State Consumer Disputes Redressal Commission
Abhishek Govil S/O Sri M.N.Govil vs 1. R.Suri Babu S/O Sri Satyanarayana And ... on 18 February, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.1088 OF 2011 AGAINST C.C.NO.202 OF 2010 DISTRICT FORUM RANGA REDDY Between: Abhishek Govil S/o Sri M.N.Govil Aged about 30 yrs, Occ: Employee R/o Flat No.203, Sai Nilayam Apts Kondapur, Kothaguda, R.R.District Appellant/ complainant A N D 1. R.Suri Babu S/o Sri Satyanarayana aged about 34 yrs, Occ: Managing Partner M/s Raja Constructions & Infrastructures R/o flat No.23, Lakshmi Gayatri Enclave Pragati Nagar Colony, R.R.District 2. Y.Nagesh Babu S/o Sri Seetharamaswamy aged about 35 yrs, Occ: Managing Partner M/s Raja Constructions & Infrastructures R/o Flat No.502, Sai Mayuri Chaitanya Estates MIG 515, 516, 517, KPHB Colony, IV Phase Kukatpally, R.R.District Respondent/opposite parties Counsel for the Appellant M/s N.Balu Counsel for the Respondent Notice held sufficient(R1) M/s A.V.Krishna Rao (R2) QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
SRI THOTA ASHOK KUMAR, HONBLE MEMBER AND SRI S.BHUJANGA RAO, HONBLE MEMBER MONDAY THE EIGHTEENTH DAY OF FEBRUARY TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The unsuccessful complainant is the appellant.
2. The appellant filed complaint seeking for direction to the respondent to pay a sum of `20 lakhs towards compensation.
3. The appellant entered into agreement to purchase flat bearing No.109 in Block-C in Rajas Sunrise Height at Bachupally Village, Qutbullapur Mandal, R.R. District for a consideration of `24,00,000/-
of which he paid a sum of `25,000/- through cheque dated 10.8.2008 and the balance amount was agreed to be paid on availing of loan to the tune of `24 lakh from LIC Housing Finance Limited. The LIC Housing Finance Limited disbursed `10,75,000/- to the appellant which was paid to the respondent.
The appellant entered into an agreement of construction with the respondent for semi-finished flat and the document was registered in the office of sub-Registrar, Qutbullapur, R.R. District on 26.11.2008.
4. The respondent failed to complete the semi-finished flat and permitted conversion of the residential project into a commercial complex and handed over block-C of the building to M/s Gayatri Education Society for the purpose of running Boys Hostel. The respondent failed to handover the flat to the appellant and on demand for payment of the amount paid by the appellant or to complete the semi-finished flat, the respondent agreed to return the amount, the respondent entered into agreement with the appellant on 5.3.2010 agreeing to refund the amount of `11 lakh which includes the initial payment of `25,000/- total amount of `12,28,615/- and also agreed to pay the EMIs of `25,176/-
from 5.3.2010 till the month of August 2010.
The respondent issued two cheques for `50,000/- and `1,50,000/-
respectively which were on being presented by the appellant returned unpaid for the reason that there was no sufficient fund in the account of the respondents.
5. The appellant got issued notice on 18.10.2010 for payment of the amount and the respondent failed to give reply to the notice. The appellant sustained financial loss as he was required to pay Rs.25,176/- towards EMI to the LIC Housing Finance Limited and he had to pay monthly rent for the residence where he is residing in as also he suffered mental tension and physical strain. Hence, he has filed the complaint.
6. The respondent resisted the claim on the premise that the appellant is not entitled for the relief claimed without cancellation of the agreement of construction dated 26.11.2008. Until and unless the document is cancelled the respondent cannot seek any relief as claimed. The appellant received the amount without passing receipts and filed the complaint claiming the same amount. The appellant is not consumer and the District Forum has no jurisdiction to entertain the complaint.
7. The appellant had gone through the terms and conditions of the scheme mentioned in the brochure and voluntarily agreed to purchase the semi-finished flat.
The appellant is aware that subsequently after executing the agreement and sale deed and after delivering possession of the flat, the respondents along with the other flat owners entered into agreement and let out the premises to third party. The respondents had not agreed to pay an amount `12,28,615/-
with interest as stated by the appellant.
The respondents entered into agreement with the appellant on 5.3.2010 to pay the amount mentioned therein. The respondents had also entered into agreement with the appellant on 10.6.2010. The appellant instead of filing the suit for recovery of the amount or specific performance of agreement filed the complaint to evade payment of court fees.
8. All the flat owners decided to convert residential flats into commercial and the construction made after executing the agreement of construction was decided to be removed and the flat owners authorised the respondents to convert the premises to suit the need for Gayatri Educational Society and accordingly the respondents converted the premises for Gayatri Educational Society to run Boys Hostel. The appellant has been visiting the premises regularly and receiving the amount as per the agreement. The appellant authorised the respondents to convert the premises into commercial complex. In view of agreements dated 5.3.2010 and 10.6.2010 the Consumer Forum has no jurisdiction to entertain the complaint.
9. Agreement dated 10.6.2010 would speak about vendor handing over of possession of the flat after cancellation of the sale deed. The appellant abused the respondents and behaved like an illiterate and due to the act of the appellant the respondents were defamed in the locality. The appellant purchased two other flats. Hence, prayed for dismissal of the complaint.
10. The appellant filed his affidavit and the documents Exs.A1 to10. On behalf of the respondents, the second respondent filed his affidavit, however, the respondents had not chosen to file any documents.
11. The District Forum dismissed the complaint on the premise that the appellant entered into agreement with the respondents to convert Block-C of the building into commercial complex and agreed to cancel the sale deed and re-convey the property as also handover possession of the flat to the respondents. The District Forum held that the appellant is not consumer in view of the agreements dated 5.3.2010 and 10.6.2010 and the complaint is not maintainable.
12. Aggrieved by the order of the District Forum the complainant has filed the appeal contending that the respondents executed documents, Exs.A2 to A4 agreeing to repay the amount and they failed to returned the amount. It is contended that the District Forum failed to consider the pleadings and the documents of the appellant and that the respondents before executing sale deeds in favour of the appellant clandestinely effected sale of the flats to some other persons and cancelled the sale deed by means of execution of cancellation deed which the District Forum failed to consider. It is contended that the appellant is consumer and entitled to the refund of the amount.
13. The point for consideration is whether the order of the District Forum suffers from misappreciation of fact or law?
14. It is beyond any dispute that the appellant paid an amount of `25,000/- and subsequently a sum of `10,75,000/- to the respondents for purchase flat bearing No.109 in Block-C in Rajas Sunrise Height floated by the respondents. The respondents executed registered sale deed dated 26.11.2008 in favour of the appellant. The learned counsel for the appellant has contended that respondents failed to complete the construction and provide amenities to the flat as also failed to handover possession of the flats.
15. It is also not disputed that the appellant availed loan to the tune of `24 lakhs from LIC Housing finance Limited and of the amount sanctioned as home loan, a sum of `10,75,000/- was paid as part of consideration to the respondents.
Thereafter two agreements dated 5.3.2010 and 10.6.2010 had been entered into between the appellant and the respondents. It is also a fact that is beyond any dispute that Block-C in the building was let out to M/s Gayatri Educational Society for running Boys Hostel. The flat bearing No.109 purchased by the appellant comprises part of Block-C in the building. The respondents contend that the appellant and other flat owners authorised them to conduct the Block-C of the building to suit requirement of M/s Gayatri Educational Society and as such the appellant cannot seek remedy under the C.P.Act.
The appellant submits that he was not aware of conversion of Block-C into commercial complex carried out by the respondents.
16. Thus, the question of jurisdiction can be determined by looking at the documents, agreements entered into between the appellants and the respondents on 5.3.2010 and 10.6.2010 as also basing on the fact whether the appellant had knowledge of conversion of the complex into a commercial complex and whether he along with other flat owners authorised the respondents for such conversion of Block-C of the building.
17. The agreement dated 5.3.2010 was entered into between the parties wherein it is stated that due to financial problems the respondents changed the plan to make housing society at the site and the appellant and the respondents mutually agreed on the following terms and conditions:
1.
Vendors have agreed that the vendees have paid Rs.10,75,000/- through LIC Home Loan and Rs.25,000/- paid vide cheque No.967558 dated 10.8.2008 of ICICI Bank as booking amount totalling to Rs.11,00,000/-.
2. Vendors have agreed that they will pay back Rs.12,28,615.53 (money mentioned in (1) above Rs.11,00,000/- plus interest to LIC from Nov 2008 to March 2010) and the interest from April 2010 onwards.
3. That the Vendors/Developers have agreed to pay Rs.25,176/- per month on 5th day of every month till August 2010 starting from the date of this Agreement.
4. That the Vendors/Developers have agreed to pay the remaining amount by September 2010.
5. That the Vendee will handover the Flat 109, C Block of Rajas Sunrise Heights to Vendors after 94) above by cancelling the Sale deed made vide 14438/08 dated 26/Nov/08.
18. The respondents executed documents dated 10.6.2010 reiterating the promise made in agreement dated 5.3.2010. The document dated 10.6.2010 reads as under:
It is mutually agreed between Abishek Govil (vendee) & Raja Constructions & Infra Structures (vendor) due to financial reason, we are unable to handover Flat No.109 block-C in time. So we will return back total amount plus interest upto date by July10 end against their LICHFL A/c 64308238.
The vendee will handover the F.No.109, Block-C of Raja Sunrise Heights to vendors after July10 after cancelling the sale deed made vide 1443/08 dated 26.11.2008 SRO Suraram.
19. Both the documents dated 5.3.2010 and 10.6.2010 do not contain recital to the effect that the appellant or the respondents agreed to let the Block-C of the building on rent for commercial complex. Absolutely, the documents enable the appellant claim for the amount paid to the respondents.
20. The learned counsel for the respondent has contended that a meeting was held by the respondents with the flat owners and it was decided to convert residential flats in to commercial complex and the flat owners authorised the respondents to convert the premises to suit the requirement of M/s Gayatri Educational Society which accordingly was carried out to run Boys Hostel in the premises and that the appellant is aware of conversion of Block-C into commercial complex. He has contended that the respondents paid monthly amount to the appellant as agreed and the appellant had not passed receipts for the amount received by him.
21. In terms of Exs.A2 and A3 the respondents agreed to payback amount received from the appellant and the appellant was required to cancel the sale deed executed by the respondents and handover vacant possession of the flat to the respondents. The leasing out of block-C to M/s Gayatri Educational Society by the respondents does not disentitle the appellant from invoking jurisdiction of consumer forum, for the respondents entered into lease agreement with M/s Gayatri Educational Society on their failure to carry out the construction of flat and provide amenities thereto. Even if it is assumed that the appellant along with other flat owners authorised the respondents to let block-C of the building to M/s Gayatri Educational Society, it would not in any manner affect the right of the appellant to clutch the jurisdiction of the Consumer Forum.
22. Having agreed to return the amount mentioned in Exs.A2, A3 and A4, the respondents failed to keep their promise and their failure to return the amount to the appellant constitutes deficiency in service on the part of the respondents.
The respondents are liable to pay the amount in terms of agreement dated 5.3.2010. The appellant shall execute deed cancelling the agreement dated 26.11.2008.
23. In the result the appeal is allowed setting aside the order of the District Forum. Consequently the complaint is allowed.
The respondents directed to deposit before the District Forum the amount in terms of agreement dated 5.3.2010 to the appellant. On deposit of the amount, the appellant is permitted to withdraw it after he executed deed cancelling the agreement in respect of plot bearing No.109 in Sunrise Heights Apartments and handed over possession. Costs of the proceedings quantified at `3,000/-. Time for compliance four weeks.
MEMBER MEMBER MEMBER KMK* Dt.18.02.2013