State Consumer Disputes Redressal Commission
1.Burzis Keki Patel vs M/S. Aliens Developers P. Ltd., on 20 March, 2023
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BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.121/2019
Between :
1.Mr.Burzis Keki Patel, S/o.Mr.Keki Patel , Aged about 55 years
2. Mrs.Zenobia Burzis Patel, W/o.Mr.Burzia Keki Patel , Aged about 54 years R/o.P-23, Jehangir Building M-Cama Park, Cama Road, Andheri ( West) Mumbai-400 058. ...Complainants And M/s. Aliens Developers ( P) Ltd., Rep. by its Managing Director and Joint Managing Director, Mr.Hari Challa & Mr.Venkat Prasanna Challa, O/o.Ms.Aliens Space Station, Tellapur, Ramachandrapuram Mandal, Medak Dist, Hyderabad - PIN - 502 032. ... Opposite party Counsel for the Complainant : M/s. V.Appa Rao Counsel for the Opposite Party : M/s.P.Raja Sripathi Rao CORAM : Hon'ble Sri V.V.Seshubabu, Member (J), And Hon'ble Smt.R.S.Rajeshree, Member (NJ).
MONDAY, THE TWENTIETH DAY OF MARCH, TWO THOUSAND TWENTY THREE .
Order :
01). The complaint is filed on 3.7.2019 u/s.17(1)(a)(i) of the Consumer Protection Act, 1986 for directions to the opposite party as under:
i. to complete the schedule flat as per
agreed specifications and deliver the
possession of the same forthwith with
same cost as agreed in the agreement;
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ii. to pay fair rent of Rs.10/- per sq.ft. of
super built up area per month w.e.f.
1.9.2012 till the handover of flat;
iii. to pay Rs.8 lakhs towards
compensation; and
iv. to pay legal expenses of Rs.50,000/-.
02). The brief averments of the complaint are that the opposite
party 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 on 16.8.2012 the opposite party executed a registered sale in document no.11981 followed by construction agreement on the same day in favour of complainants for purchase of a flat bearing no.824, Station-4 on 8th floor of the complex by name Ms.Aliens Space Station -1 with a super built up area of 1122 sq.ft. with one covered car parking besides undivided share of land of 28.90 sq.yards; that the total sale consideration of the flat is Rs.13,00,000/- and the complainants paid the said total amount and nothing is pending to pay; that the complainants used to contact the opposite party over phone since 2012 and every time the opposite party promised to complete the flat soon and in the month of December,2018 when the complainants visited the site they came to know that the opposite party not even started the construction; that the complainants got issued legal notice dt.23.5.2019 to the opposite party for which no reply was given; hence the complaint seeking for the reliefs as stated supra.
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 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 3 barred by time as the complainant entered into Construction Agreement on 16.8.2012 and as per the same limitation is ended in August,2014, but the complainant keep quiet and filed the complaint and the complaint 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 complainant 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"; with these pleas the opposite parties prayed for dismissal of the complaint with exemplary costs.
04). The complainant no.1 filed Evidence Affidavit as PW.1.
Exs.A1 to A5 are marked on behalf of the complainants. Mr.Hari Challa, Managing Director of opposite party filed evidence affidavit as DW.1 and got marked Exs. B1 to B18. Written arguments of complainants filed.
Heard arguments of both sides.
05). Basing on the pleadings on both sides, the following are the points for consideration:
i. Whether the complainant is entitled
for the reliefs as claimed?
ii. Whether the complaint is barred by
time?
iii. Whether there is deficiency in service
or unfair trade practice on the part of
the opposite party ?
iv. Relief?
06). Points 1 to 3 : It is argued by the opposite party counsel
that the complainant is only an investor and also the friend of one 4 of the Directors of opposite party and he paid only Rs.13 lakhs, as such they are interested to refund the amount only and further argued that as the Sale Deed was executed only for the semi finished flat, the complainants shall rely upon only on the Sale Deed averments but not on the other documents. In view of the above arguments, it is very clear that opposite party is interested in only to refund.
No document is filed to establish that the complainants are only investors but not the purchasers of the apartment with a real intention to get the same. Ex.A2 is the registered Sale Deed in which semi finished flat no.824 in Station 4 on 8th floor in Aliens Space Station 1 with super built up area of 1122 sq.ft. was sold with an undivided share of 24.12.sq.yards. Ex.A1 is the Construction Agreement which was executed on the same day of registered sale under Ex.A2 in which all other details of flat are similar to that of Ex.A2, except the undivided share of land which was mentioned as 33.07 sq.yards which is contrary to the recitals in Ex.A2. Quite surprisingly in the complaint, undivided share of land is mentioned as 28.90 sq.yards which is not at all there either in Exs.A1 or Ex.A2. We are of the view since under Ex.A2, absolute rights are transferred on not only semi finished flat, but also on the undivided share of land, it shall be taken as an yardstick to conclude that only 24.12 sq.yards of land was allotted in favour of the complainants.
07). As per the Construction Agreement, the worth of the proposed constructions were at Rs.1,41,960/-. As per Ex.A2, registered Sale Deed, the worth of semi finished flat was at Rs.11,22,000/-. If both the amounts are clubbed together, it comes to Rs.12,63,960/-, but not Rs.13 lakhs as pleaded in the complaint. However, in the Ex.A1 & A2 it is categorically mentioned that PW.1 paid total amount. In other words, in view of the said recitals one can safely conclude that there were no dues payable by the complainants to the opposite party. In the absence of any evidence from the opposite party‟s side nothing can be concluded that the complainants are only investors, but not purchasers of the flat. When the total amount is paid under Ex.A1 & A2, there is no opportunity for opposite party to contend that due to non payment of instalments, the flat was not completed. At 5 the same time, it is to be observed that no date was fixed either in Ex.A1 or A2 to handover the possession. On the other hand, it is contended that on completion of the construction, opposite party itself would inform the complainants about the completion and on such information, the complainants shall clear the dues if any and also shall take possession within 15 days, else the Developer is at liberty to cancel the flat. In the case on hand, as the total amount was paid, there is no question of complainants paying any further amounts. Added to the same, no piece of paper is filed by opposite party to show that they have informed the complainants in writing about the completion of the flat and still they have not come forward within 15 days to take delivery of possession and due to the same they have cancelled the allotment. Therefore, we are of the emphatic view that the opposite party is liable to deliver the flat by completing the same in all respects as per the specifications which are made part and parcel of Ex.A2.
It is further mentioned in Ex.A1 that the purchasers shall pay Rs.16,337/- for VAT, Rs.42,975/- towards Service Tax and Rs.1,40,250/- towards Corpus Fund. All these payments will be made only at the time of delivery of possession. Therefore, the liability of complainants will arise to pay the above amounts at the time of handing over of possession.
Even though the complainants claimed fair rent @ 10% per sq.ft. on the super built up area, no relief can be granted in that regard because the date of delivery of possession was not fixed anywhere. When the complainants purchased the flat with eyes wide open in terms and conditions of the flat, it cannot be agitated that they are entitled for the fair rent as claimed.
08). It is the contention of opposite party that the complaint is barred by time and it cannot be looked into in view of the presence of Arbitration Clause etc. The law is very well established that in the case of construction activities, there is no question of limitation aspect until the opposite party refused to perform his part of contract. In the case on hand never PW.1 contended refusal to perform his part of the contract. In the same manner in several judgements rendered by the Hon‟ble NCDRC and Hon‟ble Supreme Court, it is clarified that Arbitration Clause is not an obstacle for the Consumer Commissions to proceed with the case 6 and to decide the aspect of deficiency in service or unfair trade practice if involved. Points are answered accordingly.
09). In the result, complaint is partly allowed with costs of Rs.20,000/- directing the opposite party to complete the flat no.824 in all respects as per the specifications and to handover the possession of the same to the complainants within one month from the date of this order. The opposite party is further directed to pay compensation of Rs.1 lakhs for causing mental agony to the complainants. In case of failure to handover the possession, the opposite party shall pay interest @ 12% p.a. on the amount of Rs.12,63,960/- till the date of delivery of possession. On the date of possession of flat, the complainants shall pay VAT, Service Tax and Corpus Fund as applicable.
(Dictated to Steno, transcribed and typed by her, corrected and pronounced by us in the open Court on this 20TH day of March, 2023).
SD/- SD/-
MEMBER (J) MEMBER(NJ)
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Dated 20.3.2023.
APPENDIX OF EVIDENCE
Witnesses examined
For the complainant For the opposite parties
Evidence Affidavit of the complt. E.A of Mr.Hari Challa
as PW.1 filed. -Managing Director of the
Opp.party as DW.1 filed.
Exhibits marked on behalf of the complainants:
Ex.A1 : Photostat copy of Construction Agreement dt.16.8.2012 entered between opp.party and complainant.
Ex.A2 : Photostat copy of Sale Deed dt.16.8.2012 executed by opposite party in favour of the complainants. Ex.A3 : Photostat copy of legal notice dt.23.5.2019 issued on behalf of the complainants to opposite party. Ex.A4 : Postal receipt.
Ex.A5 : Postal track.
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 7 & 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.
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.
SD/- SD/-
MEMBER(J) MEMBER(M)
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Dated :20.3.2023.