State Consumer Disputes Redressal Commission
Ms. Annapurna Yilapavanamrep.By Her ... vs Lanco Hills Technology Park ... on 30 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana Complaint Case No. CC/277/2014 1. Ms. Annapurna YilapavanamRep.by her GPA Holder Mrs. Ramana Varanasi Aged about 27 years, Occ, Employee R/o Flat no.302, Sai Prashanth Residency 3-4-526/8, Barkatpura, Hyderabad Telangana 2. Mrs. Ramana Varanasi D/o Late V.S. Krishna Swamy Aged about 53 years, Occ, Software Consultant R/o Flat no 302, Sai Prashanth Residency 3-4-526/8, Barkatpura, Hyderabad Telangana ...........Complainant(s) Versus 1. Lanco Hills Technology Park Pvt.Ltd.,Represent by its Directors Lanco HIllls, LH99, Manikonda, Hyderabad-500 089 Hyderabad Telanganana 2. Mr. R. Sri Venkateswara Dass Sr. Manager- Marketing Support, Lanco Hills Technology Park Pvt. Ltd, Marketing office, Lanco Hills, LH9 Manikonda, Hyderabad-500 089 Hyderabad Telangana 3. Mr. S. Pochendar Director and CEO Lanco Hills Technology Park Pvt. Ltd., Lanco Hills, LH99 Manikonda, Hyderabad-500 089 Hyderabad Telangana ............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 : 30 Mar 2017 Final Order / Judgement STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA : AT HYDERABAD CC NO.277 OF 2014 Between : Ms.Annapurna Yilapavanam D/o Ramana Varanasi, Aged about 27 years, Occ:Employee, R/o Flat No.302, Sai Prashanth Residency, 3-4-526/8, Barkatpura, Hyderabad. Rep. by her GPA holder Ramana Varanasi D/o late V.S.Krishna Swamy, Aged 53 years, Occ: Software Consultant, R/o Flat No.302, Sai Prashanth Residency, 3-4-526/8, Barkatpura, Hyderabad. Complainant And 1) Lanco Hills Technology Park Pvt., Ltd., Represented by its Directors, Lanco Hills, LH99, Manikonda, Hyderabad - 500 089. 2) R.Sri Venkateswara Dass Senior Manager-Marketing Support, Lanco Hills Technology Park Pvt., Ltd., Marketing Office: Lanco Hills, LH9, Manikonda, Hyderabad - 500 089. 3) S.Pochendar, Director & CEO, Lanco Hills Technology Park Pvt., Ltd., Lanco Hills, LH99, Manikonda, Hyderabad - 500 089. (OP No.1 is represented by OP No.3) Opposite parties Counsel for the Complainant : Sri M.Thirumal Rao Counsel for the Opposite parties : M.S.Srinivasa Iyengar Coram : Hon'ble Sri Justice B.N.Rao Nalla, President & Sri Patil Vithal Rao, Member
Thursday, the Thirtieth day of March Two thousand Seventeen Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, President) *** This is a complaint filed under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 by the Complainant complaining deficiency in service on the part of the Opposite parties and seeking direction to refund the sum of Rs.22,38,744/- with future interest; to pay interest @ 24% p.a. on Rs.16,35,088/- paid by complainant on various dates towards the part sale consideration from the date of first payment till realization; to pay Rs.5,00,000/- towards compensation and also award costs of the complaint.
2. The case of the complainant, in brief, is that the Ops 1 and 2 entered into an agreement of sale (Domina) with complainant for construction of residential flat bearing No.2015 on 20th floor, Tower DC admeasuring 1195 sft., to be built as per specifications provided for in the schedule D(d) therein, in the building known as Lanco Hills Technology Park Pvt., Ltd., constructed in Sy.No.201 at Manikonda, Hyderabad, for a consideration of Rs.4,080/- per sft plus Rs.135/- per sft for water, electricity, generator and piped gas and Rs.2,50,000/- towards one car parking, total amounting to Rs.52,86,925/-. In addition to the same, the complainant has to pay Rs.59,750/- towards corpus fund and Rs.28,680/- towards maintenance of the common areas for one year and Rs.1,50,000/- towards club house membership fee.
3. In consideration of the same, the complainant paid an amount of Rs.16,35,088/- on various dates and the Ops, having received the same allotted the said flat in favour of complainant by way of letter dated 28.01.2013 and Agreement of sale dated 25.03.2013. Subsequently, the enquiries of the complainant revealed that there is some legal litigation pending in respect of the proposed land stated to be belonged to Wakf board, before the various courts in the State of Andhra Pradesh as also before the Supreme Court of India. It was also published in the newspapers as regards the litigation, which was suppressed by the Ops. In fact, it was contemplated by the Supreme Court to obtain affidavit from the purchasers before selling the flat, which the Ops also failed to. As a result of litigation, the Ops delayed the construction.
4. Several requests of the complainant regard the legal litigation and progress of the construction to the Ops remained unanswered. As on date, the construction is at skeleton stage and there is no clarity on allotted flat and no construction of club house, ITSEZ, Mall, IT commercial, Hotels, Service Apartments, Designer towers, etc., as promised. Hence, she got issued a notice dated 04.12.2013, to which, the Ops replied on 12.12.2013 informing that there is pending litigation with Wakf board before the Supreme Court. Hence, the complaint with the reliefs, as stated supra, at paragraph No.1.
5. Opposite parties filed their written version contending that they being qualified in the preliminary screening, they were entrusted with development of IT Park consisting of residential flats, malls, etc., and they have deployed about Rs.3469/- crores so far and had made arrangements for financing of the project to the extent of Rs.5500/- crores and have entered into various contracts with various agencies. They began selling units in building by presenting floor plan to prospective buyers. Accordingly, agreed to sell the subject flat to the complainant for a consideration of RS.52,86,925/- apart from corpus fund, maintenance charges and club house membership fee. They admitted payment of Rs.16,35,088/- by the complainant but contend that the complainant failed to make balance sale consideration despite several demands.
6. That, for the first time, the complainant asked the amount to be refunded through legal notice dated 04.12.2013 wherein she claimed that she was never informed about the pending litigation. In fact, complainant was very much made aware of the SLP pending before the Hon'ble Supreme Court against the claim of dargah/wakf board and the land in which the project is being constructed belongs to Dargah Hazrath Hussain Shah Wali/Wakf board and that a stay order dated 08.05.2012 was granted in favour of OP No.1.
7. As per clause No.7.3 of the agreement of sale, the amount will be refunded to the complainant only after deducting 10% of the total sale consideration in case of termination as complainant defaulted in making payment of balance consideration. Further, in case of any dispute between the parties, the matter shall be settled through arbitration as per clause No.9.14. The Ops have already built the club house, IT/IT SEZ, in addition to swimming pool, shopping street, incubation space and play area besides developing space of more than the entire infrastructure of the project. Several purchasers have already taken possession of their residential units and complainant will be handed possession of her unit upon completion. There is no deficiency of service on their part and accordingly prayed to dismiss the complaint as speculative and untenable in law with exemplary costs.
8. On her behalf, the GPA holder of the Complainant by name Ramana Varanasi filed her affidavit as evidence and the documents Ex.A1 to A15 and on behalf of the opposite parties, their authorized person by name S.Venkat Rama Reddy filed his affidavit.
9. Heard both sides. The counsel for the Complainant and the Opposite parties had advanced their arguments reiterating the contents of the complaint and the written version in addition to filing written arguments.
10. The points for consideration are :
i) Whether the complaint is maintainable in view of arbitration clause in the agreement of sale ?
ii) Whether there is any deficiency in service on the part of the Opposite parties?
iii) To what relief ?
11. POINTS NO.1 & 2 : The Complainant entered into "Agreement of Sale (Domina)" with the Opposite parties on 25.03.2013 for purchase of the subject flat, for the consideration and paid the monies for the flat proposed to be constructed by the Opposite parties, which is not in dispute. In pursuance of the said agreement of sale, the Complainant paid the substantial amount of consideration as per the payment plan issued by the Ops, on various dates, amounting to Rs.16,35,088/- which is also not in dispute. The agreement of sale provides for reference to arbitration. The learned counsel for the opposite parties had contended that in view of the arbitration clause in the agreement, the Complainant cannot maintain the complaint before this Commission.
12. However, remedy provided under the provisions of Consumer Protection Act is an additional remedy and in the light of law laid in "National Seeds Corporation Ltd., Vs. M.Madhusudhan Reddy reported in (2012) 2 SCC 506 wherein the maintainability of the complaint before consumer forum prior to the complainants having exhausted the other remedy was considered as under:
"The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force."
Thus, in view of the ratio laid in aforementioned decision, the consumer has two options, either to proceed for arbitration process or to invoke the provisions of the Consumer Protection Act. As such, it cannot be said that the complaint is not maintainable before this Commission in view of the arbitration clause in the agreement. For the above reasons, the Point No.1 is answered in favour of the Complainant and against the Opposite parties.
13. On the other hand, the counsel for the Opposite parties in the arguments submitted that as per agreement, if the Complainant want to terminate the agreement, she had to forego 10% of the total sale consideration and all other expenses and loss incurred by the developer for breach of the conditions and refund of balance sale proceeds will be made only when the property is sold to a third party. Admittedly, on account of knowing the pending litigation of the subject property with the wakf board, the Complainant sought for refund of the amount. As against the same, the Opposite parties would contend that the complainant was very much made aware of the pending SLP before the Hon'ble Supreme Court. To vouchsafe the same, no piece of paper is brought on record by the Opposite parties. Even otherwise, from the perusal of recitals of the Agreement of sale, nowhere does the same finds place. Hence, this Commission does not find any merit in the contention put forth by the learned counsel for Ops.
14. The Opposite parties entered into Agreement of sale with the Complainant and agreed to handover the possession of the subject property by 31.10.2014 with a grace period of 6 months thereafter i.e., on or before 30.04.2015. To show their bonafides, nothing is brought on record by the Opposite parties to the effect that the subject flat is completed in accordance with the terms and conditions agreed upon and consented thereto and as per specifications given therein. Even otherwise, no demands are made by the Opposite parties to vouchsafe their contention that the complainant failed to make payment of the balance sale consideration as per the payment plan.
15. The complainant submits that owing to failure on the part of the Opposite parties in non-disclosure of pending litigation, she opted for cancellation of the agreement of sale. The complainant got issued a notice to the Opposite parties on 04.12.2013 setting forth the factum of non-disclosure of the pending litigation seeking for refund of the amount on the premise of deficiency of service on the part of the opposite parties. However, the Opposite parties disputed the same by way of reply dated 12.12.2013 contending that the complainant was informed about the pendency of SLP in the Hon'ble Supreme Court of India and that after satisfying herself, she opted for purchase of the subject flat. Except this, the Opposite parties failed to bring any piece of paper on record to convince this Commission that they made aware of the pending litigation to the complainant.
16. As per the recitals of the Agreement of sale, the opposite parties promised to complete construction of the flat and hand over its possession to the complainant within the stipulated time with a grace period of six months. The Opposite parties also failed to honour this part of obligation on their part to convince their averment that the residential units have been taken possession of by the different purchasers.
17. Not disclosing the factum of pending litigation in respect of the subject property and also not keeping-up promise to complete construction of the building and failure to deliver possession of the flat within the stipulated time constitutes deficiency in service on the part of the opposite parties. Accordingly, the point No.2 framed for consideration at paragraph No.10, supra, is answered in favour of the complainant and against the Opposite parties.
18. POINT No.3 : In the result, the complaint is allowed directing the Opposite parties to refund an amount of Rs.16,35,088/- with interest @ 12% per annum from the date of last payment till payment and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.5,000/-. Time for compliance: four weeks.
PRESIDENT MEMBER Dated: 30.03.2017 APPENDIX OF EVIDENCE WITNESSES EXAMINED For Complainant : For Opposite parties : Affidavit evidence of Ramana Affidavit of S.Venkat Rama Varanasi, GPA holder of complainant. Reddy, authorized person of Ops. EXHIBITS MARKED For Complainant : Ex.A1 not found in the complaint.
Ex.A2 copy of regulation and penalization of unauthorized construction proceedings, dated 12.07.2010.
Ex.A3 is copy of the Agreement of sale, dated 16.02.2011 entered into by the Ops 1 and 2 through their GPA holder in favour of the Complainant.
Ex.A4 is copy of Agreement of Construction dated 16th February entered into by M/s Victory Developers through its partner Smt.V.Sreevani with the complainant.
Ex.A5 is copy of the cheque dated 02.07.2011 bearing No.320097, for Rs.4,00,000/- of State Bank of Hyderabad, in favour of Victory Developers.
Ex.A6 is copy of Housing Loan sanction proceedings dated 12.07.2011 for Rs.28,75,000/- in favour of the complainant.
Ex.A7 is copy of the bill for Rs.1550/-, dated 25.08.2011 issued by Ganesh Electricals.
Ex.A8 is copy of bill for Rs.18570/-, dated 07.09.2011 issued by Charitha Marble Center, Hyderabad.
Ex.A9 is copy of bankers' cheque bearing No.905969, dated 03.10.2011 for Rs.6,07,000/- of State Bank of Hyderabad, in favour of Victory Developers, Hyderabad.
Ex.A10 is the copy of Housing Loan sanction proceedings dated 17.10.2011 for Rs.28,75,000/-, in favour of the complainant.
Ex.A11 is the copy of bill for Rs.41,540/- dated 04.11.2011 issued by Sri Sai Srinivasa Timber Depot.
Ex.A12 is the copy of bill for Rs.60/-, dated 10.11.2011 issued by Hanuman shop, Kukatpally, Hyderabad.
Ex.A13 is the copy of bill for Rs.3900/-, dated 10.11.2011 issued by Jai Tulja Bhavani Building Material Suppliers.
Ex.A14 is the copy of bill for Rs.1410/-, dated 19.11.2011 issued by Ramakrishna Enterprises, Hyderabad.
Ex.A15 For Opposite parties :
NIL.
PRESIDENT MEMBER Dated: 30.03.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER