State Consumer Disputes Redressal Commission
Syed Hassan, S/O.Late Syed Mohiuddin, & ... vs M/S.Tirumala Homes Private Limited, ... on 8 February, 2012
P. STATE CONSUMER
DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
EA No.
14/2009 against CD 25/2006
Between:
1.
Syed Hassan, S/o.late Syed Mohiuddin,
Aged about 67 years, Occ:Retired
Govt.
Service, R/o.Flat No.303, Tirumala Shah
Residency, 8-3-940, 8-3-40/A, B, C, D &
E,
Yellareddyguda, Ameerpet,
Hyderabad-500 073.
2.
Syed Mohammed, S/o.Late Syed Mohiuddin,
Aged about 65 years, Occ: Retired, R/o.Flat
No.
205, Tirumala Shah Residency,
8-3-940, 8-3-40/A, B, C, D & E,
Yellareddyguda, Ameerpet,
Hyderabad-500 073.
3.
Mrs.Fatima, W/o.Dr.A.M.Mahajir, aged about
71 years, Occ: House-wife, R/o.Flat No.603,
Tirumala Shah Residency, 8-3-940, 8-3-40/A,
B, C, D & E,
Yellareddyguda, Ameerpet,
Hyderabad-500 073.
4.
Mrs.Amtul Nayeem, W/o. Sri Hamid Hussain,
Aged about 69 years, Occ:House-wife,
R/o. Flat No.403, Tirumala Shah Residency,
8-3-940, 8-3-40/A, B, C, D & E,
Yellareddyguda, Ameerpet,
Hyderabad-500 073.
5.
Mrs.Sabeena W/o.Hamiuddin Ahmed, aged about
62 years, Occ: Housewife, R/o.10-2-5/9,
A.C.Guards, Hyderabad-500
004. ..Petitioners/ Complainants
And
1.
M/s.Tirumala Homes Private Limited, 5-9-189,
II floor, Lenaine Estate, Opp: Chermas,
Abids,
Hyderabad-500 001, rep. by its Managing
Director Sri N.Chandra Sekhar (O.P.No.2).
2.
Sri N.Chandra Sekhar S/o.late N.Raghu
Ramulu, aged about 48 years, Occ:Business,
R/o.Pent House, Tirumala Classic,
H.No.10-2-401/402, West
Maredpally,
Secunderabad. Respondents/Opp.parties.
Counsel
for the Petitioners :
M/s. S.Malla Rao
Counsel
for the Respondents : M/s. N.Ravi
Prasad
Coram ;
Sri R.
Lakshminarasimha Rao Honble Member
And Sri T. Ashok Kumar .. Honble Member Wednesday, the Eighth Day of February Two Thousand Twelve Oral Order : ( As per Sri T. Ashok Kumar , Honble Member )
1. This is a petition filed by the petitioner/Complainants U/s.27 of the Consumer Protection Act, 1986 for non-compliance of the order dated 30.12.2008 in CD 25/2006 alleging that the OPs failed to comply the orders of this commission passed in the said CD and that on account of non-compliance of the orders the respondents are liable for punishment of imprisonment of 3 years and fine of Rs.10,000/- U/s. 27 of C.P Act or else the petitioner will be put to irreparable loss. For convenience sake, the parties as arrayed in the petition are referred to here under :
2. The order dt. 30.12.2008 in C.D.No.25/2006 reads as follows:
In the result this complaint is allowed directing the opposite parties to complete the unfinished works in flat Nos. 605 and 702, to complete the works in the common area including the car parking area and clearly demarcate car parking area as per clauses 5 and 6 of the MOU dated 6-11-2004 and to pay arrears of alternative accommodation of Rs.15,000./- per month from July, 2005 to March, 2006 and to pay compensation of Rs.10,000/- per month from August 2005 to March, 2006 within six weeks from the date of receipt of the order. We further direct the opposite parties to handover the complainants share in the 6th and 7th floors as per the MOU dated 6-11-2004.
For the directions to complete fire safety measures and to obtain occupancy certificate from MCH opposite parties are being given three months time from the date of receipt of this order.
However, the other directions sought by the complainants for recovery of the money and adjustment of the deposits, we direct them to approach the civil court .
3. Aggrieved by the said order, the opposite parties preferred FA 86/2009 and the complainants preferred FA 55/2009 before the Honble National Commission and the Honble National Commission while admitting both the appeals passed the following order on 9-4-2009:
Parties stated that despite negotiations, they have not been able to reach any amicable settlement in the matter. Both the appeals are admitted. We make it clear that having regard to peculiar facts and circumstances, we do not find it appropriate to stay the operation of the impugned order. Appeals to come up in due course.
In this EA, having heard both side this Commission vide order dated 22.07.2010 closed the EA with an observation that the Opposite parties are given further six weeks time to comply with Fire safety measures and occupancy certificate. On failure to comply, the complainants are permitted renew after two months. However, in the preceding para of the operative portion of the said orders this Commission also observed that the opposite parties should comply with the direction of handing over to the complainants their share in the sixth and seventh floors i.e., as per MOU dated 6.11.2004 within four weeks from the date of the said orders. In such circumstances there is no acceptable force in the contention of the respondents that by the said orders as on 22.7.2010 obtaining of occupancy certificate from MCH and NOC from fire Service Authorities alone were pending and that issue of short fall area is closed and that the complainants once again cannot agitate that deficit area was not given, in this application, and that platently it is to be decided by the Civil Court in OS 543/2009 on the file of II Addl. Chief Judge, CCC, Hyderabad and it could not be appreciated in their favour it is much more so when the said suit was filed very much after pronouncing the main orders in CD 25/2008 dt. 30.12.2008. Across the Bench both side admitted that except the direction of handing over the share of the complainants in the sixth and seventh floors i.e., as per MOU dated 6.11.2004 and obtaining of some of the occupancy certificate from GHMC authorities remaining directions have been complied with by the respondents/OP and therefore there is no need to discuss about the complied portions of the directions in these orders. Since some of the directions were not complied with by the respondents/OPs the complainants renewed this application with a prayer to punish the respondents/Ops for noncompliance of the same.
4. The observation and findings of this Commission in the main orders in CD 25/2006 dt.30.12.2008 with reference the share of the complainant in sixth and seventh floors is as under
:
We find force in the contention of the complainants that the opposite parties failed to hand over the complainants share in 6th and 7th floors after excluding the area covered by flat Nos. 603, 605 and 702, based on the admission of the opposite parties in their evidence affidavit that he is liable to render the difference in area approximately 1452 sq.ft to the complainants. The Advocate Commissioners report shows that the opposite parties sold all the flats in 6th and 7th floors and as per the terms of MOU (Ex.A6) entered into between both the parties, the opposite parties have to hand over the balance of 30% of the share of the complainants in the 6th and 7th floors .
In view of the above finding and direction the contention of the respondents/OPs basing on Ex. A1 dt. 1.5.2000 agreement-cum-GPA that the complainants are entitled for Rs.14,52,000/-(1452 sft X Rs. 1000) and that the complainants have to adjust the said amount out of the refundable deposit of Rs.30 lakhs also could not be appreciated.
It is true that till the appeals in FA55/2009 and 86/2009 on the file of Honble National Commission which were filed against the main orders in CD 25/2006 dt. 30.12.2008 are disposed of the orders of this Commission will not attain finality. But, in the peculiar circumstances of the case, vide orders dt. 09.4.2009 in the said appeals the Honble National Commission did not grant stay of the operation of the impugned order and thus there is no option for this Commission except to proceed with the execution proceedings filed by the complainants and therefore the contention of the OPs in the said context is also not helpful for them now. If the Honble National Commission in the said Appeals reverse the findings with regard to handing over of share of the complainants in 6th and 7th floors of the building the remedy of restitution is available to the OPs but now it is not desirable to avoid execution. As already described supra the main orders passed by this Commission discloses that the Advocate Commissioners report shows that the opposite parties sold all the flats in 6th and 7th floors and in the said context the respondents contend that the direction of this Commission in the said context is in-executable. First of all there is no legal and dependable evidence on record to show that the all the flats in 6th and 7th floors ( which were constructed beyond the permission of the MCH ) were sold away to such and such persons. Even otherwise, such transfers if any during the pendency of Consumer Dispute are certainly hit by the doctrine of lis pendency envisaged in Sec. 52 of the Transfer of Property Act and the purchasers have right over the said properties subject to the result of the consumer dispute and in that view point also the respondents/Ops have no case in the said context. During arguments, it was represented on behalf of the complainants that the registered sale deed were created pertaining to 6th and 7th floors in favour of the son of OP.2 to deprive the legitimate rights of the complainants and that they are sham.
nominal and make belief transactions and the said aspect was not refuted by the OPs strongly nor they filed any sale deeds to show that no such sale deed were executed in favour of Kith and Kin of OP.2.
In such circumstances, if any sale deeds are executed pertaining to the said property in favour of Kith ad Kin of OP2 it is no way useful to the respondents and on that premise they cannot avoid handing over possession of the share of the complainants in 6th and 7th floors as per MOU dt. 6.11.2004 as they amount to Sham, nominal and make belief transactions. Thus, in view of the above discussion, we hold that OPs have to hand over the complainants share in 6th and 7th floors as per MOU dt. 6.11.2004 as directed by this Commission earlier and admittedly they did not do so. However, in the circumstances of the case and larger interests of justice, this Commission also felt that it is reasonable and desirable to give time till 09.04.2012 to the respondents/OPs for complying the said direction pertaining to 6thand 7th floors. Accordingly it is ordered. It is conspicuous from the memos filed by the Ops from time to time that they are taking steps for obtaining Occupancy certificate from the GHMC and on 2.2.2012 they also filed copy of occupancy certificate pertaining to flat nos.601 and 602 and for obtaining such occupancy certificate for remaining part of the building some time requires and therefore the very same two months time is given for compliance of the same. After reserving this EA for orders and before pronouncing this order a memo was filed by the counsel for the complainant that one of the complainants ( complainant no. 1 ) died on 17.11.2011 and that they have to take necessary steps and for that the counsel for OP filed a reply that in view of the provisions of Order 22 Rule 6 CPC there is no bar to pronounce orders even though the 1st petitioner/complainant died as such death was in between the conclusion of the hearing and the pronouncing of the orders and we are convinced with the contention of the respondents in the said context.
In the result, while holding that the respondents/opposite parties have to hand over the complainants share in the 6th and 7th floors as per the MOU dt. 6.11.2004 as ordered by this Commission vide orders dated 30.12.2008 time is granted for compliance of the said directions till 09.04.2012. In default, consequences will follow. However, if the Honble National Commission in the concerned Appeals reverse the findings with regard to handing over of share of the complainants in 6th and 7th floors of the building the remedy of restitution is available to the Opposite parties but now it is not desirable to avoid execution. Similarly the respondents have to comply with the direction regarding obtaining of remaining Occupancy certificates from GHMC within the said given time of two months, otherwise, next step will be ordered. Regarding other directions since it has been represented by both side that they have been complied with there is no need to give any direction in the said aspects.
MEMBER MEMBR DT : 08.02.2012.