State Consumer Disputes Redressal Commission
M/S.Siva Sai Builders & Developers (P) ... vs Smt.T.Suvarna Hyderabad on 3 October, 2008
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD. F.A.No.1771/2007 against C.C.No.21/2007, District Consumer Forum-I, HYDERABAD. Between: M/s.Siva Sai Builders & Developers (P) Ltd., Rep. by its M.D.B.H.Lakshmi, W/o.B.H.Srinivas, O/a. 1-9-316/5, Vidyanagar, Hyderabad. ..Appellant/ Opposite party And Smt.T.Suvarna, W/o.T.Vishnu Murthy, Aged about 52 years, Occ:Housewife, R/o.H.No.3-4-856, Flat No.402, Vasantha Enclave, Barkatpura, Hyderabad. Respondent/ Complainant Counsel for the Appellant: Mr.S.Agasthya Sharma Counsel for the Respondent: Mr.T.Balreddy QUORUM: THE HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT. SMT.M.SHREESHA, MEMBER
AND SRI G.BHOOPATHI REDDY, MEMBER.
FRIDAY, THE THIRD DAY OF OCTOBER, TWO THOUSAND EIGHT Oral Order:(Per Sri G.Bhoopathi Reddy , Honble Member) *** This is an appeal filed by the Appellant/opp.party under Section 15 of the Consumer Protection Act,1986 to set aside the order of the Dist.Forum-1, Hyderabad in C.C.No.21/2007 dt. 20.9.2007 .
The case of the complainant is as follows:
The complainant booked a flat 302 in 3rd floor, admeasuring 912 sft. (including common areas) along with undivided share of land admeasuring 10 sq. yds. equivalent to 8.35 mtrs. out of total extent of schedule property-A admeasuring 371 sq. yds. or 310.15 sq. mtrs. house property bearing plot No.104/Open/2/72, House bearing No.2-2-7/5/B admeasuring 371 sq. yds. or 310.15 sq. mtrs. situated near Vidyanagar Bridge adjoining Osmania University, Adikmet, Hyderabad for a consideration of Rs.10,50,000/-. The complainant entered into an agreement of sale with opposite party on 3-8-2005 and paid an initial advance of Rs.5,00,000/- by way of cash/cheque and the same is mentioned in the agreement of sale at clause No.2 page 5 and as per the agreement, the complainant subsequently paid an amount of Rs.2,60,000/- by way of cash in spells of time i.e. Rs.50,000/- on 3-9-2005, Rs.75,000/- on 5-10-2005, Rs.75,000/- on 15-10-2005 and Rs.60,000/- on 25-11-2005 to the opposite party, who received and acknowledged payments and issued receipts for the said amounts affixing her signature on revenue stamps. The complainant submitted that she paid a total advance payment of Rs.7,60,000/- out of the total cost of the flat of Rs.10,50,000/- and has to pay the balance sale consideration of Rs.2,90,000/- at the time of registration and after taking vacant possession of the flat and is ready to pay the same. Opposite party agreed to complete the construction of the flat within 12 months from the date of agreement i.e. 3-8-2005 and the complainant represented several times to complete the flat as per the agreement but the opposite party failed to implement the agreement. Therefore the complainant got issued a legal notice to the opposite party on 31-10-2006 which was acknowledged by the opposite party . It is the case of the complainant that because of enormous increase of land cost during the last one year and with malafide intention the opp.party gave reply with concocted stories and denied the agreement of sale dated 3-8-2005. Hence the complainant approached the District Forum for a direction to the opposite party to handover/deliver vacant possession of the flat No.302 in 3rd floor admeasuring 912 sft. (including common areas) with undivided share of land admeasuring 10 sq. yds. equivalent to 08.35 Sq. mtrs. out of total extent of schedule property-A admeasuring 371 sq. yds. or 310.15 sq. mtrs. house property bearing plot No.104/Open/2/72, House bearing No.2-2-7/5/B, admeasuring 371 sq. yds. or 310.15 sq. mtrs. situated near Vidyanagar Bridge adjoining Osmania University, Adikmet, Hyderabad after completion of all works and amenities as stipulated in agreement of sale dated 3-8-2005. To further direct the opposite party to pay interest at 24% p.a. w.e.f. 4-8-2006, the date on which opposite party was supposed to deliver the possession of the flat, to pay Rs.15/- per sq.ft. per month towards damages w.e.f. 4-8-2006 together with Rs.1,00,000/- towards compensation and Rs.3,000/- towards legal expenses and other costs.
Opposite party filed counter alleging that the complainant is a money lender and doing money lending business without obtaining license from competent authority. The complainant through her husband extends loans on interest to people who approach them and that they approached the husband of the complainant for some financial assistance required for its business and availed a loan of Rs.5,00,000/- and the husband of the complainant insisted for execution of agreement of sale in flat in question as security for due repayment of loan extended by the complainant and it was only a nominal document executed at the instance of husband and son of the complainant towards security for payment of the due amount and also insisted for execution of blank promissory notes/cheques in favour of complainant. Opposite party submitted that the market value of the flat in question is around Rs.30,00,000/- and the complainant is mischievously attempting to usurp the said flat due to delay in repayment. The opposite party called upon the complainant to return the alleged agreement of sale dated 3-8-2005 and receive back amount due to her after adjusting the payments already made to the tune of Rs.1,20,000/- both in cash and by way of cheques, The complainant refused to receive the amount sought to be repaid and threatened them for specific performance of alleged agreement of sale in the notice got issued by her. The Opposite party further submitted that prior to receipt of loan from the complainant, they paid advance interest and other charges to the tune of Rs.24,000/- on 4-8-2005 by depositing the same in the joint account bearing No.3518, Andhra Bank, Himayathnagar branch, Hyderabad pertaining to the complainant and her husband and after depositing Rs.24,000/-, the complainant issued cheque to a tune of Rs.4,50,000/- towards hand loan.
After receipt of the same, opposite party paid interest @ 3% p.m and during the month of September, 2006 when the complainant demanded opposite party to pay back her loan amount, opposite party issued cheque for Rs.50,000/- in favour of son of the complainant drawn on State Bank of Hyderabad, Vidyanagar branch, Hyderabad towards part payment and the said cheque was encashed on 27-9-2006 by the complainant by depositing the same in her sons account. He further submitted that the complainant never entered into any agreement of sale in respect of flat No.302 and that the said agreement was executed only as security for repayment of loan availed by opposite party from the complainant and as such no rights of agreement holder shall accrue and also stated that the value of the said flat is more than Rs.30,00,000/- as on the date of execution of the alleged agreement of sale. Opposite party further contended that according to the complainant, they received Rs.7,60,000/- out of total sale consideration of Rs.10,50,000/- but as per the terms of agreement, clause-2 at page 5, it is stated that balance amount of Rs.5,50,000/- will be paid by the purchaser to the builder at the time of registration of fully completed schedule B property as per specifications and handing over premises to the purchaser.
Opposite party further submits that with an intention to usurp the valuable property for a petty amount, the complainant got issued a legal notice dated 31-12-2006 for specific performance of the agreement of sale dated 3-8-2005 for which they gave a suitable reply vide notice dated 14-11-2006 and in view of the aforesaid submissions, the readiness of the complainant to pay the balance sale consideration is of no consequence and the question of opposite party grossly violating the alleged agreement of sale does not arise. It is further submitted that the opposite party is a private limited company and it cannot issue receipts as alleged by the complainant for the amounts received towards sale consideration of the alleged flats and the same will be issued on a letter head of the opposite party and that they have executed promissory notes and also issued cheques to the complainant. Opposite party also submitted that the complainant and her husband did the same thing with M/s.Bhavani Constructions by advancing hand loan and obtained GPG-CUM Agreement of Sale of flat at Barkatpura and subsequently acquired the flat for a petty amount illegally. Opposite party further submitted that the complainant will not come under the meaning of consumer and that the Forum had no jurisdiction since the alleged agreement of sale is a sham and executed only as security for due payment of hand loan availed and the same is evident from the bank voucher and subsequent cheque issued by opposite party in favour of the son of the complainant and the alleged facts are purely civil in nature and the complainant is seeking specific performance of the alleged agreement of sale dated 3-8-2005.
The complainant filed Exs.A1 to A7 documents and the opp.party filed Exs.B1 to B3 documents. The District Forum based on the evidence adduced and pleadings allowed the complaint in part directing the opposite party to register the flat bearing No. 302 in 3rd floor, total area admeasuring 912 sft. (including common areas along with part of land in the house property) bearing No.2-2-7/5/B admeasuring 371 sq. yds. or 310.15 sq. mtrs. situated near Vidyanagar Bridge adjoining to Osmania University, Adikmet, Hyderabad after receipt of balance of sale consideration of Rs.2,90,000/- from the complainant and also opposite party was directed to pay interest at 18% p.a. on Rs.7,60,000/- w.e.f. 4-8-2006 the date on which opposite party was supposed to deliver flat to the complainant together with Rs.15,000/- towards punitive damages and costs of Rs.2,000/-.
Aggrieved by the said order, opposite party preferred this appeal.
The points that arise for determination are
1. Whether the dispute raised by the complainant is a consumer dispute and whether the Dist.Forum is having jurisdiction to try the complaint?
2. Whether the order passed by the Dist.Forum is sustainable.
Point no.!:The appellant/opp.party firstly contended that the nature of transaction is a money transaction and hence the dispute raised by the complainant is not a consumer dispute and as there is plea of fraud and misrepresentation the District Forum is not having jurisdiction The respondent/complainant contended that the dispute raised by her is a consumer dispute , the District Forum has elaborately discussed and given finding the said finding may be confirmed. Exs.A1 to A5 are the relevant documents which proved that the opposite party has received the amounts from the complainant.
The appellant contended that the terms and conditions of agreement of sale goes to show that the nature of the transaction between them is of civil nature and that the civil suit should not be filed before the District Forum. The submission made by the appellant is concerned we have gone through the terms and conditions of Ex.A1 agreement of sale which is executed by the opposite party in favour of the complainant dt. 3.8.2005 . As per the agreement of sale the opp.party has offered to sell the flat no.302 to the complainant in the third floor admeasuring 912 sft. including common areas along with part of land in the house property bearing municipal no.2-2-7/5/B situated at Adikment, Hyderabad. The total sale consideration amount is Rs.10,50,000/- and the complainant paid advance amount of Rs.7,60,000/-. The documentary evidence filed by the complainant goes to show that she had paid the said amount towards the sale consideration of the flat. The appellant further submits that the District Forum has not properly discussed documentary evidence filed by them i.e. Exs B1 to B3 documents. We have gone through the said documentary evidence . Ex.B1 is the bank receipt . Ex.B2 is the receipt for Rs.60,000/- and Ex.B3 is the statement of account pertains to Siva Sai builders and developers. The said documentary evidence filed by the opp.party is no way concerned with regard to the transaction pertains to the complainant for purchasing the house from the builder .The Dist.Forum has elaborately discussed the documentary evidence and given finding. The appellant submits that the agreement of sale Ex.A1 was executed only towards the security for repayment of loan availed by the opp.party from the complainant as is evidenced from Exs.B1 to B3. The appellant further submits that the money lending transaction by the complainant through her husband and son is proved through Exs.B1 and B2 which are in hand writing of the complainant . The submission made by the appellant is not sustainable. The appellant has not lead any evidence . The appellant submits that the dispute related to breach of contract and non performance of the statutory duty and it cannot be entertained by the Consumer Fora.
The submission made by the appellant is not sustainable. In support of their preposition the appellant has relied on a judgement reported in 2001 CPJ III page 432 rendered by Orissa State Commission Cuttack. The principle laid down in the said case is not applicable in our present case is concerned . The appellant has also relied on another judgement reported in (1997) III Supreme Court Cases wherein it is held that it is the discretionary power of Court to decree the specific performance . It is also held in the said case that the circumstances to be considered in exercising the discretion The principle laid down in the said case is not applicable in our present case. . In our present case is concerned there was no terms and conditions.
with regard to the invoking the jurisdiction of the Civil Court. In our present case is concerned the subsequent correspondence between the complainant and opposite party and terms and conditions incorporated in Ex.A1 goes to show that the house property was purchased by the complainant and paid the advance amount and was ready to pay the balance amount and the opposite party has not received the said balance amount nor completed the construction nor delivered possession of the flat . The dispute raised by the complainant is a consumer dispute . The appellant further submits that the complicated question of facts including money lending is involved in the dispute and it cannot be decided in summary jurisdiction. . In support of her preposition she has relied on a judgement reported in III (2001) CPJ 274 Union Territory Consumer Disputes Redressal Commission :Chandigarh in D.S.KOHLI vs.BALDEV SINGH PABLA & ANR. The principle laid down in this case is not applicable in our present case is concerned . In our present case is concerned the appellant has taken a plea with regard to the money transaction entered between the parties . To prove the said fact the appellant has not lead any evidence . The District Forum has properly appreciated the evidence on record and given finding. There are no complicated questions of fact and law involved in our present case is concerned. The appellant has relied on another judgement reported in 1 (1993) CPJ page 88 (NC) N.SHIVAJI RAO vs. M/s.DAMAN MOTOR COMPANY & ORS. In the said case State Commission declined to entertain the complaint because of complicated questions of fraud and cheating involved. The respondent contended that she has relief on a judgement State Consumer Disputes Redressal Commission, Karnataka, Bangalore reported in 1993 (I) CPR page 607 in PREM SAJANANI vs. M/s. REKHA DEVELOPERS .
In the said case the opp.party failed to deliver possession of the flat to the complainant and the State Commission that the dispute is a consumer dispute . The principle laid down in this case can be taken into consideration in our present case The dispute raised by the complainant is a consumer dispute. This point is prove in favour of the respondent against the appellant.
Point no.2 : The appellant contended that the complainant has not taken a plea in the complaint or evidence affidavit to direct the opp.party to register the flat, the Dist.
Forum passed order to register the flat hence the order passed by the Dist.Forum is not sustainable. We have gone through the pleading taken by the complainant in the complaint. The complainant has specifically pleaded in the complaint to direct the opp.party to handover and deliver the vacant possession of the flat no.302 in third floor admeasuring 912 sft. including common areas along with undivided share of land admeasuring 10 sq. yards after completion of all the works and amenities as stipulated in the agreement of sale and to pay the interest and compensation. . In the evidence affidavit filed by the complainant also the same plea was taken . There was no specific plea in the complaint or in the evidence affidavit to register the flat. The complainant issued legal notice Ex.A6 in which a plea was taken that she is ready to pay balance sale consideration to implement the agreement of sale dt.3.8.2005 and requesting to implement the agreement of sale failing which her client is constrained to proceed further according to law. For the said notice the opp.party gave reply Ex.A7. The documentary evidence filed by the complainant prove that the total sale consideration of the flat is Rs.10,50,000/- and the opp.party has received an amount of Rs.7,60,000/- and the balance amount due by the complainant is Rs.2,90,000/- . When the complainant has not asked relief for registration of flat the said relief cannot be granted by the District Forum . The complainant has only claimed relief in the complaint to hand over vacant possession of flat after completion of all works and amenities as stipulated in agreement of sale .
In the circumstance of the case is concerned the said direction of the Dist.Forum to opp.party to register the flat to the complainant is liable to be set aside.
The appeal is partly allowed . Order of the Dist.Forum with regard to direction to the opp.party to register the flat is set aside . In all other aspects order of the District Forum is confirmed. The appellant is directed to comply the order within 6 weeks from the date of this order.
PRESIDENT LADY MEMBER MALE MEMBER.
Dated .3.10.2008