National Consumer Disputes Redressal
Satyaprakash Jain vs M/S. Ivr Prime Urban Developers Limited ... on 29 May, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1595 OF 2017 1. SATYAPRAKASH JAIN S/O. R.L. JAIN, R/O. VILLA NO. 14, HILL RIDEG VILLAS, ISB ROAD, GACHI BOWLI, HYDERABAD TELANGANA ...........Complainant(s) Versus 1. M/S. IVR PRIME URBAN DEVELOPERS LIMITED & ANR. NOW CALLED RIHIM DEVELOPERS PVT. LTD., REPRESENTED BY ITS MANAGING DIRECTOR SHRI E. SUNIL REDDY, HAVING ITS REGISTERED OFFICE AT M-22/3RT, VIJAY NAGAR COLONY HYDERABAD-500057 TELANGANA 2. E. SUNIL REDDY, MANAGING DIRECTOR, M/S. IVR PRIME URBAN DEVELOPERS PVT. LTD., HAVING ITS REGISTERED OFFICE ATM-22/3RT, VIJAY NAGAR COLONY HYDERABAD-500057 TELANGANA ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE DR. INDER JIT SINGH,MEMBER
FOR THE COMPLAINANT : MR. PRAVIN BAHADUR, ADVOCATE
MR. S. ANJANI KUMAR, ADVOCATE FOR THE OPP. PARTY : MS. TWINKLE RATHI, ADVOCATE
MR. R.V. YOGESH, ADVOCATE
Dated : 29 May 2023 ORDER
JUDGMENT
JUSTICE RAM SURAT RAM (MAURYA), MEMBER
1. Heard Mr. Pravin Bahadur, Advocate, for the complainant and Ms. Twinkle Rathi, Advocate, for the opposite party.
2. Satya Prakash Jain has filed above complaint, for directing the opposite party to (i) deliver possession of built-up area of his share as per Development Agreement dated 20.04.2007; (ii) pay Rs.5000000/- as compensation for deficiency in service; (iii) pay Rs.100000/- as the costs of litigation; and (iv) any other relief which is deemed fit and proper in the facts of the case.
3. The complainant stated that IVR Prime Urban Developers Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The complainant purchased Plot No.72, Cyber Enclave, Madhapur Village, Srilingampally Mandal, Ranga Reddy District, through sale deed dated 14.10.2005 and was owner of it. The opposite party approached the complainant and represented that it had varied experience in the field of development and construction of the building and had a good-will for raising high quality constructions and completing on time. Believing upon the representations of the opposite party, the complainant entered into a Development Agreement-Cum-General Power of Attorney dated 20.04.2007, for development of his above Plot No.72. Under the development agreement, the share of the complainant was 21 sq. ft. in every 1 sq. yard build-up area and remaining area would go to the opposite party. The opposite party paid Rs.1952000/- through cheque dated 20.04.2007, as an advance, refundable on completion of the project and handing over possession of the share of the complainant. As per clause-3.1 of the agreement, the construction had to be completed within 30 months from 01.11.2006 with grace period of six months. Vacant possession of the land was handed over to the opposite party on the date of execution of development agreement. 30 months period expired in April, 2009. The complainant, through letter dated 12.05.2009, requested the opposite party to deliver possession within grace period i.e. up to 31.10.2009 and in case, possession is not delivered till then, to pay rent @Rs.30/- per sq. ft. on the built-up area of share of the complainant. The opposite party did not respond, then the complainant gave a reminder dated 01.06.2009. The opposite party, vide letter dated 01.07.209, supplied a copy another letter dated 17.06.2009 addressed to Cyber Enclave Welfare Association, wherein he had attributed the cause of delay to the members of that association. The complainant gave a legal notice dated 27.07.2009, to the opposite party, calling upon it to pay rent from November, 2009. The opposite party sent reply notice dated 10.10.2009, stating that the complainant had negotiated through Cyber Enclave Welfare Association for common development of his plot amalgamating with the plot of the association; but some of the members of association had not executed/signed Joint Development Agreement, in spite signing MOU for development as such the project was delayed.
4. The opposite party has filed its written reply on 04.10.2017 and stated that it was a reputed construction company, excellence in planning and execution of affordable, top quality housing projects and an urban development arm of IVRCL Infrastructure & Project Limited. There were 125 plots of the individual farmers in Survey No.77, Cyber Enclave, Madhapur Village, Srilingampally Mandal, Ranga Reddy District. The plot owners of Cyber Enclave approached the opposite party for amalgamating their plots and development into a common residential and commercial complex and signed MOU. They formed a society in the name Cyber Enclave Owners Welfare Society. 72 plot owners signed development agreement with the opposite party, in the year 2006, 64 plot owners signed development agreement, in the year 2006, 61 plot owners signed development agreement in the year 2007, 7 plot owners signed development agreement in the year 2008 and two plot owners signed development agreement in the year 2009 (there were subsequent transferees also). The complainant executed Development Agreement-Cum-General Power of Attorney dated 20.04.2007, for development of his Plot No.72. The Managing Committee of the Association assured the opposite party that they would get signature of all the plot owners of Cyber Enclave on the development agreement. For joint development, permission for amalgamation of the plots and clearance under Urban Land (Ceiling and Regulation) Act, 1976 are pre-requisite conditions. The opposite party obtained "No Objection Certificate" dated 03.09.2007, from Airport Authority of India. The opposite party moved an application dated 27.12.2007, to the competent authority for amalgamation of the plots of "Cyber Enclave". When the opposite party applied for clearance from urban ceiling, it was found that the competent authority had already declared 49889.26 sq.Mtrs. as vacant land in Survey No.77, vide order dated 10.11.2004. However, possession over vacant land was not taken, as such, after repeal of Urban Land (Ceiling and Regulation) Act, 1976, the proceeding for possession had abated and the land remained with the farmers. ULC granted 115 clearances and 10 clearances were still in process. Access to project land was through a narrow passage of 25 ft. wide. The opposite party purchased 2248.39 sq. yards land, spending Rs.15/- crores, through sale deed dated 13.08.2009 to widen the access road. The opposite party has spent around Rs.16.5 crores in giving refundable security to the owners of the land. The opposite party engaged M/s. Obrian Atkins California, U.S.A. as consulting architect, who prepared master plan, detailed drawings and submitted layout plan for approval on 29.08.2007, before Hyderabad Urban Development Authority, who required title deeds of all the plots. In spite of giving undertaking to deposit all original documents with the society, the plot owners, including the complainant did not deposit it with the association. The opposite party wrote letters dated 24.06.2013 and 11.07.2013 to the association to collect original title deeds and registered GPAs, undertakings and affidavits of the plot owners, as required by the concerned authority for sanction of layout plan. The opposite party held numerous meetings and correspondence with the association and the land owners but the required papers could be collected. The opposite party was making best possible effort to resolve the issues. In the meantime, the complainant and some other owners started litigation by way of arm twist, to harass the opposite party. The complainant has made incorrect allegation that he was not a member while at the time of approaching the opposite party, he had represented to be member of the association, which amounts to cheating. The complainant approached civil court and filed O.S. No.172 of 2010. Additional Senior Civil Judge referred the dispute to an Arbitrator vide order dated 17.01.2017. Instead of going before Arbitrator, this complaint has been filed, which is not maintainable. This complaint does within the pecuniary limits of this jurisdiction. The development agreement is for common development of entire plots of "Cyber Enclave". Neither Cyber Enclave Owners Welfare Society nor other plot owners were impleaded as the parties in the complaint, who are necessary parties as the performance of the obligation of the opposite party depended upon reciprocal obligation being performed by 134 plot owners. Development Agreement is compulsorily registrable document. It being unregistered is not admissible in evidence. V. Sunil Reddy is neither Managing Director nor Director of the opposite party. The complaint has been filed on various false and frivolous allegations and is liable to be dismissed.
5. The opposite party has stated that the complainant voluntarily filed civil suit i.e. O.S. No.172 of 2010, in which Additional Senior Civil Judge, by order dated 17.01.2017 referred the dispute to arbitration. Instead of appearing before the Arbitrator, the present complaint has been filed which is not maintainable. The complainant relying upon the larger Bench judgment of this Commission in Aftab Singh Vs. Emaar Mgf Land Ltd., 2017 SCC Online NCDRC 1614, which has been affirmed by Supreme Court in M/s. Emaar Mgf Land Ltd. Vs. Aftab Singh, (2019) (12) SCC 751, submitted that as Arbitration and Conciliation Act, 1996 does not bar the jurisdiction of this Commission. As such due to arbitration clause, this complaint cannot be dismissed.
6. The complainant filed Rejoinder Reply and Affidavit of Evidence of Mr. Satya Prakash Jain. The opposite party has filed Affidavit of Evidence of N. Kondana Rama Rao. Both the parties have filed their Written Submissions.
7. We have considered the arguments of the parties and examined the record. In the present case, the complainant himself availed the remedy of civil suit by filing the O.S. No.172 of 2010 in which the Civil Court has referred the dispute to an Arbitrator. The order of Civil Court has not been challenged by any of the parties and has become final and binding upon the parties. Therefore, it is imperative from the complainant to go for the arbitration. Instead of going before the Arbitrator the present compliant has been filed which is not maintainable.
8. Relevant clauses of development agreement dated 24.04.2007 are as under:-
"WHEREAS the Developer is also entrusted with the development of the neighboring plots by the other owners, situated in the same Survey No.77 at Cvber Enclave, Madhapur Village, Serilingampally Mandal, Ranga Reddy District. The development of the said land is being undertaken in the sharing ratio. 50% of the constructed Units and its undivided share of land to the Owner and other owners and 50% constructed Units and its undivided share of land to the Developer respectively. For the sake of convenience, the above 50% sharing between Owners and Developer is based on individual tower basis to be developed in the said area. But, the elevation, common facilities, fire fighting arrangements (As per National Building Code of India 2005-Part 4) etc., shall be similar in the towers of the Owners and the Developers. All the structures/buildings constructed in the schedule property of Cyber Enclave, which is marketable or profit earning will come under the purview of such sharing of 50%, except those, which are exclusively mentioned in this agreement;
WHEREAS the Developer, has promised to build minimum of 18 Lakh Square Feet in the proposed land admeasuring 45000 Sq. Yards of plotted area: It is also agreed between the Owners and the Developer that the 18 lakh sq. feet being constructed would be in the ratio of 40% (720000 sq. feet) Commercial and 60% (1080000 sq. feet) Residential. The promised built up area minimum of 18 lakh square feet in the proposed extent of land admeasuring 45000 sq. yds. will be proportionately varied depending on the other Owners who wish to join the Cyber Enclave Owners Welfare Association and Owners of individual plots who wish to join the Developer and those plot Owners who prefer to accept alternate plots on to one side of the development area. Whereas to further clarity the above position it is expressly provided by the parties hereto that the built up area of minimum 18 lakh square feet shall be reduced in the same ratio as the land area of 45000 square yards if reduced in the aforesaid contingency. Any built up area constructed over and above this would be in the Residential area. The Developer is permitted to build an additional 10000 sq. feet of built up area in his share of the Units exclusively belonging to the Developer, towards the consideration of providing central AC to the Commercial area by the Developer as agreed in the specification sheet.
WHEREAS the Owner, along with the other plot owners situated in the above Survey No.77 at Cyber Enclave, Madhapur Village, Serilingampaly Mandal, Ranga Reddy District has formed an Owners Welfare Society called Cyber Enclave Owners Welfare Society. The proportionate undivided share of land and constructed Units of the Owner will be allotted by the said Society to the Owner and other owners who have entered into development agreement with the Developer, from the 50% share of the owners and the Developer has nothing to do with the same in allotment of subjected space and flats among the Owners.
The Developer has agreed to obtain Urban Land Ceiling clearances/ regularization for the Plots that are yet to obtain such clearances, situated in the above said Survey No.77 at the mutual terms between the Developer and respective plot owners.
It is hereby agreed by both the parties that the Development Agreement Terms and Conditions will come in to force with effect from 1st November,2006, irrespective of the date and time some of the Owners of the Other plot owner who are yet to join, become a party to this agreement or not."
9. Although in later paragraph, it has been provided that Terms and Conditions will come into force with effect from 01.11.2006 irrespective of the date and time of some of the owners of other plot, who are yet to join for development agreement. But it is clear that the development work has to be carried over 45000 sq. yards land after amalgamating 125 plots. The complainant was owner of only 550 sq. yards. Development agreement is of the nature of contingent contract as defined under Section 31 of the Contract Act, 1872. Therefore, the development was not possible so long as all the land owners surrender their land and entered into development agreement. So far as interest of the complainant is concerned the complainant has been given a sum of Rs.1925000/- through cheque on 20.04.2007 as refundable deposit which is still with the complainant and he is fully secured. In such circumstances, it is appropriate to refer the matter for arbitration to the managing committee of Cyber Enclave Owners Welfare Society, in terms of the order of civil court.
ORDER In view of the aforesaid discussions, the complainant is disposed off directing the complainant to refer the dispute to the Cyber Enclave Owners Welfare Society as an Arbitrator who shall decide the dispute between the parties within a period of three months from the date of receiving reference.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ................................................ DR. INDER JIT SINGH MEMBER