State Consumer Disputes Redressal Commission
1.Mr. Amit Suresh Gupta vs M/S. Aliens Developers P. Ltd., on 27 March, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.17/2019
Between :
1.Mr.Amit Suresh Gupta, S/o.Mr.Suresh Chandra Gupta, Aged about 38 years.
2. Mrs.Disha Amit Gupta, W/o.Mr.Amit Suresh Gupta, Aged about 35 years R/o.C-502, Manjeera Diamond Towers Phase-2, Gopanapally Village, Serilingampally Mandal, RR Dist; Hyderabad. .... Complainants And M/s.Aliens Developers (P) Ltd., Rep. by its Managing Director & 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 Complainants : M/s.V.Appa Rao Counsel for the Opposite Party : M/s.Raja Sripathi Rao CORAM : Hon'ble Sri V.V.Seshubabu, Member (J), And Hon'ble Smt.R.S.Rajeshree, Member (NJ).
MONDAY, THE TWENTY SEVENTH DAY OF MARCH, TWO THOUSAND TWENTY THREE .
Order :
1). The complaint is filed u/s.17(1)(a)(i) of the Consumer Protection Act, 1986 & 2002 on 27.12.2018 for directions to the opposite party as under:
i. to pay the amount of sale consideration received Rs.20,42,660/- with interest @ 20% p.a. from respective dates of sale consideration received by opposite party till payment of the same;1 2
ii. or alternatively to complete the flat as per agreed specifications and deliver the possession of the same forthwith with same cost as agreed in the agreement of sale and registration of the same as required under law;
iii. to pay Rs.5 lakhs as compensation for causing mental agony, suffering & escalation of construction cost iv. to pay fair rent of Rs.10/- per sq.ft. of super built up area per month w.e.f. 1.5.2013 in case of handing over of flat; and v. 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 complainants entered into an Agreement of Sale dt.24.6.2013 with the opposite party to purchase a flat bearing no.1228(B) in Station -5, on 12(B)th floor of the complex by name Space Station -1 comprising of super built up area of 1344 sq.ft. with one covered car parking besides undivided share of land of 23.13 sq.yards; that the total sale consideration is Rs.45,21,920/- out of which the complainants paid Rs.20,42,660/- towards part payment and agreed to pay the balance amount in accordance with the terms and conditions of the Agreement of Sale; that the opposite party agreed to complete the construction of the flat by 30.9.2015 including the grace period and in case of failure agreed to pay Rs.3/- per sq. ft. of super built up area per month w.e.f. 1.10.2015; that in the month of June, 2018 the complainants went to the site and found that there is no progress in the construction; that the complainants got issued legal notice dt.4.12.2018 with the main demand of refund of amount to the opposite party for which no reply 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 2 3 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 24.6.2013 as per which the opposite party is alleged to handover the possession on or before June,2015 with a grace period of 6 months as per the Clause VIII, but the complainants 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 complainants 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 parties 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 complainants; that the opposite party is ready to execute the sale deed subject to the complainants paying balance sale consideration and without paying the amount, the complainants cannot expect the completion of construction. With these pleas the opposite party prayed for dismissal of the complaint with exemplary costs.
04). To prove the case, complainant no.1 filed Evidence Affidavit as PW.1 and got marked Exs.A1 to A13. Mr.Hari Challa, Managing Director of opposite party filed evidence affidavit as DW.1 and got marked Exs.B1 to B18. Mr.Venkat Prasanna 3 4 Challa, Director of opposite party filed further evidence affidavit as DW.2 and got marked Ex.B19. Written arguments of complainants filed.
Heard arguments of both sides.
05). Basing on the pleadings on both sides, the following are the points for consideration:
i. Whether the opposite party is deficient in services and adopted unfair trade practice towards the complainants ? ii. Whether the complainant is entitled for the reliefs as claimed?
iii. Whether the complaint is barred by time?
iv. Relief?
06). Points (i) to (iv) : Admittedly PW.1 entered into an Agreement of Sale with the opposite party on 20.7.2012, thereunder paid Rs.14,41,552/-. However, in the Ex.A1-Agreement of Sale dt.24.6.2013 it is mentioned that towards purchase of flat in question, the complainants have paid Rs.16,01,152/- already by then out of Rs.45,21,920/- and for the balance of Rs.29,20,768/-, payment schedule was given under Annexure A. In view of the specific recitals under Ex.A1, one can safely conclude that the complainants have paid Rs.16,01,152/- as on the date of Ex.A1.
07). Exs.A2 to A10 are the receipts issued by opposite party showing the various payments made by the complainant. All those payments are prior to Ex.A1. Therefore, one can consider that the complainants have paid Rs.16,01,152/- in total.
Ex.A10 is the receipt issued by opposite party and it goes to show that Allahabad Bank disbursed Rs.4,41,508/- by way of transfer in favour of the opposite party. Nowhere in the complaint it is mentioned that the complainants have taken housing loan from any bank leave alone Allahabad Bank. DW.2 in Further Evidence stated that, opposite party has already paid Rs.3,78,000/- out of Rs.20,42,660/- and it will be evidenced by the Account Statement of opposite party under Ex.B19. Ex.B19 is the ESCROWDD Account and it shows a sum of Rs.3,78,000/- was paid in the name of PW.1 on 15.7.2021. No other document is forthcoming that PW.1 received the said amount. The opposite 4 5 party counsel also stated that they have no objection to refund the amount for which the complainant counsel insisted that interest be awarded @ 12% p.a. In view of the representations made by both counsel, the points are answered in favour of the complainants. However, the amount of Rs.3,78,000/- which was paid under Ex.B19 shall be deducted from and out of Rs.20,42,660/- from the date of payment i.e. 15.7.2021. Till then the complainants are entitled for interest on 20,42,660/- .
08). 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.
09). In the result, complaint is partly allowed directing the opposite party to refund Rs.20,42,660/- with interest @ 10% p.a. from the dates of respective payments of amounts from PW.1; that a sum of Rs.3,78,000/- shall be deducted out of Rs.20,42,660/- on 15.7.2021. The opposite party is further directed to pay Rs.50,000/- towards compensation and Rs.20,000/- towards costs to the complainants. Time for compliance is one month.
(Dictated to Steno, transcribed and typed by her, corrected and pronounced by us in the open Court on this 27TH day of March, 2023).
SD/- SD/-
MEMBER (J) MEMBER(NJ)
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Dated 27.3.2023.
5 6APPENDIX OF EVIDENCE Witnesses examined For the complainants For the opposite party Evidence Affidavit of the complt. E.A of Mr.Hari Challa No.1 as PW.1 filed. -Managing Director of the Opp.party as DW.1 filed.
Further Evidence Affidavit of Venkat Prasanna Challa, Director of opp.party as DW.2 filed.
Exhibits marked on behalf of the complainants:
Ex.A1 : Photostat copy of Agreement of Sale dt.24.6.2013 between opposite party and complainants. Ex.A2 : Photostat copy of receipt dt.24.07.2010 issued by O.P. for the payment of Rs.1,50,000/- made by complainant no.1.
Ex.A3 : Photostat copy of receipt dt.5.10.2010 issued by O.P. for the payment of Rs.1 lakh made by complainant no.1.
Ex.A4 : Photostat copy of receipt dt.9.11.2010 issued by O.P. for the payment of Rs.3,90,261/- made by complainant no.1.
Ex.A5 : Photostat copy of receipt dt.29.08.2011 issued by O.P. for the payment of Rs.2,50,000 made by complainant no.1.
Ex.A6 : Photostat copy of receipt dt.16.9.2011 issued by O.P. for the payment of Rs.1,09,739/- made by complainant no.1.
Ex.A7 : Photostat copy of receipt dt.28.10.2011 issued by O.P. for the payment of Rs.41,544/- made by complainant no.1.
Ex.A8 : Photostat copy of receipt dt.25.11.2011 issued by O.P. for the payment of Rs.85,000/- made by complainant no.1.
Ex.A9 : Photostat copy of receipt dt.5.1.2012 issued by O.P. for the payment of Rs.15,008/- made by complainant.
Ex.A10 : Photostat copy of receipt dt.6.07.2011 issued by O.P. for the payment of Rs.4,41,508/- through Allahabad Bank disbursement transfer.
Ex.A11 : Photostat copy of legal notice dt.4.12.2018 issued on behalf of the complainants to opposite party. Ex.A12 : Original postal receipt.
Ex.A13 : Postal track.
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 6 7 & 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 opposite party to the owner of the flat no.2782.
Ex.B18: Photographs of apartments and flat owners. Ex.B19 : Account Statement showing payment of Rs.3,78,000/-.
SD/- SD/-
MEMBER(J) MEMBER(M)
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Dated :27.3.2023.7