State Consumer Disputes Redressal Commission
Sri M. Venkata Sahadeva, vs 1. M/S. Om Sai Gayathri Constructions ... on 1 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana Complaint Case No. CC/112/2013 1. Sri M. Venkata Sahadeva, S/o. M.Thirupalaiah, Aged about 43 Years, Occ: Software Engineer, R/o. Flat No.G-3, Plot No.8-3-167/K/188A, Sai Padma Ratna Apartment, Kalyan Nagar Phase-3, Moti Nagar, Hyd-18 ...........Complainant(s) Versus 1. 1. M/s. Om Sai Gayathri Constructions Pvt. Ltd., a Company registered under Companies Act, 1956 No. U45200AP2006PTCO52086, having its Regd. Office at 5th Floor, Nandanavanam, S.R. Nagar, Hyderabad. 2. 2. 2. Sri M. Venkateswar Goud, S/o. Balraj Goud, H.No.5-3-353/1, Srishanthi Nilayam, Vidhyanagar Colony, Kamareddy-503 111. Nizamabad District, A.P. Director Osucput Ltd. 3. 3. Y. Ram Prasad Reddy, OSGC Managing Director R/o. 104, Krishna Kamala Residency, Srinagar Colony, Hyderabad. Director OSGC Pvt. Ltd., 4. 4. R. Lakshmi, D/o. R. Murali Manohar, R/o. 104, Krishna Kamala Residency, Srinagar Colony, Hyderabad. 5. 5. Sri K. Sanondra Reddy, S/o. K. Redeppa Reddy, Aged about 34 Years, R/o. H.No.13-1-208/B/203, Mothi Nagar, Ward-28, Kukatpally, Hyderabad. Director OSGC Pvt. Ltd., 6. 6. Sri P. Prasad Babu S/o. P. Pandu Rangam, Aged about 49 Years, R/o. 193, 7th Main Srinivasa Nagar, Bangalore-560 050, Karnataka. Director OSGC Pvt. Ltd., 7. 7. Sri T.C. Konda Reddy, S/o. Obul Reddy, Aged about 49 Years, R/o. H.No.5-8-160, Sri Ram Nagar Colony, Kamareddy-503 111, Nizambad District. Director OSGC Pvt. Ltd., ............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 : 01 Mar 2017 Final Order / Judgement STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA : AT HYDERABAD CC NO.112 OF 2013 Between : M.Venkata Sahadeva S/o M.Thirupalaiah, Aged about 43 years, occ: software engineer, R/o Flat No.G-3, Plot No.8-3-167/K/188A, Sai Padma Ratna Apartment, Kalyan Nagar, Phase-3, Moti Nagar, Hyderabad - 500 018. Complainant And M/s Om Sai Gayathri Constructions Pvt., Ltd., a Company registered under Companies Act, 1956 (No.U45200AP2006PTC052086), having its Regd.Office at 5th floor, Nandanavanam, S.R. Nagar, Hyderabad, rep. through its Directors. 1) M.Venkateswar Goud S/o Balraj Goud, H.No.5-3-353/1, Srishanthi Nilayam, Vidhyanagar Colony, Kamareddy - 503 111 Nizamabad district, Director OSGC Pvt., Ltd., 2) Y.Ram Prasad Reddy, OSGC Managing Director, R/o 104, Krishna Kamala Residency, Srinagar Colony, Hyderabad. 3) R.Lakshmi D/o R.Murali Manohar, R/o 104, Krishna Kamala Residency, Srinagar Colony, Hyderabad, Director, OSGC Pvt., Ltd., 4) K.Sanondra Reddy S/o K.Redeppa Reddy, Aged about 34 years, R/o H.No.13-1-208/B/203, Mothi Nagar, Ward-28, Kukatpally, Hyderabad, Director OSGC Pvt., Ltd., 5) P.Prasad babu S/o P.Pandu Rangam, Aged about 49 years, R/o 193, 7th Main, Srinivasa Nagar, Bangalore - 560 050, Karnataka, Director, OSGC Pvt., Ltd., 6) T.C.Konda Reddy S/o Obul Reddy, Aged about 49 years, R/o H.No.5-8-160, Sri Ram Nagar Colony, Kamareddy, Nizamabad district, Director, OSGC Pvt., Ltd., Opposite parties Counsel for the Complainant : Sri Kotha Janardhan Reddy Counsel for the Opposite parties : M/s S.Nagesh Reddy-R1 to R3. OP No.4- notice held sufficient. OP No.5 & 6 - served with notice. Coram : Hon'ble Sri Justice B.N.Rao Nalla, President & Sri Patil Vithal Rao, Member
Wednesday, the First day of March Two thousand Seventeen Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, President) *** The complaint is filed under section 17(1)(a)(i) of the Consumer Protection Act, 1986 by the Complainant complaining deficiency in service on the part of Opposite parties praying to direct the Opposite parties to pay an amount of Rs.68,73,441/- for loss of interest thereon and damages on account of loss of utility of money, suffering, hardship and mental agony with future interest @ 24% p.a. from the date of complaint till realization; to pay costs of the complaint and award any other reliefs.
2. It is the case of complainant that on 06.02.2008, OP No.1 entered into an Agreement of sale of open house plot bearing No.30 admeasuring 300 square yards, in Sy.No.422/1, 423, 423 (part), 469 (various parts), 471 (various parts) situated at Dollar Meadows, Bowrampet village, Qutbullapur mandal and Municipality, Rangareddy district and a Construction Agreement to construct a residential house on the said site according to the specifications given by the OP for Dollar Meadows. The complainant agreed to pay Rs.19,70,000/- for the house plot and Rs.23,30,000/- for construction cost and accordingly paid Rs.32,01,608/- for open plot and construction charges including registration charges. In spite of the same, the Ops failed to complete the construction as per the agreed terms.
3. As per the agreement, the Ops agreed to complete the project and deliver the possession of the independent house with common amenities within 14 months with a grace period of 3 months from the date of registration of plot. The Ops executed a sale deed on 13.08.2008 registered as document No.10296 of 2008 but failed to complete the construction work as per the agreement. The Ops even failed to commence the construction, as such, the plot owners formed into an association namely "Dollar Meadows Owners Welfare Association" with registration No.142/2009 and upon memorandum to the Ops on 11.02.2010, the Ops agreed to complete the construction of independent houses with all civic amenities on or before 30.06.2010 but failed to complete.
4. Believing the promises made by the Ops through lucrative advertisement, the complainant paid huge amount of Rs.32,01,608/-. As a result of non-completion of the construction, the complainant lost Rs.21,71,833/- in the form of interest and would have earned lot by investing in business. Had the house been delivered, the Complainant could have fetched income in the form of rent. The acts of the Ops amounts to deficiency in service and hence the complaint with the reliefs as prayed for at paragraph No.1, supra.
5. Opposite parties 1 to 3 filed written version contending that the complaint is not maintainable either under law or on facts, hence, liable to be dismissed. It admitted entering into agreement of sale for open house plot No.30 and also the construction agreement to construct a residential house on the said site and also admitted the receipt of Rs.32,01,608/-. Agreement of sale and construction agreement are different agreements and complainant cannot club the same together. As far as house plot is concerned, sale deed is executed and the sale transaction has been completed. Complainant has not paid the balance consideration for the construction activities.
6. After paying two instalments of the construction cost as per the agreement, complainant approached them in the middle and informed that he is not in a position to pay the balance amount and he is intending to sell the semi-constructed house with plot to third parties and looking out for buyers and asked the Ops to stop construction. Accordingly, they stopped further construction and the complainant had also not paid the balance consideration towards the construction. The complainant failed in discharging his obligations in payment of construction cost as per the terms.
7. It is true the plot owners formed an association and entered into a memorandum of agreement with the Ops on 11.02.2010 for speeding up the works. Out of total consideration of Rs.23,30,000/- towards construction, the complainant paid only Rs.11,65,000/- and did not make any further payments for the reasons explained above. It is the complainant who caused loss to the Ops by stopping the construction work in the middle, hence, he is estopped from making allegations to the contrary against the Ops. They are not liable to pay any interest, damages, etc., The Ops are even now ready to complete the construction provided the complainant makes balance payments.
8. When an agreement is entered upon between parties, it is incumbent upon both the parties to the agreement to discharge their obligations under the terms of the agreement. There arose no cause of action to file the present complaint. The complaint is devoid of any merits and is an abuse of the process of the Hon'ble Commission. There is no deficiency of service on their part, hence, prayed to dismiss the complaint with exemplary costs.
9. On his behalf, the Complainant filed his evidence affidavit and the documents, Exs.A1 to A17. On behalf of the Opposite parties 1 to 3, Y.Ram Prasad Reddy filed his evidence affidavit and the documents Ex.B1 to B3.
10. The points that arise for consideration are :
i) Whether the Complainant is a "consumer" as defined under the Act and whether there is any 'deficiency in service' on the part of the Opposite parties 1 and 2 and whether the Complainant is entitled for the reliefs as prayed for?
ii) To what relief ?
11. POINT No.1: There is no dispute that the Complainant had booked the house plot bearing No.30 measuring 200 square yards with the Ops by entering into an agreement of sale and further entering into construction agreement with the Ops for construction of residential house, for a total sale consideration of Rs.43,00,000/- as against which, the complainant paid an amount of Rs.32,01,608/-. It is also not in dispute that as per the construction agreement, the Opposite parties agreed to complete the construction of the residential house and handover the possession within 14 months from the date of agreement, with a grace period of 3 months.
12. The complainant would contend that though more than considerable period had elapsed, the Opposite parties failed to complete the construction having received major portion of the sale consideration, without assigning any reasons. As against this, the Opposite parties would contend that as the Complainant intended to sell away the house property in semi-finished condition to a third party, asked the Opposite parties to stop the construction work and accordingly they stopped. This contention on the part of the Opposite parties appears to be unbelievable in view of the fact that a complaint bearing FIR No.387/2010 dated 02.09.2010 is lodged with the Police Cyberabad on the ground of non-performance of their obligation and stopping of work and thereby cheated the complainant and other plot owners as is evident from Ex.A12. Consequent upon the said complaint, the Opposite parties entered into a Memorandum of Agreement on 06.12.2010 agreeing to complete the construction as per the specifications mentioned therein.
13. Except making a vague and bald statement that the Complainant himself asked the Ops to stop the construction and that on failure to pay the balance sale consideration on the part of the complainant as per the scheduled plan, no piece of paper is filed by the Opposite parties to show that they have made construction of the other plot owners or atleast showing any evidence the stage of construction of the complainant's house.
14. It is to be stated that the Construction Agreement was executed as long back in the month of February 2008 and the last payment in respect of major part of the sale consideration was paid by the Complainant as long back on 13.11.2011, the Opposite parties failed to complete the construction for the reasons best known and instead attributing negligence on the part of the Complainant, which is unbelievable. Admittedly, the present complaint is laid on 03.06.2013 after waiting for considerable period of time. Altogether the complainant paid an amount of Rs.32,01,608/- as against the total sale consideration of Rs.43,00,000/-, which is not in denial.
15. On failure to perform its part of obligation on the part of the Opposite parties, the Complainant and other plot owners have lodged the complaint with the police, Cyberabad under Ex.A12. Except the very same documents exhibited by the Complainant, nothing new is brought on record by the Opposite parties. Ex.B1 is the agreement of sale dated 06.02.2008; Ex.B2 is the Construction Agreement and Ex.B3 is the copy of sale deed dated 13.08.2008 registered as document No.10296/2008 in respect of the open plot No.30 conveying the same in favour of the Complainant. The failure on the part of the Opposite parties to perform its obligation, the Complainant had sought for refund of the amount paid by him.
16. May be, on account of non-completion of the construction of residential house, the Opposite parties have not chosen to bring any material on record. The time as agreed for completion of the residential independent house in terms of the construction agreement expired long back. It is also the case of the complainant that due to non delivering the possession and non-completion of the flat, the complainant is put to lot of inconvenience and hardship and his dream of owning a house is shattered. No bonafide cause is shown by the Opposite parties for non-compliance of the terms of the Construction Agreement and also the subsequent Memorandum of Agreement, which amounts to sheer negligence and deficiency of service on their part.
17. It is the further case of the Opposite parties that there is no consumer dispute and that the complainant is not a consumer. In this regard, we may state that it would be appropriate for us to refer to the relevant provisions in the Consumer Protection Act, 1986 to decide the issue. The term "consumer" and "service" has been defined in the Consumer Protection Act. Section 2 (1)(d)(ii) defines the term "consumer" which read as under:
"(d) "consumer" means any person who-- (e) ................ (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
And the term "service" has been defined under Section 2(1)(o) of the Consumer Protection Act, 1986
(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
From the above, it can be safely stated that the Complainant is a consumer as defined under the Act and he availed/hired the services of the Opposite parties 1 and 2 for a consideration. It has become a practise for the developers to take whatever pleas they intend to take without recoursing to the facts. For the foregoing reasons, we answer the point No.1 framed for consideration at paragraph No.11, supra, in favour of the Complainant and against the Opposite parties.
18. POINT No.2 : In the result, we allow the complaint in part and direct the Opposite parties jointly and severally
(a) to refund the amount of Rs.32,01,608/- to the complainant together with interest @ 12% p.a. from the date of respective payments till actual payment of entire amount;
(b) to pay the amount of Rs.66,600/- towards the charges incurred by the Complainant for stamp duty and registration charges in respect of the house plot bearing No.30;
(c) to reconvey the property bearing house plot bearing No.30 in favour of the Opposite parties, in which event, the stamp duty and registration charges shall be borne by the Opposite parties;
(d) to pay the compensation of Rs.1,00,000/- and costs of Rs.5,000/-. Time for compliance : four weeks. PRESIDENT MEMBER Dated: 01.03.2017 APPENDIX OF EVIDENCE WITNESSES EXAMINED For Complainants : For Opposite party : Affidavit evidence of Venkata Affidavit evidence of Y.Ram Prasad Sahadeva as PW1. Reddy, on behalf of Ops 1 to 3. EXHIBITS MARKED For Complainant : Ex.A1 is the copy of brochure. Ex.A2 is the receipt bearing No.075, dated 06.11.2006 for Rs.4,00,000/-. Ex.A3 is the copy of Memorandum and Articles of Association of the OP No.1.
Ex.A4 is the copy of Agreement of Sale dated 06.02.2008 in respect of house plot No.30.
Ex.A5 is copy of the Construction Agreement for construction of residential house.
Ex.A6 is the copy of sale deed dated 13.08.2008 registered as document No.10296/2008.
Ex.A7 is the copy of Generic contingency policy schedule dated 12.09.2008 obtained by the Complainant.
Ex.A8 is the copy of construction plan of the house plot No.30.
Ex.A9 is the statement of account of complainant's account for the period from 13.05.2000 to 13.05.2013.
Ex.A10 is the copy of repayment schedule given by the Axis Bank to the Complainant.
Ex.A11 is the copy of Memorandum of Agreement, dated 11.02.2010.
Ex.A12 is the copy of FIR No.387/2010, dated 02.09.2010 on the file of P.S. Dundigal, Cyberabad district.
Ex.A13 is the copy of Memorandum of Agreement, dated 06.12.2010.
Ex.A14 are the copies of photos showing the stage of construction.
Ex.A15 is the receipt bearing No.027, dated 19.03.2010 for Rs.1,00,000/-.
Ex.A16 is the copy of receipt bearing No.059, dated 13.11.2011 for Rs.2,17,000/-.
Ex.A17 is the copy of statement showing calculation of interest by the Complainant on the amounts paid to the Opposite parties.
For Opposite parties :
Ex.B1 is the copy of Agreement of Sale dated 06.02.2008 entered into between the Complainant and the Opposite parties.
Ex.B2 is the copy of Construction Agreement dated 05.02.2008 entered into between the Complainant and the Opposite parties.
Ex.B3 is the copy of sale deed dated 13.08.2008 executed by the Opposite parties in favour of the Complainant.
PRESIDENT MEMBER Dated: 01.03.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER