State Consumer Disputes Redressal Commission
1.1.Dr.R.Sudhakar Rao, S/O.Late ... vs 1..M/S. Sri Venkatesh Constructions, ... on 17 December, 2012
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD. C.C.No.119/2010 Between: 1.Dr.R.Sudhakar Rao, S/o.Late R.Chakradhar Rao, Age 58 years, R/o.Flat No.201,Highness Residency, Himayathnagar, Road no.7, Hyderabad. 2. Ranga Veera Nanda Kishore, S/o.R.Sudhakar Rao, 31 years, Employee in World Bank, Chennai. Complainants 2nd complainant was added as per the order in I.A.No.1745/2011 dt. 15.11.2011. And 1.M/s. Sri Venkatesh Constructions, rep. by its Partner Sri Ramkishore Baldawa, S/o.Sri Bankatlal Baldawa, Aged 53 years, Occ:Business, having its office at unit no.3, 1st floor, Raghav Ratna Tower, Chiragali Lane, Abids, Hyderabad. 2. Ramkishore Baldawa, S/o.Sri Bankatlal Baldawa, Aged 53 years, Occ:Business, having its office at Unit no.3, 1st floor, Ragav Ratna Tower, Chiragali Lane, Abids, Hyderabad. 3.Naman Baldawa, S/o.Ramkishore Baldawa, Aged: 30 years, Occ: Business, having its office at Unit no.3, 1st floor, Ragav Ratna Tower, Chiragali Lane, Abids, Hyderabad. 4. Nameeth Baldawa, S/o.Ramkishore Baldawa, Aged 26 years, Occ: Business, having its office at unit no.3, 1st floor, Ragav Ratna Tower, Chiragali Lane, Abids, Hyderabad. Opposite parties Counsel for the complainant : Mr. G.Srinivasa Rao Counsel for the opp.parties : M/s. Damodar Mundra Associates QUORUM: THE HONBLE JUSTICE SRI D.APPA RAO, PRESIDENT, SMT.M.SHREESHA, HONBLE MEMBER
AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
MONDAY, THE SEVENTEENTH DAY OF DECEMBER, TWO THOUSAND TWELVE.
Oral Order : (Per Sri S.Bhujanga Rao, Honble Member).
*** The complainants filed the complaint under Section 17 (1)(a)(i) of the Consumer Protection Act,1986 seeking direction to the opposite parties to pay to the complainants as follows:
a). Rs.9,88,000/-
towards excess amount collected from the complainant @ Rs.500/- on the total area of 1976 sq.fts.
b).
Rs.1,47,044/-, the amount collected under the guise of service tax which is not at all payable.
c).
Rs.4,36,800/-, the value of common area which is loaded excess than construction i.e. for 156 sq.fts @ Rs.2800/- .
d).
Rs.8,97,000/-
the value of the land for which the complainants are entitled and the same is not included in the undivided land mentioned in the sale deed (short fall) to an extent of 26 sq.yds. @ Rs.34,500/- per sq.yd.
e).
Rs.10,00,000/-
the construction cost for the unfinished items incurred by the complainants.
f).
Rs.3,00,000/-
towards compensation on account of inconvenience and for mental agony due to the deficiency in service by the opposite parties.
g).
a sum of Rs.50,000/- towards cost of the complaint Opposite party No.1, the partnership firm, entered into a contract of construction with the land lords Smt. Nikkath Parveen and five others, under G.P.A. cum Development Agreement dt. 21.6.2004 bearing document no.1758/04 and by virtue of this, the opposite party no.1 offered the property for sale. The complainant no.1 has entered into a contract with the opposite party no.1 for purchase of flat no.201, at door no.3-6-527, in Highness Residency, Road No.7, Himayathnagar, Hyderabad admeasuring 1976 sq,fts, @ Rs.2800/- per sq.ft. The complainant no.1 paid an advance of Rs.50,116/- on 24.6.2006 as against the total sale consideration of Rs.55,32,800/- and entered into an agreement with opposite party no.1 firm. The cost of the other amenities described in the agreement is Rs.5 lakhs.
Thus the total cost of the flat is Rs.60,32,800/-.
The second opposite party represented that the municipal authorities have accorded the permission for construction of multi storied building and he promised that the construction would be carried out as per the specifications and design explained in the development agreement and as per permit. The time for completion of the construction work is two years as per the Development Agreement, but the construction was totally delayed for the reasons attributable to the opposite parties alone. On number of occasions, the complainant no.1 approached opposite party no.2 and demanded for completion of the construction work and handover the flat. The complainant no.1, all the time, waited believing the representations of the opposite party that the construction work would be completed within a short time. Finally, the complainant no.1 insisted the opposite parties to complete the construction work and handover the property. But opposite parties 1 and 2 have miserably failed to perform their obligation in accordance with the agreement.
The further case of the complainants is that complainant no.1 has paid an amount of Rs.40,50,116/- by April, 2008, by that time, even 50% of the work was not attended by the opposite parties. Later, the entire construction work was stopped by the opposite parties and the reasons for stopping the construction work was not disclosed to the complainants. As there is no other alternative and as major portion of the amount was already paid, the complainant no.1 had attended the remaining 50% of pending works by spending an amount of Rs.10 lakhs. It was the obligation of the developer to complete the said works. The complainant no.1 suffered a lot, both financially and mentally, by spending huge amounts more than Rs.10 lakhs, for completion of the unfinished portion of the construction work.
Opposite parties have started blackmailing the complainant no.1 by demanding more money. Opposite party no.2 demanded the complainant no.1 to enhance the rate for sq.ft. from Rs.2800/- to Rs.3,300/- and started demanding the complainant no.1 to pay more amount for getting the plan regularized. As the complainant no.1 has paid an amount of Rs.40,50,000/- to the opposite parties and has spent more than Rs.10 lakhs for completing the unfinished works, he refused to pay the amounts demanded by opposite party no.2. The complainant no.1 was dragged to helpless situation, since the complainant no.1 did not obtain any sale deed and the agreement of sale was not even reduced to writing by that date and all the amounts were paid.
Thereby, opposite parties 2 to 4 have coerced the complainant no.1 and obtained number of cheques. Under coercion, the complainant no.1 issued the cheques bearing nos.569383 dt.7.1.2009 and 569382 dt.
12.1.2009 for Rs.5 lakhs each styling as if drawn for self, infact, the opposite party no.4 and their staff have encashed the amounts covered under the said cheques.
Opposite party no.2 again demanded the complainant no.1 to issue cheques for Rs.6,85,000/- in the name of his son i.e. opposite party no.3 and collected the cheques bearing nos.244769 and 244770 for Rs.4 lakhs and Rs.2,85,000/- respectively, drawn on HDFC bank, favouring opposite party no.3 from complainant no.1, at the time of permitting the first complainant for attending the said referred unfinished works towards the security and he promised that the cheques would be returned soonafter the sale deed is registered. But the opposite party no.2 failed to return those two cheques, inspite of repeated demands. Opposite party no.2 also obtained the signatures of complainant no.1 on number of white papers, stating that he needs the same for the purpose of income tax.
Under the circumstances explained supra, the complainant no.1 was forced to follow the dictations of opposite party no.2. Opposite party no.2 coerced the complainant no.1 in obtaining the cheques and signatures on white papers. The further case of the complainants is that opposite party no.2 further demanded Rs.20 lakhs by giving pressure. As the complainant no.1 was in solitary confinement and due to mental pressure by obtaining a loan, made the payment of Rs.20 lakhs towards sale consideration and got the sale deed executed in the name of his son R.V.Nanda Kishore, the complainant no.2 herein, as the funding agency (HDFC Bank) have insisted the complainant no.1 to get the sale deed executed in his sons name as he is having repaying sources for making monthly EMI, then only the required loan can be sanctioned. But the opposite parties have failed to return the cheques bearing nos. 244769 & 244770 for Rs.4 lakhs and Rs.2,85,000/- respectively drawn on HDFC bank favouring opposite party no.3. Opposite party no.2 represented that two cheques were misplaced and that they will return the same soonafter they were traced.
The further case of the complainants is that the quality of construction work is very poor and not in accordance with the specifications mentioned in the Development Agreement and not as per the building permission. Opposite party no.2 has collected Rs.9,88,000/- excess amount than the agreed amount by enhancing the rate per sq.ft. from Rs.2,800/- to Rs.3,300/- .
The further case of the complainants is that opposite party no.2 has collected Rs.1,47,044/- under the guise of Service Tax which is not at all payable, from the complainants and withholding the same till now, without refunding to the complainants till date.
The same shall be refunded to the complainants with interest @ 24% p.a. The common areas, which is loaded on the complainants, is 18% and collected the amount of rate accordingly, but the common area, which is constructed and left for by the opposite parties, is only 10%, the opposite parties have levied and collected an amount of Rs.7,14,000/- towards excess common area from the complainants . The same shall be refunded to the complainants.
The undivided and unspecified share of land out of total extent of the complainant shall be 76 sq.yards as per the prorate of the construction, but the opposite parties have allotted 50 sq.yards of undivided land in the total land and executed the Sale Deed. There is a shortfall of undivided share of land to an extent of 26 sq.yds. The opposite parties are liable to refund the amount @ Rs.34,500/- per sq.yard on the shortfall area, as such, the amount refundable is Rs.8,99,600/- .
The complainants are also entitled for refund of Rs.10 lakhs, which was spent by complainant no.1, on unfinished items and the opposite parties have agreed for refund of the same vide agreement dt. 26.11.2008.
The complainant no.1, on number of occasions, called upon opposite parties 1 and 2 to rectify the defects, but they did not respond positively. The complainant alone attended the defects by spending an amount of Rs.3 lakhs for rectification of defects.
The further case of the complainants is that complainant no.1 demanded in their notice dt.18.3.2010 and through his earlier letters asking the opposite parties 1 and 2 to comply with the obligations, but the opposite parties failed to do. Even till the date of complaint, the construction work was not completed in accordance with the contract agreement. The entire construction activity was stopped for more than three years, by the opposite parties, without notifying the reasons for such delay, to the complainants.
Thus there is deficiency in service on the part of the opposite parties, which caused much damage to the complainants, which shall be compensated under law. Hence the complaint.
Resisting the complaint, the opposite parties filed written version. While denying the fact that the complainant no.1 has purchased the property from the opposite party in the name of his son, the opposite parties contended that infact, the son of the complainant purchased the property from the opposite parties, under registered sale deed bearing no.1431/2009 dt.17.6.2009. The complainant no.1 is not a purchaser, as such, has no locus standi to file the complaint. The opposite parties further contended that the complainant no.2 entered into contract with them, but not the complainant no.1. The complainant no.1 has not entered into any contract with opposite parties, as such, the question of alleged terms of contract are false and imaginary.
The opposite parties contended that whatever amount received by the opposite parties, was received through cheques and pay orders only and the same is reflected in the sale deed bearing document no.1431/2009 Dt.17.6.2009 as well as the agreement of sale dt.26.11.2008 filed by the complainant. At no point of time, the opposite party no.1 received any amount in cash, from the complainant or from his son.
While admitting, that the construction work is to be completed in two years as per the development agreement, the opposite parties contended that the construction was totally delayed is not the subject matter of the complaint before this Commission. Infact, the development agreement was between the builder and the owner and the complainants have nothing to do with the same.
The opp.parties further contended that in the agreement of sale dt.26.11.2008 it was categorically mentioned that the flat is already at the finishing stage and thereafter the sale deed was also executed in favour of the complainant no.2 long back and the complaint is filed after more than one year from the date of registered sale deed. At no point of time, there was any complaint by the purchasers of the flat questioning the delay in construction of the flat. But for the first time, the complainants before this Commission are making all such false allegations.
While denying the allegations that the complainant no.1 had attended the remaining 50% of the work by spending amount of Rs.10 lakhs for flooring, cement, plastering and other works, the opposite parties contended that the complainant no.1 has not given any details of expenditure incurred by him, apart from that, the sale deed executed in favour of the complainant no.2 clearly discloses that complete finished flat was handed over to the purchaser, as such, the question of finishing work by the complainant no.1 by incurring huge amount of Rs.10 lakhs cannot be believed under any circumstances.
Agreement entered into between the parties, particularly the complainant no.2 and opposite party no.1 clearly shows the valuable consideration of Rs.34,00,116/- and any further amount alleged to be paid by the complainant no.1 to the opposite party is not at all true and correct. As the complainant no.1 himself has not purchased the flat, the question of his payment does not arise. The complainant no.1 in collusion with his son complainant no.2 is now claiming that the amount was paid by him, though the amount was paid in the name of the complainant no.2. Further, once the transaction between the complainant no.2 and opposite party is already concluded, in view of the execution of the sale deed, the complainants have no right to claim any amount afterwards. The opposite parties denied the allegation that opposite party no.2 demanded the complainant no.1 to issue cheques on 7.1.2009 and 12.1.2009 for Rs.5 lakhs each and further that the said cheques were issued under coercion and contended that the cheques as alleged in the complaint were issued as if they are drawn self. However, a false story is created stating that it was drawn by the staff of the opposite party .
The opposite parties denied the allegation that the opposite party no.2 deposited two cheques in the account of the complainant for a sum of Rs.4 lakhs and Rs.2,85,000/- respectively on 10.6.2009 and contended that infact the complainant no.1 himself obtained hand loan of Rs.6,85,000/- from the opposite party no.3 and also executed a promissory note for the said sum and thereafter issued post dated cheques towards the discharge of the said liability and since the said amount was not paid and the cheques were dishonoured, the opposite party no.3 issued a legal notice u/s.138 of N.I.Act calling upon the complainant to pay the amount, failing which, the criminal complaint will be filed against him and thereafter as a counter blast, the present complaint is filed before this Commission in order to harass the opposite party no.3 and to see that opposite party no.3 shall not take any steps u/s.138 of N.I.Act against complainant no.1. The allegation that the said cheques were deposited on the ground that the opposite party is having cash balance excess is nothing but a created story. The opposite party has neither deposited the said cheques in the account of the complainant nor requested him to pay the cash. But the fact remained that the said amount was given as a hand loan to the complainant no.1 as the complainant no.1 required the said sum to assist his son financially for the purpose of registration expenses and other requirements. Opp.party no.3, in good faith believing the complainant no.1, gave hand loan and the complainant no.1 being a doctor himself executed a promissory note, accepting and acknowledged the liability at the time of receipt of the said amount. The cheques for Rs.6,85,000/- were infact issued by the complainant no.1 towards the discharge of the hand loan obtained by him in writing and the document of which is already filed before the criminal proceedings initiated against complainant no.1 herein. Therefore, the allegations that complainant no.1 issued cheques for Rs.6,85,000/- in favour of the opposite party is false and baseless. The allegation that the opposite party no.3 did not return the cheques and further that they have obtained signatures of the complainant no.1 on white papers saying that they need the amount for the purpose of income tax is all a created story to avoid the liability of the above said amount of Rs.6,85,000/- .
The opposite parties further contended, that the complainant no.2 himself got the sale deed registered in his favour on 17.6.2009 and at the time of execution of registered sale deed, he has paid the amount of balance sale consideration of Rs.20 lakhs through bankers cheque, drawn on HDFC Bank. The contra allegation in the complaint is denied as false and baseless.
The other allegation with regard to the quality of construction and with regard to finishing of the flat is only the subject matter between the complainant no.2 and opposite party and complainant no.1 has nothing to do with the same. The opposite parties further contended that the opposite party has not collected any excess amount much less Rs.9,88,000/- as alleged by the complainant. The other amount of Rs.1,47,044/- alleged to have been collected by the opposite party on the guise of service tax is also not correct, infact the said amount was collected towards the extra work done by the opposite party no.1 on the request of the purchaser of the flat.
With regard to the common area, the opposite parties contended that the undivided share of land as claimed by the complainant as 76 sq.yards is also without any basis.
Infact, whatever the area left after road widening leaving southern side road and remaining area was divided among the total flats including the commercial area and it is not the case that the opposite party has taken any land area from the total area. Whatever the land available was divided on the units available in the apartment.
The opposite party has already executed the sale deed in respect of the 1976 sq.ft. of flat including common area which is around 18% of the total area. The opposite party has not reduced the undivided share of land as alleged by the complainant. The complaint is therefore liable to be dismissed with costs to these opposite parties.
Subsequently, the complainant no.2 filed an application in C.C.I.A.No.1745/2011 seeking to implead himself as complainant no.2 in the complaint, on 17.8.2011 and the petition was allowed on 15.11.2011 and the son of the complainant no.1 was impleaded as complainant no.2 in the proceedings. Thereafter, the opposite parties filed an additional written version contending that the complainant no.2 purchased property on 17.6.2009 and from the date of purchase of the property till the date of even filing of impleadment petition, no question was raised by the complainants, at any point of time and that the impleadment petition was filed beyond two years from the date of sale deed, as such, the present complaint is barred by limitation and liable to be dismissed on this ground alone. When the complaint is barred by limitation, the relief as prayed is liable to be rejected. The complainant no.1 is not competent to file the present complaint, in view of the fact that he is not a consumer as defined under the Act. Apart from that, the complainant no.2 having satisfied with all the aspects, took possession of the property under registered sale deed in the month of June, 2008, it is deemed as contract is concluded and once the contract is concluded, the complainant no.2 has even otherwise no right to go beyond the concluded contract. The complaint is therefore liable to be dismissed with costs.
During the course of enquiry, in order to prove their case, both the complainants filed evidence affidavits and got marked Exs.A1 to A33. On behalf of opposite parties, opposite party no.2 filed evidence affidavit and got marked Exs.B1 to B6 We heard counsel for both parties and perused the entire material on record, including the written arguments filed by both sides.
Now the points that arise for consideration are:
1).
Whether the complainant no.1 is not a proper and necessary party to the proceedings in question?
2).
Whether the complaint is barred by limitation as contended by the opposite parties?
3).
Whether there is any deficiency in service on the part of the opp.parties?
4).
To what relief?
Point no.1 It is an admitted fact that the opposite party no.1 firm represented by its Managing Partner opposite party no.2 and as a GPA holder of land owners has executed an Agreement of Sale dt. 26.11.2008 vide Ex.A7 (Ex.A20) in favour of the complainant no.2 agreeing to sell the flat no.201 at door no.3-6-527 in Highness Residency, Road No.7, Himayathnagar, Hyderabad (subject flat). It is also an admitted fact that in pursuance of the said Agreement of Sale, the same vendors executed the original of Ex.A11 Sale Deed dt.
17.6.2009 in favour of the complainant no.2.
The contention of the complainants is that the complainant no.1 being the father of complainant no.2 purchased the subject flat from opposite parties and obtained the above said agreement of sale and sale deed in favour of his son, the complainant no.2, as the funding agency, HDFC Bank, has insisted the complainant no.1, to get the sale deed executed in his sons name, as he is having repaying sources, for making payment of monthly EMIs, then only the required loan will be sanctioned. As stated above, the opposite parties admitted execution of the above said agreement of sale and sale deed in favour of the second complainant but contended that the complainant no.1 is not a purchaser, as such, he has no locus standi to file the complaint in view of the fact that he is not a consumer as defined under the Consumer Protection Act, as the complainant no.2 entered into contract with them, but not the complainant no.1.
Complainant no.2 has admitted that his father complainant no.1 purchased the subject flat in his name and that his father paid the entire sale consideration to the opposite parties.
It is the case of the complainants that complainant no.1, from the beginning looking after the sale transactions with opposite parties and paying amounts. Infact, the opposite parties have admitted in their written version as well as in the evidence affidavit that the complainant no.1 used to represent complainant no.2 being his father. In view of the definition of consumer as provided under Section 2(1)(d), the consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods. According to the complainants, both of them are in possession of the subject flat and it is not their case that the complainant no.2 alone is in possession of the subject flat. Being the user of the subject flat, along with complainant no.2, complainant no.1 falls under the definition of consumer under Consumer Protection Act. The letters addressed by the complainant no.1 to the opposite party are placed on record. Infact, Ex.A17 reply notice was got issued by the opposite parties to the letters addressed by the complainant no.1. From the evidence placed on record it is evident that there was correspondence between the complainant no.1 and opposite parties since the beginning of the sale transaction. It is true, that the original complaint was filed by the complainant no.1 alone, but subsequently the complainant no.2 was got impleaded and both of them are prosecuting the complaint together. Further, in Ex.A17 the reply notice got issued by the opposite parties to the Exs.A15 & A16 letters addressed by the complainant no.1 to opposite party no.1, the opposite parties have not disputed the status of the complainant no.1. Under these circumstances, we are not inclined to accept the contentions of the opposite parties that the complainant no.1 has no locus standi to file the complaint that the complainant is not a consumer within the meaning of the Consumer Protection Act and that the complaint is not maintainable under law.
Point No.2:
The contention of the opposite parties is that Implead Petition was filed by the complainant no.2 beyond two years from the date of the sale deed, as such, the present complaint is barred by limitation and is liable to be dismissed on this ground alone.
As stated above, originally the complainant no.1 filed the complaint on 27.12.2010. Ex.A11 Agreement of Sale is dt.17.6.2009. The original complaint is therefore filed well within the limitation as provided under Section 24-A of the Consumer Protection Act. All pleas have been taken in the original complaint and the same pleas have been adopted by the complainant no.2 also, after he was impleaded as complainant no.2 as per the orders dt.15.11.2011 in CCIA.1745/2011 which was filed on 17.8.2011. No new plea has been taken after the complainant no.2 came on record. Under these circumstances, we are of the view that the complaint is not barred by limitation.
Point No.3:
As contended by the complainants, the time for the completion of the construction work is two years as per the Development Agreement vide Ex.A1 entered into between the owners of the property and the builders opposite parties 1 and 2 herein and another. On the other hand, the contention of the opposite parties is that the construction work is totally delayed is not the subject matter of the present complaint and that the development agreement was between the builder and the owners and that the complainants have nothing to do with the same. It is an admitted fact that there was an oral agreement between the complainant no.2 and opposite parties prior to the date of Ex.A7 agreement of sale. The opposite parties did not deny the fact that within two years the construction work to be completed and that there was delay in completion of construction work. The evidence on record also established the said facts.
At page 5, para 4 of Agreement of Sale, it is categorically mentioned that the purchaser, at his cost, did flooring including polishing, colouring and all other works, which is under obligation for developer and as such, the developer shall deduct the said amount from the said cost from the balance sale consideration. Though the second opposite party represented that the municipal authorities have accorded permission for construction of multi storied building and that he promised that the construction would certainly be carried out as per the specifications and the design explained in the Development Agreement and as per the MCH permission. From the above admitted facts, it is evident that there is deficiency in service on the part of the opposite parties 1 and 2 regarding completion of construction and delivery of possession of the flat purchased in the name of complainant no.2.
It is the case of the complainants that the first complainant on number of occasions addressed letters to opposite party no.2 to comply with the demand and to fulfill their obligations. Exs.A13, A14 and A15 letters are some of such letters. Ex.A17 is the reply notice dt.5.1.2010 got issued by the opposite party to the complainant no.1. Complainant no.1 responded to Ex.A17 by giving Ex.A18 reply notice dt.18.3.2010. The complainant no.1, categorically demanded, in their Ex.A18 notice and their earlier letters asking the opposite parties 1 and 2, to comply with the obligations.
Now coming to the claims of the complainants made in the complaint, under claim (a), the complainants claimed a sum of Rs.9,88,000/- towards excess amount collected from the complainant @ Rs.500/- per sq.ft. on the total area of 1976 sq.ft. Except the interested averments in the complaint, evidence affidavit and additional evidence affidavit filed by the complainants, the complainants have not adduced any cogent evidence to prove that the opposite parties have demanded the complainant no.1 to enhance the rate of the sq. ft. from Rs.2800 to 3300 or @ 500/- on the total area of 1976 sq.ft. and collected alleged amount from the complainants as alleged in the complaint and claimed in the prayer portion of the complaint. Therefore, it is only a mere allegation without any evidence and even agreement of sale was entered between the complainant no.2 and opposite parties on 26.11.2008 wherein the value is clearly mentioned and later the sale deed was also executed in pursuance of the agreement of sale. Therefore, the complainants failed to prove that the opposite parties have collected Rs.9,88,000/- towards excess amount of sale consideration. The complainants are therefore not entitled to the amount of Rs.9,88,000/-.
Under claim no.(b) of the prayer portion of the complaint, the complainants claimed refund of sum of Rs.1,47,044/- the amount collected under the guise of service tax, which is not at all payable by the complainants. In support of this claim, the complainants filed Ex.A16 letter and Ex.A19 copy of G.O. issued by Government of India, Ministry of Finance Dept. of Revenue Central Board of Excise and Customs, New Delhi dt.29.1.2001. As seen from Ex.A19 the purchasers of the residential flats are not liable to pay service tax to the Government. But the contractor, Designer or similar service persons are liable to pay the service tax.
Now it is to be seen whether the opposite parties have collected any service tax as contended by the complainant.
The complainants have not filed any receipt, to show that the opposite parties 1 and 2 have collected service tax from the complainants. However, in Ex.A18 reply notice got issued by the complainant no.1 to Ex.A17 got issued by the opposite parties at para 9, the complainant no.1 categorically stated that the opposite parties have collected an amount of Rs.1,47,044/- by way of cheque bearing no.151018 drawn on ICICI Bank favouring Venkatesh Constructions i.e. opposite party no.1, from the complainant no.1, under the guise of service tax and that no service tax shall be paid on the sale transaction, pertaining to dwelling house as per law in force and hence the question of providing any receipt by the opposite parties to the complainant no.1 does not arise and demanded the opposite parties to refund the amount collected by them towards service tax to the complainant no.1. The opposite parties have not denied this statement of the complainant no.1 either in their written version or in the evidence affidavits filed on behalf of the opposite parties.
In Ex.A17 reply notice got issued by the opposite parties to the complainant no.1, at page 3, it is mentioned as follows:
while so, that you have not mentioned anything in your earlier letter but for the first time on 22.10.09 you again raised a dispute of service tax. Infact, whatever amount of service tax collected by my client that is to be payable to the Government Department but not to be kept with my client and my client is under obligation to provide you receipt after making payment to the concerned department. Infact, it is the liability of my client to pay the said amount after collection from all the prospective purchasers.
From the above contents of Ex.A17, reply notice it is clear that opposite parties have admitted the collection of the service tax from the complainants and other purchasers of the flat. At page 7 and end of para 14 of written version filed by the opp.parties, the opposite parties have admitted collection of amount of Rs.1,47,044/- from the complainant, but contended that the said amount was collected towards the extra work done by opposite party no.1, on the request of purchaser of the flat. Except bald statement in written version, opposite parties have not adduced any evidence in proof of their above contention. The burden is on them to prove that the amount of Rs.1,47,044/- collected by them by way of cheque bearing no.15108 drawn on ICICI Bank from the complainants was not towards the service tax and it was collected towards the extra work done by the opposite party no.1. The opposite parties have not filed any documents in proof of their contention discharging the said burden. In view of the above facts and circumstances, it is established that the opposite parties have collected Rs.1,47,044/- from the complainants towards service tax.
As seen from Ex.A19 G.O., no service tax shall be paid on the sale transaction pertaining to dwelling house.
It is an undisputed fact that the complainants purchased the subject flat for their residential purpose. Under these circumstances, we have no hesitation to hold that the opposite parties 1 and 2 are liable to refund the amount of Rs.1,47,044/- which was collected by them from the complainant no.1 by way of cheque bearing no.151018 drawn on ICICI Bank.
Under the claim c the complainants claimed payment of Rs.4,36,800/- towards the value of the common area which loaded excess than construction i.e. for 156 sq.fts @ Rs.2800/- per sq.yard. Under the claim d the complainants claimed a sum of Rs.8,97,000/- towards the value of the land for which the complainant is entitled and the same is not included in the undivided land mentioned in the sale deed (shortfall ) to an extent of 26 sq.yards @ Rs.34,500/- per sq.yard totaling to Rs.8,97,000/- .
In the written arguments, the complainants have submitted that the common area which is loaded on the complainants is 18% and collected the rate of amount accordingly, but the common area, which is constructed and left for, by the opposite parties is only 10%.
The opposite parties have levied and collected an amount of Rs.7,14,000/-, towards excess common area, from the complainants . The same shall be refunded to the complainants. The complainants further submitted that undivided and unspecified share of the land out of the total extent of the complainants shall be 76 sq.yards as per the prorate of construction, but the opposite parties have allotted 50 sq.yards of the undivided land in the total land and executed the sale deed.
Thus, there is shortfall of undivided share of land to an extent of 26 sq.yards. The opposite parties are liable to refund the amount @ Rs.34500/-
per sq.yard (Govt. rate ) on the shortfall area, as such the amount refundable is Rs.8,99,600/-.
The opposite parties have denied the above two claims of the complainants as totally illogical and without any basis. They have also denied the above submissions of the complainants.
As seen from Ex.A7 and A20 the copies of Agreement of Sale dt. 26.11.2008 between the complainant no.2 and the opposite parties, for the sale of flat no.201, Second floor and plinth area admeasuring 1976 sq.ft. with undivided share of land admeasuring 50 sq.yards, out of total admeasuring land of 2830 sq.yards along, with car parking in the basement bearing no.32 & 33 . It is true that page no.4 of Ex.A7 is different from page no.4 of Ex.A20. Page 4 in Ex.A7 is not signed by either vendee or vendor, whereas all remaining pages in Ex.A7 and all pages in Ex.A20 bear the signature of complainant no.2. However, there is no difference regarding the measurement of the flat and area mentioned in page 4 of Ex.A7 and page 4 of Ex.A20, though there is variation regarding the total sale consideration and the part of the consideration paid and the balance of sale consideration. Therefore the discrepancy regarding the extent of the flat area and common area and undivided area mentioned in page 4 of Ex.A7 and page 4 of Ex.A20 is not relevant for the purpose of deciding these two claims which are concerned with the measurement of the flat, common area and undivided land.
Further, the complainant no.2 having entered into an agreement of sale in the year 2008 and thereafter got executed the sale deed in his name on 17.6.2009, the complainant cannot say that he was not aware of measurement of the flat. Suffice to mention here, that the complainant is bound by the terms of the agreement, which clearly states about the measurement of the flat and undivided land in recital as well as in the schedule of the property. The complainants have not filed any document to show, whether the actual measurement was taken by the complainant by an engineer or architect or else any expert informing the opposite parties with regard to the calculation of undivided share of land and the area of flat including common area and car parking. Further, once the complainant made payments towards the full sale consideration, relating to the flat, which he has taken possession, then the complainant cannot claim that there is shortage of area of the flat allotted to him.
In view of the above facts and circumstances, the complainants have failed to prove the above two claims. Therefore, the complainants are not entitled to these two claims.
Under Claim e of the complaint, the complainants have claimed Rs.10 lakhs towards construction of the unfinished items incurred by the complainant. The contention of the complainants is that they have paid Rs.40,50,116/- by April, 2008, by which time, the entire construction work was stopped by the opposite parties and the reasons for stopping the construction work was not disclosed to the complainants. As there is no other alternative and as major portion of the amount was already paid, the complainant no.1 had attended the remaining 50% of the pending works by spending an amount of Rs.10 lakhs. Therefore, the complainant is entitled to get that amount from the opposite parties.
In para 4 at page 5 of Ex.A7 it is recited That the purchaser at his cost did flooring, including polishing, colouring and all other works which is under obligation for developer and as such the Developer shall deduct the amount of the said cost from the balance sale consideration. From the above recital in Ex.A7, it is obvious that the opposite parties have admitted about not completing the construction of the flat and about the completion of the remaining works by the complainants and agreed to deduct the amount spent by the complainants for completion of the remaining construction, from the balance sale consideration at the time of execution of sale deed. Ex.A11 does not show that the amount spent by the complainants for completion of the construction was deducted from the balance sale consideration at the time of execution of registered sale deed.
Further, in the plan attached to the registered sale deed, it is mentioned that semi finished flat no.201 was sold. The contention of the opposite parties is that inadvertently, the word semi finished is mentioned in the plan attached to the registered sale deed and that the entire construction was completed even before the agreement of sale.
In order to prove that the complainants have incurred a sum of Rs.10 lakhs towards the completion of construction of unfinished flat, they have filed Exs.A21 to A29 bills. Exs.A21 to A29 bills pertaining to the cost incurred for flooring , sanitary and taps hardware , glass works, painting, electrical, doors etc. for a total sum of Rs.13,30,608/-. Almost all the bills relate to the period prior to the agreement of sale and only a few bills relate to the period subsequent to the sale deed. Ex.A30 is the letter addressed by the flat owners to the builder i.e. opposite party no.1 listing works which are kept incomplete. The opposite parties have not disputed receipt of Ex.A30 letter dt.25.6.2010 addressed by some of the flat purchasers including the complainantno.1 herein, to the opposite party no.1 i.e. the builder listing out the works, which are kept incomplete. Admittedly they did not respond to Ex.A30 letter.
From Ex.A30 letter it is obvious that even by 25.6.2010 i.e. subsequent to the date of Ex.A11 sale deed i.e. 17.6.2009 there were pending works to be completed by the opposite party no.1 builder. In view of the above facts and circumstances, we are of the view that the opposite parties are liable to refund the amount spent by the complainant prior to the agreement of sale and also after execution of the registered sale deed.
Under Claim f the complainants claimed Rs.3 lakhs towards the compensation on account of inconvenience and for mental agony due to the deficiency in service by the opposite parties and under claim g the complainants claimed a sum of Rs.50,000/- towards the costs of the complaint. Having regard to the facts and circumstances of the case and to meet the ends of justice, it is reasonable to direct the opposite parties to pay a sum of Rs.25000/- towards the compensation and Rs.5000/- towards costs of the complaint.
The complainants have alleged that the opposite parties have demanded and collected some cheques at the time of handing over the flat for attending the unfinished works towards the security, promising that the cheques would be returned soonafter the sale deed is registered, but the second opposite party failed to return those cheques inspite of repeated demands. The opposite parties have denied the same. They have taken some other pleas but no relief is sought for regarding the returning of the amount under the alleged cheques. Hence, we have not considered the contentions and counter contentions of both the parties regarding the other aspects than the aspects covered by the reliefs sought for in the complaint.
In the result, the complaint is allowed in part directing the opposite parties to pay a sum of Rs.1,47,044/- that was collected by the opposite parties under the guise of service tax and to pay sum of Rs.13,30,608/- towards the expenses incurred by the complainants for completing the unfinished works of the flat with interest at 9% p.a. from the date of Ex.A16 dt 22.10.2009 till the date of realization. The remaining claims of the complainants are dismissed.
The opposite parties are directed to pay a sum of Rs.5000/- to the complainants towards costs of the complaint. The opposite parties are directed to comply with the order within six weeks from the date of this order .
PRESIDENT MEMBER MEMBER Pm* Dt.
17.12.2012 APPENDIX OF EVIDENCE Witnesses examined For the complainants : nil For the opp.parties : nil Evidence affidavit of complainant filed Affidavit evidence of OPs filed Exhibits marked on behalf of the complainants Ex A-1 :Development agreement cum GPA Dt. 21.6.2004 Ex A-2 :Legal opinion of opp.party counsel Ex A-3 :Supplement development agreement Dt. 22.1.2006.
Ex A-4 :
Retirement deed of partnership dt.
31.1.2008 Ex A-5 :Lr. dt.14.6.2008 addressed to OP No.2 by complainant Ex A-6 :
Account details prepared by OP2 Ex A-7 :Agreement of sale dt.
26.11.08 Ex A-8: Statement showing payments made.
Ex A-9:Cheque issued by the complt. of IDBI Bank for Rs. 5 lakhs Ex A-10:Cheque issued by the complt. of IDBI Bank for Rs. 5 lakhs Ex A-11:Registered sale deed dt.
17.6.2009 Ex A-12:Proceedings of Deputy Commissioner, GHMC, dt.15.9.2009.
Ex A-13:Notice issued to OP 1 by complainant no.2 dt. 24.9.2009.
Ex A-14:Notice issued to OP 1 by complainant no.1 dt. 29.9.2009. .
Ex A-15:Notice issued to OP1 by complainant no.1 dt.
16.10.09.
Ex A-16:Notice issued to OP1 by complainant dt.
22.10.09 Ex A-17: Reply notice dt. 5.1.2010 got issued by OP1 to complt. no.1 Ex A-18:reg. reply notice dt.
18.3.2010 issued by complt. counsel to opp.party counsel Ex A-19:Circular F.No. 137/12/2006/CX.4 issued by the Ministry of Finance,Dept.of Revenue, Central Board of Excise and Customs.
Ex A-20:Agreement of sale dt.26.11.2008 Ex A-21:Bills pertaining to flooring (Material & Labour 3 Nos.) Ex A-22:Bills pertaining to (Srushti sanitary and taps, Material & Labour) Ex A-23:Bills pertaining to Misc expenses (Cement, timber/ labour ) Ex A-24:Bills pertaining to hardware Ex A-25:Bills pertaining to labour charges for tiles and fixing Ex A-26:Bills pertaining to glass works ( for windows and doors 4 Nos.) Ex A-27:Bills pertaining to painting (material and labour) Ex A-28:Bills pertaining to electrical work (Material and labour ) Ex A-29:Bills pertaining to (doors plywood, frame for doors) Ex A-30:letter to opp.party by complainants along with other flat owners.
Ex A-31:Order in writ petition No. 27397/2011 Ex A-32:Table of analysis Ex A-33:Lr. issued by complainant to Ops dt. 3.3.2012 For the opposite parties :
Ex B-1 :
Copy of Cheque along with memo Ex B-2 :
Copy of cheque along with memo Ex B-3 :
letter issued by complt to respondent No.3 Ex B-4 : Copy of legal notice dt.21.12.2010 issued O.P.No.3 to complt Ex B-5 : copy of acknowledgment Ex B-6 :Copy of complainant in CC No. 149/2011 PRESIDENT MEMBER MEMBER Pm* Dt.
17.12.2012