State Consumer Disputes Redressal Commission
M/S. Sai Vigneswara Builders, Rep. By ... vs .Ramireddy Lalithamma,W/O.Late Appa ... on 15 May, 2013
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD. F.A.No.137/2013 against C.C.No. 441/2011 Dist. Forum-I, Visakhapatnam. Between: M/s. Sai Vigneswara Builders, Rep. by its Partner Eti Tirumala Chakrapani, S/o.Rama Krishna Rao, Hindu, aged 42 years, Residing at D.No.39-8-72, Sector-8, Muralinagar, Visakhapatnam- 530 007. Appellant/ Opp.party no.1 And 1.Ramireddy Lalithamma,W/o.late Appa Rao, Hindu, aged 81 years, residing at D.No.49-26-64, Madhuranagar, Visakhapatnam-530 016. Respondent/ Complainant 2. Smt .Eti Dhana Lakshmi, W/o.Tirumala Chakrapani, Hindu, aged 39 years, Residing at Visakhapatnam. Respondent/ Opp.party no.2 Counsel for the Appellant : M/s.V.Saravanna Counsel for the Respondents : M/s.P.Durga Prasad QUORUM: SMT.M.SHREESHA, HONBLE INCHARGE PRESIDENT And SRI S.BHUJANGA RAO, HONBLE MEMBER.
WEDNESDAY, THE FIFTEENTH DAY OF MAY, TWO THOUSAND THIRTEEN Oral Order : (Per Sri S.Bhujanga Rao, Honble Member).
*** This appeal is directed against the order dt.12.9.2012 of the District Forum-1,Visakhapatnam made in C.C.No.441/2011.
The appellant is the opposite party no.1 and the respondent no.1 is the complainant and the respondent no.2 is the opposite party no.2 in the complaint filed by the complainant seeking direction to the opposite party to pay an amount of Rs.10 lakhs towards the non refundable advance amount as per the agreements and also pay Rs.2 lakhs towards the damages for causing mental agony to the complainant besides costs.
For the sake of convenience, the parties are described as arrayed in the complaint.
The brief case of the complainant is that the complainant and her children are absolute owners of 450 sq.yards covered by Sy.No.53/P Allipuram Ward, Plot no.35 of NGGOs Society Colony, situated at Madhura Nagar,Visakhapatnam.
Opposite party no.1 is the builder, opposite party no.2 is the wife of Eti Thirumala Chakrapani who is the partner of the opposite party no.1 and they are relatives.
On several requests by the opposite parties, the complainant and her children entered into development agreement on 16.11.2006 and also another two development agreements on 28.12.2006 and 5.1.2007 and last development agreement was registered one with GPA, which covers some additional developments.
As per the development agreement, the opposite parties have agreed to construct multistoried building to be shared equally by the owner and the builder and the opposite parties further undertook to pay a compensation of Rs.15,000/- per month to the complainant towards alternate accommodation for 10 months from the date of registered development agreement. As per the Development Agreement, the constructions would be completed within 18 months and the opposite parties agreed to pay Rs.18,000/- if they failed to construct the same within the said period.
The opposite party paid an amount of Rs.1,50,000/- towards rent for 10 months and the same was endorsed by the complainant on the back side of the agreement dt.28.12.2006. Subsequently, the opposite party paid an amount of Rs.1,80,000/- for 10 months and Rs.36,000/- for another two months. In addition to that, the opposite parties agreed to pay Rs.10 lakhs to the complainant as non refundable amount as the complainant has no residential unit in the said construction and the second opposite party also agreed to pay interest on the said amount.
The opposite parties have handed over the flats to the children of the complainant without complying the building construction specifications as agreed by the opposite parties, deliberately cheated the complainant as they did not give non refundable amount. The complainant suffered lot of mental agony and also financial loss, as the opposite party failed to pay the agreed amount inspite of repeated requests and demands. Hence the opposite parties are liable to pay the full amount for causing mental agony. The failure on the part of the opposite parties to pay the non refundable amount to the complainant as per the Development and Construction agreement clearly amounts to deficiency in service on their part. Hence the complaint.
Resisting the complaint, the opposite parties filed counter/written version denying the material allegations made in the complaint and contended that there was an arbitration clause in the registered agreement dt.5.1.2007 and thus the complaint is not maintainable under law as the District Forum has no jurisdiction. The opposite parties further contended that the complainant does not come under definition of complainant under C.P.Act and hence the complaint is liable to be dismissed. The complainant also does not come under the definition of consumer within the meaning of the Act. The document dt.20.11.2008 filed by the complainant was executed by opposite party no.2 in different context and it is no way connected to the terms of the Development Agreement or the issue involved in present case. Opposite party no.2 has taken Rs.10 lakhs from the complainant in her individual capacity in the month of August,2007.
The opposite parties further contended that the complainant cannot approach Consumer Forum for performance of this contract under development agreement dt.5.1.2007. The opp.parties never intended to make any payment of Rs.10 lakhs. Thus there is no deficiency in service at all on the part of the opposite parties. Hence the complaint is not maintainable. Infact Jyothish Kumar, son of the complainant borrowed an amount of Rs.2,50,000/-
from Chakrapani and promised to pay the amount along with interest. He also has to pay an additional expenditure incurred by the opposite parties in developing the flat of his choice. The opposite parties incurred additional expenditure towards development of other flats of Panduranga Rao, Bhaskar Rao of their choice and they have to pay their amounts. The complainant has life interest on the property. The opposite parties completed the construction within 18 months as specified in the agreement dt.5.1.2007. Though the opposite parties completed the construction within the said period, in view of the changes suggested in respect of their flats, because of non availability of children of the complainant, the opposite parties could not execute the regular registered sale deeds in favour of the complainants children. Inspite of it, with all magnanimity, the opposite parties have chosen to pay Rs.18,000/- per month till the flats were handed over. The opposite parties never intended to make any payment of Rs.10 lakhs as advance amount. The very development of flat in the site of the complainant and handing over of the built in flats is itself consideration for the sharing of the development activity in 50:50 ratio. Hence the complaint is liable to be dismissed with costs.
At the time of enquiry, both parties have filed affidavits in support of their respective contentions and got marked Exs.A1 to A7 on behalf of the complainants and Ex.B1 on behalf of the opposite parties .
Upon hearing the counsel for both the parties and on consideration of material placed on record, the District Forum allowed the complaint directing the opp.party no.1 to pay Rs.10 lakhs to the complainant with interest at 9% from 13.11.2010 till the date of payment together with costs of Rs.3,000/-.
Challenging the said order, the opposite party no.1 preferred the above appeal urging that the order of the District Forum is contrary to law, weight of evidence and probabilities of the case. That the District Forum failed to appreciate the defence of the opposite party that the opposite party no.2 executed Ex.A5 letter dt.20.11.2008 in a different context and the complainant has claimed relief mainly on Ex.A5 document but not Ex.A4.
That the District Forum failed to see that an amount of Rs.10 lakhs was paid with agreed interest, through Ex.B1 receipt and particularly when there is reference about Ex.A5 in Ex.B1 receipt. Thus the complainant cannot approach Consumer Forum for performance of contract that arose under Ex.A5 letter. That the District Forum failed to see that Ex.A4 is not a registered document and hence Ex.A4 is not admissible in evidence and therefore, the Court cannot consider the contents of the document. That the District Forum failed to see that there is no consumer dispute in this case .That the District Forum failed to observe that one can approach Civil Court or raise arbitration, if there is arbitration clause for adjudication if the dispute is not related to deficiency in service or defect in construction of flats in a collaboration agreement. That the District Forum failed to see that there is no necessity to pay amount much less Rs.10 lakhs to the complainant. The appellants finally prayed for allowing the appeal and to set aside the impugned order.
We heard the counsel for both the parties and perused the material on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
The complainant and her children are absolute owners of 450 sq.yards of site covered by Sy.no.53/P of Allipuram Ward, Plot no.35 of NGGOs Society Colony situated at Madhuranagar, Visakhapatnam, being the legal heirs of Ramireddy Papa Rao, husband of the complainant. The complainant is having life interest and children are having vested remainder holders.The family members entered into Ex.A3 Development Agreement with Power of Attorney on 5.1.2007, in favour of the opposite party no.1, whereunder it has been agreed that the opposite party no.1 as partnership firm, agreed to construct the apartments at his cost with specific terms of sharing the same on 50:50 basis between the owners and the builder. These facts are not in dispute. It is also an admitted fact that prior to Ex.A3 Development Agreement, two agreements i.e. Exs.A1 and A2 between the parties came into existence. However, as rightly contended by the opposite party, in the light of latter registered agreement Ex.A3 between the parties, the prior agreements i.e. Exs.A1 andA2 shall stand superseded.
In addition to the above documents, the complainant has also filed Ex.A5 letter from opp.party no.2 admitting the agreement for payment of Rs.10 lakhs. Now Exs.A3, A4 and A5 remain for consideration .
As seen from the appeal gorunds, the contention of the appellant/opp.party no.1 is that any agreement entered after the registered agreement , creates some rights and obligation on the parties and if it is a supplemental document to the registered document , it is not an admissible document, unless the document is a registered as required under Sec.17(1A) of Registration Act. As such, Ex.A4 being an unregistered document is not admissible document and the contents of Ex.A4 cannot be seen and considered. From the above contents, it is evident that the opp.parties while not disputing the agreements Exs.A1 to A3 between them, did not choose to refer to Ex.A4 agreement dt.5.1.2007 either in its pleadings or in evidence.
There is neither admission nor denial of Ex.A4 in the counter filed by opposite party no.1 and in his evidence. The relief claimed in the complaint is with regard to payment of Rs.10 lakhs to be made as per Ex.A4 agreement dt.5.1.2007 by the opposite parties 1 and 2 and payment of compensation of Rs.2 lakhs as damages besides costs. The complainant is not seeking any declaration of his title, in the complaint. Simple procedure is contemplated for enquiry of the complaint filed under Consumer Protection Act. No procedural Acts like CPC, Evidence Act are applicable to the proceedings under the Consumer Protection Act. The Registration Act is also not applicable to the complaints filed under Consumer Protection Act. Under these circumstances, we are not inclined to accept the above contention of the appellant/opposite party no.1 regarding admissibility of Ex.A4. We are of the view that Ex.A4 has been proved by the complainant and hence the same cannot be ignored on the ground that it was not admissible in evidence. We can go through the contents of Ex.A4 to decide the issues involved in this complaint. Ex.A4 agreement was between the complainant and her children on one hand and opposite party no.1 and opposite party no.2 who is none other than the wife of T.Chakrapani who is representing the first opposite party on the other hand. This agreement would specify the flats allotted to 5 children of the complainant. Condition no.(E)would specifically provide that an amount of Rs.10 lakhs should be paid on completion of the first floor. The other conditions are that the construction should be completed as per GPA and that the car parking should be shared between the parties. It is significant to note that though the opposite party no.2 did not join opposite party no.1 to execute Ex.A3 agreement, opp.party no.2 joined opposite party no.1 in execution of Ex.A4. A reading of Ex.A4 with reference to Ex.A3 and A1 and A2 made it clear that the opposite parties agreed to pay Rs.10 lakhs to the complainant at the completion of the first floor. Since as observed by the District Forum, the flats in the apartment constructed are allotted to the children of the complainant, but no flat is allotted to the complainant. Therefore, the District Forum has not committed any mistake or error in coming to the conclusion that the opposite parties agreed to pay Rs.10 laksh to the complainant.
The specific case of the opposite parties is that the opposite party no.2 borrowed an amount of Rs.10 lakhs from the complainant for her personal purpose on 20.11.2008 and repaid the same by making payment of Rs.15 lakhs out of Rs.15,40,000/- towards full settlement, to the complainant and obtained Ex.B1 receipt from her, which was attested by one Jyothish Kumar, one of the sons of the complainant. They simply denied that they agreed to pay Rs.10 lakhs to the complainant. The complainant took up the stand that Ex.B1 is a fabricated document created by the opposite party. As rightly observed by the District Forum, no evidence has been adduced by the complainant to show that Ex.B1 is fabricated document. Under these circumstances, we do not find any reasons to disbelieve Ex.B1.The contents of Ex.B1 clearly shows that the amount covered by Ex.B1 is entirely different from the amount agreed to be paid under Ex.A4. The opposite parties have not categorically denied Ex.A4 and the same was admitted by the opposite parties.
On the other hand, Ex.B1 letter relates to some other transaction between the complainant and opposite party no.2. It is an admitted fact that both the complainant and opposite parties are close relatives. As seen from the impugned order of the District Forum, the appellant/opp.party no.1 raised the same contention which he raised before this Commission that in view of the arbitration clause in the agreement, the matter has to be referred for arbitration and the complaint under Consumer Protection Act is not maintainable and that there is no relationship of consumer and service provider between the complainant and opposite party and the District Forum answered both the contentions in the negative. It is well settled principle of law that even if there is arbitration clause in the agreement, any party to the agreement may opt for arbitration or approach Consumer Forum for redressal. In this case, admittedly the case was not referred to any arbitrator for settlement. Therefore, the complaint filed by the complainant under the provisions of Consumer Protection Act is maintainable under law and from Ex.A3 and A4 we are of the firm view that there is relationship of consumer and service provider between the complainant and the opposite party, as such the complaint is maintainable under law.
Having regard to the facts and circumstances discussed above, we are of the view that there is deficiency in service on the part of the opposite party and we do not find any irregularity or illegality in the impugned order of the District Forum to interfere with it. Hence the appeal fails.
In the result, appeal is dismissed confirming the order of the District Forum. The appellant/opposite party no.1 is directed to pay Rs.5000/- towards costs of this appeal to the respondent/complainant.
INCHARGE PRESIDENT MEMBER Pm* Dt. 15.5.2013