State Consumer Disputes Redressal Commission
1. Sri Rajanlal, vs M/S. Gharonda Builders And Developers on 2 June, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana Complaint Case No. CC/138/2016 1. 1. Sri Rajanlal, S/o late Shreelal, aged about 69 years, Occ. Retd Employee., R/o H.No 6-1-588, Khairthabad, Hyderabad 2. 2. Smt. Shoba Rani, W/o Sri Rajanlal, aged about 67 years, Occ. Housewife, R/o H.No 6-1-588, Khairatabad, Hyderabad ...........Complainant(s) Versus 1. M/s. Gharonda Builders and Developers A partnership Firm, Having its Office at Premises No 4-4-932/1 to 3, Kandaswamy Lane, Sultan Bazar, Hyderabad 500095, rep by its Managing Partner, Sri Sunil J Sachdev, S/o Sri Jayantilal L. Sachdev, aged about 56 years. ............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 : 02 Jun 2017 Final Order / Judgement BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA : AT HYDERABAD CC NO. 122 OF 2015 Between Bhaba Ranjan Mishra S/o Sakti Kanta Mishra Aged about 41 years, Occ: Banker R/o Flat No.42/201, NRI Complex Seawoods Estate, Nerul, Navi Mumbai ...Complainant A N D M/s Gharonda Builders and Developers H.No.4-4-932/2 & 3, Kandaswamy Lane Sultan Bazar, Hyderabad Rep. by Managing Partner Sunil J.Sachdev S/o Jayantilal L. Sachdev, aged 55 yrs ... Opposite party Counsel for the Complainant : M/s J.Sudheer Counsel for the opposite party : M/s A.Jaya Raju CC NO. 138 OF 2016 Between Rajanlal S/o late Shreelal Aged about 69 years, Occ: Retd. Employee R/o H.No.6-1-588, Khairatabad, Hyderabad Smt Shobha Rani W/o Sri Rajanlal Aged about 67 years, Occ: Housewife R/o H.No.6-1-588, Khairatabad, Hyderabad ...Complainants A N D M/s Gharonda Builders and Developers A partnership Firm having its office at H.No.4-4-932/1 to 3, Kandaswamy Lane Sultan Bazar, Hyderabad Rep. by Managing Partner Sunil J.Sachdev S/o Jayantilal L. Sachdev, aged 56 yrs ... Opposite party CC NO. 139 OF 2016 Between Rajanlal S/o late Shreelal Aged about 69 years, Occ: Retd. Employee R/o H.No.6-1-588, Khairatabad, Hyderabad Smt Shobha Rani W/o Sri Rajanlal Aged about 67 years, Occ: Housewife R/o H.No.6-1-588, Khairatabad, Hyderabad ...Complainants A N D M/s Gharonda Builders and Developers A partnership Firm having its office at H.No.4-4-932/1to 3, Kandaswamy Lane Sultan Bazar, Hyderabad Rep. by Managing Partner Sunil J.Sachdev S/o Jayantilal L. Sachdev, aged 56 yrs ... Opposite party CC NO. 140 OF 2016 Between Rajanlal S/o late Shreelal Aged about 69 years, Occ: Retd. Employee R/o H.No.6-1-588, Khairatabad, Hyderabad Smt Shobha Rani W/o Sri Rajanlal Aged about 67 years, Occ: Housewife R/o H.No.6-1-588, Khairatabad, Hyderabad ...Complainants A N D M/s Gharonda Builders and Developers A partnership Firm having its office at H.No.4-4-932/1to 3, Kandaswamy Lane Sultan Bazar, Hyderabad Rep. by Managing Partner Sunil J.Sachdev S/o Jayantilal L. Sachdev, aged 56 yrs ... Opposite party Counsel for the Complainants : M/s CVSS Sarma Counsel for the Opp. parties : M/s A.Jaya Raju QUORUM : HON'BLE SRI JUSTICE B.N.RAO, PRESIDENT & SRI PATIL VITHAL RAO, MEMBER
FRIDAY THE SECOND DAY OF JUNE TWO THOUSAND SEVENTEEN Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** The complaints arise out of identical facts and similar circumstances, as such, they are disposed of by common order. The complaint, CC No.122/2015 is taken as lead case.
2. The case of the Complainants in brief, is that the Opposite party represented to them that they are engaged in the business of constructing multistoried apartments and entered into development agreement with the owners of the land comprised in survey no. 27 at Pocharam Village, Ghatkesar Mandal Ranga Reddy District to construct apartment under the name and style of 'Gharonda Brahma Apartments' and they would provide all amenities there for, possession by certain period of time as detailed in the table below and on such representation of the opposite party, the complainants entered into agreement of sale for purchase of flats, having super built-up area with one car parking along with undivided share of land, the details of which are shown in the table below.
Case number Flat number Area in Sft.
Un-divided share (in Rs.) Total consideration Amount paid (in Rs) Date of Agreement Date of completion 122/2014 729 / 7th 729 sft 29.75 sq.yds 17,32,550/-
8,66,275/-
15.05.2013 30 months 138/2016 311/ 3rd floor 1227 sft 39.54 sq.yds 24,19,950/-
24,00,000/-
14.05.2012 40 months 139/2016 414/ 4th floor 985 sft 31.37 sq.yds 19,72,250/-
19,60,000/-
14.09.2012 40 months 1402012 519/ 5th floor 1175 sft 37.80 sq.yds 23,23,750/-
23,15,000/-
14.09.2012 40 months
3. The Opposite party had not commenced construction of the flats even after the stipulated period is expired and there is no possibility of the construction of the flats as also the Opposite party had not responded to the repeated requests of the Complainants. The Complainants had sought for return of the amount with interest, compensation and costs of the complaint, in each case, as detailed below.
Case number Relief sought (principal) (Rs.) Rate of interest Interest claimed Compensation claimed Costs claimed 122/2015 8,66,275/-
24% 4,33,137/-
5,00,000/-
1,00,000/- and cost of escalation Rs.3,00,000/-
138/2016 To complete balance sale consideration works, execute registered sale deed and deliver possession or in the alternative to pay 24,00,000/-+ 75,000/- +1,79,770/-
24%
-
20,00,000/-
-
139/2016 To complete balance sale consideration works, execute registered sale deed and deliver possession or in the alternative to pay 19,60,000/-+ 75,000/- +1,00,000/-
24%
-
20,00,000/-
-
140/2016 To complete balance sale consideration works, execute registered sale deed and deliver possession or in the alternative to pay 23,15,000/-+ 75,000/- +1,34,100/-
24%
-
20,00,000/-
-
4. The opposite party resisted the case contending that the claim on the premise that the complaint alleging deficiency of service on the part of opposite parties relating to the money transaction between the parties is not maintainable either under law or also in view of the facts of the case and hence liable to be dismissed in limine. The complaint is not within the limitation as time prescribed under Section 24A of the C.P. Act, hence not maintainable. There is no evidence to show that the complainant had paid the total amount as agreed to the opposite parties and complainant cannot attribute any deficiency of service against the opposite parties. Whatever papers are required from the opposite parties that were given to the complainant and the opposite parties are not responsible for rejection of the loan from the Banks. The complainants are not entitled for refund of amount and interest thereon and any compensation and costs. Hence prayed for dismissal of the complaint.
5. During the course of enquiry, the Complainant got filed evidence affidavit on his behalf and also got marked the documents as exhibits A1 to A3. On behalf of the opposite party the partner of the opposite party by name Sunil J Sachdev filed his affidavit and no documents have been filed.
6. The counsel for the Complainant and the Opposite party had advanced their arguments reiterating the contents of the complaint and the written version in addition to filing written arguments on behalf of Complainant. Heard both sides.
7. The points for consideration are :
i) Whether the complaint is barred by limitation? ii) Whether the complaint is not a 'consumer dispute' ? iii) Whether there is any deficiency in service on the part of the Opposite parties? iv) To what relief ?
8. POINT NO.1 : The Complainants entered into "Agreement of Sale" with the Opposite parties for purchase of flat as detailed supra, for the consideration thereof and paid the amount shown therein, proposed to be constructed by the Opposite party, which are not in dispute. The agreement of sale was entered into between the Complainant and the Opposite party in respect of the above stated flats as detailed in the table supra. Thereafter, the Complainants paid the part consideration amount as per the pricing pattern of the flat issued by the opposite party on various dates.
9. The counsel for the opposite party would contend that the complaint is barred by limitation. The opposite party pleaded that the complaint is barred by limitation In this regard, we may state that Section 24A of C.P. Act, 1986 contemplates limitation period for filing the complaint, which reads as follows:
"24A Limitation period (l) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (l), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
10. The complaint has been filed with an allegation that ever since the promised date of registration, the Complainants have been constantly reminding the opposite party for registration of the and the opposite party has always postponing the same on one pre-text or the other. In our view, the cause of action in favour of the Complainants has got to be construed as continuous in that the Complainant would be able to maintain the complaint as long as registration of the flat was done. We are fortified in our view from the observation of the National Commission in Lata Construction and ors. vs. Dr. R. R. Shah and anr., 2000 (1) CPR 81, the Apex Court has held: since the rights under the agreement of 1987 had not been given up and the appellants were constantly under an obligation to provide a flat to the respondents and deliver possession thereof to them, the Commission rightly treated `cause of action to be continuing cause of action and came to the right conclusion that the claim was not beyond time. Therefore the plea of the opposite party that the complaint is barred by limitation, therefore, needs to be rejected.
11. POINTS No.2 & 3 : The Opposite party is a Developer and Builder and is developing the property bearing Sy.No.27(part), situated at Pocharam Vilalge, Ghatkesar Mandal Ranga Reddy District admeasuring Ac 20\-19 ½ for construction of Multi Storied Residential Complex named as Gharond residential complex known as Gharonda Bhoopal and it agreed to deliver the residential flats to the Complainants in accordance with the terms and conditions agreed upon and consented thereto and as per specifications given therein. The complainant agreed to purchase one such flat by paying part of the sale consideration amount to the opposite party. But there has been abnormal delay in not starting the construction work in so far as these complaints are concerned. The opposite party has attributed the delay to the third party who have raised the claim over the land and stated that due to the said reason it could not commence the work on time.
12. The complainants have submitted that owing to failure of the opposite party in completing the construction of the subject flats, they opted for cancellation of the agreement of sale of flats and sought for refund of the amount paid by the complainants. When the opposite party neither refunded the amount nor completed the construction even after several requests and demands, the complainants issued a notice/representation to the Opposite party through their counsel setting forth series of events of delay and negligence and false promises made by the Opposite party seeking for refund of the amount on the premise of inaction on the part of the opposite party.
13. The opposite party has promised to complete construction of the flat and hand over its possession to the complainant(s) within the stipulated time therein as agreed. Having received the part sale consideration amount, the Opposite party kept with them without commencing the construction work of the building.
14. Not keeping-up promise to complete construction of the building and failure to deliver possession of the flat constitutes deficiency in service on the part of the opposite party. The complainants have two options left for recovery of the amount, either by filing suit in court of law or by way of filing complaint before State Consumer Disputes Redressal Commission in view of the amount claimed falling within the pecuniary jurisdiction of this commission. The contention of the opposite party that the complaint is not maintainable is not sustainable.
15. The Opposite party can only receive such amount of sale consideration which would be in accordance with the payment schedule and correspond to the stage of construction of the flats. Not keeping-up the promise to complete construction of the building and failure to deliver possession of the flat as also not keeping-up promise to refund the amount as per the terms of the repayment scheduler constitutes deficiency in service on the part of the Opposite party.
16. The complainants claimed refund of amount paid together with interest besides claim for damages. The complainants cannot be said to have acquiesced to the delay in construction of the apartment. Though the complainants have not disputed that the opposite party has have informed them about the cause for delay which does not disentitle them from claiming compensation. The complainants are entitled to interest @ 12% p.a. on the amount paid from the date of complaint till realization. For the reasons stated supra, the Points No.2 and 3 are answered in favour of the Complainants and against the Opposite party.
17. POINT No.4 : In the above facts and circumstances, the points 1 to 4 are answered accordingly holding that the Opposite party is liable to refund the amount to the Complainants.
In the result, the complaint is allowed directing the Opposite party pay an amount of Rs.8,66,275/- ( as per Ex.A1) with interest @ 12% per annum from the date of last payment till payment and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.5,000/-. Time for compliance: four weeks.
CC NO.138/2016 :
In the result, the complaint is allowed directing the Opposite party pay an amount of Rs.24,00,000/- ( as per Ex.A1) + Rs.1,79,000/- towards registration charges (Ex.A2) with interest @ 12% per annum from the date of last payment till payment and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.5,000/-. Time for compliance: four weeks.
CC NO.139/2016 :
In the result, the complaint is allowed directing the Opposite party pay an amount of Rs.19,60,000/- ( as per Ex.A1) + Rs.1,00,000/- towards registration charges(Ex.A2) with interest @ 12% per annum from the date of last payment till payment and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.5,000/-. Time for compliance: four weeks.
CC NO.140/2016 :
In the result, the complaint is allowed directing the Opposite party pay an amount of Rs.23,15,000/- ( as per Ex.A1) + Rs.1,34,100/- towards registration charges ( Ex.A2) with interest @ 12% per annum from the date of last payment till payment and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.5,000/-. Time for compliance: four weeks.
PRESIDENT MEMBER Dated : APPENDIX OF EVIDENCE CC NO. 122 OF 2015 WITNESSES EXAMINED For Complainant : For Opposite parties : Affidavit evidence of Baba Ranjan Sri Sunil J.Sachdev as RW1 (on behalf Misra, Complainant OP). EXHIBITS MARKED For Complainants : Ex.A1 Copy of Agreement of Sale dated 15.03.2013 along with receipt Ex.A2 Copy of telephonic details Ex.A3 Copy of representation For the opposite party NIL APPENDIX OF EVIDENCE CC NO. 138 OF 2016 WITNESSES EXAMINED For Complainant : For Opposite parties : Affidavit evidence of Rajanlal Sunil J.Sachdev as RW1 (on behalf Complainant OP). EXHIBITS MARKED For Complainants : Ex.A1 Copy of Agreement of Sale dated 14.09.2012 Ex.A2 Copy of receipt dated 11.02.2014 for Rs.1,79,770/- Ex.A3 Copy of legal notice dated 15.06.2016 along with acknowledgement For the opposite party NIL APPENDIX OF EVIDENCE CC NO. 139 OF 2016 WITNESSES EXAMINED For Complainant : For Opposite parties : Affidavit evidence of Rajanlal Sunil J.Sachdev as RW1 (on behalf Complainant OP). EXHIBITS MARKED For Complainants : Ex.A1 Copy of Agreement of Sale dated 14.09.2012 Ex.A2 Copy of receipt dated 180802014 for Rs.1,00,000/- Ex.A3 Copy of legal notice dated 15.06.2016 along with acknowledgement For the opposite party NIL APPENDIX OF EVIDENCE CC NO. 140 OF 2016 WITNESSES EXAMINED For Complainant : For Opposite parties : Affidavit evidence of Rajanlal Sunil J.Sachdev as RW1 (on behalf Complainant OP). EXHIBITS MARKED For Complainants : Ex.A1 Copy of Agreement of Sale dated 14.09.2012 Ex.A2 Copy of receipt dated 14.07.2014 for Rs.1,34,100/- Ex.A3 Copy of legal notice dated 15.06.2016 along with acknowledgement For the opposite party NIL PRESIDENT MEMBER Dated : 02.06.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER