BEFORE THE TELANGANS STATE CONSUMER DISPUTES REDRESSAL COIMMISSION: AT HYDERABAD

                                                            FA 505 of 2014

Between :

M/s. Sony Constructions

R/o Plot No. 6, Laxmi Nagar colony

Old Safilguda, Malkajgiri,

Opp. Vijaya Ponnie Aprts, Block –A

A.S.Rao Nagar, Hyderabad

Rep by proprietor M. Jalender Goud                    .                       Appellant/opposite party

And

Smt, K. Padma, D/o K. Brahmaiah

Aged about 44 years, Occ : Employee

R/o H.No. 6-73-18/2, Dichpally – 503175

Nizamabad District                                                  ..                      Respondent/complalinant

Counsel for the Appellant                                     :           M/s. K. Venkateswarlu

Counsel for the Respondent                                 :           Sri N. Srinivasa Rao

Coram :         HON’BLE SRI JUSTICE B. N. RAO NALLA, HON’BLE PRESIDENT

                                                                        And

                                                Sri Patil Vithal Rao, Hon’ble Member

Friday, the Twelfth Day of August

TWO THOUSAND SIXTEEN

            Oral order: ( Per Hon’ble Sri Justice B. N. Rao Nalla, Hon’ble President )

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1.  This appeal is  filed by the opposite party   U/s 15 of the Consumer Protection Act, 1986 challenging the impugned order dated 05.11.2013   passed in CC No. 214 of 2013   by  the District Consumer Forum, Ranga Reddy.

2. For the sake of convenience, the parties are described as arrayed in the complaint before the District Forum.

3. The case of the complainant before the District Forum in brief is that the opposite party,   who is a developer, entered into an agreement of sale on 30.03.2013  with the complainant  to sell  the Flat No. 205 of House bearing No. 9-78/2 admeasuring 884.05 sq. yards in survey no. 311  situated at Nagaram village of Keesara Mandal in Ranga Reddy District  for a total sale consideration of Rs.17,00,000/- which includes the cost of construction, car parking and all the amenities. She paid an amount of Rs.1,00,000/- as an advance and also another sum of Rs.1,00,000/- by way of undated cheque bearing No. 491507 of SBH, Vinayakanagar branch, Nizamabad on the same day of agreement of sale. When the complainant requested for all the documents including permission and link documents for obtaining house loan, the opposite party furnished some of the documents except GHMC permission. The Bank authorities rejected her loan application on the ground that there is  no proper permission from the concerned authorities. Thereafter, it revealed  that the building is located in the Grampanchayat and that the layout itself is questionable. Considering the litigation involved and trouble by the authorities concerned, she did not wish to continue for purchase of the flat and she stopped payment of cheque amount  and sought for refund of the amount. Though the opposite party assured to refund the same, but did not do so which amounts to deficiency in service and unfair trade practice. Hence the complaint for refund of Rs.1,00,000/- together with interest @ 24% pa from 30.03.2013 till the date of refund and  to return undated cheque bearing No. 491507 and also  to pay Rs.1,00,000/- (Rupees One Lakh) only towards compensation for mental agony and also costs.

4. The opposite party though received the notice  did not choose to contest the matter.

5. During the course of enquiry before the District Forum, Affidavit Evidence of the complainant was filed and  Ex. A-1 was  marked on behalf of the complainant.

6. After taking into account  the material on record and after hearing the counsel for the complainant, the District Forum passed the impugned order  on merits directing  the opposite party to pay an amount of Rs.1,00,000/- with interest @ 18% pa from 30.03.2013 till the date of realization with costs of Rs.5,000/- and also directed to return the undated cheque bearing No. 4591507 of SBH, Vinayakanagar branch, Nizamabad to the complainant within 30 days.

7. Aggrieved by the  above impugned order of the District Forum, the opposite party preferred this appeal contending that the District Forum erred in appreciating the facts of the case and law, evidence on record and provision of law applicable to the case  in its true prospects and erroneously allowed the case and that the notice was not served on the appellant/opposite party before the District Forum and that the respondent/complainant with malafide intention dropped further payment and thereby committed default in payment of installments causing loss to the appellant and hence prayed to allow the appeal and set aside the impugned order of the District Forum.

8. Now, the points that arise for consideration of this Commission are

1. Whether the impugned order as passed by the District Forum suffers from any error, irregularity or the same is liable to be set aside,  modified   or interfered with in any manner ?
2. To what relief ?

9. There is no dispute that the Respondent/complainant executed Ex.A-1 agreement of sale with the appellant/opposite party on 30.03.2013 to purchase semi-finished Flat No. 205 of House bearing No. 9-78/2 admeasuring 884.05 sq. yards in survey no. 311  situated at Nagaram village of Keesara Mandal in Ranga Reddy District  for a total sale consideration of Rs.17,00,000/- which includes the cost of construction, car parking and all the amenities. There is also no dispute that the complainant paid an amount of Rs.1,00,000/- as advance on 30.03.2013 and also issued an undated cheque  for an amount of Rs.1,00,000/- to the opposite party under the said agreement.

10. The complainant contended  that after sale agreement and payment of advance amount she came to know that  the said building is located in the Grampanchayat and that the layout itself is questionable, there is no permission from MCH authorities and   her loan was rejected by the bank authorities   and therefore  she stopped payment of cheque amount and sought for refund of amount. The notice sent by the District Forum to the appellant/opposite party by registered post with acknowledgment due  clearly shows that the appellant/opposite party received the said notice. Even then, the appellant/opposite party did not choose to contest the matter before the District Forum. Even in the appeal before this Commission they did not state that the said building is not located in the Grampanchayat and  that they have got permission from the concerned authorities of GHMC   for construction of the said building. It was assured that the bank authorities would  provide loans to the vendees for the flats constructed by them. The appellant/opposite party did not deny that the complainant did not approach them for refund of the amount. Without taking prior permission of the GHMC  authorities for construction of building and for not refunding the amount having received  from the consumers amounts to deficiency in service and unfair trade practice.

11. The counsel for the appellant contended that the complainant herself failed to pay remaining amount and with malafide intention she dropped further payment and caused loss to them. Though in Ex. A-1 agreement it is stated if the vendee commits default in payment of any installments on due dates, time being the essence of  the contract, the vendor shall be at liberty to terminate this agreement of sale in which event 25% of the amount out of the total installments paid by the  vendee shall stand forfeited. As there is no evidence on record that the said agreement was terminated by the appellant/opposite party himself  and as there is deficiency in service on the part of the opposite party, this clause is not applicable to the complainant in the present case.

12. After considering the foregoing facts and circumstances and also having regard to the contentions raised on behalf of the appellant, this Commission is of the view that the respondent/complainant is entitled to Rs.1,00,000/-, however, the Commission is  not inclined to grant any interest and costs while modifying the order of the District Forum. The Complainant is also entitled to return  the undated  cheque for Rs.1,00,000/- which was given at the time of agreement  to the appellant/opposite party. However, the respondent/complainant is not entitled to any interest and costs for the reasons stated in para 11 with reference to terms and conditions of Ex. A-1 agreement. The impugned order of the District Forum is accordingly modified.  This Commission answered Point No. 1, accordingly.

13. Point No. 2 :

In the result, the appeal is allowed in part modifying the order of the District Forum and directing the appellant/opposite party  to refund an amount of Rs.1,00,000/- ( Rupees One Lakh ) only and to return  the undated cheque bearing No. 491507 for Rs.1,00,000/-( Rupees One Lakh) only drawn on  SBH, Vinayakanagar Branch, Nizamabad to the complainant. There shall be no order as to  interest and costs. Time for compliance six weeks.

                                                            PRESIDENT                                    MEMBER                                                                                                      Dated : 12.08.2016.