State Consumer Disputes Redressal Commission
Mr. Vijayakrishna Pondala Son Of Sri ... vs 1. Ms.Aditya Housing And ... on 25 January, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana Complaint Case No. CC/136/2014 1. Mr. Vijayakrishna Pondala Son of Sri Kesava Rao Naidu Pondala Resident f Bejjiputtuga Village and Post, Kaviti Mandal, Srikakulam 532 322 ...........Complainant(s) Versus 1. 1. Ms.Aditya Housing and Infrastructure Development Corporation Pvt. Ltd., Aditya Mansion Plot No.29 A, Road No.5, Bubilee Hills, Hyderabad 500 033 2. 2. Mr. Rajesh Pagadala Managing Director, Ms. Aditya Housing and Ingrastructure Development Corporation Pvt. Ltd., Plot No.1, Senor Valley, Road No.84 Film Nagar, Jublee Hills, Hyderabad 500 033, A.P India 3. Mr. Satyanarayana Yerukonda Additional Director, Ms. Aditya Housing and Ingrastructure Development Corporation Pvt. Ltd., Plot No.C 26, Road No.8, Film Nagar, Jublee Hills, Hyderabad 500 033 A.P. India 4. 4. Satyanarayana Thota Whole Time Director, Ms. Aditya Housing and Infrastructure Development Corporation Pvt. Ltd., Plot No.C 26, Road No.8, Film Nagar, Jublee Hills, Hyderabad 500 033 A.P. India 5. 5. Anuradha Thota Director Ms. Aditya Housing and Ingrastructure Development Corporation Pvt. Ltd., 8.2.293 by 82 F by C by 26, Road No.8, Film Nagar, Jublee Hills, Hyderabad 500 033 A.P. India 6. 6. Mr. Mallikarjunarao Bayrisetty Director, Ms. Aditya Housing and Infrastructure Development Corporation Pvt. Ltd., 25.18.115by 2, Parvathipuram Srinivasarao Thota, Guntur 522 004 A.P. India ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Complainant: For the Opp. Party: Dated : 25 Jan 2017 Final Order / Judgement STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA : AT HYDERABAD CC NO. 136 OF 2014 Between : Vijayakrishna Pondala S/o Kesava Rao Naidu Pondala, R/o Bejjiputtuga village & Post, Kaviti Mandal, Srikakulam district-532 322. Complainant And 1) M/s Aditya Housing and Infrastructure Development Corporation Pvt., Ltd., Aditya Mansion, Plot No.29-A, Road No.5, Jubilee Hills, Hyderabad - 500 033. 2) Rajesh Pagadala, Managing Director, M/s Aditya Housing and Infrastructure Development Corporation Pvt., Ltd., Plot No.1, Senor Valley, Road No.84, Film Nagar, Jubilee Hills, Hyderabad - 500 033, Andhra Pradesh, India. 3) Satyanarayana Yerukonda Additional Director, M/s Aditya Housing and Infrastrcture Development Corporation Pvt., Ltd., Plot No.C-26, Road No.8, Film Nagar, Jubilee Hills, Hyderabad - 500 033, Andhra Pradesh, India. 4) Satyanarayana Thota Whole-Time Director, M/s Aditya Housing and Infrastrcture Development Corporation Pvt., Ltd., Plot No.C-26, Road No.8, Film Nagar, Jubilee Hills, Hyderabad - 500 033, Andhra Pradesh, India. 5) Anuradha Thota, Director, M/s Aditya Housing and Infrastrcture Development Corporation Pvt., Ltd., 8-2-293/82/F/C/26, Road No.8, Film Nagar, Jubilee Hills, Hyderabad - 500 033, Andhra Pradesh, India. 6) Mallikarjuna Rao Bayisetty, Director, M/s Aditya Housing and Infrastrcture Development Corporation Pvt., Ltd., 25-18-115/2, Parvathipuram, Srinivasarao Thota, Guntur - 522 004, Andhra Pradesh, India. Opposite parties Counsel for the Complainant : Sri S.Ram Babu Counsel for the Opp.parties : M/s Kochhar & Co., Coram : Hon'ble Sri Justice B.N.Rao Nalla ... President and Sri Patil Vithal Rao ... Member
Wednesday, the Twenty Fifth day of January Two thousand Seventeen Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** This is a complaint filed under section 17(1)(a)(i) of the Consumer Protection Act, 1986 by the Complainant seeking direction to refund Rs.5,98,560/- spent by complainant towards interest to HDFC bank and also to pay interest as payable to the bank till handing over of the flat; to pay Rs.3,71,418/- towards interest @ 18% p.a. on the principle amount of Rs.10,65,000/- invested by complainant on the flat; to pay Rs.1,65,000/- towards arrears of rent from 21.04.2013 to March 2014 and to pay further rent every month at Rs.15,000/- till handing over the subject flat with all amenities; to pay Rs.5,000/- towards cancellation of the reserved tickets; to provide water softening plant and centralized gas supply; to pay Rs.10,00,000/- towards deficiency of service and mental agony; to pay interest @ 18% p.a. on the aforementioned amounts and costs of the proceedings.
2. The case of the Complainant, in brief, is that OP No.1 is a Company dealing in real estate and OP No.2 is its Managing Director and Ops 2 to 6 are its directors. Representing to be the absolute owners of the land admeasuring 6554.03 sq. yards bearing plot Nos.42/1, 42/2, 43, 44, 45 & 46 in Sy.Nos. 14/P, 20 to 24, 26 to 28, 30, 31/part and corresponding TS Nos.14/1, 14/2, 14/3 and 7/1, 7/2, 7/3 Block-C 31/part and corresponding TS No.14/1 to 14/3 and 7/1 to 7/3, Block C and M, Ward No.13 of Shaikpet village of Shaikpet Mandal, Hyderabad district entered into an agreement of sale dated 21.07.2012 with the Complainant for sale of Flat No.506 admeasuring 1677 sft including common areas on 5th floor of 'Aditya's Empress Heights' along with one car parking and undivided share of land 63.36 sq. yds., for a total sale consideration of Rs.53,25,000/-. As per the pricing pattern, the Complainant had paid the sale consideration amount by borrowing money from M/s Housing Development Finance Corporation Limited (HDFC).
3. The Ops claimed to have acquired the property vide Sale Agreement-cum-General Power of Attorney dated 08.01.2007 bearing document No.93 of 2007 and 94/2007. It was also agreed to provide the residential complex having 108 units with full facilities such as club house, swimming pool, children play area, gymnasium, water softening plant, power back-up generator, centralized gas supply, round the clock security, intercom facility, four fully automatic lifts, landscaped area, excellent elevation from all sides and community hall. However, the Ops failed to provide water softening plant, centralized gas supply and the construction is at 5th stage. It was also agreed that the flat would be completed in 6 months with a grace period of 3 months from the date of agreement i.e., on or before March 2013.
4. From December 2012 onwards the Complainant had been repeatedly requesting to complete the flat and also to inform the progress of the flat, but for the reasons best known, the Ops failed to respond. However, they assured to handover the flat by 10.07.2013 but failed. Basing on the false assurances, complainant planned house warming ceremony and incurred huge expenses for railway reservation and thereafter for cancellation charges of his family members as also the relatives and guests as the Ops failed to stand to their commitments. He also obtained leave from his employer where he is working. In spite of following-up regularly, the Ops failed to deliver the possession for months and year long except making false assurances.
5. Vexed with the false promises and assurances of Ops, complainant got issued notice on 23.12.2013, to which the Ops failed to respond having received the notice. Through e-mail, though the Ops invited the complainant to attend a meeting of buyers, they humiliated him by not allowing to attend the meeting on the premise that he got issued legal notice. As per minutes of the meeting, it was promised to handover the flat by 15.03.2014 that too without complete amenities. On account of delay in handing over the flat, the Complainant sustained huge loss and hence the complaint with reliefs, as stated supra, at paragraph no.1.
6. Opposite parties resisted the claim contending that the complaint is misconceived, false and frivolous and devoid of any merits neither maintainable in law or on facts and that the complainant approached this Commission to avoid payment of court fees and the subject matter do not fall within the ambit of Consumer Protection Act and the alleged deficiency of service is nothing but an abuse of process of law. The cause of action is illusory and false and this Commission has no jurisdiction to try the complaint and the Complainant shall have to approach competent civil court to seek his reliefs. The complaint as framed is misconceived, so also the prayers. The complaint is vexatious and intended to gain wrongly.
7. That the OP No.1 is in the field of construction of residential/commercial apartments in various places of the City and in different areas of the state. It is a well reputed company having established name in the business circle and in construction since several years. The complainant himself is responsible for his own wrong and there is no deficiency in service on their part. It admitted to have agreed to provide the amenities as averred by the complainant to the flat bearing No.506. It stated to have handed over the flats to its customers and asked the complainant to go for registration and that the flat is ready.
8. It denied having permission to the complainant to participate in the meeting. The complainant tried to defame them for not registering the flat by suppressing his part of duty and failed to pay the last instalment in spite of reminders by its CRM persons. The facility of setting-up water softening plant and centralized gas supply are not provided in the specifications of the list agreed and signed by the complainant. The complainant is not entitled for any reliefs much less the amount of Rs.9,69,978/- demanded towards interest and Rs.1,65,000/- demanded towards house rent @ Rs.15,000/- per month. Hence, prayed to dismiss the complaint with exemplary costs.
9. On his behalf, the Complainant filed his affidavit and the documents, Exs.A1 to A21. On behalf of the Opposite parties, T.Satyanarayana, one of its Director had filed his affidavit and the documents Ex.B1 and B2 in support of their case.
10. Ex.A1 is the copy of advertisement made in newspaper dated 23.01.2010; Ex.A2 is the copy of information downloaded from the official website of the Ops; Ex.A3 is brochure floated by the Ops; Ex.A4 is copy of agreement of sale dated 21.07.2012; Ex.A5 is copy of home loan agreement provided by HDFC bank; Ex.A6 is the copy of Tripartite Agreement entered by the Complainant, OP No.1 and the HDFC bank; Ex.A7 are the copies of payment receipts for Rs.51,51,263/- made by Complainant to OP No.1; Ex.A8 is the copy of statement of account of complainant's bank account, for the period from 01.03.2012 to 31.03.2012; Ex.A9 is the e-mail dated 19.03.2012 addressed by the Complainant to nageswara subbaraju (the previous owner of the flat) informing that an amount of Rs.4,36,020/- is paid to one Mr.Bharath towards difference amount; Ex.A10 are the copies of e-mail, specifications, summary of accounts, receipts, photos, etc., showing entrustment of interior works of the flat to one Virat Interior Decorators; Ex.A11 and A12 are the series of e-mails addressed by the complainant to the Ops personnel seeking clarification as to the date of completion of subject flat and handing over possession to perform house warming ceremony; Ex.A13 and A14 are the copies of various online rail reservations made by the Complainant for himself, his family members, relatives and guests and also the subsequent cancellation thereof; Ex.A15 are the copies of leave obtained by Complainant from his employer; Ex.A16 are the copies of refunds received from the railways; Ex.A17 are the copies of e-mail correspondence in between the complainant and his brother as also the online rail reservations; Ex.A18 is the copy of e-mail addressed by the personnel of Ops to complainant promising to complete the flat by 20th of January 2014; Ex.A19 is the office copy of legal notice got issued by the Complainant; Ex.A20 are the copies of postal receipts and acknowledgements showing sending of Ex.A19 notice; Ex.A20 is the copy of minutes of meeting dated 25.01.2014 circulated by the Ops and Ex.A21 is the copy of e-mail dated 03.02.2014 addressed by the Complainant giving proper clarifications to the minutes of meeting. Ex.B1 is the copy of intimation given to the flat owners to go for registration of the flat. Ex.B2 is the copy of registration charges break-up intimated to the complainant.
11. The points for consideration are :
i) Whether the there is any 'deficiency in service' on the part of the Opposite parties and whether the Complainant is entitled for the reliefs as prayed for?
ii) To what relief ?
12. POINT NO.1 : It is not in dispute that the Ops offered the subject flat for sale for a total consideration of Rs.53,25,000/- in pursuance of the Agreement of sale dated 21.07.2012 and it is also not in dispute that the Complainant paid the major part of the sale consideration amounting to Rs.52,32,013/- as on the date of filing the complaint. It is also not in dispute that the Ops agreed to deliver the subject flat on or before 31.03.2013.
13. Except contending that the Complainant has not come forward for registration of the flat, no concrete evidence is brought on record by the Opposite parties to show that the flat is completed in all respects as on date or within the agreed time. In spite of making correspondence in the form of e-mails from time to time by the Complainant, there had been no response from the Opposite parties and their employees, as is evident from the Ex.A11, A12 and A18. From the perusal of the above documents, it would clearly establish that the Complainant made arrangements for house warming ceremony basing on the assurances made by the Opposite parties to deliver the possession of the flat, by inviting his friends and relatives. It would also establish that the Complainant reserved train tickets to himself, his family members and relatives and later got cancelled the same.
14. The Complainant also obtained leave from his employer to celebrate the house warming ceremony. On account of failure to handover the possession of the flat by the Opposite parties, the Complainant could not perform the house warming ceremony. Except denying the contentions raised by the Complainant, nothing is brought on record by the Opposite parties to show that they made ready the flat for handing over the possession of the flat. Mere registration of the flat would not amount completion of the flat.
15. It is the case of the Opposite parties that the Complainant is responsible for his own wrong doing. Not even a single instance is placed on record what is the wrong committed by the complainant. Instead, it is the Opposite parties who failed to reply and respond to the queries raised by the Complainant from time to time in the form of e-mails. Be that as it may, there is no reply to the legal notice got issued by the complainant. The counsel for Opposite parties would further contend that this Commission has no jurisdiction and only the civil court is vested with such powers. In this regard, we may state that where builder commits breach of its obligations, the owner has the right to enforce specific performance and/or claim damages by approaching civil court. He can also approach Fora constituted under the Consumer Protection Act for the reliefs as a 'consumer' against the builder as service provider since the remedy available under the Act is in addition to normal remedy or other remedy that may be available to complainant.
16. We may state that the Developer who is offering the flats for sale with a promise to provide the amenities as per the brochure is bound to comply with and are amenable to the jurisdiction of consumer forum in case of deficiency of services. In the present case, the inaction on the part of the Opposite parties in completing the flat as also in not providing the amenities as agreed and promised as per the brochure Ex.A1 and A3 for more than sufficient period of time clearly establish deficiency of service as the Complainant was prevented from enjoying the use and occupation of his own house, having invested his hard earned sweat. Thus, considering the surrounding circumstances where the Opposite parties have been unable to complete the flat and handover its possession for more than considerable period of time, we are of the opinion that it constitutes deficiency of service and negligence.
17. It is the case of Complainant relying on the false assurance and promise of the Opposite parties, he made arrangements for house warming ceremony and in that process got reserved the railway tickets for his family and other relatives and guests and thereafter on account of non-completion of the flat, he got cancelled the same, which is not in denial except assigning the reason that the same are personal. For the aforesaid reasons, we answer the point No.1 in favour of the Complainant and against the Opposite parties.
18. POINT No.2 : In the result, we allow the complaint in part and direct the Opposite parties
(a) to complete the flat bearing No.506 in 'Aditya Empress Heights' in all aspects and handover the possession of the same to the Complainant along with Occupancy Certificate;
(b) to execute the sale deed, in case if not executed, conveying the subject flat in favour of the Complainant;
(c) to pay compensation of Rs.1,00,000/- for the inordinate delay and subjecting the complainant to inconvenience and hardship;
(d) to pay costs of Rs.5,000/-. Time for compliance: four weeks. The claim for other reliefs is dismissed.
PRESIDENT MEMBER Dt: 25.01.2017 APPENDIX OF EVIDENCE WITNESSES EXAMINED For Complainant : For Opposite parties : Affidavit evidence of Vijaya Krishna Affidavit evidence of T.Satyanarayana Pondala, the Complainant. on behalf of Ops 1 to 6. EXHIBITS MARKED For Complainant :
Ex.A1 is colour photocopy of advertisement caused by the Ops as regards the subject venture, in newspaper dated 23.01.2010.
Ex.A2 is copy of the information placed in the official website of the Ops.
Ex.A3 is colour photocopy of the brochure floated by the Ops.
Ex.A4 is copy of agreement of sale, dated 21.07.2012 executed by the OP No.1 in favour of the Complainant.
Ex.A5 is copy of the Home Loan Agreement, dated 10.04.2012 executed in between the Complainant and the HDFC Bank.
Ex.A6 is copy of Tripartite Agreement dated 21.07.2012 executed in between the Complainant, OP No.1 and the HDFC Bank.
Ex.A7 are the copies of consolidated receipt for Rs.7,98,750/-; cheque for Rs.2,66,250/-; cheque for Rs.37,00,000/-; disbursement details for Rs.37,00,000/- and Rs.2,93,750/-; cheque for Rs.1,73,263/- and cheque for Rs.2,13,000/-.
Ex.A8 is the copy of statement of account of complainant's bank account, for the period from 01.03.2012 to 31.03.2012.
Ex.A9 are the copies of e-mails dated 19.03.2012 and 20.03.2012 addressed by the Complainant to the Opposite parties.
Ex.A10 is the copy of e-mail dated 27.06.2013 addressed by complainant to one srinupjoseph; specifications furnished by Virat Interior Decorators for Rs.4,07,190.25; payment summary details; statement of accounts; receipts, photographs of the interiors, etc., Ex.A11 is the series of e-mails exchanged in between the complainant and the personnel of the Opposite parties, dated 04.07.2013, 08.07.2013, 10.07.2013, 19.07.2013, 02.08.2013, 02.09.2013, 02.10.2013, 29.10.2013, 03.12.2013 and 13.12.2013.
Ex.A12 is the e-mail dated 08.07.2013 addressed by the Ops to complainant informing to go ahead with interiors promising to handover the flat by 10th July.
Ex.A13 are the online ticket confirmations in respect of the family members of the complainant, his relatives and guests for the date 20.08.2013 bearing train No.12703 with PNR Nos.6519313896 (for 6 members), 6714282863 (for 5 members), 6119314493 (for 6 members), 6714283792 (for 6 members); for the date 22.08.2013 bearing train No.12704 with PNR Nos.4704910666 (for 2 members), for the train No.12704 date 24.08.2013 with PNR No.4151220640 (for 4 members), for the train No.12704 dated 23.08.2013 with PNR No.4804993331 (for 6 members), 4151303415 (for 6 members), 4351041286 (for 5 members) and for the train No.12703 date 20.08.2013 with PNR No.6320876911 (for 5 members), for the train No.12704 dated 23.08.2013 with PNR No.4152729047 (for 5 members).
Ex.A14 is the copy of ticket confirmation in respect of family members of the complainant for the train No.12704, dated 16.05.2013 with PNR No.4662705469, train No.17015 dated 19.05.2013 with PNR No.6418269237.
Ex.A15 are the copies of e-mail, dated 22.04.2013 addressed by the Complainant to his employer Production Engineering Internal Hyderabad. seeking leave from 22.08.2013 to 23.08.2013 and also the subsequent e-mails confirming the leave.
Ex.A16 are the copies of cancelled tickets history of the reservations made earlier, dated 17.08.2013, 15.08.2013, 21.08.2013, 15.08.2013, 14.08.2013, 21.08.2013, 18.08.2013 and 14.08.2013.
Ex.A17 are the copies of e-mails correspondence dated 08.07.2013, 06.08.2013, 19.08.2013 and cancelled tickets history dated 19.08.2013.
Ex.A18 is the copy of e-mail dated 03.01.2014 and 04.01.2014 addressed by the Complainant to the Ops.
Ex.A19 are the office copy of legal notice dated 23.12.2013 got issued by complainant to the Opposite parties, copies of postal receipts and postal acknowledgements.
Ex.A20 is the copy of minutes of the meeting held by the OP No.1 with the buyers of Empress Heights, dated 25.01.2014.
Ex.A21 is the copy of e-mails dated 03.02.2014 and 04.02.2014 addressed by the Complainants to the Opposite parties.
For Opposite parties :
Ex.B1 is the copy of e-mail dated 24.12.2013 addressed by the OP No.1 to all the buyers of the flats intimating to get ready for registration of the flats, to which, the Complainant gave reply seeking to inform the date when the flat would be handed over with all amenities.
Ex.B2 is the copy of the e-mail dated 30.12.2013 addressed by the OP No.1 to the Complainant intimating the registration charges and corpus fund, maintenance charges for the Empress heights flat No.506.
PRESIDENT MEMBER Dt: 25.01.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER