Andhra Pradesh

Visakhapatnam

CC/161/2012

G.KIRANMAI - Complainant(s)

Versus

SUVARNABHOOMI DEVELOPERS PRIVATE LIMITED,HYDERABAD - Opp.Party(s)

P.SREENIVAS

14 Jul 2014

ORDER

This case is coming for final hearing on 04-07-2014 in the presence of Sri P.Srinivas Advocate for the Complainant and of M/s Badrinath & Madan Mohan, Advocate for Opposite Parties and having stood over till this date, the Forum delivered the following.

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on behalf of the Bench)

 

1.       The case of the complainant is that she is the house wife residing in Kerala and her in-laws are at Visakhapatnam. She inspired with the advertisements made by the opposite parties and also intends to purchase a house site at Visakhapatnam she approached the opposite parties.  The 1^st opposite party is the corporate office cum head office for the 2^nd and 3^rd opposite parties, the 3^rd opposite party is the General Manager for 2^nd opposite party.  The features were displayed in internet by the opposite party and subsequently, the complainant contacted the 2^nd opposite party at Visakhapatnam and took the details in phone conversation and they convinced the complainant then, the complainant decided to took one plot in the said venture.  The complainant has not seen the physical topography of the plot which she intends to purchase as per the executive’s version and accordingly, she selected to take a plot in Phase-III venture at Visakhapatnam for an extent of 267sq.yds on 11.07.2011 and make payment for an amount of Rs.35,300/- vide cheque NO.946734 and for that, the opposite party issued a receipt bearing No.SBV 12358 on same day.  Subsequently, the complainant personally visited the venture and there is no response for her during her visit and none of their executive accompanied to show the plot though prior intimation was given by her and after showing the receipt only, the security left her but she was unable to search out the plot, with great difficult the Plot No.D89 in the said venture was found and there is lot of bushes and the same are seen like a waste land.  There are no BT roads and amenities as shown in the internet.  Immediately, the complainant approached the 2^nd opposite party, but they did not care her oral request regarding return of the amount. 

2.       The complainant stated that there is no time for her to stay at Visakhapatnam and she has to return to Cochin along with her husband.  Because of the attitude of the opposite parties she fed up and informed her husband and immediately, her husband got issued a notice on 21.10.2011 through his e-mail to 2^nd opposite party.  The 2^nd opposite party is not responded then again on 16.12.2011 the husband of the complainant  issued another e-mail notice to the 2^nd opposite party and again on 27.12.2011 he issued another notice and the same was received by the 2^nd opposite party on 30.12.2011 but there was no response from him.  Finally on 09.01.2012 complainant got issued e-mails to all the opposite parties but none of them were responded even after delivery of those e-mails to them.  These acts of the opposite parties cause her to face mental agony and financial hardship.  Non payment of the amount even after repeated requests made by the complainant without any reason amounts to deficiency in service and more over there are no terms and conditions to deposit the said amount which was deposited by her and on the otherhand, as promised by the representative of opposite party subject to satisfaction of the parties only, the plot will be allotted and if not the amount will be returned.  The complainant issued a registered lawyer’s notice on 25.02.2012 and the opposite parties 1 & 2 received those notice, but they did not choose to give any reply or to pay the said amount.  Hence, this complaint to direct the opposite parties;

a)      to pay an amount of Rs.35,300/- with 24 percent p.a. interest from the respective

dates.

b)      to pay Rs.25,000/- towards damages and for other reliefs.

3.       On the otherhand, the 1^st opposite party filed its counter and the same was adopted by the 2^nd and 3^rd opposite parties.  The 1^st opposite party admitted about the payment of Rs.35,300/- towards Plot No.D89 in Phase-III Venture at Visakhapatnam for an extent of 267sq.yds on 11.07.2011 by way of cheque by the complainant and also issuance of receipt on 11.07.2011.  But denied all other allegations mentioned in the petition and pleaded that as a procedure for the purpose of allotment of plot in the approved layout, the customer has to remit half of the total cost of the plot and for the purpose of registration of the plot, she has to remit full amount on or before tentative date of registration, then only regular registered sale deed will be registered.  But the complainant remitted the amount of the purpose of enrollment amount and has blocked a plot in approved layout and hold the same but failed to remit the balance amount inspite of repeated requests.  The opposite party pleaded that they requested the complainant to remit within a period of 15 days for the purpose of allotment of plots, but she failed to do so.  The opposite party stated that they got approval of the layout and they are ready to register the plot in the name of the complainant, but the complainant not come forward to pay the balance amount and not co-operated with the opposite party, hence, she is not entitled to get refund of amount paid by her. The opposite party pleaded that the procedure for allotment of plot, the intending customer is required to fill the application for the provisional allotment of plot while depositing an enrollment amount of Rs.35,300/- with the opposite party before making application itself their company representative will accompany the customer for the purpose of showing the site and there was no compulsion for any customer to submit application to the opposite parties.  The opposite parties further pleaded that the complainant has deposited a nominal amount of Rs.35,300/- and blocked the plot since long time without obtaining provisional allotment of plot and without being offered to sell the same to the intending customers of these opposite parties.  Blocking of a plot is a commercial contract and as such there is no question of rendering any service.  The complainant is bound to remit the balance amount of the plot and get it registered in her name, failing which she does not entitled to refund the amount, especially when the opposite parties are willing to perform their part of contract at all times there is no deficiency in service on their part, hence this complaint is to be dismissed.

4.       At the time of enquiry, the complainant filed affidavit along with documents which are marked as Exhibits A1 to A8.  The complainant also filed written arguments.  On the otherhand, the opposite party filed its counter, evidence affidavit, but no documents are marked on behalf of the opposite party.  Both the counsels were heard who reiterated their versions.

5.       In view of the respective contentions, the point that would arise for determination is.......

Whether there is any deficiency in service on the part of the opposite party, if so can the complainant entitle for the reliefs prayed for.

6.       The fact that as per the Ex.A1, complainant paid Rs.35,300/- on 11.07.2011 towards Plot No.D89 in Phase-III venture of opposite party in an extent of 267sq.yds is not in dispute.  After that she came to know that the said venture is not developed and it is not as mentioned as per their versions and then, she approached the opposite parties and requested them to refund the money back, but the opposite parties are kept silent.  Then, the complainant issued notices through his husband on 21.10.2011 i.e., Ex.A2, on 16.12.2011 Ex.B3 is the e-mail copies and Ex.A4 is the letter addressed by the complainant to 2^nd opposite party on 27.12.2011 and again on 09.01.2012 the complainant issued an e-mail letter to opposite party i.e., Ex.A5.  Ex.A6 is the receipt of Certificate of posting issued by India Post and Ex.A7 is the lawyer’s notice dated 25.02.2012 issued by the complainant to all the opposite parties, Ex.A8 is the acknowledgment received from 2^nd opposite party.

7.       The version of the complainant is that only because of non development of plot she wants to withdraw and roamed around the offices of the opposite party and made several written complaints, but there is no positive action from the opposite parties.  The transaction between the complainant and the opposite parties is clearly evidenced by Ex.A1 and it is outright sale for an approved consideration and it is a sale wherein the opposite party received that amount against Plot No.D89 for 267sq.yds and the opposite party who performed their obligation and should obtain necessary permissions which were pre-condition for payment of balance sale consideration.

8.       The plea of the opposite party is that the complainant is a defaulter and more over he paid the amount of Rs.35,300/- for the purpose of enrollment amount and has blocked the plot in an approved layout and even after repeated requests for the remittance of allotment amount, she failed to pay that amount.  The opposite parties’ requested the complainant to remit the balance amount within a period of 15 days for allotment of plot.  But in Ex.A1 there is no mention about the amount paid by the complainant is against enrollment amount.  But it clearly mention the amount paid by her is towards enrollment/allotment/amenities/registration and others, but not mention that amount particularly regarding the enrollment. 

9.       It is to be noted that the complainant issued so many letters through e-mail and through her counsel to the opposite parties, but the opposite parties neither issued reply nor settle the problem, more over they pleaded that being a defaulter, the complainant again claimed the amount, but the opposite parties neither issued any notice to the complainant regarding the forfeiture of the amount paid by the complainant.  The complainant making correspondences with the opposite parties from 21.10.2011 i.e., immediately after three months from the advance amount paid to the opposite parties, but the opposite parties are kept silent, they did not raise their forfeiture clause by way of replies which clearly shows their negligent attitude and deficiency in service.

10.     The other plea of the opposite parties regarding the commercial transaction i.e., blocking of plot is a commercial transaction and as such there is no question of rendering any service by the opposite parties.  But in this case, the opposite parties clearly mentioned in Ex.A1, the Plot Number is D89 and square yards of 267 and opposite party received an amount of Rs.35,300/- and there is a signature of Authorised Signatory, hence the plea of the opposite parties that the payments made by the complainant is only blocking the plot is not agreed by the Forum.

11.     The opposite party stated that they got approval and they are ready to register the plot in the name of the complainant, but the opposite parties did not file any document to show that they got approval of layout and also they cannot establish their plea, that they requested the complainant regarding the balance payment.  Hence, the opposite parties are failed to establish their version as such, they are liable to refund the amount of Rs.35,300/- paid by the complainant with 9% interest from the date of payment i.e., 11.07.2011 within two months which would be just and proper.

12.     It is to be noted that the complainant deprived of having a own plot even after substantial amount paid by her to the opposite parties which would cause mental agony and financial hardship to the complainant, who has to incur huge expenditure in acquiring an alternate plot.  Considering all these circumstances, awarding Rs.5,000/- towards compensation is just and proper. 

          Accordingly, this point is answered.

13.     In the result, the complaint is allowed directing all the opposite parties to pay Rs.35,300/- with 9 percent p.a. interest from 11.07.2011 to till date of payment and further directed to pay Rs.5,000/- towards compensation besides costs of Rs.2,000/-.  Time for compliance two months.

Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 14^th day of July, 2014.

 

 

   Sd/-                                                                                     Sd/-                                                                               

Member                                                                          President (FAC)

                                                                             District Consumer Forum-I

                                                                                       Visakhapatnam

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant

Ex.A1	11.07.2011	Receipt for Rs.35,300/- bearing No.SBV 12358	Original
Ex.A2	21.10.2011	E-mail addressed to opposite party by complainant.	Online colour print
Ex.A3	16.12.2011	E-mail addressed to opposite party by complainant.	Online colour print
Ex.A4	27.12.2011	Letter addressed by complainant to opposite party.	Office copy
Ex.A5	09.01.2012	E-mail addressed to opposite party by complainant.	Online colour print
Ex.A6		Receipt of Certificate of posting.	Original
Ex.A7	25.02.2012	Notice addressed to opposite party by complainant’s advocate.	Photostat copy
Ex.A8		Acknowledgments.	Original

 

Exhibits Marked for the Opposite Parties

NIL

 

 

    Sd/-                                                                                      Sd/-

  Member                                                                         President (FAC)

                                                                             District Consumer Forum-I

                                                                                       Visakhapatnam