State Consumer Disputes Redressal Commission
1. Mr. Sameer Sinha vs 1. M/S. Aliens Developers P. Ltd., on 5 November, 2021
Before the State Consumer Disputes Redressal Commission
(constituted under Consumer Protection Act, 2019)
of Telangana, Eruvaka Building, Khairathabad at Hyderabad
CC NO.17 OF 2017
Between:
1) Mr.Sameer Sinha
S/o Sushil Kumar Sinha,
aged about 39 years,
Occ: Senior Project Manager,
2) Mrs.Anshu Lali W/o Mr.Sameer Sinha,
aged about 34 years, Occ: Software Engineer,
Both are residents of H.No.29/12,
(near Geeta Niketan) Tula Ram ka Bagh,
Allahabad, UP 211 006, represented by
-
their POA holder Mr.Sushil Kumar Sinha
s/o late Mr.S.N.Sinha, aged 63 years,
Occ: Retired Superintendent, Central
Excise,
H.No.29/12 (near Geeta Niketan)
Tula Ram Ka Bagh, Allahabad,
Uttar Pradesh - 211 006.
And
...Complainants
1) M/s Aliens Developers (P) Ltd.,
Rep. by its Managing Director and
Joint Managing Director,
0/o Flat No.911, Teja Block,
My Home Navadeepa Apartments,
Madhapur, Near Hi-Tech City,
Hyderabad 500 081.
2 Mr.Hari Challa S/o CVR Chowdary,
Managing Director M/s Aliens Developers (P) Ltd.,
O/o Flat No.911, Teja Block,
My Home Navadeepa Apartments,
Madhapur, Near Hi-Tech City,
Hyderabad - 500 081.
Mr.Venkat Prasanna Challa
s/o CVR Chowdary,
Joint Managing Director,
M/s Aliens Developers (P) Ltd.,
O/o Flat No.911, Teja Block,
My Home Navadeepa Apartments,
Madhapur, Near Hi-Tech City,
Hyderabad - 500 081.
Notice to be sent to the following address
(present address of Opposite parties 1 to 3
are at Aliens Space Station,
Tellapur, Ramachandrapuram Mandal,
Medak district, Hyderabad
(Telangana - PIN 502 032), Hyderabad.
2
4) Bank of India,
Rep.by its branch Manager,
Miyapur branch, Miyapur
Hyderabad - 500 049.
..Opposite parties
Counsel for the Complainants Sri D.Raji Reddy
Counsel for the 1 to3
Opposite parties: Sri P.Raja Sripathi Rao-Ops
Ms.A.Vinoda Devi-OP4.
CORAM:
Hon'ble Sri Justice MSK Jaiswal President
and
Smt Meena Ramanathan Member
Friday, the Fifth day of November Two Thousand Twenty One Oral Order *** This is a complaint filed by the Complainants under Section 17(1)(a)i) of the Consumer Protection Act, 1986 praying to direct the Opposite parties 1 to 3 to (a) refund the amount of Rs.20,00,000/- along with interest @ 24% per annum from the respective dates of payment till date; (b) to pay compensation of Rs.3/- per sft towards holding charges, per month in pursuance of Clause-I (delivery of possession) from December 2014 till date along with interest @ 24%% per annum; (c) to pay Rs.10,00,000/- as compensation for causing mental agony, suffering and escalation of construction cost; (d) to pay fair rental value of Rs.10/- per sft, per month from December 2014 till date and continue to pay till payment of entire amount; (e) to pay legal charges of Rs.25,000/-
2) It is alleged that, Opposite parties 2 and 3 claiming themselves to be the Managing Director and Joint Managing Directors of Opposite party No.l made believe the Complainants that they entered into Development Agreement-cum-GPA bearing Nos.23198 of 2006, 23230 of 2006 dated 07.10.2006 and 13321 of 2007 dated 23.06.2007 respectively with the respective land owners for development of land admeasuring Ac.19.26 guntas in survey numbers 384, 385 and 426/A, situated at Tellapur village, Ramachandrapuram mandal, Medak district into residential apartment complexes and that Opposite party No.4 is extending Home Loan offers to the intending buyers. They further made believe the Complainants that they undertook the construction of multi- storied apartment in the name and style Aliens Space Station-1 having 3 Obtained permission vide Lr.No.621/P4/Plg/HMDA (HUDA)/2006, aaid 04.2008 and has absolute rights over flat No.1227(B), Station-5, O 2 loor admeasuring 1792 sft of super built-up area including common arcas along with one car parking space besides undivided share of land S I n g 30.84 square yards in the complex "Aliens Space Station-1", SIated at Tellapur village, Ramachandrapuram mandal, Medak district.
3) Lured by the sayings of the Opposite parties, the Complainants accepted to purchase the said flat for a sale consideration of RS.65,68,676/- and paid the sum of Rs.10,000/- as token advance on 24.12.2012 and subsequently paid Rs.2,40,000/-. They further paid monies on various dates as also by obtaining loan from Opposite party No.4 bank, altogether amounting to Rs.20,00,000/-. Accordingly, the Opposite parties entered into an Agreement of Sale dated 21.01.2013. The Complainant and Opposite parties have entered into a Tripartite Agreement for sanction of loan. In contrary to the agreed terms, the Opposite party No.4 released the loan amount in violation of Section-4 and 5 of the A.P. Apartment (Promotion of Construction and Ownership) Act.
4) The Opposite parties failed to complete the project though years together have elapsed. On noticing the snail pace of construction, Complainants prevailed upon the Opposite parties 1 to 3 but they paid deaf-ears. As per the terms of agreement, it was agreed to complete the construction by December 2014. Hence, complaining the same to be deficiency of service and unfair trade practice on the part of the Opposite parties, filed the present complaint.
5) The right of Opposite parties 1 to 3 to file their written version is forfeited, however, they filed their affidavit evidence resisting the claim on the premise that the Complainants approached the Commission without approaching them either for refund of money or for cancellation of the Agreement or with any request and therefore, they cannot attribute any deficiency of service on its part. The complaint is liable to be dismissed for want of jurisdiction since the transaction being commercial purpose. Even otherwise, the complaint is barred by limitation as the Agreement for Sale was entered on 321.01.2013 and the possession was agreed to be delivered on or before January 2015 with a grace period of 6 months but the Complainants kept quiet all these days and filed the complaint A l a p s e ol two years, hence, barred by limitation. Complainant iled the complaint without seeking leave of the Court to condone the delay.
6) The agreement of sale entered into is unregistered document which cannot be looked into. Subject to payment of all dues by the purchaser They would pay compensation@ Rs.3/- per sft per month. Neither the Complainants paid the entire sale consideration at once nor the instalments as per Annexure-A. Aliens mission is always to create best $olutions with pioneering functionality, built on trustworthy and stout technological structural design which could be lucratively implemented and simulated across the world.
Complainants, altogether paid an amount of Rs.
18,50,151/- as
against Rs.65,68,676/-. Due to increase in
cost of material, it is difficult to pay back the amount paid. Hence, there
is no
deficiency of service on their part and prayed to dismiss the complaint with costs.
Opposite party No.4 filed its written version contending that they sanctioned house loan in a sum of Rs.35,00,000/-
to the Complainants, which is repayable commencing 10 months after the first disbursement with an option to pre-pay with 36 months after first disbursement or one month after completion of the flat. At request of the Complainant that the flat work is in progress, they disbursed Rs.10,50,000/- towards first disbursement. Hence, the averment that they released the loan even before the start of construction is incorrect.
8) The loan facility is provided by the bank as per the terms and conditions enunciated therein and the Complainants undertook to repay the loan amount notwithstanding any disputes between the borrower and the developer or delay in completion of the project by the builder. Hence, question of collusion or unfair trade practice on its part does not arise at all. Accordingly, prayed to dismiss the complaint insofar as it is concerned with exemplary costs.
9) In order to prove their claims, on behalf of the Complainants, their GPA holder Mr.Sushil Kumar Sinha filed his affidavit evidence as PW1 and got marked the documents Exs.Al to A13. On behalf of the Opposite parties, Sri Hari Challa, its Managing Director had filed his affidavit evidence as RW1 and got marked the documents Ex.B1 to B19. On behalf of Opposite party No.4, one Sri Ram Shankar Rathore, their Chief Manager filed his afidavit.
10) The points that arise for consideration are 1 Whether the complaint is maintainable in view of arbitration clause in the agreement of sale?
ii) Whether the complaint is not a 'consumer dispute?
Whether there is any deficiency in service on the part of the Opposite parties?
iv To what relief?
11) POINTNO.1: The Complainants entered into "Agreement of Sale on 24.01.2013 with the Opposite party No.1 for purchase of flat bearing No.1227(B) in Station-5 on 12th of Aliens Space Station-1 having a super built-up area of 1792 sqít. together with undivided share of land 30.84 square yards along with one car parking space and thereafter the Complainants paid the part consideration amount as per the pricingg pattern of the flat issued by the Opposite parties 1 to 3. Subsequently, the Complainants appear to have approached the Opposite party No.4 for sanction of loan, which in turn had sanctioned a sum of Rs.35,00,000/- upon certain terms and conditions enumerated therein and disbursed the amount of Rs.10,50,000/- towards first disbursement. Admittedly, the agreement of sale provides for reíerence to arbitration. The learned counsel for the Opposite parties 1 to 3 has contended that in view of the arbitration clause in the agreement, the Complainants cannot maintain the complaint before this Commission. Clause XVIlI of the Agreement of sale provides for deciding the disputes arising under the agreement by arbitration proceeds reads as under:
a This agreement shall be construed according to the laws of India and the legal relations between the Parties hereto shall be binding accordingly.
b That all disputes/issues arising out of and/or concerning this transaction will be subject to the exclusive jurisdiction of the Courts at Ranga Reddy district, A.P. That all disputes or differences relating to or arising out of or in connection with this agreement shall be mutually discussed and settled between the parties.
d However, disputes or differences arising out of and or in Connection with and or in relation to this transaction/ agreement, which cannot be amicably settled, shall be finaly decided and resolved by an Arbitrator appointed by Developer in accordance with the provisions of the Arbitration and Conciliation Act, 1996. Arbitration as aforesaid shall be a domestic arbitration under the applicable Laws.
e hat the venue of arbitration shall be at Hyderabad and the language for the Arbitration proceedings shal be English
12) In terms of the Agreement of sale, the dispute has to be decided by means of arbitration. However, remedy provided under the provisions o Consumer Protection Act is additional remedy and in the ight of law an laid in * National seeds Corporation Ltd., Vs. M.Madhusudhan Reddy reported in (2012) 2 SCC 506 wherein the maintainability of the complaint before consumer forum prior to the complainants having exhausted the other remedy was considered as under:
The remedy of arbitration is not the only remedy available to a grower. Rather, it is seek an optional remedy. He can either reference to an arbitrator file Consumer Act. f the or a complaint under the grower opts for the remedy of arbitration, then it may be subsequently, file complaintpossible to say that he cannot, under the Consumer Act. However, heif chooses to file a before the competent Consumercomplaint Forum, in the first instance then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act.
Section 3 of the Consumer ActMoreover, the plain language
makes it clear that the of
available in that Act is in addition to and not in remedy the provisions of any other law for the time derogation of being in force."
For the above reasons, the Point No. 1 is answered in favour of the Complainants and against the Opposite parties 1 to 3.
13) Though the Complainants made averments in the
complaint
against Opposite party No.4, no relief is sought against the
Opposite
party bank, such,
this Commission feels that there
as
is no need to go
into those averments. Be that as it
may, during pending
the Opposite parties 1 to 3 stated to
proceedings,
have repaid the entire loan
amount
disbursed towards first instalment to the Opposite party No.4 bank as on 15.11.2019.
14) In the arguments, counsel for Complainants rciterated the same facts as averred in the complaint besides stating that the Opposite parties 1 to 3 ought to have acted in accordance with the provisions of the Andhra Pradesh (Promotion of Construction and Ownership) Act & Rules, 1987 while undertaking such agreements and hence pleading force majeure' does not arise. He relied on Section-72 of Indian Contraet Act supported by the Judgment of Hon'ble Apex Court in Briy Pal Sharma Vs. Ghaziabad Development Authority reported in IlI (2005) CPJ 43 (SO and submitted that the Apex Court opined that grant of interest @ 18% P.a. Dy way of damages and compensation is justified. He further relied on decision in Ghaziabad Development Authority Versus Balbir Singh reported in II (2004) CPJ 12 wherein it is statcd "in our view, irrespective whether there was genuine reason to cancel or not, the monies must be returned with interest @ 18%" This Commission perused the said Judgments. In Ghaziabad Development Authority versus Balbir Singh, the Hon'ble Supreme Court further observed that the interest shall be payable from the dates of deposit of the amounts till the date of repayment.
15) On the other hand, the counsel for Opposite parties 1 to 3 in the arguments submitted that as per agreement, if the Complainants want to cancel the booking of the lat, they shall forego 10% of the total lat cost as charges which is agreed by them and in that regard, relied on Judgment reported in 2009 (2) CPR 197 (NC): I (2009) CPJ 276 (NC) in Punjab Urban Planning and Development Authority and another Vs. Shyam Sunder Tiwar and others, wherein, it is held that "courts cannot add anything or improve upon the terms of contract between the parties." The facts of the said case and facts of the case on hand are different. In the said case, the Petitioner Authority withdrew the scheme and there was provision for refund of earnest money. In the case on hand, there is no provision for refund of carnest money. Admittedly, on failure to comply with terms and conditions of agreed terms by the Opposite parties 1 to 3, the Complainants sought for refund of the amount. Hence, this Commission does not find any merit in the contention put forth by the learned counscl for Opposite parties 1 to 3.
16) POINTSNo.2 & 3 The Opposite parties 1 to 3 entered into Development Agrecment with the land owners of the land admeasuring Ac.19.26 guntas in survey numbers 383, 385 and 426/A situate at Tellapur village of Ramachandrapuram mandal, Medak district and they agreed to deliver the residential flat to the Complainants in accordance with the terms and conditions agreed upon and consented thereof and as per specifications given thereto.
17) In pursuance of the Development Agreement, the Opposite parties 1 to 3 have obtained permission for construction of the residential building on the land and admittedly there has been abnormal delay in completion of the project insofar as this complaint is concerned. The Opposite parties have attributed the delay to the authorities concerned in granting permission and NoC etc., as to the cause for delay in completion OT the project. The Opposite parties 1 to 3 would contend that the cause 1or delay is beyond their control which is force majeure. The Opposite parties 1 to 3 stated the reasons for the delay in completion of the construction of the residential complex as under:
The reasons, for delay is, project required clearance from statutory bodies which are necessary for execution of the project. The said fact was informed to the complainant and even mentioned in the agreement of sale under clause No.XIV and described as force majure". The above mentioned squarely fall under the said clause. referred facts Therefore, the present complaint is not maintainable before the Hon'ble Commission as there is no deficiency of service on the the opp.party in part of executing the project and if the complainant wants to cancel her booking she do in terms of agreement only."
can so
conformity uwith
18) The
Complainants have submitted that owing to failure on the part of Opposite parties in completing the construction of the flat No.1227(B), they opted for cancellation of the Agreement of sale and the Opposite parties have contended that in order to maintain cordial relations with the Complainants, they agreed to pay compensation in terms of the agreement which they entered into in normal course with other customers. The Complainants got issued the legal notice dated 15.07.2016 cautioning the Opposite parties 1 to 3 to invoke the legal proceedings on account of delay and negligence and false promises made by them and thereby seeking for refund of the amount on the premise of inaction on their part.
19) The Opposite parties 1 to 3 made promise to complete construction of the flat and hand over its possession to the Complainant on or before December 2014 with a grace period of six months i.e., on or before June 2015 as agreed and on their failure to perform their part of contract, they had proposed to pay rents but failed to pay the same. However, there is no communication from the side of the Opposite party No.1 in this regard and it had not filed a piece of paper to show its readiness to pay compensation and adjust the same towards the dues payable by the Complainants.
920) Not keeping promise to complete construction of the buiihng a failure to deliver possession of the l a t constitutes deliciency in serviee on ue part of the Opposite parties 1 to 3. The Complainant have two 0puons left for recovery of the amount, either by filing suit in Court O Consumer Disputes C ODy way of filing complaint before State within thne Redressal Commission in view of the amount claimed falling contention of the pecuniary jurisdiction of this Commission. The Opposite parties that the complaint is not maintainable 1s no sustainable.
together with 21) The Complainants claimed refund of amount paid
interest besides claim for compensation to the tune of Rs.10,00,000/, The Complainant acquiesced to the delay in construction of the project.
1 to 3 have The Complainant have not disputed that the Opposite parties informed them about the cause for in obtaining permission and delay found to be valid.
As such, the
NOC etc., which ultimately was
are
Complainants cannot claim damages. However, the Complainant
the amount paid from the dates of
entitled to interest @9% p.a. on
respective payment till realization.
It is pertinent to state here that as per Ex.A2, A3, A4 and A5, the
22)
Complainant paid an amount of Rs.9,50,000/- as against the total sale
consideration of Rs.65,68,676/- towards the subject flat. Further, they
obtained home loan from Opposite party No.4 to the tune of
Rs.35,00,000/- and got released the first instalment of Rs.10,50,000/- towards first disbursement. Altogether, the Complainants paid a sum of Rs.20,00,000/- to the Opposite party No.1. However, the amounts claimed are not disputed by the Opposite parties During pending the Opposite parties have repaid an amount of proceedings, Rs.12,96,896/- to the Complainants including the loan amount of Rs.10,50,000/- together with uptodate interest as on 15.11.2019 leaving a balance of Rs.7,03, 181/-.
23) In the above facts and circumstances, the points 1 to 4 are answered accordingly holding that the Opposite parties 1 to 3 are liable to pay the amounts to the Complainants. However, no relief is granted against the Opposite party No.4.
24) In the result, the complaint is allowed holding that Opposite parties 1 to 3 are liable and accordingly Opposite parties 1 to 3 are 10 airected to pay interest9% per annum on Rs.20,00,000/- from the aates of respective payments till 15.11.2019 and thereafter to refund RS.7,03,181/- together with interest @9% per annum from 15. 11.2019 onwards till realisation, together with costs of Rs.10,000/- The complaint against Opposite party No.4 is dismissed but under circumstances, no costs. Time for compliance four weeks.
----- 144
PRESIDENT MEMBERR
Dated 05.11.2021
For Complainants : For Opposite parties
Affidavit evidence of Sushil Affidavit evidence of Sri Hari
Kumar Sinha, Complainant
No.1 as PW1. Challa, M.D. of OP No.1 as RW1.
Affidavit evidence of Sri Ram Shankar Rathore, Chief Manager of Opposite party No.4 as RW2.
EXHIBITS MARKED For Complainants Ex.Al is the photostat copy of the Customer Iníormation sheet, dated 18.12.2012.
Ex.A2 is the photostat copy of Agreement of Sale, dated 24.01.2013 entered by Opposite party No.l with the Complainants, in respect of Flat No.1227(B), Station-5 on 12th floor of Aliens Space Station-1 Ex.A3 is the photostat copy of receipt bearing No.11778, dated 24.12.2012 for Rs.10,000/- furnished by the Opposite party No.1. Ex.A4 is the photostat copy of receipt bearing No.11780, dated 27.12.2012 for Rs.2,40,000/- furnished by the Opposite party No.1. Ex.A5 is the photostat copy of receipt bearing No.11781, dated 31.12.2012 for Rs.1,50,000/- furnished by the Opposite party No.1. Ex.A6 is the photostat copy of receipt dated 15.02.2013 for Rs.7,00,000/ furnished by the Opposite party No.1.
Ex.A7 is the photostat copy of letter addressed by Opposite party No.l to the Complainants seeking to arrange for payment of Rs.19,70,634/-. Ex.A8 is the photostat copy of letter addressed by the Opposite party No.1 to Opposite party No.4 issuing no objection Certificate in case the loan is sanctioned to the Complainants.
Ex.A9 is the photostat copy of e-mail correspondence made by Opposite party No.1 personnel to the Complainant furnishing the statement of account of Complainants' account.
Ex.A10 is the photostat copy of account statement of the Complainant No.1 with ICICI Bank, for the period from 24.12.2012 to 10.05.2013. Ex.A11 is the office copy of legal notice dated 15.07.2016 got issued by the Complainants to the Opposite parties 1 to 3. Ex.A12 are the original postal receipts showing sending of Ex.A11 notice, dated 15.07.2016.
Ex.A13 is the photostat copy of the General Power of Attorney executed by the Complainants in favour of Sushil Kumar Sinha, dated 06.09.2016.
For Opposite parties 1 to 3 11 Ex.B1 Copy of
GovernmentLr.Ntoo.Vice,
use. 252931/4/2007 addres
idressed by Principal
Ex.B2 Copy of Chairmar
nan, HUDA, Secretary
Hyderabad for change of land
Ex.F G.O.Ms.Ndated
Department, o.288, Municipal Administration 8 Urban
DCopyof
(report) 03.04.2008 (HMDA revised Development
District Collector,Lr.No.D1/3601/2007, Medak to master dated 05.05.2007plan DD4 along with map. Vice-Chairman & addressed Dy Managing Director, COpy of minutes of noD UDA held on meeting area 29.02.08 of multi-storeyed building committee 10T Dx,B5 Chairman, HUDA (4 basements at 3-00 pm in the chambers of Vice Copy of Lr.No.1927/Misc/ +Ground + 13 Upper Floors).
ODA to the Ple/H/2008, dated 31.03.2008 addressed
Principal Secretary
alignment in Sy.No.384 to Government for 30 by
meters road
EX.B6 & 385.
Copy of
Lr.No.621/P4/Plg/HUDA/2008,
HUDA to OP No.1 approving 4 dated 11.04.2008
addressed by
basements + Ground + 13 upper
D Copy of
HUDA toLr.No.621/Pr/Plg/HUDA/ 2008, dated 11.04.2008 loors).
technical
Executive Authority,
Tellapur Gram Panchayat addressed by EX.B8 permission of residential apartments.
Copy of minutes of meeting according of in HUDA area held on 05.06.2008 multi-storeyed building committee for MSB at the chambers of HODA (4 basements + Vice-Chairman, Ex.B9 Copy of ground +29 upper floors).
Lr.No.621/P4/Plg/HMDA/2008, HMDA to the Executive dated 14.10.2009 addressed by technical permission of Authority, Tellapur Gram Panchayat according 20 upper floors). residential apartments (4 basements + ground + Ex.B10 Copy of State LevelLr.No.SEIAA/AP/MDK-14/08, dated Enviornment Impact Assessment 12.08.2008 addressed by according environmental clearances to Authority, Hyderabad to Ex.B11 Copy of Lr.No Opposite parties.
19038/11/2009, dated 24.11.2009
Principal Secretary to Government to Ops addressed by
Ex.B12 Copy letter addressed by Opposite
of (clearance of GOMs.No.1 11).
HMDA, Hyd (revised application parties, dated 08.10.2010 to the
and plans for
consisting of 3 basement + ground + 29 upper building permission
Ex.B13 Copy of floors).
Lr.No.10186/MP1/Plg/HMDA dated 28.03.2011 HMDA to the Ops to pay addressed by residential to commercial.
publication charges for change of land use from Ex.B14 Copy of cash acknowledgement receipt bearing No.825631 for Rs.1,000/- in File No.2011-2-431 for new water connection. Ex.B15 Copy of Certificate of best compliments issued by Indian Green Building Council in favour of the Opposite parties Ex.B16 Copy of certificate of best company.
of the Opposite compliments awarded by Cityscape in favour parties company.
Ex.B17 Copy of letter addressed by the name S. Pragathi Opposite parties to the purchaser by intimating to take possession of the flat, dated 02.11.2015.
Ex.B18 Copies of photographs of flat occupants occupying the completed flats. Ex.B19 photostat copy of the receipt for Rs.65,784/- from the escrow account of Narayan Properties, dated 15.05.2018.
For Opposite party No.4:
NIL.
-u*==**wauuv-----
PRESIDENT MEMBER
Dated 05.11.2021
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