State Consumer Disputes Redressal Commission
N.V. Bhanu Prasad vs 1. M/S. Mantri Developers Pvt Ltd., on 27 April, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana Complaint Case No. CC/128/2016 1. N.V. Bhanu Prasad S/o N. Ram Prasad, aged 33 years, Occ. Pvt Service, R/o H.No 116, Road No 7, banjara Hills, Hyderabad 034 ...........Complainant(s) Versus 1. 1. M/s. Mantri Developers Pvt Ltd., A Company incorporated under the Companies act 1956, Having its office at 126 and 127, Nanakramguda, Gachibowli, Hyderabad 500008, Rep by its Managing Director. 2. 2.The Managing Director M/s. Mantri Developers Pvt Ltd., A Company Incorporated under the Companies Act,1956, 126 and 127, Nanakramguda, Gachibowli, Hyderabad 500008 ............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 : 27 Apr 2017 Final Order / Judgement STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA : AT HYDERABAD CC NO. 128 OF 2016 Between : N.V. Bhanu Prasad S/o N.Ram Prasad, Aged 33 years, Occ: Private Service, R/o H.No.116, Road No.7, Banjara Hills, Hyderabad - 500 034. Complainant And 1) M/s Mantri Developers Private Limited, a Company incorporated under the Companies Act, 1956, having its office at # 126 & 127, Nanakramguda, Gachibowli, Hyderabad - 500 008. 2) The Managing Director, M/s Mantri Developers Private Limited, a Company incorporated under the Companies Act, 1956, # 126 & 127, Nanakramguda, Gachibowli, Hyderabad - 500 008. Opposite parties Counsel for the Complainant : Sri Nelson Mathew Counsel for the Opposite parties : Ms.Shireen Sethna Baria Coram : Hon'ble Sri Justice B.N.Rao Nalla ... President and Sri Patil Vithal Rao ... Member
Thursday, the Twenty Seventh day of April Two thousand Seventeen Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** The complaint is filed under section 17 (1)(a)(i) of the Consumer Protection Act, 1986 by the Complainant complaining deficiency in service against the Opposite parties and claiming refund of Rs.39,75,473/- with interest @ 18% per annum from the respective dates of payment and subsequent interest, till the refund of the same; to pay Rs.10,00,000/- towards compensation for mental agony and costs of the complaint.
2. The Opposite party No.1 is a company incorporated under the provisions of Companies Act, 1956 engaged in the business of Real Estate and have claimed to have obtained layout permission from HUDA/GHMC/HMDA, for the development of a township known as "Mantri Celestia" consisting of multi-storied residential apartments with facilities like Club Apartment, parks, open spaces, Gymnasium, health club, play grounds, shopping centres, etc., in the land situated in Sy.Nos.126, 127, 130/P, 131, 132 and 133 of Nanakramguda village, Serilingampally mandal, Ranga Reddy district.
3. Emphasizing the merits of the said project, the Ops released several attractive brochures. Complainant has been carried away by the wide publicity given by the Ops, was induced to purchase flat No.201, on 2nd floor, Block-C, admeasuring 1198 1075 sft. along with one car parking, for a consideration and accordingly Opposite parties entered into an agreement of sale and agreement for construction of the flat on 22.01.2011 promising to complete the construction and handover the flat on or before 01.07.2013.
3. It is stated that the complainant paid the monies on various dates amounting to Rs.39,75,473/- by taking loans from private sources, which were received by the Opposite parties without any intention of performing their part of the contract. The Opposite parties have started the project in the year 2010-2011 and in the span of 5 to 6 years, have not even completed the construction of the apartments, leave alone the amenities, car parking and other infrastructure as promised, which amounts to deficiency of service, which is an intentional case of cheating and deceiving innocent buyers like the complainant, who had invested sizeable portion of his life savings with a dream to own a house.
4. Upon noticing the snail pace of construction at project site, complainant prevailed upon the Ops, but they paid deaf-ear and gave evasive replies. On recent visit to the project, the complainant noticed that the work is still going on at a snail pace. As a result of which, complainant lost the opportunity to have a residential accommodation in the year 2013 on then prevailing costs. Besides, the complainant paying interest to third parties from whom he obtained loans. Due to the inaction on the part of the Ops, complainant suffered with mental agony, escalation of cost, for which, the Ops are liable to pay a tune of Rs.10,00,000/- towards compensation.
5. The Ops continuously made false promises and not completed the project with an intention to cheat the complainant. In view of deficiency of service and unfair trade practice by the Ops and having no scope of completion of construction in the near future by the Ops, complainant demanded refund of amount along with upto date interest by e-mail dated 20.05.2016. Hence, the complaint with the reliefs as stated at paragraph No.1, supra.
6. The Opposite parties resisted the claim on the premise that the Opposite party No.2 is erroneously arrayed as he is the Managing Director of Opposite party No.1; that there is no cause of action against the Opposite party No.2 and no relief is claimed against him and he is made a party only with a view to harass and malign to arm twist the Opposite party No.1 to settle the matter. It is stated further that a bare perusal of the complaint makes it clear that it is for recovery of money which is in the realms of a civil court and not before this Commission, therefore deserves to be dismissed with exemplary costs.
7. A plain reading of the complaint makes it explicit that the complainant has made allegations of 'fraud', 'cheating', and 'mischief' against the Ops, little realizing that such complicated issues require detailed analysis of evidence both oral and documentary, including examination of parties. Such a process is time consuming and cannot be heard and disposed of in a summary manner under the C.P. Act, as laid down by catena of judgments by the Hon'ble Supreme Court, including the Hon'ble National Commission in "Sagar Polymers Vs. State Bank of India" reported in 1986-2004 Consumer 8037 (NS). Thus, this Commission is a non-judice to adjudicate such accusation and the parties should be relegated to the competent court of law. The ultimate relief sought by the complainant is recovery of money and the said remedy is in the realms of a civil court and not before this Commission.
8. The present dispute, if at all, pertains to an alleged breach of contract and the consequences arising therefrom, as such, the remedy available to the parties, lies elsewhere and not before this Commission. The sole purpose for filing the complaint before this Commission is to avoid payment of court-fee and to avoid the consequences of breach. The claims raised in the present complaint are untenable and contrary to the provisions of the agreement between the parties. With regard to any dispute between the parties, arbitration is provided in the agreement, hence this complaint is not maintainable in limine.
9. The Complainant approached for purchase of Flat No.C-201, 2nd floor of Apartment Block-C with a built-up area of 1075 sft. @ Rs.3505/- per square feet along with one car parking for a gross apartment value of Rs.40,67,875/- in the apartment promoted by Opposite parties under the name and style 'Mantri Celestia' for which he submitted application form dated 14.01.2011 for allotment by paying the fee of Rs.12,20,363/- and there after the complainant was required to make payments as per the schedule agreed. The Opposite party No.1 has done all that was required and in-line with the construction agreement, intimating the Complainant about the delay in progress and completion of the work on account of 'Force Majeure' conditions vide its letters dated 21.11.2011, 31.01.2013 and 10.12.2014 and the reasons being (i) civil commotion, strikes, agitations and public disturbances on account of Telangana agitation, (ii) flooding of the project site from the adjacent lake due to heavy rains, (iii) disruption in supply of cement, sand and other material on account of civil disturbances and (iv) migration of labour resulting in shortage of labour, which were beyond the control of the Opposite parties.
10. Despite facing several obstacles, the Ops have successfully completed the construction of the first phase of project comprising of Block-2 consisting residential towers D, E & F. The OP No.1 has also obtained partial Occupancy Certificate vide proceedings No.31159/25/02/2011/OC dt.17.12.2013 and No. 31159/25/05/2011/OC dt.05.08.2014. The OP No.1 has already executed sale deeds and handed over possession of the flats to more than 450 customers in the Block-2. That the second phase of project comprising of Block-1 consisting residential towers A, B & C is also almost completed and the OP No.1 has applied for issuance of Occupancy Certificate which is under active consideration by the GHMC. The agreement for construction provides remedy for compensation as per clause 13.5 read in conjunction with clause 6.1 & 6.4.
11. In good faith and in order to ensure customer satisfaction, the Opposite parties have upgraded the specifications of apartment of the Complainant without collecting any additional amounts towards the upgraded specifications and the same was intimated to complainant vide letter dated 31.01.2012, which shows considerable progress in execution at the site under difficult circumstances and is committed to build a landmark project. The Opposite party is in the business of building world class residential properties, IT parks, shopping complexes, commercial buildings and educational institutions and is one of the leading real estate developers in the Country. In a span of just 13 years, the Company has delivered over 6,000 homes, built 20 projects and has to its credit over 10 million square feet of constructed area, over 30,000 satisfied residents and over one crore feet under various stages of construction. The Company has created a brand name for itself and the delay in completion in the said project is not intentional but due to reasons beyond the control. Therefore, there is no reason that Opposite party would indulge in delays and bonafide efforts are made to complete the project on time or more so because it is their flagship project in Hyderabad and it would not do anything to jeopardize its hard-earned reputation.
12. That, it fairly intimated to the Complainant that as per clause 6.1 of the Construction Agreement dated 22.01.2011, the conditions stipulated for handing over possession or delivery of the apartment described in clause 6.4 of the Agreement is subject to variation on account of force majeure and various factors. As such, Complainant shall not be entitled to claim any damages/losses. The complainant has ignored the contractual mandate for arbitration and rushed to this Commission to somehow indirectly enforce the terms of the contract by these proceedings and seemingly with an intent to claim something which is beyond the scope of the agreement.
13. That, adjudication of force majeure conditions is a preliminary issue that has to be dealt before the matter proceeds on the secondary issue concerning the application of consumer dispute. The delay in construction and consequent execution of sale deed is solely on account of force majeure conditions. Complainant filed the present complaint on false and frivolous allegation to pressurise and harass the Opposite parties so as to wrongly enrich himself at their cost. In any event, in seeking refund of amount, the complainant has sought to cancel the transaction. And in that event, the terms and condition No.6 would attract, hence, claiming compensation is, therefore, untenable and fortuitous in nature.
14. There arose no cause of action to file the present complaint and the jurisdiction has been wrongly invoked. The actions and reactions of parties flow from the contract and is remedied under the contract itself under the Indian Contract Act and not under the Consumer Protection Act since elements to constitute deficiencies are prima-facie absent in the present case. Hence, prayed to dismiss the complaint with exemplary costs.
15. On his behalf, the Complainant filed his affidavit and the documents, Exs.A1 to A12. On behalf of the Opposite parties, one S.Ravi, General Manager of the OP No.1 Company has filed the affidavit and the documents, Ex.B1 to B3.
16. The points for consideration are :
i) Whether the complaint is maintainable in view of arbitration clause in the agreement of sale ?
ii) Whether the complaint is not a 'consumer dispute'? iii) Whether there is any deficiency in service on the part of the Opposite parties? iv) To what relief ?
17. POINT NO.1 : The Complainant entered into "Agreement of sale" on 22.01.2011 with the Opposite party No.1 and other land owners for purchase of flat bearing No.201, on 2nd floor of Mantri Celestia with super built area measuring 1075 square feet and the agreement of sale provides reference to arbitration. The learned counsel for the opposite parties has contended that in view of the arbitration clause in the agreement, the Complainant cannot maintain the complaint before this Commission. Clause 10.0 of the Agreement of sale provides for deciding the disputes arising under the agreement by arbitration proceedings reads as under:
"In the event of any dispute or difference arising between the Parties hereto with regard to any matter relating to or connected with this Agreement, or the construction of the Apartment, the same shall be resolved by Arbitration by a sole Arbitrator from the "Confederation of Real Estate Developers Association of India - Andhra Pradesh" (CREDAI-Andhra Pradesh), whose decision shall be final and binding on all the parties and the Courts at Hyderabad alone shall have the exclusive jurisdiction to try all suits and other proceedings with regard to this Agreement."
18. In terms of the agreement of sale, the dispute has to be decided by means of arbitration. 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 complainant 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."
For the above reasons, the Point No.1 is answered in favour of the Complainant and against the Opposite parties.
19. From the reading of contents of the complaint, it is crystal clear that the Opposite party No.1 herein agreed to provide services to the Complainant for an agreed consideration as enunciated in the Agreement of sale dated 22.01.2011 and further Agreement for Construction which is also executed on the same day by way of sale of Flat in question duly constructed in all aspects. Admittedly, the Opposite party No.1 did not deny the receipt of consideration of Rs.39,75,473/- as contended by the complainant in the complaint. As the Opposite party No.1 failed to comply with the agreed terms of the agreement, the subject complaint is filed complaining deficiency on the part of the Opposite parties seeking refund of the amount. Viewed from any angle, in pursuance of the above definitions, the 'consumer dispute' is made out as also 'deficiency in service' is pointed-out, hence, this complaint falls squarely within the definition and meaning of consumer dispute.
20. The Opposite party No.1 would further contend that there was delay in completion of the project on account of (i) civil commotion, strikes, agitation and public disturbances on account of Telangana agitation, (ii) flooding of the project site from the adjacent lake due to heavy rains, (iii) disruption in supply of cement, sand and other material on account of civil disturbances and (iv) migration of labour resulting in shortage of labour. As regards alleged shortage of labour, no material has been placed on record by the Opposite parties that despite trying, it could not get labourers to complete the construction of the project within the time stipulated in the agreement. It is also not stated by the Opposite parties whether it engaged the labour on its own or contracted the labour for above purpose. Even there is no evidence of the Opposite parties inviting any tenders for appointment of contractors/sub-contractors for executing the work at the site of the project and no contractor having come forward to execute the project on the ground that adequate labour was not available in the market. Therefore, this Commission is not inclined to accept this contention. As regards the alleged disruption of supply of cement, sand and other material on account of civil disturbances and migration of labour resulting in shortage of labour, this Commission does not find any evidence led by the Opposite parties, to prove that it was unable to procure the same in adequate quantity. Admittedly, the Opposite parties agreed to deliver the possession of the flat on or before 01.07.2013. The total land cost was mentioned as Rs.17,25,375/- under Annexure-A1 while the construction cost was mentioned as Rs.23,42,500/-, altogether amounting to Rs.40,67,875/-. As against this amount, the Complainant paid an amount of Rs.39,75,473/- leaving a peanut of Rs.92,402/-. Annexure-A2 provides for payment as detailed below:
On booking 5% On agreement execution 10% On foundation 15% On 4th Basement Roof slab 12% On fifth floor Roof slab 12% On tenth floor Roof slab 12% On fifteenth floor roof slab 12% On twentieth floor roof slab 12% On last floor roof slab 5% On possession 5%
As per the above schedule, it is not explained by the Opposite parties as to where they stand, by way of communication to the complainant from time to time and thereby the Opposite parties failed to inform the status of the construction project, which they are bound to, which establishes a clear case of deficiency. Having retained the amount for such long years and having failed to construct the flat in time and deliver the possession, the Opposite parties are liable to compensate the complainant.
21. From the perusal of the Agreement for sale and Agreement for construction Ex.A1 and A2 respectively, the time the opposite party promised to deliver possession is 1st July, 2013. Nothing is placed on record by the Opposite parties to show having invited any tenders for supply of cement, sand and other material and there being no response to such tenders. In fact, if the work is to be executed through contractors/sub-contractors, the material such as cement, sand, bricks and other material or even water will be arranged by the contractor/sub-contractor and not by the opposite party. Therefore, this Commission finds no merit in the plea that the completion of the project was delayed due to non-availability of bricks, sand and other material. It is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum or even a Court to revise the said terms. In spite of having knowledge of the same, the Opposite parties are harping on the clause 'force majeure'. Coming to this aspect, the Opposite parties failed to explain the cogent reasons time and again for years together to take the shelter of 'force majeure'. Having experienced the different ordeals which engulfed time and again, the Complainant might have knocked the doors of this Commission by way of the present complaint. However, a term of a contract, in view of this Commission will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice. From the perusal of letter dated 10.12.2014, marked as Ex.B5, it is crystal clear that the completion of A, B & C towers has been delayed and will be ready for possession by November 2015. Admittedly, the subject flat is in Block-C. Even as on date it is not informed to this Commission by the Opposite parties whether the subject property is completed in all aspects or not.
22. Under Ex.A1, there is a provision of clause for charging interest on the defaulted instalments at the rate of 1.5% per month from the date of default till the date of payment. No sensible person will volunteer to accept such a clause. It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable. The builder charges interest @ 1.5% per annum in the event of the delay on the part of the Complainant/buyer in making payment to him but seeks 'force majeure' clause. Even no clause in the reverse manner is incorporated by the Opposite parties, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer. Such a term in the Agreement for sale also encourages the builder to divert the funds collected by it for one project to another project being undertaken by it.
23. This Commission would be eager to state that in K.A. Nagmani Vs. Housing Commissioner, Karnataka Housing Board, CA No.6730-6731 of 2012 decided on 19.09.2012, the complainant who was awarded interest by National Commission at the rate of 12% per annum on the refund amount, felt aggrieved and approached the Hon'ble Supreme Court for grant of a higher interest. Despite the respondent in the above referred matter being a statutory body unlike the opposite parties herein which is a private builder, the Hon'ble Supreme Court, relying upon its earlier decision in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, and noticing that the complainant was suffering a loss inasmuch as she had deposited the money in the hope of getting a flat but was being deprived to get the flat and thereby deprived of the benefit of escalation of the price of the flat held, that the compensation would necessarily be higher. The Hon'ble Supreme Court, therefore, granted interest to the complainant at the rate of 18% per annum from the date of deposit till the date of realization along with further compensation quantified at Rs.15,000/- for deficiency in service and Rs.20,000/- towards the cost of litigation.
24. For holding huge amount of Rs.39,75,473/- pertain to Complainant for years together, no reasons are assigned by the Opposite parties, which is not permissible as a matter of right. Even there is no clause for payment of any interest for retaining the amount, in case of delay in completion of the project. Hence, the clause of charging interest for delayed payments, does not apply to a case where the buyer on account of delay on the part of the seller in constructing the flat is left with no option but to seek refund of the amount which he had paid to the seller and it would have to be declared ultra vires. The terms of agreement shall be further held that such a clause where the seller in case of default on the part of the buyer seeks to recover interest from him at the rate of 1.5% will amount to an unfair trade practice since it gives an unfair advantage to the seller over the buyer. It is to be noted in this regard that enumeration of the unfair trade practices in Section 2(r) of the Act is inclusive and not exhaustive. Since gross deficiency on the part of the opposite party in rendering services to the complainant is clearly established on account of its not having completed the project even in about seven years from the date the flats were agreed to be sold to the complainant though they had agreed to deliver the possession to Complainant on or before 01.07.2013, the complaint is clearly maintainable and the contents of complaint do constitute a 'consumer dispute'. Hence, the points 1 to 3 under paragraph No.16, supra, are answered in favour of the Complainant and against the Opposite parties.
25. While advancing arguments, the counsel for Complainant reiterated the same facts as averred in the complaint besides stating that the Opposite parties ought to have acted in accordance with the provisions of the Andhra Pradesh (Promotion of Construction and Ownership) Act & Rules, 1987 while undertaking such agreements and hence pleading 'force majeure' does not arise. He relied on Section 72 of Indian Contract Act supported by the Judgment of Hon'ble Apex Court in Brij Pal Sharma Vs. Ghaziabad Development Authority reported in III (2005) CPJ 43 (SC) and submitted that the Apex Court opined that grant of interest @ 18% p.a. by way of damages and compensation is justified. He further relied on decision in Ghaziabad Development Authority Vs.Balbir Singh reported in II (2004) CPJ 12 wherein it is stated "in our view, irrespective of whether there was genuine reason to cancel or not, the monies must be returned with interest @ 18%." This Commission perused the said Judgments. In Ghaziabad Development Authority versus Balbir Singh, the Hon'ble Supreme Court further observed that the interest shall be payable from the dates of deposit of the amounts till the date of repayment. The opposite parties would contend that the cause for delay is beyond their control which is 'force majeure', which is not acceptable by any stretch of imagination.
26. The complainant had submitted that owing to failure of the opposite parties in completing the construction of the flat, he opted for cancellation of the Agreement for sale and Agreement for Construction of flat. The opposite parties have promised to complete construction of the flat and hand over its possession to the complainant within three years from the date of the Agreement for sale and Agreement for construction and on their failure to perform their part of contract.
27. Not keeping promise to complete construction of the building and failure to deliver possession of the flat constitutes deficiency in service on the part of the opposite parties. The complainant had two options left for recovery of the amount, either by filing suit in court of law or by way of filing complaint before State Consumer Disputes Redressal Commission in view of the amount claimed falling within the pecuniary jurisdiction of this Commission. The contention of the opposite parties that the complaint is not maintainable is not sustainable.
28. The counsel on behalf of the Complainant relied on the decision reported in CDJ 2014 (Cons.) Case No.810 = 2014 (3) CPR 142, in the case of Subhash Chander Mahajan & others Versus Parsvnath Developers Ltd., decided on 05.05.2014, wherein it is observed as follows:
".....It must be borne in mind that there is a huge delay in handing over the possession of the premises in dispute i.e., about four years. The OP has made attempt to feather its own nest i.e., to make profits for itself at the expense of others. The grant of Rs.2.00 lakhs or Rs.3.00 lakhs for such a huge delay will be unjust and unfair. The complainants Subhash Chander Mahajan and his wife are compelled to live in the house of their daughter. They do not have any independent house to live in. Their harassment and mental agony cannot be equated by payment of a few peanuts. The OP has played fast and loose with the consumers.
....Keeping in view the facts and circumstances of these cases, we accept both these complaints, partly, and direct the OP, in CC No.144/2011, to pay a sum of Rs.50,78,998/- with interest @ 18% p.a., from the date of deposit, till its realization. It is further directed to pay compensation in the sum of Rs.7.00 lakhs, (@ Rs.1,00,000/- per year, from 2007 onwards) within a period of 90 days from the date of this order, for harassment, mental agony, anguish, frustration, anger and sadness, otherwise, after the expiry of 90 days', it will carry interest @ 24% p.a. till its realization. We also grant a sum of Rs.2,00,000/- towards costs of this case....."
This Commission is in total agreement with the contention of the learned counsel for the Complainant in view of the fact that there was inordinate delay in completion of the project and it is not known as on date whether the project is complete or not. This act on the part of the Opposite parties has caused much inconvenience, hardship, harassment, frustration, distress, agony etc., to the Complainant which necessitated him to seek refund of the amount.
29. On the other hand, the learned counsel for the Opposite parties relied on the following decisions.
i) II (2011) CPJ 3 (NC) in the case of Sahara India Commercial Corporation Ltd.,& anr Vs.C.Madhu Babu, decided in March 2011.
ii) (2007) 6 Supreme Court cases 711 in the case of Bangalore Development Authority Versus Syndicate Bank, decided on 17.05.2007.
iii) AIR 2004 SC 1469 in the case of R.Vishwanatha Pillai Vs. State of Kerala and others, decided on 07.01.2004.
iv) (2008) 12 Supreme Court Cases 481 in the case of K.D.Sharma Vs. Steel Authority of India Limited and others, decided on 09.07.2008.
v) (1961) 3 SCR 1020 : AIR 1961 SC 1285, in the case of Dhanrajmal Gobindram Vs. Shamji Kalidas and Co., decided on 27.02.1961.
vi) (1981) 1 Supreme Court Cases 537, in the case of M/s New Bihar Biri Leaves Co., and others Vs. State of Bhiar and others and in other cases, decided on 06.01.1981.
vii) 2008 (110) BOMLR 3204, in the case of Friends Cooperative Housing Society Limited duly registered under the Maharashtra Cooperative Societies Act, 1960 and others vs. The Nagpur Improvement Trust through its Chairman, etc., decided on 29.08.2008.
We have perused the Judgments cited by the learned counsel. The facts in the case on hand are different from the facts therein, hence, the same have no applicability to the present case.
30. The complainant claimed refund of Rs.39,75,473/- with interest @ 18% per annum from the respective dates of payments and subsequent interest, till the refund of the same besides claim for of Rs.10,00,000/- for mental agony and hardship with other reliefs. The complainant acquiesced to the delay in construction of the project.
31. It is pertinent to state here that Complainant filed Ex.A3 to A11, showing payment of Rs.39,75,473/- as against amount of Rs.40,67,875/- sought to be claimed. Admittedly, the payment of amount of Rs.39,75,473/- is not disputed by the Opposite parties, which is evident from Ex.B8 break-up particulars of amounts received filed by the Opposite parties.
32. In the above facts and circumstances, the points 1 to 4 are answered accordingly holding that the Opposite parties are jointly and severally liable to pay the amounts to the Complainant.
33. In the result, the complaint is allowed holding that Opposite parties 1 and 2 are jointly and severally liable and they are directed to pay an amount of Rs.39,75,473/- with interest @ 12% p.a. from the date of respective payments till realisation, and are further directed to pay compensation of Rs.1,00,000/- for rendering deficiency in service and on account of causing agony, pain, inconvenience, hardship, etc., together with costs of Rs.10,000/-. Time for compliance four weeks.
PRESIDENT MEMBER Dated 27.04.2017 APPENDIX OF EVIDENCE WITNESSES EXAMINED For Complainants : For Opposite parties : Affidavit evidence of N.V.Bhanu Affidavit evidence of Mr.S.Ravi Prasad, Complainant as PW1. General Manager of OP No.1. EXHIBITS MARKED For Complainant :
Ex.A1 is Photostat copy of the Agreement of sale, dated 22.01.2011 executed by the land owners and the Developer in favour of the purchaser.
Ex.A2 is Photostat copy of the Agreement for construction, dated 22.01.2011 executed by the Developer in favour of the Purchaser.
Ex.A3 is Photostat copy of the receipt bearing No.CELE/7241, dated 17.01.2011 for Rs.12,20,363/- passed by the OP in favour of the complainant.
Ex.A4 is Photostat copy of the receipt bearing No.CELE/7243, dated 17.01.2011 for Rs.4,88,145/- passed by the OP in favour of the complainant.
Ex.A5 is Photostat copy of the receipt bearing No.CELE/7821, dated 11.03.2011 for Rs.38,159/- passed by the OP in favour of the complainant.
Ex.A6 is Photostat copy of the receipt bearing No.CELE/1259, dated 20.07.2011 for Rs.5,02,101.50 passed by the OP in favour of the complainant.
Ex.A7 is Photostat copy of the receipt bearing No.CELE/1120, dated 20.07.2011 for Rs.17,730/- passed by the OP in favour of the complainant.
Ex.A8 is Photostat copy of the receipt bearing No.CELE/12, dated 31.10.2011 for Rs.5,00,822.50 passed by the OP in favour of the complainant.
Ex.A9 is Photostat copy of the receipt bearing No.CELE, dated 20.04.2012 for Rs.4,99,926/- passed by the OP in favour of the complainant.
Ex.A10 is Photostat copy of the receipt bearing No.CELE/15233, dated 17.08.2012 for Rs.2,08,302/- passed by the OP in favour of the complainant.
Ex.A11 is Photostat copy of the receipt dated 10.01.2012 for Rs.4,99,925.56 passed by the OP in favour of the complainant.
Ex.A12 is Photostat copy of the e-mail, dated 20.05.2016 addressed by the OP mentioning the major milestones in the project.
For Opposite parties :
Ex.B1 is the copy of extract of minutes of the meeting of sub-committee of Board of Directors of the OP No.1 company, held on 02.11.2010 at Bangalore.
Ex.B2 are the copies of photographs of the project showing progress in construction.
Ex.B3 is the copy of letter dated 21.11.2011 addressed by the OP No.1 to the complainant intimating regarding the delay in progress and completion of the project.
Ex.B4 is the copy of letter dated 31.01.2013 addressed by the OP No.1 to the complainant intimating regarding the completion of apartment.
Ex.B5 is the copy of letter dated 10.12.2013 addressed by the OP No.1 to the complainant intimating regarding the delay in the completion of Celestia apartment.
Ex.B6 is the copy of letter dated 18.09.2010 addressed by the OP No.1 to the Surveyor Mr.PK Narayanan to assess the damages caused at the project site due to flooding.
Ex.B7 is the copy of letter dated 22.09.2011 addressed by the OP No.1 to the National Insurance Company Limited, Bangalore furnishing the damages occurrence report.
Ex.B8 is the copy of break-up figures of the amounts received from the complainant.
Ex.B9 is the copy of the Partial Occupancy Certificate, dated 17.12.2013 furnished by the Commissioner, GHMC.
Ex.B10 is the copy of Partial Occupancy Certificate dated 05.08.2014 furnished by the Commissioner, GHMC.
PRESIDENT MEMBER Dated 27.04.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER