State Consumer Disputes Redressal Commission
Smt. Gotrala Vani Annapurna vs 1.M/S. Om Sai Vijetha Builders,Rep.By ... on 1 May, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION: HYDERABAD.
CC.NO.128,129,130 OF 2015
Between:
Smt. Gotrala Vani Annapurna
W/o Sri Gotrala Durga Subrahmanya
Anjaneya Vital Babu,
Aged about 51 years, Occ: Bank Employee,
R/o of flat No.204, House No.16-11-419/1/1,
Sree Sailaja manor Apartments,
SBI Colony, Moosarambagh,
Hyderabad-500036.
....Complainant
(CC 128/2015)
Smt.G.P.Savithri,
W/o Sri G.V.Venkata Ramana Murthy,
Aged about 71 years, Occ: House wife,
Resident of Flat No.205,
House No.16-11-419/1/1,
Sree Sailaja Manor Apartments,
SBI Colony, Moosarambagh,
Hyderabad-500036.
........ Complainant
(CC 129/2015)
Smt. B.Narmada,
W/o Sri.B.Jaganath Reddy,
Aged about 42 years,
Occ: Business,
R/o H.No.16-11-511/D/55,
Shalivahana nagar,
Dilsukhnagar, Hyderabad.
....... Complainant
(CC 130/2015)
And
1. M/s. Om Sai Vijetha Builders,
Vijetha Navaratan Trade Centre,
H.No.16-11-515/1, 5th Floor,
Near Kala mandir, Main Road,
Dilsukhnagar,
Hyderabad-500060.
(Rep.by its Partner-Sri Ch.Lingaiah)
2. Sri Ch.Lingaiah, S/o Buchaiah,
Partner, M/s.Om Sai Vijetha Builders,
H.No.18-121/A, Kamalanagar,
Gaddiannaram, Hyderabad.
3. Smt.P.Sunitha W/o Sri.P.Srinivas,
Partner M/s.Om Sai Vijetha Builders,
C/o Om Sai Jewellers, D.No.4-7-45,
Near Konark Theatre, Dilsukhnagar,
2
Hyderabad-500060.
4. P.V.J.Annaji Rao,
S/o Late P.Narasimha Rao,
Retd.Employee, R/o.H.No.16-11-405/B,
Moosarambagh, Dilsukhnagar,
Hyderabad.
(Died on 01.04.2017 and 20.08.2018 the complaint was
dismissed as not pressed against op4)
.....Opposite Parties
(CC 128,129,130 of 2015)
Counsel for the Complainant : M/s. SubramanyamKurella
Counsel for the Opposite Parties 1 & 2 : Mr. Sheshidhar Reddy
Counsel for the Opposite Party No.3 : M/s A.Muralidhar Reddy
QUORUM: HON'BLE SRI V.V.SESHUBABU, MEMBER
&
HON'BLE SMT R.S. RAJESHREE, MEMBER
MONDAY, THE FIRST DAY OF MAY
TWO THOUSAND TWENTY THREE
*******
(Per Hon'ble Sri V.V.Seshubabu, Member -Judicial)
Common Order:
1. The complaint in CC 128/2015 was filed on 03.07.2015 under Section 17(1) (a) (i) of the Consumer Protection Act, 1986, praying this Commission to direct the Opposite Parties 1,2,3:
To complete the construction of apartment No.201 as per specifications within two months and deliver possession of the same by duly executing registered sale deed in "Om Sai Vijetha Thulasi Nivas".
To award compensation at Rs.12000/- P.M being the rent from December 2012.
To pay compensation of Rs.5,00,000/- towards mental agony etc., suffered by complainant.
To pay damages @5 per sft per month.
In the alternative permit the complainant to complete the
construction as per specifications, at the cost of complainant to be reimbursed by the opposite parties 1,2,3 towards balance sale consideration payable by the 3 complainant in the presence of advocate commissioner to be appointed by the commission.
1(A). The complaint in CC 129/2015 was filed on 03.07.2015 under Section 17(1) (a) (i) of the Consumer Protection Act, 1986, praying this Commission to direct the Opposite Parties 1,2,3:
To complete the construction of apartment No.302 as per specifications within two months and deliver possession of the same by duly executing registered sale deed in "Om Sai Vijetha Thulasi Nivas".
To award compensation at Rs.12000/- P.M being the rent from December 2012.
To pay compensation of Rs.5,00,000/- towards mental agony etc., suffered by complainant. To pay damages @5 per sft per month.
In the alternative permit the complainant to complete the construction as per specifications, at the cost of complainant to be reimbursed by the opposite parties 1,2,3 towards balance sale consideration payable by the complainant in the presence of advocate commissioner to be appointed by the commission.
1(B). The complaint in CC 130/2015 was filed on 03.07.2015 under Section 17(1) (a) (i) of the Consumer Protection Act, 1986, praying this Commission to direct the Opposite Parties 1,2,3:
To complete the construction of apartment No.401 as per specifications within two months and deliver possession of the same by duly executing registered sale deed in "Om Sai Vijetha Thulasi Nivas".
To award compensation at Rs.12000/- P.M being the rent from December 2012.
To pay compensation of Rs.5,00,000/- towards mental agony etc., suffered by complainant. To pay damages @5 per sft per month.
In the alternative permit the complainant to complete the construction as per specifications, at the cost of complainant to be reimbursed by the opposite parties 4 1,2,3 towards balance sale consideration payable by the complainant in the presence of advocate commissioner to be appointed by the commission.
2. The brief facts of the CC. 128/2015are as follows:
Opposite party No.4 was the landlord of the premises bearing door No.16-11-405/A, in plot No.8 admeasuring 425 sq. y, SBI Officers colony, Moosarambagh, Hyderabad; that opposite parties 2 and 3 are the partners in op1 firm that the ops 1,2,3 entered into development agreement cum GPA dated 24.07.2010 vide Doc No.3153/2010 in the office of SRO, Azampura, Hyderabad; that permission was obtained to construct residential complex with stilt + 4 floors that the flat 201 fell to the share of ops 1,2,3 that the complainant being close to op4 entered into a agreement of sale dated 19.03.2011 to purchase the flat 201 for a total consideration of Rs.35,00,000/- and paid Rs.16,51,500/- and the balance payable was at Rs.18.49 lakhs; that the possession shall be delivered by the ops 1,2,3 within nine months by completing the flat in all respects as agreed upon with a grace period of three months; that in case of failure the ops 1,2,3 agreed to pay damages @ of Rs.5 per sft; that contrary to the understanding construction was not completed and possession not delivered inspite of several requests; that the request to receive balance amount and to get the flat registered also not complied with; that the complainant came to know that in view of differences between ops 2 and 3, stopped the construction of flats from 2011 onwards; that complainant presently staying in a rented accommodation by paying Rs.12,000 pm; that the actions of the ops 1,2,3 amounts to deficiency in service and unfair trade practice; that as on the date of complaint in CC 579/2013 before District Consumer Forum III, as many as major works 7 in number mentioned in the complaint are still pending; that in the letter dated 20.05.2012 ops have admitted lack of coordination among them and requested a time of three months to complete the complex, but failed to do so; that the complainant got issued a registered letter/notice to all the ops demanding refund of the amount with interest and compensation within one week; that only op2 received the notice and a notice sent to a jewelry shop of op3 was also served but no reply was 5 given by ops 2 and 3; that the one Smt A. Sumithra Bharathi filed CC 456/2012 and obtained interim order of not to alienation against ops 1,2,3 and it was allowed by the district form to refund the amount with interest and costs; that the complainant along with two other purchasers of the flats in the same complex filed joint complainant in CC 579/2013 before District Consumer Forum III at Hyderabad, in which the ops admitted the sale agreement and requested for time to complete the construction but in op3 denied the agreement of sale in favour of complainant and it was done due to here disputes with op2; that both sides filed evidence affidavits besides return arguments; that op3 filed IA 394/2014 raising lack of pecuniary jurisdiction to the District Forum which was allowed vide order dated 09.03.2015 in which office was directed to return the complainant and liberty was given to the complainants therein to file independent or common complainant before appropriate consumer forum; that after written of the complaint and before filing the present complaints in this commission, the ops completed the maximum of the constructions with an active collusion of op4 and trying to sell the flat and also attending interior wood work; that though false celling was not in the specifications completing the same; hence, the complaint.
3. The brief averments of the written version of ops 1 and 2 in CC 128/2015 are that the complaint is not maintainable either on facts or under law; that the complainant is put to strict proof of all the averments made in the complaint except those that are admitted; that the complainant not mentioned are obligation of payment of sale consideration as per scheduled and it is selectively prepared to have benefit that due to differences among the partners the project was initially delayed and op2 was never allowed to progress with the construction; that op2 filed arbitration O.P No.1826/2012 before second ACJ Hyderabad for smooth completion of the venture; that the op2 several times requested the complainant and other purchasers to pay the balance amount to meet the construction expenditure but they have not responded; that the complainant by joining with other purchasers filed CC 579/2013 and he filed written version therein stating that he would stick to the sales transactions being managing partner of 6 op1; that even restarted construction of work and completed entire construction with the personal funds thinking that all problems would be solved; that as a part of compromise relating to the flat of Smt Sumithra Bharathi, a negotiation was made with op3 and executed the sale deed; that op3 is having full knowledge about the execution of agreements of sale in favour of complainant and other purchasers; that op3 purchased some of the flats felt the share of op4; that complainant is having valid agreement and can enforce rights. With the above pleadings requested to dismiss the complaint with costs.
4. The brief averments of the written version of op3 in CC 128/2015 are almost similar to the written version of ops 1and 2. The other averments are that, she is a partner in op1 firm along with op2 and admitted the development of residential complex named as OM Sai Vijatha Thulasi Nivas ; that op3 never met the complainant and no knowledge of complainant approaching op2 for the purchase of the flat; that the agreement in favour of complainant is a created one in collusion with op2, to harass the op3 who never received any amount from complainant; that op2 received the amount in individual capacity, which is not binding on the op3; that op1 is an un registered firm and its accounts will not reflect the payment of amount by complainant; that op3 is not a party to the agreement of sale in favour of complainant; that op2 and 3 are not in talking terms from March 2011 itself and disputes cropped up among them when in February 2011 op2 filed arbitration OP No.656/2011; that op2 has no authority to represent op1 to execute agreement of sale in favour of complainant; that the legal notice was sent by complainant to the husband of op3 which is not tenable; that the complainant is not entitled for the various reliefs claimed in the complainant and put to strict proof of all the same to show the entitlement; that the dispute regarding the flat of Smt A.Sumithra was settled as op2 paid entire amount to the op3; that the complaint is barred by limitation and to that effect the op3 filed a petition to decide the same on merits; that the order of the District Forum will not bring the complaint within period of limitation and added to the same some more ops were also added to the complaint; that op1 as per the agreement was allotted with plots 102,201,302 and 401 in 7 which the op3 is having undivided share; that op2 played fraud on the op3; that op3 give a complaint in crime No.39/2012 dated 31.12.2012 before SHO Malakpet; that the arbitration OP was dismissed on 23.07.2013 and due to the same and the instigation of op2, the complainant and two others hurriedly filed CC 579/2013 on 30.07.2013 and it shows collusion. With these pleadings requested to dismiss the complaint with costs.
5. The brief averments of the written version of op4 in CC 128/2015 are that by the date of 11.03.2011 4th floor was not at all in condition to sell and ops 1,2,3 informed that it would not be sold until entire work was completed; that there were disputes among partners in op1 by February 2011, since then it was no progress in the construction; that minor works went on till December 2011 and completely stopped thereafter; that husband of op3 evinced interest and completed the work; that he got issued notice to the ops 1,2,3 informing that he spent Rs.65 Lakhs of his own to construct the flats and would required another Rs.20 Lakhs; that due to disputes between the partners suffering a lot. With these pleadings requested to dismiss the complaint with costs. (op4 died on 01.04.2017 and a memo was filed to that effect on 06.03.2018)
6. The brief averments of the complaint in CC 129/2015 are almost similar with the averments of CC 128/2015. The other averments are that the complainant purchased flat No.302 under agreement of sale dated 19.03.2011 for a total price of Rs.26,00,000/- and paid Rs.16,50,000/- and balance payable was at Rs.9.5 Lakhs.
7. The brief averments of the written version of ops 1 and 2 in CC 129/2015 are almost similar with the averments made in the written version of CC 128/2015. The other averments are relates to the flat No.302 of OM SAI VIJETHA THULASI NIVAS.
8. The brief averments of the written version of op3 in CC 129/2015 are almost similar with the averments made in the 8 written version of CC 128/2015. The other averments are relates to the flat No.302 of OM SAI VIJETHA THULASI NIVAS.
9. The brief averments of the written version of op4 in CC 129/2015 are almost similar with the averments made in the written version of CC 128/2015. The other averments are relates to the flat No.302 of OM SAI VIJETHA THULASI NIVAS.
10. The brief averments of the complaint in CC 130/2015 are almost similar with the averments of CC 128/2015. The other averments are that the complainant purchased flat No.401 under agreement of sale dated 25.06.2011 for a total price of Rs.35,20,000/- and paid Rs.15,00,000/- and balance payable was at Rs.20.20 Lakhs.
11. The ops 1 to 4 not filed any written version in the CC 130/2015. It may be due to over sight because in the docket sheet they are neither set Ex-Parte nor right to file written versions was forfeited.
12. Points for consideration in all the CCs 128to130/2015 are:
1. Whether the opposite parties have been deficient in the services, and have adopted any unfair trade practice?
2. Whether the complainant is entitled for the relief sought in the complaint?
3. Whether the complaint is barred by time?
4. Whether the unregistered partnership deed bars op2 to solely enter into agreement of sale with complainant?
5. Whether the unregister agreement of sale in favour of complainant cannot be looked into for want of registration, stamp duty and penalty?
6. Relief?
13. In CC 128/2015:- Smt.G.Vani Anapurna filed evidence affidavit as PW1 and got marked Ex.A1 to A39 and A9 was marked subject to objection. Smt.P.Sunitha/op3 filed evidence affidavit as RW1 and Mr.Ch.Lingaiah/Op2 filed evidence affidavit 9 as RW2 on behalf of ops 1 and 2 and in total Ex.B1 to B15 are marked for the opposite parties.
14. In CC 129/2015:- G.P. Savithri filed evidence affidavit as PW1 and got marked Ex.A1 to A39 and A9 was marked subject to objection. Smt.P.Sunitha/op3 filed evidence affidavit as RW1 and Mr.Ch.Lingaiah/Op2 filed evidence affidavit as RW2 on behalf of ops 1 and 2 and in total Ex.B1 to B15 are marked for the opposite parties.
15. In CC 130/2015:- B. Narmada filed evidence affidavit as PW1 and got marked Ex.A1 to A39 and A9 was marked subject to objection. Smt.P.Sunitha/op3 filed evidence affidavit as RW1 and Mr.Ch.Lingaiah/Op2 filed evidence affidavit as RW2 on behalf of ops 1 and 2 and in total Ex.B1 to B15 are marked for the opposite parties.
16. Written arguments filed by all the sides and additional written arguments also filed by op3. At first opposite party No.3 was represented by an advocate and subsequently the advocate was removed. After some time opposite party No.3 under a GPA authorized her husband Mr.Srinivas to prosecute the same on her behalf in all the cases. Heard the oral submissions of all the counsel. Basing on the pleadings, evidence and arguments in above points are answered like here under.
17. Point No.3:-
It is the contention of opposite party No.3; that the complaint is barred by time for the reason that after the joint complaint in the CC 579/2013 was returned with a finding that the said complaint was beyond the pecuniary jurisdiction of the Consumer Forum and gave a direction to the complainants therein to file a joint complaint or individual complaints before the concerned forum, but, the present complaints(3) are not filed within time as such they were barred by time. It is the contention of complainant counsel; that though independent complaints are filed there were new causes of action after return of the complaint 10 in CC 579/2013 and due to the same the complaints(3) are not barred by time. It is also argued that fourth opposite party was impleaded in the complaints(3) though he was not there in CC 579/2013. It is also pleaded in the complaints(3); that after return of the case in CC 579/2013. The opposite party had completed the maximum portion of construction and also ready to occupy and it was done in collusion with opposite party No.4 and also tried to alienate the property to third parties and they have also making interior wood work, false ceiling etc., which are not in the specifications and contemplating to sell the property to third parties which amounts to gross deficiency of service and unfair trade practice; that the opposite parties even approached the complainants(3) with some unviable name sake proposals under the guise of compromise with a intention to debar the complainants(3) in filing complaints before this commission. So, it is contended that the complaints(3) are not barred by time.
18. Ex.A38 is the order in IA 394/2014 in CC 579/2013 dated 09.03.2015 where under the complaint was returned the present in proper court. The memo under Ex.A39 goes to show that all the records were ordered to be returned to the complainants(3) on 24.03.2015. The present complaint is filed on 03.07.2015. No time was fixed in the Ex.A38 to file the complaints(3) in the concerned forum. As already stated supra in view of the fresh causes of action accrued to the complaints(3), that to subsequently Ex.A38 the complaints(3) are very much within time. As far as the complaint in CC 579/2013 is concerned it is not at all barred by time for the reason that not completing the constructions within the agreed period amounts to a continuous cause of action. Therefore, we are of the view that the complaints(3) are not barred by time. So, the point is answered accordingly.
19. Point Nos.4 and 5:-
Admittedly, the opposite party No.1 is an un registered firm. An un registered firm cannot file a suit against the third parties for any reliefs. However, all the partners in an un registered firm can file a suit for rendition of accounts and for closure of the 11 firm. Where as a third party can file a suit against an un registered firm by impleading all its partners as parties to the suit. As per Ex.B1 partnership deed dated 02.12.2009 the opposite parties no.2 and 3 are partners in opposite party No.1 and except them there is no other partner in the opposite party No.1 firm. The profit and loss share of the partners is at 50% each. As per clause 9 all business contracts in respect of partnership business shall be made in the name of M/s.Om Sai Vijaytha Builders and the same are binding on the firm. As per clause 10 both the partners are authorized to open and operate the bank accounts of the firm. As per clause 12 both partners are jointly authorized to raise loans and advances on behalf of the firm for the purpose a business from any bank or financial institutions or from others and the firm shall be liable for all such loans and advances. As per clause 13 the duration of the firm is at will. It is important to note that nowhere it is specifically mentioned both the partners shall jointly execute any agreement in favour of third party. In the case on hand all the complainants(3) have entered into their respective sales of agreement with opposite party No.1 being represented by opposite party No.2. Therefore, there is no technical embargo to treat the agreements of sale are valid. Coupled with the same the flats purchased by the complainants(3) are very much felt the share of opposite party No.1 as per the Ex.B2 registered development agreement cum general power of attorney. At page 4 at clause 8 of the document the flats felt the share of land owner and developer are clearly mentioned. So, there is no ambiguity with regard to the rights of firm in the sale of flats to the complainants(3).
20. Ex.A9 is the unregistered agreement of sale in favour of G.Vani Anapurna. Ex.A10 is the similar agreement in favour of G.P.savithri. Ex.A17 is another such similar agreement in favour of B.Narmada. The total consideration under the above three agreements are Rs.35 Lakhs for flat no.201 as per Ex.A9. Rs.26 Lakhs for flat No.302 as per Ex.A10 and Rs.35,20,000/- for flat No.401 under Ex.A17. The payments made under the above agreements of sale is admitted by opposite party No.2. It is also to be observed that the opposite party No.2 alone executed the above respective agreements on behalf of the complainants(3) respectably 12 on behalf of opposite party No.1 claiming himself as the Managing Partner. Ex.B7 is the statement of account of the opposite party No.1 maintained with Sate bank of Hyderabad, Dilsuknagar Branch for the period from 01.01.2010 to 26.12.2011. It is important to note all the payments said to have been made by the complainants(3) under the above agreements of sale to the opposite party No.2 or other payments received by opposite party No.2 under the receipts issued to the complainants(3) are different dates are not at all reflected in the Ex.B7. It shows, the opposite party No.2 alone received all the monies paid by the complainants. In other words there is nothing on record to show that part of the amounts are shared with the opposite party No.3.
21. OP.No.3 counsel relied upon the following case law;-
AIR 1966 Supreme Court 1300- in Addanky Narayanappa and another Vs Bhaskara Krishnappa (Died) and there after his hairs and others. It is mentioned in the case that during subsistence of the partnership, no partner can deal with the property as his own. Nor can he assign his interest in a specific item of property to any one.
We are of the view that the above cited case is not applicable to the facts of the present case because the opposite party No.2 executed the agreement of sale on behalf of the firm but not in his individual capacity.
C.Premsagar Chowdhary S/o Late........... Vs Sri. Sikara Constructions dated 07.09.2012 by the A.P State Consumer Disputes Redressal Commission at Hyderabad in C.C 85/2011 - in this case the complainant entered into agreement of sale of a flat and opposite party No.2 received part sale consideration under a valid receipt when opposite parties No.1 to 3 are the builders and opposite party No.2 executed unregistered agreement. The ops not coming forward to delivered possession and 13 to registered to sale deed.---- The other partners contended that the complaint is a collusive one filed it the behest of opposite party No.2 and they have not received any amount and the agreement is not binding on them - this commission found that as per the terms of the partnership deed the firm shall be represented by both partners and as it did not happened opposite party No.2 was alone made liable.
We are of the view that the above case is not applicable to the present one because as per the Ex.B1 opposite parties No.2 and 3 need not made compulsory to execute the agreements. Only for the purpose of obtaining loans and advances there was necessity for both the partners to execute the documents.
K.Laxminarayana Reddy, since ----- Vs Vardhi Reddy Dasharathram Reddy ------ dated 09.04.2012 by the Honorable High court of A.P-. In the cited case the question involve is how on dissolution of a partnership firm, the assets of the dissolved firm are to be distributed among the partners. It relates to a civil suit. In the present case on hand the dispute not relates to rendition of accounts. So, this cited case is not applicable.
22. The perusal of agreement of sale dated 26.06.2011 in favour of B.Narmada in respect of plot No.401 goes to show that the stamp paper on which Ex.A17 was drafted in fact was purchased by opposite party No.2 in his name on 11.02.2009. By using the old stamp paper available with opposite party No.2 the agreement was executed. Therefore, it is the argument of op3 counsel that EX.A17 is a created document in view of collusion between Smt.B. Narmada and opposite party No.2, as such it is not binding on him. Merely because, the Ex.A17 was drafted on a stamp paper purchased in the name of opposite party No.2, nearly about one and half years prior to the date of document one need not 14 discount, the very documents itself. It is important to note that except contending collusion between opposite party No.2 and other complainants (3), the opposite party No.3 not made any efforts to dissolve the partnership firm/ opposite party No.1 for rendition of accounts. The position is similar for the last 12 years, even though the disputes alleged to have been cropped up in the year 2010- 2011.
23. It is the contention of counsel for opposite party No.3 that Ex.A9, Ex.A10 and Ex.A17, the agreements of sale were unregistered and executed on the insufficient stamp papers. Therefore, those documents are inadmissible in evidence since, they are liable for stamp duty and penalty besides registrations. In support of the same relied upon the following the case law.
Omprakash Vs Laxminarayana others by the Hon'ble supreme court of India-2014(1) ALD 83.- The suit relates to specific performance of contract, possession and permanent injunction in respect of un irrigated land- possession was delivered under the agreement but found to the insufficiently in the payment of stamp duty.- the hon'ble supreme court found the document inadmissible in evidence, as it is against the section 33,35 and 38 of the Indian stamp act.
AIR 2012- SC- 2006- Suraj Lamp and industries Private Limited Vs State of Haryana and another, the case relates to validity of SA( Sale agreement)/ GPA/ Will transactions, to defend possession U/s 53A of TP Act-Section 17 of registration act- Section 27 of the Indian Stamp act- Article 23 of the Stamp act, which prescribed stamp duty on conveyance-
the hon'ble supreme court found that those documents do not convey any title nor create any interest in the immovable property, but they no way affect the validity of sale agreement and powers of attorney executed in genuine transactions.
15 The Hon'be supreme court of India - civil appeal no.
8441/2015 dated 08.10.2015 - unregistered agreements of sale of immovable property even though liable for registration U/s 17 and 49 of registration act can be received in evidence for collateral purpose.
2016(3) ALD 235- Syed Yousuf Ali Vs Yousuf and others- The hon'ble High Court at Hyderabad for the state of Telangana and A.P- Possessory agreement of sale- unregistered- section 47A of schedule 1-A of stamp act.- The document is in admissible, unless impounded or paid with stamp duty and penalty as per rules.
24. With the help of above case law it is submitted by the opposite party No.3 counsel that since, agreements A9, A10 and A17 are unregistered documents cannot be looked into. It is to be observed that all the 3 documents were executed on the stamp papers each worth Rs.100/-. So, they are sufficiently stamped. The possession was not delivered to the respective purchasers and only on completion of construction, that too after payment of balance amount sale deeds are agreed to be registered. Another important aspect is that all the complaints are filed Under Consumer Protection Act, which is a beneficial legislation to help gullible public at large. The main motto is to save the public from the unscrupulous service providers/ sellers. Technicalities will always take a back seat while granting various reliefs. The strict rigour of stamp act, registration act, civil procedure court, limitation act, cannot be a basis to reject the complainants filed under Consumer Protection Act. The CP act itself is a unique in nature enacted with an intension to help the public at large. In view of the discussions so far made we are of the view that the Ex.A9,10 and 17 are admissible in evidence and can taken into consideration. Accordingly the points are answered in favour of the complainants.
1625. Points No. 1 & 2:- The opposite party No.3 made publications under Ex.B3 cautioning the public at large not to entering to any agreements with opposite party No.2 in the purchase of present disputed flats. Ex.A9,10 and 17 were executed prior to the Exhibit B3. opposite party No.2 filed Arbitration O.P No. 1826/12 U/s 9 of Arbitration act, which was dismissed for default on 23.07.2013. Perusal of Ex.B15 goes to show that opposite party No.3 was already on record by then and represented by adv., so also by the opposite party No.4 herein by name Mr.P.V.Jaganatha Annajirao. It shows opposite party No.3 and 4 got knowledge about in the sale of flats by opposite party No.2. In para 5 of the Ex.B14 it is mentioned that the sale of flats 201, 302 and 401 were already finalized in favour of prospective buyers by both the partners and advance cheques given by the purchasers were deposited in the joint account of the firm bearing No.62125500251 with SBH, Dilsuknagar branch. Even though the amount was not deposited joint account of the firm, one can safely impute knowledge to the Op3 regarding the sale of flats to the complainants(3). Even if opposite party No.2 not prosecuted the AOP 1826/12, the opposite party No.3 should have taken immediate steps available under law to contradict the version putforth by opposite party No.2.
26. For reasons better known to opposite party No.3 she had not made any efforts to get the disputes solved under arbitration act or filed any suit for rendition of accounts. Ex.B6 goes to show that on 31.01.2012 at the instance of opposite party No.3 gave a criminal complaint before 7th ACMM at Nampally Hyderabad, against opposite party No.2 and his son which was registered has crime No. 39/12 of Malakpet Police Stations U/s 420,464,477A,406,506,120B and 34 IPC and U/s 156(3) Cr.PC. What happened to this criminal case is not known and no piece of paper is filed before this commission about fate of the said criminal complaint. One Smt. A. Sumitra Bharathi and another filed C.C No. 456/12 against the Ops1 to 3 before District Consumer Forum III, at Hyderabad, for the refund of amount in connection with purchase of a flat, and it was ordered in favour of complainant Smt Bharathi. opposite party No.3 filed an appeal against the said orders ultimately as per Ex.B8 to B10 order In E.A 40/2014 in C.C 17 456/2012, the amount was refunded to the complainant in view of understanding arrived at between Ops 2 and 3. What was the understanding arrived at in between them on paper need not be consider herein for the reason that neither opposite party No.2 not opposite party No.3 filed any suit for dissolution of the found and for accounts. One can even conclude that a mock filed is going on between the Ops 2 and 3. Ultimately the flat purchased by Smt.Bharathi under the agreement was sold in favour of opposite party No.3. We are reiterating at the cost of repetition that the actions, inactions, commissions and omissions on the part of Ops2 and 3 amounts to deficiency in service and unfair trade practice as against complainants(3) for the last 12 years under the guise of fight between Ops 2 and 3, the complainants(3) are made to suffer so, the points are answered, in favour of the complainants(3).
27. Point No.6: CC 128/2015:- As per Ex.A9, Smt. G.Vani Annapurna purchased flat No.201 to an extent of 1400 s.ft. with one car parking together with 49 S.yards of and divided share of land. The ops1 and 2 have agreed to hand over the possession within 12 months from the date of agreement with a grace period of three months and further agreed to handover the possession within 45 days after completion of the total payments and in the case of non-completion of the flat even after the grace period agreed to pay a penalty of 5 per sft,. In other words possession will be handed over on or before 18.06.2012. The purchaser shall bear the expenses of stamp duty, registration and other incidental expenses besides all taxes like service tax, VAT and any other taxes out of the total sale consideration of Rs.35 lakhs, a sum of Rs. 16,51,000/- is paid and the payable balance is at Rs. 18,49,000/-. So, PW1 is entitled for Rs.5/- per Sft., on 1400 sft per month. It comes to Rs.7000/- per month and Rs. 84,000/- p.a. However, another Rs.18,49,000/- is payable and it is not paid. So, we are of the view that it will be harsh to the Opposite parties in case of any order is made to pay penalty at Rs.5/- per sft., per month .
28. No evidence is adduced and no document is filed to show that how much amount is being paid by PW1 towards rentals to her present house in which she is alleged to have been residing as a tenant, in all CC 128 to 130 of 2015. Therefore, the rentals as 18 asked towards compensation cannot be awarded. A sum of Rs.2,00,000/- as compensation for mental agony in meet the ends of justice. It is mentioned in the complaint that major part of the construction was over even before presentation of the complainant in this commission that too after the order of return of the complaint made by the district forum.
29. CC. 129/2015:- As per Ex.A10, Smt. G.P Savitri purchased flat No.302 to an extent of 1025 s.ft. with together with 45 S.yards of and divided share of land. The ops1 and 2 have agreed to hand over the possession within 12 months from the date of agreement with a grace period of three months and further agreed to handover the possession within 45 days after completion of the total payments and in the case of non-completion of the flat even after the grace period agreed to pay a penalty of 5 per sft,. In other words possession will be handed over on or before 18.06.2012. The purchaser shall bear the expenses of stamp duty, registration and other incidental expenses besides all taxes like service tax, VAT and any other taxes out of the total sale consideration of Rs.26 lakhs, a sum of Rs. 16,50,000/- is paid and the payable balance is at Rs. 9,50,000/-. So, PW1 is entitled for Rs.5/- per Sft., on 1025 sft per month. It comes to Rs.5,125/- per month and Rs. 61,500/- p.a. However, another Rs.9,50,000/- is payable and it is not paid. So, we are of the view that it will be harsh to the Opposite parties in case of any order is made to pay penalty at Rs.5/- per sft., per month .
30. CC.130/2015:- As per Ex.A17, Smt. B. Narmada purchased flat No.401 to an extent of 1400 s.ft. with together with 60 S.yards of and divided share of land. The ops1 and 2 have agreed to hand over the possession within 12 months from the date of agreement with a grace period of three months and further agreed to handover the possession within 45 days after completion of the total payments and in the case of non-completion of the flat even after the grace period agreed to pay a penalty of 5 per sft,. In other words possession will be handed over on or before 24.09.2012. The purchaser shall bear the expenses of stamp duty, registration and other incidental expenses besides all taxes like service tax, VAT and any other taxes out of the total sale consideration of 19 Rs.35,20,000/-, a sum of Rs. 15,00,000/- is paid( under Ex. A17 to 19) and the payable balance is at Rs. 20,20,000/-. So, PW1 is entitled for Rs.5/- per Sft., on 1400 sft per month. It comes to Rs.7,000/- per month and Rs. 84,000/- p.a. However, another Rs.20,20,000/- is payable and it is not paid. So, we are of the view that it will be harsh to the Opposite parties in case of any order is made to pay penalty at Rs.5/- per sft., per month .
31. In the result CC 128/2015 is partly allowed and partly dismissed against opposite parties 1 to 3 with a joint and several liability and with cost of Rs.20,000/- with a direction viz:-
To complete the construction of the flat No.201 in all respects as per the specification attached to the agreement within a period of two months and to delivered possession of the same with occupancy certificate obtained from the concerned authorities.
To execute regular registered sale deed at the cost of complainant in her favour.
To pay compensation of Rs. 2 lakhs towards mental agony suffered by the complainant.
The complainant is here by directed to deposit the balance sale consideration of Rs.18,49,000/- within 15 days from the time the opposite parties filing a memo before the commission agreeing to complete the balance construction work.
Time for compliance is two months in case, the opposite parties willing to comply with the order, otherwise it shall be one month only to prefer the appeal.
In case of failure to comply with the orders within two months the amount of compensation and costs would carry interest at 12% p.a from the date of default till compliance.
32. In the result CC 129/2015 is partly allowed and partly dismissed against opposite parties 1 to 3 with a joint and several liability and with cost of Rs.20,000/- with a direction viz:-
To complete the construction of the flat No.302 in all respects as per the specification attached to the agreement 20 within a period of two months and to delivered possession of the same with occupancy certificate obtained from the concerned authorities.
To execute regular registered sale deed at the cost of complainant in her favour.
To pay compensation of Rs. 2 lakhs towards mental agony suffered by the complainant.
The complainant is here by directed to deposit the balance sale consideration of Rs.9,50,000/- within 15 days from the time the opposite parties filing a memo before the commission agreeing to complete the balance construction work.
Time for compliance is two months in case, the opposite parties willing to comply with the order, otherwise it shall be one month only to prefer the appeal.
In case of failure to comply with the orders within two months the amount of compensation and costs would carry interest at 12% p.a from the date of default till compliance.
33. In the result CC 130/2015 is partly allowed and partly dismissed against opposite parties 1 to 3 with a joint and several liability and with cost of Rs.20,000/- with a direction viz:-
To complete the construction of the flat No.401 in all respects as per the specification attached to the agreement within a period of two months and to delivered possession of the same with occupancy certificate obtained from the concerned authorities.
To execute regular registered sale deed at the cost of complainant in her favour.
To pay compensation of Rs. 2 lakhs towards mental agony suffered by the complainant.
The complainant is here by directed to deposit the balance sale consideration of Rs.20,20,000/- within 15 days from the time the opposite parties filing a memo before the commission agreeing to complete the balance construction work.21
Time for compliance is two months in case, the opposite parties willing to comply with the order, otherwise it shall be one month only to prefer the appeal.
In case of failure to comply with the orders within two months the amount of compensation and costs would carry interest at 12% p.a from the date of default till compliance. The complainant is entitled to claim set off of Rs.2,00,000/-
which is awarded as compensation.
Dictated to steno; transcribed and typed by him; corrected and pronounced by us in the open court on this 1st day of May 2023.
SD/- SD/-
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MEMBER(M-J) MEMBER (M-NJ)
Dt:01.05.2023.
PMK*
APPENDIX OF EVIDENCE
WITNESS EXAMINED
Evidence affidavit of Evidence affidavit of
The complainant Opposite party
Smt. Gotrala Vani Ch.Lingaiah(Ops1&2)
Annapurna(CC 128/2015) P.Sunitha-Op3(for three
Smt. G.P. Savitri(CC 129/2015) CC's)
Smt. B. Narmada(CC 130/2015)
EXHIBITS MARKED
For Complainant in CC 128/2015 to 130/2015:
Ex.A01: Is the Xerox copy of return list index of C.C No. 579/2013.
Dated 26.03.2015.
Ex.A02: Is the Xerox copy of amendede neat copy of C.C No. 579/2013. Dated 16.12.2013.
Ex.A03: Is the Xerox copy of complainant of C.C No. 579/2013.
Dated 30.07.2013.
Ex.A04: Is the Xerox copy of vakalath in C.C No. 579/2013. Dated 30.07.2013.
Ex.A05: Is the Xerox copy of counter filed by opposite party 1 & 2 in C.C No. 579/2013. Dated 12.11.2013 Ex.A06: Is the Xerox copy of written version filed by opposite party No.3 in C.C No. 579/2013. Dated 17.01.2014.
Ex.A07: Is the Xerox copy of evidence affidavit of complainants in C.C No. 579/2013. Dated 18.03.2014.
Ex.A08: Is the Xerox copy of documents development agreement cum GPA Ex. No.A1 in C.C No. 579/2013. Dated 22 24.07.2010.
Ex.A09: Is the Xerox copy of agreement of sale Ex.No.A2 in C.C No.579/2013. Dated 19.03.2014.
Ex.A10: Is the Xerox copy of agreement of sale Ex.No.A3 in C.C No. 579/2013. Dated 19.03.2014.
Ex.A11: Is the Xerox copy of receipt Ex.No.A4 in C.C No. 579/2013. Dated 28.10.2011.
Ex.A12: Is the Xerox copy of receipt Ex.No.A5 in C.C No. 579/2013. Dated 08.12.2011.
Ex.A13: Is the Xerox copy of receipt Ex.No.A6 in C.C No. 579/2013. Dated 01.10.2011.
Ex.A14: Is the Xerox copy of receipt Ex.No.A7 in C.C No. 579/2013. Dated 17.08.2011.
Ex.A15: Is the Xerox copy of receipt Ex.No.A8 in C.C No. 579/2013. Dated 27.05.2011.
Ex.A16: Is the Xerox copy of receipt Ex.No.A9 in C.C No. 579/2013. Dated 27.05.2011.
Ex.A17: Is the Xerox copy of agreement of sale Ex.No.A10 in C.C No. 579/2013. Dated 25.06.2011.
Ex.A18: Is the Xerox copy of receipt Ex.No.A11 in C.C No. 579/2013. Dated 27.07.2011.
Ex.A19: Is the Xerox copy of receipt Ex.No.A12 in C.C No. 579/2013. Dated 03.07.2015.
Ex.A20: Is the Xerox copy of letter from purchasers to the firm Ex.No.A13 in C.C No. 579/2013. Dated 22.03.2012. Ex.A21: Is the Xerox copy of land owner to the firm Ex.No.A14 in C.C No. 579/2013. Dated 22.03.2012.
Ex.A22: Is the order copy of district forum in IA.No.10/2013 in C.C No. 456/2012. Dated 15.02.2013.
Ex.A23: Is the letter from G.P Savitri to the firm Ex.No.A15 in C.C No. 579/2013. Dated 22.03.2012.
Ex.A24: Is the Xerox copy of evidence affidavit of Ops No. 1& 2 in C.C No. 579/2013. Dated 21.08.2013.
Ex.A25: Is the Xerox copy of documents partnership deed as Ex.No.B1 in C.C No. 579/2013. Dated 02.12.2009. Ex.A26: Is the Xerox copy of Account Statements as Ex.No.B2 in C.C No. 579/2013. Dated 26.12.2011.
Ex.A27: Is the Xerox copy of memo filed by Opposite Party No.3 in C.C No. 579/2013. Dated 01.09.2014.
Ex.A28: Is the Xerox copy of evidence affidavit of Opposite Party No.3 in C.C No. 579/2013. Dated 21.08.2014.
Ex.A29: Is the Xerox copy of letter from Vani Annapurna as Ex.No.B3 complainant in C.C No. 579/2013.
Dated 09.10.2012.
Ex.A30: Is the Xerox copy of letter from G.P Savitri as Ex.No.B4 complainant in C.C No. 579/2013. Dated 09.10.2012. Ex.A31: Is the Xerox copy of letter from B. Narmada as Ex.No.B5 complainant in C.C No. 579/2013. Dated 11.10.2012. Ex.A32: Is the Xerox copy of FIR As Ex.B complainant in C.C No. 579/2013. Dated 31.01.2012.
Ex.A33: Is the Xerox copy of news paper. Dated 13.07.2014. Ex.A34: Is the Xerox copy list of documents filed by Opposite Party No.3 in C.C No. 579/2013. Dated 15.11.2014.
Ex.A35: Is the Xerox copy of written arguments of complainants in C.C No. 579/2013. Dated 16.02.2014.
Ex.A36: Is the Xerox copy of petition I.A 394/2014 in 23 C.C No. 579/2013. Dated 22.12.2014.
Ex.A37: Is the Xerox copy of counter in I.A 394/2014 in C.C No. 579/2013. Dated 20.01.2015.
Ex.A38: Copy of Order I.A 394/2014 in CC 579/2013, dt.09.03.2015.
Ex.A39: Copy of CC of memo filed by complainant, dt.24.03.2015.
For Opposite Parties in CC 128/129/130 of 2015:
Ex.B1: Is the Xerox copy of Deed of partnership of M/s. Om Sai Vijetha Builders. Dated 02.12.2009.
Ex.B2: Is the Xerox Copy of Registered Development Agreement.
Dated 24.07.2010.
Ex.B3: Is the Xerox Copy of Caution Notice in News Paper. Dated 13.07.2011.
Ex.B4: Is the Xerox Copy of Legal Notice issued by Opposite Party No.3. Dated 03.01.2012 Ex.B5: Is the Xerox Copy of Reply to Legal Notice by Opposite Party No. 2. Dated 18.01.2012 Ex.B6: Is the Xerox Copy of FIR Vide No. 39/12 before Malakpet Police Station. Dated 31.01.2012.
Ex.B7: Is the Xerox Copy of Bank Statement of Account of the Firm. Dated 26.12.2011.
Ex.B8: Is the Xerox Copy of CC of Docket order in EA No. 40/2014 in CC 456/2012. On the file of District Forum III. Dated 26.08.2014.
Ex.B9: Is the Xerox Copy of Memo in EA No. 40/2014 in CC 456/2012. On the file of District Forum III. Dated 30.07.2015.
Ex.B10: Is the Xerox Copy of Docket order in EA No. 40/2014 in CC 456/2012. On the file of District Forum III. Dated 07.08.2015.
Ex.B11: Is the Xerox Copy of Deposion of Mr.P. Srinivas/Op3 in EA 40/2014 in CC 456/2012 between dates 26.11.2014 & 16.12.2014 Ex.B12: Is the Photo Copy of Deed of Partnership of Op1. Dated 02.12.2019 between Op2 and Op3.
Ex.B13: Is the Xerox Copy of Agreement of sale. Dated 16.12.2010.
Executed in favour of Smt. A.S.Bharathi & another. Ex.B14: Is the Xerox Copy of CC of Petition is U/s 9 of Abrivation Act in AOP 1826/2012 on the file of ACP in Hyderabad. Ex.B15: Is the Xerox Copy of Order dated 23.07.2012 in AOP 1826/2012 on the file of the Hon'ble 2nd Additional Chief Judge, City Civil Court, Hyderabad.
SD/- SD/-
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MEMBER(M-J) MEMBER (MN-J)
Dt:01.05.2023.
PMK*