State Consumer Disputes Redressal Commission
Shri Rohan Kamat vs 1. M/S. Aliens Developers Private Ltd., on 20 March, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.135/2016
Between :
Shri Rohan Kamat, S/o.Shri Ramesh A.Kamat,
Aged about 28 years, Occ:Business,
R/o.H.No.760, St.Mary‟s Colony,
Road Lane -1, Miramar,
Panaji, Goa - -403 001. ...Complainant
And
1.M/s.Aliens Developers Private Limited, Rep. by its M.D. Mr.Hari Challa
2. Mr.Hari Challa, S/o. not known to complainant Aged:Major, Occ: Managing Director, M/s.Aliens Developers Private Limited,
3. Mr. Venkata Prasanna Challa, S/o.not known to complainant , Aged: Major, Occ: Joint Managing Director, M/s.Aliens Developers Private Limited
4. Mr.Naveen Mypala, S/o.not known to complainant , Aged: Major, Occ: Executive Director, M/s.Aliens Developers Private Limited
5. Mr.Appa Rao Alaparthi , S/o.not known to complainant , Aged: Major, Occ: Associate Vice President, M/s.Aliens Developers Private Limited All the above are C/o.Regd. Office at Flat No.911,Teja Block , My Home Navadweepa Apartments, Madhapur, Hyderabad -500 081. .... Opposite Parties.
Counsel for the Complainants : M/s.A.Kranthi Ramana Counsel for the Opposite Parties : M/s.P.Raja Sripathi Rao-
O.P.Nos.1 to 3.
CORAM : Hon'ble Sri V.V.Seshubabu, Member (J), And Hon'ble Smt.R.S.Rajeshree, Member (NJ).
MONDAY, THE TWENTIETH DAY OF MARCH, TWO THOUSAND TWENTY THREE .
2Order :
01). The complaint is filed u/s.17(1)(a)(i) of the Consumer Protection Act, 1986 & 2002 for directions to the opposite parties 1 to 5 jointly and severally as under:
i. to pay a sum of Rs.22,51,735/- together with interest @ 24% per annum;
ii. to pay compensation of Rs.25 lakhs to the complainant ; and iii. to award Rs.50,000/- towards costs of litigation.
02). The brief averments of the complaint are that the opposite party no.1 is a private limited company doing business in the construction of flats etc. and they have advertised that they are constructing complex under the name and style of Aliens Space station-1 at Sy.no.384, Tellapur Village in R.C.Puram Mandal, Medak Dist. and lured by the same, the complainant entered into an Agreement of Sale dt.9.8.2011 with the opposite parties to purchase a flat bearing no.1840, on 18th floor of Station -7 admeasuring an area of 1432 sq.ft. in Aliens Space Station - 1 for a total sale consideration of Rs.46,82,469/-; that the delivery of possession of apartment shall be handed over including grace period by 31.8.2012; that the complainant paid Rs.2,50,000/-
by way of cheque on 25.7.2011 towards earnest money as recorded in the Agreement besides a sum of Rs.6,50,694/- by way of cheque towards margin money which was acknowledged by opposite parties 1 to 3; that the complainant obtained a loan from SBI Bank, PBB Abids Branch to the tune of Rs.13,51,041/-; that no construction commenced despite lapse of three years; that the complainant incurred interest on loan to the tune of Rs.4,23,165/-; that in total the complainant paid Rs.22,51,735/- including the bank loan; that despite assurance, opposite parties were not in a position to provide the flat, as such the complainant got issued legal notice dt.26.10.2015 to the opposite parties demanding to refund the amount with interest and compensation, the opposite party no.1 received the notice, but not others and no reply was given; hence, the complaint seeking for the reliefs as stated supra.
03). Opposite parties 1 to 3 filed written version and brief averments of the same relevant to the facts are that, there is no 3 deficiency in service; that the allegations made in the complaint are denied except those that are admitted; that the complainants have not approached the Commission with clean hands and never he asked for refund of money or for cancellation of the agreement, as such cannot claim deficiency in service; that the complaint is barred by time as the complainant entered into an agreement of sale on 9.8.2011 as per which the opposite parties are alleged to handover the possession within three years from the date of Agreement with a grace period of 6 months as per the Clause VIII, but the complainant keep quiet and filed the complaint and the complaint is liable to be dismissed as it is not filed within the period of limitation as prescribe under C.P. Act; that there is a Clause in the Agreement to go for Arbitration in case of disputes, but it was not opted for; that the complainants not paid the entire instalments as stipulated under the Agreement for which the opposite party is entitled to cancel the allotment and forfeit earnest money; that the opposite party had fought for conversion of land from agriculture to non agriculture and after formation of HUDA has to obtain permission for agriculture zone to residential and commercial zone etc., and also with regard to the projects be in conformity with the master plan, to obtain „No Objection Certificate‟ from the Fire Services Department and on several other aspects that as per Clause XIV, the opposite party cannot be found fault with for non completion of project on time "Force Majeure"; that as per Clause VIII(g) of the Agreement, the opposite parties shall pay compensation charges at Rs.3/- per sq.ft. per month, in case of failure to deliver possession, and the said amount would be adjusted to the dues payable by the complainants; with these pleas the opposite parties prayed for dismissal of the complaint with exemplary costs.
04). Notices sent to opposite parties 4 & 5 returned with an endorsement "refused" and service of notice held sufficient and it is deemed to be an order of exparte.
05). The complainant filed Evidence Affidavit as PW.1. Exs.A1 to A19 are marked on behalf of the complainant. Mr.Hari Challa (opposite party no.2), Managing Director of opposite party no.1 4 filed evidence affidavit as DW.1 and got marked Exs.B1 to B18.
Heard arguments on both sides.
06). Basing on the pleadings on both sides, the following are the points for consideration:
i. Whether the opposite parties are
deficient in services and adopted
unfair trade practice towards the
complainant ?
ii. Whether the complainant is entitled
for the reliefs as claimed?
iii. Whether the complaint is barred by
time?
iv. Relief?
07). Points 1 to 3 : As per Agreement of Sale dt.9.8.2011, PW.1
paid Rs.2,50,000/- as an advance by way of cheque towards
purchase of the flat. The balance payable was shown at
Rs.44,32,469/-. The possession shall be handed over on or before 31.8.2012 including the grace period. Payment plan was appended to Ex.A1 under the caption Annexure-A. As per the same, PW.1 shall pay the amounts after demand was made by the opposite parties.
08). Ex.A2 is the Tripartite Agreement between PW.1, opposite party no.1... and State Bank of India. As per the same housing loan of Rs.29,94,000/- was sanctioned. On 17.10.2017 after filing of the complaint, opposite parties filed a Payment Schedule Memo in this Commission stating that they are willing to refund the amount by way of instalments from November,2018 to August,2019 in which it is mentioned that in total they have received Rs.22,51,735/- from the complainant and interest of Rs.16,54,563/- is added, so, it amounts to Rs.39,06,298/-. Subsequently, when the non payment of the instalments is questioned, it is represented that as PW.1 has not accepted the offer made under the memo, the payments were not made. In view of the memo it is very clear that, altogether opposite parties have received Rs.22,51,735/- .
5It is the contention of PW.1 that he was charged with interest of Rs.4,23,165/- by the Bank, but not contended that the said amount was paid by him. It may as it be there .
The main relief claimed is for refund. Therefore, we are inclined to order the refund.
09). It is the contention of opposite parties that the complaint is barred by time and it cannot be looked into in view of the presence of Arbitration Clause etc. The law is very well established that in the case of construction activities, there is no question of limitation aspect until the opposite party refused to perform his part of contract. In the case on hand never PW.1 contended refusal to perform his part of the contract. In the same manner in several judgements rendered by the Hon‟ble NCDRC and Hon‟ble Supreme Court, it is clarified that Arbitration Clause is not an obstacle for the Consumer Commissions to proceed with the case and to decide the aspect of deficiency in service or unfair trade practice if involved. Points are answered accordingly.
10). In the result, complaint is partly allowed directing the opposite parties as follows:
i. to refund Rs.9,00,694/- to the complainant with interest @ 12% p.a. from the respective dates of payments till the date of realisation; ii. to clear the entire housing loan of the complainant with SBI, PBB., Abids Branch; and iii. to pay compensation of Rs.50,000/- and costs of Rs.20,000/- to the complainant;
iv. time for compliance is one month , failing which, the compensation amount of Rs.50,000/- shall carry interest @ 12%.
(Dictated to Steno, transcribed and typed by her, corrected and pronounced by us in the open Court on this 20TH day of March, 2023).
SD/- SD/-
MEMBER(J) MEMBER(NJ)
-------------------------------------------
Dated: 20.3.2023 APPENDIX OF EVIDENCE Witnesses examined 6 For the complainant For the opposite parties Evidence Affidavit of the E.A of Mr.Hari Challa ecomplainant as PW.1 filed. -Managing Director of the.
Opp.party no.1 as DW.1 filed.
Exhibits marked on behalf of the complainants:
Ex.A1 : Photostat copy of Agreement of Sale dt.9.8.2011 between complainant and opposite parties. Ex.A2 : Photostat copy of Tripartite Agreement dt.8.9.2011 between O.P.No.1,complainant and SBI. Ex.A3 : Photostat copy of Arrangement letter dt.8.9.2011 addressed by SBI to the complainant. Ex.A4 : Photostat copy of Customer Information Sheet issued by opposite party no.1 on behalf of Complainant.
Ex.A5 : Photostat copy of details of amenities that will be provided by opp.party for Flat no.1840. Ex.A6 : Mail correspondence between the opp.party and Complainant along with brochure of Aliens Space Station.
Ex.A7 : Mail correspondence between the opp.party and Complainant along with brochure of Aliens Space Station.
Ex.A8 : Mail correspondence between the opp.party and complainant .
Ex.A9 : Mail sent on behalf of opposite party no.1 to the complainant , dt.27.5.2014.
Ex.A10 : Mail sent by the opposite party to the complainant Dt.26.6.2015.
Ex.A11 : Statement of account relating to the complainant from 1.7.2011 to 30.8.2011 with HDFC Bank. Ex.A12 : Lr.from Ramesh A.Kamat to the Asst. Gen.Manager, RACPC, SBI.
Ex.A13 : Photostat copy of receipt dt.17.7.2011 issued by O.P. for the payment of Rs.2,50,000/- made on behalf of complainant.
Ex.A14 : Photostat copy of receipt dt.8.8.2011 issued by O.P. for the payment of Rs.6,50,694/- made on behalf of complainant.
Ex.A15 : Statement of account of the complainant from 8.9.2011 to 3.5.2016 with SBI.
Ex.A16 : Copy of legal notice dt.26.10.2015 issued on behalf of the complainant to the opposite parties. Ex.A17 to A19 : Photostat copies of postal receipts Ack.Cards.
Exhibits marked on behalf of the opposite parties: Ex.B1 : Photostat copy of lr.dt.31.12.2007 from Principal Secretary to Govt. , MA & UD Dept., A.P. Secretariat, Hyd. addressed to the Vice Chairman, HUDA. Ex.B2 : Photostat copy of G.O.Ms.no.288 dt.3.4.2008. Ex.B3 : Photostat copy of Lr.Dt.5.5.2007 from the Collector & Dist. Magistrate, Medak to the Vice Chairman & M.D.,HUDA.
Ex.B4 : Photostat Copy of the Minutes of the Meeting of the MSB Committee meeting for HUDA area held 7 on 29.2.2008 .
Ex.B5 : Photostat copy of lr.dt.31.3.2008 from the HUDA to the Principal Secretary to Govt. , MA & UD Dept., Govt. of A.P.,Secretariat, Hyd.
Ex.B6 : Photostat copy of lr.dt.11.4.2008 from the HUDA to the opp.party.
Ex.B7 : Photostat copy of lr.dt.11.4.2008 from the HUDA to the Executive Authority, Tellapur Gram Panchayat, Ramachandrapuram Mandal, Medak Dist. Ex.B8 : Photostat Copy of the Minutes of the Meeting of the MSB Committee Meeting for HUDA area held on 5.6.2008.
Ex.B9 : Photostat copy of lr.dt.14.10.2009 from HMDA to the Executive Authority, Tellapur Gram Panchayat, Ramachandrapuram Mandal, Medak Dist. Ex.B10: Photostat copy of Lr.Dt.12.8.2008 from Ministry of Environment & Forests to the Opposite party. Ex.B11: Photostat copy of lr.dt.24.11.2009 from the Principal Secretary to Govt. MA & UD Dept., A.P. Secretariat, Hyd. to the opp.party.
Ex.B12: Photostat copy of lr.dt.8.10.2010 from the opp.party to the Director (Plg) & I/c Member (UP) , HMDA. Ex.B13: Photostat copy of lr.dt.28.3.2011 from HMDA to the opp.party.
Ex.B14: Photostat copy of Cash Acknowledgement Receipt issued by HMWSSB.
Ex.B15: Photostat copy of certificate issued by IGBC on behalf of the Aliens Space Station 1.
Ex.B16: Photostat copy of Certificate issued by CITYSCAPE -
Awards - Real Estate -Asia 2009 on behalf of Space Station 1 by Aliens Developers Pvt.Ltd. Ex.B17: Photostat copy of lr.dt.2.11.2015 from the opposite party to the owner of the flat no.2782.
Ex.B18: Photographs of apartments and flat owners.
SD/- SD/-
MEMBER(J) MEMBER(M)
--------------------------------------
Dated :20.3.2023.