State Consumer Disputes Redressal Commission
1. L.Jayarama Naidu S/O L.J.Lingama ... vs M/S Guru Raghavendra Constructions on 11 June, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD C.C.NO.2 OF 2012 Between: 1. L.Jayarama Naidu S/o L.J.Lingama Naidu Aged about 40 yrs, Occ: Business 2. Smt S.Sandhya W/o L.Jayarama Naidu Aged about 34 yrs, Occ: Housewife Both R/o Plot No.14, Venkata Sai Homes, Near Chaitanya Junior College Hostel Nizampet Road, Hyderabad Complainants A N D 1. M/s Guru Raghavendra Constructions rep. by its Managing Partner Mr.M.Chandramouli S/o late M.Lakshminarayana office at Beverly Palms, Sy.No.332/2 Nizampet, Kukatpally, Hyderabad 2. Manchikanti Chandramouli S/o late M.Lakshminarayana aged about 38 years, M.Partner, R/o Flat NO.101, Megacity Residency M.No.3-4-615, Narayanaguda Hyderabad 3. M/s Bharati Estates rep. by its M.Partner Mr.G.V.Satya Sai office at MIG-219, 1st Floor, KPHB Colony Kukatpally Hyderabad (Deleted) Opposite parties Counsel for the complainant M/s B.Ravishankar Counsel for the opposite parties M/s P.Rajasripathi Rao QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER TUESDAY THE ELEVANTH DAY OF JUNE TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The complaint is filed claiming refund of `26,69,000/- with interest @ 12% per annum and `5 lakhs towards compensation, a sum of `17,280/- per month towards delayed construction of the house.
2. The averments of the complaint are that the third and fourth opposite parties are the legal heirs of one T.K.Ramachandra Sharma who was assigned ten acres of land in Sy.No.332 at Nizampet Village, Qutbullapur Mandal, R.R.District, by the Government of Andhra Pradesh and the opposite party 3 and 4 entered into development agreement with the opposite parties no.1 and 2 for development of the land and construction of 87 duplex houses in gated community known as Beverly Parlms. The complainants entered into agreement of sale with the opposite parties no.1 and 2 for purchase of duplex house on plot no.19 admeasuring 3456 sft, two car parking spaces for consideration of `1,20,00,000/- at the time the house was in semi-finished condition. The complainants paid `5 lakhs through cheque dated 7.12.2009 and a sum of `10 lakhs on 27.12.2009 and an amount of `25 lakhs to the first opposite party.
3. The complainants paid the amount under oral agreement and the opposite parties no.1 and 2 prepared agreement of sale on 25.2.2010 which was signed on 10.5.2010 and thereafter the complainants paid a sum of `10 lakhs through cheque and thereafter an amount of `10 lakhs and `7 lakhs on different occasions a total sum of `67 lakhs to the opposite parties. The State Bank of India Jubilee Hills Branch sanctioned housing loan of `35 lakhs to the complainants and a cheque for `25 lakhs was prepared to disburse loan as first instalment. The opposite parties postponed further construction of the house and thereby the release of further loan instalments was not made by the bank. The opposite parties avoided to execute sale deed stating that the construction work would be completed within two years. The complainants requested the bank to cancel the sanctioned loan and paid `1,69,000/- on `33,00,000/- towards interest. The opposite parties no.1 and 2 on 4.2.2011 agreed to refund the amount of `67 lakhs and `1,69,000/-
paid by the complainants towards interest to the bank on or before 20.2.2011. The opposite parties paid the amount of `42 lakhs on different occasions and failed to pay the balance amount of `26,69,000/- as also denied to pay the amount.
4. The opposite parties failed to provide the amenities such as roads, greenery, jogging track, swimming pool, pipe line gas etc., mentioned in the agreement of sale and rendered deficient service. The opposite parties failed to pay `17,280/- per month for the delayed period mentioned in the agreement of sale. The opposite parties failed to complete the construction of the house and return the entire amount to the complainants.
5. The opposite parties no.1 and 2 resisted the claim by filing counter affidavit and stated that the second opposite party is the managing partner of the first opposite party firm and entered into development agreement with GV Satya Sai, who entered into agreement of sale cum GPA with the opposite parties no.3 and 4, the legal heirs of T.K.Ramachandra Sharma. The complaint is not maintainable. The relief sought for recovery of the amount is not amenable to the jurisdiction of the Consumer Forum. The complaints are not consumers as defined under the C.P.Act.
There is no deficiency in service on the part of the opposite parties no.1 and 2. The complainants, towards part payment of amount under oral agreement for purchase of duplex house in Beverly Palms, paid a sum of `5 lakh through cheque on 7.12.2009 and Rs.10 lakh through two cheques on 27.12.2009 and paid `25 lakhs in cash a total amount of `50 lakh to the opposite parties no.1 and 2.
6. The opposite parties no.1 and 2 issued receipt on 10.5.2010 acknowledging receipt of amount of `50 lakhs from the complainant. The opposite parties no.1 and 2 entered into agreement of sale with the complainants on 25.2.2010. As per clause 5 of agreement of sale, the opposite parties no.1 and 2 agreed to handover duplex house to the complainants on 28.2.2011 with a grace period of three months. In accordance with the progress of construction of house, the complainants paid a sum of `10 lakhs on 10.6.2010 and an amount of `40 lakh on 10.6.2010 and requested the opposite parties not to deposit the cheque as they were running short of funds.
7. The complainants informed the opposite parties no.1 and 2 that they were making effort to get loan from the bank for payment of the balance sale consideration. The complainants paid an amount of `10 lakhs and `7 lakhs through cheques on two different occasions. The complainants paid a total amount of rs.67 lakhs and they were still due the balance sale consideration which was not paid on pretext or the other despite several reminders of the opposite parties no.1 and 2.
8. The complainants expressed their inability to proceed further with the purchase of the house as they were not in a position to pay the balance sale consideration of the house and requested the opposite parties no.1 and 2 to return the amount paid by them. The opposite parties no.1 and 2 informed them that they will be in a position to return the amount paid by the complainants only on getting a new buyer for the house and accordingly issued letter dated 4.2.2011 and the opposite parties no.1 and 2 agreed to pay nominal amount towards interest amounting to `1,69,000/-.
9. The first complainant addressed letter dated 5.12.2011 to the opposite parties no.1 and 2 that on receipt of `68,69,000/-
on or before 20.02.2011 they would return the agreement of sale dated 25.2.2010 to the opposite parties no.1 and 2. The opposite parties no.1 and 2 sold the house to C.Vijaya Lakxmi on 13.4.2011 and returned the amount on 14.4.2011 to the complainants. The first complainant acknowledged receipt of the amount of `68,69,000/- and promised to return the original copy of agreement of sale. The complainants encashed the cheques issued by the opposite parties no.1 and 2. The complainants had not filed the letter dated 14.4.2011 which was addressed by the first complainant to the opposite parties no.1 and 2 showing issue of cheques on 26.4.2011 for `32 lakhs and the cheque dated 16.4.2011 for `10 lakhs. The opposite parties are not aware of sanctioning of housing loan by state Bank of India, Jubilee Hills Branch Hyderabad to the complainants. The opposite parties are not due any amount to the complainants and there was no deficiency in service on the part of the opposite parties. Hence, prayed for dismissal of the complaint.
10. The first complainant has filed his affidavit and the documents, Exs.A1 to A8. The opposite party no.2 has filed his affidavit and the documents, Exs.B1 to B7
11. The point for consideration is whether there was any deficiency in service on the part of the opposite parties?
12. It is beyond any dispute that the opposite parties no.3 and 4 are the owners of the land measuring 10 acres in Sy.No.332 situated at Nizampet Village of Qutbullapur Mandal R.R.District and they entered into development agreement with the opposite parties no.1 and 2 for development of land and construction of 87 duplex houses in the gated community, Beverly Palms. It is not disputed that the complainants entered into agreement of sale with the opposite parties no.1 and 2 for purchase of H.No.19 in Beverly Palms from the opposite parties no.1 and 2 for consideration of `1,20,00,000/- The complainants claimed for the amount paid by them and the opposite parties contended that they had made refund of the amount.
13. The complainants and the opposite parties no.1 and 2 are at dispute in regard to the quantum of amount refunded by the opposite parties no.1 and 2 to the complainants. The opposite party no.2 on behalf of the opposite partyno.1 firm addressed letter to the first complainant on 4.2.2011 agreeing to refund an amount of `67 lakhs paid by the complainants towards consideration for purchase of villa no.19 in Beveerly Palmx as also the opposite parties no.1 and 2 agreed to pay a sum of Rs.169,000/- to the complainants towards the interest that was charged by the State Bank of India. The letter reads as under:
On this Day 4th Feb 2011, I, M.Chandramouli, Managing partner, Gurughavendra Constructions agree to refund Rs.67,00,000/- (Rupees Sixty Seven Lakhs only) taken from you towards the purchase of Villa No.19 in our project Beverly Palms located at Nizampet. IN addition I agree to refund Rs.1,69,000/- (rupees one lakh sixty nine thousand only) towards Bank interest charges incurred by you.
I agree and confirm that the total amount of Rs.68,69,000/- Rupees sixty Eight Lakhs Sixty Nine thousand) will be paid to you on or before 20th Feb 2011 without fail.
14. The complainants have stated that they have paid `5 lakhs through cheque dated 7.12.2009 and a sum of `10 lakhs on 27.12.2009 and an amount of `25 lakhs to the first opposite party. They paid a sum of `10 lakhs to the opposite parties through cheque No.514692 a sum of `10 lakhs and `7 lakhs on two different occasions and a total amount of `67 lakhs to the opposite parties no.1 and 2.
The opposite parties no.1 and 2 have not denied and in fact stated that the complainants paid a sum of `5 lakhs through cheque bearing No.186437 dated 7.12.2009, `10 lakhs through two cheques dated 27.12.2009 and further amount of `25 lakhs in cash as also a sum of `10 lakhs through cheque dated 10.5.2010, a total amount of `50 lakh and there after an amount of `17,69,000/-.
15. Thus, according to the version of the complainants, they paid an amount of `67,69,000/- and the same amount is admitted by the opposite parties who had received by the complainants. The complainants have stated that the opposite parties returned the amount of `42 lakh and assured the complainants that they would pay the balance amount of `26,69,000/- which was subsequently denied to be paid to them. The opposite parties no.1 and 2 have stated that they paid the amount of `67,69,000/-
to the complainants and the first complainant acknowledged receipt of the amount and assured to return the original agreement of sale by addressing letter dated 14.04.2011. The complainants denied execution of the documents.
16. The learned counsel for the complainants has contended that on 14.4.2011 the complainant no.1 was not in India and he returned to India on 16.4.2011. It is contended that the opposite parties no.1 and 2 fabricated the document and the complainants filed criminal case against the opposite parties no.1 and 2 before the court of IX MMC Miyapur. A perusal of the complaint filed u/s 200 Cr.P.C. by the complainant no.1 would show that the complainants has stated in the complaint that the opposite parties no.1 and 2 filed the letter dated 14.4.2011 by fabricating it and at the time of entering into agreement of sale with the opposite parties no.1 and 2 they obtained the first complainants signature on blank white paper stating that it was required for them to act on behalf of the frist complainant at the office of Registrar for the purpose of purchase of stamp papers and payment of amount in the bank and that the second opposite party misused the document dishonestly and fraudulently.
17. A perusal of the document, letter dated 14.4.2011 would show that the first complainant confirmed the factum of purchase of house and payment of `67 lakh as also receipt of `68,69,000/- from the opposite party no.1 and 2. The complainants disputed the document on the premise that it was fabricated by the opposite parties no.1 and 2 by obtaining his signature on blank paper. The letter reads as under:
I Here by Confirm That Upon Realization of Following Payments (Cash + Cheques) for total Amount of Rs.67,00,000/- (Rupees Sixty Seven Lakhs) and Bank Interest of Rs.1,69,000/- (Rupees one Lakh Sixty Nine Lakhs Only) Total together Rs.68,69,000/- (Rupees Sixty Eight Lakhs Sixty Nine Thousand) On or Before 26.04.2011, I will release Villa No.19 in Beverlypalms and return all Original Copies of Agreement of sale.
Cash Rs.15,00,000/- (Rupees Fifteen Lakhs Only) has been Paid on 14.04.2011 and Rs.1,69,000/- (Rupees one Lakh Sixty Nine Thousand Only) has been paid on 14.04.2011 Balance Payments yet to be Paid Rs.10,00,000/-
(Rupees Ten Lakhs Only ) Cheque No.400702 Drawn on Axis Bank Dated 16.04.2011 Rs.10,00,000/-
(Rupees ten Lakhs Only) Cheque No.400703 Drawn on Axis Bank Dated 26.04.2011 Rs.10,00,000/-
(Rupees ten Lakhs Only) Cheque No.400704 Drawn on Axis Bank Dated 26.04.2011 Rs.12,00,000/-
(Rupees twelve Lakhs Only) Cheque No.400705 Drawn on Axis Bank Dated 26.04.2011 Rs.10,00,000/-
(Rupees ten Lakhs Only) Cheque No.400704 Drawn on Axis Bank Dated 27.04.2011
18. Since the parties are at dispute as to the document dated 14.4.2011 which according to the opposite parties no.1 and 2 supports their case that the complainants received the entire amount paid by them together with a sum of `1,69,000/- towards the interest on the amount sanctioned towards housing loan by the State Bank of India whereas the complainants claim that the document was fabricated though the signature on the document pertains to the first complainant. Apart from the document, the opposite parties no.1 and 2 had stated that the complainants had encashed the cheques issued by them which has not been denied by the complainants. Such facts which are complex and complicated in nature require elaborate evidence in the form of examination and cross examination of witnesses which is not possible and permissible in summary proceedings before this Commission. It is pertinent to note that a case filed by the complainants is pending investigation by the police in this regard.
19. The aforementioned complicated and complex questions involved in the subject matter can be addressed on detailed examination of the witnesses and the documents which is not possible in summary proceedings before this Commission.
20. In Synco Industries Vs State Bank of Bikaner & Jaipur and others, I (2002) CPJ 16 (SC) the Honble Supreme Court held that the matter involving complex questions of complicated nature can only be addressed by Civil Court where elaborate examination and cross examination of the witnesses is possible. The Supreme Court observed The National Commission was right in giving to the appellant liberty to move the Civil Court. This is an appropriate claim for a Civil Court to decide and, obviously, was not filed before a Civil Court to start with because, before the Consumer Forum, any figure in damages can be claimed without having to pay court fees. This, in that sense, is an abuse of the process of the Consumer Forum.
21. For the fore going reasons, we are of the considered opinion that the complaint cannot be entertained by Consumer Forum and the parties are to be relegated to the Civil Court. In the circumstances, this Commission is inclined to give opportunity to the complainants to seek redressal of their grievance before a civil court.
22. In the result, complaint is dismissed with liberty to the complainants to approach the Civil Court or any other Forum. In the event the complainants approach the Civil Court or any other Forum, the period spent between the filing of the claim before the District Forum and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Honble Supreme Court in Trai Foods Ltd vs National Insurance Company Ltd and others reported in III (2012) CPJ 17.
MEMBER MEMBER Dt.11.06.2013 కె.ఎం.కె.* APPENDIX OF EVIDENCE WITNESSES EXAMINED For complainant for opposite parties NIL NIL EXHIBITS MARKED Ex.A1 Agreement of sale Ex.A2 Undertaking letter for refund of amount Ex.A3 Letter from SBI enclosure of Home Loan account Ex.A4 Receipt issued by the opposite party Ex.A5 Receipt issued by the opposite eparty Ex.A6 State Bank letter along with statement of account Ex.A7 Passport attested notarized copy Ex.A8 Complained filed before IX MM office copy For opposite parties Ex.B1 Sale Deed Ex.B2 Cheque No.400705 Ex.B3 Cheque No.400704 Ex.B4 Cheque No.400703 Unmarked documents
1. Cheque No.400702
2. Letter
3. Letter MEMBER MEMBER