State Consumer Disputes Redressal Commission
1.Mr.B. Srinivas vs M/S. Aliens Developers P. Ltd., on 27 February, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.23/2019
Between :
1.Mr. B.Srinivas, S/o.Mr.B.Satyanandam , Aged about 38 years,
2. Smt.B.Srivani, W/o.Mr.B.Srinivas, Aged about 36 years, R/o.Plot No.65, Vijayapuri Colony, Sainikpuri, ECIL Post, Secunderabad- 500 062. ... 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 FEBRUARY, TWO THOUSAND TWENTY THREE .
Order :
1). The complaint is filed u/s.17(1)(a)(i) of the Consumer Protection Act, 1986 & 2002 for directions to the opposite party as under:
i. To refund Rs.20,02,500/- with interest @ 20% p.a. from respective dates of sale consideration received till payment; 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 2 sale and register the same as required under law;
iii. to pay Rs.5 lakhs towards compensation; iv. to pay fair rent of Rs.20/- per sq.ft. of super built up area per month w.e.f 1.4.2014 in case of handing over flat; and v. to pay Rs.50,000/- towards legal charges of the complaint.
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 an Agreement of Sale dt.11.1.2012 with the opposite party to purchase a flat bearing no.1217(B), Station-3 on 12th (B) floor of the complex by name Aliens Space Station-1 with a super built up area of 1687 sq.ft. with one covered car parking besides undivided share of land of 36.27 sq.yards out of the land as stated supra; that the total sale consideration is Rs.43,63,127/- and the complainants initially paid part of the sale consideration of Rs.23,02,500/- and agreed to pay the balance amount as per the work progress; that the opposite party had agreed to complete the construction by 31.10.2012 including the grace period and in case of default agreed to pay compensation @ Rs.3/- per sq.ft. of super built up area per month w.e.f. 1.4.2014; that the complainants visited the project site and noticed that there has been no construction at the project site; that the opposite party promised to pay back the sale consideration vide letter dt.31.1.2014 and also promised to pay back the the home loan proceeds received; that in para 7 of the complaint it is mentioned that the complainants paid a sum of Rs.23,02,500/- as against the total consideration of Rs.43,63,127/-, even then, no progress in construction, no response for phone or mails from the opposite party in respect of progress in construction of the flat till promise made vide letter dt.31.1.2014, except payment 3 of Rs.3 lakhs; that as the opposite party not adhered to their promise, the complainants got issued legal notice dt.20.12.2018 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 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 complainants entered into an agreement on 11.1.2012 as per which the opposite parties are alleged to handover the possession under 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 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 complainants; and that opposite party had already paid Rs.10,02,602/- to the complainants. With these pleas the opposite party prayed for dismissal of the complaint with exemplary costs.
404). The complainant no.1 filed Evidence Affidavit (PW.1). Exs.A1 to A9 are marked on behalf of the complainants. Mr.Hari Challa, Managing Director of opposite party filed evidence affidavit as DW.1. Mr.Venkat Prasanna Challa, Joint Managing Director of opposite party filed Additional Evidence Affidavit. Exs.B1 to B19 are marked on behalf of the opposite party. Written arguments of complainant filed Heard arguments of both sides.
05). Basing on the pleadings on both sides, the following are the points for consideration:
i. Whether there is deficiency in service and unfair trade practice on the part of the opposite parties?
ii. Whether the complainant is entitled for the reliefs as prayed for?
iii. How much amount the complainant paid to the opposite parties?
iv. Relief?
06). Points (i) to (iv): Ex.A1 is the Agreement of Sale dt.11.1.2012 relating to the flat in question, but a perusal of the same goes to show that the complainants agreed to purchase the flat for Rs.48,15,875/- but not at Rs.43,63,127/- as mentioned in the complaint. Ex.A1 further goes to show that under the document, the complainants have paid Rs.6,90,750/- and the balance payable was shown at Rs.41,25,125/- . In the complaint it is mentioned that the complainants have paid Rs.23,02,500/-. Ex.A2 & A3 relates to the payments of Rs.6,90,750/- as recorded in Ex.A1. Except, these two documents, no other receipt is forthcoming to show that the complainants paid the balance amount of Rs.16,11,750/- out of the alleged payment of Rs.23,02,500/- . A close look at the bank statement of PW.1 for the period from 13.1.2012 to 18.12.2018 goes to show that on 13.1.2012 bank disbursed Rs.16,11,750 to the opposite party.
Probably by including the bank disbursement amount, the complainants have put forth that altogether a sum of Rs.23,02,500/- was paid to the opposite party.
507). (a). As per Ex.A1, possession shall be delivered on or before 31.3.2014 including the grace period and in default the opposite party is liable to pay Rs.3/- per sq.ft. on super built up area w.e.f. 1.4.2014 till the date of delivery of possess. Ex.A7 is the office copy of legal notice dt.20.12.2018, under which the PW.1 demanded for the refund of the amount stating that he lost faith and not interested to continue in the project pursuant to the undertaking letter dt.31.1.2014 executed by opposite party, as such asked for repayment with interest at 20% p.a. besides compensation of Rs.5 lakhs.
(b). Ex.A6 is the letter dt.31.1.2014 given by opposite party to PW.1 wherein confirmed the receipt of Rs.6,90,750/- from the complainant, ofcourse the same amount mentioned in Ex.A1. It is further mentioned by way of a Note: "It is Mutually agreed that we will compensate the interest paid by you to the bank, expenses incurred and Rs.100/- per sft appreciation apart from the above schedule and the same will be discussed in the month of June, 2014". In the same document there are two endorsements made in handwriting viz.: i). August 28th -discussed - only paid 1 lakh total & shall be paid 2 lakhs on or before 10th of September,2014,
ii) the entire amount shall be paid before November,2014. Probably taking into consideration, the amounts referred under the 1st entry made on Ex.A6, it is mentioned in the complaint that a sum of Rs.3 lakhs was received from the opposite party. If Rs.3 lakhs is set apart, the balance amount payable comes to Rs.3,90,000/- subject to other clauses by way of note made in Ex.A6. As PW.1 referred about Ex.A6 in the legal notice, we can draw an inference that the complainants have also agreed to take back the amounts instead of pressing for the Flat. In such circumstances, the complainants cannot ask for a flat even as an alternative relief. It is mentioned in the written version that altogether, the opposite party paid Rs.10,02,602/- out of Rs.23,02,550/- to the complainants loan account towards EMIs. Here, it is important to note that no amount was directly given to the complainants towards the balance amount of Rs.3,90,750/- as mentioned in Ex.A6. Any amounts paid by the opposite party into the bank account of the complainant shall be treated as payments made to clear the bank loan of PW.1 and those payments cannot 6 be treated as the payments made to the complainants as agreed upon under Ex.A6. Even as per the opposite party Rs.10,02,602/- was paid into the bank account of PW.1. Therefore, we are of the emphatic view that such payments are quite different to the payments that have to be made as per Ex.A6. As opposite party not paid Rs.3,90,750/- as agreed under Ex.A6, the complainants were made to file the present complaint, as the other payments were made to clear the bank loan of PW.1 and if they are taken into consideration, the complaint cannot be considered as barred by time, because the last payment was made on 30.3.2016 to the tune of Rs.43,000/- and still outstandings are there in the loan account. Rs.3 lakhs that was paid under Ex.A6, was duly given credit by the complainant as per the complaint itself.
(c). The Arbitration Clause in Ex.A1 is noway obstacle for the Consumer Forum to decide regarding the deficiency in service. Therefore, we are of the view that it is a fit case to order for refund of the amount. The points are answered accordingly.
08). In the result, complaint is partly allowed directing the opposite party to refund Rs.3,90,750/- with interest @ 12% p.a. from 01.02.2014 till the date of full payment and to pay costs of Rs.20,000/- to the complainant. The opposite party is further directed to clear the entire bank loan of PW.1.
SD/- SD/-
MEMBER(J) MEMBER(M)
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Dated: 27.2.2023 APPENDIX OF EVIDENCE Witnesses examined For the complainant For the opposite parties Evidence Affidavit of the Evidence Aff. of Mr.Hari Challa Complainant no.1 filed -Managing Director of the Opp.party filed.
Evidence Aff. of Venkat Prasanna Challa, Joint Mg. Director of Opp.party filed.
Exhibits marked on behalf of the complainant:
Ex.A1 : Photostat copy of Agreement of Sale dt.11.1.2012 between opposite party and the complainant. Ex.A2 : Photostat copy of receipt dt.11.1.2012 issued by O.P. for the payment of Rs.4,40,750/- made by 7 complainant.
Ex.A3 : Photostat copy of receipt dt.12.12.2011 issued by O.P. for the payment of Rs.2,50,000/- made by complainant.
Ex.A4 : Photostat copy of Sanction Letter for credit limits above Rs.2 lakhs dt.13.1.2012.
Ex.A5 : Bank account Statement of complainants from 13.1.2012 to 18.12.2018.
Ex.A6 : Photostat copy of lr.dt.31.1.2014 from the opp.
party to complainant no.1.
Ex.A7 : Copy of legal notice dt.20.12.2018 issued on behalf of complainants to the opposite party.
Ex.A8 : original postal receipt.
Ex.A9 : Postal track.
Exhibits marked on behalf of the opposite parties:
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 opposite party to the owner of the flat no.2782.8
Ex.B18: Photographs of apartments and flat owners. Ex.B19: Bank Statements of opposite party issued by Bank of India,Gachibowli from 1.4.2013 to 31.3.2014 and also of ICICI Bank SD/- SD/-
MEMBER(J) MEMBER(M)
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