plots bearing nos 33 and 34, to an extent of 169 sq.yards each plot, in Sri Surya Nagar lay out in Survey nos. 55 and 56 at Voppanagi village, Sanivada Post , Srikakulam Mandal by providing amenities like roads, drainage, electricity etc. or to repay the paid amount of Rs.20,200/- each totaling to an amount of Rs.40,400/- with interest at 24% p.a. from 9.1.2008 till the date of payment, to pay compensation amount of Rs.25,000/- for each plot totaling to an amount of Rs.50,000/- for causing loss, hardship and mental agony to the complainant and to pay a sum of Rs.2000/- towards litigation expenses.
The brief case of the complainant as set out in the complaint is as follows:
The opposite parties 1 and 2 approached the complainant and persuaded them to purchase plots in their venture. The complainant agreed to pay an amount of Rs.1 and paid Rs.20,000/- each towards the advance and Rs.200/- towards admission per each plot. On receipt of the amount from the complainant, the opposite parties have confirmation allotment letters dt.9.1.2008.
The case of the complainant is that he waited with fond hope that the opposite parties will complete all the formalities by laying road, providing drainage, conversion of land and finally for approval of layout as per the plan supplied by the opposite parties, at the time of issuance of allotment letter. But, the opposite parties have not provided any amenities, did they lay the plots as per the plan. The complainant approached the opposite parties several times and expressed readiness to pay the balance amount for the plots and requested the opposite parties to register the plots in his favour. But the opposite parties tried to avoid the registration of the plots in favour of the complainant on one pretext or the other There is gross negligence and deficiency in service on the part of the opposite parties, due to non allotment and non registration of the agreed plots, in favour of the complainant, due to which the complainant suffered heavy loss and mental agony.
Resisting the complaint, the opposite parties filed written version denying the material allegations made in the complaint and contended that the complainant on his own accord agreed to pay Rs.1,52,100/- per plot and paid an advance of Rs.20,000/- per each plot. two plots bearing nos. 33 & 34 and paid amounts under cash receipts for Rs.20,000/- each and admission free for an amount of Rs.200/- and the opposite parties have issued a confirmation plot allotment letters dt.13.12.2007 by showing the amounts paid by the complainant at Rs.20,000/- per each plot out of Rs.1,52,100/- and shown the balance of Rs.1,32,100/- for 169 sq.yards plots .
The opposite party further contended that as the complainant became continuous defaulter for all the plots booked, he has no locus standi to demand to register the plots, without fulfilling the obligations and terms and conditions of the scheme and as he failed to pay regular monthly instalments, he created the present false case to cover his mis-deeds and ill acts After payment of advance Rs.20,000/-, the complainant never came forward and expressed his willingness to pay the balance amount and he is not entitled to refund of the amount. There is no willful or deliberate negligence on the part of the opposite parties. Therefore, the complaint is liable to .
During the course of enquiry, before the District Forum, in order to prove his case, the complainant filed his evidence affidavit and documents in support of their contention.
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum allowed the complaint, in part, directing both the opposite party to pay Rs.40,400/- with interest at 12% p.a. from the date of the deposit, till the realization. The opposite are also directed to pay Rs.2000/- towards costs of the complaint to complainant.
Aggrieved by the said order, the opposite parties preferred the above appeal urging that the order of the District Forum is illegal, arbitrary, contrary to law, weight of evidence and probabilities of the case That the District Forum ought to have seen that the respondent/complainant became continuous defaulter the plots, which were booked and hence he has no locus standi, to register the plots, without fulfilling the obligations and terms and conditions of the Scheme. That the District Forum ought to have seen, that mere allotment of plots to the respondent/complainant, after payment of first instalment, does not give any right to the complainant, to claim to register the plot or refund the amount, as the respondent/complainant failed to pay total instalmetns and he violated the terms and conditions of the scheme. Therefore the District Forum ought to have seen that condition no.19 of the Scheme clearly stated in case of any member commits default, in payment of three consecutive instalments or two special instalments, his membership shall stand cancelled and amounts paid by him till then shall stand forfeited. Therefore, the District Forum to have held that the respondent/complainant is not entitled to refund of the amount. Appellants/opposite finally prayed to allow the appeal and set aside order of the District Forum.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or
two plots bearing nos. 33 and 34 admeasuring 169 sq.yards and paid Rs.20,000/- each towards the advance and Rs.200/- towards admission fee, for each plot, which comes to Rs.40,400/-, for two plots and that the opposite parties have issued confirmation allotment letters, by showing the amount paid by the complainant. It is established that the complainant paid only one instalment and advance of Rs.20,000/- out of Rs.1,52,000/- Therefore, the District Forum rightly did not grant relief of registration of plots in favour of the complainant.
Now the only question that arises for consideration in this appeal is whether the is not entitled to refund of Rs.40,400/-, by virtue of condition no.19 of the Scheme?
The terms and conditions of the is attached to Ex.A11 application form for house site/s . Condition no.19 reads as follows:
“Monthly special instalments have be paid before 15th of every month and Company’s printed receipt obtained. In the event of any in the payment of instalments, they are to be paid together with at 2% per month interest till the date of payment . Any instalments paid are not refundable. In case any member commits default in the payment of three consecutive ordinary instalments or two special instalments, his membership shall stand cancelled without further notice and all amounts paid by him till then shall stand forfeited treating as “Agreed compensation and liquidated damages for such breach of trust. All customers, who opt for lumpsum payment of those who opt for payment of the plot cost in instalments, have to pay the due amounts before the respective due dates, irrespective of the layout approval.”
In this case, the opposite parties have not filed a piece of paper, to show that they demanded the complainant to pay the balance of amount, at point of time alleging default on the part of the complainant. The opposite party has also not filed any document, to show that they have issued notice, to the complainant that his membership shall stand cancelled for default of payment of balance amount committed by him No notice was given to the informing that his membership shall stand cancelled and the amount paid by him till then stand forfeited. That, apart, the terms and conditions are unilateral and there is no evidence on record, to show that the terms and conditions are read over and explained to the complainant at the time of booking of the plots and the complainant accepted the terms and conditions. Further a glance at condition no.19 makes it clear that the said condition is not only legally not valid but also it leads to unfair trade practice on the part of the opposite party.
Under these circumstances, we are not inclined to deny the refund of the amount that was paid by the complainant and the enriching itself on the said amounts, so far.
Having regard to facts ad circumstances, discussed above we are of the view that the complainant is entitled to refund of the amount of Rs.40,400/- with interest. Awarding of at 12% p.a. on the said amount, by the District Forum is quite reasonable and compensation amount awarded by the District Forum, in the given circumstances, is also reasonable. Consequently, we do not find any irregularity or illegality in the impugned order of the District Forum to interfere with it.
In the result , the appeal is dismissed confirming the order of the District Forum The appellants/opp.parties are directed to pay a sum of Rs.2000/-, to the respondent/complainant towards costs of this appeal The are directed to comply with the order within four weeks form the date of this order.
INCHARGE PRESIDENT
MEMBER
Pm* Dt. 28.3.2013
