BEFORE THE DISTRICT CONSUMER FORUM AT NALGONDA
PRESENT: SRI MAMIDI CHRISTOPHER,
PRESIDENT.
SMT.S.SANDHYA RANI,
FEMALE MEMBER.
SRI K.VENKATESHWARLU,
MALE MEMBER.
. . .
WEDNESDAY, THE FIFTH DAY OF FEBRUARY, 2020
CONSUMER COMPLAINT No. 57 OF 2014
Between:
Narayanabhatla Sitha Rama Sharma S/o Subrahmanya Shasthri,
Occ: School Assistant (Telugu Pandit), R/o Indane Gas Office Lane,
Opp: Srinivasa Theatre, Kodad Town and Mandal, Nalgonda District.
…COMPLAINANT.
]
AND
The Branch Manager, State Bank of India, Akupamula Branch,
Kodad, Nalgonda District.
…OPPOSITE PARTY.
This complaint coming on before us for final hearing, in the presence of Sri J.Raghava, Advocate for the Complainant, and Sri P.Praveen Babu, Advocate for the Opposite Party, and on perusing the material papers on record, and having stood over for consideration till this day, the Forum passed the following:
ORDER OF THE FORUM DELIVERED
BY SRI KATEPALLY VENKATESHWARLU, MALE MEMBER
1. This is a complaint filed by the Complainant Under Section 12 of Consumer Protection Act, 1986 against the Opposite Party for deficiency of service in respect of issuance of cheque of Rs.10,50,000/-, the higher value as against the proposal of the Complainant which is issued in favour of the vendor and thereby the Complainant forced to pay higher stamp duty and also to pay property tax for the property purchased by him at present and also in future to the Municipal authorities etc. and thereby he suffered loss, mental
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agony and, accordingly, prayed for Rs.50,000/- towards excess stamp duty paid on the regular Registered Sale Deed along with interest at the rate of 18% p.a. from the date of registration till the date of realization and Rs.4,00,000/- loss going to be sustained in each and every payment of municipal tax in his entire life time, besides claiming of Rs.50,000/- towards mental agony and legal expenses.
2. The facts of the complaint are that, the Complainant entered into an agreement of sale on 18/06/2011 with the vendor namely; Marla Sitha, represented by M/s Sky Heights Constructions, Kodad [Partnership Firm], Registered Firm No.95/2009, represented by its Managing Director namely; Erragunta Sambashiva Rao for purchase of semi finished flat No.D/2 in 3rd Floor, having plinth area of 1020 Sq.Feets of Bommarillu Apartment, constructed on the dismantle house No.12-87/11 in Survey No.Old 1052/1/4, which is consists of 27 flats. The purchaser, i.e. the Complainant is the 18th purchaser out of the said total flats. It is also stated that the other 26 purchasers have also availed loan with the Opposite Party and other banks. It is also submitted that on the basis of the said agreement of sale for semi finished flat, dated 18/06/2011, the Opposite Party bank had advanced housing loan to the purchaser, i.e. the Complainant. The Complainant alleged that the Opposite Party bank impressed him regarding loan facility and payment schedule of the land and payment of sale consideration to the vendor would be same as per the payments of other flat purchasers of the said apartment. The Complainant was impressed by the Opposite Party that the payment schedule would be carried as per other 26 flat purchasers and accordingly, the Complainant was under opinion that the same
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procedure will be followed by the Opposite Party bank with regard to the payment schedule as he had entered into agreement with the builder in the pattern of other flat owners. On such understanding of payment schedule assured by the Opposite Party bank, the Complainant had availed loan from the Opposite Party bank. It is further alleged by the Complainant that the builder was greatly instrumental in managing the Opposite Party bank to advance financial accommodation to the purchasers. It is, thus, the Complainant got registered the property by way of regular registered sale deed at S.R.O., Kodad. At this juncture, the Opposite Party bank had issued a cheque for Rs.10,50,000/- towards sale consideration, which was drawn in favour of the vendor to be paid to him as against the sale consideration of Rs.8,20,000/-. The said agreement of sale executed in between the vendor and purchaser was submitted to the Opposite Party bank by the Complainant, in which the total sale consideration was mentioned as Rs.8,20,000/- only. Due to issuance of higher value than the agreed consideration, the Complainant was forced to pay higher stamp duty on the basis of total sale consideration of Rs.13,50,000/- mentioned in the regular sale deed. Later, the municipal authorities have assessed property tax on the basis of sale consideration and valued accordingly and imposed property tax higher than the other flat purchasers in the said apartment. Due to the acts and deeds of the Opposite Party bank, the Complainant sustained loss, mental agony and forced to pay the excess stamp duty and also excess property tax at present. The Complainant submits that he has to pay property tax to the Municipality in future also throughout his life time. The variation of property tax is Rs.2,025/- per annum on comparison of other flat purchasers, who are having same
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measurements and plinth area. The flat of the Complainant and other flats are same and equal. All the above facts amounts to deficiency of service, as the Opposite Party bank failed to issue exact sale consideration of Rs.8,20,000/- mentioned in the agreement of sale submitted to the bank. Instead of issuance of cheque for Rs.8,20,000/-, cheque for Rs.10,50,000/- was issued in favour of the vendor at the time of registration and thereby the sale consideration became Rs.13,50,000/- which includes previous payments of Rs.3,00,000/- made by him directly to the vendor. Consequently, the Municipal authorities have assessed property tax accordingly, which is excess comparing to other flat owners. Hence, the Complainant filed the present complaint for the reliefs sought by him.
3. The matter is contested by the Opposite Party bank and filed its written version. The Opposite Party admitted that the Complainant had approached the bank and the bank had advanced loan for an amount of Rs.11,55,000/- in favour of the Complainant on the basis of loan documents. It is stated by the Opposite Party bank that the Complainant did not mention in the complaint about the additional development agreement with a view to suppress the real facts. The said agreement of sale for semi-finished flat and additional development agreement have been submitted by the Opposite Party at a time. The Opposite Party contended that the total cost of the flat is Rs.13,50,000/- and in this regard he has stated that the original sale consideration of Rs.8,20,000/- as per the agreement of sale and Rs.5,30,000/- for completing unfinished work to the semi finished flat, as per the additional agreement, which were submitted to the
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Opposite Party bank by the Complainant. The Opposite Party has contended that the bank is no way concerned with the execution of sale deed and its registration or payment of stamp duty to the Registration Department. The Opposite Party further stated that the bank not at all concerned regarding assessment of property tax and other things. It is also stated by the Opposite Party that at the request of the Complainant, the bank has issued a Demand Draft for an amount of Rs.10,50,000/- on 09/08/2011 and thereafter the Complainant has got executed and registered the sale deed in respect of the schedule flat on 12/08/2011. It is empathetically mentioned by the Opposite Party that after three days of receiving of the said Demand Draft, the execution and registration of sale deed was occurred. The Complainant being a Teacher and prudent personality, it is his responsibility to pay attention and to pay appropriate stamp duty to the Government. It is denied by the Opposite Party that the bank not responded and answered for the legal notices and representations of the Complainant. The Complainant if at all affected by any excess stamp duty or levying property tax higher, he would have approached to the appropriate authorities to reduce property tax and other things and as such, the Opposite Party bank is no way concerned to the said grievances and disputes.
4. It is also mentioned by the Opposite Party bank that the cost of the schedule flat is Rs.13,50,000/- as per the above said two agreements and the stamp duty and registration fee paid by the Complainant accordingly, but not excess. It is also contended that the person, who executed the agreement for semi-finished flat and development agreement is one and the same and he is entitled to the
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said amount. By the time of issuance of the cheque in favour of the builder, the entire work of the flat was completed and nothing was left for further development, which was found after the inspection of the flat by the bank officials. Only after satisfaction regarding the completion of the entire work, nothing was left to proceed further by the builder, the total amount payable to the builder is issued at once by the bank, It is further submitted by the Opposite Party bank that the bank role is only to issue a Demand Draft for loan sanction and the same has been fulfilled by them. It is the duty of the Complainant to get registration of the schedule flat in his name by paying the appropriate stamp duty and registration charges and to deposit the original document/title deed with the Opposite Party bank for creation of equitable mortgage upon the said property. The Opposite Party bank never committed any illegality or irregularity in issuing the Demand Draft in favour of the builder firm and the said Demand Draft was issued “as per the choice of the Complainant”, but not on own accord of the Opposite Party bank. It is also denied that the Opposite Party bank has never withhold an amount of Rs.25,000/- as the Complainant did not claim the said amount and the same is not realized to the Complainant by the bank. The said amount is not disbursed till now and the same is in the loan account of the Complainant and the Complainant is at liberty to withdraw the said amount as per his choice. The Opposite Party bank has not charged any interest on the undisbursed amount of Rs.25,000/-. In view of the above said facts and circumstances, the Opposite Party bank has not committed any deficiency of service and there is no deficiency in rendering the service to the Complainant and denied the claim of the Complainant. As such, the complaint is liable to be dismissed.
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5. The Complainant and the Opposite Party bank have adduced their respective evidence by way of affidavits and marked their respective documents as Exs.A-1 to A-14 and Exs.B-1 to B-4 respectively to support their version.
6. Having perusal of the above, the following points has been framed for consideration and determination of the matter.
7. The points for consideration are:
1) Whether there is deficiency in service on the part of the
Opposite Party bank?
2) Whether the Complainant is entitled for the reliefs
claimed by him?
3) If so, to what extent?
8. POINT No.1:
It can be seen from the records that the Complainant is one of the purchaser of the flat No.D/2 of the builder namely; M/s Sky Heights Constructions, out of 27 flat purchasers. It is also seen from the enclosure attached to Ex.A-10 which is a Notice issued by Sub-Registrar, Kodad to the purchasers of entire Bommarilu Apartment and also its builder that the chargeable value of the said flat was Rs.13,50,000/- in respect of documents with effect from 15/09/2011 on the basis of notice given by C.T.O. and requesting to pay VAT Tax pertaining to the list of documents mentioned in the annexure-2 of Ex.A-10. As per Ex.A-10 enclosure, the Complainant had got registered sale deed No.6627/2011 for the said flat. The bankers cheque for Rs.10,50,000/- Ex.A-1, which is issued by the Opposite Party bank in favour of Marla Sitha on behalf of M/s Sky Heights Constructions, Kodad, who is the vendor of the flat of the
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Complainant is evidencing that the said amount advanced by the Opposite Party bank to the Complainant to be paid to the vendor on 09/08/2011. As per Ex.A-2, the total sale consideration for the said flat is Rs.8,20,000/-. It is seen from Ex.A-4, i.e. registered sale deed No.6627/2011, dated 12/08/2011 that the total sale consideration is Rs.13,50,000/-. Ex.A-3 is Additional Development Agreement, which shows that on request of the Complainant to complete the additional works of semi-finished flat No.D/2 on 3rd Floor at Bommarillu Apartment, the builder agreed the same and to complete the additional works as per the specifications mentioned under Ex.A-3, which estimated to total cost of Rs.5,30,000/-. On further perusal of Ex.A-3 specifications, all the works pertaining to additional works, such as bricks quality, wall finishing, polish of shutters and wood frames, vitrified tiles, clean marbles and all other requirements which are additional works. It appears that an amount of Rs.5,30,000/- was estimated for completion of additional works and accordingly, the parties entered into the said additional development agreement. The Agreement of Sale, i.e. Ex.A-2 does not disclose the specifications and as per the recitals of the said document, it is only an agreement in between the vendor and purchaser for sale transaction of semi-finished flat with a plinth area of 1020 sq.feets including common area etc. Exs.A-2 and A-3 have been executed on the same date of 18/06/2011. The allegation of the Complainant is that the Opposite Party bank had issued higher amount than the sale consideration mentioned in Ex.A-2, i.e. instead of Rs.8,20,000/-, an amount of Rs.10,50,000/- was paid to the vendor through Ex.A-1 at the time of registration. In this regard, the Opposite Party bank contended that the total sale consideration had arrived as per the two agreements
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submitted by the Complainant on the same dates. As per Exs.A-2 and A-3, the consideration of Rs.8,20,000/- under Ex.A-2 plus Rs.5,30,000/- under Ex.A-3 put together, total comes to Rs.13,50,000/-, out of which, a cheque was drawn and issued for an amount of Rs.10,50,000/- which was issued at the request of the Complainant only. It is also stated by the Opposite Party bank that Ex.A-1 was issued on 09/08/2011 for registration of the property, whereas the Complainant got registered the property on 12/08/2011, which is after three days from the date of issuance of Ex.A-1, which is nexus in the dispute.
9. The Opposite Party bank contended that the Complainant entered into additional development agreement for the completion of un-finished work to the semi-finished flat for Rs.5,30,000/- with the vendor firm and as such the total cost of the flat comes to Rs.13,50,000/-. It is stated by the Opposite Party that the Complainant was sanctioned a house loan facility of Rs.11,55,000/- as per the terms and conditions set out in the Memorandum of Loan Agreement, i.e. Ex.B-4, dated 09/08/2011. The Complainant had executed an agreement of sale and additional development agreement, both dated 18/06/2011 with the builder. The total sale consideration of the flat was Rs.13,50,000/-. It is also alleged by the Opposite Party that by the time of issuing the cheque in favour of the builder, the entire finishing work of the flat was completed and nothing was left over for further development. Only on satisfaction of entire work, the total amount payable to the builder is issued at once by the bank. The Opposite Party bank empathetically stated that the role of the Opposite Party is only to issue Demand Draft for the loan
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sanctioned and the same has been fulfilled by the bank. The bank is no way concerned with regard to the registration and payment of stamp duty and even in respect of assessment of property tax. The duty of the Complainant is only to get the registration, payment of stamp duty and other alleged things. The bank is not responsible for assessment of the municipal tax, stamp duty and registration.
10. It is evident from Ex.A-4, i.e. Registered Sale Deed No.6627/2011 that the Complainant had paid Rs.3,00,000/- by way of cash to the vendor, out of the total sale consideration of Rs.13,50,000/- and the remaining amount of Rs.10,50,000/- was paid through Demand Draft No.640449, dated 09/08/2011, issued by the Opposite Party bank, which is Ex.A-1. The bank has issued the said Pay Order/Bankers Cheque in favour of the vendor for remaining sale consideration of Rs.10,50,000/-. The main dispute is that the issuance of consolidated Pay Order of Rs.10,50,000/- which is higher value as against the wish of the Complainant which is issued by the Opposite Party bank and thereby the Complainant was forced to pay higher stamp duty for registering the property. The contention of the Complainant was that if two separate Pay Orders were issued by the bank, the property could have been registered for a lower value. It means that the bank had failed to issue cheque for remaining amount of Rs.5,20,000/- and another cheque for Rs.5,30,000/-.
11. In view of the above, it appears that there is no evidence to prove that the Complainant requested the Opposite Party to issue two separate cheques for sale consideration and additional unfinished works under sale of agreement and additional development
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agreement. When the Complainant accepted the Pay Order, i.e.
Ex.A-1 which is required to be handed over to the builder/owner of the
property by him, and that he had very much knowledge about the cheque. If he had any objection, he would have returned the cheque to the Opposite Party bank on the same day for issuance of the required two separate cheques as per the agreements submitted by him. As such, it appears that the Complainant himself accepted the cheque without any objections and handed over the same to the vendor.
12. It is evidencing that the Complainant is very much knowledge about the contents and recitals of the sale deed at the time of execution/registration of the deed. It is, thus, the Complainant has failed to prove his case of deficiency in service on the part of the Opposite Party bank and there is no cogent evidence to establish his case. The mere allegation that due to the issuance of the cheque for higher value, he was forced to pay excess stamp duty and on the basis of the said total sale consideration, the municipal authorities assessed property tax higher, which are purely the personal look after and responsibility of the Complainant. The Opposite Party bank’s duty is to provide the loan facility and to advance the loan amount to the Complainant on his request only. Without instructions of the Complainant, the bank cannot issue the cheque or any payment to the owner or builder. As there is no evidence to prove that the Complainant requested to issue separate cheques on the basis of above said two separate agreements; it is therefore, hold that the point for consideration of deficiency in rendering services on the part of the Opposite Party bank cannot be allowed/considered.
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13. By the analysis of the above, we conclude that the complaint is not fit to allow as the Complainant could not establish his case and it is liable to be dismissed. Accordingly, Point No.1 cannot be considered in favour of the Complainant as there is no deficiency in service on the part of the Opposite Party bank.
14. POINTS No.2 & 3:
As the Point No.1 decided against the Complainant, the question of determination of Points No.2 and 3 does not arise.
In the result, the complaint is dismissed. The parties have to bear their own costs.
Dictated to Steno-Typist, transcribed by him, corrected and pronounced by us in the open Forum on this 5th day of February, 2020.
FEMALE MEMBER MALE MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainant: For Opposite Party:
Affidavit of the Complainant. Affidavit of the Opposite Party.
EXHIBITS MARKED
For Complainant:
Ex.A-1: Dt.09/08/2011 Xerox copy of Bankers Cheque for
Rs.10,50,000/- issued by Opp.Party.
Ex.A-2 Dt.18/06/2011 Original Agreement of Sale for Semi
Finished Flat.
Ex.A-3 Dt.18/06/2011 Original Additional Development
Agreement.
Ex.A-4 Dt.12/08/2011 Xerox copy of Registered Sale Deed,
bearing Document No.6627/2011.
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Ex.A-5 Dt.12/08/2011 Xerox copy of Registered Sale Deed,
bearing Document No.6626/2011.
Ex.A-6 Dt.14/07/2011 Xerox copy of Valuation Report.
Ex.A-7 Dt.19/11/2012 Xerox copy of Special Notice of Property Tax,
New Assessment or Amendment.
Ex.A-8 Dt.08/08/2013 Original Receipt of Property Tax for the
Period 2013-14.
Ex.A-9 Xerox copy of letter addressed by the
Complainant to the Branch Manager,
S.B.I., Mahaboobnagar.
Ex.A-10 Dt.15/10/2012 Xerox copy of notice issued by Sub-Registrar
Kodad to M/s Sky Heights Constructions,
Kodad along with list of documents.
Ex.A-11 Dt.12/08/2011 Xerox copy of Bankers Cheque for
Rs.13,500/-.
Ex.A-12 Dt.13/05/2012 Xerox copy of letter addressed by the
Complainant to the Banking Ombudsman,
Reserve Bank of India, Hyderabad.
Ex.A-13 Dt.02/11/2012 Order of Banking Ombudsman, Reserve Bank
of India, Hyderabad.
EXHIBITS MARKED
For Opposite Party:
Ex.B-1: Dt.18/06/2011 Attested copy of Agreement of Sale for
Semi Finished Flat.
Ex.B-2: Dt.18/06/2011 Attested copy of Additional Development
Agreement.
Ex.B-3: Dt.12/07/2011 Attested copy of Application for
Housing Loan.
Ex.B-4 Dt.09/08/2011 Attested coy of Memorandum of Loan
Agreement for SBI Easy/Advantage
Home Loan.
PRESIDENT
DISTRICT CONSUMER FORUM
NALGONDA
