State Consumer Disputes Redressal Commission
Syed Hassan And 4 Others Hyderabad vs M/S.Tirumala Homes Private Limited, ... on 30 December, 2008
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD. C.D.No. 25 OF 2006 Between: 1. Syed Hassan, S/o.late Syed Mohiuddin, aged about 65 years, Occ:Retd. 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 63 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.Mohajir, aged about 69 years, Occ:Housewife, 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 67 years, Occ:Housewife, 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.Sabeeha, W/o.Hamiudin Ahmed, aged about 60 years, Occ:Housewife, R/o.10-2-5/9, A.C.Guards, Hyderabad-500 004. 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. 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 Marredpally, Secunderabad. Opposite Parties Counsel for the Complainants Mr.S.Malla Rao Counsel for the Opposite parties Mr.T.S.Venkata Ramana. QUORUM: THE HONBLE JUSTICE SRI D.APPA RAO, PRESIDENT. AND SMT.M.SHREESHA, MEMBER.
TUESDAY THE THIRTIETH DAY OF DECEMBER TWO THOUSAND EIGHT ORAL ORDER: (Per Smt.M.Shreesha, Honble Member).
*** The brief facts as set out in the complaint are that on 1st May, 2000, opposite party entered into an Development Agreement-cum-G.P.A. after being fully satisfied with the title of complainants of their property bearing H.Nos.8-4-940 and 8-3-940/A, B, C, D. and E admeasuring 2512 sq. yds. situated at Yellareddyguda, Ameerpet, Hyderabad. Opposite party paid Rs.5,00,000/- as part of Rs.30,00,000/- and the balance was agreed to be paid at the time of handing over possession as a refundable/adjustable deposit free from deposit. On 22nd February, 2002, MCH sanctioned the plan to construct stilt + 5 floors and thereafter on 8th March, 2002, the complainants entered into registered Development Agreement-cum-GPA with opposite party vide document No.922/2002 dated 8-3-2002 and at that time, opposite party paid the balance of Rs.25,00,000/- to the complainants in part to-dated cheques and part in post dated cheques. Opposite party agreed to allot 40% built up area inclusive of common area to the complainant as the first choice. As per the said agreement, complainants are entitled to retain 1004.8 sq. yds. as undivided share of land. Opposite party also agreed to allot 40% of the parking area to the complainants as the first choice and agreed to complete development work in 24 months with 6 months grace period. The date of Agreement being 8th March, 2002, 24 months lapsed on 7th March, 2004 and 6 months grace period ended on 7th September, 2004.
Opposite party agreed to pay Rs.15,000/- to the complainants as alternate accommodation till 40% of the share is allotted and agreed to pay Rs.10,000/- as compensation to the complainants for the delayed period.
All the original documents pertaining to the property were handed over by the complainants to the opposite party and Notarized photo copies of the said documents were retained by the complainants. In April and May, 2002, old building was demolished except the front portion, which was given on rent to Mr.Meherchand and Mr.Jathanand. On 24th October, 2002, complainants and Defendants have entered into Memorandum of Understanding with Mr.Meherchand and Mr.Jathanand to provide re-accommodation by sale of 1200 sq. ft. at a concessional rate.
Accordingly complainants and opposite party agreed to sell 1200 sft. Inclusive of common areas to Mr.Meherchand and Mr.Jathanand for a total sale consideration of Rs.18,00,000/- and hence the tenant i.e. Mr.Meherchand and Mr.Jathanand handed over vacant mulgi on 30th November, 2002, whereupon complete structure was demolished for development. On 24th October, 2002, opposite party has entered into Memorandum of Understanding with complainants about the sharing of total sale consideration of Rs.18,00,000/- receivable from Mr.Meherchand and Mr.Jathanand. Opposite party and the complainants agreed to construct 1200 sft. Inclusive of common areas at the first instance to accommodate Mr.Meherchand and Jathnand. In case there is no further commercial construction, complainants agreed to compensate opposite party of their 60% of commercial share in 1200 sq. ft. sold to Mr.Meherchand and Mr.Jathanand along with Rs.5,00,000/- compensation for loss to opposite party as against the market value. In case if there is no further construction, the commercial area sold to Mr.Meherchand and Mr.Jathanand will be adjusted from 40% of complainants share in the total commercial portion. Opposite party has also agreed to hand over the total sale consideration to complainants after handing over possession to Mr.Meherchand and Mr.Jathanand as mentioned in the memorandum of understanding. On 25th October, 2002, opposite party applied for sanction with a revised plan along with cellar parking and accordingly MCH sanctioned plan to construct cellar + stilt + 5 floors on 23-10-2003 and opposite party constructed Lower Ground floor and upper ground floor for shops and parkings and first + second + third + fourth + fifth floors with residential flats with 6 flats in each floor. The built up area including common area from first floor to fifth floor will be 65,902.80 sq. ft. out of which 40% share of complainants come to 26,361.12 sq. ft.
in total parking areas and the complainants are entitled for 40% of parking in cellar and stilt at their choice as per the agreement.
The complainants submitted on 9th January, 2003, Mr.M.A.Gafar, Advocate, neighbour and cousin of complainants, sent legal notice to opposite party stating that the complainants have no rights and claim on the property and the legal advisors of opposite party replied and the complainant filed caveats every three months till October, 2005. Mr.M.A.Gaffar has not approached the courts till date and the last caveat expired on 20th October, 2005. Opposite party has entered into agreements with the third parties in respect of flats demarcated as indicated in development agreement, which was clarified in M.O.U. dated 6-11-2004 and the same is detailed in Rejoinder dated 22-3-2006 sent in response to the reply dated nil sent on behalf of the opposite party.
In April, 2004, opposite party started raising 6th floor structure as against the MCH sanctioned plan without the consent of the complainant and on objection, meeting was arranged between opposite party and complainants, verbal commitment was reached for construction of 6th floor + pent house and the complainant agreed to take 30% of the constructed area from 6th floor as their share.
The period of completion of the development work was verbally extended to January, 2005. In August, 2004 part of the commercial portion was handed over to Mr.Meherchand and Mr.Jathanand after registration of sale deed and after claiming Rs.1,12,000/- as amount of excess area sold to them and the total sale consideration of Rs.18,00,000/- plus Rs.1,12,000/- amounting to Rs.19,12,000/- is lying with opposite party in which complainants have got 100% share. When opposite party started raising 7th floor structure instead of constructing pent house without the consent of complainants, they objected and after detailed discussion, 6th and 7th floors the matter was deduced into Memorandum of Understanding on 6-11-2004 with following among other conditions:
a) Complainants agreed to take 30% of the total constructed area in 6th and 7th floors as their share, which comes to 7874.91 sq. ft. from out of total constructed area of 6th and 7th floors measuring 26,249.70 sq. ft.
b) Opposite party agreed to take 30% of the commercial area in cellar portion as their share.
c) Opposite party agreed to allot 40% of the entire parking area
d) Defendants have agreed to allot 40% of the balance open area and terrace.
e) Changes in the demarcated flats of complainants were specified.
f) Opposite party has agreed to complete the construction of southern block by 31st March, 2005.
g) Complainants agreed to take the balance commercial area from stilt floor in the cellar portion, according to the calculation done with respect to the plan presented on that day.
h) Total development period was extended by 10 months and shall be completed by 30th June 2005 with a grace period of one month
i) It was agreed that the terms and conditions of the original agreement would be binding.
j) Opposite party agreed to bear entire expenditure of construction and other legal expenditures for 6th and 7th floors and commercial portion.
The complainants submitted that since January, 2005, opposite party started avoiding payment of Rs.15,000/- per month as expenses for alternate arrangement and used to clear dues after repeated requests. In March, 2005 opposite party arranged meeting since they could not complete the construction of southern block by 31st March, 2005 and verbally agreed to complete the same by 31st May, 2005. In March, 2005, opposite party started demanding payment of amount for amenities to the tune of Rs.1,15,000/- per flat at time when only 40% of the work was completed in the flats allotted to complainants i.e. Rs.15,000/- for Bore well, Rs.15,000/- for lift and common light fittings, Rs.40,000/- for water and sewerage charges, Rs.30,000/- for Electricity deposit & transformer & cable charges with Rs.15,000/- for Miscellaneous charges and the above said demand is in violation of the agreement wherein complainants are supposed to pay only service connection charges and deposits. In March, 2005, opposite party has sent a copy of the letter of HMWS & SB connection sanction dated 09th July, 2004 amounting to Rs.16,00,267/- and demanded 40% of share of Rs.16,00,267/- by creating an impression that they have already paid the amount. Upon verification, it was found that opposite party has actually paid only Rs.2,00,000/- as on March, 2005. However, in last week of April, 2005, complainants have paid Rs.6,00,000/- towards their share adhering to the demand of opposite party. Complainants further found discrepancies in sale of undivided share of land comparing the registration data and data shown to complainants by opposite party and after actual calculation, it is deduced that opposite parties in turn are selling complainants portion of undivided share of land to third parties which is illegal and inspite of complainants request, opposite party refused to give details of the flat purchasers and the flats sold.
In May, 2005, opposite party has constructed an additional area in shop 1 and 2 as against the plan shown to complainants on 6th November, 2004 at the time of execution of memorandum of understanding. In July, 2005, opposite party sent invoice of additional charges to the tune of lakhs for flats 303, 304, 403, 503, 603 in which still 30% of the work had to be done and when complainants tried to enquire about the same, for verification of additional works, opposite parties were unable to provide the plans and avoided saying that plans are not present at site office. After lapse of one and half months, opposite party produced statement regarding electrical fittings and after verification of actual work done along with authorized person of opposite party, complainants found several discrepancies in the plan statement itself with respect to agreement as well in invoice of additional work. Opposite party charged additionally for the things which are mentioned in the agreement as well as things they were supposed to be provided and hence the claims of additional charges are untenable. In July, 2005, opposite party stopped payment of Rs.15,000/- per month as expenses for alternate arrangement till handing over 40% share to complainants as mentioned in the agreement. In July, 31st July, 2005, terms for completion of construction expired and In August, 2005, complainants have taken possession of four incomplete flats bearing Nos.303, 403, 503, 603 with several minor works to be completed.
After a month thereafter, opposite party sent electricity bill which has previous dues of thousands of rupees. In September, 2005, opposite party demanded money of Rs.90,000/- per flat towards amenities charges inclusive of Rs.15,000/- as generator installation and was unable to give details of actual expenditure. In September, 2005, Rs.4,00,000/- was paid by complainants on demand of opposite party towards service connection charges. Opposite party verbally agreed to allot Flat No.602 to complainants as part of excess share of 6th and 7th floor areas but in September, 2005 he sold flat No.602 to third party which is illegal.
Opposite party collected maintenance charges from complainants event though there is no common electricity, drinking water supply and proper parking space. On 31-9-2005, opposite party handed a new parking plan of stilt and cellar floors without any scale and has no signature of any authority and this new plan shows no increase in parking area as agreed in November, 2004 at the time of memorandum of understanding.
This new plan contains as Bank Parking in the cellar floor apart from the area to be shared in the ratio of 40:60 and hence the said plan is not acceptable to the complainants and is contrary to Agreement/Understanding.
Therefore, the complainant got issued a legal notice dated 14-11-2005 to the opposite party pointing out the following:
a) Avoiding to demarcate the complainants share of approximately 1433 sq. ft. in 6th and 7th floor apart from the demarcated flats as per agreement (603, 605 and 702)
b) Avoiding to demarcate commercial area in the cellar portion
c) Avoiding to demarcate parking space
d) Avoiding to give details of measurements of commercial area
e) Avoiding or refusing to give details of Rs.90,000/- per flat as amenities charges
f) Demanding Rs.15,000/- per flat as generator expenses, which are not mentioned in the agreements
g) Till date, opposite party paid only Rs.8,50,000/- out of Rs.16,00,267/- as HMWSSB connection charges
h) Avoiding to give details of sanctions of electricity connections and deposits
i) Refuses to complete and stopped work in the flats allotted to the complainants citing several vague reasons
j) Stopped payment of Rs.15,000/- per month since July, 2005 as expenses for alternate arrangement till handover of 40% share as mentioned in the agreement.
k) Refuses to pay compensation charges of Rs.10,000/- as mentioned in the agreement l) Refused to handover the sale money of
Rs.19,12,000/- of shop No.4 sold to Mr.Meherchand and Mr.Jathanand from complainants share of commercial areas mentioned in the agreement even after one year of handing over possession
m) Refuses to settle total amount received :Rs.29,12,000/- i.e. i) commercial sale Rs.19,12,000/- and ii) service connection charges Rs.10,00,000/-.
Opposite party in response to the legal notice got issued a reply dated nil with false allegations to which the complainants got issued Rejoinder dated 22-3-2006 and that in spite of legal and rejoinder, opposite party failed to fulfill the points raised in the notice and rejoinder and complete the unfinished works. The complainants submitted that they availed the services of opposite party for development of their property for a consideration in pursuance of which, opposite party agreed to bear all expenses of construction while retaining 60% development area, agreed to allot 40% share to the complainants in stilt, cellar, Ground + 5 floors and opposite party while retaining 70% developed area agreed to allot 30% share to the complainants in 6th and 7th floors. Opposite party agreed to deliver possession of flats by completing works in all respects and has duty to provide proper services as the services are paid in the form of providing land for development. The unfinished works are valued at Rs.14,11,533/- and also to complete all the works in common areas and pay the share of the complainant in all a sum of Rs.19,12,000/- in the sale consideration received by the opposite parties from Mr.Meherchand and Mr.Jathanand and also to obtain Occupancy Certificate from MCH and NOC from Fire Service Department. Hence the complaint for a direction to the opposite parties
i) to complete the balance works in Flat No.105 in I floor, 201 and 202 in II floor, 306 in III floor, 401 in IV floor, 502 in V floor, 605 in 6th floor and 702 in 7th floor which forms part of schedule mentioned property.
ii) to hand over or account for balance 30% of built up area measuring 1433 sq. ft. in 6th floor and 7th floor after excluding the area covered by flat No.603, 605 in VI floor and flat No.702 in 7th floor which forms part of schedule mentioned property
iii) to complete all the works in common areas of the entire building complex including car parking areas shown in lower ground floor and upper ground floor of the schedule mentioned property
iv) to pay an amount of Rs.19,12,000/- which was received by him in pursuance of the sale of the shops area belonging to the complaints in the schedule mentioned property with interest at 18% p.a. from August, 2004 till the date of payment or in the alternative the complainants be permitted to adjust the said amount in the deposit amount of opposite party lying with the complainants.
v) to direct opposite party to pay a sum of Rs.1,35,000/- being the arrears of expenses at Rs.15,000/- per month from July, 2005 to March, 2006 together with future expenses @ Rs.15,000/- per month from the date of filing of complaint till the completion of all works in all respects in the flats bearing Nos.105 in I floor, 201 and 202 in II floor, 306 in III floor, 401 in IV floor, 502 in V floor, 605 in 6th floor and 702 in 7th floor which forms part of schedule mentioned property making the same fit for occupation
vi) to pay a sum of Rs.80,000/- being compensation as per the agreement for not completing the works in all respects in the entire share of complainant @ Rs.10,000/- per month from August, 2005 to 31-3-2006 and Rs.10,000/- from the date of filing the complaint till the date of completing all works in the entire share of complainants in all respects
vii) to obtain Occupancy Certificate from Municipal Corporation of Hyderabad in respect of the schedule mentioned property
viii) to obtain NOC from the Fire Services Department as required under law in respect of schedule mentioned property
ix) to direct the opposite party that till the complainants select their choice of parking as per the Agreement, not to allot or deal with car parking in the schedule mentioned property
x) to direct the opposite party to demarcate the commercial area of the complainants in upper ground floor of the building complex described in the schedule property
xi) to award costs
xii) And grant such other relief or reliefs as this Honble Court may deem fit in the circumstances of the case.
Opposite parties filed counter stating that the complainants are in possession and enjoyment of their respective portions in accordance with the development agreement and they have let out the same and enjoying rents fro the tenants in occupation.
The complainants are not entitled to maintain the complaints before this Commission by claiming any rights in respect of unauthorized structures in respect of the schedule property as the said unauthorized structures were undertaken by the opposite party at the request of complainant and the same could not be completed due to notice issued by the Municipal authorities and hence the claim of the complainant is speculative and unlawful and therefore liable to be dismissed. Opposite parties further stated that the complainant is holding Rs.30,00,000/- being interest free security deposit and inspite of taking possession of the constructed area in full, in terms of the development agreement and in respect of authorized areas and as such the complaint is liable to be dismissed. Opposite parties admitted that on 1st May, 2000, the complainants and they have entered into a Development Agreement-cum-GPA and deny that they have entered into the said agreement after duly satisfying the title of the complainants to their property bearing H.No.8-3-940 and 8-3-940/A, B, S, D and E admeasuring 2512 sq. yds. situated at Yellareddyguda, Ameerpet, Hyderabad. Opposite parties state that they have produced the title deeds and as the same very old and after taking copies and they were many objections raised by the concerned departments with regard to survey number and further there was road widening plan by municipal authorities. It was further stated that during the course of construction, objections and claims were raised by the neighbourer in respect of the schedule property. They admitted that they paid a sum of Rs.5,00,000/- to the complainant towards part of advance on the said day out of total sum of Rs.30,00,000/- and state that subsequently from time to time, they paid the balance of advance of interest free security deposit of Rs.25,00,000/- to the complainants. They also admitted that on 22-2-2002, MCH have sanctioned the plan to construct stilt and upper 5 floors and thereafter the complainants and opposite parties have entered into a registered Development Agreement-cum-GPA vide Doc.No.922/2002 dated 8-3-2002 in view of sanction plan and at the time of entering into registered Development Agreement-cum-GPA, they have paid the balance security deposit of Rs.25,00,000/- to the complainants by way of post dated cheques and thus in all they paid a sum of Rs.30,00,000/- as and from 22-2-2002. They also admitted that in terms of the said Development Agreement, the complainants are entitled to 40% of the built up area inclusive of common areas and also entitled for proportionate undivided share of land in respect of the said complex along with the parking area. It is true that they have agreed to complete the development work within 24 month with 6 months grace period from the date of the said agreement i.e. from 8-3-2002 i.e. from the date of obtaining the building permit sanction. It is true that they have also agreed to pay Rs.15,000/- to the complainants as alternate accommodation till 40% of the share is allotted and a sum of Rs.10,000/- per month as compensation for the delayed period from the time of entering into agreement initially on 01-5-2000. Opposite parties submitted that though the complainants produced title deeds and when they made approach to Municipal Authorities for obtaining building construction sanction, they were discrepancies in Ward Nos. and when they requested the complainants to rectify the discrepancies they could not do so and therefore they approached Honble High Court of A.P. and got rectified the same on the basis of orders of Honble High Court and were able to get building permit sanction. However after obtaining building permit sanction from the MCH, they could not proceed with the construction as one of the tenant is in occupation of the said building and failed to vacate the portion of the sad building and there were disputes and claims from the Neighbours. Opposite parties further stated after the best efforts made by these parties, the said tenant and also with the neighbours, they could settle the disputes by entering into a separate agreement with the tenant and the tenant delivered the possession and later these parties could be able to proceed with the development work by demolishing the old structures and by proceeding with the construction. They further state that due to these reasons, the work could not be commenced and the delay was caused and the said delay is bonafide. Opposite parties denied that in the month of April, May, 2002 old building was demolished except the front portion given on rent to Mr.Meherchand and Jethanand. As stated supra even though portion of the main portion of the building facing towards main road was under the occupation of tenant, these parties could not take steps to demolish the building for the proposed construction and the circumstances clearly establish the reasons for not commencing the work from the date of Development Agreement i.e. from March, 2002. They further submitted that on 24-10-2002, a Memoradum of Understanding was entered into with Mr.Meherchand and Jhatanand to provide accommodation by sale of 1200 sq. ft. on concessional rate and the complainants and they agreed to sell the same for a total sale consideration of Rs.18,00,000/-. Inspite of entering into Memorandum of understanding, the actual possession of the portion under occupation of the said tenants Mr.Meherchand and Mr.Jhatanand was handed over in the middle of December, 2002 and as such till the end of 2002, they could not be able commence the work in accordance with the development Agreement dated 8-3-2002 and the said delay is not on their part but it is because of failure of complainants to deliver vacant possession and as such the complainant cannot contend that opposite parties failed to complete the construction in terms of the said registered agreement dated 8-3-2002. It is also admitted that in case there is no further commercial constructions, the complainants agreed to compensate them of their 60% share of the commercial fare with Rs.5,00,000/- towards compensation for the loss as against market value and also admitted that in case there is any further construction, the commercial areas sold to Mr.Meherchand and Mr.Jhatanand will be adjusted from 40% of the complainants share in the total portion.
Opposite parties submit that in view of subsequent developments, on mutual understanding, they agreed to submit revised plans to MCH providing more FSI by way of cellar and stilt. Accordingly revised plans have been submitted by these parties and on great difficulties, these parties obtained revised sanctioned plan from the MCH for construction of cellar, stilt, and upper 5 floors on 23-10-2003. Since the plans were pending for sanction before the concerned authorities, they could not commence the construction on the basis of old sanction plan. They submitted in accordance with clause 4 of the original agreement of Development-cum-Irrevocable GPA dated 1-5-2000 it was specifically agreed that total period of 30 months after inclusive of grace period shall commence from the date of handing over possession of the property or receiving sanction plans from the Municipal Corporation of Hyderabad whichever is later.
Taking into consideration the said clause, the actual period will commence only after October, 2003 but not the date of agreement i.e. 8-3-2002, as alleged and contended by the complainants.
In view of the specific understandings and also on the basis of terms and conditions, they have not committed any breach or violated the terms and conditions of the agreement. It is true that after the revised plans, dated 23-10-2003 and they have commenced the construction of the complex consisting of lower, ground and upper ground floors for shops and parking and first second, third, fourth and fifth floors for residential flats consisting of 6 flats in each floor approximately admeasuring 65,902.80 sq. ft. out of which complainants are entitled for 40% of the built up area along with proportionate parking area.
Opposite parties submitted that one Mr.M.A.Gaffar, Advocate, and neighbour of the complainants sent legal notice to them stating that the complainants have no right or claim on the schedule property and they gave a suitable reply and during the course of construction, the said Mr.M.A.Gaffar created lot of trouble for the progress of construction and inspite of advising the complainants to settle the disputes, they did not make any attempts. However, they made best of their efforts and were able to settle the disputes with Mr.M.A.Gaffar and proceed with the construction of the complex. They submit that due to interference of the neighbourer, they were not able to complete the construction smoothly and the delay on the other hand is because of the defect of their title for wrong ward number, obstruction by tenants in occupation and disputes raised by the neighbourer and further the delay is also for reasons of issuing notice by Municipal authorities, who have issued notices for making deviated constructions, as per the requirements of the complainants. They admitted that memorandum of understanding dated 6-11-2004 was duly entered in between the parties. Opposite parties further submitted that at the instance of the complainants for making more benefit of the construction, proposed for raising unauthorized construction of 6th floor and accordingly they invested huge amounts by taking risk and while the construction was in progress, MCH have noticed and objected for the unauthorized construction of 6th floor and pent house and agreed to share in the ratio of 30% : 70%. They denied that contrary to the agreement, they started raising 7th floor structure without the consent of the complainants and submitted that this matter was reduced into Memorandum of Understanding dated 6-11-2004. They also denied that since January, 2005, they avoided payment of Rs.15,000/- per month as expenses for alternate arrangements or that these parties used to clear dues only after repeated demands. They submitted that could not proceed with the completion of construction of the unauthorized floors and deliver and hand over the same to the complainants because of notice issued by Municipal authorities and submitted that they completed the construction of all authorized floors and delivered possession to the complainants and they are in enjoyment of the same by using for themselves and also by enjoying the rents. They further submitted that in respect of areas allotted and delivered to the complainants, they demanded the charges proportionately for the common facilities such as bar, lift and other charges and deny that the said demand is in violation of the agreement. They submitted that the collection of service charges and deposits are made in agreement and are with regard to the service of bore-well, lift, common water and sewerage but not any other income as alleged by the complainants. They deny that the complainants found discrepancies in the sale of undivided share of land comparing the registration date or that the date shown to the complainants and after actual calculations it is deducted from their share and are in turn selling the complainants portion of undivided share of land. They deny that they have constructed additional areas in Shop Nos. and against the balance show to the complainants on 6-11-2004. They deny that there is 30% pending works in respect of Flat Nos. 303, 304, 403, 503, 603 or that they have sent invoices for additional charges and submitted that at the request of complainants, they have undertaken additional works which have been totally completed and as per the agreement, they demanded the amounts which they are entitled in terms of the agreements. They denied after a lapse of 1 month they have produced the statement with regard to electrical fittings or that on verification of actual work done along with their authorized parties, and found several discrepancies in the plan and also denied that they have charged additionally for the things which are mentioned in the agreement and submitted that they have claimed the charges in accordance with the fixtures and fittings provided by them.. They submitted that the question of payment of rental compensation of Rs.15,000/- per month from July, 2005 does not arise and stated that they have already delivered and handed over the sanctioned areas to the complainants and submitted that construction in respect of 6th and 7th floors are unauthorized and therefore the complainants are not entitled to claim rental compensation for the said portions. They deny that the time for completion of construction expired on 31-7-2005 and state in view of revised sanctioned plans in the month of November, 2003 including the grace period of six months, the period will be completed in the month of June, 2006 and not on 31-7-2005. They submitted that the amounts paid by the complainants to them are in accordance with the amounts which they were entitled and deny that they have verbally agreed to allot flat No.602 to the complainants as a part of excess share of 6th and 7th floor areas and they have sold it to the third parties illegally.
They denied that they collected maintenance charges from the complaints without providing any common electricity, drinking water or proper parking space. They submitted that the plan provided to the complainants in respect of parking areas is in accordance with mutual understanding and also as per the entitlement but not contrary to the agreement. They admitted that the complainants got issued a notice dated 14-11-2005 and submitted that the claims made by the complainants are contrary to the agreements and Memorandum of understandings and are speculative and hence denied and submitted that they got issued a reply for which the complainants got issued a rejoinder dated 23-2-2006. They denied that they availed the services of the complainant for development of the property for consideration or that they contravened the terms of the agreement or not completed the works in common areas or liable to pay the alleged claims.
They further submitted that in case the complainants are entitled for any amounts from out and out of the sale proceeds paid by Mr.Meherchand and Mr.Jhatanand, it is for the complainants to invoke the jurisdiction of civil courts by way of filing suits for recovery of amount on the basis of agreements and on the allegations of breach but not before the Forum under the Consumer Protection Act. They submitted that the said amounts are by way of recovery and do not attract the provisions of the act and as such, the allegations of the complainants are denied. They submitted that they are making all efforts to fulfill the formalities and conditions of Fire Service Department and since the same are involved with the Government departments the same are in progress and submitted that the complainants are not entitled to maintain the complaint before this Commission and prayed to dismiss the complaint.
The brief point that falls for consideration is whether there any deficiency of service on behalf of the opposite parties and the complainants are entitled to the reliefs sought for in the complaint.
The complainant filed affidavit by way of evidence and Exs.A1 to A11 are marked on their behalf.
Opposite parties filed affidavit by way of evidence and Exs.B1 to B32 are marked on their behalf. Both parties have filed their respective written arguments.
Ex.A1 is the development agreement-cum-GPA dated 1.5.2000 entered into between the complainants and the opposite parties. Ex.A2 is the Development Agreement dated 8.3.3002 entered into between the complainants and the opposite parties and Ex.A3 is a Memorandum of Understanding dated 24.10.2003 entered into between the complainants and the opposite parties with respect to the terms of construction.
Ex.A4 is the legal notice sent by Mr.M.A.Gaffar, Advocate dated 9.1.2003. Ex.A5 is the permit dated 23.10.2003 issued by MCH and Ex.A6 is the Memorandum of Understanding dated 6.11.2004 entered into between the complainants and the opposite parties. Ex.A7 is the letter addressed by the HMWS & SB to the opposite party no.1 informing it that the request for sanction of water/sewerage connection is under consideration for sanction subject to payment of Rs.15,99,267/-. Exs.A8 is the legal notice dated 14.11.2005 got issued by the complainants to the opposite parties. Ex.A9 is the reply notice issued by opposite party no.2 to the Advocate of the complainants. Ex.A10 is the reply notice got issued by the complainants to the opposite parties.
Ex.A11 is the postal acknowledgement.
Ex.B1 is a confirmation dated 23.7.2005 with respect to receiving the possession of flat no.503 signed by the complainants. Ex.B2 is with respect possession of flat no.603. Ex.B3 are the flat nos. together with total area of the land and built up area details. Ex.B4 is the particulars from the cellar to the seventh floor, the total undivided share of land and also the total construction area of the building on site.
Ex.B5 shows excess area in the 5th and 6th floors. Ex.B6 is the alternative accommodation rent paid details from the month of March 2002 till 30.06.2005. Ex.B7 is the description of electrical contract works and fire safety works with the amounts receivable. Ex.B8 is a letter dated 25.2.2007 addressed to the complainants asking them to pay an amount of Rs.37,56,685/- towards amount due and also Rs.49,30,653/- towards Fire Safety equipments together with Rs.3,54,267/- towards HMWS & SB. Ex.B10, B12, B14 and B16 are the copies of similar letters of dated 25.2.2007 sent to the other complainants. Exs.B11, B13, B15 and B17 are the postal acknowledgements of the same. Ex.B18 is a tax due details of the year 2007 and 2008 of GHMC and Exs.B19, B20, B21, B22, B23, B24, B25, B26, B27, B28, B29, B30 and B31 are all tax due details of the year 2007-08 of all the complainants for Dr.No.8-3-940/105. Ex.B32 is a letter addressed to the opposite parties dated 20.9.2007 by Andrew & Sons Company with respect to fire protection system and payment of the balance amount.
We heard both the parties and also perused the Advocate Commissioners report.
The facts not in dispute are that on 1st May, 2000, the complainants and the opposite parties have entered into a Development Agreement-cum-GPA as per Ex.A1 and it is also an admitted fact that on 22.2.2002 MCH has sanctioned the plan to construct stilt and upper 5 floors and thereafter the opposite parties have entered into development agreement-cum-GPA dated 8.3.2002 in accordance with the sanctioned plan. It is also an admitted fact that at the time of entering into this agreement, opposite parties has been paid a balance of security deposit of Rs.25 lakhs to the complainants by way of post dated cheques. By 22.2.2002 an amount of Rs.30 lakhs have paid by the opposite parties to the complainants and it is also an admitted fact that as per the terms of the Development Agreement, the complainants are entitled 40% of the built up area inclusive of common areas and are also entitled proportionate undivided share of land along with parking area. It is not in dispute that the opposite parties agreed to complete the development work within 24 months with six months grace period from the date of the said agreement. Opposite parties also admitted to pay Rs.15,000/- to the complainants as alternative accommodation till 40% of the share is allotted and a sum of Rs.10,000/- per month as compensation for the delayed period. It is the case of the complainant that the opposite parties deleted the construction and the opposite parties contend that though the agreement was initially dated 1.5.2000, in spite of several efforts, the municipal authorities did not give building sanction and therefore the construction work only began after the agreement dated 8.3.2002. It is also not in dispute that a Memorandum of Understanding was entered into between the complainants and one Mr.Meherchand and Jethanand, as per which terms an amount of RS.18 lakhs receivable from these parties and the complainants agreed to compensate to these parties for their 60% of the commercial fare in 1200 Sq.ft sold to Mr.Meharchand and Mr.Jathanand along with Rs.5 lakhs towards compensation for the loss to these parties as against marketable value. It is admitted by the opposite parties in their counter that in case of any further construction, the commercial area sold to Mr.Meharchand and Mr.Jathanand will be adjusted from 40% of the complainants share in the total portion.
In clause 4 of the original agreement dated 1.5.2000 it was agreed that total period of 30 months after inclusive of grace period will commence from the date of handing over possession of the property or receiving sanction plans from the Municipal Corporation of Hyderabad whichever is later. We are of the considered view that as far as the date from which 24 months plus six months grace period is to commence, it should be 8.3.2002, the date on which both the parties have entered into agreement since the municipal sanction was given only at that time and it would not be possible for the opposite parties to begin construction without proper sanction allotted to them. It is not in dispute that after obtaining the revised plan dated 23.10.2003, the opposite parties have commenced the construction of the complex and the said built up area inclusive of common areas from first floor to 5th floor admeasuring 65,902.80 sq.ft, out of which complainants are entitled for 40% of the built up area along with proportionate parking space. Both the complainants and opposite parties submitted that they received one notice from Mr.Gaffar, Advocate who stated that the complainants have no right or claim on the schedule property and this has further led to delay.
We observe from the record that on 6.11.2004 that a Memorandum of Understanding was entered into between the complainants and opposite parties marked as Ex.A6 and this Memorandum of Understanding states as follows:
1. That the construction of the building will be increased by two upper floors i.e., in addition to the earlier proposed 5 floors, 6 and 7 floors will be constructed.
Similarly, construction of parking and commercial area will be increased.
2. The builder has to bear the entire expenditure with respect to fees payable to MCH.
3. The builder will bear expenditure with respect to liaisoning for the entire commercial area and parking in the cellar portion.
4. The complainants will get 30% built-up area and the opposite parties will get 70% for the 6th and 7th floor and additional commercial area in the cellar portion in the same ratio.
5. The complainant will get 40% of the entire parking area and the opposite parties will get 60% of the entire parking area in the stilt and cellar portion.
6. The complainant will get 20 car parkings and the opposite parties 32 car parkings as per further details in the same clause.
7. The complainants and the opposite parties will share in 30 : 70 ratio only to the extent of additional constructed area above 5th floor.
8. Both the parties have agreed that the complainants will get Flat Nos.205, 103, 403, 603, 605, 702 in the 6th and 7th floors.
9. The final allotment of flats to the complainants is Nos.103, 105, 201, 202, 205, 303, 304, 306, 401, 403, 502, 503 till 5th floor and the flat nos mentioned in clause 8 in 6th and 7th floors.
10. It is agreed by the builder that 3rd and 4th flock will be completed by 31.3.2005 with all amenities.
11. Clause is with respect to the adjustment to be made for Mr.Jathanand M Roopani.
12. The total period for completion of the building including cellar and parking will be extended by 10 months from the original agreed time of September 2004 and shall be completed by 30th June 2005 with the grace period of one month.
13. There shall be no further additional construction and extension of time with regard to already proposed plan for mutual benefit of both the parties.
14. All other terms and conditions of the development agreement cum GPA dated 8.3.2002 shall be binding on these mutual agreement in totality.
It is pertinent to note that this Ex.A6 is signed by both complainants and opposite parties and this Memorandum of Understanding is not disputed by both the parties.
It is a case of the complainant that opposite parties have to complete the balance works in flat Nos. 105 in 1st floor, 201 and 202 in 2nd floor, 306 in 3rd floor, 401 in 4th floor, 502 in 5th floor, 605 in 6th floor and 702 in 7th floor.
We note from the Commissioners report that in the first floor he observed that flat no.105 was given for rent and in the second floor with respect to 201 and 202 that the polishing of the common area is not done and with respect to flat no.306 in the 3rd floor the Commissioner stated that the video graph of the bedroom flooring and the bathrooms showed that it was spoiled and the bathroom tiles were broken. It is stated in the Commissioners report that grills are not fitted in Flat no.306 and missing electrical fittings in 3rd bedroom. Water seepage through walls in Flat no.304, patches fall from the stair, water also leaked through electrical pipes through common area and that there are several pending works in flat No.605 and 702. It is the case of the complainants that flat No.s605 and 705 have still not completed and are in the same stage as on the date of the Commissioners report dated 30.11.2006. However, in their reply written submissions filed by the complainants they have submitted that the works in Flat Nos.105, 201, 202, 401 and 502 were completed after the CD was filed and before the Commissioners Report. Since there is no evidence on record that the opposite parties have completed the works in Flats No.605 and 702 also and have only reasoned in the written arguments that they could not complete the works in Flat Nos.605 and 702 because the complainants have agreed is unsustainable.
With respect to this point for consideration i.e., in complete works in Flat no.605 and 702, the opposite parties are directed to complete unfinished works within 6 weeks from the date of the order.
Now we address ourselves to the issue of the incomplete works in the common area of the entire building complex including car parking area shown in the cellar, ground floor and upper ground floor. The Advocate Commissioners report shows that in the parking lot construction material is still lying in an incomplete stage and that the electricity room is not completed. The opposite parties are directed to complete the works in the common areas in all respects and to remove the construction material which is still lying in the in-complete stage and complete the sub-cellar in all respects.
Now we address ourselves to the issue whether the opposite parties are liable to pay Rs.15,000/- per month for alternative accommodation for delay in the delivery of the possession. It is a case of the complainants that opposite parties have agreed to complete development work within 24 months with six months grace period. Opposite parties have agreed to pay Rs.15,000/- to the complainants as alternative accommodation till 40% of the share is allotted together with compensation of RS.10,000/- to the complainants in the delayed period. We observe from clause 15 of the Agreement dated 8.3.2002 that:
If the party of the second part fails to complete the project and handover 40% of the built up area inclusive of common areas within 30 months from the date of handing over the possession of Schedule-A property to the parties of the first part, including the grace period of 6 months, the party of the second party shall pay an amount of Rs.10,000/- (Rupees Ten thousand only) per month, towards compensation for the delayed period over and above the period mentioned in clause (4) herein above to the parties of the first part till the date of completion of construction and handing over possession of 40% of built up area, inclusive of common areas and parking area.
This above clause clearly indicates that the first party (complainant) has to hand over the entire schedule-A property to the oppose party and then only the period will start for completion of the building in 30 months.
It is an admitted fact that opposite parties paid Rs.15,000/- per month from March 2002 till June 2005 for alternative accommodation. It is the contention of the complainants that this possession was given belatedly and with incomplete works. While it is the case of the complainants that there were incomplete works left which is supported by the Commissioners report that part of the work is still pending in Flat Nos.304, 306, 605, 702 and also in the parking lot in the sub cellar. Opposite parties submitted that they handed over the entire possession to the complainants. The contention of the opposite parties that the time period begins from November 2003 and not from March 2002 as building permit sanction plan from the concerned municipal authorizes came only in November 2003 he has to deliver possession only on or before April 2006, is unsustainable on the ground that this plea was not taken by them I the memorandum of understanding in ex.A6 that there was no permission from the municipal authorities and that 30 months shall begum from the date of permission of the MCH. This clause has not been included in the agreement and therefore the opposite parties are bound by the terms and conditions of the agreement.
Clauses 4 and 15 of the agreement dated 8.3.2002 Ex.A2 states as follows:
Clause 4:
Party of the Second Part has agreed to complete the development work within 24 months with 6 months grace period from this date.
Clause 15: If the party of the second part fails to complete the project and handover 40% of the built up area inclusive of common areas within 30 months from the date of handing over the possession of Schedule-A property to the parties of the first part, including the grace period of 6 months, the party of the second party shall pay an amount of Rs.10,000/- (Rupees Ten thousand only) per month, towards compensation for the delayed period over and above the period mentioned in clause (4) herein above to the parties of the first part till the date of completion of construction and handing over possession of 40% of built up area, inclusive of common areas and parking area.
Therefore we find force in the contention of the complainants that the opposite parties have to pay Rs.10,000/- per month from August 2005 to 31.3.2006 and also pay Rs.15,000/- per month from July 2005 till March 2006. The prayer of the complainants that the opposite parties have to pay even future expenses is being disallowed since they themselves say that the possession was handed over in 31.3.2006 though with incomplete works. We are of the considered view that the future compensation and alternative accommodation cannot be allowed.
Both the parties are directed to cooperate to comply with clause 6 of MoU dated 6.11.2004 with respect of allocation of the space of car parking area.
Opposite parties are directed to allocate and clearly demarcate the area to the complainants.
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.
Now we address ourselves to the directions sought by the complainant to the opposite parties for handing over occupancy certificate form MCH as well as the NOC from Fire Service Department as required under law. Opposite parties are directed to provide fire safety measures and obtain NOC from Fire Service Department within 3 months from the date of receipt of the order and also obtain Occupancy Certificate from the competent authority.
Lastly, we address ourselves to the directions sought by the complainants to the opposite parties to pay an amount of RS.19,12,000/- which was received by them from the erstwhile cheques in pursuance of the sale of the shops together with interest and to adjust this amount to the deposit amount of the oppose parties lying with the complainants. With respect to recovery of these amounts we are of the considered view that the complainants ought to approach civil court and jurisdiction of this Commission is restricted only to the aspects of deficiency of service and compensation, if any, to be awarded.
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 in the car parking area and clearly demarcate the car parking area as per clauses 5 & 6 of the MoU dated 6.11.2005 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/- from August 2005 to March 2006 within six weeks from the date of receipt of this order. We further direct opposite parties to hand over the complainants share in 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 being given 3 months time from the date of receipt of this order. However, the other directions sought by the complainants for recovery of money and adjustment of deposits, we direct the complainants to approach civil court.
PRESIDENT LADY MEMBER 30.12.2008 APPENDIX OF EVIDENCE WITNESSES EXAMINED NIL EXHIBITS MARKED For the complainants Ex.A1 Development agreement-cum-GPA dated 1.5.2000 Ex.A2 Development Agreement dated 8.3.3002 Ex.A3 Memorandum of Understanding dated 24.10.2003 Ex.A4 Legal notice sent by Mr.M.A.Gaffar, Advocate dated 9.1.2003.
Ex.A5 Permit dated 23.10.2003 issued by MCH Ex.A6 Memorandum of Understanding dated 6.11.2004 Ex.A7 Letter addressed by the HMWS & SB to the opposite party no.1 Ex.A8 Legal notice dated 14.11.2005 got issued by the complainants to the opposite parties.
Ex.A9 Reply notice issued by opposite party no.2 to the Advocate of the complainants.
Ex.A10 Reply notice got issued by the complainants to the opposite parties.
Ex.A11 P Postal acknowledgement For opposite parties Ex.B1 Confirmation dated 23.7.2005 Ex.B2 Letter dated 23.07.2005 issued by complainants.
Ex.B3 Statement of Construction.
Ex.B4 Statement of Total Construction Area of the building on site.
Ex.B5 Statement of 6th & 7th Floor constructed area Ex.B6 Alternative accommodation rent paid details Ex.B7 Description of electrical contract works and fire safety works with the amounts receivable.
Ex.B8 Letter dated 25.2.2007 addressed to the complainants Ex.B9 Copies of postal acknowledgements Ex.B10, B12 B14 and B16 Copies of similar letters of dated 25.2.2007 sent to the other complainants.
Exs.B11, B13, B15 and B17 postal acknowledgements of the same.
Ex.B18 Tax due details of the year 2007 and 2008 of GHMC Exs.B19 to B31 Tax due details of the year 2007-08 of all the complainants for Dr.No.8-3-940/105.
Ex.B32 Letter addressed to the opposite parties dated 20.9.2007 by Andrew & Sons Company PRESIDENT LADY MEMBER