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The Bhagyalaxmi Real Estates, Rep. by its Managing Partner v/s B.V. Simhachalam & Others

    F.A.Nos.593 of 2012, 594 of 2012, 595 of 2012, 596 of 2012, 597 of 2012 & 598 of 2012, against C.C.Nos. 48 of 2011, 49 of 2011, 50 of 2011, 51 of 2011, 52 of 2011 & 53 of 2011 District Forum, Srikakulam

    Decided On, 22 July 2013

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad

    By, THE HONOURABLE MRS. M. SHREESHA
    By, INCHARGE PRESIDENT & THE HONOURABLE MR. S. BHUJANGA RAO
    By, MEMBER

    For the Appellant: M/s. T.D. Phani Kumar, Advocate. For the Respondents: A. Rama Rao, Advocate.



Judgment Text

Smt. M. Shreesha, Incharge President

F.A.No.594/2012

Aggrieved by the order of C.C.No.49/2011 on the file of District Forum, Srikakulam, the opposite party preferred this appeal.

The brief facts as set out in the complaint are that the complainant joined a scheme floated by the opposite party for purchase of a plot on instalment basis and paid Rs.6,000/- for 12 months at Rs.500/- per month for a total scheme amount of Rs.35,000/- and the opposite party allotted plot and registration number 37 and executed an agreement in the complainant’s favour on 11-6-2006. Thereafter the opposite party violated the conditions of the brochure and did not obtain any approval from the concerned gram panchayat and did not pay the conversion fees for non-agricultural lands. The opposite party assured the complainant that it would all be cleared within one year. The complainant gave a legal notice dated 17-2-2010 and demanded the opposite party to allot a plot and submitted that the complainant was ready to pay the balance amount and if the opposite party does not allot the plot, to refund the amount paid, with interest, compensation and costs but there was no reply. Hence the complaint seeking directions to the opposite party to allot the plot or alternatively refund the amount of Rs.19,000/- together with interest, compensation and costs.

Opposite party filed counter stating that their scheme is totally for an amount of Rs.35,000/- to be paid @ Rs.500/- per month for 62 months. The opposite party submits that the complainant joined in their scheme and paid Rs.6000/- for 12 instalments and an agreement was executed on 11-6-2006 and deny that the complainant paid the instalments regularly but instead submit that the complainant did not pay the balance amount and did not come forward for registration and therefore the complainant is not entitled for any refund of any amounts and also deny receipt of any notice and further contend that they borrowed money from others for huge interest and paid to the land owners to get the land for real estate. The opposite party submit that there is no deficiency in service on their behalf and seek for dismissal of the complaint with costs.

The District Forum based on the evidence adduced i.e. Exs.A1 to A6 allowed the complaint directing the opposite party to allot the plot in Bhagyalakshmi Real Estates, Rajam covered by Sy.Nos.348/2, 4, 5, 6, 7, 8, 9, 11 and 349/11 after providing the amenities and approval of the layout or in the alternative to pay Rs.19,000/- together with interest @ 15% p.a. from the date of last payment i.e. 11-6-2008 till the date of payment, if the complainant agrees. If the complainant is not willing to receive the amount, the opposite party is directed to handover the site only. The opposite party is further directed to pay Rs.18000/- towards compensation. If the site is allotted and handed over to the complainant, compensation of Rs.7,500/- is sufficient and also directed to pay compensation of Rs.2,000/- which includes advocate fee.

The learned counsel for the appellant/opposite party submitted that the complainant did not file any material to show that he fulfilled all the terms and conditions in the membership form and agreement and that they are ready to register the sale deed but the complainant never came forward to fulfil his part of the contract. In the entire grounds, the appellant never contended specifically that the complainant did not pay the stipulated amounts.

It is the complainant’s case that the opposite party received Rs.19,000/- by 11-6-2008 and filed Ex.A1 receipt for Rs.6,000/- dated 05-4-2005 and another receipt of Rs.500/- dated 11-6-2008. The learned counsel for the respondent/complainant submitted that the amount of Rs.19,000/- was paid between 2005 to 2008 and an agreement was also executed but it is the opposite party who did not allot the plot on the ground that they did not get the said approvals.

We observe from the record that there are no documents filed by the appellant/opposite party in support of their contention that the approvals were got and that it was the complainant who never responded and approached them for execution of the sale deed. The complainant filed Ex.A4, legal notice issued by him to the opposite party in which he referred to the letter dated 11-8-2008 (Ex.A3) and in which he contended that he had paid the monthly instalments upto June, 2008 and inspite of the fact that 35 months period was completed, the opposite party did not choose to fulfill their part of the promise. It is pertinent to note that the complainant also filed the acknowledgement which has been stamped by the opposite party with respect to the legal notice and therefore the contention of the appellant in their legal notice that they never received any notice is unsustainable. Inspite of receipt of Ex.A3 which is stamped by them and Ex.A4 legal notice for which there is an acknowledgement card, the opposite party never choose to reply and an adverse inference can be drawn construing that the version of the complainant is true that he paid an amount of Rs.19,000/- and it is also pertinent to note that the opposite party did not file any documentary evidence to show that they have got approvals. We also observe that the opposite party never specified the amount vwhich according to them the complainant has paid and which he has defaulted they have only baldly stated in their affidavit, that the complainant has to pay the balance instalments along with interest and they would execute the sale deed. They did not file any statement of account in support of their case.

We observe from the record i.e. Ex.A2 agreement that the total amount to be paid under the scheme is Rs.35,000/- for which the complainant admittedly paid only Rs.19,000/- and is now seeking for allotment of the plot. The District forum has directed the opposite party to allot the plot after providing all the amenities and necessary approvals but has not discussed with respect to the balance amount which has to be paid by the complainant. Keeping in view that the layout has not been approved and also that the complainant has paid only Rs.19,000/- and keeping in view the interest of justice and equities in mind, we are of the considered opinion that the opposite party is liable to allot a plot and execute registration of sale deed after collecting the balance amounts from the complainant but however without interest as there are latches on behalf of the opposite party in not getting the layout approved and in not replying to the legal notice of the complainant.

We also rely on the judgment of Apex court in 2005(9) SCC 464 in HARAYANA URBAN DEVELOPMENT AUTHORITY v. SHAKUNTALA DEVI and 2004 sc 4123 Brij Pal Sharma Vs. Ghaziabad Development Authority reported in III (2005) CPJ 43 (SC) opined that grant of interest @ 18% p.a., by way of damages and compensation is justified. Their lordship referring to an earlier decision in Ghaziabad Development Authority Vs. Balbir Singh reported in II (2004) CPJ 12 held by stating that ' in our view, irrespective of whether there was genuine reason to cancel or not, the monies must be returned with interest at the rate of 18%. We say so because it is clear that even if the body has not already floated another scheme on the same land it is clear that the body is going to derive great profit from the land and therefore compensating the allottee with interest @ 18% p.a. is just and fair.' Therefore granting of interest @ 18% p.a. was up held.

We may also mention herein that when the State Commission has reduced the interest from 18% to 12% the Supreme Court in Haryana Urban Development Authority Vs. Soma Devi reported in 1(2005) CPJ 11 (SC) set-aside the finding and awarded interest @ 18% p.a. When consistently the Supreme Court has been awarding interest @ 18% p.a., in cases where the dealings pertain to real estates, we do not see any reason for reducing the rate of interest. In fact in the instant case, interest was awarded only at 15% p.a. and District Forum has also awarded compensation. We also observe that if the complainant has to purchase plot today, the market value of it would be much higher and if he seeks for alternate prayer of refund of the amount, it is also right that he is awarded compensation by way of damages to compensate for the increase in the market value of the subject land.

If the complainant does not opt for paying the balance amount and getting the plot registered, he is entitled to refund of the amount paid i.e. Rs.19,000/- with interest at 15% p.a. from 11-6-2008 i.e. the date of last payment till the date of realization together with compensation of Rs.10,000/- to be paid to the complainant irrespective of whichever option he/she chooses and costs of Rs.2,000/-. This amount of compensation is being awarded as the opposite party sold the plots without the said approvals and neither replied to the legal notice given by the complainant nor responded to his request for registration and the market price would be much higher if the complainant chooses to buy another plot today.

In the result this appeal is allowed in part and the order of the District Forum is modified directing the appellant/opposite party to allot a plot as directed by the District Forum after providing the amenities and approvalsand execute registration of sale deed after collecting the balance amounts from the respondent/complainant but however without interest as there are latches on behalf of the appellant/opposite party in not getting the layout approved and in not replying to the legal notice of the respondent/complainant. If the complainant does not opt for paying the balance amount and getting the plot registered, he is entitled to refund of the amount paid i.e. Rs.19,000/- with interest at 15% p.a. from 11-6-2008 i.e. the date of last payment till the date of realization together with compensation of Rs.10,000/- to be paid to the complainant irrespective of whichever option he/she chooses and costs of Rs.2,000/-. Time for compliance four weeks.

F.A.Nos.595/2012 to F.A.No.598/2012

For the same reasons as stated in F.A.No.594/2012, these appeals are also is allowed in part and the order of the District Forum is modified directing the appellant/opposite party to allot a plot as directed by the District Forum after providing the amenities and approvalsand execute registration of sale deed after collecting the balance amounts from the respondent/complainant but however without interest as there are latches on behalf of the appellant/opposite party in not getting the layout approved and in not replying to the legal notice of the respondent/complainant. If the complainant does not opt for paying the balance amount and getting the plot registered, he is entitled to refund of the amount paid with interest at 15% p.a. from 11-6-2008 i.e. the date of last payment till the date of realization together with compensation of Rs.10,000/- to be paid to the complainant irrespective of whichever option he/she chooses and costs of Rs.2,000/-. Time for compliance four weeks from today.

F.A.No.593/2012

Aggrieved by the order in CC 48/2011 the same opposite party preferred this appeal.

The facts in the instant case are slightly different in the sense that the complainant succeeded in the 8th draw and the opposite party issued a certificate to that effect in favour of the complainant and the complainant paid Rs.4000/- towards eight instalments and inspite of several requests and also Ex.A3, legal notice, which the opposite party received as the complainant has filed the acknowledgement, there was no reply. Ex.A2 evidences that the complainant was allotted registration No.394 and won the 8th draw on 11-3-2006. The rest of the facts i.e. the scheme being for Rs.35,000/- to be payable at Rs.500/- per month for a plot in the opposite party layout and also that inspite of several requests, the opposite party did not execute the sale deed are all similar to the facts in F.A.Nos.594/2012 to 598/2012.

It is the appellant/opposite party’s case that that they never received any notice which is totally unsustainable as we observe from Ex.A2 that the complainant is the winner of the 8th draw and also Ex.A3 which is the legal notice filed along wi

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th the acknowledgement card evidencing receipt of notice by the opposite party. Ex.A4 is the brochure which shows the terms and conditions with respect to the draw. The appellant/OP filed a bald counter and is completely silent about the reasons as to why the plot was not registered in favour of the complainant herein. Ex.A2 clearly stipulates that as the complainant has won the draw on 11-3-2006, he is entitled to the registration of the plot without payment of the future instalments but the opposite party did not adhere to this promise and therefore the complainant got issued a legal notice for which the opposite party also did not choose to reply. For the aforementioned reasons, this appeal is allowed in part and the order of the District Forum is modified directing the opposite party to register a plot as directed by the District Forum after providing the amenities and approvals and if the complainant does not choose to take this plot he is entitled for the scheme amount of Rs.35,000/- (which include the amount paid by him) with interest at 15% p.a. from the date of completion of the scheme till the date of realization as he is the winner of the draw together with costs of Rs.2,000/- as the entire scheme amount has been awarded with interest at 15% p.a., we do not see it a fit case to award further compensation. Time for compliance four weeks.
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