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M/s Kiran Krishna Real Estates & Constructions Pvt. Ltd & Others v/s Smt Dontamsetti Naga Mani & Others

    F.A. Nos. 1562, 1563 OF 2007 AGAINST C.C.NO.159 OF 2007 DISTRICT CONSUMER FORUM-I VISAKHAPATNAM

    Decided On, 22 March 2010

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad

    By, SRI SYED ABDULLAH
    By, PRESIDING MEMBER & SRI R. LAKSHMINARSIMHA RAO
    By, MEMBER

    Counsel for the Appellants: Sri V. Gourisankara Rao, Advocate. Counsel for the Respondents: Ms. Chaitanya Latha, Advocate.



Judgment Text

Oral Order (As per R.Lakshminarsimha Rao, Member)


The opposite parties no.1 and 2 are the appellants. The appeal is filed against the order of the District Forum-I, Visakhapatnam in C.C.No.159 of 2007 whereby the opposite parties no.1 and 2 were directed to refund Rs.60,000/- + Rs.70,000/- + 22,800/- along with interest @ 12 p.a. together with compensation of Rs.12,500/- and costs.


The brief facts of the case as represented by the complainant are that the appellant no.1 had been dealing in real estate business. The appellant no.2 was engaged in Agro-tech scheme and invited the public to invest in their schemes. The respondent paid instalments to the appellant no.1 towards purchase of house plots and paid a sum of Rs.60,000/- to the appellant no.1 till January 2000 and also she had paid an amount of Rs.70,000/- to the appellant no.1 till 27.8.2001. The respondent deposited a sum of Rs.1,200/- each per month for a period of 19 months till 28.8.2001 with the appellant no.2. The instalment amounts to Rs.22,800/- was deposited with appellant no.2 which had closed its Agro-tech scheme by promising to refund the amount deposited by the respondent. The appellants failed to develop the layout as promised or refund the amount, the appellants executed two promissory notes one for Rs.60,000/- dated 2.1.2000 and another for Rs.70,000/- on 27.8.2001 as guarantee for repayment of the amounts paid by the respondent and informed the respondent that the plots would be registered in her name as and when the layout is developed.


The appellant no.1 had not executed sale deeds in favour of the respondents nor had taken steps to refund the amount due under promissory notes that were executed under the Agro-tech schemes and postponed to refund the amounts on the promise that the sale deeds would be executed in her favour. The appellants had got published a notice in Eenadu daily on 11.12.2006 inviting the members to approach them for refund of the amounts and registration of the plots. The respondent requested the appellants to refund the amount whereon the appellants had bargained to pay the actual amounts paid by the respondent. Having been not satisfied with the bargain amount, the respondent claimed a sum of Rs.60,000/- on promissory note dated 2.1.2000 and Rs.1,03,128/- interest on the said amount, Rs.70,000/- under promissory note dated 27.8.2001 along with interest of Rs.92,561/- thereon and Rs.22,800/- with interest a sum of Rs.33,134/- as also a sum of Rs.2 lakhs towards compensation and Rs.10,000/- towards costs.


The appellants filed counter contending that the complaint is not maintainable and barred by limitation of time. The respondent is not a consumer within the purview of the provisions of the C.P. Act as there was no deficiency of service. The signature in the copies of documents furnished to the appellants is not that of the appellants. The two promissory notes were issued in individual capacity and the passbook was issued without support of any receipts. The appellants had not executed promissory notes in favour of the respondent. The amount borrowed in individual capacity on execution of the promissory notes by the employees of the appellants does not render the appellants liable to any claim in respect of the promissory notes.


The respondent has filed her affidavit and on her behalf Exs.A1 to A4 had been marked.


The appellants have not filed either affidavits or any documents.


The District Forum has opined that Exs.A1 and A2 are not the promissory notes as they do not contain the ingredients of a promissory note and held Exs.A1 and A2 to be fixed deposit receipts.


The points for consideration are :


1) Whether Exs.A1 and A2 are promissory notes or FDRs?


2) Whether the complaint is barred by limitation? 3) Whether there was deficiency in service on the part of the appellants no.1 and 2?


4) To what relief?


POINT NO.1 The respondent has relied upon Exs.A1 and A2 by stating that she had paid a sum of Rs.60,000/- and an amount of Rs.70,000/- in instalments for purchase of the plots from the appellant no.1. The appellant no.1 has denied execution of the documents Exs.A1 and A2. The appellant no.1 has though denied the execution of Exs.A1 and A2, admitted execution of the said documents by contending that they were executed by its employees in their individual capacity. The admission of liability under Exs.A1 and A2 restricting it to the individual employees, would go to show that the documents executed by the were not executed in discharge of the business affairs of the appellant no.1. It is pertinent to note that the appellant no.1 has denied the liability under the promissory notes on one hand and on the other hand it had transferred the liability on to the employee who executed Exs.A1 and A2. Thus the liability in some form or the other being admitted, the question to be considered is whether EXs.A1 and A2 are promissory notes or FDRs. A perusal of the documents would reveal that Exs.A1 and A2 are neither promissory notes nor the fixed deposit receipts and they fall under the category of ?bond? as a specific and categorical mention has been made therein that the amount would be repaid after a period of 3 years with interest @ 24% per annum. This recital has taken away the element of promissory note from the construction of Exs.A1 and A2 and rendered them all the requisite qualities of a ?bond?. Thus Exs.A1 and A2 being the bonds and contain a recital that the amount mentioned there in was borrowed by the executor would not reflect any indication that the amount was paid by the respondent in regard to the purchase of plots from the appellant no.1. Accordingly, the point is answered against the respondent.


POINT NO.2 The respondent has stated that she had paid Rs.60,000/- till January 2000 and Rs.70,000/- till August 2001 in instalments. The respondent has not adduced any evidence except Exs.A1 and A2 which have been held to be bonds and not in any connection in relation to the purchase of the plots. Even otherwise, Exs.A1 and A2 were said to have been executed on 2.1.2000 and 27.8.2001 and the complaint was filed in the year 2007. As aforesaid Exs.A1 and A2 cannot be considered for any purpose other than they were meant for and in the light of contention of the respondent that she had paid the amount for purchase of the plots in the year 2001, and Exs.A1 and A2 executed on 2.1.2000 and 27.8.2001 the complaint is barred by limitation. Insofar as the claim for amount of Rs.22,800/- invested with the appellant no.2 in relation to the Agro-Tech Schemes, the appellant no.2 has not denied the issue of the passbook. The only contention put-forth by the appellants in regard to the passbook is that the passbook was not supported by any receipts in respect of the entries made therein. The fact remains that the passbook was issued by the appellant no.2 and it contains the entries to the effect that the respondent has deposited an amount of Rs.1200/- per month commencing from 20.3.2000 till the month of August 2001. The passbook bears the date of joining of the respondent and the date of maturity of the amount deposited by the respondent as 2.1.2000 and 2.1.2003. The passbook was issued by acknowledging the receipt of the amount towards the deposit, there cannot be any question of limitation for two reasons, one that the appellant no.2 had received the amount towards the deposit and the second being that the appellant no.2 had closed all its schemes even before the date of maturity of the amount. Thus the position is that of the respondent a depositor and the appellant no.2 having provided the platform for investment the amount in deposit under the schemes, it is held that the respondent had filed the claim within limitation. Accordingly the point is answered.


POINTS NO.3 & 4 The appellant no.2 had received the amount in deposit in instalments promising to repay it with an attractive rate of interest after the period of maturity and promised to provide the respondent a safe avenue for investment of her amount. The appellant no.2 had closed its schemes abruptly without showing any cause even before the date of maturity of the amount and failed to repay the amount as promised in accordance with the terms and conditions of the passbook issued by it in fav

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our of the respondent. The appellant no.2 having received the amount hedged with the obligation of making refund of it to the respondent failed to keep its promise and thus committed deficiency in service. The respondent had deposited the amount of Rs.22,800/- till 28.8.2001 and as such entitled to refund of the amount along with interest @ 12% p.a. from the date of last payment of the instalment. Accordingly, the impugned order is liable to modified. In the result the appeal is allowed in part. The order dated 31.7.2007 passed by the District Forum is modified by setting aside the direction to the extent of refund of Rs.60,000/- + 70,000/- with interest. The appellants No.1 and 2/opposite parties No.1 and 2 directed to refund the amount of Rs.22,800/- with interest @ 12% per annum from 28.8.2001 till payment and an amount of Rs.12,500/- towards compensation and Rs.1000/- towards costs. Time for compliance four weeks.
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