State Consumer Disputes Redressal Commission
Mr. M.V. Hari Krishna vs M/S. Aditya Housing And Infrastructure on 7 April, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana Complaint Case No. CC/280/2014 1. Mr. M.V. Hari Krishna S/o. M. Raghavendra Rao,H.No.8-3-988/D/F 403, Sai Kiran Delux Apartment, Sri Nagar Colony, Hyderabad -500073. 2. 2. Mr. Rajesh Pagadala Managing Director, M/s. Aditya Housing and Infrastructure, Development Corporation Pvt.Ltd.,Plot No.1, Senor Valley, Road No.84, Film Nagar, Jubilee Hills, Hyderabad -500033. Hyderabad Telangana ...........Complainant(s) Versus 1. M/s. Aditya Housing and Infrastructure Development Corporation Pvt.Ltd.,Aditya Mansion, Plot No.29 -A, Road No.5, Jubilee Hills, Hyderabad-500 033. 2. 2. Mr. Rajesh Pagadala Managing Director, M/s. Aditya Housing and Infrastructure, Development Corporation Pvt.Ltd.,Plot No.1, Senor Valley, Road No.84, Film Nagar, Jubilee Hills, Hyderabad 500033. Hyderabad Telangana 3. 3. Mr. Satyanarayana Yerkonda Additional Director, M/s. Aditya Housing and Infrastructure, Development Corporation Pvt.Ltd., Plot No. C -26, Road No.8, Film Nagar, Jubilee Hills, Hyderabad -500033. Hyderabad Telangana 4. 4. Mr. Satyanarayana Thota Whole Time Director, M/s. Aditya Housing and Infrastructure, Development Corporation Pvt.Ltd., Plot No. C -26, Road No.8, Film Nagar, Jubilee Hills, Hyderabad -500033. Hyderabad Telangana 5. 5. Anuradha Thota Director, M/s. Aditya Housing and Infrastructure, Development Corporation Pvt.Ltd., 8-2-293/82/F/F/26, Road No.8, Film Nagar, Jubilee Hills, Hyderabad -500033. Hyderabad Telangana 6. 6. Mr.Makkikarjunaro Bayrisetty Director, M/s. Aditya Housing and Infrastructure, Development Corporation Pvt.Ltd., 25-18-115/2, Parvathipuram, Srinivasarao Thota, Guntur -522004. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Complainant: For the Opp. Party: Dated : 07 Apr 2017 Final Order / Judgement STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA : AT HYDERABAD CC NO.280 OF 2014 Between : Mr.M.V.Hari Krishna S/o M.Raghavendra Rao, H.No.8-3-988/D/F 403, Sai Kiran Delux Apartment, Sri Nagar Colony, Hyderabad - 500 073. Complainant And 1) M/s Aditya Construction Company India (P) Ltd., Aditya Mansion, Plot No.29/A, Road No.5, Jubilee Hills, Hyderabad - 500 033, 2) Rajesh Pagadala, Managing Director M/s Aditya Housing and Infrastructure Development Corporation Pvt., Ltd., Plot No.1, Senor Valley, Road No.84, Film Nagar, Jubilee Hills, Hyderabad - 500 033. 3) Mr.Satyanarayana Yerukonda Additional Director, M/s Aditya Housing and Infrastructure Development Corporation Pvt., Ltd., Plot No.C-26, Road No.8, Film Nagar, Jubilee Hills, Hyderabad - 500 033. 4) Mr.Satyanarayana Thota Whole-Time Director, M/s Aditya Housing and Infrastructure Development Corporation Pvt., Ltd., Plot No.C-26, Road No.8, Film Nagar, Jubilee Hills, Hyderabad - 500 033. 5) Anuradha Thota, Director, M/s Aditya Housing and Infrastructure Development Corporation Pvt., Ltd., 8-2-293/82/F/C/26, Road No.8, Film Nagar, Jubilee Hills, Hyderabad - 500 033. 6) Mr.Mallikarjunarao Bayrisetty, Director, M/s Aditya Housing and Infrastructure Development Corporation Pvt., Ltd., 25-18-115/2, Parvathipuram, Srinivasarao Thota, Guntur - 522 004. Opposite parties Counsel for the Complainant : Sri S.Ram Babu Counsel for the Opposite parties : M/s Kochhar & Co., -Ops 1, 2, 4 & 6 Ops 3 and 5 - served with notice. Coram : Hon'ble Sri Justice B.N.Rao Nalla, President & Sri Patil Vithal Rao, Member
Friday, the Seventh day of April Two thousand Seventeen Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, President) *** This is a complaint filed under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 by the Complainant complaining deficiency in service on the part of the Opposite parties and seeking direction to the Opposite parties to immediately provide the possession and register the flat to the complainant; to pay Rs.7,32,645/- spent by complainant towards interest to the DHFL from December 2012 as on date and also direct the Opposite parties to pay the interest as payable to the DHFL till handing over of the flat; to provide all the amenities as assured; to pay an amount of Rs.15,00,000/- towards deficiency of service and costs of the complaint.
2. The case of the complainant, in brief, is that the on the assurances and promises made by the Opposite parties to deliver the flat with all amenities and provisions, complainant booked the flat bearing No.705 measuring 1677 sft including common area at Aditya's Empress Heights along with car parking and undivided share of land measuring 63.36 square yards, situated at Plot Nos.42/1, 42/2, 43 to 46 in Sy.Nos.14/P, 22 to 24, 26 to 28, 30, 31/part and corresponding TS No.14/1 to 14/3 and 7/1 to 7/3, Block-C and M, Ward No.13 of Shaikpet village and mandal, Hyderabad district for a total sale consideration of RS.54,50,000/- and accordingly entered into an agreement of sale on 16.05.2011 and paid the amount of Rs.51,77,000/- in a phased manner on various dates, by way of own contribution and also by obtaining loan from DHFL.
3. To obtain the loan, the Opposite parties also entered into Tripartite Agreement with bank together with the complainant. The Opposite parties agreed to deliver the possession of the flat by December 2012. The Opposite parties agreed to provide the amenities such as electricity connection, water and sewage connection, lifts, swimming pool, club house, etc., and other amenities to the residential complex. To the shock and surprise of complainant, the Ops failed to complete the construction and deliver the possession of the flat within stipulated time. Even the Ops failed to respond to the telephonic calls of the complainant and also the e-mails.
4. Time and again, the Ops extended the delivery of possession showing on one pretext or the other. Not only the Ops failed to construct the apartment but also deviated the construction on several aspects from approved plan. The complainant and other owners requested the Ops not to create any third party rights over the common amenities other than to the owners of 108 units of Aditya Empress Heights. In that regard, the complainant filed writ petition bearing WP No.7351/2014 before the Hon'ble High Court. Enraged by the same, the Ops restricted the entry of complainant into the building and are not responding to the written requests of complainant. The Ops are pressurizing the complainant to withdraw the writ petition. Hence, the complaint with the reliefs, as stated at paragraph No.1, supra.
5. Opposite parties No.1, 2, 4 and 6 filed their written version contending that there is no privity of contract between Ops No.2, 3, 5 and 6 and the complainant. Ops 2, 3 and 4 are the Managing Director, Director and Executive Director of OP No.1 company. It is settled law that Directors cannot be held liable for each and every act of the company inasmuch as the company is a separate/distinct legal entity altogether. The complainant is not a consumer within the definition of 'consumer' as defined under the Consumer Protection Act, 1986. No services are rendered to the complainant to claim deficiency in service or unfair trade practice. The complainant cannot acquire a right of action from his own wrong.
6. The OP No.1 is a reputed company having established its name in the business world and more specifically in construction of residential houses in different places of the city from past several years. It admitted of taking-up project to construct residential township known as Aditya-Empress Heights, Shaikpet, Jubilee Hills, Hyderabad along with all amenities viz., club house, open spaces, swimming pool, etc., but accepted to have not provided the gas pipeline, water softening plant due to certain practical problems, which cannot be considered as deficiency of service. It is practically impossible for any builder to comply 100 percent in terms of representations made in the advertisement.
7. It admitted the entering into agreement of sale with the complainant and payment of Rs.51,77,000/- in pursuance of the same but denied to deliver the possession by December 2012. If really the possession was not delivered, how could the complainant complete the wood work worth Rs.4,25,000/- inside the flat, which demonstrates the handing over of possession of the flat even before payment of balance 5% of the sale consideration amount. The complainant in collusion with some other flat owners have resorted to cheap tactics of pressurizing the Ops to agree to their illegal demands. Complainant is not coming forward to pay the balance amount and get his flat registered.
8. As per the minutes of meeting dated 25.01.2014, it was made clear that entire Aditya Empress Heights complex will have 138 units in the gated community and the amenities like swimming pool, parking areas will be shared by all the inmates. The deviations are questioned before the Hon'ble High Court by way of writ petition, which cannot be contested simultaneously before this Commission. The deviations are within the permissible limits of GHMC norms and regulations. Hence, prayed to dismiss the complaint with exemplary costs.
9. During the course of enquiry, on his behalf, the Complainant filed his affidavit as evidence and Ex.A1 to A20 and on behalf of the opposite parties, its Executive Director Thota Satyanarayana filed his affidavit and Ex.B1.
10. The counsel for the Complainant and the Opposite parties have advanced their arguments reiterating the contents of the complaint and the written version in addition to filing written arguments. Heard both sides.
11. The points for consideration are :
i) Whether there is any deficiency in service on the part of the Opposite parties? Whether the complainant is entitled for the reliefs, as prayed for?
ii) To what relief ?
12. POINT NO.1: It is not in dispute that the complainant agreed to purchase the subject flat for total sale consideration of Rs.54,50,000/- in pursuance of agreement of sale dated 16.05.2011 and thereby the complainant paid an amount of Rs.51,77,000/-. It is the case of the complainant that the Ops assured to deliver the possession of the flat by March 2013 as against which, they went on post-poning the completion and delivery of the flat from time to time, years together.
13. We may state that though there is no mention in the agreement of sale the period for completion of the project, to the e-mail dated 05.12.2012, the Opposite parties promised to handover the flats by end of December 2012 for interior works and the project by March 2013. Again in the meeting held on 25.01.2014, the Managing Director of OP No.1 company assured to deliver the possession of the flats to the buyers by 15.03.2014. The complainant and the other buyers have been pursuing the matter with the Opposite parties from time to time and have been reminding to provide all the amenities and provisions as is evident from the representation dated 04.01.2014 and the e-mail communications.
14. It is the case of the complainant that the Opposite parties failed to complete the construction as per the agreed terms in spite of making almost the entire sale consideration. As against the same, the Opposite parties claim that the complainant was at fault in payment of balance sale consideration. To prove that the complainant was at fault, no single document is filed by the Opposite parties. Ex.B1 document filed by the Opposite parties pertain to building Occupancy Certificate dated 23.09.2014 which states that the building was completed by 02.09.2014. Had really the building had been completed in all aspects, there was no occasion for the complainant to file the present complaint on 10.10.2014. From the minutes of meeting held on 25.01.2014, it is crystal clear that the OP No.1 agreed to handover the flats by 15th March 2014 and also agreed to provide gas pipeline, installation of water softening plant, etc.,
15. It is the only contention of the Opposite parties that the complainant failed to pay the balance sale consideration of 5% of the total sale consideration. To prove that the Opposite parties completed the construction of the flat in all aspects as agreed in the brochure, no piece of paper is brought on record except making the bald allegations. The correspondence that took place in between the complainant and the Opposite parties do not convince that the Opposite parties progressed with construction as per the time schedule.
16. In the above regard, we may state that the burden lies on the Opposite parties to prove that they progressed the construction of the apartment as per specifications within the scheduled time. The letters addressed by the Opposite parties from time to time seeking the progress of construction of the subject project and the flat clearly establish that the flat was not completed in all aspects and delivery of the possession is delayed and they do establish the non-completion of the flat in time.
17. Time and again, the complainant had been pursuing the matter with the Opposite parties as regards the completion of flat, payment of interest amount, and provision of the amenities as assured and promised. The evidence let-in by the complainant nail the laches on the part of the Opposite parties in completion of the subject flat in all aspects.
18. The Opposite parties having failed to build the flat as assured and deliver the possession within time, cannot blame the complainant on the premise that he failed to pay the balance amount. It is for the Opposite parties to establish that they progressed with the construction as per the stipulated time. The Opposite parties neither completed the construction of flat within time nor proved any fault on the part of the complainant in payment of instalment, which would amount to gross negligence and deficiency of service on their part.
19. Admittedly, in the case on hand, there is no evidence before us of the Opposite parties having been prevented from completing the construction due to an Act of God or reasons beyond their control. Even, as on date, no evidence is brought on record by the Opposite parties to appreciate their contention that they progressed with the construction as per the schedule and within stipulated time and to state that the project is completed in all aspects. Hence, there seems to be no truth in the contention of the opposite parties that they have progressed the construction of flat as per schedule. No justifiable reasons are given by the Opposite parties for not completing the construction of the project. Had the opposite parties proceeded with and completed the construction within time, there was no occasion for the complainant to initiate the present proceeding seeking delivery of possession and execution of sale deed with other reliefs.
20. The difficulty that the complainant faced due to the delay caused in completing the construction of the flat on the part of the Opposite parties has grown many fold as the complainant has to pay interest on the EMIs irrespective of the completion of the flat. It is natural for a person to suffer mental tension by being deprived of residing in the flat and on being obligated to pay interest on EMIs to the bank. Taking into consideration of the hardship the complainant undergone, we are inclined to award a sum of Rs.10,000/- per month towards the rent from the date of complaint till possession of the flat is delivered and Occupancy Certificate is handed over to the Complainant. As such, the complaint deserves to be allowed. Accordingly, we answer the point No.1 framed for consideration at paragraph No.11, supra, in favour of the Complainant and against the Opposite parties.
21. POINT No.2 : In the result, the complaint is allowed directing the Opposite parties 1 to 6
(a) to execute the sale deed in respect of the flat bearing No.705 admeasuring 1635 sft including common areas situated in 7th floor of 'Aditya's Empress Heights' along with one car parking and 61.77 sq. yards of undivided share of land in the land admeasuring 6554.03 sq. yards, situated in Plot Nos. 42/1, 42/2, 43, 44, 45 and 46 in Sy.Nos. 14/P, 20 to 24, 26 to 28, 30, 31/Part corresponding T.S.Nos.14/1, 14/2, 14/3 and 7/1, 7/2, 7/3 Block C and M, Ward No.13, Shaikpet village and mandal, Hyderabad by completing the construction of the flat as agreed and deliver its possession to the Complainant with all the amenities and provisions as agreed and handover copy of Occupancy Certificate to the complainant;
(b) to pay the monthly rent of Rs.10,000/- to the complainant from the date of complaint i.e., October 2014 till possession of flat is delivered and Rs.1,00,000/- towards compensation;
(c) The Complainant shall pay the balance sale consideration to the Opposite parties and also the stamp duty and registration charges, as required;
(d) Further, the Opposite parties shall pay to the complainant a sum of Rs.6,000/- towards costs. Time for compliance four weeks.
PRESIDENT MEMBER Dated: 07.04.2017 APPENDIX OF EVIDENCE WITNESSES EXAMINED For Complainant : For Opposite parties : Affidavit evidence of M.V. Hari Affidavit of Thota Satyanarayana Krishna, Complainant as PW1 Executive Director of OP No.1. EXHIBITS MARKED For Complainant :
Ex.A1 is copy of advertisement caused by the Ops in the newspaper "Times Property" dated 23.01.2010.
Ex.A2 is copy of information downloaded from the website of the Opposite parties and the colour brochure issued by the Opposite parties.
Ex.A3 is copy of letter dated 26.04.2014 addressed by the complainant to the DHFL bank.
Ex.A4 is copy of agreement of sale dated 16.05.2011 executed by the OP No.1 in favour of the complainant.
Ex.A5 is copy of the loan sanction letter dated 30.06.2011 issued by the First Blue Home Finance Limited.
Ex.A6 is copy of the Tripartite Agreement, dated 16.05.2011 executed in between the Complainant, OP No.1 and the Deutsche Postbank Home Finance Limited.
Ex.A7 is the flat booking letter dated 04.02.2011 issued by the OP No.1 company in favour of the complainant along with payment schedule and copies of cheques.
Ex.A8 is the receipt dated 20.02.2013 for Rs.4,25,000/- issued by Intrinsic Interiors, Hyderabad.
Ex.A9 is copy of e-mail, dated 26.05.2012 addressed by the complainant to the Ops.
Ex.A10 is copy of e-mail, dated 25.01.2014 addressed by the Ops to the complainant, enclosing the Minutes of the Meeting.
Ex.A11 is copy of e-mail, dated 04.02.2014 addressed by the complainant to the Ops, enclosing the copy of Minutes of Meeting.
Ex.A12 is copy of building permit order, dated 24.04.2010 issued by the Commissioner, GHMC, Hyderabad.
Ex.A13 is copy of affidavit and petition in WPMP No.21624/2014 in WP No.7351/2014 on the file of Hon'ble High Court.
Ex.A14 is the copy of report filed by Commissioner, GHMC, Hyderabad in WP No.7351/2014.
Ex.A15 is the copy of e-mail, dated 30.07.2014 addressed by the complainant to the Opposite parties.
Ex.A16 is the copy of e-mail, dated 11.11.2013 addressed by the Ops to the complainant.
Ex.A17 is the copy of e-mail, dated 30.01.2016 addressed by the Ops.
Ex.A18 is the copy of Occupancy Certificate, dated 23.09.2015 issued by the Commissioner, GHMC certifying the completion of subject building as on 02.09.2014.
Ex.A19 is copy of news article published in the Times of India, dated 27.03.2016.
Ex.A20 is copy of repayment schedule of loan account of the complainant with DHFL.
For Opposite parties :
Ex.B1 is copy of Occupancy Certificate dated 23.09.2015 issued by the Commissioner, GHMC, Hyderabad certifying the completion of building as on 02.09.2014.
PRESIDENT MEMBER Dated: 07.04.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER