National Consumer Disputes Redressal
M/S. Modi Builders & Realtors & 2 Ors. vs Levaku Usha Reddy on 16 October, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 183 OF 2013 (Against the Order dated 31/12/2012 in Complaint No. 30/2011 of the State Commission Andhra Pradesh) WITH IA/2526/2013,IA/4138/2015,IA/4449/2013,IA/8070/2014 1. M/S. MODI BUILDERS & REALTORS & 2 ORS. THROUGH ITS MANAGING DIRECTOR, SHRI SOURABH MODI, S/O. SHRI SATHISH MODI, REGISTERED OFFICE AT 5-4-187/3 & 4, IIIRD FLOOR, SOHAM MANSION, M.G. ROAD, SECUNDERABAD ANDHRA PRADESH 2. M/S. GRANDEUR HOMES PVT. LTD. THROUGH ITS MANAGING DIRECOR, SHRI SOURABH MODI, S/O. SHRI SATHISH MODI, REGD. OFFICE AT 5-4-187/3 &4, IIIRD FLOOR, SOHAM MANSION, M.G. ROAD, SECUNDERABAD ANDHRA PRADESH 3. SHRI SOURABH MODI S/O. SHRI SATISH MODI, MANAGING DIRECTOR OF M/S. GRANDEUR HOMES PVT. LTD., RGD. OFFICE AT 5-4-187/3&4, IIIRD FLOOR, SOHAM MANSION, M.G. ROAD, SECUNDERABAD A.P ...........Appellant(s) Versus 1. LEVAKU USHA REDDY D/O. L. VENKATA RAMI REDDY, H NO. 6-1-1059, FLAT NO. 505, TAJ ENCLAVE, KHAIRATABAD, HYDERABAD-500004 ANDHRA PRADESH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE DR. B.C. GUPTA, MEMBER For the Appellant : Mr. T. Bhaskar Gowtham, Proxy counsel for Mr. D. Bharat Kumar, Advocate For the Respondent : MR. G.L.N. MURTHY Dated : 16 Oct 2015 ORDER JUDGMENT JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The complainant, Smt. Levaku Usha Reddy booked a residential flat with the opposite party, M/s. Modi Builders & Realtors Pvt. Ltd. for purchase of an ultra-luxury residential apartment in Gajularamaram Village, Quthbullapur Mandal, District- Ranga Reddy of A.P. Vide sale deed dated 15.02.2008, the semi-finished flat no. 401 was sold to the complainant for a total consideration of Rs. 11,85,692/-. On the same date, the parties entered into an agreement for completing the construction of the aforesaid semi-final flat for a total consideration of Rs. 29,58,388/-. The above referred sale consideration of Rs. 29,58,388/- was payable in the following manner:-
S. No. Amount Due date of payment
1.
Rs. 5,75,000/-
paid by vendee
2. Rs. 2,56,298/-
Vide cheque no. 552594 dated 14.02.2008
3. Rs. 10,28,870/-
6 months from the date of this agreement/on casting slab whichever is earlier
4. Rs. 6,83,785/-
12 months from the date of this agreement/on completion of brickwork whichever is earlier
5. Rs. 2,02,218/-
15 months from the date of this agreement/on completion of flooring whichever is earlier
6. Rs. 2,07,217/-
On completion of apartment
2. The complainant paid a total sum of Rs. 41,06,921/- inclusive of the price of the semi-finished flat to the opposite party on the following dates:-
Date Amount 18.12.2007 75,000/-
07.02.2008 5,00,000/-
14.02.2008 3,00,000/-
15.02.2008 14,42,260/-
20.01.2009 1,00,000/-
20.01.2009 1,00,000/-
20.01.2009 1,00,000/-
02.02.2009 50,000/-
27.02.2009 5,00,000/-
09.04.2009 2,00,000/-
18.04.2009 2,00,000/-
18.04.2009 1,00,000/-
11.08.2009 2,30,000/-
21.10.2009 1,09,661/-
22.03.2010 1,00,000/-
3. Clause 3 and 16 of the agreement dated 15.02.2008 reads as under:-
"3. The Buyer shall be liable to pay penal interest calculated @ 3% per month on all delayed payments of instalments. Under no circumstances shall the Buyer delay the payment of instalments for more than 60 days from the due date after which the Builder is entitled to cancel this agreement as per Clause 14 below without any further notice based on the discretion of the Builder.
16. That the Buyer agrees that under no circumstances including that of any disputes or misunderstandings, shall the Buyer seek or cause the stoppage or stay of construction or related activity in the SPLENDOUR project or cause any inconvenience or obstructions whatsoever. The Builder in case of any such dispute is free to cancel the sale and sell the above apartment to a new buyer. However, the claim of the Buyer against the Builder shall be restricted to a monetary claim, which shall not exceed the amount paid by the Buyer along with interest at the rate of 18% p.a. on the same, computed from the date of this agreement as damages in case of any breach or violation of obligations by the Builder. This understanding is specifically reached amongst the parties for the overall interest of the other Buyers in the project and for the smooth uninterrupted execution of the works for the project as a whole."
4. The construction of the flat having not been completed even on expiry of the grace period which ended in June, 2010, the complainant sent a notice dated 29.10.2010 requiring the opposite party to either deliver possession of the flat with all agreed standards or refund the money with interest @ 18% per annum.
The opposite party replied to the aforesaid notice on 15.11.2010 and took the plea that as on 15.11.2010, a sum of Rs. 3,93,764/- was still due from the complainant. It was also claimed in the aforesaid reply that the opposite party had gone ahead to complete the construction of the flat, which would be delivered to the complainant within 15 days from the date of receipt of payment from her.
5. Being aggrieved from the failure of the opposite party to comply with her notice, the complainant approached the concerned State Commission by way of an appeal. The complaint was resisted by the opposite party primarily on the ground that there was default on the part of the complainant in making payment and the construction had also been completed by it long ago.
6. The State Commission, vide its order dated 30.12.2012, directed the opposite party to refund the amount of Rs. 41,06,921/- paid by the complainant alongwith interest @ 18% per annum from the date of issue of the legal notice. The opposite party was also directed to pay cost quantified at Rs. 5,000/-. Being aggrieved from the aforesaid order, the opposite party has filed First Appeal No. 183/2013. Since the complainant is also not satisfied with the relief granted to her, she has filed First Appeal No. 742/2013.
7. The first question is whether the construction of the flat had been completed by the opposite party by June, 2010 or not. We find that though the opposite party claimed in the reply filed before the State Commission that the construction had been completed long ago, the specific date on which the construction was allegedly completed was not given in the reply. The learned counsel for the opposite party has not been able to point out the date of completion in the reply filed before the State Commission. There is no letter sent by the opposite party to the complainant stating therein that the construction of the flat was complete in all respects and asking her to take its possession. Even in its reply dated 15.11.2010, the opposite party did not claim that the construction was complete, though it offered to give possession within 15 days of the balance payment. No Architect or Engineer was produced by the opposite party before the State Commission to prove that the construction of the flat was complete in accordance with the agreement dated 15.02.2008.
8. We are in agreement with the learned counsel for the complainant that in fact this was one transaction of sale of an apartment in a building which the opposite party was constructing and it was only for the sake of convenience that the whole transaction was divided into two bills, the first being for sale of an incomplete/shell flat and the other being for completing construction of the aforesaid incomplete/shell flat. Therefore, in the event of the opposite party/builder committing breach of its obligation under the agreement, the complainant is entitled to refund of the entire money paid by her for this flat alongwith interest.
9. As per clause 16 of the agreement dated 15.02.2008, in case of breach or violation of its obligations by the builder/opposite party, the buyer/complainant was entitled to the amount paid by her alongwith interest @ 18% per annum from the date of the agreement as damages.
10. The learned counsel for the opposite party pointed out that there was default on the part of the complainant in making timely payment to the builder. If we compare the dates on which the payments were made by the complainant from time to time, with the time of payment given in schedule 2 of the agreement, it can hardly be disputed that there was delay on the part of the complainant in making payment. However, the opposite party/builder accepted the delayed payment instead of cancelling the agreement in terms of clause 3 thereof. As noted earlier, in the event of delay in making payment, the buyer was required to pay penal interest @ 3% per month on the delayed payment. Under no circumstance, he could delay payment for more than 60 days from the due date, whereafter the builder was entitled to cancel the allotment as per clause 14 without any further notice. Therefore, in our opinion, the complainant was required to pay interest @ 3% per month on the delayed payment of instalment, upto 60 days from the dates on which the instalment had fallen due. The opposite party/builder, therefore, is entitled to deduct the interest so calculated, from the amount which it is required to refund to the complainant. However, the petitioner/opposite party shall not be entitled to any interest for the period beyond 60 days from the due date since the said opposite party of its own volition chose not to cancel the agreement and sell the flat to some other buyer.
11. For the reasons stated hereinabove, we dispose of these appeals with the following directions:-
(1) The opposite party/builder shall refund the entire amount paid to it by the complainant aloongwith simple interest @ 18% per annum from the date of the payment till the date on which the aforesaid amount is actually refunded to the complainant;
(2) the complainant is liable to pay interest on the delayed payments, to the builder/opposite party at the contractual rate of interest @ 3% per month upto the date on which the payment was actually made or upto 60 days from the due date, whichever is earlier;
(3) the builder/opposite party shall be entitled to adjust the amount of interest payable by the complainant to it from the amount refundable to the complainant and shall calculate and make balance payment accordingly, within six weeks from today;
(4) the opposite party/builder shall also pay Rs. 5,000/- as the cost of litigation quantified by the State Commission to the complainant;
(5) the complainant shall re-convey the flat in question to the builder/opposite party within two weeks of receiving the payment from the opposite parry in terms of this order.
(6) The expenses including stamp duty required for reconveying the flat to the opposite party/builder shall be borne by the said opposite party/builder.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER