Reg. of the Complaint:08-05-2013                                                                                                                                    Date of Order:22-07-2013

BEFORE THE DISTRICT CONSUMERS FORUM-II

AT VISAKHAPATNAM

                   Present:

1.Sri H.ANANDA RAO, M.A., L.L.B.,

       President

2.Sri C.V.RAO, M.A., B.L.,

                                             Male Member

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

       Lady Member

WEDNESDAY, THE 22^nd DAY OF JULY, 2015

CONSUMER CASE NO.108/2013

BETWEEN:

Smt. Namburi Lalitha Rani  W/o late Jagannadha Raju Varma,

Hindu, aged 39 years,  R/at D.No.33-3,

Near Venkateswaraswamy Temple, Narsipatnam Village and Post,

Narsipatnam Mandalam, Narsipatnam Municipality,

Visakhapatnam District.

…Complainant

AND:

Shaik Mahaboob Jani S/o Shaik Shalimiya,

Mulsim, aged 42 years, r/at D.No.8-30-25,

8^th ward, Block No.30, Ground Floor,

Brahamana Veedhi, Narsipatnam Village and Post,

Narsimpatnam Mandal, Narsipatnam Municipality,

Visakhapatnam District.

…Opposite Party

This case coming on 22-07-2015 before us in the presence of   SRI V.D.V.N.MURTHY, Advocate for the Complainant, and of                                     SRI T.JAGADEESHWARA RAO, Advocate for the Opposite Party, 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 Complainant filed the present complaint against the Opposite Parties directing him to hand over the flat fully furnished as per construction agreement, failing which, return back the amount of Rs.10,00,000/- with interest @ 12% p.a., 06-10-2012 till date of realization, Rs.10,000/- towards compensation  and with costs.

2.       The case of the complainant in brief is that he paid an amount of Rs.10,00,000/-  in total for construction of the flat as demanded by the OP and a Construction Agreement was entered into wherein the OP has to hand over flat within 12 months from the date of constructional agreement i.e., 16-02-2012 but the OP has not handed over the flat fully furnished as per the specifications and she demanded the OP to handed over the flat and immediately she is ready to pay the balance amount of Rs.3,00,000/- even though, she is not ought to pay as per the Registered Construction Agreement and when she approached for Bank for loan by producing the title deed of the said flat, the Banker refused to grant loan on the said documents stating that the OP availed loan on the total site and hence, the total site is already under loan. Hence, the said title deed are mere waste and then she approached OP who gave reckless answers in respect of her readiness and willingness to pay the balance of amount, he has not cooperated to deliver the flat. Hence, this complaint for return of amount.

3.       The case of OP, denying the material averments of the complaint is that admitting the complainant purchased a vacant site to an extent of 29.916sq.yds which is undivided and unspecified share for a sum of Rs.30,000/- on 16-02-2012 and she entered into a development agreement with him and as per the agreement, the complainant agreed to pay Rs.13,00,000/- for construction of flat and paid a sum of Rs.9,50,000/- in installments and the complainant has to pay Rs.4,50,000/- by 1^st June, 2012 and later paid two installments total Rs.10,00,000/- only to him and she has to bear the balance of Rs.3,00,000/- as per their  understanding, the complainant informed him that she will affix tiles of her choice and advised the OP not to fix the tiles as agreed in the development agreement. As a result, they paid an amount of Rs.50,000/- to the complainant towards the costs of the tiles in the presence of elders. Since the complainant did not come forward for registration, he could not register the same in her favour even after completing flat as per the construction agreement when they requested the complainant to pay the balance amount not only by oral but also through legal notice. He completed the entire construction without any deviations  from the construction agreement and he never violated in terms of the constructional agreement, he availed loan from the Insurance Policy and the same was informed to all the persons who have taken flats built by him. The photographs filed by the complainant are not relating to the present situation of the flats. After flat is completed and fit for occupation, there is no deficiency of service on their part. For these reasons, the complaint is not maintainable and liable to be dismissed.

4.       To prove the case of the complaint, she filed her evidence affidavit and got marked Exhibits A1 to A9 and on other hand, on behalf of the OP, he filed his affidavit and got marked Exhibits B1 to B3.

5.       Exhibit A1 is the Registered Sale Deed dated 16-02-2012, Exhibit A2 is the Registered construction agreement, dated 16-02-2012, Exhibit A3 is the Receipt for Rs.2,00,000/- dated 21-05-2012 & for Rs.2,50,000/-, dated 22-06-2012, Exhibit A4 is the Receipt for Rs.2,00,000/-, dated 06-10-2012, Exhibit A5 is the Registered Lawyer’s Notice issued by OP, dated 03-01-2013, Exhibit A6 is the Registered Reply Lawyer’s Notice  dated 25-01-2013, Exhibit A7 is the Registered Lawyer’s Notice issued by OP, dated 13-02-2013, Exhibit A8 is 7 photographs and Exhibit A9 is the Paper Cutting of Eenadu and letter from Indian Bank addressing the Forum.

6.       Exhibit B1 is the Sale Deed dated 25-06-2013, Exhibit B2 is the Sale deed dated 25-05-2013 and  Exhibit B3 is the Sale deed dated 15-07-2013.

7.       Both Parties filed their written arguments.

8.       Heard oral arguments from both sides.

9.       Now the point for determination to be determined in this case is;

Whether there is any deficiency of service on the part of the OP and the Complainant is entitled to any reliefs asked for?

10.     Both counsels had drawn our attention to docket order dated 04-03-2015 which reads as follows:

“Heard both sides, the complainant has agreed to deposit the balance amount of Rs.3,00,000/-  within 20 days. On such deposit, the OP has agreed to handover the flat to the complainant within 3 days. Both parties further agreed to delivery of flat, the OP is at liberty to take back the deposited amount after releasing the mortgage over the flat by way of filing affidavit or clearance certificate”.

11.     During the course of arguments both counsels drew our attention SR.No.883 dated 10-03-2015 which was filed by the Advocate for the complainant after issuing notice to OP. Memo reads as follows:

“The complainant hereby depositing a D.D. of Rs.3,00,000/- (Rupees three lakhs only) by D.D. 968446 drawn on SBI, Saligramapuram Branch, Visakhapatnam”.

The Docket Order dated 20-03-2015 further reads as follows:

“Memo filed by the OP counsel stating that Key was handed over to complainant and the complainant endorsed on memo after entering the flat he will file photos and subsequently, by way of memo photos are filed”.

12.     The present complaint is filed for delivery of the flat or to return the amount paid towards flat for Rs.10,00,000/-. As seen from the docket orders and memos filed by both  sides, it is very much clear that flat was delivered to the complainant and the complainant also agreed that at present he is in occupation of the flat. Since the flat is under occupation of the complainant granting of any reliefs does not arise at all.

13.     The complainant sought for compensation and costs. The counsel for OP submitted that though the amount of Rs.3,00,000/- is deposited in the year 2015, he is entitled for interest from the date of construction agreement. In view of  the arguments submitted by both sides and taking into consideration of the memos filed by both sides from time to time, we are of the considered view that both parties are not entitled to the reliefs which they have claimed in the complaint as well as at the time of arguments.

14.     As seen from record, it is evident that an amount of Rs.3,00,000/- deposited by the complainant towards balance amount of the flat was lying in this forum and on such deposit only the flat was delivered and with an understanding both sides on delivery of flat, the OP is at liberty to take back the deposited amount after releasing the mortgage over the flat by way of filing affidavit or clearance certificate. On 22-07-2015 the Advocate for OP filed a  memo stating one month time may be granted for clearing mortgage loan on the flat of the complainant. Thus, it is clear that the OP has not cleared the mortgage loan obtained for the flat of the complainant and thereby, deviated his earlier undertaking dated 4-3-2015. Having regard to all these facts and circumstances, we are constrained to pass the following order.

15.     In the result, the OP shall release the mortgage over the flat of the complainant in dispute and file the clearance certificate within a month, thereupon the OP will be at liberty to take the deposited amount by the complainant of Rs.3,00,000/- (Rupees three lakhs only), failing which, the complainant is at liberty to initiate proceedings against the OP as contemplated under the Consumer Protection Act.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the 22^nd day of July, 2015.      

Sd/-                                                  Sd/-                                          Sd/-

LADY MEMBER                            MALE MEMBER                        PRESIDENT  

APPENDIX OF EVIDENCE

  For the Complainant:-

For the Opposite Parties:-           -nil-

Sd/-                                                  Sd/-                                          Sd/-

LADY MEMBER                            MALE MEMBER                        PRESIDENT