State Consumer Disputes Redressal Commission
Mr.Erelli Veeraswamy vs M/S. Aliens Developers P. Ltd., on 5 May, 2022
DISPUTES
BEFORE THE TELANGANA STATE CONSUMER
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.191/2018
Between
Mr.Erelli Veeraswamy,
S/o.Mr.Kanakaiah, aged about 56 years,
R/o.Flat No.104, Sai Keerthi Residency
Near Labour Adda, Jyothi Nagar,
Karimnagar -505 001. . Complainant
And
M/s.Aliens Developers (P) Ltd.,
Rep. by its Managing Director &
Joint Managing Director
Mr.Hari Challa &
Mr.Venkat Prasanna Challa,
O/o.Ms.Aliens Space Station, Tellapur,
Ramachandrapuram Mandal, Medak Dist.,
PIN 502 032. .. Opposite party
Hyderabad -
M/s.V.Appa Rao
Counsel for the Complainant
Counsel for the Opposite Party M/s.Raja Sripathi Rao
Hon'ble Sri V.V.Seshubabu, Member (J),
CORAM
And
Hon'ble Smt.R.S. Rajeshree, Member (NJ).
THURSDAY, THE FIFTH DAY OF MAY,
TWO THOUSAND TWENTY TWO.
Order
1 The complaint is filed u/s.17(1)(a)(i) of the Consumner
Protection Act, for directions to the opposite party as under:
i. to pay the amount of sale consideration
received i.e. Rs.23,50,000/- with interest
@20% p.a. from respective dates of
payments received by the opp.party till
payment or alternatively direct the
opposite party to complete the flat as per
agreed specifications and deliver the
possession of the same forthwith with
same cost as agreed in the agreement of
sale and registration of the same
as
required under law;
to pay Rs.5 lakhs
as compensation for
i.
causing mental agony, suffering &
escalation of construction cost;
Rs.10/- square feet
ii. to pay fair rent of
area per month w.e.f.
super built up
of
1.7.2015 that in case of handing over the flat; and iv. to pay legal charges of Rs.50,000/
2. The brief averments of the complaint are that the opposite limited company doing business in the party is a private construction of flats etc. and it had undertaken a Development Agreement cum GPA with respective land owners for the development of land admeasuring Ac.19.26 guntas to raise residential complexes covered by Survey nos.384, 385 and 426/A at Tellapur Village in Ramachandrapuram Mandal, Medak Dist.; that the complainant entered into an Agreement of Sale dt. 18.4.2009 with the opposite party to purchase a flat bearing no.1052, Station-9, on 10th floor of the complex by name Aliens Space Station -1' with a super built up area of 1412 sq.ft. with one covered car parking besides undivided share of land of 30.36 sqyards out of the total land as stated supra , for a sale consideration of Rs.36,49,097/. The complainant altogether paid Rs.20,50,000/-; that the opposite party agreed to complete the construction of the flat by 31.10.2012. In the year 2013, on 14.6.2013 another agreement was executed whereunder the flat was changed and lat no.1269(B) in Station -12, 12th floor admeasuring 1673 sq.ft. of super built up area with one car parking were agreed to be conveyed for a total sum of Rs.56,13,000/-, Thereafter a sum of Rs.3 lakhs was paid, in total including under the 1st agreement a sum of Rs.23,50,000/- was paid The date of delivery as per the second agreement of the flat is 30.6.2015 including the grace period, else agreed to pay compensation Rs.3/- per sq.ft. of super built up area per month; that the complainant made several phone calls from March, 2012, every time though the opp.party promised to complete the flat, failed to do so; that in June,2018 when the came to know about standstill complainant visited the project he issued a legal of constructions; that the complainant got which was though notice dt.16.8.2018 on the opposite party, did not choose to reply; hence, received by the opposite party, the complaint.
of
and brief averments
3. Opposite party filed written version
deficiency in
that, there is
no
the same relevant to the facts are
denied
made in the complaint are
service; that the allegations
has not
complainant
those that are admitted; that the
except never he
clean hands
and
with
Commission
approached the as
for cancellation of the agreement, asked for refund of money or is that the complaint in service;
such cannot claim deficiency of Sale on he entered into a n Agreement barred by time since opp.party agreed to 18.4.2009 and as per the Agreement, with a grace on or before April, 2012 handover the possession is liable to be months and hence, the complaint period of 6 limitation as filed within the period of dismissed as it is not is a Clause in the Agreement CP Act; that there prescribe under of disputes, but it was not opted for;
Arbitration in case to go for stipulated the entire instalments as not paid that the complainant is entitled to under the Agreement for which the opposite party earnest money; that the opposite cancel the allotment and forfeit to n o n of land from agriculture party had fought for conversion formation of HUDA has to obtain permission agriculture and after commercial zone etc., and zone to residential and for agriculture be in conformity with the master the projects also with regard to Certificate' from the Fire Services plan, to obtain No Objection Clause XIV, several other aspects that as per Department and on found fault with for non completion the opposite party cannot be that as per Clause VIll(g) of of project on time "Force Majeure";
shall pay compensation the Agreement, the opposite party in case of failure to deliver charges at Rs.3/- per sq.ft. per month, would be adjusted to the dues possession, and the said amount if the complainant wants to take payable by the complainant; that refund of the amount; with these pleas the opposite party prayed for dismissal of the complaint with exemplary costs.
The complainant filed Evidenee Allidavit as PW.I and Exa.AI to A9 are marked on his behal On behall of opposite purty, Mr.Hari Challa, Managing Director of opposite party filed evidence affidavit (Dw.1). Exs. BI to B18 marked on behall of the OPposite party. Written arguments of the complainant tilcd.
Heard counsel on both sides.
.Basing on the pleadings on both sides, the following are the points for consideration:
Whether there is deficiency in service on the part of the opposite partY ?
ii. Whether the complaint is barred by time and also not maintainable for the reason of not invoking Arbitration Clausc?
iii. Whether the complainant is entitled for reliefs as claimed in the complaint?
iv. To what reliefs?
6.
Point No.1 Ex.A2 is the
Agreement of Sale dt.14.6.2013. The said Agreement of Sale was executed by through its GPA opposite party on behalf of the original owners to sell the lat no.1269(B) in 12th floor with super built up area of 1673 along with undivided share of 28.79 sq.ft.
sq.yds. with one car parking space. The total sale consideration was fixed at out of which Rs.56,13,000/-
Rs.15,00,000/- was paid under agreement Ex.A1 itself and the balance amount has to be the payment paid in accordanee with plan mentioned as annexure 'A' to the There is no dispute Agreement.
regarding the payments of out ofRs.56, 13,000/-, The last of such Rs.23,50,000/- 1.7.2013. As the balance amount payment was made on has to be paid upon the stages of construction, it is depending demand was ever made by the important that noto note opposite party seeking payment of balance amounts and no piece of paper is available to show informing the stage of construction. As the construction is mammoth one it is diflicult for any purchaser to himself/herself the stage of construction and to make know by accordance with the same, it payment in may as it be there.
issued by 7(a) A legal notice under Ex.A5 dt.16.8.2018 was lost faith on complainant to opposite party informing that he terms and them and also not interested to continue with the out from the conditions of the contract and wish to come demanded tor contractual obligation under Ex.A1 & A2, thereby the date of refund of 1 s.23,50,000/- with interest @ 20% from of the flat Teceipt of the same or in alternative sought for delivery demanded by completing the same in all aspects and also compensation of Rs.5 lakhs.
obtained It is also to be observed that opposite party
(b).
HUDA on 11.4.2008 itself vide letter permission from in no.621/P4/Plg/HMDA/HUDA/2008 which is mentioned Exs.B1 to B18, out of Ex.A1& A2 . The opposite party also filed which are which Exs.B1 to B10 are prior to Ex.A1 & A2 to proceed obtained by the opposite party necessary permissions is not entitled with the construction. Therefore, opposite party permissions lot of time was to contend that to obtain those construction could not be consumed and for that reason completed as scheduled. Added to the same, opposite party construction side of activity, has to being fully engaged in the before know all these aspects and requirements of permissions from the flat o w n e r s . When it starting the collection of amounts flat in the 4th floor of a building, one is agreed to sell a particular regarding all the implications and has to impute knowledge in the project. Ex.B17 8 B18 which are complications involved other customer with their letter of handing over of flat to some various customers and stage of feed back letter, photographs of under construction are of no construction of some of the flats i.e. Clause avail for opposite party to invoke force majeure' no.XIV of Ex.A1 or Ex.A2. In view of the discussion made so in service on the part of far, it is very clear that there is deficiency the opposite party. The point is answered accordingly.
8(a) Point no.2 As per Ex.A2, possession has to be delivered on or before Septemeber,2014 with a grace period of 9 months.
counsel that the It is the argument of the opposite party complaint should have filed within two years from the expected date of delivery, more so, when there are no chances of delivering VSeRSSs 6 future The complainant relied upon pon a case possession within near law petition in Special Leave to Appeal (Civil) in vide order dt.9.5.2012. When C.C.No.8481/2012 by the NCDRC the complainant waited for years with fond hope of getting the of the flat lat, the complaint cannot be dismissed for non delivery as observed in Meerut Development Authority vs. Mukesh Kumar Gupta reported in IV (2012) Supreme Court CPJ 12.
(b). As already stated supra at no point of time opposite party informed the stages of construction and never expressed his inability to deliver the flat as stipulated in Ex.A1 and never offered to relund the money. Even after receipt of the legal notice also did not come forward to refund the amount with interest. It shows that the cause of action is continuing. Therefore, the point is answered against the opposite party.
9 Admittedly, there is an Arbitration Clause no. XVIl and it was not invoked by the complainant or to that matter by opposite party no.1. The complainant counsel relied upon a case law reported in (2012) 2 SCC 506 in National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy wherein it is categorically observed that the Consumer Protection Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In such circumstances, the complaint cannot be dismissed for not invoking the Arbitration Clause. So the point is answered against the opposite party.
10. Point nos. 3 && 4_: In the case on hand, out of total consideration of Rs.56,13,000/-, the complainant paid only Rs.23,50,000/-. In the case on hand , the complainant informed that he is not at all interested in the continuation of the contract and he wants refund. Even though asked for delivery of possession by completing the same in all respects, interested for refund of amount, because, the opposite party failed to inform on what approximate date the possession will be given. By taking into consideration, the present bank rates, the complainant is entitled for the refund of Rs.15,00,000/- with 9% interest from 18.4.2009 till the date of payment, and also entitled for refund of Rs.8,50,000/- from the last date of payment i.e. 1.7.2013 till repayment and Rs.50,000/ as compensation and Rs.10,000/ towards legal expenses.
11. In the result, complaint is allowed in part directing the opposite party:
1. to refund to the complainant a sum of Rs.15,00,000/-
with interest@9% p.a. from 18.4.2009 til the date of payment i. to refund to the complainant a sum of Rs.8,50,000/- with interest @ 9% p.a. from 1.7.2013 till the date of payment;
to the ii to pay Rs.50,000/- as compensation complainant; and
iv). to pay Rs. 10,000/- towards legal expenses to the complainant.
Time for compliance is one month.