State Consumer Disputes Redressal Commission
1.Mrs. Mimi Vijayaraghavam vs 1.M/S. Aliens Developers on 20 March, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.46/2019
Between :
1.Mrs.Mimi Vijayaraghavan, W/o.Bini Sajan Sathyan , Aged about 42 years, Occ: Pvt. Service.
2. Mr.Bini Sajan Sathyan, S/o.Mr.K.Sathyanesan, aged about 42 years, Occ: Pvt. Service, Both are permanent R/o.Sathya Bhavan, Kuchappurom, Amachal PO, Kattakada, Thiruvananthapuram-695 572 Presently residing at Unit 201, 50 Gordon Crescent, Lane Cove North, Sydney, NSW-2066, Rep. by their GPA Holder, Mr.Santhosh M.Aravind, S/o.Aravindakshan M K., aged about 42 years, Occ:Govt. Employee, R/o.Quarter No.3025/C, CISF Complex, Near Bichareddy Sweets, BHEL., Ramachandrapuram, Hyderabad, Telangana -502 032. ... Complainants And
1.M/s.Aliens Developers Pvt. Ltd., Rep. by its Managing Director & Joint Managing Director, O/o.Flat No.911,Teja Block , My Home Navadweepa Apartments, Madhapur, Hitech City, Hyderabad -500 081.
2. Mr.Hari Challa, S/o.Mr.CVR Chowdary, Managing Director, M/s.Aliens Developers Pvt. Ltd., O/o.Flat No.911,Teja Block , My Home Navadweepa Apartments, Madhapur, Near Hitech City, Hyderabad -500 081.
3. Mr. C.Venkat Prasanna, S/o.Mr.CVR Chowdhary Jt. Managing Director, M/s.Aliens Developers (P) Ltd., O/o.Flat No.911,Teja Block , My Home Navadweepa Apartments, Madhapur, Near Hitech City Hyderabad -500 081.
Notice to be sent to the following address 2 (Present addresses of opposite parties Sl.Nos.1 to 3 are at Aliens Space Station, Tellapur, Ramchandrapuram Mandal, Medak District, Hyderabad (Telangana - PIN 502 032).
4. State Bank of India, Rep. by its Assistant General Manager, RACPC -III, D.No.3-6-263 & 264 , 2nd floor , CCPL., Sterling Building, Main Road, Old MLA Quarters Road, A.P.State Housing Board, Himayathnagar, Hyderabad, Telangana-500 029. .... Opposite parties.
Counsel for the Complainants : M/s.D.Raji Reddy Counsel for the Opposite Parties : M/s.P.Raja Sripathi Rao-
O.P.Nos.1 to 3.
OP.No.4- set exparte.
CORAM : Hon'ble Sri V.V.Seshubabu, Member (J), And Hon'ble Smt.R.S.Rajeshree, Member (NJ).
MONDAY, THE TWENTIETH DAY OF MARCH, TWO THOUSAND TWENTY THREE .
Order :
01). The complaint is filed u/s.17(1)(a)(i) of the Consumer Protection Act, 1986 & 2002 for directions to the opposite parties as under:
i. to refund the amount of sale consideration received Rs.36,02,553/- with interest @ 24% p.a. from respective dates of receipt till the date of payment to the complainants;
ii. To pay compensation towards holding charges @ Rs.3/- per sft. per month according to Clause I ( in case opposite parties failed to handover the flat to the complainants before December,2011) from December,2011 till date along with interest @ 24% p.a. and further they are continuously liable to pay the holding charges till the realisation of total demanded amount.
iii. to pay Rs.15 lakhs as compensation for causing mental agony, suffering & escalation of construction cost;
iv. to pay fair rent of Rs.10/- per sq.ft. per month w.e.f. December,2011 till date and further continue to pay till the payment of the total compensation amount.3
v. to pay legal charges of Rs.40,000/-.
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 entered into an Agreement of Sale dt.5.9.2009 with the opposite parties to purchase a flat bearing no.1436 in Station -6, on 14th floor of the complex by name Space Station -1 with a super built up area of 1597 sq.ft. with one covered car parking besides undivided share of land of 34.34 sq.yards; that the total sale consideration is Rs.46,18,658/-; that the complainants paid Rs.2,50,000/- on 29.8.2009 towards booking advance which was acknowledged by opposite parties 1 to 3; that the complainants further paid the amounts of Rs.3 lakhs, Rs.2,51,140/- on 9.9.2009 and Rs.1,22,591/- on 13.2.2010; that the Tripartite Agreement was entered between complainants, opposite parties 1 to 3 and opposite eparty no.4/State Bank of India which sanctioned a loan of Rs.35,05,000/- and disbursed a sum of Rs. 26,78,822/-; that the complainants altogether paid Rs.36,02,553/- as against the total sale consideration of Rs.46,18,658/- and agreed to pay the balance sale consideration in accordance with the terms and conditions of the Agreement of Sale; that the possession shall be delivered by December, 2011 including the grace period and in case of failure, agreed to pay rental value of Rs.10/- per sq. ft. per month for the delayed period w.e.f. December,2011; that the complainants went to the site and found that there is no progress in the construction and they got issued legal notice dt.24.12.2018 to the opposite parties for which no reply was given; hence, the complaint seeking for the reliefs as stated supra.
03). Opposite parties 1 to 3 filed written version and brief averments of the same relevant to the facts are that, there is no 4 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 complainant entered into an agreement on 22.2.2009 as per which the opposite parties are alleged to handover the possession within three years from the date of Agreement with a grace period of 6 months as per the Clause VIII, but the complainant keep 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 parties 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; with these pleas the opposite parties prayed for dismissal of the complaint with exemplary costs.
04). The complainant filed Evidence Affidavit as PW.1. Exs.A1 to A18 are marked on behalf of the complainant. Mr.Hari Challa (opposite party no.2), Managing Director of opposite party no.1 filed evidence affidavit as DW.1 and got marked Exs.B1 to B18. Mr.Venkat Prasanna Challa, Director of opposite party no.1 filed further evidence affidavit as DW.2 and got marked Ex.B19.
Heard arguments on both sides.
505). Basing on the pleadings on both sides, the following are the points for consideration:
i. Whether the opposite party is
deficient in services and adopted
unfair trade practice towards the
complainants ?
ii. Whether the complainant is entitled for the reliefs as claimed?
iii. Whether the complaint is barred by time?
iv. Relief?
06). Ex.A1 is the Agreement of Sale dt.5.9.2009 and it goes to show that the total cost of flat was at Rs.46,18,658/-, out of which opposite parties have received Rs.9,23,731/-. The possession shall be handed over by December,2011 with a grace period of 6 months i.e. on or before 1.7.2012. Tripartite Agreement goes to show that the bank disbursed various amounts on different dates altogether Rs.26,78,822/-. Ex.B19 goes to show that on 11.9.2018 , opposite parties paid Rs.1 lakh in loan A/c.No.31071835379 of the PW.1 and the same was admitted by the complainant counsel. The main relief for the complainants is for refund of amount. The opposite parties agreed to refund the same.
07). It is the contention of opposite parties that the complaint is barred by time and it cannot be looked into in view of the presence of Arbitration Clause etc. The law is very well established that in the case of construction activities, there is no question of limitation aspect until the opposite party refused to perform his part of contract. In the case on hand never PW.1 contended refusal to perform his part of the contract. In the same manner in several judgements rendered by the Hon‟ble NCDRC and Hon‟ble Supreme Court, it is clarified that Arbitration Clause is not an obstacle for the Consumer Commissions to proceed with the case and to decide the aspect of deficiency in service or unfair trade practice if involved. Points are answered accordingly.
08). In the result, complaint is partly allowed directing the opposite parties 1 to 3 to refund a sum of Rs.9,23,731/- to the complainants with interest @ 10% p.a. from the date of 6 respective receipt of payments till the date of payment. The opposite parties 1 to 3 are further directed to clear the entire loan account of the complainants with opposite party no.4 The opposite parties 1 to 3 shall also pay compensation of Rs.50,000/- and costs of Rs.20,000/- to the complainants.
Time for compliance is one month.
(Dictated to Steno, transcribed and typed by her, corrected and pronounced by us in the open Court on this 20TH day of March, 2023).
SD/- SD/-
MEMBER(J) MEMBER(NJ)
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Dated: 20.3.2023 APPENDIX OF EVIDENCE Witnesses examined For the complainant For the opposite parties Evidence Affidavit of the GPA E.A of Mr.Hari Challa Holder of complainants as -Managing Director of the. PW.1 PW.1filed. Opp.party no.1 as DW.1 filed.
Further Evidence Affidavit of Venkat Prasanna Challa, Director of opp.party no.1 as DW.2 filed.
Exhibits marked on behalf of the complainants:
Ex.A1 : Photostat copy of Agreement of Sale dt.5.9.2009 between complainants and opposite parties. Ex.A2 : Photostat copy of Customer Information issued in favour of complainant Ex.A3 : Photostat copies of cheques issued in favour Opp.party.
Ex.A4 : Photostat copy of receipt issued by O.P. for the part Payment of Rs.2,50,000/- made by complainant no.1. Ex.A5 : Photostat copy of receipt dt.9.9.2009 issued by O.P. for the payment of Rs.3,00,000/- made by complainant no.1.
Ex.A6 : Photostat copy of receipt dt.11.2.2010 issued by O.P. for the payment of Rs.1,22,591/- made by complainant no.1.
Ex.A7 : Photostat copy of Statement of Account of complainant from 20.8.2009 to 19.9.2009 with HDFC Bank. Ex.A8 : Photostat copy of lr. dt.23.2.2010 from SBI to the Complainants.
Ex.A9 : Photostat copy of lr.dt.20.10.2010 from opp.party to the complainants.
Ex.A10: Photostat copy of lr.dt.19.12.2011 from the Complainants to the Asst. Gen.Manager, RACPC,SBI.7
Ex.A11: Photostat copy of lr.dt.2.3.2012 from the Complainants to the Assbt. Gen.Manager, RACPC,SBI. Ex.A12 : Photostat copy of lr.dt.14.9.2012 from the Complainants to the Asst. Gen.Manager, RACPC,SBI. Ex.A13 : Account Statement from 23.9.2015 to 23.3.2016 of complainants with SBI.
Ex.A14 : Photostat copy of Ledger Account from 1.4.2006 to 31.8.2018 maintained by opp.party along with Mail correspondence.
Ex.A15 : E-mail correspondence.
Ex.A16 : Original General Power of Attorney given by the complainants.
Ex.A17 : Copy of legal notice dt.24.12.2018 issued on behalf of the complainants to the opposite parties. Ex.A18 : Originals of postal receipts and acknowledgement cards.
Exhibits marked on behalf of the opposite parties:
Ex.B1 : Photostat copy of lr.dt.31.12.2007 from Principal Secretary to Govt. , MA & UD Dept., A.P. Secretariat, Hyd. addressed to the Vice Chairman, HUDA. Ex.B2 : Photostat copy of G.O.Ms.no.288 dt.3.4.2008. Ex.B3 : Photostat copy of Lr.Dt.5.5.2007 from the Collector & Dist. Magistrate, Medak to the Vice Chairman & M.D.,HUDA.
Ex.B4 : Photostat Copy of the Minutes of the Meeting of the MSB Committee meeting for HUDA area held on 29.2.2008 .
Ex.B5 : Photostat copy of lr.dt.31.3.2008 from the HUDA to the Principal Secretary to Govt. , MA & UD Dept., Govt. of A.P.,Secretariat, Hyd.
Ex.B6 : Photostat copy of lr.dt.11.4.2008 from the HUDA to the opp.party.
Ex.B7 : Photostat copy of lr.dt.11.4.2008 from the HUDA to the Executive Authority, Tellapur Gram Panchayat, Ramachandrapuram Mandal, Medak Dist. Ex.B8 : Photostat Copy of the Minutes of the Meeting of the MSB Committee Meeting for HUDA area held on 5.6.2008.
Ex.B9 : Photostat copy of lr.dt.14.10.2009 from HMDA to the Executive Authority, Tellapur Gram Panchayat, Ramachandrapuram Mandal, Medak Dist. Ex.B10: Photostat copy of Lr.Dt.12.8.2008 from Ministry of Environment & Forests to the Opposite party. Ex.B11: Photostat copy of lr.dt.24.11.2009 from the Principal Secretary to Govt. MA & UD Dept., A.P. Secretariat, Hyd. to the opp.party.
Ex.B12: Photostat copy of lr.dt.8.10.2010 from the opp.party to the Director (Plg) & I/c Member (UP) , HMDA. Ex.B13: Photostat copy of lr.dt.28.3.2011 from HMDA to the opp.party.
Ex.B14: Photostat copy of Cash Acknowledgement Receipt issued by HMWSSB.
Ex.B15: Photostat copy of certificate issued by IGBC on behalf of the Aliens Space Station 1.
Ex.B16: Photostat copy of Certificate issued by CITYSCAPE -
Awards - Real Estate -Asia 2009 on behalf of Space Station 1 by Aliens Developers Pvt.Ltd.8
Ex.B17: Photostat copy of lr.dt.2.11.2015 from the opposite party to the owner of the flat no.2782.
Ex.B18: Photographs of apartments and flat owners. Ex.B19 : Details of Payment made by the opp.party to the complainant.
SD/- SD/-
MEMBER(J) MEMBER(M)
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Dated :20.3.2023.