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Ambuj Shukla v/s M/s. Aashray Properties, Andhra Pradesh & Others

    First Appeal No. 322 of 2013
    Decided On, 21 April 2022
    At, National Consumer Disputes Redressal Commission NCDRC
    By, THE HONOURABLE MR. JUSTICE RAM SURAT RAM MAURYA
    By, PRESIDING MEMBER
    For the Appellant: D.P. Chaturvedi, Advocate. For the Respondents: Nemo.


Judgment Text
1. Heard Mr. D.P.Chaturvedi, Advocate for the appellant. Although the appeal was taken up in revised call but no one appeared, for the respondents.

2. The complainant has filed above appeal from the order of State Consumer Disputes Redressal Commission, Andhra Pradesh, dated 25.02.2013, passed in Complaint Case No.20 of 2012, partly allowing the complaint and directing the opposite parties to refund Rs.2015000/-, the principal amount with compensation of Rs.50000/- and cost of Rs.5000/- to the appellant.

3. Ambuj Shukla (the appellant) filed CC/20/2012 for directing the respondents (i) to refund Rs.2710000/- with interest @24% per annum from the date of deposit till its payment, less Rs.495000/-; (ii) to pay Rs.500000/- as compensation for mental agony and harassment; (iii) to pay cost of the litigation; and (iv) any other relief which may be deemed fit and proper, in the facts and circumstances of the case.

4. The complainant stated that M/s. Aashray Properties (for short the developer) was a firm and engaged in development and construction of residential and commercial building and selling its unit to the prospective buyers. Vanka Mahender and V. Vinil Naidu (opposite parties-2 and 3) were its managing partner and the partner respectively. The builder launched a project of township and villa in the name of “Ashreya Properties”, at village Kandawada, Mandal Chevalla, district Ranga Reddy, in the year 2007. At that time, the complainant was serving with Satyam Computers in Hyderabad. Opposite parties-2 and 3 approached the complainant and convince him to purchase one villa in the said project. Opposite party-3 was known to the complainant, as such, he reposed confidence in them. They informed that total cost of one villa admeasuring 500 sq. yard, constructed area 3500 sq.ft. as Rs.2710000/. The complainant agreed to invest in the project and time to time deposited Rs.2710000/-, out of which, Rs.20/- lacs was paid to opposite party-1 and Rs.7.10/- lacs was paid to opposite party-3. The complainant, with a view to avail better opportunity in HCL Noida, shifted to Noida from Hyderabad, in June, 2009. During shifting, the receipts issued by the opposite parties were lost. The complainant sent an email to opposite party-3 giving particulars of payments on different dates and requested to issue duplicate copies of the receipts. They used to give assurance for issue of duplicate receipts, time to time but kept the issue pending. In the meantime, the complainant shifted to Bangalore and joined in a French MNC Capgemini. The complainant was throughout in touch of opposite party-3. The complainant came to know that several customers of plot/villa in the said project obtained agreement for sale in their favour. In June, 2011, opposite party-3 told the complainant that the amount paid to him were paid by way of loan and he did not know about the amount paid to opposite party-1. The complainant again provided him the details of the amount deposited with opposite party-1. Then he told that he had talked with opposite party-2, who assured that issue would be settled. The complainant then approached Mr. Kiran Erlapodu, who was known to both the parties and a common friend of them. Mr. Kiran Erlapodu talked with opposite party-2, who informed that as the complainant has not paid full sale consideration in time, due to which, he had suffered loss. He offered the complainant to purchase some other property with a renewed price. Immediately, thereafter opposite party-3 returned Rs.4.95/- lacs to the complainant on different dates during 07.07.2011 to 14.11.2011. The complainant came to know that the project “Ashreya Properties” was abandoned. The complainant gave a legal notice on 23.11.2011 to the opposite parties, calling upon them to pay entire amount of Rs.27.10/- lacs along with interest @24% per annum and Rs.5/- lacs, as the damages. Opposite parties-1 and 2 replied by notice dated 08.12.2011 and stated that they had received only Rs.18/- lacs while cost of the plot of 500 sq. yard was Rs.30/- lacs. As remaining sale consideration was not paid in time, as such, the plot was not allotted to him. The aforementioned complaint was filed in February, 2012, on the allegations that the opposite parties have cheated the complainant and there was deficiency in service.

5. Respondents -1 & 2 filed their written reply on 18.06.2012 and contested the complaint. It has been stated by the respondents that the complainant who was their previous customer, having purchased a plot in the year 2007 agreed to invest in the project Aashray Properties. He was offered price of villa at Rs.27.10 lakhs under early bid offer. Under these scheme of payment, the complainant has to make full payment within 45 days. The complainant issued a Cheque No.6580 dated 29.12.2007, of Rs.1500000/-. At that time the complainant requested to deposit Rs.200000/- in his account, otherwise, the cheque would not be en-cashed due to insufficient fund. On the request of the complainant, the respondents deposited Rs.200000/- on 28.12.2007 in the account of the complainant. After giving the amount of Rs.1300000/- on 29.12.2007, the complainant was required to deposit balance amount of Rs.14.10 lakhs within 45 days, but the complainant has failed to deposit that amount. Thereafter the complainant gave another cheque No.6600 of Rs.500000/- on 22.05.2008. Thereafter, the complainant did not deposit any further amount and remained silent for a period of about three years. As the complainant has committed default in payment, as such, no agreement in favour of the complainant was executed regarding villa in dispute. In the complaint, the complainant has wrongly included deposit of Rs.710000/- with V. Vinil Naidu (respondent-3), towards the sale consideration, although in his email dated 06.06.2011 (page-56), he himself had shown a personal loan to V. Vinil Naidu. Out of which V. Vinil Naidu has returned Rs.495000/- to the complainant, which was admitted in complaint. The complaint has been filed on various false allegations and liable to be dismissed. The complaint was time barred under Section 24-A of Consumer Protection Act, 1986.

6. Respondent-3 filed his separate written reply on 27.06.2012 in which he had admitted that he had taken a personal loan of Rs.710000/- from the complainant out of which Rs.495000/- has been paid to the complainant who had acknowledged it and Rs.215000/- remain to be paid. Various allegations made in the complaint are false. The complainant wanted to purchase a plot from respondent-1 for a total sale consideration of Rs.3000000/- but, he measurably failed to deposit the sale consideration as such deal was not finalized between the parties.

7. The complainant filed Affidavit of Evidence of Ambuj Shukla. The respondents filed Affidavit of Evidence of Vanka Mahender and Affidavit of Evidence of V. Vinil Naidu. All the parties filed their written submissions. State Commission after hearing the arguments of the parties by order dated 25.02.2013 held that payment of Rs.1800000/- to respondents-1 & 2 and Rs.710000/- to respondent -3 are not disputed. It is admitted to the complainant that respondent-3 refunded Rs.495000/. However, the complainant has not paid full consideration to respondents-1 & 2, as such, both the parties have committed contributory negligence. In such circumstances, the interest on refund was not payable. On these findings, the complaint was partly allowed and respondents were directed jointly and severally to refund an amount of Rs.1800000/- plus Rs.215000/- equal to Rs.2015000/- and a compensation of Rs.50000/- and costs of Rs.5000/- within a period four weeks from the date of receipt of the order. In compliance of the order of the State Commission, Respondents-1 & 2 paid the entire amount to the appellant on 13.04.2013, which has not been disputed.

8. This appeal has been confined for the relief of interest on the amount as refunded by the respondents. The counsel for the appellant relied upon the judgment of Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh, (2004) 5 SCC 65, K.A Nagamani Vs. Housing Commissioner, Karnataka Housing Board, (2015) 16 SCC 587 and Managing Director, Orissa Cooperative Housing Corporation Limited Vs. K.S.Sudarshan, (2016) 16 SCC 501 and submitted that interest of 18% per annum was liable to be paid on the amount of refund, but State Commission has not awarded any interest.

9. I have considered the arguments of the counsel for the appellant and examined the record. It is not disputed that the appellant had paid Rs.710000/- to V. Vinil Naidu (respondent-3), who had returned Rs.495000/- to him before filing the complaint. In the complaint, it has to be examined as who had committed default. The appellant and the respondents both have relied upon an agreement for sell, executed by respondents-1 and 2 in favour of T.A.N. Murti dated 17.03.2008 and Srinivasa Sathanam dated 17.03.2008. From these agreements it is proved that under the scheme of payment entire sale consideration had to be paid within 45 days of the deal between the parties. In the present case, the deal was in December, 2007 and first cheque of Rs.1500000/- dated 29.12.2007 was given by the appellant to respondent -1. Respondents-1 & 2 filed Bank Deposit Voucher/receipt showing that Rs.200000/- was deposited by them in the account of the complainant on 28.12.2007 for encashment of the cheque. Out of sale consideration of Rs.2710000/- only Rs.1300000/- were paid on 29.12.2007 and remaining Rs.1410000/- had to be paid within 45 days from 29.12.2007. The appellant has failed to pay sale consideration in the stipulated period, as such the contract was not materialized between the parties. If the appellant had not paid full sale consideration within stipulated period, then appellant cannot allege that respondents have committed any deficiency in service. The appellant, in e-mail dated 06.06.2011 filed at page 56 of the memo of appeal, has stated that the payment of Rs.710000/- to

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V. Vinil Naidu (respondent-3) was by way of personal loan to him. Out of Rs.710000/-, he had received Rs.495000/- from V. Vinil Naidu. Thus, this payment to V. Vinil Naidu cannot be counted towards payment of sale consideration. Although the appellant has himself committed default/breach of contract even then State Commission has awarded Rs.50000/- as compensation and Rs.5000/- as cost of the litigation which has been paid to the appellant. In the absence of any deficiency of service on the part of the respondents, the complaint ought to have been dismissed. The appellant has not given any loan to respondents-1 and 2 and is not entitled for any interest from them. After giving cheque dated 22.05.2008, the appellant remained silent for about three years. As such, even if, the project was abandoned, the appellant should have approached for refund of his money promptly. In such circumstances, award of compensation of Rs.50000/- to the appellant was sufficient. He is not entitled for any further compensation. ORDER In view of aforesaid discussions, the appeal has no merit and it is dismissed.
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