Andhra Pradesh

Nellore

CC/36/2015

Chiramana Satish Reddy, S/o Jayarami Reddy, - Complainant(s)

Versus

The General Manager, A.P.Rajiv Swagruha Corporation Ltd., - Opp.Party(s)

MD. Raheem Khan

07 Mar 2017

ORDER

Date of filing       :  28-04-2015

Date of Disposal :  07-03-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Tuesday, this the 7th day of MARCH, 2017.

 

          PRESENT:  Sri V.C. Gunnaiah, B.Com., M.L, President(FAC)

                                      Sri K.Umamaheswara Rao, M.A., B.L., Member.                                

                     

                             

C.C.No.36/2015     

 

Chiramana Satish Reddy,

S/o.Jayarami Reddy,

Hindu, aged about 40 years,

Resident of Flat No.79/5,

Siri Gardens Apartments,

Pedda Cherukuru Village,

Nellore Rural Mandal,

SPSR Nellore District.                                                            …  Complainant

 

                      Vs.

                                                                            

1. The General Manager,

A.P.Rajiv Swagruha Corporation Ltd.,

25-1-219, Nethaji Nagar,

Padmavathi Nagar, Podalakur Road,

A.K.Nagar Post,

Nellore-4.

 

2. The Managing Director,

A.P.Rajiv Swagruha Corporation Ltd.,

Domalaguda,

Hyderabad.                                                              … Opposite parties

 

This matter coming on  27-02-2017  before us for final hearing in the presence of Sri Md.Rahimkhan, Advocate for the complainant and Sri  N.Sudheer Reddy, Advocate  for the opposite parties and  having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                                                             (By Sri V.C. Gunnaiah, B.Com., M.L., President(FAC)

 

 

1.     The complainant filed this complaint under section 12 of Consumer Protection Act, to direct the opposite parties 1 and 2 jointly and severally to refund Rs.3,01,750/- with interest @ 12% p.a. from 10-10-2008 i.e., the date of last payment till realization, to pay Rs.1,00,000/- for mental agony and Rs.5,000/- towards costs of the complaint for deficiency of service.

 

2.  The averments of the complaint in brevity are as follows:

 

On the wide publicity given by the opposite parties about their housing scheme and possession of the house  will be given within six months, the complainant deposited earnest money deposit of Rs.5,000/-  initially on 10-04-2007, apart from, Rs.250/- towards application charges for a house category No.2 BHK at Kothur, Nellore rural.  The construction of the cost would be paid in installments.  As the work was in progress believing the words of the opposite parties, the complainant paid Rs.2,96,500/- on 10-10-2008 to the opposite parties as 25%  of tentative cost of the building.  Thus totally, the complainant paid Rs.3,01,750/-.  The opposite parties have to complete the construction and give possession that the construction of the house was started but they failed to give proper reply.  It is published in news item that the Rajiv Swagruha constructions were stopped.  So, vexed with the  attitude of the opposite parties, the complainant initiated to cancel the allotment and submitted a letter in July, 2009 requesting the opposite parties to cancel the allotment to him and refund his amount.  The 1^st opposite party requested time to return of the amount.  But, not returned.  The complainant addressed several letters, still not returned the amounts.  Thus, there is deficiency in service on the part of the opposite parties.  Therefore, for the above complaint is for the above reliefs.

 

3.The 1^st opposite party filed written version  and the same has been adopted by

 the 2^nd opposite party by filing memo.

 

4.  The opposite parties denied the allegations in the complaint regarding the deficiency in service causing mental agony to the complainant and refusing to return his amount inspite of addressed letters to him etc. facts and called upon the complainant to prove them. However, the opposite parties admitted the complainant applied for allotment of house on 09-04-2007 and paid Rs.5,000/- on 10-04-2007 at 2BHK house at  Kothur Nellore rural and paid Rs.2,96,500/- on    10-10-2008 and thus total paid Rs.3,01,750/-.

 

5.  It is further averred that the complainant was not having sufficient means and source to pay the amount to the corporation in time and get the house property.  Since the expectations and assumptions of the complainant not worked out, he requested the opposite parties to refund his amount on 03-09-2013 and prior to that he never addressed any letters to fund of the amount.  The management of the corporation cancelled the allotment for default of the amount by the complainant on   25-06-2012 and the same was published in net wide publicity on 06-07-2012.  Once an allotment was cancelled, the complainant has no right to claim any amount and the amount already paid forfeited.  But, with mercy even after cancellation of the allotment and on the request of the complainant, the 2^nd opposite party accepted to refund the amount and on 23-04-2015, the amount was refunded to the complainant by way of cheque bearing no.308034 and the complainant had given undertaking to the corporation that after receipt of the cheque there is no liability on the part of the corporation to pay to him.  The complainant received the amount on 24-01-2015 and filed this complaint on       25-08-2015 on false grounds, thus there is no deficiency in service and no mental agony was caused to the complainant and the complainant is not entitled for the claims and the complaint is liable to be dismissed.

 

6.   No oral evidence was reported by the parties but on behalf of the complainant his affidavit is filed and got marked Exs.A1 to A7 and on behalf of the opposite parties, affidavit of 1^st opposite party is filed and got marked Exs.B1 to B11.  The opposite parties filed their written arguments.

 

7.  Heard the arguments on both sides, and perused the written arguments filed  and documents marked on both sides. 

 

8.      The points that arise for determinations are:

 

       1) Whether there is deficiency in service on the part of the

           opposite parties as pleaded by the complainant?

        2) Whether the complainant is entitled for the amounts claimed?

        3) To what relief?

 

9. POINTS 1 AND 2:    There is no dispute in this case that the complainant applied for allotment of house in the proposed housing scheme launched by the opposite parties and deposited initial payment of Rs.3,01,750/- including Rs.5,000/- towards earnest money, application charges of Rs.250/- and subsequently, he was allotted a house under construction bearing no.316 and the same was intimated to the complainant on 16-12-2009.    It is further admitted between the parties that the complainant was unable to pay the remaining balance of instalments and take delivery of possession of house from the opposite parties, as the complainant himself informed to the opposite parties that he had no money and unable to pay the balance instalments and take delivery of the possession of the house from the opposite party allotted to him and on the other hand requested for refund of the amount on 03-09-2013,  under Ex.B9.

 

10.  It is the contention of the complainant that he is entitled for the interest on Rs.3,01,750/- from the date of the deposit @ 12%  p.a. apart from mental agony and costs as the opposite parties refunded only Rs.2,96,500/- as per the cheque dated 23-04-2015.  Hence, interest may be granted.

 

11.  Per contra, the learned counsel for the opposite parties contended that the complainant received a cheque bearing No.308084 dated 23-04-2015 for Rs.2,96,500/- under Ex.A10 acknowledgement and  encashed the same on 24-07-2015 as shown in the Ex.B11.  But, suppressing the said facts filed this complaint on 28-04-2015 for interest though under Ex.B10 he clearly declared that the opposite party has no further liability in terms of installments amount.  Therefore, no deficiency in service on the part of the opposite parties and complaint is liable to be dismissed.

 

12.  There is considerable force in the contention of the opposite parties. Ex.B9, B10 and B11 are of the pivotal documentary evidence placed by the opposite parties to prove that the complainant received Rs.2,96,500/-  under cheuqe bearing No.308034 from the opposite parties and declared that he has no further claim against the opposite parties in connection of allotment of the house installments by him.  It is no doubt to true that the complainant deposited earnest money of Rs.5,000/- and Rs.250/- towards application fee for allotment of house,  however,  they are non-refundable, in case, the complainant/allottee of house failed to pay the installments.  In this case, the complainant deposited Rs.2,96,500/- as 1^st instalment of 25% of the tentative cost of the allotted house but failed to pay the  further instalments  and take delivery of the possession of the house from the opposite parties.  On the other hand, he addressed letters to the opposite parties under Ex.B9  that he is unable to pay the instalments  in view of his poor economic condition and requested for return of the amount paid by him towards 1^st instalment.  The same was accepted by the opposite parties and issued cheque for Rs.2,96,500/- on 23-04-2015 and the same was adjusted to his account as per Ex.B10 and B11. In Ex.B10, the complainant addressed a letter to opposite parties stating that he received instalment amount of Rs.2,96,500/- from the 1^st opposite party and he has no further claim against the opposite parties, which means, the complainant fully satisfied regarding the payment received by him from the opposite parties with regard to his claim and he has no further claim to be made in respect of the amounts deposited by him towards the allotment of the house no.316 by the opposite parties.  When once the complainant received the amount without protest from the opposite parties and reported no further claim against the opposite parties, his right to file case under C.P.Act is seized, as he is no more a consumer. Thus, there is no deficiency in service or mental agony or distress caused to the complainant by the opposite parties.  Further, the complainant though realized the amount from the opposite parties by way of cheque dated 23-04-2015 suppressing the said fact on 28-04-2015 filed this complaint after encash of cheque on 27-04-2015.  Therefore, the complainant has not come to the Forum with clean hands and suppressed the material facts and filed this complaint on false grounds, though, he declared that he has no further claim from the opposite parties as per Ex.B9.  Hence, the complainant is not entitled to any claims made by him from the opposite parties and the complaint is liable to be dismissed.  Accordingly, points 1 and 2 are answered against the opposite parties.

 

POINT NO.3:     In the result, the complaint is dismissed but in the circumstances without costs.

 

Dictated to the Stenographer, transcribed by her and corrected and pronounced by us in the Open Forum this the 7th day of  MARCH, 2017.    

 

              Sd/-                                                                             Sd/-

         MEMBER                                                                  PRESIDENT (FAC)

  APPENDIX OF EVIDENCE

 

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

21-01-2016

:

Chiramana Satish Reddy, S/o.Jayarami Reddy, Presently residing at Flat No.79/5, Siri Gardens Apartments, Pedda Cherukuru Village, Nellore, Rural Mandal, SPSR Nellore District.

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

17-02-2016

S.Ramasubbu, S/o.Sankara Narayana, Hindu, aged 58 years, General Manager, A.P.Rajeeve Swagruha Corporation Limited, Nellore.

                                                                         

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	09-04-2007	:	Receipt for Rs.250/- issued by e-seva.
Ex.A2	10-04-2007	:	Receipt for Rs.5,000/- issued by e-seva.
Ex.A3	10-10-2008	:	State Bank of Hyderabad Deposit challan for Rs.2,96,500/-.
Ex.A4	09-12-2009 14-10-2010 19-09-2011 16-05-2012 23-07-2013 26-09-2014	:	Photo stat copies of letters(6 in nos.) addressed to opposite party No.1 by the complainant.
Ex.A5	11-03-2015	:	Photostat Copy of legal notice got issued by the counsel for the complainant to opposite parties along with regd. postal receipts (2 in nos.).
Ex.A6	-	:	Acknowledgement of opposite party No.1
Ex.A7		:	Returned legal notice of opposite party No.2.

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                          

 

Ex.B1	25-04-2009	:	Photostat copy of the payment schedule letter served to the complainant.
Ex.B2	21-10-2009	:	Photostat copy of the requisition letter for change of interior.
Ex.B3	16-12-2009	:	Photostat copy of the reminder letter for payment of 1st and 2nd installments.
Ex.B4	16-02-2010	:	Photostat copy of the reminder for payment of 1st and 2nd installments.
Ex.B5	20-10-2010	:	Photostat copy of the reminder for payment of 1st and 2nd installment.
Ex.B6	26-08-2011	:	Photostat copy of the reminder for payment of 1st and 2nd installments.
Ex.B7	04-11-2011	:	Photostat copy of the reminder for payment of 1st and 2nd installments.
Ex.B8	06-07-2012	:	Photostat copy of the cancellation of allotment and kept in net for wide publicity.
Ex.B9	03-09-2013	:	Photostat copy of the letter regarding request of refund of the amount.
Ex.B10	23-04-2015	:	Photostat copy of the under taking letter to the opposite party.
Ex.B11	30-04-2015	:	Photostat copy of statement of account

 

                

                                                                                Sd/-    

                                                                      PRESIDENT (FAC)

 

 

Copies to:

 

1. Sri Md.Raheem Khan, Advocate, D.No.16-1-249, Athithota Agraharam,

Sri Srinivasa Lodge Building, Near Men’s Fashions Wear, Trunk Road,

Nellore - 524 001.

 

2. Sri N.Sudheer Reddy, Advocate,23-3-298,  Akkanavari Street,

Dargamitta, Nellore – 524 003.

 

 

Date when order copies were issued: