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M/s Kiran Real Estates and Constructions @ Kiran Krishna Real Estates and Constructions Pvt. Ltd. v/s Sri Kandam Vitta Padmanabham

    F.A.No.713 of 2011 Against C.C.No. 387 of 2010 District Consumer Forum-I Visakhapatnam

    Decided On, 10 December 2012

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad

    By, MR. R. LAKSHMINARASIMHA RAO
    By, HONOURABLE MEMBER & MR. THOTA ASHOK KUMAR
    By, HONOURABLE MEMBER

    For the Appellant: M/s P. Veer Raju, Advocate. For the Respondent: M/s. V. Chaitanya Latha, Advocate.



Judgment Text

Oral Order: (R. Lakshminarsimha Rao, Member)

1. The opposite party is the appellant.

2. The facts of the case as narrated by the complainant are that the opposite party started venture for housing lay out in the name and style of 'M/s Kiran Krishna Real Estates' at Jeevan Nagar, Visakhapatnam. As per the scheme the plot cost of `38,600/- has to be paid in 48 monthly instalments @ `400/- per month. The opposite party has to develop the housing lay out and obtain layout approval from the authorities concerned. The complainant joined as a member on 3.5.1991 by paying an amount of `400/- towards first instalment and paid instalments from 13.7.1991 till 9.6.1995. The opposite party allotted membership No.4037 to the complainant. The complainant paid the entire amount of `38,600/- by 9.6.1995. The opposite party did not develop the land into housing layout within the stipulated period. The complainant requested several times for development of the plots and the opposite party failed to do so. Hence, the complainant filed complaint before the District Forum seeking direction to refund the amount of `38,600/- with interest and `75,000/- towards compensation and `50,000/- towards damages besides `10,000/- towards costs.

3. The opposite party resisted the claim contending that the complainant had not paid the entire sale consideration and registration charges in spite of the demand made therefor. The matter involves specific performance of the agreement and as such the civil court is a proper forum for adjudication of the matter. The complainant failed to perform his part of contractual obligation. The complainant stopped payment in the middle of the venture and became defaulter. The complaint is not filed within the period of limitation. As per the directions of the SEBI, the Agrotech Company was wound up and the complainant was intimated of the matter as also the opposite party had refunded the amount to the respective members who claimed the amount paid by him. The copies of the documents filed by the complainant are Photostat copies are not admissible evidence. Hence, prayed for dismissal of the complaint.

4. The complainant has filed his affidavit in support of his claim and Exs.A1 to A6. On behalf of the opposite party, its manager Donka Swami Naidu filed his affidavit.

5. The District Forum has allowed the complaint with a direction to refund the amount of `30,950/- with interest @ 9% per annum from 9.6.1995 besides awarding compensation of `40,950/-

6. Feeling aggrieved by the order of the District Forum the opposite party has filed the appeal contending that the opposite party deposited `60,000/- on 2.6.1011 on condition that the complainant would execute re-convenience deed in favour of the opposite party and that the complainant played fraud by suppressing the fact of execution of sale deed in his favour. It is contended that the complainant is not entitled for refund of the amount of `30,950/- unless conveyance deed is executed in favour of the opposite party and that the amount awarded as compensation of `40,950/- is not proper.

7. The learned counsel for the appellant has filed written arguments.

8. The point for consideration is whether the complainant is entitled to the relief of refund of the amount of Rs.30,950/- besides compensation?9. The complainant had entered into an agreement with the opposite party on 3.5.1991 for purchase of a plot measuring 300 sq.yards. The agreement of sale and receipts support the payment of the amount in respect of the plot, by the complainant.

10. The complainant has sought for refund of the amount paid by him on the premise that the opposite party had not acquired any land for floating the venture nor did it obtain layout approval from the authorities concerned. The District Forum held that in the absence of the land or the lay out approval thereof, there ought not be any allotment of plot by the opposite party. Therefore, the District Forum has rightly held the complainant entitled for the refund of the amount paid by him a sum of `30,950/- together with interest @ 9% per annum from the date of payment i.e., 9.6.1995.

11. It is not denied that the opposite party executed sale deed on 18.8.2003 in favour of the complainant. The learned counsel for the opposite party has contended that unless re-conveyance deed is executed by the complainant in favour of the opposite party, the complainant cannot seek for refund of the amount. We accept the contention of the appellant company as a perusal of copy of sale deed dated 18.8.2003 would show that the opposite party executed the sale deed in favour of the complainant in respect of plot in Sy.No.40/1 at Bheemunipatnam, Visakhapatnam. The complainant cannot retain the plot and seek for refund of the amount paid by him towards the sale consideration of the same plot. As such the order of the District Forum invites our interference for modification with the condition that the relief granted by the District Forum for refund of the amount of `30,950/- is subject to execution of re-conveyance deed by the complainant.

12. The District Forum awarded a sum of `40,950/- towards compensation in the backdrop of the sale consideration of `30,950/- paid by the complainant for purchase of the plot. The District Forum has also awarded interest from the date of payment of the amount by the complainant. In addition to the award of interest, the District Forum awarded compensation an amount which is more than the sale consideration paid by the complainant. In our view, a sum of `20,000/- is granted towards compensation would meet the ends of justice.

13. The Hon’ble Supreme Court in 'State of Gujarath vs Shantilal Mangaldas' AIR 1969 SC 634. held the compensation to mean'…..In ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation is to be determined and given . If it were to be in terms of money along, the expression ‘paid’ would have been more appropriate'.

14. The Supreme Court held that the compensation to be awarded is to be fair and reasonable. In 'Charan Singh vs Healing Touch Hospital and others' 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer l and the change it brings in the attitude of the service provider. The Court held 'While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to est

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ablished judicial standards where the claimant is able to establish his charge'. 15. During pendency of the complaint, the opposite party paid an amount of `60,000/- to the complainant. The amount to be paid by the opposite party as per the modified order of the District Forum is `30,950/- plus interest @ 9% from 9.6.1995 plus `20,000/- towards compensation plus `3,000/- towards costs minus `60,000/- paid to the complainant. 16. In the result the appeal is allowed the order of the District Forum is modified. The opposite party is directed to pay the balance amount after deducting `60,000/- from Rs.30,950/- plus interest @ 9% from 9.6.1995 plus `20,000/- towards compensation plus `3,000/- towards costs and the complainant shall execute re-conveyance deed in favour of the opposite party. There shall be no order as to costs.
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