State Consumer Disputes Redressal Commission
V. Brahma Reddy vs 1.Sri Ponnaboina Somaiah on 9 May, 2024
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
FA. No. 569/2018 AGAINST ORDERS IN
CC.No.185/2015 ON THE FILE OF DISTRICT
CONSUMER COMMISSION, RANGA REDDY.
Between :
V.Brahma Reddy,
R/o.H.No.1-121/46, HMT Nagar,
Raghvendra Colony,
behind Vijayanth Cinema Theatre,
Nacharam - 500 076,
Ranga Reddy Dist,
Telangana.
Presently at
V.Brahma Reddy, S/o.Chalma Reddy,
Aged about 56 years, Occ:Business,
R/o.Flat No.108, First Floor,
Swathi Sai Classic Apartments,
Adarsh Nagar, Road No.10,
Opp.Line to HP Petrol Pump,
Chilkanagar, Uppal,
Hyderabad-39. ... Appellant/
Opposite party no.2
And
1.Sri Ponnaboina Somaiah, S/o.Ponnaboina Mallaiah, R/o.H.No.45-183/1, Street No.03, NMDC Colony, Shiridi Nagar, Upperguda, Moula-ali, Secunderabad, Telangana. ... Respondent/ Complainant
2.J.Narasimha -Builder (Laxmi Narasimha Real Estate), R/o.H.No.20-6/20, Chilka Nagar, Uppal - 500 039, Ranga Reddy Dist. , Telangana. ... Respondent/ Opposite party no.1 Counsel for the Appellant : Mr.Nerusu Srinivasa Rao Counsel for the Respondents: Mr.B.Sri Kiran-R1.
R2-Notice served.
QUORUM : Hon'ble Sri K.Ranga Rao, M ember-(J) & Hon'ble Smt.R.S.Rajeshree, M ember (N-J).
THURSDAY, THE NINTH DAY OF M AY, TWO THOUSAND TWENTY FOUR.
2Order : (Per Hon'ble Sri K.Ranga Rao, M ember-(J) ) *****
01). This appeal is filed by the appellant/opposite party no.2 praying this Commission to set aside the impugned order dt.1.5.2018 passed in C.C.No.185/2015 by the District Consumer Disputes Redressal Commission, Ranga Reddy.
02). For the sake of convenience, the parties are referred to as arrayed in the complaint.
The Respondent no.1- P.Somaiah was the complainant, Respondent no.2 - J.Narasimha was the opposite party no.1 and appellant herein - V.Brahma Reddy was the opposite party no.2.
03). The complainant filed the complaint C.C.No.185/2015 against the opposite parties 1 & 2 before the District Consumer Commission, Ranga Reddy which allowed the complaint in part and passed the following order:
"In the result, the complaint is partly allowed and the opposite party no.2 is only directed to pay Rs.10,50,000/- (Rupees Ten Lakhs Fifty Thousand only) with interest @ 12% p.a. from 23.02.2015 till realization . Further the opposite party no.2 is directed to pay compensation of Rs.2,00,000/-(Rupees Two Lakhs only) for mental agony and harassment and costs of Rs.20,000/- (Rupees Twenty Thousand only) . Time for compliance is 30 days, in default the interest will be enhanced to 18% p.a. from the date of default till the date of realization. The complaint against opposite party no.1 is dismissed without costs."
Aggrieved by the above order, the appellant/opposite party no.2 preferred the present appeal vide F.A.No.569/2018.
04). The factual matrix of the case of the complainant is that he upon advice of his family relative P.Prakash approached the opposite party no.1 who informed him that there is an open plot in plot nos.126 part and 127 part in Survey no.5 admeasuring 150 sq.yards or 125.4 Sq.Mtrs. situated at Miyapur Village, Boduppal Gram Panchayat, Ghatkesar Revenue Mandal, Ranga Reddy Dist. and that he will arrange for him to meet the owner of the said open plot i.e. opposite party no.2 who is also builder in Nacharam, Ranga Reddy Dist. On 22.2.2015 the complainant 3 paid token amount of Rs.50,000/- to opposite party no.2, as it was stated that if the complainant does not pay token amount towards registration of plot, the opposite party no.2 will not wait and will sell the plot to somebody else and lured the complainant that he would develop the property once he buys the same and also informed that the total sale consideration is Rs.34 lakhs. On 23.2.2015 the opposite party no.2 executed an Agreement of Sale in favour of the complainant and the complainant had paid Rs.10 lakhs by way of cheque and cash and agreed to pay the remaining balance of Rs.24 lakhs within a period of 45 days from the date of Agreement of Sale.
It is the further case of the complainant that he had approached the Bank of India, Malkajgiri Branch for availing home loan of sum of Rs.24 lakhs. After verification of the property documents, the Senior Branch Manager of the Bank on 07.04.2015 informed the complainant that they have verified the copies of property document with the Sub-Registrar, Narapally and found out that the open land in Survey no.5 which belongs to opposite party no.2 is notified as "WAKF" property and he informed that Bank cannot give loan for buying notified WAKF property and also informed that opposite party no.2 has not obtained construction permission from the concerned authorities for constructing the plot and illegally sold the said plot to him. The said Branch Manager also cautioned the complainant to ask opposite party no.2 to get No Objection Certification from WAKF Board and approval for the construction from the concerned authorities before the complainant again approach the Bank for availing home loan.
The complainant further submits that he was shocked to hear this and contacted opposite party no.2 and sought for his explanation. But opposite party no.2 never gave proper reply and informed him that he had already applied for the construction permission before the concerned authorities and would get the approval letter very soon. When the complainant contacted opposite party no.2 again, opposite party no.2 informed that he would get the house construction approval letter from the concerned authorities in the month of May, 2015 and if he does not get approval in May, 2015, he would refund the advance amount to the complainant. The complainant got issued legal notice dt.6.4.2015 to opposite party no.2, but there was no 4 response from him. The act of opposite party in not responding to the complainant having received Rs.10,50,000/- from him and not obtaining approval permission and selling subject plot which is notified as WAKF property to him amounts to unfair trade practice and deficiency of service on the part of the opposite parties. Hence he filed the present complaint seeking the reliefs that are mentioned in the complaint.
05). The opposite parties filed their written version/counter denying the averments made in the complaint and contended that the complaint is not maintainable either in law or on facts and the same is bad for non joinder and mis-joinder of parties. The District Forum has no jurisdiction to entertain the complaint, since the question of deficiency in service on the part of the opposite parties does not arise. They further submitted that the opposite party no.2 is absolute owner and possessor of semi finished house of the subject plot in plot nos.126 part and 127 part in Survey no.5 admeasuring 150 sq.yards situated at Miyapur Village, Boduppal Gram Panchayat, Ghatkesar Revenue Mandal, Ranga Reddy Dist. After purchase of the above said plot, the opposite party no.2 made an application to Boduppal Gram Panchayat for construction of building over the said property and obtained permission vide proceedings no.G.P.Bd/479/14-15, dated 24.3.2015 with building permission plan. On 22.2.2015 the complainant and two other persons approached him in respect of the above said property and verified all concerned documents and agreed to purchase the house. The total sale consideration is Rs.34 lakhs out of which the complainant paid an amount of Rs.10 lakhs and agreed to pay the remaining balance sale consideration of Rs.24 lakhs within 45 days from the date of Agreement of Sale. On 23.2.2015 the complainant also obtained one more Agreement from the opposite party no.2 i.e. Builder & Buyer Development Agreement. Opposite party no.2 further submits that the complainant obtained document by document from him due to the innocence and illiteracy of opposite party no.2. Due to the acts of the complainant, opposite party no.2 incurred huge loss and that apart he is unable to sell the property to third party in view of the existence of the Agreement of Sale in favour of the complainant. Opposite party no.2 spent huge 5 amounts for the construction of house and obtained building permission, electricity connection, bore well and drinking water connection etc. With the above contentions, the opposite party no.2 prayed to dismiss the complaint with exemplary costs of Rs.1 lakh.
06). Before the District Commission, during the course of enquiry to prove his case, the complainant filed his evidence affidavit and got marked Exs.A1 to A4 on his behalf. On behalf of the opposite parties, opposite party no no.2 filed his evidence affidavit and got marked Ex.B1.
07). The District Commission after considering the material borne by record allowed the complaint in part as stated supra at the threshold.
08). Aggrieved by the said order, the appellant/opposite party no.2 preferred the present appeal with the following grounds:
Order of the District Commission is contrary to law and facts of the case, as such the same is liable to be set aside;
The District Commission ought to have dismissed the complaint as not maintainable, as the complaint is bad for non joinder and mis-joinder of parties ; The District Commission ought to have taken into consideration the documents filed by the appellant/opposite party no.2 that he is an absolute owner and possessor of the semi finished house of the subject property;
The District Commission failed to observe that appellant/opposite party no.2 is neither a developer nor a builder;
The District Commission failed to see that the respondent/complainant has not filed any proof or any proper document to show that the subject plot is notified as WAKF property;
The District Commission failed to observe that the appellant/opposite party no.2 obtained house 6 construction permission vide proceedings no. no.G.P.BD/479/14-15, dated 24.3.2015; The District Commission failed to see that Ex.B1 is approved sanction housing loan of Rs.35 lakhs in favour of one Mr.Vijay Kumar by the LIC Housing Finance Ltd. for the adjacent plot of the subject plot;
The District Commission failed to see that
appellant/opposite party no.2 spent huge amount for
construction of the house by obtaining building
permission, electricity connection, borewell, drinking
water connection .
With the above grounds, the appellant/opposite party no.2 prayed this Commission to allow the appeal and set aside the impugned order passed in C.C.No.185/2015 dt.01.05.2018 by the District Commission, Ranga Reddy and consequently to dismiss the complaint with costs throughout .
09). Heard the arguments of the appellant/opposite party no.2.
The arguments of R1/complainant are treated as heard in view of the condition that if R1/complainant fails to advance the arguments, his arguments will be treated as heard since this appeal relates to the year 2018. The appellant /opposite party no.2 by and large reiterated his stand which was pressed in the written statement and in his evidence affidavit.
10). The point that arises for consideration is whether the impugned order passed by the District Commission suffers from any error or irregularity or whether it is liable to be set aside or modified or interfered with in any manner? To what relief?
11). To decide the point for consideration, we have scrupulously and meticulously examined the whole material borne by record and the same would manifest that it is an admitted fact that the respondent/complainant paid sum of Rs.50,000/- towards token amount for the registration of the plot and also paid Rs.10 lakhs towards part sale consideration for the purchase of plot bearing nos.126 part and 127 part in Survey no.5 admeasuring 150 sq.yards located at Miyapur Village, Boduppal Gram Panchayat, Ghatkesar Revenue Mandal, Ranga Reddy Dist.
7It is the specific case of the respondent/complainant that he approached the Bank of India, Malkajgiri Branch for availing home loan for a sum of Rs.24 lakhs for which the Bank Manager asked to submit the property documents and complainant submitted the same. After verification of property document, Senior Branch Manage of Bank of India on 7.4.2015 informed the respondent/complainant that they have verified the said property documents with the Sub-Registrar, Narapally and came to know that the land in Survey no.5 which belongs to appellant/opposite party no.2 is notified as WAKF property and the Manager informed him that the bank cannot give loans for buying notified WAKF properties and also informed that appellant/opposite party no.2 has not obtained construction permission from the concerned authorities for constructing the plot and illegally sold the plot to the respondent/complainant, further the Manager also cautioned the respondent/complainant to ask the appellant/opposite party no.2 to obtain No Objection Certificate form WAKF Board and property construction approval letters from the concerned authorities before the respondent/complainant again approach the Bank for availing home loan. On knowing the said facts from the Branch Manager, the respondent/complainant asked the appellant/opposite party no.2 about the same, but appellant/opposite party no.2 did not give proper reply. The respondent/complainant got issued legal notice to appellant/opposite party no.2 on 6.4.2015, but there is no response from them.
But on the other hand, it is the version and e vidence of appellant/opposite party no.2 that he is the absolute owner of subject plot as he purchased the same. After purchase of the said plot he made an application to Boduppal Gram Panchayat for construction of building over the above schedule property. He obtained sanction of the permission from the Boduppal Gram Panchayat, Ghatkesar Mandal, R.R.Dist. vide Proceedings no.G.P. Bd/479/14-15 dated 24.3.2015. The said building permission was accorded by the Executive Officer, Boduppal Gram Panchat. Infact he started the construction and made an application subsequently for obtaining the building permission from Gram Panchayat, Boduppal and while construction work was in progress, he obtained the said permission and completed the construction of 8 house by the time he entered into Agreement of Sale with the respondent/complainant and two others.
12). At the cost of repetition, it is to be made clear that it is the consistent version and evidence of the respondent/complainant when he sought explanation from appellant/opposite party no.2 after knowing from the Bank Manager that the subject plot which belongs to appellant/opposite party no.2 was notified as WAKF property and appellant/opposite party no.2 has not applied for the Building Permission and he sought clarification about the same, asking him to get No Objection Certificate from the WAKF Board and construction permission letter from the concerned authorities, but the same proved like 'flogging the dead horse', as there is no proper reply from the appellant/opposite party no.2.
Ex.A4 -Cash Receipt shows that the appellant/opposite party no.2 issued the said receipt evidencing the receipt of Rs.50,000/- from the respondent/complainant towards token advance for the subject plot, the sale consideration of which is Rs.34 lakhs. Ex.A2 is the Agreement of Sale dt.23.2.2015 . A perusal of the same shows that the appellant/opposite party no.2 executed the said Agreement of Sale in favour of the respondent/complainant, his son and daughter. In Ex.A2 Agreement of Sale, it is mentioned that total sale consideration for the subject plot is Rs.34 lakhs and the respondent/complainant has paid a sum of Rs.10 lakhs towards part sale consideration besides token amount of Rs.50,000/- and the said Rs.10 lakhs was paid by the respondent/complainant to the appellant/opposite party no.2 in cheque and cash i.e. a sum of Rs.5 lakhs by way of cheque bearing no.000006 dt.23.2.2015 drawn on Bank of India, Malkajgiri Branch, Hyderabad and other sum of Rs.5 lakhs by way of cash. It is also mentioned in the said Agreement of Sale that the respondent/complainant agreed to pay the remaining balance amount of Rs.24 lakhs within a period of 45 days from the date of Agreement of Sale. The appellant/opposite party no.2 except contending that he has obtained building permission from the Executive Officer of Boduppal Grampanchayat, Ghatkesar Revenue Mandal, R.R.Dist., has not filed the same before the District Commission which is best piece of documentary evidence to prove his contention about obtaining the said building permission. As 9 seen from the material borne by record, the respondent/complainant filed Ex.A3 - Verification Certificate dt.7.4.2015. A perusal of the same shows that it is a letter/verification certificate addressed by one Advocate- M.Saidaiah to the Senior Branch Manager, Bank of India, Malkajgiri, Hyderabad wherein the said advocate categorically mentioned that he has verified the copies of the documents relating to property that is semi finished house in plot nos.126 part and 127 part in Survey no.5 with the land admeasuring 150 sq.yards situated at Miyapur Village, Boduppal Gram Panchayat, Ghatkesar Revenue Mandal, R.R.Dist. which property was proposed to be purchased by Sri P.Somaiah (respondent/complainant) and others and after verification of the same with the records of Sub- Registrar of Narapally, he found that the land in Survey no.5 of Miyapur, Boduppal Gram Panchayat is notified as WAKF property. At this juncture, it is to be mentioned that appellant/opposite party no.2 neither denied nor disputed the said Ex.A3 Verification Certificate and he also not led any rebuttal evidence to establish the fact that the said property was not notified as WAKF property. If the said property is not notified as WAKF property, what pre vented the appellant/opposite party no.2 to obtain No Objection Certificate from the WAKF Board so as to sell it to the respondent/complainant. The law is settled that non rebuttal of crucial evidence submitted by the respondent/complainant amounts to admission of the same i.e. the contents of Ex.A3. Thus from the above, it is clear that appellant/opposite party no.2 has not obtained No Objection Certificate from the WAKF Board nor he obtained Building Permission Approval Letter from the competent authorities, but by playing fraud he sold the said property to the respondent/complainant, his son and daughter under Ex.A2 Agreement of Sale and received Rs.10,50,000/- from the respondent/complainant. It is also to be observed here that to the legal notice got issued by the respondent/complainant, appellant/opposite party no.2 has not issued any reply and the same also amounts to admission of the contents of the said notice which manifest the version of the respondent/complainant. Having considered the material evidence borne by record vide evidence affidavit of PW.1 and Exs.A1 to A4, we are of the considered view that the respondent/complainant has established his case, but on 10 the other hand the appellant/opposite party no.2 has miserably failed to substantiate his version. Ex.B1 which was filed by the appellant/opposite party is a copy of major terms and conditions of House Loan of LIC HFL which is in the name of one Vijay Kumar Kandula and the same has no nexus to the facts of the case. Having received the part sale consideration of Rs.10,50,000/- , non obtaining No Objection Certificate from WAKF Board and non obtaining building permission plan from the competent authorities for the subject plot and non giving of proper reply to the legal notice of the respondent/complainant, in our considered view amounts to unfair trade practice and deficiency of service on the part of appellant/opposite party no.2, as such, we are of the considered view that the complaint of the respondent/complainant deserves to be allowed with certain modifications with regard to interest awarded. As per the settled law of Hon'ble Supreme Court, rate of interest is to be awarded @ 9% , but the District Commission awarded interest @ 12% . As such, the same is modified from 12% to 9%.
13). In the result, the appeal is partly allowed by modifying the order of the District Commission as under:
i. The appellant/opposite party no.2 is directed to refund an amount of Rs.10,50,000/- with interest @ 9% p.a. from 23.2.2015 till realization; ii. The compensation and costs awarded by the District Commission is hereby confirmed;
iii. The order of default interest awarded by the District Commission is set aside.
Sd/- Sd/-
MEMBER(J) M EMBER(NJ)
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Dated 9.5.2024