State Consumer Disputes Redressal Commission
Smt.T. Swarnalata vs M/S.Bhavana Infra Developers P.Ltd., on 31 March, 2022
BEFORE THE TELANGANA STATE CONSUMER DISPUTESs
REDRESSAL COMMIssION: HYDERABAD.
cC.NO.273 OF 2018
Between:
Smt. T.Swarnalata,
W/o. T.D. Prasanna Kumar,
Aged about 55 years, Occ: Household,
R/o. 3rd Floor, Plot No.76/A,
Srinagar Colony,
Hyderabad 500073. .Complainant
And
1.M/s. Bhavana Infra Developers (P) Ltd., (Formerly known as Bhavana ORCHADS And Bhavana Horticulture and Realtors Pvt., Ltd..) A company incorporated under the Indian Companies Act, 1956 Rep. by its Managing Director, V.Seshu Kumar, S/o. Nageswara Rao0, aged about 59 Years, # 601, The Archana Arcade, South Block, St. Jhon's Road, Secunderabad 500003.
2. NJ. Dada Bhai S/o. Late J.D. Murthy, Aged about 75 years, Occ: Business, R/o. Flat No.21, Meghna Paradise, Ishaq Colony, Secunderabad. .Opposite Parties Counsel for the Complainant M/s. D. Devender Rao Counsel for the Opposite Parties: M/s. G. Prashanth -OP1 O.P.No.2- Exparte QUORUM: HON'BLE SRI V.V. SESHUBABU, MEMBER - (J) & HON'BLE SMT R.S.s. RAJESHREE, MEMBER (NJ) THURSDAY, THE THIRTY FIRST DAY OF MARCH TWO THOUSAND TrWENTY Two (Per Hon'ble Smt.R.S.Rajeshree, Member-Non -Judicial) Order
1. This is a complaint filed by the Complainant under Section 17 (1) (a) 6) of the Consumer Protection Act, 1986, praying this Commission to direct the Opposite Party No.1 as under:
2(a) To pay a sum of Rs.5,00,000/- received from the Complainant for sale of a three bedroom apartment sale as consideration amount.
(b) To pay interest @ 24% from 26.12.2005, the on principal amount of Rs.5 Lakhs.
(C To pay a sum of Rs.10 Lakhs for harassment, injury, mental agony, for the period of 13 years.
(d). To pay Rs.5 Lakhs for deficiency in service.
(e) To pay Rs.25,000/- towards costs.
( To award interest@ 24% per annum on the amounts due to the complainant form the date of the complaint till actual payment.
2. The brief facts of the case are as follows:
The grievance of the
complainant is that, the Opposite
Party No.1 being the General Power of
Attorney Holder of the
Opposite Party No.2 vide document bearing No.62/2002
registered on
17.06.2002 at
Sub-registrar, Maredpally,
Secunderabad. He had approached the
complainant and
offered to sell a three bed room residential apartment proposed
to be built in
premises bearing No.1-1-549/1, situated at Jawahar Nagar, New Bakaram, Hyderabad and based on the advertisement and promises by OPposite Party No.1 to construct and deliver the possession of three bed room flat within a stipulated time and also based on the assurances, commitments and projections given by the Opposite Party No.1, the complainant agreed to purchase the same and paid an advance of Rs.5 Lakhs by way of the Cheque bearing No.275662 and 244043 dated 25.12.2005 drawn on UTI Bank and Andhra Bank, Srinagar Colony branch, Hyderabad towards salee consideration for the apartment bearing Nos.AE-101 and 201 in ground floor admeasuring 1600 Sft., along with proportionate share of land along with equivalent to 20 SQ. yards along with one car parking area forming part of premises bearing No.1-1 549/1, Jawarhar Nagar, New Bakaram, Hyderabad.
Subsequently, the Opposite Party No.1 executed an Agreement of Sale dated 26.12.2005 in favour of the complainant and that, since then she had been requesting Opposite Party No. 1 from time to time with regard to the commencement of the project.
But, she was informed about the revocation of power of attorney under Document No.113/2006 by Opposite Party No.2 which was executed in favour of Opposite Party No.1 and that after the said revocation the said land had became subject matter of court litigation due to which the construction of Apartment could not be commenced and that during the pendency of court litigation the Opposite Party No.2 who is the owner of the property had sold the said property situated at Jawahar Nagar, Hyderabad to one M/s. Udaya Aditi Developers, having its office at G-1, Suryodaya apartments, Gandhinagar, Hyderabad under a registered sale deed bearing document No.3647/2016 dated 19.09.2016 and the said registered sale deed specifically mentions that, an injunction Suit bearing OS.No.64 14/2006 on the file of Hon'ble X Junior Civil Judge, City Civil Court, Hyderabad has been and filed and an appeal bearing AS No.183/2015 on the file of Hon'ble XXIV Additional Chief Judge, City Civil Court, Hyderabad was pending between the Opposite Party No.1 &2 and that, the Opposite Party No.1 had filed a Memo on 19.06.2017 in the Appeal No.183/2015 stating that, he has no claim against the property and had withdrawn the Appeal but failed to inform the said fact to the present complainant. But, the complainant had been making several requests to Opposite Party No.1 with regard to the handover of the property but the Opposite Party No.1 failed to do so, as such on 12.07.2018 and 18.06.2018 she got issued a legal notice demanding the return of the amounts paid by her i.e., Rs. Lakhs with interest from 26.12.2005. The Opposite Party No.1 though received the said notices failed to reply to any of them nor came forward to refund the said amount. In this way the Opposite Party No.1 is enriching himself by receiving amounts from third party purchasers and cheated the customers like the complainant, having no other alterative the complainant is before this Commission seeking refund of Rs.2 Lakhs along with interest, compensation and costs.
3. Written version of the Opposite party No. 1:
The Opposite party No.1 had filed an elaborate written version while admitting with regard to Sale agreement and receipt of Rs.2 Lakhs from the complainant and also admitted that, he was the Attorney of Opposite Party No.2. The Opposite Party No.1 while admitting all the factual aspects has pleaded that, the present complainant counsel was the counsel for him in the Civil Suit No.6514/2006 and Appeal No.183/2015 before the Hyderabad Court and has provoked him to file that injunction suit and appeal and mis directed him to file these two cases against the Opposite Party No.2 and subsequently when he had obtained a no objection Vakalat from the said counsel and having approached another counsel he was advised to withdraw the appeal and he had as withdrawn the 5 appeal the present complainant counsel being hand in glow with the Opposite Party No.2 has made the complainant to file the present complaint after of 13 years and prior a lapse over to that, got issued two legal notices. However, in between these 13 years there was no such communication or request from the complainant with regard to the refund of the money as such it is an afterthought which was created by the present complainant counsel and made the complainant to file this complaint and as there was a litigation pending with regard to the property that was to be sold to the complainant and as the GPA which was in his favour was revoked by Opposite Party No.2 he was not in a position to commence with the construction or proceed with the sale of the property and that it was neither wilful nor wanton but, for the above said reason he was unable to proceed with the constructions the opposite party further pleads that, the present complaint is barred by limitation as the amount paid by the complainant was way back in December 2005 and that the revocation of GPA. and the cases pending before the courts was well within the knowledge of the complainant and moreover as the GPA has been revoke in 2006 he is not responsible for any further acts of the Agreement and that if any liability has to be cast it is the Opposite Party No.2 who is liable for any acts done during being Attorney of Opposite Party No.2 and that the complaint doesn't bare any merits as such the same be dismissed against him.6
4. The opposite party No.2 is set exparte.
5. The Complainant filed evidence affidavit and got market Exs.A1 to A13 her behalf. The on Opposite Party No.1 filed evidence afidavit and no exhibits are marked on their behalf. Opposite Party No.2 is set exparte.
6. Heard the arguments of both sides and material having perused on record. The points that arise are:
for consideration
1. Whether the complaint is barred by limitation? 2 Whether the Opposite party has been deficient in the service ?
3. Whether the complainant is entitled for any reliefs sought for in the complaint?
4. To what relief?
7. Point No.1: The case of the complainant is she has paid Rs.5,00,000/- to opposite party NO.1 in pursuance of two different agreements of sale of two different Flat i.e., Flat No.AF-101 and AS201 and the total sale consideration for boththe flats was Rs.38,40,000/- (Rupees Thirty eight lakhs forty thousand only) Rs.19,20,000/- each and the Opposite Party No.1 promised to develop the three bedroom apartment at Jawarhar Nagar, Hyderabad but failed to hand over the same till date inspite of several requests, vexed with the attitude of the Opposite Parties the complainant is before this Commission seeking refund of Rs.5,00,000/- along with interest and compensation and in support of her case, got marked ex.Al to A13.
8. Admitted facts are:
1. Entering into sale agreement basing on GPA.
2. Revocation of GPA on 11.08.2006 vide Registered document No.113/2006.
3. Litigation before Civil Court.
4. Sale of the property by Opposite Party No.2 on15.03.2002 to M/s. Udaya Aditi Developers, having its office at G-1, Suryodaya apartments, Gandhinagar, Hyderabad.
9. The Opposite Party No.1 while admitting all the factual aspects opposed the complaint on the ground of limitation and two other points which shall be discussed in later discussion of points on perusal of Ex.A3 & A4 it is observed that these were executed on 15.03.2002 and similarly the amount of Rs.5,00,000/- was paid by the complainant on 25.12.2005 i.e., almost all 13 years back, Except Ex.A3, A4 and Exs. A7 & A8 legal notices there is no other communication between the complainant and the opposite parties.
No scrap of paper is filed to sh w that the complainant had ever requested for completion and handing over of the flat or in the failure of the same to handover the amount paid by her. In the absence of any such written communication it cannot be concluded that the complainant has been requesting the opposite parties' for commencement or handing over of the flat. Having remained silent for 13 long years. The complainant cannot now seek for refund of money, as her right to seek for refund has lapsed way back in 24.12.2007. As such, we are of the considered view that the complaint is hopelessly barred by limitation.
10.Point Nos.2 & 3 In spite of coming to a conclusion that the complaint is barred by limitation we would like to discuss the merits of the case. Now the points are whether the opposite party 8 whether the complainant is had been deficient in their services and entitled to the reliefs sought.
ior EX.A3 & A4 Agreement to sale is a simple agreement the conveyance relating to the sale of immovable property. Though clause No.5 of Ex.A3 8 A4 agreement mentions about a separate Construction agreement. Without any time limit and on the other hand at clause No.4 of the agreement a time period of9 months 1 fixed for the balance sale consideration payable by the complainant. For a better understanding the said clauses are being reproduced here under.
Clause 4 & 5 of Ex.A3
4. The VENDEE agreed to pay the balance sale con.sideration amount of Rs.16,45,000/-(Rupees Sixteen lakhs forty five thousand only) to the VENDOR within a period of 9-months from the date of this agreement and the same may be extended by mutual consent.
5. The VENDOR had also today simultaneous tered into a separate construction agreement with the Vendee towards construction and completion of the B' scheduled property.
Clause 4 &5 of Ex.A4
4. The VENDEE agreed to pay the balance sale consideration amount of Rs. 16,95,000/-(Rupees Sicteen lakhs ninety five thousand only) to the VENDOR within a period of 9-months from the date of this agreement and the same may be extended by mutual consent.
5. The VENDOR had also today simultaneously entered into a separate construction agreement with the Vendee towards construction and completion of the B' scheduled property.
Though the complainant and opposite party No.1 have admitted to have entered into a development agreement but neither of them had cho0sen to file the same before this Commission for the reasons best known to them, in the absence of any such development construction agreement and a clause f 9 construction without any time frame it cannot be concluded that there had been any services availed by the complainant from opposite parties'
11. The other point on which the opposite party No.1 had basing which he had opposed the complaint is that as the GPA on entered into an agreement with the present complainant had been revoked way back in 2006 vide document No.113 of 2006 as such he is not liable and it the opposite party No.2 who is liable being had the principal / owner of the property and the fact that GPA the complainant in her been revoked had been clearly stated by complaint at Para-5 of the complaint having knowledge of the revocation of the GPA the complainant didn't choose to approach the opposite party No.2 either for handing over of the property or for the return of the amount paid by he. Since, whenever any GPA is revoked the principal is liable for any of the acts done by his attorney during the subsistence of the GPA. In the instant case the complainant had not filed any documentary evidence to show that she had ever demanded for completion of flat or refund request to opposite party No.2 in the absence of any such proof no liability can be cast upon opposite party No.2 that too after a lapse of 13 long years.
12. The agreement under Ex.A3 & A4 gives rise to the enforcement of specific performance of an agreement for sale of immovable property which can only be availed under the provisions of the specific relief act and before the civil court. This commission is not the proper forum to get the rights that are available under Ex.A3.
1013. At the cost of repetition we are of the considered view that in the absence of any development / construction agreement andin the absence of any written communication by the complainant to both the opposite parties for 13 long years it has to be concluded that the complaint does not bear any merits and is also hopelessly barred by limitation. As such the complainant had failed to prove any deficiencies on the part of the opposite parties to make them liable either for refund or compensation. It appcars that the complainant has filed a chance litigation.
14. Point Nos.4:: In the result, the complaint is dismissed.
However in the circumstances there is no order as to costs.