State Consumer Disputes Redressal Commission
M/S. Mohak Builders And Developers, A ... vs Devireddy Lakshmi Kumari on 1 February, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. A/712/2014 (Arisen out of Order Dated 19/11/2014 in Case No. Complaint Case No. CC/82/2011 of District Hyderabad-III) 1. M/s. Mohak Builders and Developers, A Partnership Firm, Represented by its Partner A Partnership Firm, Represented by its Partner, Prasant Saboo, O/o.D.No.3-5-141/2, Ramkoti, Eden Bagh Hyderabad Telangana ...........Appellant(s) Versus 1. Devireddy Lakshmi Kumari W/o. Late Madhava Reddy, Hindu, Aged about 56 years, Occupation Housewife, R/o. Flat No.203, Surabhi Apartments, Opposite Jain Bhavan, Ramkoti Hyderabad Telangana ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT For the Appellant: For the Respondent: Dated : 01 Feb 2017 Final Order / Judgement BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD FA NO.712 OF 2014 AGAINST CC NO.82 OF 2012 ON THE FILE OF DISTRICT FORUM-III, HYDERABAD Between: M/s Mohak Builders & Developers, a Partnership firm, represented by its partner, Prasant Saboo, D.No.3-5-141/2, Ramkoti, Eden Bagh, Hyderabad. ...Appellant/Opposite party And Devireddy Lakshmi Kumari W/o late Madhava Reddy, Hindu, aged about 56 years, Occ: Housewife, R/o Flat No.203, Surabhi Apartments, Opp: Jain Bhavan, Ramkoti, Hyderabad. ...Respondent/Complainant Counsel for the Appellant : M/s A.M. Rao Counsel for the Respondent : Sri P.Narahari Rao Coram : Hon'ble Sri Justice B.N.Rao Nalla ... President and Sri Patil Vithal Rao ... Member
Wednesday, the First day of February Two thousand Seventeen Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** This is an appeal filed by the Opposite party aggrieved by the orders of District Consumer Forum-III, Hyderabad dated 19.11.2014 made in CC No.82 of 2012 in allowing the complaint and directing the Opposite party in following terms:
(i) shall allot and deliver legal and peaceful vacant physical possession of 864 sft (25%) each in ground floor and 1st floor on the south east corner, facing Himayathnagar Main Road, to the Complainant towards her share in ground floor and first floor (totaling 1728 sft for both the floors), in the premises bearing Municipal No.3-6-476, Himayathnagar Main Road, Hyderabad;
(ii) shall allot and deliver legal and peaceful vacant physical possession of 2592 sft on the 3rd floor of the building on South-East corner facing Himayathnagar Main Road, towards her 25% of share, in 2nd, 3rd and 4th floors;
(iii) shall specify the cellar common areas car parking space and other amenities for which the Complainant is entitled towards her 25% share, in the building in the delivery of possession letter, without any ambiguity to avoid future litigation in utilization of the building that fell to the share of the complainant;
(iv) shall pay the Complainant a sum of Rs.12,96,000/- towards the rent for ten months i.e., from 21.02.2011 to 21.12.2011 with interest @ 12% p.a. from 21.12.2011 till realization;
(v) shall pay the complainant rent @ Rs.1,29,600/- per month from 21.12.2011 with interest at 12% p.a. from the respective dates when the rents became due for a particular month, till delivery of legal and peaceful physical possession of the building that fell to the share of the Complainant as mentioned in clause No.1 to 3;
(vi) shall pay the complainant a compensation of Rs.2.00 lakh and costs of Rs.2,000/-, granting time of (30) days. In case the Opposite party fails to comply within the stipulated period, then the Opposite party shall be liable to pay the amounts mentioned in 4 and 5 clause with interest @ 15% p.a. instead of 12% p.a. from the respective dates when the rents became due till realization and interest @ 15% p.a. on the amount of compensation, mentioned in clause (6) from the date of filing the complaint, till realization.
2) For the sake of convenience, the parties are referred to as arrayed in the complaint.
3) The case of the complainant, in brief, is that she is one of the absolute owner of the property situated at 3-6-476, Main Road, Himayath Nagar, Hyderabad entered into Development Agreement-cum-Irrevocable General Power of Attorney, dated 29.10.2007 along with Devireddy Venkata Reddy and Devireddy Madhava Reddy with the Opposite party for construction of commercial complex consisting of ground, 1st, 2nd, 3rd and 4th floors. They also executed supplement agreement mutually on 04.07.2009 for their shares in the commercial complex. As per the agreement, complainant is entitled for 864 sft. on each floor and it was promised by the Opposite party to allot the road facing.
4) At the time of execution of above Development Agreement, the Opposite party paid to the complainant and her husband a sum of Rs.10,00,000/- towards interest free refundable deposit, which is refundable to the Opposite party upon completion of the construction and handing over possession to the complainant. As per condition No.12 of the development agreement, the Opposite party shall complete the construction within 18 months from the date of obtaining sanction plan from HUDA and Municipality, with a grace period of 6 months. Under the clause of exclusions, delay caused due to force majeure, act of god and other unforeseen factors which are beyond the control of the developer such as major civil disturbances, court orders, government restrictions resulting in serious shortage of raw material like cement, steel, etc., are excluded. It was agreed to pay the rent of Rs.30/- per sft, if the Opposite party fails to handover the possession of the flat within stipulated time.
5) The Municipal Corporation of Hyderabad has accorded permission to construct the building vide permit No.6-38 dated 21.02.2009 for construction of cellar, ground + 3 floors and partly fourth floor in premises No.3-6-476, Himayath Nagar, Hyderabad. And from this date, the Opposite party shall complete the construction of the building within 18 months i.e., on or before 21.02.2011 with grace period of six months but the Opposite party failed to handover the road side flats to complainant till now. And on 31.10.2009, the OP informed the Complainant that it intend to lease-out its share in the property to one Saboo Marketing & Services (P) Ltd., which is its sister concern and requested to execute the sale deed in favour of Saboo Marketing & Services (P) Ltd., which the Complainant signed some documents, which were not handed over subsequently. In spite of several requests to hand over the share of complainant on the road side with metes and bounds, the Opposite party postponed the same on one pretext or other.
6) On 03.11.2011, the Opposite party issued a letter stating that the construction was completed in the month of November 2010 and thereby demanded to refund the deposit amount of Rs.10,00,000/- along with interest @ 21% p.a. Having received the same, the Complainant was shocked to see that there is a shop running on the complainant's share i.e., road side. When asked about her road side share, the Opposite party gave evasive reply and informed that her share is towards backside, which she objected. Surprisingly, the road side property was registered in the name of Saboo Marketing & Services (P) Ltd., which is the sister concern vide document No.2581/2009 and the road side property on the first floor was registered in the name of one R.Kishore Saboo, partner of the Opposite party vide document No.2543/2009 without acceptance of the complainant.
7) When questioned by the Complainant as to the illegal activities, the Opposite party gave evasive reply. As such, on 21.12.2011, the complainant lodged a complaint against the Opposite party with P.S. Narayanaguda. The construction of remaining floors is yet to be completed. The Opposite party is not handing over the share of complainant, hence, liable to pay rent of Rs.30/- per sft on each floor from 21.02.2011 onwards. These acts of the OP amounts to negligence and deficiency in service. Hence the complaint praying to direct the Opposite party to handover the road side facing share in the property with an extent of 864 sft in ground, 1st, 2nd, 3rd and 4th floors to the complainant; to pay Rs.12,96,000/- towards rent as per the Development Agreement and the compensation for mental agony; to award costs of Rs.5,000/-and other reliefs.
8) Opposite party resisted the claim by way of written version contending that the complaint is filed by concealing the material facts. The complainant entered into development agreement-cum-irrevocable GPA along with other land owners for construction of commercial complex consisting of ground + 4 floors and also executed supplement agreements dated 04.07.2009 and 16.09.2009 giving clear demarcations to the shares of respective parties. As per which, complainant is entitled to 864 sft on ground and first floor and 2592 sft on third floor. The averment that the Opposite party promised to allot road facing property is false and incorrect.
9) After completion of the construction before time schedule, Opposite party communicated the same to the daughters of complainant by name Parvathi and Bindu in the month of October 2010 by way of e-mails, by which time, the Complainant was in USA along with her daughters. Due to delay on the part of the complainant in refunding the deposited amount of Rs.10,00,000/- and indecisiveness on her part in leasing out the premises, she could not take possession till date. In fact, the property of the other co-owners had already been handed over to them as per the agreed schedule. After thorough verification, the GHMC had given Occupancy Certificate on 30.03.2011 only after completion of construction. It denied the other averments of the complainant to be false.
10) Opposite party denied that the complainant signed some documents believing its words. The agreements of sale entered into with the sister concern of Opposite party was signed by all the owners including complainant. As per the said agreements, sale deeds were executed subsequently. The complainant duly signed the sale deed by coming over to the office of Sub-Registrar. On 03.11.2011, Opposite party addressed letter seeking refund of Rs.10,00,000/-. In fact, complainant visited the premises much earlier, took photographs and posted in the social network site. No cause is made-out of negligence or deficiency in service. To evade payment of Rs.10-00 lakhs, the present complaint is filed. Hence, prayed to dismiss the complaint with exemplary costs.
11) During the course of enquiry before the District Forum, in order to prove her case, the Complainant examined PW1 toPW3 on evidence affidavit and the documents Exs.A1 to A12 and on behalf of the Opposite party, got examined DW1 and DW2 on evidence affidavit and the documents Ex.B1 to Ex.B8.
12) The District Forum after considering the material available on record, allowed the complaint bearing CC No.82/2012 by orders dated 19.11.2014, granting the reliefs, as stated supra, at paragraph No.1.
13) Aggrieved by the above orders, the Appellant/Opposite party preferred the above appeal contending that the forum below (a) ought to have dismissed the complaint as the relief claimed is contrary to the admitted terms and conditions of the Ex.B7, Supplementary Agreement; (b) ought not to have conducted a roving enquiry and ought to have dismissed the complaint on the ground of suppression of material facts; (c) committed error in basing the orders on the fact that the Respondent is an old, sick lady and that she had kept in the court several times; (d) ought to have seen that the delay in handing over possession was only 3 months; (d) erred in awarding compensation when there is no deficiency in service; (e) committed error in law in considering the Ex.B6 and B7 in wrong perspective as the same were executed by the Respondent; (f) committed error in concluding that Devi Reddy Venkat Reddy was not in astound state of mind at the execution of Ex.B7 and in assuming that Prashant Saboo must have manipulated the location maps and going into the genuineness of the signatures on Ex.B7 when the same were not in dispute at all; (g) committed grave error in taking into consideration the facts which are not concerned with the complaint; (h) committed error in holding that GHMC should not have granted Occupancy Certificate; (i) failed to consider that the Respondent, had in fact, filed application for appointment of advocate Commissioner for verifying the construction and had later withdrawn after the photographs were filed; (j) committed error in solely relying on the evidence of PW2 and PW3 disbelieving the evidence of DW2. Hence, prayed to allow the appeal and set aside the orders of the forum below.
14) The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
15) It is not in dispute that the Appellant and the Respondent along with other land owners have entered into a Development Agreement for construction of a commercial complex wherein, it was agreed that the 50% of the constructed area would be kept by the developer and the other 50% would be allotted to the land owners. It is also not in dispute that the subject property is located on the main road of Himayath Nagar, Hyderabad. It is also not in dispute that the Appellant altogether paid a sum of Rs.20,00,000/- to the land owners towards refundable interest free deposit. It is also not in dispute that the Appellant agreed to complete the construction of the project within a period of two years from the date of obtaining permission from the GHMC.
16) It is further not in dispute that the GHMC accorded permission for construction of cellar, ground + 3 upper floors and partly fourth floor in the subject premises vide permit No.6-38 dated 21.02.2009 in favour of the parties, over the subject premises. The only dispute is that the construction was not completed within time and that the share of the Respondent facing towards road side was not allotted and that without her knowledge, the same had been sold to the third parties, which is the sister concern and part of the Appellant.
17) In order to prove her claim, the Respondent exhibited A1 to A12 documents. Ex.A1 is the certified copy of registered Development Agreement-cum-Irrevocable General Power of Attorney dated 29.10.2009; Ex.A2 is the Supplement Agreement, dated 04.07.2009, Ex.A3 is the sale deed dated 29.10.2009 registered as document No.2543/2009; Ex.A4 is another sale deed dated 31.10.2009 registered as document No.2581/2009; Ex.A5 is letter dated 03.11.2011 addressed by the complainant; Ex.A6 is the notice dated 14.09.1996 got issued by the Respondent to D.Venkat Reddy; Ex.A7 is the reply notice dated 01.10.1996 to Ex.A6 notice; Ex.A8 is the plan of the subject property; Ex.A9 is the information furnished by GHMC under the RTI Act; Ex.A10 is copy of show-cause notice dated 03.08.2013 got issued by GHMC for removal of deviated portion; Ex.A11 is information given by the GHMC under RTI Act and Ex.A12 is the approved plan vide file No.1075, permit No.6-38, dated 21.02.2009. On the other hand, the Appellant exhibited B1 to B8 documents. Ex.B1 is the replica of Ex.A2; Ex.B2 is the replica of Ex.A3; Ex.B3 is the replica of Ex.A4; Ex.B4 is copy of the Occupancy Certificate dated 30.03.2011 issued by the GHMC; Ex.B5 is the replica of Ex.A1; Ex.B6 is the replica of Ex.A2 and B1; Ex.B7 is the Supplementary Agreement dated 16.09.2009 and Ex.A8 is the e-mails communication between Prashanth Saboo and Parvathi, daughter of complainant.
18) A perusal of Ex.A1 would go to show that the subject property consists of 882 square yards, of which, the Respondent herein acquired ownership by way of Will deed dated 04.04.1980 executed by late Devi Reddy Gangi Reddy. There were suits as against each other among the land owners, which were compromised to bring-up the commercial complex, which is the subject matter in this appeal. In pursuance of the Agreement, the Appellant paid a sum of Rs.20,00,000/- to the land owners, which is not in denial. It was also provided in the agreement that the Appellant shall complete the construction of the proposed building within 18 months from the date of obtaining sanction plan from HUDA and municipality with a grace period of 6 months and on failure, agreed to pay a rent of Rs.30/- per sft., till handing over the possession of the flat.
19) From the recitals of the Ex.A5 letter addressed by the Appellant to the Complainant, it is clear that the building is ready and complete for occupation. Even the Occupancy Certificate Ex.B4 dated 30.03.2011 issued by the GHMC, Hyderabad, it is clear that the building confirms in all aspects to the requirements of the building regulations contained in HMC Act, 1955 and the bye-laws made there-under and the building is fit for occupation. Even from Ex.B4, it is clear that the mortgaged area of the building is also released. Admittedly, the Appellant obtained permission for construction of the Commercial Complex vide permit No.6/38 dated 21.02.2009 in file No.1075/CSC/TP-9/CZ/2008 in respect of the subject property. As per the recitals of Ex.A1, the Appellant is supposed to complete the construction within a period of 18 months with a grace period of six months i.e., on or before 21.02.2011. Ex.B4 would clearly establish that the building is completed in all respects as on 30.03.2011, however, with a delay of one month, which is negligible, hence, the averment of non-completion of the building may not arise.
20) It is the case of the counsel for the Respondent that the land owner is a consumer having given the property for development. No doubt, there is no quarrel on this aspect. The fact remains that the property which is brought to be constructed is a commercial complex and the sharing was agreed in equal ratios, having located on the main road of Himayath Nagar, Hyderabad which is a business locality. The permission accorded by the Municipality also fortifies this aspect. In such a circumstance, the contention of the learned counsel for the Respondent that the Respondent is a 'consumer' cannot hold good. Added to it, by the present complaint, which is under challenge in this appeal, the Respondent is claiming a share of 864 sft each in ground, 1st, 2nd, 3rd and 4th floors in addition to claiming rent of Rs.30/- per sft from 21.02.2011 onwards.
21) As stated above, from Ex.A5 letter and B4 Occupancy Certificate, the building is completed much earlier to the stipulated time. As against the same, the Respondent calculated the rent from 21.02.2011 onwards without giving any credit to the grace period six months. No piece of paper is filed by the Respondent to show that the building was not completed. Hence, we discard the plea of the Respondent that she is entitled for any rent on her share of the property in view of the fact that the building is complete in all aspects by 30.03.2011, in pursuance of the Occupancy Certificate.
22) It is pertinent to state that the title, ownership and possession in respect of the share of late Devi Reddy Madhava Reddy was bequeathed to the Respondent through a Will Deed dated 26.06.2008 registered as document No.42/2008. As such, the Respondent came to be entitled for possession of 25% share of the total premises. In so far as the entitlement of the Respondent towards road facing property is concerned, as per Supplementary Agreement dated 04.07.2009, the Respondent is allotted 864 sft in the ground floor, 864 sft in the first floor and combined 2592 sft on 2nd, 3rd and 4th floors as is evident from the table shown therein.
23) Admittedly, the Respondent has parted with the documents of sale deed dated 29.10.2009 registered as document No.2543/2009 conveying the property admeasuring 3750 sft (inclusive of 1158 sft of common areas) together with proportionate car parking space on the first floor in favour of Mr.Prashant Saboo for a consideration of Rs.83,00,000/- @ Rs.2213/- per sft. and the sale deed dated 31.10.2009 registered as document No.2581/2009 conveying the property admeasuring 2500 sft (inclusive of 772 sft of common areas) together with proportionate car parking space in the portion of ground floor in favour of M/s Saboo Marketing & Services Pvt., Ltd., for a consideration of Rs.65,00,000/- @ Rs.2600/- per sft. In terms of above calculation, the share of the Respondent, if calculated, would be as follows:
i) 864 sft. of area in the property, in the ground floor @ Rs.2600/- per sft (864 x 2600) = Rs.22,46,400-00 ii) 864 sft. of area in the property, in the first floor @ Rs.2,213/- per sft (864 x 2213) = Rs.19,12,032-00 iii) 2592 sft. of area in the property, in the 2nd, 3rd & 4th floors @ Rs.2213/- per sft (2592 x 2213) = Rs.57,36,096-00 ____________________ Total Rs.98,94,528-00
Apart from the above share, the Respondent also claimed rent of Rs.12,96,000/-, compensation of Rs.2,00,000/- and costs of Rs.5,000/-. And if these amounts are put together with the amount of Rs.98,94,528/- shown above, it would come to Rs.1,13,95,528/-. If the above monies are considered for the purpose of pecuniary jurisdiction of the forum below, it not only ousts its jurisdiction but also the jurisdiction of this Commission too.
24) Admittedly, the above two sale deeds are marked as Ex.A3 and A4 on behalf of the Respondent and Ex.B2 and B3 on behalf of the Appellant. In the document marked as Ex.A3 (Ex.B2 on behalf of Appellant), at page no.3, paragraph no.5 is to the following effect:
"WHEREAS, the vendors and the developer/builder have jointly proposed and accepted their share of the built-up areas (as per the sanctioned/approved plan by GHMC) and the undivided portion of the land and the builder/developer have been allotted 2592 sft on the FIRST floor against their share on the South side facing the Himayathnagar main road."
And at page no.4 of said sale deed (Ex.A3), clause no.3 reads as follows:
"The vendor/GPA holder second party hereby covenant that the property hereby sold is within their share of 50%, as for the Development agreement cum GPA date 29.10.2007 and that land owners are not having any right in the same."
In the document marked as Ex.A4 (Ex.B3 on behalf of Appellant), at page no.4, paragraph no.5 is to the following effect:
"WHEREAS, the vendor herein i.e. M/s MOHAK BUILDERS & DEVELOPERS are entitled for a plinth area (including common area) of 1728 sft on the GROUND FLOOR on the Southern side facing the Himayathnagar main road, 2592 sft. on the 1st floor, 884 sft on the 3rd floor and 3455 sft on the 4th floor against their share of 50% as per the Development Agreement cum GPA dtd.29.10.2007 and have the rights to sell the same as per the GPA registered vide 2954 of 2007 at District Registrar, Hyderabad."
And at page no.6 of said sale deed (Ex.A4), clause no.3 reads as follows:
"The vendor/GPA holder second party hereby covenant that the property hereby sold is within their share of 50%, as for the Development agreement cum GPA date 29.10.2007 and that land owners are not having any right in the same."
Thus, the Respondent is estopped from contending that she is entitled for the property on south side facing main road of Himayathnagar. By way of present complaint, the respondent is seeking allotment of share in the property, that too a commercial property, which is beyond the scope and jurisdiction of the fora constituted under the Consumer Protection Act, 1986. If it is presumed to be true that the builder had committed breach of his obligations, then the land owner has two options. She has the right to enforce specific performance and/or claim damages by approaching the civil court or she can approach the Forum under the Consumer Protection Act, for relief as consumer, against the builder as a service- provider. Section 3 of the Consumer Protection Act makes it clear that the remedy available under the Act is in addition to the normal remedy or other remedy that may be available to the complainant. In the instant case, admittedly, the complex to which permission was accorded by the GHMC is a commercial complex, located on the main road of Himayathnagar, as is evident from Ex.A11 (marked before the suit in a civil court). Even in the approved plan, it is shown as commercial building but not for dwelling purpose. In any view of the matter, the subject premises cannot be termed as residential complex/premises. It may be stated that the Respondent, instead of seeking remedy by way of specific performance of contract or otherwise for allotment of her share in the property, in the civil court, preferred to file the consumer complaint.
25) The learned counsel for the Appellant argued that the forum below had exceeded its statutory jurisdiction in entertaining the complaint in which the reliefs claimed was far beyond its jurisdiction and had made a roving enquiry on several complicated questions of law and fact. And that the fundamentals as required for a consumer complaint are not made-out in the case. And that the forum below relied on the statements of PW1 to PW3 losing sight of the settled principles of law, more particularly, Section-91 and 92 of the Indian Evidence Act, 1872, which is reproduced for better understanding:
"Section-91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.-When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
92. Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
We appreciate the contention of the counsel for the Appellant in the above regard.
26) As stated supra, it is evident from the recitals of the Supplement Agreements dated 04.07.2009 and 16.09.2009 there is no specific mention as to the entitlement of the Respondent to the road side facing property, which involves complex question of law and facts, which have to be adjudicated upon in a suit by way of lengthy evidence and complex under the Specific Relief Act for specific performance of the contract. The disputed facts covering these issues also cannot be gone into and considered in a summary nature proceeding before Consumer Fora and Consumer Fora is not expected to adjudicate on them. Such issues will be beyond the scope of reliefs which could be granted by the consumer fora. We may state that the Hon'ble Apex Court in the matter of Oriental Insurance Co., Ltd., vs. Munimahesh Patel, reported in 2006 CTJ 173 (Supreme Court) (CP), also held that the proceedings before Consumer Fora are essentially summary in nature and adjudication of issues which involve disputed complex factual situations, should not be adjudicated upon by them.
28) There is no denial from the Respondent that the subject property is not a commercial one. It is also not the case of the Respondent that the subject property is a residential complex and she intended to reside in it, though she claimed the rents over her share of property. The Respondent claimed rent @ Rs.25,920/- on each floor accumulating to Rs.1,29,600/- towards her share, which is purely a commercial nature. Since the transaction was relatable to service for commercial purpose, which is excluded from the purview of the definition as given by Section 2(1)(d)(ii) of the Consumer Protection Act, the Respondent is not the 'consumer' and the complaint itself was not maintainable under the Act. In this regard, we lay our hands on the decision rendered by Hon'ble National Commission, New Delhi in the matter of Travel India Bureau Pvt., Ltd., Vs. HUDA & Others, reported in 2008 (2) CLT 377.
29) We may state that it is the specific contention of the Respondent that her share was not allotted facing road side and that the complex is not completed within the stipulated time. We have negated the contention of the Respondent that the complex is not completed within time. Hence, the question remains as to the allotment of share of the Respondent facing road side. Since the recitals of the Supplementary Agreements do not contain the specific allotment towards the road side, it has nothing to do with either construction activity or housing activity; we are unable to appreciate the contention that it was a consumer dispute which this Commission could redress. The Respondent has to necessarily file a civil suit for specific performance of the Supplementary agreement. The questions as to who committed default and whether the Respondent is entitled to specific performance of the relief prayed for all these questions that could be considered in a civil suit, necessarily not by the Consumer Fora, as it has nothing to do with the housing activity as defined u/s 2(1)(o) of the Act, in view of the fact that the subject complex is a commercial complex.
30) Admittedly, the respondent is claiming the property in all floors in a commercial complex, for earning profits, and, she indulged into commercial activity, as it is nowhere mentioned, in the complaint, that she is claiming the same for earning her livelihood. Evidently, the property is located on the main road of Himayathnagar, Hyderabad, a commercial business centre, and thus the transaction is relatable to commercial purpose and the Respondent not being the "consumer" within the meaning of Section 2(1)(d) of the Act, the complaint itself is not maintainable. Moreover, for adjudicating such a claim, voluminous evidence will be needed and the complaint, therefore, cannot be decided in summary procedure under the Act. Hence, the appeal deserves to be allowed by setting aside the orders of the forum below. If advised, the Respondent is at liberty to approach the civil court to seek recovery of her share in a competent court having jurisdiction. The respondent shall, however, be at liberty to resort to any other remedy available to her, under the provisions of law. For the aforesaid reasons, we answer the point framed for consideration at paragraph No.14, supra, in favour of the Appellant and against the Respondent. Accordingly, we allow the appeal and set aside the orders of the District Consumer Forum-III, Hyderabad dated 19.11.2014 made in CC No.82/2012 and consequently dismiss the complaint.
31) We may state that during pendency of the proceedings, the Appellant appears to have deposited the monies in pursuance of the interim orders of this Commission as also in terms of orders passed by the Hon'ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh and in the execution application proceedings before the District Consumer Forum-III, Hyderabad. The Appellant is liberty to withdraw the same after appeal time is over.
32) In the result, we allow the appeal setting aside the orders dated 19.11.2014 of the District Consumer Forum-III, Hyderabad made in CC No.82/2012 and consequently dismiss the complaint. Miscellaneous applications, if any, shall also stand disposed of accordingly.
PRESIDENT MEMBER Dated 01.02.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT