State Consumer Disputes Redressal Commission
B. Satyanarayana Reddy, vs 1. M/S. Aditya Housing And ... on 28 April, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana Complaint Case No. CC/169/2015 1. B. Satyanarayana Reddy, S/o. B. Lakshma Reddy, age 50 years, Occ. Business, R/o Plot No. B. &6, H. No 8-3-222/F/14, Madhuranagar, Hyderabad 500038 ...........Complainant(s) Versus 1. 1. M/s. Aditya Housing and Infrastructure Development Corporation Ltd., Rep by its Director T. Satyanarayana O/o Aditya Mansion, Plot No 29/A, Road No 5, Jublihills, Hyderabad 500033 2. 2. T. Satyanarayana S/o Late T. Rama Rao Aged about 51 years, Occ. Director of Aditya Housing Infrastructure Development Corporation Pvt Ltd., O/o Aditya Mansion, Plot No 29/A, Road No 5, Jublihills, Hyderabad 500033 ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Complainant: For the Opp. Party: Dated : 28 Apr 2017 Final Order / Judgement STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA : AT HYDERABAD CC NO.169 OF 2015 Between : B.Satyanarayana Reddy S/o B.Lakshma Reddy, Aged 50 years, Occ: Business, R/o Plot No.B-76, H.No.8-3-222/F/14, Madhuranagar, Hyderabad - 500 038. Complainant And 1) M/s Aditya Housing & Infrastructure Development Corporation Pvt., Ltd., Represented by its Director T.Satyanarayana, Office at Aditya Mansion, Plot No.29/A, Road No.5, Jubilee Hills, Hyderabad - 500 033. 2) T.Satyanarayana S/o late T.Rama Rao, Aged about 51 years, Occ: Director of M/s Aditya Housing & Infrastructure Development Corporation Pvt., Ltd., O/o Aditya Mansion, Plot No.29/A, Road No.5, Jubilee Hills, Hyderabad - 500 033. Opposite parties Counsel for the Complainant : Sri G.Rajesham Counsel for the Opposite parties : M/s Kochhar & Co., Coram : Hon'ble Sri Justice B.N.Rao Nalla, President & Sri Patil Vithal Rao, Member
Friday, the Twenty Eighth day of April Two thousand Seventeen Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, President) *** This is a complaint filed under Consumer Protection Act, 1986 by the Complainant complaining deficiency in service on the part of the Opposite parties directing them to refund Rs.10,00,000/- paid by the complainant as advance sale consideration together with interest @ 24% p.a.; to pay Rs.10,00,000/- as damages for causing mental agony & costs of Rs.50,000/-.
2. The case of the complainant, in brief, is that the Ops taken-up the project to construct residential township known as Aditya-Empress Heights, Shaikpet, Jubilee Hills, Hyderabad consisting of one cellar + stilt + 22 floors (single tower). It was represented that they are one of the leading company engaged in the business of real estate and Township development. They claimed that they obtained all necessary approvals and permissions from the local authorities including the approved lay-out for the above Township. The complainant and his daughter namely Banda Mouna intended to purchase the flat and accordingly booked the flat No.110 and 210 to an extent of approximately 2500 sft in the said project on 03.08.2010 and also paid an amount of Rs.10,00,000/- in the form of cheques which were encashed by the Ops. It was also informed that the said flats are free from all encumbrances.
3. It was assured to complete the construction of the flats as per the letter dated 03.03.2011 containing the schedule for payment of instalments. Subsequently, the complainant requested the Ops and their staff to provide the copies of approved plan and other link documents so as to enable him to obtain bank loan. In spite of the same, the Ops failed to furnish the documents. Thereafter, it has come to light that the flats booked by the complainant and his daughter were mortgaged with GHMC, Hyderabad, which fact was suppressed by the Ops at the time of booking the flats. Upon repeated requests, the OP No.2 took blank letter from his wife B.Sunitha on 25.03.2013 promising to refund the amount but failed to comply.
4. The complainant made an application under RTI Act and ascertained the information as regards mortgaging of both the flats, which is evidenced by the letter dated 25.07.2014 issued by the Chief City Planner, Town Planning Section (HO), Hyderabad. The terms and conditions of the mortgage indicate that the Ops shall not alienate the mortgaged properties in favour of the third parties. As a proprietor of M/s Suvishal Projects, complainant made complaint to the SHO, P.S. S.R. Nagar on 10.11.2014 against the Ops who refused to receive the complaint on the premise that it is in civil nature. Upon which, he filed a private complaint before the Hon'ble III-Additional Chief Metropolitan Magistrate, Hyderabad vide SR No.869/2014 which was referred to the police for investigation. After investigation, a Cr.No.1137/2014 was registered on 11.12.2014 for the offences U/s 406, 420 and 506 of IPC. Later, charge sheet was filed in CC No.543/2015.
5. The Ops have not completed the construction of the flats as per schedule and also failed to refund the amount as requested. It has also come to light that the Ops executed agreement of sale in respect of the same flats in favour of the third parties by receiving substantial amount and are trying to execute the sale deeds. These acts on the part of the Opposite parties amount to unfair trade practice, negligence and deficiency of service. Hence the complaint with the reliefs as stated in paragraph No.1, supra.
6. Opposite parties filed written version contending that the complaint is not maintainable either in law or on facts as there is no consumer dispute. There is no privity of contract between OP No.2 and complainant, who is the Chairman of OP No.1 company. It is settled law that Directors cannot be held liable for each and every act of the Company in as much as the Company is a separate/distinct legal entity. Complainant is not a consumer within the definition of the Act. The complainant has not availed any services from the Ops to file the present complaint claiming for deficiency in service or unfair trade practice. The relationship between the parties is contractual in nature and the disputes, if any, have to be contested before competent civil court. For his wrong, the present complaint is filed and the complainant cannot acquire a right of action from his own wrong.
7. Complainant filed the instant complaint based on two separate cause of actions and the same cannot be clubbed in as much as two separate complaints are required to be filed in the subject matter. It is the case of complainant that he along with his daughter Ms.Banda Mouna have purchased two separate flats in the project of OP No.1 and two separate allotment letters have been issued in favour of two persons. Further, the complainant is inter-alia, seeking refund of the amounts purportedly paid towards the purchase of his flat as well as the flat agreed to be purchased by his daughter. Merely because both the parties have paid the advance amount through a common account, the same would not constitute one cause of action. There are two independent and separate contracts executed with complainant and his daughter and hence one of the parties cannot file the complaint by joining the two independent causes of action. The complainant is not a consumer as defined under the Act.
8. The complainant failed to adhere to the terms of agreed payment schedule which resulted in cancellation of allotment and forfeiture of amount. They admitted taking up of construction of township known as Aditya-Impress Heights, Shaikpet, Jubilee Hills, Hyderabad. It is a common practice that certain flats in any project under construction will be mortgaged to GHMC and will be later released from mortgage once the construction is completed. During continuance of mortgage, the mortgaged flats cannot be sold, however, agreement of sale or booking can be done with the undertaking that it can be sold subject to release or mortgage.
9. They agreed to sell the flat No.110 to the complainant for a consideration of Rs.50,00,000/- and the flat No.210 to his daughter for Rs.53,81,000/-. The booking form has been executed by complainant and his daughter. After satisfying with the terms, the complainant and his daughter signed the letters. It is a common practice that certain flats in any project under construction will be mortgaged to GHMC and will be later released from mortgage once the construction is completed. Further, it is nowhere mentioned in the mortgaged document that Flat Nos.110 and 210 have been specifically mortgaged in favour of GHMC. In any event, the OP No.1 has obtained Occupancy Certificate of the project from GHMC and there is no mortgage on any of the flats in the premises as on the date.
10. After few months of booking, the complainant had requested the OP No.1 to join both the flats on 1st and 2nd floor and covert the same into a duplex model as one unit. Considering the request of the complainant, the OP No.1 has demolished the slab for flat No.110 and constructed a stair case to join both the flats and made other requisite alterations so as to make it a full fledged duplex house and as a single unit. The Ops incurred huge costs in making such alterations at the behest of complainant and Ops reserve their right to seek reimbursement of all such costs and other damages. The complainant purchased the flats by transferring the monies from the account held in the name of his corporate firm and hence, he does not come under the definition of consumer as per settled proposition of law.
11. The complainant is not a consumer and there arose no cause of action to file the present complaint. Without prejudice to the above, the complainant paid an amount of Rs.10,00,000/- towards booking of two flats and therefore, this Commission does not have the pecuniary jurisdiction to entertain the complaint. Knowingly, the complainant instituted the complaint, which is vexatious. Hence, prayed to dismiss the complaint with exemplary costs.
12. On his behalf, the Complainant filed his evidence affidavit and the documents, Exs.A1 to A8. On behalf of the Opposite parties, its Executive Director by name Thota Satyanarayana has filed his affidavit and the document Ex.B1.
13. The points that arise for consideration are :
i) Whether there is any 'deficiency in service' on the part of the Opposite parties and whether the Complainant is entitled for the reliefs as prayed for?
ii) To what relief ?
14. POINT No.1: There is no dispute that the Complainant and his daughter booked two flats i.e., 110 and 210 in the project of the Opposite parties and have paid Rs.5,00,000/- each towards advance amount. The only dispute is that the Ops failed to inform that the subject flats were mortgaged to the GHMC at the time of booking and thereby complainant was put to loss, hardship and inconvenience. The Ops vehemently contends that the complainant is not a consumer as defined under the Act as the flats were booked differently by the Complainant and his daughter separately, hence, two separate cause of action cannot be clubbed together. We totally agree with this view endorsed by the counsel for the Opposite parties.
15. It is the case of the Complainant that he booked two flats i.e., 110 and 210 on his name and on the name of his daughter Banda Mouna, which is not in dispute. It is also the case of complainant that the amounts were paid by him in the form of cheques for Rs.5,00,000/- each vide cheque No.174411, dated 03.08.2010 and cheque No.174413 dated 03.08.2010 drawn on DCB Bank, S.R. Nagar branch, Hyderabad. In support of his claim, the complainant filed statement of account marked as Ex.A1. A perusal of Ex.A1 would go to show that the same pertains to "Suvishal Projects" and would further show that the above stated cheques were encashed by the OP No.1 on 05.08.2010.
16. It is also the specific case of the complainant that since the OP No.1 deceived and cheated him by offering the flats which are under mortgage, he lodged a complaint before the SHO, P.S. S.R. Nagar and on their refusal to register the complaint, he filed a private complaint before the Hon'ble III-Addl. Chief Metropolitan Magistrate, Nampally, Hyderabad which is numbered as SR No.869/2014 and later ordered for investigation. Upon investigation, the police registered a case in Cr.No.1137/2014 on 11.12.2014 for the offences punishable U/s 406, 420 and 506 of IPC, as is evident from the documents Ex.A6 to A8 respectively. Admittedly, the said complaint is pending adjudication.
17. A perusal of Ex.A6 goes to show that a complaint is filed by M/s Suvishal Project through its Managing Partner B.Satyanarayana Reddy (the complainant in this complaint) under Section 190(1)(A) and 200 of Cr.P.C. seeking to refer the complaint to the Station House Officer, S.R. Nagar Police Station, Hyderabad U/s 156 (3) of Cr.P.C. for the offences punishable U/s 420, 406 and 420 IPC on 27.11.2014. The present complaint is filed by the complainant in his individual capacity, on 15.09.2015 without whispering a single word as to his entitlement to file the complaint on behalf of M/s Suvishal Projects. Admittedly, Suvishal Projects is not a party to the proceedings before this Commission. Be that as it may, Ms.Banda Mouna is also not a party to the complaint. That being so, how the complainant can be termed as a 'consumer' is not explained. However, no consideration is paid by the complainant to the OP No.1 or OP No.2, as the case may be, to claim any relief. Viewed from any angle, the present complaint is not maintainable and the complainant is not a consumer at all. As contended by the Opposite parties, there arose no cause of action to maintain the present complaint.
18. We may further state that when M/s Suvishal Projects, represented by its Managing Partner had filed the private complaint, nothing prevented the said Suvishal Projects to file the complaint before this Commission claiming appropriate relief of refund of the monies paid. For the aforesaid reasons, we answer the point framed for consideration at paragraph No.13, supra, against the Complainant and in favour of the Opposite parties.
19. POINT NO.2 : In the result, we dismiss the complaint with costs computed at Rs.5,000/- to be payable by the Complainant to the Opposite parties. Time for compliance : four weeks.
PRESIDENT MEMBER Dated: 28.04.2017 APPENDIX OF EVIDENCE WITNESSES EXAMINED For Complainant : For Opposite parties : Affidavit evidence of B.Satyanarayana Affidavit evidence of Sri Thota Reddy, complainant, as PW1. Satyanarayana, on behalf of Ops. EXHIBITS MARKED For Complainant :
Ex.A1 is Photostat copy of statement of account of M/s Suvishal Projects, for the period from 25.09.2008 to 24.09.2009.
Ex.A2 is Photostat copy of the letter dated 03.03.2011 addressed by the Ops to the complainant informing the project progress and payment outstanding report, in respect of Flat No.110.
Ex.A3 is Photostat copy of the letter dated 03.03.2011 addressed by the Ops to the complainant informing the project progress and payment outstanding report, in respect of Flat No.210.
Ex.A4 is the original letter dated 25.07.2014 bearing No.R/585/TPS/HO/2014/211, addressed by the Chief City Planner, GHMC, Hyderabad to Sri P.Radha Krishna, enclosing the copy of mortgaged document.
Ex.A5 is the office copy of notice dated 04.08.2014 got issued by M/s Suvishal Project to the Opposite parties, along with postal acknowledgements and proof of delivery.
Ex.A6 is the certified copy of the complaint filed under Section 190(1)(A) and 200 Cr.P.C. by M/s Suvishal Project, rep. by its Managing Partner on the file of Hon'ble III-Additional Chief Metropolitan Magistrate, Nampally, Hyderabad vide SR No.7530/2014.
Ex.A7 is the certified copy of the FIR in C.No.1137/2014, dated 11.12.2014 on the file of Station House Officer, P.S. Sanjeeva Reddy Nagar, for the offences punishable under Sections 406, 420, 506 IPC & 156(3) Cr.P.C.
Ex.A8 is the certified copy of the charge sheet (U/s 173 Cr.P.C.) filed before the Court of Hon'ble III-Additional Chief Metropolitan Magistrate at Nampally, Hyderabad.
For Opposite parties :
Ex.B1 is Photostat copy of the Occupancy Certificate dated 23.09.2014 issued by the Commissioner, GHMC, Hyderabad vide proceedings No.0301/CSC/TP-10/CZ/2009/OC in favour of M/s Aditya Housing & Infrastructure Development rep. by Sri T.Satyanarayana.
PRESIDENT MEMBER Dated: 28.04.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER