State Consumer Disputes Redressal Commission
Sanjay Dheer, S/O. J.K. Dhir, Aged About ... vs 1. M/S. Mantri Developers Private ... on 28 March, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana Complaint Case No. CC/86/2013 1. Sanjay Dheer, S/o. J.K. Dhir, Aged about 45 Years, R/o. Flat No.109, Mertro Plam Grove, Somajiguda, Hyderabad, Presently residing BAHRAIN Rep. by its GPA Holder Shri Jagdishkumar Dhir, 2. S/o. Trilochand Das Dhir, aged 75 Years, Occ: Metro Plam Grove, Somajiguda Hyderabad. ...........Complainant(s) Versus 1. 1. M/s. Mantri Developers Private Limited, a company incorporated u nder the companies Act, 1956, Having its registered office at "Mantri House" NO.41, Vittal Main Ropad, Bangalore-560 001. 2. Rep. by its Managing Director Sri Sushil Mantri Also at: # 126 & 127, Nanakraguda, Gachibowli, Hyderabad-500 008. 3. 2. The Managing Director, M/s. Mantri Developers Private Limited, A company incorporated under the companies Act, 1956, Having its registered office at 'Mantri House' No.41, vittal Main Ropad, Bangalore-560 001. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT For the Complainant: For the Opp. Party: ORDER
STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA :
AT HYDERABAD CC NO. 86 OF 2013 Between :
Mr.Sanjay Dheer, S/o J.K.Dhir, Aged about 45 years, occ: Pvt. Service, R/o Flat No.109, Metro Palm Grove, Somajiguda, Hyderabad, presently Residing at Bahrain, Rep. by his GPA holder Shri Jagdish Kumar Dhir, S/o Trilochan Das Dhir, aged 74 years, Occ: Retd. Employee, R/o Flat No.109, Metro Palm Grove, Somajiguda, Hyderabad.
Complainant And 1) M/s Mantri Developers Private Limited, a Company incorporated under the Companies Act, 1956, having its registered office at 'Mantri House' No.41, Vittal Main Road, Bangalore - 560 001, Rep. by its Managing Director Sri Sushil Mantri. Also at : # 126 & 127, Nanakramguda, Gachibowli, Hyderabad - 500 008. 2) Sri Sushil Mantri, The Managing Director, M/s Mantri Developers Private Limited, a Company incorporated under the Companies Act, 1956, having its registered office at 'Mantri House' No.41, Vittal Main Road, Bangalore - 560 001. Opposite parties Counsel for the Complainant : M/s M.Amarnath & Associates Counsel for the Opposite parties : Ms.Shireen Sethna Baria Coram : Hon'ble Sri Justice B.N.Rao Nalla ... President Monday, the Twenty Eighth day of March Two thousand Sixteen Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) ***
The complaint is filed under section 17 of the Consumer Protection Act, 1986 by the Complainant complaining deficiency in service against the Opposite parties 1 and 2 and claiming refund of Rs.40,72,060/- with interest @ 24% per annum from September 2009 till date amounting to Rs.9,77,294/- and further interest from the date of filing the complaint till full and final payment; to pay Rs.10,00,000/- towards mental agony and hardship; to pay Rs.7,18,800/- towards hiked rate of property @ Rs.600/- per sft; to pay Rs.1,28,000/- towards cost of plane tickets and to pay Rs.2 lakhs towards one month salary; to pay Rs.50,000/- towards legal expenses.
2. The Opposite parties made wide publicity to the general public through various media informing that they are developing a gated community apartments in the name and style M/s Mantri Celestia, situated at Nanakramguda village, Serilingampally mandal, Ranga Reddy district representing that they got permissions from concerned for construction also promising to provide recreation club, swimming pool, tennis courts, open spaces for parks, street lights, plantation, etc., Induced by such representation, complainant intended to purchase a flat No.1904, on 19th floor, F-block, admeasuring 1198 sft. equivalent to 111.34 sq. meters together with undivided share of land with one covered car parking for a consideration of Rs.41,65,380/- and accordingly Opposite parties entered into an agreement of sale and agreement for construction of the flat promising to complete the construction and handover the flat on or before 31.12.2011.
3. It is stated that the complainant paid the monies on various dates through cheques amounting to Rs.40,72,060/-, details of which are shown in the table therein, having obtained the same from HDFC Bank Limited in the form of loan, but the Opposite parties have not completed the construction of apartment in all respects and not provided the agreed common basic amenities. Only structure of the apartment was completed and later abandoned further construction without any reason. Internal and external plastering of apartment, flooring, painting, sanitaryware, doors and windows, kitchen platform, etc., are not provided. As a result of which, Complainant is paying interest and loosing rentals due to abnormal delay in completion of the apartment and himself and his family members are put to serious inconvenience, hardship, mental agony apart from irreparable financial loss.
4. Complainant stated to have made several phone calls requesting and reminding the Opposite parties for completion of the apartment as per schedule and also made several personal visits. Complainant has come to India by spending Rs.1,28,000/- towards plane tickets and lost one month salary of Rs.2.00 lakhs by applying leave for one month, but there is no response from the opposite parties. In the meantime, the price of the property has been increased by Rs.600/- per sft., hence, claiming Rs.7,18,800/- @ Rs.600/- for 1198 sft. He also got issued notice to which the Opposite parties gave false reply giving vague answers. The action of the Opposite parties in not handing over the possession of the flat within the scheduled time amounts to deficiency of service and unfair trade practice. Hence the present complaint with the relief, as stated supra.
5. The Opposite parties resisted the claim on the premise that the Opposite party No.2 is erroneously arrayed as he is the Managing Director of Opposite party No.1; that there is no cause of action against the Opposite party No.2 and no relief is claimed against him and he is made a party only with a view to harass and malign to arm twist the Opposite party No.1 to settle the matter. It is stated further that a bare perusal of the complaint makes it clear that it is for recovery of money which is in the realms of a civil court and not before this Commission, therefore deserves to be dismissed with exemplary costs. This Commission is a coram non judice and has no jurisdiction to entertain the present complaint.
6. The present dispute, if at all, pertains to an alleged breach of contract and the consequences arising therefrom, as such, the remedy available to the parties, lies elsewhere and not before this Commission. The sole purpose for filing the complaint before this Commission is to avoid payment of court-fee and to avoid the consequences of breach. The claims raised in the present complaint are untenable and contrary to the provisions of the agreement between the parties. With regard to any dispute between the parties, arbitration is provided in the agreement, hence this complaint is not maintainable in limine.
7. The Complainant approached for purchase of Flat No.1904 in 19th floor of F-Tower with a built-up area of 1198 sqft. @ Rs.3310/- per sft in the apartment promoted by Opposite party under the name and style 'Mantri Celestia' for which he submitted application for allotment by paying the fee of Rs.2,08,269/- and there after he failed to pay the amounts in time, but made delayed payments, which is evidenced by demand letters dated 16.08.2010. The Opposite party No.1 has done all that was required and in-line with the construction agreement, intimating the Complainant about the delay in progress and completion of the work on account of 'Force Majeure' conditions vide its letters dated 21.11.2011 and 24.12.2012 and the reasons being (i) civil commotion, strikes, agitations and public disturbances on account of Telangana agitation, (ii) flooding of the project site from the adjacent lake due to heavy rains, (iii) disruption in supply of cement, sand and other material on account of civil disturbances and (iv) migration of labour resulting in shortage of labour, which were beyond the control of the Opposite parties.
8. In good faith and in order to ensure customer satisfaction, the Opposite parties have upgraded the specifications of apartment of the Complainant without collecting any additional amounts towards the upgraded specifications and the same was intimated to complainant vide letter dated 24.12.2012, which shows considerable progress in execution at the site under difficult circumstances and is committed to build a landmark project. The Opposite party is in the business of building world class residential properties, IT parks, shopping complexes, commercial buildings and educational institutions and is one of the leading real estate developers in the Country. In a span of just 13 years, the Company has delivered over 6,000 homes, built 20 projects and has to its credit over 10 million square feet of constructed area, over 30,000 satisfied residents and over one crore feet under various stages of construction. The Company has created a brand name for itself and the delay in completion in the said project is not intentional but due to reasons beyond the control. Therefore, there is no reason that Opposite party would indulge in delays and bonafide efforts are made to complete the project on time or more so because it is their flagship project in Hyderabad and it would not do anything to jeopardize its hard-earned reputation.
9. That, it fairly intimated to the Complainant that as per clause 6.1 of the Construction Agreement dated 05.09.2009, the conditions stipulated for handing over possession or delivery of the apartment described in clause 6.4 of the Agreement is subject to variation on account of force majeure and various factors. As such, Complainant shall not be entitled to claim any damages/losses. The complainant has ignored the contractual mandate for arbitration and rushed to this Commission to somehow indirectly enforce the terms of the contract by these proceedings and seemingly with an intent to claim something which is beyond the scope of the agreement.
10. That, adjudication of force majeure conditions is a preliminary issue that has to be dealt before the matter proceeds on the secondary issue concerning the application of consumer dispute. Complainant signing the agreement for sale dated 05.09.2009 for consideration of Rs.41,65,380/- is admitted but stated he is still due Rs.9,17,298/- and non-payment of the same disentitles him from claiming conveyance of the apartment, until he fulfils and performs all his obligations and completes all payments as agreed under the agreements. The delay in construction and consequent execution of sale deed is solely on account of force majeure conditions. Complainant filed the present complaint on false and frivolous allegation to pressurise and harass the Opposite parties so as to wrongly enrich himself at their cost. In any event, in seeking refund of amount, the complainant has sought to cancel the transaction. And in that event, the terms and condition No.6 would attract, hence, claiming compensation is, therefore, untenable and fortuitous in nature.
11. There arose no cause of action to file the present complaint and the jurisdiction has been wrongly invoked. The actions and reactions of parties flow from the contract and is remedied under the contract itself under the Indian Contract Act and not under the Consumer Protection Act since elements to constitute deficiencies are prima-facie absent in the present case. Hence, prayed to dismiss the complaint with exemplary costs.
12. During pendency of proceedings, the Opposite parties herein filed an application being CCIA 2206/2013 seeking to strike down the name of the Opposite party No.2 from the array of the cause title and subsequently not pressed the same for the reasons best known.
13. On behalf of the Complainant, Jagdish Kumar Dhir, GPA holder of Complainant filed his affidavit and the documents, Exs.A1 to A12. On behalf of the Opposite parties, one S.Ravi, General Manager of the OP No.1 Company has filed the affidavit and the documents, Ex.B1 to B3. Ex.A1 is copy of Agreement for sale, dated 05.09.2009 entered into by the Vendors consisting of nine members and the Developer i.e., Opposite party No.1 on one part and the Complainant as purchaser on the other; Ex.A2 is copy of Agreement for construction entered into between Opposite party No.1 and Complainant, dated 05.09.2009; Ex.A3 is copy of provisional receipt for Rs.2,08,269/-, dated 25.07.2009 passed by Mantri Developers Pvt., Ltd., acknowledging the receipt of amount from Mr.Sanjay Dheer. Likewise, Ex.A4 is copy of provisional receipt for Rs.2,08,269/- dated 05.09.2009; Ex.A5 is copy of receipt for Rs.11,24,652/-; Ex.A6 is copy of receipt for Rs.4,99,846/-; Ex.A7 is the copy of receipt for Rs.4,99,846/-; Ex.A8 is the paper clipping with the caption 'Mantri to replace Maytas in H'bad Landmark Project'; Ex.A9 is the copy of General Power of Attorney executed by Complainant in favour of Jagdish Kumar Dhir, his father on 23.12.2008; Ex.A10 is the office copy of notice got issued by Complainant to the landowners and Developer, dated 12.03.2012; Ex.A11 are the original postal acknowledgements numbering (9) acknowledged by the Opposite party No.1 and other land owners; Ex.A12 is the reply got issued by the Opposite party No.1 to Ex.A10 notice. While Ex.B1 is the copy of extract of minutes of the meeting of sub-committee of Board of Directors of the Company held on 10.00 AM on Tuesday, 02.11.2010 at # 41, Vittal Mallya Road, Bangalore; Ex.B2 is the copy of letter dated 16.08.2010 asking the Complainant to pay the balance amount of Rs.5,53,039.16 and Ex.B3 is the replica of Ex.A12 reply.
14. The points for consideration are :
i) Whether the complaint is maintainable in view of arbitration clause in the agreement of sale ?
ii) Whether the complaint is not a 'consumer dispute'? iii) Whether there is any deficiency in service on the part of the Opposite parties? iv) To what relief ?
15. POINT NO.1 : The Complainant entered into "Agreement of sale" on 05.09.2009 with the Opposite party No.1 and other land owners for purchase of flat bearing No.1904, Building No.-F, on 19th floor of Mantri Celestia super built area measuring 1198 square feet and the agreement of sale provides reference to arbitration. The learned counsel for the opposite parties has contended that in view of the arbitration clause in the agreement, the Complainant cannot maintain the complaint before this Commission. Clause 10.0 of the Agreement of sale provides for deciding the disputes arising under the agreement by arbitration proceedings reads as under:
"In the event of any dispute or difference arising between the Parties hereto with regard to any matter relating to or connected with this Agreement, or the construction of the Apartment, the same shall be resolved by Arbitration by a sole Arbitrator from the "Confederation of Real Estate Developers Association of India - Andhra Pradesh" (CREDAI-Andhra Pradesh), whose decision shall be final and binding on all the parties and the Courts at Hyderabad alone shall have the exclusive jurisdiction to try all suits and other proceedings with regard to this Agreement."
16. In terms of the agreement of sale, the dispute has to be decided by means of arbitration. However, remedy provided under the provisions of Consumer Protection Act is an additional remedy and in the light of law 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 complainant 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 an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force."
For the above reasons, the Point No.1 is answered in favour of the Complainant and against the Opposite parties.
17. In the written version, it is contended that the relief sought by complainant is recovery of money and the said remedy is in the realm of a civil court and not before this Commission and as such, this Commission is a 'coram non judice' and has no jurisdiction to entertain the complaint. In this regard, it is necessary to discuss the definitions as provided under Section 2 of the Act.
"Complainant" means,
(i) a consumer; or
(ii) any voluntary consumer association registered under The Companies Act, 1956 or under any other law for the time being in force; or
(iii) the Central Government or any State Government, who or which makes a complaint;...........
"complaint" means any allegation in writing made by a complainant that,
(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider,
(ii) the goods bought by him or agreed to be bought by him suffer from one or more defects;
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;
(iv) a trader or the service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price (a) fixed by or under any law for the time being in force, (b) displayed on the goods or any package containing such goods; (c) displayed on the price list exhibited by him or under any law for the time being in force; (d) agreed between the parties; (v) goods which will be hazardous to life and safety when used are being offered for sale to the public, (A) in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force; (B) if the trader could have known with due diligence that the goods so offered are unsafe to the public; (vi) services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety; with a view to obtaining any relief provided by or under this Act; "consumer" means any person who- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
"consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint;
"deficiency" means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;
"person" includes (i) a firm whether registered or not; (ii) a Hindu undivided family; (iii) a co-operative society; (iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not;"
From the reading of contents of the complaint, it is crystal clear that the Opposite party No.1 herein agreed to provide services to the Complainant for an agreed consideration as enunciated in the Agreement of sale dated 05.09.2009 and further Agreement for Construction which is also executed on the same day by way of sale of Flat in question duly constructed in all respects. Admittedly, the Opposite party No.1 did not deny the receipt of consideration of Rs.40,72,060/- as shown in the tabular form in the complaint. As the Opposite party No.1 failed to comply with the agreed terms of the agreement, the subject complaint is filed complaining deficiency on the part of the Opposite parties. Viewed from any angle, in pursuance of the above definitions, the 'consumer dispute' is made out as also 'deficiency in service' is pointed-out, hence, this complaint falls squarely within the definition and meaning of consumer dispute.
18. The Opposite party No.1 would further contend that there was delay in completion of the project on account of (i) civil commotion, strikes, agitation and public disturbances on account of Telangana agitation, (ii) flooding of the project site from the adjacent lake due to heavy rains, (iii) disruption in supply of cement, sand and other material on account of civil disturbances and (iv) migration of labour resulting in shortage of labour. As regards alleged shortage of labour, no material has been placed on record by the Opposite parties that despite trying, it could not get labourers to complete the construction of the project within the time stipulated in the agreement. It is also not stated by the Opposite parties whether it engaged the labour on its own or contracted the labour for above purpose. Even there is no evidence of the Opposite parties inviting any tenders for appointment of contractors/sub-contractors for executing the work at the site of the project and no contractor having come forward to execute the project on the ground that adequate labour was not available in the market. Therefore, this Commission is not inclined to accept this contention. As regards the alleged disruption of supply of cement, sand and other material on account of civil disturbances and migration of labour resulting in shortage of labour, this Commission does not find any evidence led by the Opposite parties, to prove that it was unable to procure the same in adequate quantity. Admittedly, the Opposite parties agreed to deliver the possession of the flat on or before 31.12.2011. The total land cost was mentioned as Rs.16,89,180/- under Annexure-A1 while the construction cost was mentioned as Rs.24,76,200/-, altogether amounting to Rs.41,65,380/-. As against this amount, the Complainant paid an amount of Rs.40,72,060/- leaving a peanut of Rs.93,320/-. Annexure-A2 provides for payment as detailed below:
On booking 5% On agreement execution 10% On foundation 15% On 4th Basement Roof slab 12% On fifth floor Roof slab 12% On tenth floor Roof slab 12% On fifteenth floor roof slab 12% On twentieth floor roof slab 12% On last floor roof slab 5% On possession 5%
As per the above schedule, it is not explained by the Opposite parties as to where they stand. Even as on date, the Opposite parties failed to inform this Commission what is the present status of the construction project, which they are bound to, which establishes a clear case of deficiency. Having retained the amount for such long years and having failed to construct the flat in time and deliver the possession, the Opposite parties are liable to compensate the complainant.
19. From the perusal of the Agreement for sale and Agreement for construction Ex.A1 and A2 respectively, the time the opposite party promised to deliver possession in 27 months. Nothing is placed on record by the Opposite parties to show having invited any tenders for supply of cement, sand and other material and there being no response to such tenders. In fact, if the work is to be executed through contractors/sub-contractors, the material such as cement, sand, bricks and other material or even water will be arranged by the contractor/sub-contractor and not by the opposite party. Therefore, this Commission finds no merit in the plea that the completion of the project was delayed due to non-availability of bricks, sand and other material. It is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum or even a Court to revise the said terms. In spite of having knowledge of the same, the Opposite parties are harping on the clause 'force majeure'. Coming to this aspect, the Opposite parties failed to explain the cogent reasons time and again for years together to take the shelter of 'force majeure'. Having experienced the different ordeals which engulfed time and again, the Complainant might have knocked the doors of this Commission by way of the present complaint. However, a term of a contract, in view of this Commission will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice. Even as on date it is not informed to this Commission by the Opposite parties whether the subject property is completed in all respects or not except placing its reliance on letter dated 24.12.2012. Admittedly, the same is not filed by the Opposite parties so as to enable this Commission to go through the same.
20. Under Ex.A1, there is a provision of clause for charging interest on the defaulted instalments at the rate of 1.5% per month from the date of default till the date of payment. No sensible person will volunteer to accept such a clause. It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable. The builder charges interest @ 1.5% per annum in the event of the delay on the part of the Complainant/buyer in making payment to him but seeks 'force majeure' clause. Even no clause in the reverse manner is incorporated by the Opposite parties, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer. Such a term in the Agreement for sale also encourages the builder to divert the funds collected by it for one project to another project being undertaken by it.
21. This Commission would be eager to state that in K.A. Nagmani Vs. Housing Commissioner, Karnataka Housing Board, CA No.6730-6731 of 2012 decided on 19.09.2012, the complainant who was awarded interest by National Commission at the rate of 12% per annum on the refund amount, felt aggrieved and approached the Hon'ble Supreme Court for grant of a higher interest. Despite the respondent in the above referred matter being a statutory body unlike the opposite parties herein which is a private builder, the Hon'ble Supreme Court, relying upon its earlier decision in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, and noticing that the complainant was suffering a loss inasmuch as she had deposited the money in the hope of getting a flat but was being deprived to get the flat and thereby deprived of the benefit of escalation of the price of the flat held, that the compensation would necessarily be higher. The Hon'ble Supreme Court, therefore, granted interest to the complainant at the rate of 18% per annum from the date of deposit till the date of realization along with further compensation quantified at Rs.15,000/- for deficiency in service and Rs.20,000/- towards the cost of litigation.
22. For holding huge amount of Rs.40,72,060/- pertain to Complainant for years together, no reasons are assigned by the Opposite parties, which is not permissible as a matter of right. Even there is no clause for payment of any interest for retaining the amount, in case of delay in completion of the project. Hence, the clause of charging interest for delayed payments, does not apply to a case where the buyer on account of delay on the part of the seller in constructing the flat is left with no option but to seek refund of the amount which he had paid to the seller and it would have to be declared ultra vires. The terms of agreement shall be further held that such a clause where the seller in case of default on the part of the buyer seeks to recover interest from him at the rate of 1.5% will amount to an unfair trade practice since it gives an unfair advantage to the seller over the buyer. It is to be noted in this regard that enumeration of the unfair trade practices in Section 2(r) of the Act is inclusive and not exhaustive. Since gross deficiency on the part of the opposite party in rendering services to the complainant is clearly established on account of its not having completed the project even in about seven years from the date the flats were agreed to be sold to the complainant though they had agreed to deliver the possession to Complainants within a period of 27 months, the complaint is clearly maintainable and the contents of complaint do constitute a 'consumer dispute'. Hence, the points 1 to 3 under paragraph No.14, supra, are answered in favour of the Complainant and against the Opposite parties.
23. While advancing arguments, the counsel for Complainant reiterated the same facts as averred in the complaint besides stating that the Opposite parties 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 Contract Act supported by the Judgment of Hon'ble Apex Court in Brij Pal Sharma Vs. Ghaziabad Development Authority reported in III (2005) CPJ 43 (SC) and submitted that the Apex Court opined that grant of interest @ 18% p.a. by way of damages and compensation is justified. He further relied on decision in Ghaziabad Development Authority Vs.Balbir Singh reported in II (2004) CPJ 12 wherein it is stated "in our view, irrespective of 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. The opposite parties would contend that the cause for delay is beyond their control which is 'force majeure', which is not acceptable by any stretch of imagination.
24. The complainant had submitted that owing to failure of the opposite parties in completing the construction of the flat, he opted for cancellation of the Agreement for sale and Agreement for Construction of flat. The opposite parties have promised to complete construction of the flat and hand over its possession to the complainant within three years from the date of the Agreement for sale and Agreement for construction and on their failure to perform their part of contract.
25. Not keeping promise to complete construction of the building and failure to deliver possession of the flat constitutes deficiency in service on the part of the opposite parties. The complainant had two options left for recovery of the amount, either by filing suit in court of law or by way of filing complaint before State Consumer Disputes Redressal Commission in view of the amount claimed falling within the pecuniary jurisdiction of this Commission. The contention of the opposite parties that the complaint is not maintainable is not sustainable.
26. The counsel on behalf of the Complainant relied on the decision reported in CDJ 2014 (Cons.) Case No.810 = 2014 (3) CPR 142, in the case of Subhash Chander Mahajan & others Versus Parsvnath Developers Ltd., decided on 05.05.2014, wherein it is observed as follows:
"It must be borne in mind that there is a huge delay in handing over the possession of the premises in dispute i.e., about four years. The OP has made attempt to feather its own nest i.e., to make profits for itself at the expense of others. The grant of Rs.2.00 lakhs or Rs.3.00 lakhs for such a huge delay will be unjust and unfair. The complainants Subhash Chander Mahajan and his wife are compelled to live in the house of their daughter. They do not have any independent house to live in. Their harassment and mental agony cannot be equated by payment of a few peanuts. The OP has played fast and loose with the consumers.
Keeping in view the facts and circumstances of these cases, we accept both these complaints, partly, and direct the OP, in CC No.144/2011, to pay a sum of Rs.50,78,998/- with interest @ 18% p.a., from the date of deposit, till its realization. It is further directed to pay compensation in the sum of Rs.7.00 lakhs, (@ Rs.1,00,000/- per year, from 2007 onwards) within a period of 90 days from the date of this order, for harassment, mental agony, anguish, frustration, anger and sadness, otherwise, after the expiry of 90 days', it will carry interest @ 24% p.a. till its realization. We also grant a sum of Rs.2,00,000/- towards costs of this case."
This Commission is in total agreement with the contention of the learned counsel for the Complainant in view of the fact that there was inordinate delay in completion of the project and it is not known as on date whether the project is complete or not. This act on the part of the Opposite parties has caused much inconvenience, hardship, harassment, frustration, distress, agony etc., to the Complainant which necessitated him to seek refund of the amount.
27. On the other hand, the learned counsel for the Opposite parties relied on the following decisions.
i) (2007) 6 Supreme Court cases 711 in the case of Bangalore Development Authority Versus Syndicate Bank.
ii) 2008 (5) ALLMR 815, 2008 (110) BOMLR3204 in the case of Friends Cooperative Housing Society Limited duly registered under the Maharashtra Cooperative Societies Act, 1960 and others etc., Vs. The Nagpur Improvement Trust through its Chairman, the State of Maharashtra through its Secretary, Department of Urban Land Development, Matru Seva Sangh a society registered under the Bombay Public Trusts Act through its Secretary and Sati Mata Shikshan Sanstha through its secretary and others decided on 29.08.2008.
iii) AIR 1981 Supreme Court 679 in the case of M/s New Bihar Biri Leaves Co., and others Vs. State of Bhiar and others and in other cases.
This Commission has perused the Judgments cited by the learned counsel. The facts in the case on hand are different from the facts therein, hence, the same have no applicability to the present case.
28. The complainant claimed refund of Rs.40,72,060/- with interest @ 24% per annum from September 2009 till 11.05.2012 amounting to Rs.9,77,294/- as also future interest besides claim for of Rs.10,00,000/- for mental agony and hardship with other reliefs. The complainant acquiesced to the delay in construction of the project.
29. It is pertinent to state here that Complainant filed Ex.A3 to A7, showing payment of Rs.27,49,151/- as against amount of Rs.40,72,060/- sought to be claimed. Admittedly, the payment of amount of Rs.40,72,060/- is not disputed by the Opposite parties, which is evident from Ex.A10 notice got issued by the Complainant and Ex.B3 reply given by the Opposite parties.
30. In the above facts and circumstances, the points 1 to 4 are answered accordingly holding that the Opposite parties are jointly and severally liable to pay the amounts to the Complainant.
31. In the result, the complaint is allowed holding that Opposite parties 1 and 2 are jointly and severally liable and they are directed to pay an amount of Rs.40,72,060/- with interest @ 12% p.a. from the date of respective payments till realisation, together with costs of Rs.10,000/- and are further directed to pay compensation of Rs.1,00,000/- for rendering deficiency in service and on account of causing agony, pain, inconvenience, hardship, etc., Time for compliance four weeks.
PRESIDENT Dt: 28.03.2016 APPENDIX OF EVIDENCE WITNESSES EXAMINED For Complainants : For Opposite parties : Affidavit evidence of Mr.Jagdish Affidavit evidence of Mr.S.Ravi Kumar Dhir, GPA holder of General Manager of OP No.1. Complainant. EXHIBITS MARKED For Complainant : Ex.A1 Copy of Agreement for sale of flat No.1904, 05.09.2009. Ex.A2 Copy of Agreement for construction, dated 05.09.2009. Ex.A3 Copy of provisional receipt for Rs.2,08,269/-, dated 25.07.2009. Ex.A4 Copy of provisional receipt for Rs.2,08,269/-, dated 05.09.2009. Ex.A5 Copy of receipt for Rs.11,24,652/-, dated 31.03.2010. Ex.A6 Copy of receipt for Rs.4,99,846/-, dated 20.05.2010. Ex.A7 Copy of receipt for Rs.4,99,846/-, dated 21.08.2010.
Ex.A8 paper clipping with the caption 'Mantri to replace Maytas in H'bad Landmark Project', published in Economic Times.
Ex.A9 Copy of General Power of Attorney, dated 23.12.2008 executed by Sri Sanjay Jagdish Dheer, Complainant in favour of Jagdish Kumar Dhir.
Ex.A10 Office copy of notice got issued by the Complainant to the land owners and the Opposite parties, dated 12.03.2012.
Ex.A11 are the original postal acknowledgements numbering (9) acknowledged by the OP No.1 and other land owners.
Ex.A12 reply got issued by the OP No.1 to Ex.A10 notice.
For Opposite parties :
Ex.B1 Copy of extract of minutes of the meeting of Sub-Committee of Board of Directors of the Company held on 10.00 AM on Tuesday, the 2nd November 2010 at # 41, Vittal Mallya Road, Bangalore.
Ex.B2 Copy of letter dated 16.08.2010 asking the Complainant to pay balance amount of Rs.5,33,039.16.
Ex.B3 copy of reply got issued by the Opposite party No.1 to Ex.A10 notice.
PRESIDENT Dt: 28.03.2016 *nrk [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT