State Consumer Disputes Redressal Commission
1. Mrs. M.Anuradha Subramanyam vs 1. M/S. Aliens Developers P. Ltd., on 4 September, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.33/2015
Between :
1.Mrs.M.Anuradha Subramanyam, W/o.Mr.M.Balasubramanyam, Aged about 36 years, Occ: HR,
2. M.Balasubramanyam, S/o.M.Nageshwara Rao ( died per LR), Aged about 42 years , Occ: private employee
3. M.Abhay Sai Chaitanya, S/o.late M.Balasubramanyam, Aged about 21 years, Occ: Student, All are R/o.H.No.1-2-33/8, First Floor, Radha Rani Nursing Home Lane, Domalguda, Hyderabad - 500 029. .... Complainants And
1.M/s.Aliens Developers (P) Limited, Rep. by its Managing Director and Joint Managing Director , O/o.Flat No.911, Teja Block , My Home Navadeepa Apartments, Madhapur, Near Hi-Tech City, Hyderabad -500 081.
2. Mr.Hari Challa , S/o.Mr.CVR Chowdhary, Managing Director, M/s.Aliens Developers (P) Limited, O/o.Flat No.911, Teja Block , My Home Navadeepa Apartments, Madhapur, Near Hi-Tech City, Hyderabad -500 081.
3. Mr.Venkat Prasanna Challa, S/o.Mr.CVR Chowdhary, Joint Managing Director, M/s.Aliens Developers (P) Ltd., O/o.Flat No.911, Teja Block , My Home Navadeepa Apartments, Madhapur, Near Hi-Tech City, Hyderabad -500 081.
Notice to be sent to the following address (Present addresses of opposite parties Sl.Nos.1 to 3 are at Aliens Space Station, Tellapur, Ramachandrapuram Mandal, Medak District, Hyderabad ( Telangana - PIN 502032) 2
4. State Bank of India , Personal Banking Branch, Abids Circle, near GPO, Hyderabad-500 001, Represented by its Branch Manager. ... Opposite parties Counsel for the Complainants : M/s.K.V.Advocate & Associates Counsel for the Opposite Parties: M/s.Raja Sripathi Rao-
O.P.Nos.1 to 3.
M/s.G.Prabhakar Sarma-OP.4 .
CORAM : Hon'ble Sri V.V.Seshubabu, M ember (J), And Hon'ble Smt.R.S.Rajeshree, M ember (NJ).
M ONDAY, THE FOURTH DAY OF SEPTEMBER, TW O THOUSAND TW ENTY THREE .
Order : ( Per Hon'ble Sri V.V.Seshubabu, M ember (J) ),
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 3 to pay total amount of Rs.53,56,230/- with interest @ 24% till realization under the following heads:
i. To refund the paid sale consideration of Rs.20,45,307/- along with interest @ 24% p.a. from the respective dates of payment till realisation of the same;
ii. to pay compensation towards holding charges @ Rs.3/- per sft. per month from September,2012 i.e. for 29 months amounting to Rs.1,24,584/- along with interest @ 24% p.a. and are continuously liable to pay the holding charges till the realization of total demanded amount;
iii. to pay Rs.10 lakhs towards
compensation;
iv. to pay fair rental value @ Rs.10/- per sft.,
per month w.e.f. September,2012
amounting to Rs.4,15,280/- and further continue to pay till the refund of the total demanded amount;
v. To pay legal charges of Rs.50,000/- ; and
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vi. to pay home loan amount owes to 4th
opposite party with necessary interest and other charges levied into the account out of the claim amount .
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 it had undertaken a Development Agreement cum GPA with respective land owners for the development of land admeasuring Ac.19.26 guntas to raise residential complexes covered by Survey nos.384, 385 and 426/A at Tellapur Village in Ramachandrapuram Mandal, Medak Dist.; that the complainant entered into an Agreement of Sale dt.17.6.2011 with the opposite parties 1 to 3 to purchase a flat bearing no.1220/A, Station -4 on 12th (A) floor of the complex by name Space Station-1 with a super built up area of 1432 sq.ft. with one covered car parking besides undivided share of land of 30.79 sq.yards out of the land as stated supra; that the total sale consideration is Rs.41,30,019/- and the complainant altogether paid Rs.3 lakhs towards earnest money on 6.6.2011, Rs.1,50,000/- on 30.7.2011 and Rs.1,50,000/- on 20.8.2011. Besides these amounts, bank loan was availed by the complainants from opposite party no.4 out of which Rs.14,45,307/- was disbursed to the opposite parties 1 to 3.
The complainants altogether paid Rs.20,45,307/- and agreed to pay the balance according to the payment schedule annexed to the Agreement of Sale; that in case of failure to give possession before September,2012, the opposite parties agreed to pay Rs.3 /- per sq.ft. per month; that however the complainants were forced to reside in a rental house and hence they are liable to claim Rs.10/- per sq.ft. per month; that inspite of several requests, the opposite parties failed to make the construction as agreed upon; that the complainants got issued legal notice dt. 19.1.2015 for which no response 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 deficiency in service; that the allegations made in the complaint 4 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 since they entered into an Agreement on 17.6.2011 and the present complaint is filed on 20.2.2015 i.e. more than four years which is not maintainable and 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 party 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 party prayed for dismissal of the complaint with exemplary costs.
04). Written version of opposite party no.4 filed stating that they have disbursed an amount of Rs.14.45,507/- on the letter issued by complainants 1 & 2, therefore, they are not permitted to contend that the bank disbursed the amount without issuing the progress in construction and prayed to direct the opposite parties 1 to 3 to pay the outstanding loan amount of Rs.14,01,815/- due as on 5.3.2016 together with future interest and costs.
05). The complainant no.1 filed Evidence Affidavit (PW.1). Exs.A1 to A12 are marked on behalf of the complainants. Mr.Hari Challa, Managing Director of opposite party no.1 filed 5 evidence affidavit as RW.1. Further evidence of Mr.Venkat Prasanna Challa , Director of opposite party no.1 filed as RW.2. Exs.B.1 to B19 marked on behalf of the opposite parties1 to 3. Mr.Khaja Zaheer Ahmed, Chief Manager of opposite party no.4 filed Chief Affidavit as RW.3. Exs.B20 to 24 are marked on behalf of opposite party no.4 Written arguments of complainants and opposite party no.4 filed.
Heard counsel on both sides.
06). Basing on the pleadings on both sides, the following are the points for consideration:
i. Whether the complainant is entitled for Rs.53,56,230/- with interest as claimed?
ii. Whether there is deficiency in service on the part of the opposite parties?
iii. To what reliefs the complainant is entitled for?
07). Point Nos.1 to 3: Admittedly, PW.1 purchased flat no.1220 A in Station -4 in 12th (A) Floor Space Station-1 to an extent of 1432 sq.ft. along with undivided share of 30.79 sq.yards and one covered car
parking under Agreement of Sale Ex.A1.
There is no dispute in respect of the total payments made by the complainants for Rs.20,45,307/- as against the total sale consideration of flat @ Rs.41,30,019/-. It is to be observed, out of the amount paid by the complainants a sum of Rs.14,45,307/- was paid by way of bank disbursal given by opposite party no.4. Even though the agreement was of the year 2011, the opposite parties 1 to 3 failed to complete the construction and deliver the possession of the flat by September, 2012. It is also to be observed that as per Ex.A1, payment schedule was given to make the payments depending upon the stages of construction. As per the same, it is for the opposite parties to inform the complainants , the stages and then demand the amount. For the reasons better known to the opposite parties 1 to 3, no demand was ever made that the complainants to pay particular amounts. When venture consists of se veral towers with large number of floors, it is difficult for any purchaser of flat to know at what stage of construction his flat was by the date of any of his visits. In such circumstances, the 6 opposite parties 1 to 3 cannot be permitted to contend that the complainants have not paid the amounts within time or as per the schedule.
08). It is the contention of the opposite parties that the complainants have paid only 50% of the total cost of the flat and they have committed default in the payment of the balance amounts, as such they cannot demand for the flat and on the other hand, the opposite parties 1 to 3 are only interested to refund the amount. It is also contended by them that they have also made some payments to the bank loan account of the complainants, as such those payments shall be taken into consideration while passing order. The complainants are also not disputing the payments alleged to have been made by the opposite parties 1 to 3. It is also to be observed that in the legal notice, the complainants have demanded for the refund of the amount with interest, so also in the complaint. So, we are of the view that only the aspect of refund shall be considered in the case on hand.
09). Para 12 of the complaint goes to show that the complainants have claimed amounts with interest from the dates of their respective payments with interest @ 24 % . We are of the view that the claim for 24% interest is exorbitant. The complainants have also demanded for the payment of Rs.3 per sft. for the failure of opposite parties to deliver possession for a the period of 29 months, besides claimed compensation for mental agony and escalation charges at Rs.10 lakhs. They have also claimed fair rental value at Rs.10/- per month since September,2012, till the date of actual payment and costs of Rs.50,000/-. We are also of the view for the payments made by PW.1 from his pocket i.e. by setting apart the bank loan disbursal, for such amounts, the opposite parties 1 to 3 are liable to pay interest @ 12% p.a. from respective dates of payments. As far as, the bank disbursal amount of Rs.14,45,307/- is considered, the opposite parties 1 to 3 shall be directed to clear the entire outstanding dues, besides shall also pay the monthly instalments paid by the complainants.
For such EMIs paid by the complainants, the opposite parties shall pay interest @ 10% p.a. 7 The complainants are hereby instructed to file a calculation sheet to show how much EMIs were paid by them with dates and those payments shall be reflected in the statement of account to claim such of those amounts, with 10% interest from the opposite parties.
In the case on hand, the complainants are claiming refund only. So, we are of the view that, they are not entitled for penal interest at Rs.3/- per sft. for delay in delivery of possession and also Rs.10/- per sft. towards fair rents per month as claimed in the complaint. We are of the view that awarding compensation at Rs.3 lakhs is sufficient in the interest of justice. Opposite parties 1 to 3 are also liable to pay costs of Rs.20,000/-.
10). Always it is the contention of the opposite party nos.1 to 3 that due to the non payment of the balance amount, the construction work was not completed. It is to be observed that as per the agreement, the balance payments shall be made depending upon the progress in the construction work. In the case on hand, the opposite party nos.1 to 3 not informed the complainants about the progress of the work and not even demanded to pay the balance amount. Therefore, the contention of the opposite party nos.1 to 3 cannot be appreciated at all. The construction activity is going on at snail space. The complainants issued legal notice and when there was no response for the same in a positive way, filed the complaint. All the time the complainants are waiting for the completion of the project. This amounts to continuation of cause of action . As such, there is no question of complaint being barred by time.
11). Even if there is an Arbitration Clause and not opting for the same by the complainants cannot be considered as bad in law. The proceedings before the Consumer Court are not contrary to the other laws. The complainant counsel relied upon a case law reported in (2012) 2 SCC 506 in National Seeds Corporation Ltd. vs. M . Madhusudhan Reddy wherein it is categorically observed that the Consumer Protection Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In such circumstances, the complaint cannot be dismissed for not invoking the Arbitration Clause.
812) The complainants unnecessarily made the opposite party no.4 as a party to the complaint, even though there is no deficiency of service on their part. Basing on the letter under Ex.B23 by the complainants 1 & 2, the Bank has disbursed the loan of Rs.14,45,507/-. Except that no other payment was made by the opposite party no.4 to the opposite parties 1 to 3. In such circumstances, the complainants cannot be permitted to contend that the Bank has disbursed the amounts not depending upon the stages of construction. Therefore, we are of the view that the complaint against the opposite party no.4 is liable for dismissal and we are not awarding costs for such dismissal, by taking into consideration the financial loss suffered by the complainant in the hands of opposite parties 1 to 3.
13). In the result, complaint is partly allowed directing the opposite parties 1 to 3 jointly and severally as follows:
i. To refund Rs. 6 lakhs paid by the complainants, with interest @ 12% p.a. from the respective dates of payments till realisation ;
ii. To clear the entire bank loan;
iii. to pay the monthly instalments paid by the
complainants with interest @ 10% p.a. from the
dates of payments by the complainants till
realisation; the complainants are instructed to file calculation memo about the EMIs paid to the Bank (shall be supported by Bank Statement) within 21 days from the date of receipt of the order, by serving a copy on the opposite parties 1 to 3; iv. To pay Rs.3 lakhs towards compensation;
v. To pay Rs.20,000/- towards costs;
vi. Complaint against opposite party no.4 is dismissed.
vii. Time for compliance is 30 days from the date of
receipt of this order.
Dictated to Steno, transcribed and typed by her, corrected and pronounced by us in the open Court on this 4th day of September, 2023.) Sd/- Sd/-
MEMBER (J) MEMBER(NJ)
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Dated 4.9.2023.9
APPENDIX OF EVIDENCE W itnesses examined For the complainant For the opposite parties Evidence Affidavit of the complt. E.A of opp.party no.2 No.1 filed as PW.1 filed as RW.1 Further Evidence of opp.party No.3 filed as RW.2.
Chief aff. of Khaja Zaheer Ahmed, Chief Manager of opp.
party no.4 filed as RW.3 Exhibits marked on behalf of the complainant:
Ex.A1 : Photostat copy of Agreement of Sale dt.17.6.2011 between opposite parties and the complainant. Ex.A2 : Photostat copy of receipt dt.6.6.2011 issued by O.P. for the payment of Rs.3,00,000/- made by complainant.
Ex.A3 : Photostat copy of receipt dt.30.7.2011 issued by O.P. for the payment of Rs.1,50,000/- made by complainant.
Ex.A4 : Photostat copy of receipt dt.28.7.2011 issued by O.P. for the payment of Rs.14,45,307/- made by complainant.
Ex.A5 : Photostat copy of receipt dt.20.8.2011 issued by O.P. for the payment of Rs.1,50,000/- made by complainant.
Ex.A6 : Photostat copy of lr.dt.27.7.2011 from opp.party no.4 to the complainants 1 & 2 and reply letter. Ex.A7 : Statement of account of complainant from 28.7.2011 to 24.4.2014 with opp.party no.4 Ex.A8 : Mail correspondence between the complainants and Opposite parties.
Ex.A9 : Photostat copies of rent receipts Ex.A10 : Copy of legal notice dt.19.1.2015 issued on behalf of the complainants to the opposite parties 1` to 3. Ex.A11 : Postal receipts.
Ex.A12 : Photostat copy of lr.dt.18.8.2016 from opp.party no.1 to the complainant no.2..
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 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 10 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. Ex.B19 : Copy of statement of account of complainants 1 & 2 28.7.2011 to 10.1.2023 issued by SBI.
Ex.B20 : Photostat copy of application for housing loan of complainants.
Ex.B21 : Photostat copy Arrangement Letter issued by SBI to complainants 1 & 2.
Ex.B22 : Photostat copy of Tripartite Agreement. Ex.A23 : Copy of lr.dt.28.7.2011 from the complainants to the Ass.Gen.Manager, SBI, Hyd./OP.4. Ex.A24 : Statement of account of complainant from 28.7.2011 to 4.3.2016 with SBI.
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MEMBER(J) MEMBER(M)
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Dated :4.9.2023.