State Consumer Disputes Redressal Commission
Smt. Vitthala Usha Rani vs . Vishal Projects Ltd. on 17 January, 2011
BEFORE THE A BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. C. C. 69/2008 Between: 1) Smt. Vitthala Usha Rani D/o. Late V. Srinivasa Rao Age: 49 years, 2) Smt. Vitthala Jayaprada Srinivasa Rao W/o. Late V. Srinivasa Rao Age: 71 years. Both R/o. 1-1-385/43, Gandhinagar, Hydrabad. *** Complainants And M/s. Vishal Projects Ltd. Plot No. 22, Vishal House Chandragiri Colony Tirumalgherry, Secunderabad Rep. by its Managing Director G. Sridhar Rao. *** Opposite Party Counsel for the Complainants : M/s. V.G.S. Rao. Counsel for the O.P. M/s. S. Malla Rao. CORAM: HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT & SMT. M. SHREESHA, MEMBER
MONDAY, THIS THE SEVENTEENTH DAY OF JANUARY TWO THOUSAND ELEVEN Oral Order: (Per Honble Justice D. Appa Rao, President) ***
1) This is a complaint filed by the complainants the daughter and her mother respectively for execution of sale deeds for the houses on plot Nos.. B14 & B13 besides compensation and costs.
2) The case of the complainants in brief is that the opposite party builder offered to sell two houses on plot Nos. B14 & B13 for a sale consideration of Rs. 18,75,000/- each. They agreed and entered into two separate agreements of sale on 12.1.2006. They paid Rs. 4 lakhs each. Balance of Rs. 14,75,000/- is payable as per schedule viz., Rs. 5,90,000/- each before completion of slab work, Rs. 1,47,500/- before completion of brick work. The builder has agreed to construct the houses within 12 months with a grace period of three months. In the event of delay in construction it had agreed to pay Rs. 2,000/- per month while they were liable to pay Rs. 25,000/- towards electricity charges and other extra works if any. Accordingly on 21.2.2006 they paid Rs. 6 lakhs. On 11.4.2006 the opposite party requested the second complainant to pay Rs. 14,75,000/- towards further instalments alleging that the Government of A.P. had introduced service tax at 4.21% and VAT at 1% on agreement value and Rs. 45,000/- towards approximate registration charges totaling Rs. 1,42,688/- towards each house. It also requested one of them (second complainant) to pay further instalments of Rs.
20,55,000/- and if no amount was paid the agreement would be cancelled.
Accordingly they had issued self cheques dt. 14.11.2006 for Rs. 10 lakhs each drawn on Punjab National Bank, Golkonda X Roads, Hyderabad, since the opposite party requested to pay the amount in cash. They had to pay Rs. 1,75,000/- each towards balance which was payable at the time of registration towards last instalment.
Despite their repeated requests to encash the cheques and take balance of amount it has been postponing on one pretext or the other and finally it has sent two a/c payee cheques dt. 28.6.2007 for Rs. 7 lakhs each without any covering letter. However, they did not encash the cheques. Sensing its attitude they have issued legal notice for which it did not choose to give any reply. Alleging deficiency in service on its part, the complainants filed the complaint directing it to construct and handover possession of house Nos. B14 & B13, execute sale deeds in their favour besides compensation of Rs. 50,000/- and costs of Rs. 25,000/-.
3) The respondent resisted the case. While admitting execution of agreements of sale for a sale consideration of Rs. 18,75,000/- each, however alleged that the complainants had paid Rs. 6 lakhs together but not Rs. 6 lakhs each as alleged in the complaint. It has not received any cheques for Rs. 10 lakhs each as alleged by the complainants. Since the complainants did not pay despite its repeated reminders and intimations, it had returned the cheques while canceling the agreement of sale with a covering letter dt. 28.6.2007. The complainants had kept quiet after receipt of cheques without encashing the same. Though it had received legal notice since the agreements of sale were cancelled and the amounts were returned it felt no need to give any reply. The complainants are not entitled for the houses. It has constructed the houses within the agreement period and informed the same from time to time. The complainants never responded to any of these notices. They had failed to pay as per the agreed schedule of payments. This Commission has no jurisdiction to entertain the complaint. The agreements constitute separate and distinct transactions. The complaint by two different individuals is not tenable.
Therefore it prayed for dismissal of the complaint with costs.
4) The complainants in proof of their case filed affidavit evidence and got Exs. A1 to A12 marked while the opposite party filed the affidavit evidence of its Managing Director and got Exs. B1 & B2 marked.
5) The points that arises for consideration are :
i.
Whether the complainants had adhered to the terms of agreements of sale?
ii.
Whether the opposite party was at latches in not performing its part of contract?
iii.
Whether the complainants are entitled to any relief?
iv.
If so, to what relief?
6) It is an undisputed fact that the opposite party a builder executed two agreements of sale of even dt. 12.1.2006 in favour of complainants, mother and daughter for sale of houses for a sale consideration of Rs. 18,75,000/- each and received Rs. 7 lakhs as against sale consideration of Rs.
18,75,000/-. Clause 3 stipulates that the complainants shall pay the balance of sale consideration of Rs. 14,75,000/- to the opposite party in the manner indicated below:
i.
Rs. 7,37,500/-
shall be paid within 15 days from the date of agreement.
ii.
Rs. 5,90,000/- shall be paid before completion of slab work of the house.
iii.
Rs. 1,47,500/- shall be paid before completion of brick work of the house.
Clause 6 stipulates that the completion of construction should be within 12 months, however, there shall be a grace period of 3 months. The complainants had agreed to pay interest @ 36% p.a., in case of delayed payment from the date of installments to the date of payment with interest. In case of delayed payments beyond 15 days from the due date, the opposite party has a right to forfeit 20% of the consideration, after issuing notice to the complainants. If any balance is to be paid the same will be refunded within six months from the date of issuing notice.
7) When the complainants did not pay the remaining amount, the very builder has issued Ex. A4 letter on 11.4.2006 reminding them to pay Rs. 14,75,000/- viz., Rs.
7,37,500/- each. Six months there after the builder has issued reminder to both the complainants to pay Rs. 20,55,000/- by mentioning that they had already issued reminder on 13.9.2006 and that they would cancel the allotment if amount was not paid. Prior to it the builder had intimated to its members that the Government of A.P. has imposed service tax @ 4.21% and VAT @ 1% on agreement value and therefore they had to pay Rs. 78,938/- towards service tax and Rs. 18,750/- towards VAT besides approximate registration charges of Rs. 45,000/- in all Rs. 2,85,376/- for both the houses. The complainants have themselves filed these documents.
8) It is also not in dispute that the complainants had received two cheques for Rs.
7 lakhs each under Ex. A7 & A8 dt.
28.6.2007. The complainants did not respond in spite of the fact that they have received these two cheques. However, belatedly they issued a registered lawyer notice Ex. A9 dt. 1.5.2008 alleging that they have issued two cheques for Rs. 10 lakhs each as early as on 14.11.2006 however the builder did not encash them, and therefore they directed the builder to execute sale deeds. The complainants could not prove that they have issued the cheques towards balance of consideration. Admittedly they did not issue the cheque in the name of the builder. Even according to their version they were self cheques drawn for Rs. 10 lakhs each. They alleged that they were given at the request of the opposite party. This plea was undoubtedly introduced to cover up their latches in non-payment of amounts. If that were to be true, there was no reason why the builder did not encash the amounts.
According to them they sent these cheques even before issuance of cheques by the builder under Ex. A7 & A8. Obviously they intend to give answer by introducing this fact for the notice issued under Ex. A6 demanding to pay Rs. 20,55,000/-. Absolutely there is no evidence whatsoever to state that the complainants had sent these cheques to the builder as we have observed. If really that were to be true, there is no reason why the complainants did not issue any notice immediately demanding the builder to encash the cheques and appropriate the same towards balance of sale consideration. They kept quiet.
9) We may state that even after the builder had sent the cheques under Ex. A7 & A8 on 28.6.2007 they did not give any notice immediately alleging that they had sent cheque for Rs. 10 lakhs each and there was no reason why the builder had sent these two cheques. According to the builder, he has sent a covering letter Ex. B1 under which these two cheques were sent by way of registered post. The very fact that the complainant had received and filed them would itself show that they knew as to why these cheques were sent. In the letter accompanying these cheques it was mentioned As per the agreement of sale, you have to pay the balance amount which you have failed. Even after letter, intimation and reminder issued by us, you have failed to pay the balance amount. In view of the above, we hereby cancel the agreement of sale executed in respect of plot Nos. B13 & 14.
In view of cancellation of agreements of sale, we are herewith enclosing two account payee cheques dt. 28.6.2007 for Rs. 7 lakhs each issued in favour of each of you drawn on State Bank of India, Overseas Branch, Hyderabad towards refund of the amount paid by you as advance. Kindly acknowledge the receipt.
10) It may be stated that the complainants has waited for about a year, and belatedly issued a notice under Ex. A9, demanding him to execute sale deeds after receiving balance of sale consideration alleging that they had issued two cheques for Rs. 10 lakhs which were not encashed by the builder. For the cheques issued by the builder equally the complainants did not encash the cheques. However, they did not take any steps to pay balance of sale consideration in order to get the sale deeds executed in their favour. The builder having received the notice did not give any reply. The builder alleges that since it had cancelled the agreement of sale under Ex. B1 dt. 28.6.2007 by issuing cheques under Ex. A7 & A8 it thought that it need not give any reply. Whatever may be the circumstances, the fact remains that except Rs. 7 lakhs each that were paid by the complainants under the agreement of sale they did not pay any amount. The fact that they have sent two cheque for Rs. 10 lakhs each is not evidenced by any document. The complainants allege that despite their repeated requests to the Managing Director, umpteen visits he did not oblige. If that was the case, the complainants ought to have suspected the conduct of the builder when he refused to receive the amount, and was making them repeatedly come to his office. Undoubtedly the complainants in order to explain latches belatedly alleged that they have issued self cheques and the builder had not encashed them. The circumstances do not show that complainants in fact issued the cheques. The complainants could have filed the counterfoils of the cheques or such other evidence to establish the fact that they have issued the cheques in favour of builder.
It is not in dispute that the complainants did not adhere to terms of the agreement by paying Rs. 7,37,500/- within 15 days from the date of agreement. The date of agreement as we have earlier pointed out was 12.1.2006. Even assuming that they had sent the cheques for Rs. 10 lakhs each, according to them they were dt. 14.11.2006 viz., 10 months after execution of agreement of sale. We reiterate that there was no proof that such cheques were issued to the builder. If really those cheques were received the builder could not have issued reminders to the complainants under Ex. A4 dt. 11.4.2006, Ex. A5. dt. 22.4.2006 and Ex. A6 dt. 14. 10.2006. Since the complainants themselves have filed these documents, it would unerringly show that they have defaulted in payment of amounts. They have also introduced a false plea that they had issued cheques for Rs. 10 lakhs each. When the very builder demanded the amounts under Ex4 to A6, if really the complainants had sent the cheques for Rs. 10 lakhs each the builder would have encashed them. Even otherwise, the complainants never informed in writing to the builder to encash those alleged cheques. This is obviously a false plea in order to get over non-payment of amount as per the agreement. In case amounts are not paid as per the agreement they were liable to pay interest at the rate stipulated in the agreement. The said amount was not even tendered. The complainants having taken the agreement on 12.1.2006 for purchase of two houses for Rs. 18,75,000/- each had paid only Rs. 7 lakhs. They never paid remaining balance. A false plea was taken that they have issued self cheques for Rs. 10 lakhs each on 14.11.2006. They did not prove that they have issued those cheques to the builder. Evidently the complainants did not pay the amount as per the terms of the agreement by paying Rs. 7,37,500/- within 15 days from the date of agreement. At no time they have responded to the notices issued by the builder under Exs. A4 to A6. The plea of the complainants that they did not receive any covering letter along with cheques under Exs. A7 & A8 cannot be countenanced in view of the fact that they did not protest immediately, they have waited for one year after receiving notice. The valuated claim is obviously in view of escalation of prices of real estate.
11) It is settled law that the party who seeks to avail of the equitable jurisdiction of a court and specific performance being equitable relief, must come to the court with clean hands. In other words, the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief. The Honble Supreme Court in Lourdu David Vs. Louis Chinnaya Arogiaswamy reported in AIR 1996 SC 2814 (1) considering Section 20 of the Specific Relief Act observed : By virtue of Section 20 of the Specific Relief Act, 1963 the decree for specific performance is in the discretion of the court but the discretion should not be refused arbitrarily. The discretion should be exercised on sound principles of law capable of correction by an appellant court.
12) Coming to the facts, the complainants have come with a false plea that they had tendered Rs. 10 lakhs each by way of cheques and that the builder did not encash them.
The circumstances which we have earlier pointed out unerringly indicate that the complainants did not pay the amounts as stipulated under the agreement. There was latches on their part in fulfilling the terms of the contract, however, there was no provision under the agreement to forfeit the amount. What all the builder is entitled to is interest if there is any delay. The builder is equally guilty for not responding to the legal notice got issued by the complainants. Therefore, we are of the opinion that the amounts that were paid by the complainants are liable to refunded by the builder. It cannot appropriate the amounts. Equally the complainants did not encash the cheques that were sent by the builder. Thus they were deprived of interest accrued thereon.
13) In the result the complaint is allowed in part directing the opposite party to refund Rs. 14 lakhs to the complainants together with interest @ 9% p.a., from the date of complaint viz., 29.8.2008 till the date of realization. However, in the circumstances no costs.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER APPENDIX OF EVIDENCE WITNESSES EXAMINED FOR COMPLAINANTS: OPPOSITE PARTY None None.
Documents marked for complainant:
Ex A-1 Agreement of Sale dt: 12.1.2006 executed by the opposite party in favour of 2nd complainant.
Ex A-2 Agreement of Sale dt : 12.1.2006 executed by the opposite party in favour of 1st complainant.
Ex A-3 Receipt issued by the opposite party for Rs.6,00,000/-.
Ex A-4 Letter addressed by the opposite party to the complainant dt : 11.4.2006.
Ex A-5 Intimation of the opposite party to the second complainant Ex A-6 Reminder Letter dt: 14.10.2006 issued by the opposite party to the second complainant.
Ex A-7 Cheques dt : 28.6.2007 issued by the opposite party in favour of & complainants.
Ex A-8 Ex A-9 Legal Notice issued by the complainant to the opposite party dt:1.5.2008 Ex A-10 Postal receipt Ex A-11 Postal acknowledgement Ex A-12 Postal UCP receipt.
Documents marked for Opposite Party:
Ex B-1 Letter addressed by the opposite party to the complainants dt : 28.6.2007 Ex B-2 Postal Receipt.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER *pnr Dt. 17. 01. 2011.
*pnr UP LOAD O.K.