State Consumer Disputes Redressal Commission
M. Nagoor Rao vs Sanjay Vithalrao Bhosale on 15 October, 2012
BEFORE THE A BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. FA 884 of 2011 against CC 40/2010, Dist. Forum, Sanga Reddy Between: M. Nagoor Rao S/o. Hazarathaiah Proprietor, Sravani Engineering Industries R/o. Flat No. 101, Siri Residency, Madeenaguda, Serlingampally Municipality Hyderabad. *** Appellant/ O.P. No. 1 . And 1) Sanjay Vithalrao Bhosale S/o. Vithalrao Anandrao Bhosale Asst. Manager, Arch Pharma Labs Ltd. Gundlamachnoor Village Hatnoora Mandal, Medak Dist. *** Respondent/ Complainant. 2) The Chief Manager SBI, Sangareddy Branch Sanga Reddy 3) The Asst. General Manager SBI, RBO, Sharda Complex Chandanagar, R.R. Dist. 4) The Chief General Manager SBI Local Head Office Koti, Hyderabad. 5) The General Manager SBI, Customer Grievance Cell Local Head Office, Koti Hyderabad. *** Respondents/ Opposite Parties. Counsel for the Appellant: M/s. V. Gourishnakara Rao Counsel for the Respondents: M/s. G. K. Kalanidhi (R1) M/s. Vamaraju Srikrishunudu (Standing counsel for bank) CORAM: HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT. & SRI S. BHUJANGA RAO, MEMBER MONDAY, THE FIFTEENTH DAY OF OCTOBER TWO THOUSAND TWELVE ORAL ORDER:
(Per Honble Sri Justice D. Appa Rao, President) ***
1) This is an appeal preferred by Op1 builder against the order of the Dist. Forum directing it to rectify the registered sale deed along with corrections or refund Rs. 8 lakhs received in excess besides payment of compensation of Rs. 50,000/- together with costs of Rs. 5,000/-.
2) The case of the complainant in brief is that he agreed to purchase a residential flat G-II in ground floor with built up area of 1030 sft including the common areas in the name of his wife, and entered into an agreement on blank proformas to be utilised by them in consultation with field officer of SBI. He paid Rs. 1,50,000/- towards advance and approached the opposite party bank for sanction of housing loan for purchase of said flat. Accordingly the opposite party bank had sanctioned the said amount in the name of complainant and Op1 in consultation with Sri M. Sheshagiri Rao, Field Officer of the bank, entire loan amount of Rs. 13 lakhs was released without even completing the flat or handing over possession. A registered agreement was executed on 11.6.2008 by mentioning the sale consideration at Rs. 5 lakhs and extra items at Rs. 1,50,000/- and subsequently in the registered sale deed dt. 30.7.2008 he corrected the figure from Rs. 5 lakhs to Rs. 14,90,000/- though the stamp duty was paid for Rs. 5 lakhs. He has been paying the interest over the loan amount, even though the flat was not handed over to him.
Though the consideration was mentioned as Rs. 5 lakhs the amount collected was Rs. 14,50,000/-. Thus Op1 was liable to make good of the loss to a tune of Rs. 8 lakhs. On verification it was found that the area including the common areas etc., of the flat came to 900 sft as against 1030 sft a deficit of 130 sft. As per the agreement Manjeera water was not provided nor the car parking. He did not complete the construction within 15 months due to which he was forced to stay in a rented house by paying Rs. 4,000/- p.m. for about 10 monthly viz., Rs. 40,000/-. The electrical transformer was installed by the side of his flat thereby the value was reduced to 25%. Both in the sale deed as well as in the agreement the amount was quoted as Rs. 14,90,000/- by changing the record without his consent. To cover up his latches Op1 issued notice on 8.4.2010 for which he gave reply. Therefore alleging all this amounts to deficiency in service, he sought for interest on loan of Rs. 2,49,507/-
, Rs. 40, 000/- towards rent paid by him due to non-handing over of premises, refund Rs. 8 lakhs towards difference of loan amount (Rs. 13 lakhs sale consideration of Rs. 5 lakhs = Rs. 8 lakhs), Rs. 1,95,000/-
towards difference of built up area together with damages of Rs. 2 lakhs and costs.
3) Op1 builder resisted the case. While admitting that the complainant has purchased G-II flat with built up area of 1030 sft including the common areas it alleged that he did not purchase the flat in the name of his wife as pleaded by him. He himself entered into an agreement and signed all the documents. The total consideration of the un-finished flat was Rs. 18,54,000/-
excluding extra charges of Rs. 1,50,000/- towards car parking, electricity, manjeera water, lift etc. in all Rs. 20,04,000/-. Even on physical measurement the total area came to 1030 sft and not 900 sft as alleged in the complaint. Agreement of sale as well as sale deeds were executed for semi-finished flat by mentioning the sale consideration at Rs. 5 lakhs as per the market value. For the sake of obtaining housing loan by the complainant he executed a separate development agreement on 22.7.2008 for construction of semi-finished flat.
As per the schedule, he completed the flat by the end of October, 2009. Despite his repeated requests to pay balance of sale consideration of Rs. 5,54,000/-
he did not pay. He started making false allegations, and even gave criminal complaint. On that he got issued legal notice on 8.4.2010 asking him to pay balance of Rs. 5,54,000/-. The complainant had failed to pay the amount and took possession despite repeated requests. He is not competent to install electrical transformer. It is the electricity department that would verify and install. On that score, the cost of flat cannot be reduced to 25%. The complainant bent upon to evade payment of balance of Rs. 5,54,000/- and therefore was refusing to take possession. He is the sole proprietor of M/s. Sri Sravani Engineering Industries involved in construction business entered into development agreement, purchased 1146.22 sq.yds in 2007 under sale deed, and after obtaining necessary permission from the municipal corporation they constructed the flats. He agreed to sell the said flat excluding car parking etc., for a sum of Rs. 18,54,000/-. He agreed to pay Rs. 1,50,000/- towards car parking, transformer, manjeera water etc. in all it came to Rs. 20,04,000/-. He paid Rs. 1,00,000/- on 25.6.2008 and Rs.
50,000/- on 5.7.2008 towards advance booking. He expressed his willingness to obtain housing loan from Op2 bank. Accordingly, after negotiations, the bank has sanctioned loan of Rs. 13 lakhs, and on that the complainant approached him on which the sale deed as well as agreements were executed, and deposited the title deeds with the bank to avail the loan. The complainant himself gave a consent letter in favour of the bank acknowledging receipt of Rs. 13 lakhs agreeing to pay loan amount from out of his salary. The complainant had failed to pay the amounts. Even though, he constructed the flats by investing huge amounts he paid Rs. 14,50,000/- as against total consideration of Rs. 20,04,000/-. He has to still get Rs. 5,54,000/-. In view of untenable stand taken by the complainant he got issued legal notice mentioning the above facts, and requested the complainant to take possession of the flat. Therefore, he prayed for dismissal of the complaint with costs.
4) The opposite party bank (SBI) equally resisted the case. It alleged that the complainant approached the bank for granting housing loan for purchase of a flat from Op1. The complainant had paid Rs. 1,50,000/- towards advance sale consideration at the time of entering into the contract. In fact, he approached them for housing loan of Rs. 13 lakhs. The said amount was released after inspecting the flat. Op1 has executed agreement of sale by mentioning the sale consideration at Rs. 5 lakhs, extra items at Rs. 1,50,000/- and there after executed the sale deed. He approached the bank for sanction of housing loan of Rs. 13,00,000/- for his semi-finished flat. The field officer inspected the house and found that it was ready for occupation. In fact the complainant himself gave a letter mentioning that he availed Rs. 13 lakhs towards housing loan. He executed agreement of sale and sale deed for Rs. 5 lakhs as semi-finished flat, and subsequently entered into an agreement for Rs. 13,54,000/-. They have not taken signatures of the complainant on blank proformas. Only at the request of the complainant, it has disbursed the loan amount to Op1. The complaint is vexatious and therefore prayed for dismissal of the complaint with costs.
5) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A7 marked, while the bank filed the affidavit evidence of its Chief Manager and Exs. B1 to B12 were marked on behalf of the opposite parties.
6) The Dist. Forum after considering the evidence placed on record opined that there was correction in Ex. B1 the total was shown as Rs. 14 lakhs with corrected figures from Rs. 13 lakhs. Equally it was mentioned as to the condition and status of the semi-finished flat which was agreed to be sold. In Ex. B3 flat No. G-10 was corrected to G-11. Instead of 970 sft it was corrected to 1030 sft. Op1 could not explain as to how these figures were arrived at. In Ex. B5 schedule-II in description of title deeds it was kept blank. The bank could not have advanced so much of money against said document. Op2 bank could not have lent the amount basing on Ex. B3 document. There was also correction in Ex. B12 not only in respect of area but also in respect of consideration. Since the transaction was not bonafidely depicted it opined that Rs. 8 lakhs was collected in excess and directed to refund the same or rectify the registered sale deed along with correction before the Sub-Registrar together with compensation of Rs. 50,000/- and costs of Rs. 5,000/-. Though complaint was allowed against Ops 1 & 2 no order was passed against Op2 bank.
7) Aggrieved by the said order Op1 builder preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It failed to see the importance of various documents and annexures attached to it. It has assumed that certain corrections were made despite the fact that the complainant himself admits in various documents seeking housing loan of Rs. 13 lakhs. The complainant has taken inconsistent stand in Ex. A4 notice that Rs. 13 lakhs was taken by Op1 without completing the construction, while admitting it was released to Op1 in consultation with bank officer. In fact the complainant himself gave affidavit of declaration and indemnity in respect of housing loan of Rs. 13 lakhs besides memorandum of loan agreement dt. 30.7.2008 for Rs. 13 lakhs. Equally Ex. B7 guarantee agreement as well as Ex. B8 agreement letter. EMI has been deducted on the loan of Rs. 13 lakhs for which the complainant never disputed his signatures on Exs. B1 to B10. At no time, protest was made for calculating EMI on the loan amount of Rs. 13 lakhs, and therefore prayed that the appeal be allowed by dismissing the complaint.
8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
9) The complainant did not allege anywhere as to the exact sale consideration for which he purchased the property. Instead he alleged that he paid Rs. 1,50,000/- towards advance, and approached Op2 bank for sanction of Rs. 13 lakhs for purchase of flat , and that the entire loan amount of Rs. 13 lakhs was released even without verifying the completion of flat nor handing over it to the complainant. He executed registered agreements mentioning the sale consideration as Rs. 5 lakhs, extra items at Rs. 1,50,000/-. He also executed registered sale deed dt.
30.7.2008 Ex. A2 mentioning very same consideration. He alleges that Op1 without rectifying the document corrected the amount to Rs. 14,90,000/-. This amount of Rs. 8 lakhs was liable to be paid by Op1 by crediting it to the loan account.
He also alleges as against 1030 sft of built up area after construction it came to 900 sft. He has to get additional amount by reducing the flat area by 130 sft. He was entitled to rents of Rs. 40,000/- as possession was denied for a period of 10 months.
10) The builder as well as the bank contended that the sale consideration for purchase of flat was Rs. 20,04,000/-. An amount of Rs. 5 lakhs was paid under agreement, and Rs. 13 lakhs was paid by the bank towards home loan.
11) The complainant made several allegations against Op1 stating that he corrected the figures mentioning the sale consideration at Rs. 14,90,000/- while the value of the flat was shown at Rs. 5 lakhs in the sale deed dt.
30.7.2008 Ex. A2. The amount was corrected as Rs. 14,90,000/- by putting his signature against the correction without his consent. Equally, Op2 has revised the amount without any basis, even though Rs. 5 lakhs was mentioned in the sale deed. Therefore, he was entitled to Rs.
8 lakhs which the Dist. Forum had awarded.
12) Admittedly no dispute was raised from the date of agreement 11.6.2008 till legal notice was issued by Op1 on 8.4.2010 demanding the complainant to pay Rs. 5,44,000/-. A reply was given by the complainant under Ex. A4 both to Op1 as well as to the bank admitting:
It is true that my client approached your client for purchase of residential flat No. G-11 in ground floor with the built up area of 1030 sft including common area in the residential complex built over plot No. 86 to 90 in Sy. No. 802, 806 and 807 in the name of his wife and entered into an agreement with your client, but never agreed for Rs. 18,54,000/- as mentioned in your legal notice, and true that the cost of car parking, transformer, manjeera water and lift etc., amounting to Rs. 1,50,000/- is agreed to be paid by my client and your client without any basis has hiked the cost of the flat by increasing the amount, which is never agreed by my client. Hence, you are requested to send the copy agreement of sale for my clients scrutiny.
He further stated :
It is true that my client has paid Rs. 1,50,000/- towards advance slae consideration and your client has received Rs. 13 lakhs from SBI, Sanga Reddy branch at the 1st instance without completing the flat, hence my client reserves his right to claim the interest for total drawn amount till the date of handing over of the possession, and true that your client has executed the registered agreement of sale bearing document No. 11072/08 dt. 11.6.2008 by mentioning the sale consideration of Rs. 5 lakhs and extra items of Rs. 1,50,000/- and subsequently executed the registered sale deed mentioning the same sale consideration and whereas your client subsequent to registration without any rectification document corrected the figure as Rs. 14,90,000/-, even though the stamp duty is paid for Rs. 5 lakhs , as such your client is held responsible for registration and your client also in collusion with the field officer of SBI, Sangareddy branch has drawn the additional amount in addition to the amount mentioned in the registered agreement of sale and also in the sale deed, for which my client is paying the interest un-necessarily on the additional amount drawn by your client, hence you are requested to direct your client to reimburse the excess drawn amount to the bank without further delay and my client never entered into an agreement for completion of semi-finished flat on 22.7.2008 for Rs. 13,54,000/-, and the agreement of sale and registered sale deed it is registered for the finished flat, as such the alleged agreement of completion of semi-finished flat dt.
22.7.2008 is created for the purpose of issuing this notice in order to extract additional amount from my client.
13) According to him the cost of the flat was Rs. 5 lakhs while Rs. 13 lakhs was received from the bank, an extra amount of Rs. 8 lakhs. Evidently, the complainant had executed Ex. A1 agreement of sale for Rs. 5 lakhs and sale deed Ex. A2 and a separate agreement for completion of semi-finished flat for Rs. 13,54,000/- along with pending works. Thus the total cost of the flat is Rs. 20,04,000/- viz., cost of semi-finished flat, sale deed for Rs. 5 lakhs and extra works for Rs. 1,50,000/-. As against the said amount he paid Rs. 14,50,000/-. Therefore balance of Rs.
5,54,000/- has to be paid, which he demanded under Ex. A3 on 8.4.2010. The very complainant admitted that a sum of Rs. 13 lakhs was sanctioned by the bank. However, he alleges that his signatures on some proforma applications were taken. The fact remains that at the instance of the complainant after executing the above documents and letter of indemnity for Rs. 13 lakhs vide Ex. B4 and his own affidavit Ex. B5 besides Ex. B6 memorandum of loan agreement for home loan the amount was released. Obviously, he being an employee granted Rs. 13 lakhs vide Ex. B6. A guarantee agreement was also executed by a third party vide Ex. B7 wherein there is a categorical mention that the home loan advance was for Rs.
13 lakhs. The complainant did not file the affidavit of the surety in order to state that he was unaware about the amounts paid by the bank to Op1 and he was made to execute this document for Rs. 13 lakhs though the complainant was liable to pay Rs. 5 lakhs.
14) The complainant had agreed to repay the amount by authorizing the bank to deduct EMIs from out of his salary vide Ex. B10. The complainant did not dispute these documents. That apart, the very complainant in his affidavit admits release of Rs.
13 lakhs to Op1 vide copy of the account Ex. B11.
15) The question is whether there was any fraud played by the officials of the bank correcting the consideration amount in the sale deed. The complainant obviously intends to take advantage of the fact that three documents were executed (1) towards agreement of sale (2) sale deed (3) separate agreement for semi-finished flat. Therefore different amounts were mentioned.
In Ex. A1 there was a categorical mention Out of total sale consideration of Rs. 5 lakhs the purchaser has paid a sum of Rs. 55,000/- by cash as advance sale consideration, and the balance sale consideration of Rs. 4,45,000/- to be paid in instalments.
Extras: Car parking Rs.
85,000/-
Transformer Rs. 25,000/-
Manjeera water Rs. 10,000/-
Lift Rs. 30,000/-
-------------------
Rs.
1,50,000/-
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Ex. A2 is the sale deed dt. 30.7.2008 wherein the very same facts were mentioned. Ex. B3 agreement for completion of semi-finished flat dt. 22.7.2008 which the complainant did not choose to file for obvious reason that it would expose falsity of his defence. It would undoubtedly show that consideration for the flat was Rs. 13,54,000/-. The correction was only in regard to flat No. G-11 and 1030 sft. There was no correction as far as consideration amount is concerned. Therefore the contention of the complainant the same was corrected by Op1 is false. Had it been true, the complainant ought to have taken certified copy of the document and filed the same. This averment is not in tune with facts mentioned in Ex. A1 & A2. Obviously, in order to get over payment of registration charges, both the complainant as well as Op1, had chosen to execute three documents. Be that as it may, Op2 could prove that it had released Rs. 13 lakhs to the complainant solely on the basis of above documents. The complainant had agreed for such a course.
In fact, he had never protested, when EMIs were deducted from out of his salary for a period of two years. Only when Op1 demanded the balance of sale consideration, the complainant started harping on this defence. We do not agree with the contention that an amount of Rs. 8 lakhs was taken extra by Op1 by suppressing the fact that sale consideration was only Rs. 5 lakhs not Rs. 13 lakhs. As per the documents filed by the complainant as against Rs. 20,04,000/- the demand made by Op1 in the legal notice Ex. A3 a sum of Rs. 5,54,000/- was correctly arrived at.
16) As earlier stated Exs. B4 & B5 and the very affidavit of the complainant discloses that housing loan was Rs. 13 lakhs. Ex. B6 memorandum of loan shows that he sought Rs. 13 lakhs and Exs. B7 & B8 agreement for sanction of Rs. 13 lakhs. The very complainants letter Ex. B10 is to deduct the same. Nothing could be imputed against the bank for releasing the said amount. This is reflected in Ex. B3.
17) The complainant also contends as against 1030 sft the built up area 900 sft was delivered a deficit of 130 sft. Evidently, it is not evidenced either by an engineers report or any document wherein one can deduce the said fact. Despite the fact that Op1 had invited the complainant to taken possession by paying balance of amount, the complainant did not pay nor take possession. He filed the complaint obviously in order to get over payment of this amount. The Dist. Forum did not appreciate the facts in correct perspective as depicted in the documents. Therefore, we are of the opinion that the order of the Dist. Forum directing Op1 to get the document corrected before the Sub-Registrar is unsustainable, equally so, the direction for refund of Rs. 8 lakhs.
18) The complainant could not show that he stayed in a rented house in order to claim reimbursement.
Since, we are of the opinion that the complainant was at fault he cannot turn round and claim compensation towards mental agony. In fact, he came up with a false plea. He ought to have filed Ex. B3 and could have contended the circumstances under which Ex. B3 came into existence. He could not explain. We are of the opinion that there was no deficiency in service either on the part of Op1 or Op2 bank. It is the complainant who was at fault in not paying balance of amount. It is not too late a day, the complainant can as well pay the amount and take possession of the flat for which Op1 did not dispute. We do not see any merits in the complaint.
19) In the result, the appeal is allowed setting aside the order of the Dist. Forum. Consequently, the complaint is dismissed. However, no costs.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER 15/10/2012 *pnr UP LOAD O.K.