State Consumer Disputes Redressal Commission
1. Vemparala Srikant vs 1. M/S. India Bulls Real Estate & Whole ... on 28 November, 2022
BEFORE THE TELANGANA STATE cONSUMER DISPUTESs
REDRESSAL COMMISSION: HYDERABAD.
Cc.NO.204 OF 2016
Between:
1. Vemparala Srikant
S/o.V.B.Krishna Murthy,
Aged about 35 years
2. Sravani Kothapalli,
W/o Srikant Vemparala,
Aged about 35 years.
Both Residents of USA and rep. by their GPA Holder
V.B.Krishna Murthy, S/o. Late Sri.V.Pala Sankaram,
Aged about 62 years, Occ: Retired LIC Officer,
R/o Flat No.207, 'C' Block, India Bulls Centrum,
Lower Tank Bund, Hyderabad-500080.
.Complainants
And
1. M/s. India Bulls Integrated Services Limited,
Rep by its Authorized Signatory,
(Tower-1, 15th floor, Senapati Bapat Marg,
Mumbai-400013), Site Office at 2nd floor,
Ascent Towers, Rd No. 10, banjara Hills,
Hyderabad.
2. Sameer Gehlaut,
Chairman India Bulls Group,
M/s. India Bulls Integrated Services Limited,
15th Floor, Tower-I, Atriu India Bulls Center,
Senapathy Marg, Mumbai-4000 13.
3. Mr.Narendra Gehlaut
CEO & MD, M/s.India Bulls Integrated
Services Limited, 15th Floor, Tower-I,
Atriu India Bulls Center,
Senapathy Marg, Mumbai-400013.
4. M/s.Store One Retail India Pvt Ltd.,
(C/o. India Bulls), 14th Floor, 612/613,
Senapathy Marg, Mumbai-400013,
Rep. by Mr.Saravanan,
M/s.India Bulls Centrum, Elichiguda,
Hyderabad-500080.
...Opposite Parties
Counsel for the Complainant :Sri V.B. Krishna Murthy [PIP]
Counsel for the Opposite Parties M/s. K. Vishweshwar Reddy
QUORUM: HON'BLE SRI V.V.SESHUBABU, MEMBER
HON BLE SMT R.S. RAJESHREE, MEMBER 2 MONDAY, THE TWENTY EIGHTH DAY OF NOVEMB TWO THOUSAND TWENTY TWO MBER k****** (Per Hon'ble Smt.R.S.Rajeshree, Member-Non -Judicial) Order:
1. This is a complaint filed by the Complainant under Section 17(1la)6) of the Consumer Protection Act, 1986, praying this Commission to direct the Opposite Parties:
T o direct the opposite party to pay compensation to the complainants to a tune of Rs.30,71,034/- with interest @18% per annum for the loss caused to the complainants in not complying with the specifications a mentioned in the brochure i.e., by not fixing anti-skid ceramic floor tiles in the bathrooms, fixing inferior quality of sanitary ware, not following vaastu in constructing the flat, poor maintenance, security lapses resulted in financial loss and also collecting excess amount for 181 sq.ft though as per GHMC there was no deviation from submitted plan and actual construction. .To award costs of this complainant.
.To direct the respondent to collect Uniform maintenance charges from the petitioner every month and refund the excess monthly maintenance charges collected @ per square feet with 18% interest from January, 2016 onwards.
2.The brief facts of the case are as follows:
The complainants are represented by the GPA Holder V.B.Krishna Murthy who is none other than father of complainant No.1 and father in law of complainant No.2. And the complainants submit that seeing the brochure of India Bulls Centrom i.e., opposite party and being attracted by the same the intended to purchase a 4 bed room complainants flat, and accordingly the concerned approached Hyderabad office and after negotiations, paid an advance of Rs.1 Lakh for flat No.207, C- Block, India Bulls Centrom, Lower Tank Bund, Hyderabad. And the negotiations were 3 only with respect of cost per sft and not for the club charges as the same is a common amenity and on 26.12.2014 the opposite party had confirmed the rates through Mail and the final cost was agreed as Rs.1,29,66,400/- including tax, vat and other charges.
The complainants further submit that, they have entered into agreement of sale with the opposite party through their GPA and Holder, believing the assurances given by the opposite party business. And the reputation the company holds in the real estate of at the time of execution of agreement of sale the representatives believe that there is no opposite party have made the GPA Holder mentioned in deviation either in the dimensions or specifications Later on 29.05.2015, to the brochure and obtained the signatures.
the opposite party the utter surprise and dismay of complainants, including changed their mind and demanded Rs.58,68,448/-
service tax towards another 45% of total costs. The complainants were compelled to pay the having paid 20% of the total cost, the event of cancellation they demanded amount with a fear that in act of opposite party is nothing would loss 15% of total cost, this and the cheating the complainants who are consumers but towards service tax and opposite party had collected Rs.7,24,673/-
+ vat Rs. 1,69,026/-).
vat.(service tax Rs.5,55,647/-
the opposite party promised
3. As per the brochure at page No.6 to provide anti-skid ceramic tiles in the toilets and since the father No.l senio (GPA Holder) and mother of the complainant are had under gone a liver citizens and the father of complainant No. 1 transplant in the year 2012, and who had restricted surgery walking abilities, these complainants being attracted by the provision of anti-skid tiles had agreed to purchase the samne immediately, but the opposite party had provided the regular that the ordinary ceramic tiles, and when questioned had informed same was as per agreement of sale and to utter surprise the agreement of sale reílected the same, in this way the opposite party had cheated the complainants by showing the brochure and writing something else in the agreement of sale. Due to such act of opposite party the complainants had to replace the oridenary tiles with anti-skid tiles for which they have incurred an expense of rs.60,000/-.
Similarly, though the opposite party assured in the broch.
bchure that the construction would be in accordance with the tu guidelines but the opposite parties have deviated from the same and constructed the kitchen in north east which is against vastu. The opposite party assured the complainants that the sanitary ware and CP fittings would be of branded make and showed the A Block venture, wherein all jaguar fittings were installed, but contravening the same the opposite party had fixed inferior quality fittings which required frequent repairs, as such these complainants had to change the sanitary fittings with jaguar make thereby they have incurred an expense of Rs.66,756/-.
4. The complainants further submit that, the opposite parties are still looking after the maintenance of the apartment through their sister concern M/s. Store One Retail India Private Ltd and had not handed over the same to the association and are collecting the maintenance charges unevenly and not maintaining the same properly. And on 14.01.2016, when the GPA Holder of complainants had parked his car in the parking area in which Rs.1,50,000/- was left, but by the time he came back the same was missing and when a Mail was sent to opposite party the same and to take informing action, but the opposite party failed to solve the issue and as the GPA Holder is a senior citizen and underwent a surgery he did not choose to make a police complaint as he could not run around the police station. Hence, the complainants are also entitled for the Rs.1,50,000/- along with interest. The sewerage plant provided by the opposite party is also defective and the water in the flush tanks emanate foul smell which causes serious health hazard not only to the GPA Holder of the complainants but also to the other residences of the apartment and inspite of several written requests the opposite parties failed to rectify the same, the opposite parties did not maintain the uniformity in collecting the club house charges, from one person (C-510) who purchased the flat in November 2013 the opposite parties had collected Rs.30,000/- as club charges and whereas from this complainants who have purchased the flat in the year 2014 they have collected a club charges of Rs.75,000/- which is unfair and against the principles of natural justice. Hence, the opposite parties are liable to refund the same.
5. The complainants further submitted, that prior to enterings into agreement of sale the opposite parties assured them that they have taken the permission from the municipal authorities for the construction of the building but in fact the building permission was expired due to which the opposite parties had to pay a penalty of Rs.48 Lakhs to get it regularized and subsequently to get the Occupancy certificate. The opposite parties had submitted the building plan for A,B,C-Blocks without applying for the modifications, but had revised the super built up area for all the flats and collected extra amount due to which the opposite party was penalized by the Hon'ble State Consumer Redressal Commission in C No.167 of 2014. The measurement in the brochure was given as 3270 sft as super area but in the original brochure it was mentioned as 3089 sft @ Rs.3705/- per sft in this built up area of 181 sft way the opposite party had collected excess in this way the opposite party had unilaterally increased the super built up area and charged Rs.6,70,605/- from the complainants in excess. The opposite parties have already completed their business in Hyderabad and are planning to shift to Vizag with a new venture, as such there is every possibility that the GHMC Authorities may inspect the premises and penalize the residents for the deviations done by the opposite parties, all these penalties and taxes are estimated up to Rs.2,00,000/-.
Due to all such deficient and unfair acts of opposite parties these complainants got issued a legal notice on 26.08.2015 and supplementary notice on 03.09.2015 and the opposite party having received the same had given a reply on 22.09.2015 with all false and baseless allegations and denied the claim of the complainants having no other alternative the complainants are before this commission seeking compensation of Rs.30,71,034/- along with interest, and costs.
6. Written version of opposite party No.1&4:
The opposite parties No.1 & 4 filed their written version while admitting the sale of flat had pleaded that, the opposite parties No.2 & 3 have nothing to do with the transaction taken lace between complainants and oppoOsite parties No.l & 4 and there is no privity of contract between complainants and opposite parties No.2 & 3 that apart nor any relief is sought against opposite parties No.28 3 hence their names be deleted from the array of opposite parties and further opposed the complaint on the ground that as the agreement of sale had an arbitration clause the complainants should have referred the matter to an arbitrator as per the procedure prescribed there of hence this court has no jurisdiction to entertain the complainant.
The GPA Holder of complainants has been negotiate with the opposite parties from the time of purchase, who had visited the oifice of opposite party in the year 2011 with an intention to purchase a flat during which a brochure was handed over to him but as he was interested in a ready to move in flat, and as this opposite party did not have any such project the GPA Holder did not come forward to purchase any flat with this opposite parties, subsequently again in the month of December 2014 once again the GPA Holder approached this opposite party to purchase a flat and as this opposite party was near to completion of the project the GPA Holder being fully satisfied, had agreed to purchase the 4 bed room flat after negotiations and after verifying all the details in a new brochure which was handed over to him, he has agreed to purchase and executed the agreement of sale to that effect by paying an advance amount. Knowing fully well and entering into an agreement the GPA Holder has filed this complaint on false and baseless allegations.
7. The opposite party further pleads that, with regard to the allegation that this opposite party collected excess amount by way of tax, the cost of the flat of Rs.1,29,66,400/- was excluding the applicable taxes and the same was contirmed by the opposite ties parties No.1 vide E-Mail dt.06.01.2015 only after such confirmation from complainant No.1 this opposite party has finalized the cost of apartment as Rs.1,29,66,400/- excluding the taxes. With regard to the collection of 45% of total cost of flat even before the due date was in fact done only on the request of the complainants who had insisted that he had a loan sanction from 1 Indian Bank and for the purpose of disbursement he was in need of a demand letter from the builder, only on the request of complainants this demand for 45% of total cost was made. And as per agreement this opposite party has promised to provide ceramic les to the toilet and not anti-skid tiles similarly the fittings in the bath rooms were promised of a branded quality and in view of the same "EURO BRASS" fittings have been provided.
With the maintenance the same has been
regard to
already handed over to the association formed by the residents of the apartment.
.With regard to the theft as alleged by the complainant, but not the parking place is meant for parking of the car theft for storing the cash and even if there was any occurred it was for the complainant to make a police to complaint and inspite of advising the complainant to do so.
lodge a police complaint the complainant failed defective water plant is concerned the As far as false and the pollution control board allegations are officials have visited the India Bulls Centrom and conducted the HTP inspection on 19.11.2016 and taken water sample and issued a report on 30.11.2016 stating the water status to be satisíactory.
to the maintenance charges it is
And with regard
standard practice that the same is collected as per the size of the flat and as per A P Apartments Act there is no restriction to collect the maintenance based on size. With regard to the club house charges the same is collected depending on when the purchase is made and this opposite party has been revising the cost of apartment from time to time in order to promote the sales which is a common practice adopted by any real estate industry hence it is denied that the complainant alone was charged more for the club house membership.
And that the opposite party has constructed the apartments as per permissions granted by GHMC and in accordance with the specifications of plan without any deviations.
And with regard to the super area of the flat the same is in accordance with the agreement of sale executed by both the parties there is no increase in the super area as stated in the agreement of sale nor any extra charges have been collected from the complainant. And further that the opposite parties have not deviated from any of the approved drawings and permissions, and the issuance of occupancy certificate by the GHMC authorities itself proves that the building was constructed in accordance with the permission had there been any deviations the authorities would not have issued the occupancy certificate.
And the assessment of damages as claimed by the complainant are incorrect, baseless and false and as this opposite party had not been deficient in either their services nor cheated the complainants in any way by deviating and had completed the construction as per the agreement hence there is no deficiency on the part of the opposite parties, and the present complaint is filed on baseless grounds as such the same be dismissed with exemplary costs.
8. The complainant has filed evidence affidavit and got marked Ex.A1 to A12, A14, A15, A16 and on behalf of the opposite party No.1, Amutham Inbasekaran, S.G.M Legal Department filed evidence affidavit, and got marked Ex.B1 to B12.
Heard both sides perused the record, the points that arise for consideration are:
9. Points for consideration:
1. Whether the opposite parties have cheated the complainants by promising some facilities in brochure and had not incorporated the same in the agreement of sale?
2. Whether the opposite parties were deficient in their services?
3. Whether the complainants are entitled for the relief sought in the complaint?
4. If yes, to what relief?
10. Point No.1 &2:
The grievance of the complainants in a nutshell is as under.
i) That the opposite party had promised certain specifications in the brochure but had failed to incorporate the same in the agreement of sale deed and in this way cheated them.
ii) Promised that the construction would be in accordance with vastu guidelines but did not follow the same.
i) Promised anti-skid tiles in washrooms but provided ordinary ceramic tiles.
iv) Promised jaguar brand fittings in the bathroom but provided ordinary fittings.
v Maintenance is still not handed over to the association and M/s Store One Retail India Pvt. Ltd., is looking after the maintenance and there had been a security lapse which has led to theft of Rs.1,50,000/- from the car of GPA Holder, when the same was parked in the parking area and no action taken inspite of a complaint.
vi) The opposite party had provided defective sewerage treatment plant due to which the water in flush tanks is emanating foul smell thereby causing severe health hazards to residents.
vi) No uniformity is maintained in the collection of maintenance charges.
vii) Collected more amount form the complaints towards the club membership charges when compared to others.
ix) Prior to entering into the agreement of sale assured the complainants that permission was taken from the MCH but in fact the said permission was in expired state and the same was subsequently regularized by paying a penalty of Rs.48 Lakhs by the builder. xThe super built up area had been revised and collected extra amount form the flat owners and failed to get the approval for the revised plan and modifications.
10xi) As the deviations are not regularized, any time, the GHMC officials may inspect the premises and impose penalty and the said penalty is estimated up to Rs.2,00,000/
11. For all the grievances above the complainant had calculated the amounts and arrived at a figure of Rs.30,71,034/- And sought for the same in form of compensation along with 18% interest as mentioned under.
ASSESSMENT OF DAMAGES
SI.No
Description Amount in
Rupees
Towards Anti-Skid Ceramic Tiles 60,000.00 Sanitary Ware (Jaguar Fittings) 66,756.00 3 Cash Theft 1,50,000.00 Sewerage Treatment plant(S.T.P) 1,00,000.00 Club House Charges 75,000.00 Excess Maintenance Collected from | 24,000.00 January 2016 to August, 2016 Mental Agony 10,00,000.00 Refund of Excess Amount Collected For 7,24,673.00 Additional Super Area Charged 6,70,605.00 without Actual Increase 181*Rs.3,705/-
per square feet 10 Likely Penalty by GHMC as per XVIX 2,00,000.00 Total 30,71,034.00
12. On the other hand the opposite parties have opposed the same on preliminary ground of jurisdiction and also on merits and with regard to jurisdiction the opposite parties have stated that as there is an arbitration clause in agreement of sale this commission has no jurisdiction to entertain this complaint.
13. As per sec-3 of consumer protection act 1986 the act is not in derogation of provisions of any other law for the time being in force and it is settled law that a clause of arbitration is not a bar to entertain any complaint under consumer protection act 1986 for better clarification the said clause is being reproduced here under, 11 "Act not in derogation of any other Law:- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
In view of the above provision we are of the emphatic view that the present complaint is maintainable before this commission.
had cheated
14. Coming to the point whether the opposite party the complainants by not incorporating the specifications given in Ex.AS.
the brochure, in the agreement of sale i.e., is disputing the It is pertinent note here that the opposite party and had pleaded that issuance of brochure in the year of purchase issued in the year 2011 and the same is a n old brochure in such case been changed/revised, subsequently the same had brochure is of to prove that the the burden is on the complainant brochure is of is be believed that the the year 2014, that apart if it had to the same the complainant the year 2014 & subsequent dt.03.02.2015 under Ex.A5, entered into an agreement of sale document. It is settled law that which is an legally enforceable document is executed any promises once a legally enforceable made prior to that will cease and the brochure which is generally ceases its value it is not the case used for representational purpose had seen the brochure and directly of the complainant that he there is agreement of sale in purchased the property but an between the brochure and the sale deed the complainants being cautious enough to see that all educated persons should have been mentioned in the brochure are the amenities, specifications entered into the reflected in the agreement of sale, having and subsequently getting the sale deed agreement of sale without any protest for either registered and taking the possession in wash the for vastu, anti-skid tiles, jaguar fittings rooms about the same.
complainant cannot at a later stage complain works Though the complainant had pleaded that he had got the done at the cost of Rs.1,26,756/- but no such proofs with regard to purchase of the either tiles or jaguar fittings are filed nor any proof of payments made to get the work done are placed before this commission in the absence of the same it cannot be imagined and 12 presumed that the complainant might have incurred the said expenses.
15 Hence, the grievance of the complainant with regard to vasthu, anti-skid tiles in wash rooms and jaguar fittings cannot be considered at such a belated stage.
With regard to the security lapses and theft of cash from the car of the complainant/GPA Holder the maintenance team cannot be held iable since any offence of theft is criminal in nature and the same has to be reported to the police who are the competent authority to investigate and solve the issue but the complainant failed to report the same to the police for the reasons best known to them, that apart all apartments are equipped with C Cameras had the complainant approached the police the same would be investigated. In view of the foregoing discussion we feel that opposite parties cannot be made liable for the theft that has taken place.
With regard to the defective sewerage treatment plant provided by opposite party we are of the view that it is a common amenity and the complainant as individuals cannot claim any relief on behalf of all the flat owners and it is not the case of the complainant that they have already contributed the sum of Rs.2,00,000/- as their share for rectification of the STP, Ex.A16 is only the estimate given for rectification of STP receipt to show that the complainants have already paid the said amount.
16. Similarly no proof is filed by the complainant to prove that no uniformity is maintained in maintenance charges and club membership charges and that the complainant's are charged higher than the other residents.
As far as the service tax collected by the opposite parties, Ex.A5 Agreement of sale, clearly stipulates that the purchaser has to pay all the taxes & applicable cesses in addition to total sale consideration for better clarification the said clause is reproduced here under.
Page No.4 of Ex.A5 "The Purchaser shall pay the balance total Sale Promoter in the manner prescribed in the Third 13 Schedule hereunder written. In addition to the Total Sale Price the Purchaser shall also pay all applicable taxes, charges, duties, deposits, cesses, impositions, levies, legal fees, maintenance charges and outgoings together with compensation/interest thereon, if any, in accordance with this Agreement.
17. And the contention of the complainant that the opposite without party had increased the super built up area to all the flats any revised plan approval and in case of complainants flat, opposite for the super parties have collected Rs.6,70,605/- as extra amount built up area of 181 sft@ Rs.3705/-
Ex.A9-10-11,12,14 reveal that the opposite party had delayed the concerned the project and made some deviations, due to which remains that authorities has imposed the penalty. But the fact and under Ex.A12 the same municipal authorities have imposed collected the fine of Rs.49,74,605/- and regularized the deviations and coming to the specific area of complainants flat No.207 though shows the area the plan annexed to the Ex.A5 Agreement of Sale sft. But the schedule of property mentioned in the same as 3089 inclusive of area of Agreement of Sale, is 3270 sft super area balconies.
And in the instant case the complainants have not filed the sale in deed, in order to ascertain the area which was duly registered their names that apart even if it is presumed that the opposite party increased the area of 181 sft of complainants flat and collected Rs.6,70,605/- excess from the complainants, finally the said excess area is retained and enjoyed by the complainant and as said Supra as the opposite parties have paid the penalties and regularized the deviations, hence the fear of the complainants that the GHMC officials may inspect the premises and penalize them will not arise all.
18. Point No.3:
In view of the foregoing discussions, we are of the view that the opposite party though have deviated from the sanction plan and not constructed in accordance of the plan but had certainly 14 the penalties under Ex.Al1 compensated the same by paying a constructed the complainants A12 and got it regularized, and had of sale, as flat as per the specifications under Ex.A5 agreement such had never been deficient in their services, more particularly the complainants. Hence, we feel that the those alleged by complainants have failed to establish any case of deficiencies or unfair trade practice by the opposite parties and we are of the considered view that the complainants have failed to prove their case and the complaint lacks merits. Therefore the same stands dismissed.
19. Point No.4: In the result, the complaint is dismissed. However there is no order as to costs.
Dictated to steno; transcribed and typed by him; corrected and pronounced by us in the open court on this 28th day of November 2022.