State Consumer Disputes Redressal Commission
Ch Sunil Kumar Hyderabad vs Lodha Healthy Construction And ... on 25 June, 2014
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD C.C.40 of 2013 Between: Sri Ch.Sunil Kumar, S/o late Sri Ch. P. Chowdary Aged about 49 yrs, R/o No. 945 SRT Sanathnagar Hyderabad. .. Complainant And 01.M/s. Lodha Healthy Construction and Developers private Limited Rep.by Director having regd office at # 216 Shah and Nahar Industrial Estate Dr. E.Moses road, Worli, Mumbai 400 018. 02.M/s. Lodha Healthy Construction and Developers private Limited Rep. by Manager having regional Lodha Belleza, East Block, Eden Square, Off KPHB road, Near High Tech City MMTS station, Hyderabad 72 03.Andhra Bank Rep by its Chief manager Sanathnagar Industrial Estate Buildings, Sanathnagar, Hyderabad .. opposite parties Counsel for the Complainant : M/s. M. V. . Suresh & Associates Counsel for the Opposite parties : Mr. A. Venkatesh for Ops 1 & 2 Mr. Nurulla Baig for OP3. QUORUM: HONBLE SRI JUSTICE GOPALA KRISHNA TAMADA, PRESIDENT AND SRI R. LAKSHMINARASIMHA RAO, HONBLE MEMBER
WEDNESDAY, THE TWENTY FIFTH DAY OF JUNE TWO THOUSAND FOURTEEN Oral Order :
( As per Sri R. Lakshminarasimha Rao , Honble Member )
1. This complaint is filed claiming for an amount of Rs.43,65,168/- with interest @ 12% P.A. on Rs.26,66,324/-
being the amount withheld by the opposite parties, a sum of Rs.2,00,000/- towards compensation for suffering, mental agony and Rs.50,000/-
towards costs.
2. The complainant entered into an agreement with the opposite parties 1 & 2 on 08.03.2010 to purchase Sky Villa # 500 on the 5th floor of Beverly Hills Building in Lodha Bellezza at East Block, Eden Square of KPHB road, High Tech City, Hyderabad for sale consideration of Rs.2,12,59,935/- to be paid in instalments by the complainant and the construction of the flat to be completed by 30.06.2011 by the opposite parties 1 and 2. The complainant also entered into Tripartite Agreement on 23.06.2010 with the opposite parties 1,2 and 3. The complainant was made to deposit earnest money of Rs.4,50,000/- on 12.06.2009, Rs.10,00,000/- on 03.08.2009, Rs.10,00,0000/- on 22.09.2009.
3. After six months, on 08.03.2010 the complainant was made to sign on the printed format of the agreement with 47 clauses without giving time to him to go through the contents and later he was shocked to know several terms and conditions which he had not agreed for. The opposite parties made several illegal demands by way of sending letters without completing the construction of the flat.
4. The opposite parties issued cancellation letter on 13.01.2013 unilaterally deducting a sum of Rs.80,13,894.00 out of the total amount of Rs.85,53,894.00 paid by him. The complainant contacted the opposite parties through their representatives to refund the amount paid by him, instead after gap of eight months they had sent reply on 01.02.2013 justifying their cancellation. The complainant claimed for the amounts as hereunder :
S.No Date Andhra Bank cheque No Amount 01 20.07.09 113969 4,50,000 02
05.08.09 058720 10,00,000 03 23.09.09 058719 10,00,000 04 08.02.10 103938 63,894 05 04.02.11 Bankers cheque 50,00,000 06 11.07.11 Bankers cheque 10,40,000 Total amount paid by the complainant 85,53,894 Minus : the amount received from the opposite parties nos 1 and 2 58,87,570 Balance amount to be paid by the opposite parties 26,66,324
5. The opposite parties illegally withheld an amount of Rs.26,66,324/- with them after cancelling the allotment of flat. He is entitled the said amount with interest @ 12% PA from the date of agreement as per clause 24 of the agreement if the builder fails to hand over possession beyond the grace period of six months. The complainant has submitted that the acts of opposite parties amount to deficiency in service and unfair trade practice Hence, the complaint.
6. The opposite parties 1 and 2 filed their written version and contended that since both the opposite parties 1 and 2 are the same entities, hence 2nd opposite party need be removed. The complainant already possessed a residential bungalow at Jubilee hills and since he purchased the Flat purely for commercial purpose, the complainant is not a consumer and hence the complaint is not maintainable. The complainant defaulted in paying the prescribed amounts inspite of repeated reminders and opportunities within due date and failed to honour the contractual obligations.
7. As per clause 20 of the sale agreement the allotment of the flat was cancelled and 10% of the amount paid by the complainant was forfeited and as per clause 6 all overdue payments would attract interest @ 18% pa and clause 9 provides for forfeiture of 10% of the consideration of the flat in case of cancellation. The opposite parties addressed number of letters to the complainant for payment of outstanding dues. The complainant is still due an amount of Rs. Rs.20,63,894/- before 26.7.2009 to the opposite parties..To take advantage of his willful default in payment of amounts and to extract money from the opposite parties no. 1 and 2, the complainant filed this complaint.
8. The complaint is filed for refund of the amount and as such this Commission has no jurisdiction and only the Civil Court is the appropriate authority to try the lis. The complainant has willfully suppressed material facts and material documents from this Commission and committed willful misrepresentation of facts. The complainant is negligent in paying the due amounts. The complainant is not entitled for refund of any amount. The opposite parties no. 1 and 2 submitted that there is no deficiency in service or unfair trade practice on their part and thus prayed for dismissal of the complaint.
9. The third opposite party Andhra Bank submitted that the dispute is in between the complainant and the opposite parties 1 and 2 and that no claim is made against it and hence prayed for dismissal of the complaint against it.
10. In support of his claim, the complainant filed his affidavit and the documents Ex. A1 to A-16 and on behalf of the opposite parties the authorized signatory of the opposite parties 1 and 2 filed his affidavit and the documents Ex.B1 to B 28. The complainant filed his written arguments.
11. The points for consideration are:
i) Whether the opposite parties committed deficiency in service in providing the amenities to the building?
ii) To what relief?
12. POINT.
NO. 1: The facts beyond any dispute between the parties are that the complainant purchased the Flat bearing number Sky Villa # 500 admeasuring 4761 sft on the 5th floor of Beverly Hills Building in Lodha Bellezza at East Block, Eden Square of KPHB road High Tech City, Hyderabad for sale consideration of Rs.2,12,59,935/-. The complainant paid an amount of Rs. 85,53,894/- through cheques on various dates from 20.07.2009 till 11.07.11. The complainant availed loan from the opposite party no.3 and the complainant and the opposite parties 1,2 and the opposite party no.3 entered into Tripartite Agreement on 23.06.2010.
13. The complainant contends that the representatives of the opposite party had misrepresented him that after he paid earnest money the agreement of sale would be entered into with their head office and acting upon their representation, he paid the earnest money, Rs.4,50,000/- on 12.06.2009, Rs.10,00,000/- on 03.08.2009 , Rs.10,00,000/- on 22.09.2009. He has stated that he is not aware of certain terms and conditions of the tripartite agreement and the opposite parties no. 1 and 2 had not allowed him to go through them and certain terms of the tripartite agreement such as municipal taxes, expenditure for formation of society etc which the complainant had not agreed for.
14. The complainant has not raised objection that he had not gone through the terms of the tripartite agreement and certain terms of the agreement are not agreeable to him. He had proceeded with the transaction basing on the Tripartite Agreement and there is no evidence on record to substantiate his contention that his signature was obtained on the Tripartite Agreement and he is not aware of the terms and conditions mentioned therein.
15. The learned counsel for the complainant has relied upon the decision of this Commission in Nisha Gupta, Hyderabad Vs. M/s. lodha Healthy Construction and Developers Private Limited decided on 08.03.2013. The learned counsel for the opposite patties has contended that the decision is distinguishable on the premise that in that case the complainant opted for cancellation of allotment whereas as in the case on hand it is the opposite parties who cancelled the allotment of the Flat. In that case the complainant became defaulter in the matter of payment of the installments and despite the fact the opposite parties had not chosen to cancel the allotment even after lapse of considerable period of time and the opposite parties failed to respond even after cancellation of the agreement effected by the complainant.
16. The Application Form contains terms and conditions of the contract as to the allotment of Flat , schedule of payment, cancellation of booking etc whereas the Customer Information Sheet contains payment schedule. The Application Form denotes the amount of Rs.4,50,000/- as application money while the Customer Information Sheet reflects the same amount as booking advance. The application form provides for treating the amount of Rs.4,50,000/- as advance subject to acceptance of the application. Thus, the amount of Rs.4,50,000/- can be considered as earnest money and not the rest of money paid by the complainant. The complainant branded the entire amount he paid as earnest money which cannot be accepted in the light of payment schedule which runs over 17 installments payable in accordance with the stage of the construction of the Flat.
17 The learned counsel for the opposite parties no. 1 and 2 has contended that complainant has to make payment in accordance with Clause 6.0 of the Application Form and payment schedule mentioned in the Customer Information Sheet till execution of Agreement of Sale. As seen from the reply dated 01.02.2013 of the opposite parties, the delayed payment in terms of Clause 6.0 of the Agreement of Sale carries interest @18% p.a.. The opposite party issued cancellation of allotment letter dated 13.01.2012 informing the complainant that out of the sale consideration of Rs.2,12,59,935/-, the complainant paid an amount of Rs.80,13,894/- and the balance consideration of Rs.1,37,18,645/- payable in installments by 25.10.2011 was not received from the complainant despite repeated request and reminders and as such the opposite parties cancelled the allotment and in terms of the Allotment Letter, they deducted an amount of Rs.26,66,324/- and paid the sum of Rs.58,87,570/- through cheque to the complainant.
18. The complainant raised protest for the opposite parties had forfeited an amount of R.80,13,894/- towards 10% of the sale consideration and he addressed letter dated 06.06.2012 with a request to the opposite parties to pay him the amount for which the opposite parties replied on 01.02.2013 stating that they had forfeited a sum of Rs.26,66,654/- and they deducted the amount in terms of the allotment letter and the Agreement of sale.
19. It is settled position of law that the terms and conditions of the contract are binding on the parties thereto. The rights and liabilities of the parties on cancellation of the allotment are crystallized in the Agreement of Sale in Clause 20 which reads as follows:
On the purchaser committing default in payment on due date of any amount due and payable by the purchaser/s to the builder/promoter under this agreement ( including his/her proportionate share of taxes levied by concerned local authority and other outgoings) and /or on the purchaser committing breach of any of the terms and conditions herein contained, the builder/promoter shall be entitled at its option to terminate this agreement and in such event the Purchaser shall have no right of any nature whatsoever either against and/or in respect of the said Residential Apartment or against the Builder/promoter. Provided always that the power of termination herein before contained shall not be exercised by the Builder/promoter unless and until the Builder/promoter shall have given to the purchaser ( 15) fifteen days prior notice in writing of its intention to terminate this agreement and of the breach or breaches of terms and conditions in respect of which it is intended to terminate the agreement and default shall be been made by the Purchaser/s in remedying such breach or breaches within a period of 15 days after the giving o such notice. Provided further that upon termination of this agreement as aforesaid, the Builder/promoter shall refund in 12 equal monthly instalments commencing from the 13th month of such termination to the purchaser/s the amounts which may till then have been paid by the Purchaser to the Builder/Promoter in respect of the Residential Apartment after deducting therefrom towards Liquidated Damages ( and not as a penalty) 10% of the total price in respect of the Residential Apartment payable hereunder.
In terms of Clause 20 of the Agreement of Sale, the opposite parties are bound to issue notice fifteen days prior to issuance of cancellation of allotment and the cancellation of the allotment can only be made on failure of the complainant to pay the overdue amount.
20. The opposite parties had not issued any 15 days prior notice in compliance of requirement of Clause 20 of the Agreement of Sale and they had straight away proceeded to cancel the allotment which is the breach of terms of the Agreement and on account of such violation of terms of the agreement on their part, the opposite parties cannot invoke the other terms of the Agreement in support of their claim for deduction of 10% of the consideration of the Flat from the amount received from the complainant. The opposite parties, as such are liable to pay back the amount of Rs.26,66,324/-to the complainant.
21. The agreement of sale contains clause that on cancellation of the allotment, the amount payable to the complainant does not carry any interest. Admittedly , the complainant paid the installments only from 20.07.2009 to 11.07.2011. The opposite party has chosen to cancel the allotment on failure of the complainant to pay the installments due. As such the complainant cannot claim interest or compensation from the opposite parties except seeking for the balance amount due from them.
22. In the result, the complaint is allowed directing the opposite parties to pay to the complainant an amount of Rs.26,66,324/- and costs of Rs.5,000/-. Time for compliance four weeks.
PRESIDENT MEMBER DATED : 25.06.2014.
( contn.. page 10) APPENDIX OF EVIDENCE WITNESSES EXAMINED FOR THE COMPLAINANT : NONE FOR THE OPPOSIE PARTIES : NONE DOCUMENTS MARKED FOR THE COMPLAINANT :
Ex.A-1: 12.06.2009 : Receipt issued by opposite parties Ex.A-2: 03.08.2009 : Receipt issued by opposite parties Ex.A-3: 22.09.2009 : Receipt issued by opposite parties Ex.A-4: 06.02.2010 : Receipt issued by opposite parties Ex.A-5: 04/02.2010: Letter of allotment issued by Ops.
Ex.A-6; 08.03.2010: Agreement of sale Ex.A-7: 23.06.2010: Tripartite Agreement Ex.A-8: 13.01.2012; cancellation of allotment Ex.A-9: 06.06.2012: notice issued by complainant Ex.A-10: 12.06.2012;
& 13.06.2012; Acknowledgement of Ops Ex.A-11: 01.02.2013: reply issued by Ops.
Ex.A-12: 03.02.2012: Statement of Account issued by OP No.3 Ex.A-13: 31.01.2013: Certificate of payment of processing fees issued by OP.3.
Ex.A-14: 01.02.2013: Interest Certificate for financial year 01.04.2010 to 31.03.2011 issued by OP.3.
Ex.A-15: 01.02.2013: Interest Certificate for financial year 01.04.2011 to 31.03.2012 issued by OP.3.
Ex.A-16: 01.02.2013: Interest Certificate for financial year 01.04.2012 to 26.07.2012 issued by OP.3.
FOR THE OPPOSITE PARTIES :
Ex.B-1: 21.05.2009 : application form Ex.B-2: 13.08.2009; -mail from Ops to complainant
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Revised customer information sheet Ex.B-3: 14.09.2009: e-mail from Ops to complainant Ex.B-4: 15.10.2009: e-mail from Ops to complainant Ex.B-5: 07.12.2009: demand letter Ex.B-6: 06.01.2010 : demand letter Ex.B-7: 01.02.2010: letter Ex.B-8: 10.02.2010; demand letter Ex.B-9: 07.04.2010; interest letter Ex.B-10: 22.04.2010: e-mal from Ops to complainant Ex.B-11: 07.06.2010: interest letter Ex.B-12: 07.07.2010: interest letter Ex.B-13: 07.07.2010: service tax demand letter Ex.B-14: 23.07.2010: e-mail from Ops to complainant Ex.B-15: 07.08.2010: interest letter Ex.B-16: 07.09.2010: interest letter Ex.B-17: 21.09.2010: e-mail from Ops to complainant Ex.B-18: 07.10.2010: interest letter Ex.B-19: 09.11.2010: interest letter Ex.B-20: 09.12.2010: letter Ex.B-21: 08.01.2011: interest letter Ex.B-22: 09.02.2011: interest letter Ex.B-23: 09.03.2011: interest letter Ex.B-24: 16.06.2011: cancellation email from Ops to complainant Ex.B-25: 18.06.2011: email from complainant to OPs Ex.B-26: 16.07.2011: interest letter Ex.B-27: 04.08.2011: revised possession date letter Ex.B-28: 19.12.2011: interest letter PRESIDENT MEMBER DATED :25.06.2014