State Consumer Disputes Redressal Commission
Dr.Hs Jain vs M/S. Aliens Developers P. Ltd., on 20 March, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.12/2019
Between :
Dr.HS Jain,
S/o.Mr.Gulab Chand, aged about 66,
R/o.C-1802, Aparna Sarovar Grande,
Nallagandala, Serilingampally Mandal,
Rangareddy District,
Hyderabad - 500 107. ... Complainant
And
M/s.Aliens Developers (P). Ltd.,
Rep. by its Managing Director and
Joint Managing Director,
Mr.Hari Challa &
Mr.Venkat Prasanna Challa,
O/o.Ms.Aliens Space Station, Tellapur,
Ramachandrapuram Mandal, Medak Dist.,
Hyderabad - PIN 502 032, ... Opposite party
Counsel for the Complainant : M/s. V.Appa Rao
Counsel for the Opposite Party : M/s.P.Raja Sripathi Rao
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 on 27.12.2018 u/s.17(1)(a)(i) of
the Consumer Protection Act, 1986 for directions to the
opposite party as under:
i. To refund the sale consideration received
of Rs.39,81,197/- with interest @ 20%
p.a. from respective dates of sale
consideration received by opp.party till
the payment of the same; or alternatively
to complete the flat as per agreed
specifications and deliver possession of
the same forthwith with same cost as
agreed in the agreement of sale and
registration of the same as required under
2
law and also to provide Occupancy
Certificate;
ii. to pay Rs.5 lakhs towards
compensation;
iii. to pay fair rent of Rs.10/- per sq.ft. of
super built up area per month w.e.f.
1.3.2012 ; and iv. to pay legal charges of Rs.50,.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 agreed to purchase a flat on the offer made by the opposite party i.e. Flat no.402 , Station -2 , 4th floor in the Space Station-1 comprising super built up area of 1597 sq.ft. and one car parking besides undivided share of land to an extent of 34.34 sq.yards for a total sale consideration of Rs.39,58,205/- out of which he paid Rs.27,99,063/-under receipts bearing dts.13.7.2009, 21.7.2009 & 25.11.2010 and the due date fixed for the delivery of possession was in the month of September,2011; that however, at the instance of opposite party, the complainant agreed to purchase flat no.177, Station -13 on 1st floor in Space Station-1 comprising of super built up area of 1874 sq.ft. with one covered car parking besides undivided share of land of 40.29 sq.yards for a total sale consideration of Rs.45,71,394/- out of which the complainant paid Rs.39,81,197/- including the payments made under the earlier agreement; that the complainant entered into Agreement for Reservation dt.8.10.2011; that on the recent visit to the project, the complainant noticed that the flat is being occupied by the builder for its commercial office use; that as per the agreement, the possession is to be delivered by 28.2.2012 including the grace period; that the opposite party has to pay compensation as agreed w.e.f. 1.3.2012 @ Rs.3/- per sq.ft. of 3 super built up area per month for the delay in completion of the flat; that at no point of time the opposite party informed about stages of construction or about the probable date of completion of construction; that the complainant got issued legal notice dt.4.12.2018 to the opposite party for which no response was given; hence the complaint seeking for the reliefs as stated supra.
03). Opposite party filed written version and brief averments of the same relevant to the facts are that, there is no deficiency in service; that the allegations made in the complaint are denied except those that are admitted; that the complainants have not approached the Commission with clean hands and never he asked for refund of money or for cancellation of the agreement, as such cannot claim deficiency in service; that the complaint is barred by time as the complainant entered into an Agreement on 15.7.2009 as per which the opposite party is alleged to handover the possession on or before January,2012 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 complainant not paid the entire instalments as stipulated under the Agreement for which the opposite party is entitled to cancel the allotment and forfeit earnest money; that the opposite party had fought for conversion of land from agriculture to non agriculture and after formation of HUDA has to obtain permission for agriculture zone to residential and commercial zone etc., and also with regard to the projects be in conformity with the master plan, to obtain „No Objection Certificate‟ from the Fire Services Department and on several other aspects that as per Clause XIV, the opposite party cannot be found fault with for non completion of project on time "Force Majeure"; that as per Clause VIII(g) of the Agreement, the opposite party shall pay compensation charges at Rs.3/- per sq.ft. per month, in case of failure to deliver possession, and the said amount would be adjusted to the dues payable by the 4 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 A12 are marked on behalf of the complainant. Mr.Hari Challa, Managing Director of opposite party filed evidence affidavit and additional evidence affidavit as DW.1 and got marked Exs. B1 to B19.
Heard arguments of both sides.
05). Basing on the pleadings on both sides, the following are the points for consideration:
i. Whether the complainant is entitled
for the reliefs as claimed?
ii. Whether the complaint is barred by
time?
iii. Whether there is deficiency in service
or unfair trade practice on the part of
the opposite party ?
iv. Relief?
06). At the time of arguments, opposite party counsel filed a
memo stating that prior to filing the complaint, PW.1 gave a police complaint against opposite party which is registered as FIR No. 418/2017 Dt.1.7.2017 u/s.420 and 406 IPC by the P.S.,Ramachandrapuram. Added to the same, the complainant also approached NCDRC seeking refund of the amount. Due to the above facts, they are willing to refund the amount instead of handing over the possession of the flat in question whereas the complainant counsel insisted for the delivery of possession of flat.
It is important to note that the first relief claimed in the complaint is for the refund of amount and delivery of possession of the flat is asked as an alternative relief. It is not disputed by the complainant counsel that they have approached Hon‟ble NCDRC for the refund of amount. In the above circumstances, merely because the delivery of flat is claimed under Ex.A10 legal notice, it cannot be made as a ground to demand for delivery of flat. It is to be observed that the complainant at first entered into an agreement and after paying nearly 2/3rd of the amount made to go for another flat by entering into Ex.A1. Even the said flat also not completed within time as stipulated. Out of the amount of 5 Rs.45,71,394/-, the complainant paid Rs.39,81,197/- . It means he paid nearly more than 90%. Therefore, refund shall be handed over with appropriate interest.
07). It is the contention of opposite party 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 party to refund to the complainant a sum of Rs.39,81,197/- with interest @ 12% p.a. from the date of respective payments received from the complainant till the date of realisation. The opposite party is further directed to pay compensation of Rs.2,50,000/- and costs of Rs.20,000/- . Time for compliance is one month. In case of failure to pay the amounts, compensation amount also carries interest of 12% p.a. from the date of expiry of one month till the date of payment.
(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 complt. E.A & addl. evidence aff. of as PW.1 filed. Mr.Hari Challa, Mg.Director of the Opp.party as dW.1 filed.
6Exhibits marked on behalf of the complainants:
Ex.A1 : Photostat copy of Agreement of Reservation dt.8.10.2011 between the complainant and opp.party. Ex.A2 : Photostat copy of Agreement of sale dt.15.7.2009 between opp.party and complainant. Ex.A3 : Photostat copy of receipt dt.21.07.2009 issued by O.P. for the payment of Rs.15,49,500/- made by complainant .
Ex.A4 : Photostat copy of receipt dt.13.7.2009 issued by O.P. for the payment of Rs.2,50,000/- made by complainant .
Ex.A5 : Photostat copy of receipt dt.25.11.2010 issued by O.P. for the payment of Rs.9,99,563/- made by complainant .
Ex.A6 : Photostat copy of receipt dt.8.10.2011 issued by O.P. for the payment of Rs.10,00,000/- made by complainant no.1.
Ex.A7 : Photostat copy of receipt dt.30.10.2012 issued by O.P. for the payment of Rs.1,81,500/- made by complainant.
Ex.A8 : Photostat copy of receipt dt.30.10.2012 issued by O.P. for the payment of Rs.634/- made by complainant.
Ex.A9 : Copy of lr.dt.7.10.2011 from the opp. party to the Complainant.
Ex.A10: Photostat copy of legal notice dt.4.12.2018 issued on Behalf of the complainant to opposite party. Ex.A11 : Original postal receipt. Ex.A12 : Postal track.
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 7 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. 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 : Photostat copy of FIR No.418/2017 dt.1.7.2017.
SD/- SD/-
MEMBER(J) MEMBER(M)
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Dated :20.3.2023.