State Consumer Disputes Redressal Commission
1.Sri.B.Raghu Sk Prasad vs 1.M/S. Aliens Developers Pvt Ltd., on 19 July, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.182/2017
Between :
1.Sri B.Raghu SK Prasad, S/o.Sri B.H.Prasad, Aged about 40 years, Occ:Software Engineer, R/o.B7, Flat no.1, Godrej Hills, Kalyan (W), Thane, Mumbai-421 301.
2. Smt B.Rekha Raghu, W/o.Sri B.Raghu SK Prasad, Aged about 35 years, Occ: House Wife, R/o.B7, Flat no.1, Godrej Hills, Kalyan (W), Thane, Mumbai-421 301. ... Complainants And
1.M/s.Aliens Developers Private Limited, Rep. by its Managing Director Mr.Hari Challa,S/o.Mr.CVR Chowdhary , Aged about 39 years, Regd. Office at Flat no.911, Teja Block My Home Navadeepa Apartments, Madhapur, Hyderabad - 500 081.
Second Address:
Space Station-1, Tellapur, Medak District.TS
2. Mr.Hari Challa , S/o.C.V.R. Chowdary, Aged about 39 years, , Regd. Office at Flat No.911, Teja Block , My Home Navadweepa Apartments, Madhapur, Hyderabad -500 081.
3. Mr. C.Venkat Prasanna, S/o.Mr.CVR Chowdhary, Rep. by its Joint Managing Director, Aged about 36 years, Regd. office at Flat No.911,Teja Block , My Home Navadweepa Apartments, Madhapur, Hyderabad . ....Opposite Parties Counsel for the Complainants : M/s.N.Srinivasa Rau Counsel for the Opposite Parties : M/s.Raja Sripathi Rao-
O.P.Nos.1 to 3.
2CORAM : Hon'ble Sri V.V.Seshubabu, M ember (J), And Hon'ble Smt.R.S.Rajeshree, M ember (NJ).
W EDNESDAY, THE NINETEENTH DAY OF JULY, TW O THOUSAND TW ENTY THREE .
Order :
01). The complaint is filed u/s.17(1)(a)(i) of the Consumer Protection Act, 1986 & 2002 for directions to the opposite parties jointly and severally as under:
i. to pay Rs.60,13,234.24 together with interest accrued thereon @ `18% p.a. from the date of filing the complaint till the date of repayment of entire amount to the complainant;
ii. to pay Rs.3,00,000/- to the complainants
towards mental agony and damages and
loss caused by the illegal acts of the
opposite parties; and
iii. to award costs of the complaint and all
incidental costs thereto.
02). The brief averments of the complaint are that the
complainants are the husband and wife, opposite parties are
engaged in the development and construction of buildings and
gave wide publicity in the news papers and electronic media for sale of residential flats in their project by name Aliens Space Station with multiple residential towers in multiple blocks 1 to 7 with all amenities in an extent of land admeasuring 82,976.89 sq.yards in Survey nos.384, 385 and 426/A at Tellapur Village in Ramachandrapuram Mandal, Medak Dist.; that the complainants entered into an Agreement of Sale dt.21.5.2009 with the opposite parties to purchase a flat bearing no.1058, 10th floor of Station -10, Space Station -I with the proposed built up area of 1344 sq.ft. with one covered car parking besides undivided share of land of 28.90 sq.yards; that the total sale consideration is Rs.40,55,904/- and the complainants paid Rs.8,03,532/- at the time of Agreement of Sale and agreed to pay balance sale consideration of Rs.32,52,372/- by way of instalments as provided in the payment schedule plan as per the 3 progress of construction; that the complainants availed the housing loan from State Bank of India, RACPC, Zonal Office, Hyderabad and Rs.8,74,420/- was directly disbursed by the Bank to opposite parties; that the complainant also paid a sum of Rs.3,50,000/- after the agreement and in total they paid Rs.20,27,952/- to the opposite parties; that the opposite parties have to hand over of the flat within three years from the date of booking with a grace period of 6 months, in case of failure agreed to pay compensation @ Rs.3/- per sq.ft. of super built up area per month till the date of possession; that though the complainant tried to contact the opposite parties with regard to progress in construction of flat, no such information revealed by the opposite parties; that the complainant got issued legal notice dt.29.3.2017 to the opposite parties for which no reply was given; hence the complaint seeking for the reliefs as stated supra.
03). Opposite parties 1 to 3 filed written version and brief averments of the same relevant to the facts are that, there is no deficiency in service; that the allegations made in the complaint are denied except those that are admitted; that the complainants have not approached the Commission with clean hands and never he asked for refund of money or for cancellation of the agreement, as such cannot claim deficiency in service; that the complaint is barred by time as the complainant entered into an agreement on 21.5.2009 and as per the agreement, the opposite parties a re alleged to handover the possession before May,2012 wiith a grace period of 6 months under Clause VIII, but the complainant keep quiet and filed the complaint and the complaint is liable to be dismissed as it is not filed within the period of limitation as prescribe under C.P. Act; that there is a Clause in the Agreement to go for Arbitration in case of disputes, but it was not opted for;
that the complainants not paid the entire instalments as stipulated under the Agreement for which the opposite party is entitled to cancel the allotment and forfeit earnest money; that the opposite party had fought for conversion of land from agriculture to non agriculture and after formation of HUDA has to obtain permission for agriculture zone to residential and commercial zone etc., and also with regard to the projects be in conformity with the master plan, to obtain 'No Objection Certificate' from the Fire 4 Services Department and on several other aspects that as per Clause XIV, the opposite party cannot be found fault with for non completion of project on time "Force Majeure"; that as per Clause VIII(g) of the Agreement, the opposite parties shall pay compensation charges at Rs.3/- per sq.ft. per month, in case of failure to deliver possession, and the said amount would be adjusted to the dues payable by the complainants; with these pleas the opposite parties prayed for dismissal of the complaint with exemplary costs.
04). The complainant no.2 filed Evidence Affidavit as PW.1 and got marked Exs.A1 to A14 Mr.Hari Challa, Managing Director of opposite party no.1 filed evidence affidavit as RW.1 and got marked Exs.B1 to B18. Mr.Venkata Prasanna Challa, Director of opposite party no.1 filed further evidence affidavit as RW.2 and got marked Exs.B19.
Heard arguments of both sides.
05). Basing on the pleadings on both sides, the following are the points for consideration:
i. Whether there is deficiency in service and unfair trade practice on the part of the opposite parties?
ii. Whether the complainant is entitled for the reliefs as prayed for?
iii. How much amount the complainant paid to the opposite parties?
iv. Relief? 06). Ex.A1 is the Agreement of Sale dt.21.5.2009 and a per the same, the opposite parties have acknowledged receipt of Rs.8,03,532/- and the balance amount was shown at Rs.32,52,372/- payable as per Annexure A. Ex.A2 is the
Statement and as per the same PW.1 paid Rs.7,03,532/- during the period from 30.10.2008 to 2.2.2009. It means, it was paid prior to Ex.A1.
Under Ex.A7, the opposite parties requested PW.1 to arrange for the payment of Rs.8,74,420/- from his banker towards the progress of construction. Ex.A9 is the Tripartite Agreement and it shows that Rs.32,44,000/- was sanctioned as a housing loan to the first complainant. The opposite parties filed a memo 5 dt.1.5.2023 and enclosed statement of account of complainant with SBI for the period from 4.8.2009 to 21.4.2017. It shows that on 8.8.2009, the Bank disbursed Rs.8,74,920/-. So, there is no dispute with regard to the payment of the said amount to opposite parties. Ex.A10 dt.16.8.2016 issued by SBI goes to show that the complainants have closed the bank loan account by discharging the total amount. If all the payments that were made into the account of the complainant goes to show that in total a sum of Rs.10,40,001.70 was paid which includes the sanctioned amount. It is the not the contention of the opposite parties that they paid any amounts into the home loan account of the complainants . Surprisingly in the complaint, it is pleaded that a sum of Rs.7 lakhs was paid towards the interest on loan proceeds which is incorrect. Actually he paid Rs.1,65,081.70 towards interest.
07). At the time of arguments, the opposite parties counsel represented that they have paid Rs.9,04,100/- in the year 2019.
The complainants counsel admitted the payment of such amount on 23.08.2019 into the personal account of PW.1. In the complaint again interest was claimed at 24% p.a. Already Rs.7 lakhs was claimed as interest. It is nothing but double claim.
08). The opposite parties counsel stated that they are willing to pay the balance amount with interest besides the amount paid by the complainant to the bank to clear the loan by deducting the amount paid by them to the complainant under Ex.B19.
Therefore, we are of the view that the complainant is entitled for the refund. Even though PW.1 claimed in all Rs.20,27,952/-, the receipts are not supporting the said contention. As per Ex.A1 he paid only Rs.8,03,532/- out of which the amounts paid under Ex.A2 covers Rs.7,03,532/-. It is also contended by PW.1 that, he paid Rs.6,03,532/- on 30.9.2009 and Rs.5 lakhs on 26.4.2010, but no proof is forthcoming. So, we are of the view that he is only entitled for refund of Rs.8,03,532/- with interest @ 12% p.a. from the date of Agreement of Sale dated 21.5.2009 and also Rs.10,40,001/- with interest @ 12% p.a. from 16.8.2016 till the date of payment; out of which the amount of Rs.9,04,100/- paid by the opposite parties with interest @ 12% p.a. shall be deducted from the date of 16.8.2016 till the date of 6 filing the calculation memo. The failure on the part of the opposite parties to complete the project as scheduled amounts to deficiency in service and so, the opposite parties are liable to pay compensation of Rs.2 lakhs. Since, the possession of the property is not being given, the complainants are not entitled to claim rentals.
09). In the result, complaint is partly allowed against the opposite parties 1 to 3 with joint and several liability with costs of Rs.20,000/-. The opposite parties are directed to pay Rs.8,03,532/- with interest @ 12% p.a. from 21.5.2009 till the date of payment; the opposite parties are further directed to pay a sum of Rs.10,40,000/- (Rs.10,40,001.70 rounded off to:Rs.10,40,000/-) from 16.8.2016 till the date of payment; that the payment of Rs.9,04,100/- with counter interest at 12% p.a. shall be adjusted by the complainants from the dues to be received from the opposite parties; and that the opposite parties are directed to pay compensation of Rs.2 lakhs.
Time for compliance is one month from the date of receipt of the order.
( Typed to dictation on system, corrected and pronounced by us in the open Court on this 19th day of July, 2023).
MEMBER (J) MEMBER(NJ)
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Dated: 19.7.2023.
APPENDIX OF EVIDENCE W itnesses examined For the complainant For the opposite parties Evidence Affidavit of the Evidence Aff. of Mr.Hari Challa Complainant no.2 as PW.1 -Managing Director of the filed. Opp.party filed as RW.1.
Further Evidence Aff. of Venkat Prasanna Challa, Director of opp.party as RW.2 filed.
Exhibits marked on behalf of the complainants:
Ex.A1 : Photostat copy of Agreement of Sale dt.21.5.2009 between opposite parties and the complainants. Ex.A2 : Statement of payments made by the complainants. Ex.A3 : Photostat copy of receipt dt.31.10.2008 issued by O.P. for the payment of Rs.1,13,383/- made by 7 complainants.
Ex.A4 : Photostat copy of receipt dt.9.12.2008 issued by O.P. for the payment of Rs.1,13,383/- made by complainants.
Ex.A5 : Photostat copy of receipt dt.2.1.2009 issued by O.P. for the payment of Rs.1,13,383/- made by complainants.
Ex.A6 : Photostat copy of receipt dt.2.2.2009 issued by O.P. for the payment of Rs.1,13,383/- made by complainants.
Ex.A7 : Photostat copy of lr.dt.8.8.2009 from opp.party to the Complainant.
Ex.A8 : Photostat copy of lr.dt.8.8.2009 from the complainants to SBI.
Ex.A9 : Photostat copy of Tripartite Agreement dt.8.8.2009 between the opp.party, complainant and SBI. Ex.A10 : Photostat copy of loan closure lr.dt.16.8.2016 from SBI, Chiragali Lane to Asst. Gen.Manager, SBI. Ex.A11 : Copy of legal notice dt.29.3.2017 issued on behalf of complainants to the opposite parties. Ex.A12 : Returned postal cover. .
Ex.A13 : Returned postal cover.
Ex.A14 : Returned postal cover.
Exhibits marked on behalf of the opposite parties:
Ex.B1 : Photostat copy of lr.dt.31.12.2007 from Principal Secretary to Govt. , MA & UD Dept., A.P. Secretariat, Hyd. addressed to the Vice Chairman, HUDA. Ex.B2 : Photostat copy of G.O.Ms.no.288 dt.3.4.2008. Ex.B3 : Photostat copy of Lr.Dt.5.5.2007 from the Collector & Dist. Magistrate, Medak to the Vice Chairman & M.D.,HUDA.
Ex.B4 : Photostat Copy of the Minutes of the Meeting of the MSB Committee meeting for HUDA area held on 29.2.2008 .
Ex.B5 : Photostat copy of lr.dt.31.3.2008 from the HUDA to the Principal Secretary to Govt. , MA & UD Dept., Govt. of A.P.,Secretariat, Hyd.
Ex.B6 : Photostat copy of lr.dt.11.4.2008 from the HUDA to the opp.party.
Ex.B7 : Photostat copy of lr.dt.11.4.2008 from the HUDA to the Executive Authority, Tellapur Gram Panchayat, Ramachandrapuram Mandal, Medak Dist.
Ex.B8 : Photostat Copy of the Minutes of the Meeting of the MSB Committee Meeting for HUDA area held on 5.6.2008.
Ex.B9 : Photostat copy of lr.dt.14.10.2009 from HMDA to the Executive Authority, Tellapur Gram Panchayat, Ramachandrapuram Mandal, Medak Dist.
Ex.B10: Photostat copy of Lr.Dt.12.8.2008 from Ministry of Environment & Forests to the Opposite party. Ex.B11: Photostat copy of lr.dt.24.11.2009 from the Principal Secretary to Govt. MA & UD Dept., A.P. Secretariat, Hyd. to the opp.party.
Ex.B12: Photostat copy of lr.dt.8.10.2010 from the opp.party to the Director (Plg) & I/c Member (UP) , HMDA. Ex.B13: Photostat copy of lr.dt.28.3.2011 from HMDA to the opp.party.8
Ex.B14: Photostat copy of Cash Acknowledgement Receipt issued by HMWSSB.
Ex.B15: Photostat copy of certificate issued by IGBC on behalf of the Aliens Space Station 1.
Ex.B16: Photostat copy of Certificate issued by CITYSCAPE -
Awards - Real Estate -Asia 2009 on behalf of Space Station 1 by Aliens Developers Pvt.Ltd.
Ex.B17: Photostat copy of lr.dt.2.11.2015 from the opposite party to the owner of the flat no.2782.
Ex.B18: Photographs of apartments and flat owners. Ex.B19: Scanned copy showing the details of the payment of Rs.9,04,100/- made by the opp.party to complainants.
MEMBER(J) MEMBER(M)
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Dated: 19.7.2023