State Consumer Disputes Redressal Commission
Mr. Narottam Gupta vs M/S. Aliens Developers P. Ltd., on 19 July, 2023
1 BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD (ADDITIONAL BENCH) C.C.172/2019 Between :
Mr.Narottam Gupta, S/o.Mr.Shyan Charan Gupta , Aged about 35 years, C/o.Anil Gupta, R/o.Opp.Muskan Bal Hospital Near Roxy Pull Lashkar, Gwalior , Madhya Pradesh-474 009. ... 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-502032. .... Opposite Party Counsel for the Complainant : M/s.V.Appa Rao Counsel for the Opposite Party : M/s.Raja Sripathi Rao CORAM : Hon'ble Sri V.V.Seshubabu, M ember (J), And Hon'ble Smt.R.S.Rajeshree, M ember (NJ).
WEDNESDAY, THE NINETEENTH DAY OF JULY, TW O THOUSAND TW ENTY THREE .
Oral Order :
01). The complaint is filed u/s.17(1)(a)(i) of the Consumer Protection Act, 1986 & 2002 on 28.8.2019 for directions to the opposite party as under:
i. to handover the schedule flat on
completion in all aspects forthwith
thereby cause of registration as required under law and provide Occupancy Certificate;
ii. to pay fair rent of Rs.10/- per square feet of super built up area per month w.e.f. 1.7.2012 to till handover of the same;
2iii. to pay Rs.5,00,000/- as compensation for causing mental agony, suffering and escalation of cost of construction; and iv. to pay Rs.50,000/- as legal expenses.
02). The brief averments of the complaint are that the opposite party is a private limited company doing business in the construction of flats etc. and it had undertaken a Development Agreement cum GPA with respective land owners for the development of land admeasuring Ac.19.26 guntas to raise residential complexes covered by Survey nos.384, 385 and 426/A at Tellapur Village in Ramachandrapuram Mandal, Medak Dist.; that the complainant entered into Construction Agreement dt.16.7.2009 with the opposite party for purchase of a flat bearing no.273, Station -12 on 2nd floor of the complex by name Aliens Space Station -1 with a super built up area of 1412 sq.ft. with one covered car parking besides undivided share of land of 30.36 sq.yards for a total sale consideration of Rs.35,48,675/-; that the complainant paid Rs.17,74,337/- by availing loan and agreed to pay the balance sale consideration basing on the progress in construction; that the flat shall be completed by 30.6.2012, failing which the opposite party has to pay compensation of Rs.3/- per square ft. of super built up area per month w.e.f. 1.7.2012; that though the complainant approached opposite party several times to know the stages of the construction of apartment complex , the opposite party has not provided such details; that the complainant issued legal notice dt.12.8.2019 to the opposite party, for which no reply was given;; hence the complaint seeking 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 complainant has 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 since he entered into an Agreement on 16.7.2009 and as per the Agreement, opp.party agreed to handover the 3 possession on or before December, 2011 with a grace period of 6 months and hence 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 as the delay caused due to unavoidable circumstances which falls under "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 complainant; with these pleas the opposite party prayed for dismissal of the complaint with exemplary costs.
04). The complainant filed Evidence Affidavit as PW.1. Exs.A1 to A9 are marked on behalf of the complainant. Mr.Hari Challa, Managing Director of opposite party filed evidence affidavit as RW.1 and got marked Exs.B1 to B18. Mr.Venkat Prasanna Challa, Director of opposite party filed further evidence as RW.2 and got marked Exs.B19 & B20. Written arguments of complainant filed.
05). Heard both sides.
Basing on the pleadings of both sides, the points for
consideration are:
i. Whether there is deficiency in service
and unfair trade practice on the part of the opposite party?
ii. Whether the complainant is entitled for the reliefs as prayed for?
iii. Relief?
406). Exs.A2 to A5 show the payments made by PW.1 and as per the same in total he paid Rs.17,74,337/-. All the above payments are made by way of cheques. Under Ex.A3 Rs.12,42,036/- was paid by way of cheque issued by State Bank of India and the other cheques are issued by different banks like HSBC and ICICI. Ex.A6 goes to show that PW.1 obtained housing loan which was sanctioned on 5.8.2009 for Rs.29,26,000/-. It is very clear that including the bank loan PW.1 paid only Rs.17,74,337/-, when the total cost of flat was at Rs.35,48,675/- .
07). It is the contention of opposite party that when PW.1 failed to pay the instalments, the Bank filed O.A.No.156 of 2018 before the Debt Recovery Tribunal, Hyderabad for recovery of Rs.20,57,231/- with future interest @ 8.80 % p.a. with monthly rests. Ex.B19 goes to show that the Debt Recovery Tribunal passed a decree in favour of State Bank of India directing the complainant including the opposite party to pay the Rs.20,57,231/- with interest @ 8.80% p.a. It is also the contention of the opposite party that the Owners Welfare Association of the Aliens Space Station -1 filed CC.No.1366/2016 before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in which a memo was filed, thereunder PW.1 whose name is mentioned at serial no.32 in Ex.B20 asked for the refund with interest @ 24% p.a.; ofcourse it is an alternative relief. Therefore, it is the contention of opposite party that they are willing to refund the amount instead of handing over possession of the flat.
In the case on hand nearly 50% of the flat cost alone was paid by the complainant and he also failed to pay the instalments regularly to the home loan account. Added to the same asked for refund of the amount as an alternative relief before Honb'ble NCDRC. Taking all these aspects into consideration, we are of the view that in the interest of justice, it is better to order for refund.
08). The opposite party not accepted for refund when PW.1 along with other house owners filed C.C.No.1366/2016 . Now the opposite party wants to rely upon Ex.B19 to make the refund. Added to the same, the opposite party failed to complete the 5 project as stipulated. The balance payments shall be made as per the progress of construction. No document is filed to show that PW.1 was informed about the progress in the construction. For these reasons, the opposite party shall compensate the complainant for causing mental agony.
09). In the result, complaint is partly allowed directing the opposite party to clear the entire decree passed by the Debt Recovery Tribunal in O.A.No.156/2018 within one month from the date of this order. The opposite party is further directed to pay Rs.5,32,301/ paid by the complainant by way of cheques with interest @ 12% p.a. from the date of respective payments made under Exs.A2, A4 & A5 till the date of actual payment. The opposite party is further directed to pay compensation of Rs.2 lakhs besides costs of Rs.20,000/- to the complainant.
Time for compliance is one month, in case of failure, compensation amount also carry interest @ 12% p.a. till the actual payment.
( Dictated to Steno, transcribed and typed by her, corrected and pronounced by us in the open Court on this 19 th day of July, 2023.) MEMBER(J) M EMBER (NJ)
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Dated :19.7.2023.
APPENDIX OF EVIDENCE
W itnesses examined
For the complainants For the opposite party
Evidence Affidavit of the complt. E.A of Mr.Hari Challa
filed. -Managing Director of the
Opp.party filed.
Further Evidence of
Mr.Venkat Prasanna Challa,
Director of opp.party filed
as RW.2.
Exhibits marked on behalf of the complainant:
Ex.A1 : Photostat copy of Agreement of Sale dt.16.7.2009 between the opp.party and the complainant. Ex.A2 : Photostat copy of receipt dt.16.6.2009 issued by the opp.party for the payment of Rs.50,000/- made by the complainant .6
Ex.A3 : Photostat copy of receipt dt.6.8.2009 issued by the opp.party for the payment of Rs.12,42,036/- made by the complainant .
Ex.A4 : Photostat copy of receipt dt.6.8.2009 issued by the opp.party for the payment of Rs.2,82,301/- made by the complainant.
Ex.A5 : Photostat copy of receipt dt.5.7.2009 issued by the opp.party for the payment of Rs.2,00,000/- made by the complainant.
Ex.A6 : Photostat copy of Arrangement Letter-SBI Advantage Home Loan, dt.5.8.2009 issued by SBI. Ex.A7 : Copy of legal notice dt. 12.8.2019 issued by the Complainant to the opposite party. Ex.A8 : Postal receipt.
Ex.A9 : Postal track report.
Exhibits marked on behalf of the opposite party :
Ex.B1 : Photostat copy of lr.dt.31.12.2007 from Principal Secretary to Govt. , MA & UD Dept., A.P. Secretariat, Hyd. addressed to the Vice Chairman, HUDA. Ex.B2 : Photostat copy of G.O.Ms.no.288 dt.3.4.2008. Ex.B3 : Photostat copy of Lr.Dt.5.5.2007 from the Collector & Dist. Magistrate, Medak to the Vice Chairman & M.D.,HUDA.
Ex.B4 : Photostat Copy of the Minutes of the Meeting of the MSB Committee meeting for HUDA area held on 29.2.2008 .
Ex.B5 : Photostat copy of lr.dt.31.3.2008 from the HUDA to the Principal Secretary to Govt. , MA & UD Dept., Govt. of A.P.,Secretariat, Hyd.
Ex.B6 : Photostat copy of lr.dt.11.4.2008 from the HUDA to the opp.party.
Ex.B7 : Photostat copy of lr.dt.11.4.2008 from the HUDA to the Executive Authority, Tellapur Gram Panchayat, Ramachandrapuram Mandal, Medak Dist. Ex.B8 : Photostat Copy of the Minutes of the Meeting of the MSB Committee Meeting for HUDA area held on 5.6.2008.
Ex.B9 : Photostat copy of lr.dt.14.10.2009 from HMDA to the Executive Authority, Tellapur Gram Panchayat, Ramachandrapuram Mandal, Medak Dist. Ex.B10: Photostat copy of Lr.Dt.12.8.2008 from Ministry of Environment & Forests to the Opposite party. Ex.B11: Photostat copy of lr.dt.24.11.2009 from the Principal Secretary to Govt. MA & UD Dept., A.P. Secretariat, Hyd. to the opp.party.
Ex.B12: Photostat copy of lr.dt.8.10.2010 from the opp.party to the Director (Plg) & I/c Member (UP) , HMDA. Ex.B13: Photostat copy of lr.dt.28.3.2011 from HMDA to the opp.party.
Ex.B14: Photostat copy of Cash Acknowledgement Receipt Issued by HMWSSB.
Ex.B15: Photostat copy of certificate issued by IGBC on behalf Of the Aliens Space Station 1.
Ex.B16: Photostat copy of Certificate issued by CITYSCAPE -
Awards - Real Estate -Asia 2009 on behalf of Space Station 1 by Aliens Developers Pvt.Ltd. Ex.B17: Photostat copy of lr.dt.2.11.2015 from the 7 opposite party to the owner of the flat no.2782. Ex.B18: Photographs of apartments and flat owners. Ex.B19: Photostat copy of order in OA.no.156/2018 of DRT. Dt.28.7.2018.
Ex.B20 : Photostat copies of complaint in C.C.No.1366/2016 before NCDRC, legal notice and legal consent of Complainant.
M EMBER(J) MEMBER(NJ)
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Dated :19.7.2023