P. Ratnakumari vs Y. Kiran Kumar

THIS appeal has been filed by the Appellant against order dated 21.11.2013 passed by State Commission in Complaint Case No. 27 of 2013 - Smt. P. Ratnakumari Vs. Y. Kiran Kumar; by which complaint was partly allowed.

BRIEF facts of the case are that Complainant/Appellant entered into an agreement of sale with Opposite Party/Respondent on 12.8.2009 for purchase of 450 sq.yds. in Sy Nos. 330, 331, 332, 337, 338, 339, 340 part 341, 342, 343, 345 and 347 etc. for Rs. 12,60,000/ -. Complainant paid the aforesaid amount but there was no development on the site and it was not free from all encumbrances, hence, requested for refund of the amount. Opposite Party did not return the amount. Alleging deficiency on the part of Opposite Party, Complainant filed complaint before State Commission. Opposite Party resisted complaint and submitted that complaint has not been filed against proper party but has been filed against CEO of M/s. Suchir India Developers (P) Limited, State Commission has no jurisdiction to entertain the complaint, complaint is barred by limitation, complaint was required to proceed under Arbitration Act and prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint partly and directed Opposite Party to pay Rs. 9,45,000/ - with 9% p.a. interest and further allowed compensation of Rs. 20,000/ - and cost of Rs. 5,000/ - against which this appeal has been filed by Complainant for enhancement.

HEARD Authorised Representative for the Appellant and Learned Counsel for Respondent finally at admission stage and perused record. Authorised Representative for Appellant submitted that on account of wrong declarations in the agreement about properly being free from all encumbrances, Complainant rightly requested for refund of amount but Learned State Commission committed error in allowing refund of 75% of the deposited amount, hence, appeal be allowed and impugned order be modified and remaining 25% amount may further be awarded. On the other hand, Learned Counsel for Respondent submitted that Learned State Commission had no jurisdiction to entertain the complaint and complaint was not filed against the Company and complaint was liable to be dismissed, even then Learned State Commission committed error in allowing complaint partly, hence, appeal be dismissed. Admittedly, Opposite Party has not preferred any appeal against the impugned order and in such circumstances, complaint cannot be dismissed on the appeal filed by Complainant for enhancement of amount. Respondent has not challenged order of the State Commission and in such circumstances, order of the State Commission regarding maintainability of complaint before State Commission and complaint within limitation have attained finality and this Commission cannot reverse findings of State Commission without any appeal of Respondent.

NOW , short question to be decided is whether State Commission rightly allowed deduction of 25% from the amount paid by Appellant? As per agreement of sale, vendor declared that schedule property is free from all encumbrances, charges, sale, gift, mortgages, liens, court attachments as on the date of the Agreement which was executed on 12.8.2009. As per letter dated 1.9.2010, given by Respondent to Appellant, this plot was under mortgage of Hyderabad Metropolitan Development Authority (HMDA). Thus, it becomes clear that Opposite Party sold plot to the Complainant and made fraudulent representation that plot sold is free from all encumbrances whereas this plot was under mortgage of HMDA. In such circumstances, Complainant was entitled to get refund of full amount from Opposite Party and Learned State Commission committed error in allowing deduction of 25% amount on the ground that Complainant himself cancelled the booking and wanted refund of sale consideration. Complainant was entitled to get refund of full amount paid by him towards purchase of plot and appeal is to be allowed.

CONSEQUENT LY , appeal filed by the Appellant is allowed and order dated 21.11.2013 passed by Learned State Commission in Complaint Case No. 27 of 2013 - Smt. P. Ratnakumari Vs. Y. Kiran Kumar; is modified and order awarding amount of Rs. 9,45,000/ - is substituted by amount of Rs. 12,60,000/ - and rest of the order is affirmed with no order as to costs.