State Consumer Disputes Redressal Commission
Mr. Nikhil Kumr Srivastava, vs M/S. Aliens Developers Pvt Ltd., on 14 June, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.52/2019
Between :
1.Mr.Nikhil Kumar Srivastava, S/o.Sri Umeshwari Prasad Srivastava, R/o.H.No.8A, Sector - B, AWHO Colony, Sikh Village, Secunderabad - 500 003.
2. Mrs. Pummy Ratna, W/o.Mr.Nikhil Kumar Srivastava, R/o.H.No. 8A, Sector - B, AWHO Colony, Sikh Village, Secunderabad - 500 003. ... Complainants And M/s.Aliens Developers ( P) Limited, Registered office at Survey No.384, 385 & 426/A, Tellapur Village, Ramachandrapuram Mandal, Medak District - 502 032, Rep. by its Managing Director. .... Opposite parties Counsel for the Complainants : M/s.M.Hari Babu Counsel for the Opposite Parties : M/s.Raja Sripathi Rao-
CORAM : Hon'ble Sri V.V.Seshubabu, M ember (J), And Hon'ble Smt.R.S.Rajeshree, M ember (NJ).
W EDNESDAY, THE FOURTEENTH DAY OF JUNE, 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 for directions to the opposite parties as under:
i. to complete the flat bearing no.352 in 3rd floor in Station -9 with super built up area of 1400 sq.ft. in the complex namely 'SPACE STATION -9' with one car parking together with 46.44 sq.yards of undivided share of land, to handover the 2 same and execute the registered sale deed by receiving the balance sale consideration; or alternately to refund Rs.22.32,132/-;
ii. to pay Bank EMI and interest component at !8% from 2006 till 2017 which comes to Rs.41,48,163/- ;
iii. to pay compensation of Rs.3 per sq.ft. i.e. Rs.4,200/- for 1400 feet per month from 2011 which comes to Rs.3,52,800/- ;
iv. to pay compensation of Rs.5 lakhs for mental agony; and to pay Rs.50,000/-
towards costs.
02). The brief averments of the complaint are that the 1st complainant is the husband of the 2nd complainant and they booked flat no.352 by entering into agreement on 23.11.2006 for a total consideration of Rs.43,50,282/- and paid Rs.1 lakh as an advance; that subsequently they have paid Rs.8,29,553/- by way different cheques; that allotment confirmation letter was issued by opposite party in their favour on 12.1.2008 with revised calculations showing the total cost of the flat as Rs.41,33,283/-; that on 2.8.2008, the opposite party entered into an agreement of sale with them for a total consideration of Rs.43,50,282/- and acknowledged receipt of Rs.9,09,322/- and balance payable was shown at Rs.34,40,960/-; that on the same day Tripartite Agreement was executed in between the complainant, opposite party and SBI; that the bank in pursuance of the Home Loan Agreement disbursed Rs.12,75,068/- to the opposite party, though there were no constructions; that in all, the complainants have paid Rs.22,32,132/- in between 23.11.2006 to 6.10.2008; that as per the Agreement, possession shall be handed over in 3 ½ years i.e. by 11.11.2011; that in case of failure, the opposite party agreed to pay Rs.3/- per sq.ft.
per month; that on 24.6.,2009, the complainants have issued a letter demanding the opposite party for settlement of amount; that on 10.7.2009 another notice was issued demanding cancellation of flat and for refund of the amount; that opposite party made false promises to handover the flat within 3 years and requested 3 the complainant to enter into a fresh agreement and accordingly correspondence was also made and even agreed to reduce the cost of the flat from Rs.43,50,282/- to 34,86,114/-; that however, the opposite party committed default and due to his continuous defaults, the complainants were forced to pay the bank EMIs; that a legal notice dt.9.11.2018 was issued to the opposite party for which no reply was given; that the opposite party is liable to pay interest @ 24% p.a. on the total amount paid by them; that the complainants even filed Company Petition No.1/2017 before the Hon'ble High Court and subsequently it was withdrawn with a liberty to file a fresh petition before the Company Law Tribunal; that the complainants have also cleared the bank loan by 9.10.2018; hence, the complaint.
03). Opposite party 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 are denied except those that are admitted; that the complainants have not approached the Commission with clean hands, as such cannot claim deficiency in service; that the complaint is barred by time as the complainant entered into an agreement, as per which the opposite party is alleged to handover the possession under Clause VIII, but the complainant kept quiet and filed the complaint and the complaint is liable to be dismissed as it is not filed within the period of limitation as prescribed 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 4 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). The complainant no.1 filed Evidence Affidavit as PW.1. Exs.A1 to A18 are marked on behalf of the complainants. Mr.Hari Challa, Managing Director of opposite party filed evidence affidavit as RW.1. Exs.B1 to B18 marked on behalf of the opposite party.
Heard arguments on both sides.
05). Basing on the pleadings on both sides, the following are the points for consideration:
i. Whether there is deficiency in service and unfair trade practice on the part of the opposite parties?
ii. Whether the complainant is entitled for the reliefs as prayed for?
iii. How much amount the complainant paid to the opposite parties?
iv. Relief? 06). Point Nos.i to iii : At the time of arguments, the opposite party counsel submitted that they have received only Rs.21,90,981/- but not Rs.22,32,132/- as claimed in the complaint. The complainant counsel submitted that Ex.A8 and
A13 will prove the payments made by them and if the amount paid under Ex.A8 to the tune of Rs.9,57,062/- and the amount shown under Ex.A13 to the tune of Rs.12,78,820/ are clubbed, the total payment comes to Rs.22,32,132/-. Except contending that the complainants have paid only 21,90,981/-, it is not at all proved with the help of documentary evidence. It is also submitted that admitted facts need not be proved.
In the case on hand the opposite party had first entered into an agreement dt.23.11.2006 i.e. Ex.A1 whereunder he agreed to sell flat with a total area of 1200 sft. for a sum of Rs.37,70,695/- and received Rs.1 lakh as an advance and subsequently two more amounts in all Rs.8,29,552/-. Ex.A3 is allotment Confirmation Sheet whereunder the sft. was increased to 1333 from 1200. In Ex.A4 - Revised Flat Calculations, the 5 revised cost of the flat was shown at Rs.41,33,283/-. Ex.A5 goes to show that the opposite party had entered into an Agreement of Sale dt.2.8.2008 wherein the flat no.352 in third floor admeasuring 1413 sq.ft. with undivided share of 30.50 sq.yards with two car parkings was agreed to be sold for a total sale consideration of Rs.43,50,282/- and also mentioned that by that date of agreement, received Rs.9,09,322/- and the balance payable shown at Rs.34,40,960/-.
07). Ex.A6 is the Tripartite Agreement which was entered on the same day of Ex.A5. Ex.A7 goes to show that a home loan of Rs.25 lakhs was sanctioned to the complainant, repayable in 150 EMIs @ Rs.29994/-. Ex.A8 is the Statement of Account maintained by the opposite party wherein it is categorically mentioned that a sum of Rs.9,57,062/- was received, balance payable was shown at Rs.33,93,220/- as against the total flat cost of Rs.43,50,282/-.
As already stated supra in the Ex.A13, it is mentioned that the bank had disbursed Rs.12,78,820/-. Therefore, we are of the view that the calculations as given in the complaint have to be accepted and the contention of the opposite party is to be negatived.
08). Ex.A15 is the Company Petition no.1/2017 filed by the complainants against opposite party and it further goes to show that the complaint was withdrawn as not pressed with a liberty to file a fresh petition before the Company Law Tribunal. Ex.A16 is the office copy of legal notice and the acknowledgement goes to show that it was served on the opposite party, but no reply was given to the same. Ex.A17 goes to show that the complainants have closed the loan account on 9.10.2018 by clearing the entire amount. As per Ex.A18, the bank loan was cleared by paying Rs.5,29,472/-, the repayment was made with an interest at 08.3500%. It is important to note that the opposite party made every effort to retain the customer by entering into agreements one after the other and even made efforts to reduce the cost of the flat, but pathetical situation is from 2006 to 2019, the opposite party failed to complete the construction of flat no.352 and handover the same to the complainants. Nothing is established before this Commission that e ven by the date of the Arguments, the flat in 6 question was completed or not. Therefore, we are of the view that it is better to refund the amount with heavy compensation.
09) In the result, complaint is partly allowed and partly dismissed directing the opposite party to pay Rs.9,57,062/- with interest @ 12% p.a. from the date of respective payments till the date of repayment. The opposite party is further directed to pay Rs.12,78,820/- with interest @ 10% p.a. from the date of sanction of bank loan till the date of repayment. The opposite party is further directed to pay compensation of Rs.2,50,000/- and costs of Rs.20,000/-. Time for compliance is one month. In case of failure, interest chargeable as shown above shall be enhanced by another 2% respectively.
( Typed to dictation on system, corrected and pronounced by us in the open Court on this 14th day of June,2023).
MEMBER(J) MEMBER(NJ)
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Dated: 14.6.2023 APPENDIX OF EVIDENCE W itnesses examined For the complainant For the opposite parties Evidence Affidavit of the Evidence affidavit of Complainant no.1 as PW.1 Mr.Hari Challa, -Managing filed Director of the Opp.party as RW.1 filed.
Exhibits marked on behalf of the complainants:
Ex.A1 : Photostat copy of Agreement for Reservation of Flat Dt.23.11.2006.
Ex.A2 : Photostat copy of receipt dt.23.11.2006 issued by opp.party for the payment received from the complainant.
Ex.A3 : Photostat copy of Allotment Confirmation Sheet dt.12.1.2008 issued by opposite party on behalf of complainant.
Ex.A4 : Copy of Revised flat calculations issued by opp.party. Ex.A5 : Photostat copy of Agreement of Sale dt.2.8.2008 between opp.party and complainants.
Ex.A6 : Photostat copy of Tripartite Agreement dt.2.8.2008 , between opp.party, complainant and SBI. Ex.A7 : Photostat copy of lr. dt. 23.9.2008 from SBI to Complainants.
Ex.A8 : Statement of account issued by opposite party on behalf of complainants.7
Ex.A9 : Copy of provisional statement for claiming deductions issued by SBI.
Ex.A10 : Copy of lr.dt.20.5.2009 from the complinant no.1 to the Asst. Gen.Manager, RACPC.
Ex.A11 : Copy of lr.dt. 24.6.2009 from the complainant no.1 to opposite party.
Ex.A12 : Copy of lr.dt.8.10.2009 from opp.party to complainant no.1.
Ex.A13 : Copy of provisional statement for claiming deductions issued by SBI.
Ex.A14 : Payment details based on available records. Ex.A15 : Order copy in Company Petition no.1 of 2017 on the file of High Court of Judicature at Hyderabad. Ex.A16 : Copy of legal notice dt.9.11.2018 issued by Complainant to opposite party along with ack. Ex.A17 : Photostat copy of lr.dt.9.10.2018 from SBI to Complainant.
Ex.A18 : Copy of loan payment details of complainant Exhibits marked on behalf of the opposite party :
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 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 1.8
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.
MEMBER(J) M EMBER(NJ)
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Dated: 14.6.2023