State Consumer Disputes Redressal Commission
1.Mr. Neel Kamal Pasi vs M/S. Aliens Developers P. Ltd., on 13 March, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.280/2018
Between :
1.Mr.Neel Kamal Pasi
S/o.Mr.P.Rama Rao,
Aged about 35 years.
2. Mrs.P.Pramila,
W/o.Mr.P.Neel Kamal,
Aged about 33 years,
Both are R/o.D.No.402, Plot No.26,
Happy Homes, Mithilanagar,
Pragathinagar,
Hyderabad - 500 090 ... Complainants
And
M/s.Aliens Developers (P) Ltd.,
Rep. by its Managing Director &
Joint Managing Director, Mr.Hari Challa &
Mr.Venkat Prasanna Challa
O/o.Ms.Aliens Space Station, Tellapur,
Ramachandrapuram Mandal, Medak Dist,
Hyderabad -PIN - 502 032. ... Opposite party
Counsel for the Complainants : M/s.V.Appa Rao
Counsel for the Opposite Party : M/s.Raja Sripathi Rao
QUORUM: HON'BLE SRI V.V.SESHUBABU, MEMBER
& HON'BLE SMT R.S. RAJESHREE, MEMBER MONDAY, THE THIRTEENTH DAY OF MARCH TWO THOUSAND TWENTY THREE Order :
1). The complaint is filed u/s.17(1)(a)(i) of the Consumer Protection Act, 1986 & 2002 for directions to the opposite party as under:
i. To handover the flat bearing no.1220(B), Station - 12(B), on 4th floor of the complex by name Space Station - 1, comprising of super built up area of 1432 sq.ft. with one covered car parking besides undivided 2 share of land of 30.79 sq.yards out of total land of 82976.89 sq.yards in survey nos.
384, 385 and 426/A, situated at Tellapur
Village, Ramachandrapuram Mandal,
Medak Dist on completion as promised in
the agreement of sale and to provide
Occupancy Certificate;
ii. To pay Rs.5 lakhs towards compensation;
iii. To pay a sum of Rs.20,000/- per
month w.e.f. 1.7.2012 till handover of the
flat towards fair rent; and
iv. To pay Rs.50,000/- towards legal
charges of the complaint.
02). The brief averments of the complaint are that the opposite
party is a private limited company doing business in the
construction of flats etc. and it had undertaken a Development Agreement cum GPA with respective land owners for the development of land admeasuring Ac.19.26 guntas to raise residential complexes covered by Survey nos.384, 385 and 426/A at Tellapur Village in Ramachandrapuram Mandal, Medak Dist.; that the complainant agreed to purchase flat no.1220(B), Station
-12(B) on 4th floor of the complex by name Space Station -1, comprising of super built up area of 1432 sq.ft. with one covered car parking besides undivided share of land of 30.79 sq.yards for a total consideration of Rs.42,00,628/-; that the complainant paid Rs.14,37,155/- and thereby the opposite party executed a Sale Deed no.3630 of 2010 dt.26.4.2010 and promised to complete the flat by 30.6.2012 in all aspects and on failure, agreed to pay Rs.3/- per sq.ft of super built up area per month w.e.f. 1.7.2012; that the complainant visited the project in the month of June,2018 and noticed that there has been no visibility about commencement of work and the same stage is continuing since 2010; that as the opposite party not adhered to their promise, the complainants got issued legal notice dt.30.10.2018 to the opposite party for which no reply was given; hence, the complaint seeking for the reliefs as stated supra.3
03). Opposite party filed written version and brief averments of the same relevant to the facts are that, there is no deficiency in service; that the allegations made in the complaint are denied except those that are admitted; that the complainants have not approached the Commission with clean hands and never he asked for refund of money or for cancellation of the agreement, as such cannot claim deficiency in service; that the complaint is barred by time as the complainants entered into an agreement on 31.3.2010 as per which the opposite party is alleged to handover the possession under Clause VIII, but the complainants kept quiet and filed the complaint and the complaint is liable to be dismissed as it is not filed within the period of limitation as prescribe under C.P. Act; that there is a Clause in the Agreement to go for Arbitration in case of disputes, but it was not opted for;
that the complainants not paid the entire instalments as stipulated under the Agreement for which the opposite party is entitled to cancel the allotment and forfeit earnest money; that the opposite party had fought for conversion of land from agriculture to non agriculture and after formation of HUDA has to obtain permission for agriculture zone to residential and commercial zone etc., and also with regard to the projects be in conformity with the master plan, to obtain „No Objection Certificate‟ from the Fire Services Department and on several other aspects that as per Clause XIV, the opposite party cannot be found fault with for non completion of project on time "Force Majeure"; that as per Clause VIII(g) of the Agreement, the opposite party shall pay compensation charges at Rs.3/- per sq.ft. per month, in case of failure to deliver possession, and the said amount would be adjusted to the dues payable by the complainants; and that opposite party had already paid Rs.10,02,602/- to the complainants. With these pleas the opposite party prayed for dismissal of the complaint with exemplary costs.
04). The complainant no.1 filed Evidence Affidavit as PW.1. Exs.A1 to A14 are marked on behalf of the complainants. Mr.Hari Challa, Managing Director of opposite party filed evidence affidavit as DW.1. Mr.Venkat Prasanna Challa, Director of opposite party 4 filed Additional Evidence Affidavit. Exs.B1 to B21 are marked on behalf of the opposite party. Heard arguments of both sides.
05). Basing on the pleadings on both sides, the following are the points for consideration:
i. Whether there is deficiency in service
and unfair trade practice on the part of
the opposite parties?
ii. Whether the complainant is entitled for
the reliefs as prayed for?
iii. Whether the complaint is barred by time?
iv. Whether non payment of amounts by the
complainants disentitle them to claim for
possession of flat?
v. Relief?
06). Points No.I to IV:-
For the sake of convenience the parties will be addressed as they arrayed in the complaint. Under Ex.A1 agreement of sale entered by PW1 with the opposite party the property that was agreed to purchase was flat No.1220(B), station 4 on 12th B floor admeasuring super built up area of 1432 sft, with one car parking and un divided share of 30.79 sq.y for a total sum of Rs.42,00,628/- and possession shall be handed over on or before December 2011 with a grace period of six months. Ex.A2 is the registered sale deed dated 26.04.2010 for the semi finished flat executed by opposite party in favour of PW1. The document goes to show for the purchase of above flat and towards semi finished flat the value was assessed for a sum of Rs.7,30,320/- for the semi finished flat and Rs.1,50,950/- was towards cost of the land and all together Rs.8,84,2720/- was received from PW1. It is also mentioned that possession was delivered to PW1.
07) It is the argument of opposite party counsel that subsequent to Ex.A2 no development agreement for the flat in question was entered into by both parties. In such circumstances PW1 cannot fall back on Ex.A1 to claim his rights basing on the averments and clauses mentioned therein and what was the understanding 5 between both parties to EX.A2 is not known to anybody and it amounts to suppression of material facts by PW1. It is stressed that whatever may be the cause for PW1, he cannot fall back on EX.A1. There is a good amount of force in the argument of opposite party counsel, but the following aspects shall also be taken into consideration to arrive at the truth. The Ex.A2 was executed within four weeks of Ex.A1. Nothing is mentioned in Ex.A1 that it is in a semi finished state. PW1 purchased a flat in the fourth floor. In such circumstances it is difficult to imagine that within four weeks opposite party constructed four floors and sold a semi finished flat under Ex.A2. It seems the opposite party by its advantageous situation made PW1 to enter into EX.A2.
08) As per EX.A1 Rs.2,50,000/- was received from PW1 and balance amount was shown at Rs.39,50,628/-. The payment of Rs.2,50,000/- as mentioned in Ex.A1 was not denied by opposite party. Ex.A4 receipt dated 26.04.2010 issued by opposite party for Rs.9,75,000/- wherein all the flat details are mentioned which are similar to details given Ex.A1 and A2. Added to the same the price as mentioned in Ex.A2 is lower than the amount received under Ex.A4. Another receipt dated 10.02.2011 goes to show that a sum of Rs.1,00,000/- was received by way of cheque from PW1 towards part payment of the same flat. Ex.A6 and A7 receipts dated 06.11.2020 and 06.03.2012 respectively a sum of Rs.1,00,000/- and Rs.65,000/- where respectively received by the opposite party for the same flat. Unless there is an intention on both the sides one should abide by Ex.A1, the opposite party should not have received the amounts under Ex.A5 to A7. We are of the view that in the absence of any other development agreement, the parties to the lis shall relay upon the terms and conditions of Ex.A1 without there being any option.
09) Ex.A8 is the compensation policy and it shows, PW1 as the customer in which the details goes to show at PW1 booked a flat on 16.03.2010 to purchase flat with 1432 sft, in station 4, for a booking price at Rs.2340/- for the total flat cost of Rs.38,50,880/- having already paid Rs.14,37,155/-. The possession handover day 6 was 28.06.2012 and new handover date was at 01.01.2022. Unless the opposite party promised to deliver the flat on 01.01.2022 it should not have been mentioned in the Ex.A8. The opposite party not at all disputed the said document and the provisional certificate of instalment issued by LIC Housing Finance LTD dated 13.10.2018 is made part of Ex.A8. The Ex.A9 consists of statement of account of PW1 maintained by the LIC Housing Finance Ltd., dated 13.10.2018 for the period from 01.04.2018 to 10/2018 goes to show amounts were received from PW1 towards principal and interest and balance was shown at Rs.8,16,275.52 paisa as on 07.10.2018. The provisional certificate of instalment dated 14.12.2011 for the period from 01.04.2011 to 31.03.2012 goes to show that a sum of Rs.86,505.31 paisa was collected towards interest and Rs.12,230.69 paisa was collected towards principal from PW1. It further goes to show that the sum of Rs.32,50,000/- was sanctioned as a loan for PW1 on 19.04.2010 for the purchase of flat under construction. So, the Ex.A9 and A10 goes to show that to purchase the flat, PW1 took loan from LIC Housing Finance and paying instalments. In such circumstances opposite party is not permitted the claim that PW1 has no interest in the flat and he was only interested in getting the refund as shown in a statement made as a part of Ex.B20.
10). It is argued for the opposite parties that on 21.04.2016 on behalf of Aliens Space Station 1, Owners Welfare Association a legal notice was issued by enclosing a statement, wherein the name of PW1 is shown at Serial No.59 stating that he was interested for the refund and basing on the same it is argued that in those circumstances PW1 cannot demand for flat. It is to be observed that the total contents of the above legal notice, marked as Ex.B20 shall be taken into consideration to draw any inference. In the entire notice there is no specific reference regarding refund of amount without any rider clauses. In Para 13 of the notice it is mentioned that as the opposite parties intends to sell flats to the new customers instead of to the existing customers, shall refrain from doing so and also stated that priority shall be given to the interested members and shall also pay current market selling price to the others and also to pay Rs.10,00,000/- as compensation 7 within 15 days. Therefore, to give any weight-age to Ex.B20 all its conditions and clauses shall be taken into consideration but not in bits and pieces. No reply notice was given to Ex.B20 by opposite parties. So, we are of the view that opposite parties cannot fall back on Ex.B20 to their advantage.
11). Ex.B21 is in the form of an authority given by PW1 to the Owners Welfare Association, to file an appeal before NCDRC against opposite party. Ex.B19 is the copy of the complaint filed by Owners Association on behalf of its members against opposite party and the other financial institutions 2 to 11 involved in granting loans to the various purchasers. Reliefs 1 to 7 are pleaded in the complaint and the 4th relief relates to the refund of amount with 24@ interest from the respective dates of payment to the purchasers for the delay caused by them in the construction. It is pleaded as an alternative relief for the delivery of possession of the flat and it is also pleaded that the opposite party No.1 can also purchase the flat with present market value prevailing in the vicinity. For the reasons better known to opposite party it has not exercised any of the options and now contending and they are only interested to refund the amount. The approach of the opposite party, for its present stand appears to be unjustifiable.
12). As per the terms and conditions of the agreement of sale it is bounden duty of opposite party to demand monies from the respective purchasers of the flats depending upon the stage of construction as enumerated in the payment plan shown as Annexure-A. Opposite party not filed any piece of paper to show that it demanded amounts from PW1 basing on the payment plan. It is to be observed that as the building was a multi storied one, no purchaser can visualise the state/status of construction of his flat; so, that can volunteer the payment of amounts without asking. Added to the same, the project was enormously delayed and opposite party never informed the members about the exact or probable date of the completion of project. Therefore, we are of the view that opposite party cannot found fault with complainants for non payment of rest of the amounts.
813). It is also to be observed that without the payments of the amounts by purchasers, no builder can complete the construction by investing his personal money, more so, when the project is a huge one. However, in view of the discussions as made supra (Para
12), the opposite party has to blame itself for its commissions and omissions. It is argued for the opposite party that, when any complainant pleads alternative reliefs and if any one of the option in case chosen by the opposite party, the commission shall accept the same. In the case on hand as refund of money is one of the alternative reliefs claimed by the complainants, the commission shall accept the same as opposite party expressed intension to refund the amount. We are of the view that the analogy advanced by opposite party counsel cannot be appreciated because the complainant to safe guard the interest would come out with several options and besides that the commission is also empowered to grant such other reliefs, which are not asked for, if the interest of justice demands the same.
14). As far as the plea of limitation is concerned, the law is very well established that until the opposite party refuses to perform its obligation, the limitation will not start, more so, when the construction activities involved, limitation continues till the possession is delivered or refused to deliver. In the case on hand the opposite party even executed a registered sale deed in favour of PW1. The Civil Court alone is competent to cancel such sale deed, unless the complainants voluntarily come forward. Likewise the arbitration clause in the agreement is no way obstacle for the Consumer Forums to decide the deficiency in service or any unfair trade practices are adopted. Ex.A9 goes to show that PW1 made some payments (EMI‟s) to the LIC Housing Finance Ltd., from 07.04.2018 to 07.10.2018. The opposite party though agreed, not paid any EMI‟s on behalf of complainants. Even against the disbursed amount of loan, when the out standings are less than, the payments made by PW1, shows his interestedness to get the flat. So, we are of the view that it is a fit case to order to delivery of possession of the flat.
915). There is a clause in Ex.A1 that in case of failure to deliver the possession as agreed upon the opposite party agreed to pay Rs.3/- per sft on the super built up area with effect from 01.07.2012. As the super built up area of the flat is at 1432 sft, it comes to Rs.4,296/- per month and per annum it comes Rs.51,552/-. Even though the complainants have asked for fair rent at Rs.20,000/- per annum, no basis was shown to make such claim. When there is contract one should abide by the terms and conditions incorporated there in. So, we are of the view that opposite party is only liable to pay the rent at Rs.4,296/- per month. The compensation was claimed at Rs.5,00,000/- for mental agony. We are of the view that a sum of Rs.50,000/- would meet the ends of justice. In view of the discussions made so far the points are answered in favour of complainants.
16). Point No.V:- In the result, the complaint is partly allowed directing the opposite party:-
To complete the construction of flat No.1220(B) in all respects with the specifications as agreed upon. To handover possession of the flat by duly obtaining necessary occupancy certificate.
To pay rents @Rs.4,296/- per month from 01.07.2012 till the date of delivery of possession.
To pay cost of Rs.20,000/-
Time for compliance two months. At the same time complainant is directed to deposit the balance sale consideration of Rs.27,63,473/-. The complainant is also entitled to claim set of for the dues to be received by them from the opposite party i.e., @Rs.4,296/- per month.
SD/- SD/-
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MEMBER(M-J) MEMBER (M-NJ)
Dt:13.03.2023.
PMK*
10
APPENDIX OF EVIDENCE
WITNESS EXAMINED
Evidence affidavit of Evidence affidavit of
The complainant Opposite party
Mr.P.Neel Kamal Pasi Mr.Hari Chala
EXHIBITS MARKED
For Complainant:
Ex.A1: Copy of Agreement of Sale, dated 29.03.2010. Ex.A2: Copy of sale deed, dated 29.03.2010. Ex.A3: Copy of Receipt of Journal Voucher, dated 22.04.2010. Ex.A4: Copy of Receipt of Space Station 1, dated 26.04.2010. Ex.A5: Copy of Receipt of Space Station 1, dated 10.02.2011. Ex.A6: Copy of Receipt of Space Station 1, dated 06.11.2010. Ex.A7: Original Receipt of Space Station 1, dated 06.03.2012. Ex.A8: Copy of Compensation policy.
Ex.A9: Copy of LIC Housing Finance, dated 14.12.2011. Ex.A10: Copy of Legal Notice, dated 30.10.2018. Ex.A11: Copy of Postal Receipts, dated 31.10.2018. Ex.A12: Copy of Letter of Incorporation, dated 21.03.2006. Ex.A13: Copy of Form 32, dated 21.06.2006. Ex.A14: Copy of Track Consignment, dated 31.10.2018.
For Opposite Parties:
Ex.B1: Copy of Letter of the Principal Secretary to the Government.
MD & UD Department, addressed to Vice Chairman, HUDA, Hyderabad Reg. Sy. No. 384 & 385, dated 31.12.2007. Ex.B2: Copy of the G.O.Ms.No.288, dated 03.04.2008. Ex.B3: Copy of Report issued by the District collector, Medak, Sanga Reddy. Addressed to the Vice Chairman & Managing Director, HUDA along with map, dated 05.05.2007. Ex.B4: Copy of Minutes of MSB Committee Meeting of HUDA Reg.
File No. 621/P4/PLG/H/2008. (4 Basements + Ground + 13 Upper Floors, dated 29.02.2008.
Ex.B5: Copy of Letter issued by Vice Chairman addressed to the Principal Secretary to Govt., MA & UD Department, and Hyderabad for 30 Meters Road alignment in Sy. No. 384 &
385. With ack. Dated 31.03.2008.
Ex.B6: Copy of Approval forwarded letter from HMDA to aliens developers PVT LTD., Permission of Residential Apartments ( 4 Basements + Ground + 13 Upper Floors). Dated 11.04.2008.
Ex.B7: Copy of Technical Permission of Residential Apartments from HUDA ( 4 Basements + Ground + 13 Upper Floors). Dated 11.04.2008.
Ex.B8: Copy of Minutes of MSB Committee Meeting of HUDA Reg.
File No. 621/P4/PLG/H/2008. ( 4 Basements + Ground + 29 Upper Floors). Dated 05.06.2008.
Ex.B9: Copy of Technical Permission of Residential Apartments from HUDA ( 4 Basements + Ground + 20 Upper Floors). Dated 14.10.2009.
11Ex.B10: Copy of Letter from State Environment impact Assessment Authority (SEIAA) reg. Environmental clearances. Dated 12.08.2008.
Ex.B11: Copy of Letter issued by the Principal Secretary to Government. MA & UD Department addressed to the General Manager, Aliens Developer Private Limited (Clearance of GoMs.111). Dated 24.11.2009.
Ex.B12: Copy of Acknowledgement of Revised application and plans for building permission consisting of 3 Basements + Ground + 29 upper floors. Dated 08.11.2010.
Ex.B13: Copy of Letter issued by HMDA addressed to Aliens developers pvt ltd reg to pay publication charges for change of land use from residential to commercial, dated 28.03.2011.
Ex.B14: Copy of cash acknowledgment receipt issued by HMWSSB for new water connection, dated 04.02.2011.
Ex.B15: Copy of best compliments certificate issued by IGBC Green Home Pre-certified platinum.
Ex.B16: Copy of best compliments certificate issued by city scape awards 2009.
Ex.B17: Copy of letter of handing over the possession by customer feedback.
Ex.B18: Copy of photographs of various customers in possession of flat.
SD/- SD/-
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MEMBER(M-J) MEMBER (M-NJ)
Dt:13.03.2023.
PMK*