State Consumer Disputes Redressal Commission
Ms. Goldn Palms Constructions, Reg. ... vs Mr. Seva Ramavathu, Son Of Late Sri ... on 19 February, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. A/290/2014 (Arisen out of Order Dated 22/04/2014 in Case No. Complaint Case No. CC/31/2012 of District Medak) 1. Ms. Goldn Palms Constructions, Reg. Partnership Firm Rep. by its Managing Partner Shri Sourabh Modi, Son of Sri Satish Modi R.o. 5.4.187 by 374, Soham Mansion, IIIrd Floor, M.G. Road, Secunderabad Presently office at 4th Floor, Ashoka Hi tech Chambers, Road No.2, Banjara Hills, Hyd 34 ...........Appellant(s) Versus 1. Mr. Seva Ramavathu, Son of Late Sri Mangaiah, R.o. H.No. 72, Golden Palms, Ameenpur Village, Patancheru Mandal, Medak District, A.P. State ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Appellant: For the Respondent: Dated : 19 Feb 2018 Final Order / Judgement
STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA :
At HYDERABAD FA 290 of 2014 AGAINST CC No. 31 of 2012, DISTRICT FORUM, MEDAK AT SANGA REDDY Between :
M/s. Golden Palms Constructions, Reg. Partnership Firm, rep. by its Managing Partner, Shri Sourabh Modi, S/o Sri Satish Modi, R/o 5-4-187/374, Soham Mansion, IIIrd floor, M.G. road, Secunderabad Presently office at 4th floor, Ashoka Hi-tech Chambers, Road No.2, Banjara Hills, Hyderabad - 34 .. .. Appellant/opposite party And Mr. Seva Ramavathu, S/o late SRi Mangaiah, R/o H.No.72, Golden Palms, Ameenpur village, Patancheru Mandal, Medak District, Telangana State .. Respondent/complainant Counsel for the Appellant : M/s. M. Haribabu Counsel for the Respondent : Sri K. Paramdhamachari Coram :
Honble Sri Justice B. N. Rao Nalla ... President Monday, the Nineteenth Day of February Two Thousand Eighteen Oral order : ( per Hon' ble Sri Justice B.N.Rao Nalla, Hon'ble President ) *** 1) This is an appeal filed under Section 15 of the Consumer Protection Act by the opposite party to set aside the impugned order dated 22.04.2014 made in CC 31 of 2012 on the file of the DISTRICT FORUM, Medak at Sanga Reddy. 2) For the sake of convenience, the parties are described as arrayed in the complaint before the District Forum. 3). The case of the complainant, in brief, is that he purchased a plot bearing no. 72 admeasuring 180 Sq.Yards from the opposite party on 03.02.2006 through registered sale deed for a total consideration of Rs. 5,00,000/ in survey no. 993/47 admeasuring AC.4. 20 guntas situated at Ameenpur village, Patancheru Mandal, Medak District and on the same day he entered into an agreement for construction of a Deluxe Bungalow with the opposite party firm for a sum of Rs. 22,56,572/ to complete the construction of the bungalow and deliver possession thereof by 02.02.2008 and paid a sum of Rs. 18,25,000/ by obtaining loan from the State Bank of Patiala, Abids Branch, Hyderabad. Despite several oral representations and also addressing of two letters dated.10.09.2011 and 19.09.2011 did not comply with the same. When the construction of the bungalow was completed hardly to an extent of 60%, he took permission of the opposite party firm and occupied the bungalow in the month of September, 2011 and completed most of the remaining major works through one M.S. Constructions and Developers at a sum of Rs. 56,525/ with mutual understanding of adjusting the cost of the said work in the remaining balance amount of construction agreement. The opposite party firm instead of issuing letter of delivery of possession to the complainant, filed a criminal case before the Additional JFCM Court, Sangareddy, which is subject matter of crime no. 302/2011 of PS, Ramachandrapuram, alleging criminal trespass, cheating etc., against the complainant and his wife on which they filed criminal W.P. 12798/2011 on 12.12.2011 before the Hon'ble High Court to quash the said criminal Proceedings and also filed a civil suit in O.S. 311/2011 before the Junior Civil Judge, Sangareddy on 23.01.2012 to protect complainant's possession against the opposite party herein and obtained temporary injunction order. Hence the complaint to direct the opposite party to issue letter of delivery of possession to him along with cost of left over work so also a sum of Rs. 56,525/ towards construction charges, Rs. 4,30,000/ towards rental charges, Rs. 6,00,000/ towards compensation, Rs. 11,36,525/- towards interest @ 9% p.a. and Rs. 50,000/ towards costs. 4). The opposite party opposed the above complaint by way of written version, while admitting statement with regard to payment made by the complainant is correct. As per clause no., 8 of the agreement the complainant have to pay the amounts as per the schedule and he has not fulfilled the same and explained in the complaint. When he made requests for completion of works and delivery of the property the opposite party requested to settle the issues by paying the balance amounts as per the schedule to enable them to complete the balance works and deliver the possession of the building, which not adhered by him. The complainant has occupied the bungalow without permission or intimation he has broken open the locks as thief and entered into house unlawfully and hence they were compelled to file Crime No. 302 of 2011 and also filed case under Section 138 of NI Act when the cheque was dishonoured by the complainant. The complainant has not paid the due amounts as per the schedule though the works were completed. The complainant made construction in the bungalow at his own risk, without their permission. There is no deficiency in service on their part and hence prayed to dismiss the complaint.
5) During the course of enquiry before the District Forum, in order to prove his case, the complainants filed their evidence affidavit and got marked Ex.A1 and A-12 and the opposite parties filed evidence affidavit and got marked Ex. B-1 to B-12.. The reports of the surveyor were marked as Ex.C1and C2. Both sides filed their respective written arguments. Heard both sides.
6) The District Forum, after considering the material available on record, held and directed the opposite Party to pay a total sum of Rs.16,46,525/- with interest @ 9% pa from the date of the construction agreement, i.e., 03.02.2006 till the date of realization with costs of Rs.25,000/- within one month.
7) Aggrieved by the said order, the opposite party preferred this appeal before this Commission.
8). Both sides have advanced their arguments reiterating the contents in the appeal grounds, rebuttal thereof along with written arguments. Heard both sides.
9) The points that arise for consideration are, (i) Whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? (ii) To what relief ? 10). Point No. 1 :
There is no dispute that the respondent/complainant purchased a plot bearing no. 72 admeasuring 180 Sq.Yards from the opposite party on 03.02.2006 through registered sale deed vide Ex.A2 for a total consideration of Rs. 5,00,000/ in survey no. 993/47 admeasuring AC.4. 20 guntas situated at Ameenpur village, Patancheru Mandal, Medak District and on the same day he entered into an agreement for construction of a Deluxe Bungalow with the opposite party firm for a sum of Rs. 22,56,572/- vide Ex.A-3 = B-4 to complete the construction of the bungalow and deliver possession thereof by 03.02.2008 and paid a sum of Rs. 18,25,000/ .
11) The contention of the respondent/complainant is that des pite payment of Rs.18,25,000/- out of the agreed total sale consideration of Rs.22,56,572/-, the appellant/opposite party firm did not hand over possession of the completely constructed bungalow even after 18 months with a grace period of six months and failed to complete construction work even by the date of inspection of the bungalow by the surveyor on 14.12.2013 which were corroborated by Ex.C1 and C2 surveyor's report and Ex.A11 photographs.
12). The further contention of the respondent/complainant is that on repeated persuasion and through letters dated 10.09.2011 and 19.09.2011, the appellant firm permitted him to occupy the semi-finished structure in the month of September, 2011 and to get completed the remaining works including basic amenities and to adjust the same in the balance consideration and that he occupied the same and he got completed the said works with the help of M.S. Constructions and Developers and he incurred an amount of Rs.56,525/- which was corroborated vide letters 06.09.2011 and 09,.11.2011 vide Ex.A4.
13). On the other hand, the appellant firm rebutted the same contending that As per clause no., 8 of the agreement the respondent/complainant failed to pay the balance amount as per the schedule to enable them to complete the balance works and deliver possession of the bungalow and the respondent/complainant occupied the bungalow without permission or intimation entered into house unlawfully and he lodged complaint in Crime No. 302 of 2011 and also U/s. 138 of NI Act for dis-honoure of the cheque and as against the same the respondent/complainant approached Hon'ble High Court
14) The District Forum opined that the appellant firm delayed in handing over possession of the building to the respondent/complainant and that the respondent/complainant having entered into permissive possession of the same, attended to the remaining works at his own cost and that as per the photographs and civil engineer reports vide C1 an C2, there are several defects in the construction and awarded compensation of Rs.3,00,000/- towards deficiency in service relying on the decision reported in , " Shiksha Vihar Sekhari Avvas Samiti Ltd and Anr Vs. Ghaziabad Development Authority and Anr, IV (2007) CPJ 20 (NC). The District Forum also awarded an amount of Rs.4,30,000/- towards rental charges and the construction charges borne by him of Rs.56,525/- and the cost of pending works amounting to Rs.8,60,000/-along with letter of delivery of possession of the premises to the complainant.
15). Counsel for the appellant argued that the District Forum failed to consider that the entire cost of construction of the house, as evidenced by the agreement of construction, is Rs.9,75,000/- and later the respondent/complainant upgraded the same from Deluxe to Luxury for an additional amount of Rs.2,81,000/- under Ex. B-11 and thus, the total cost of construction is Rs.12,56,000/-and out of that amount, only an amount of Rs.8,24,428/- was paid and a sum of Rs.4,31,572/- was pending and the cheque for the same was dishonoured and the amount is still payable by the respondent/complainant.
16) On the other hand, Counsel for the respondent/complainant argued that Ex.B-11 Upgradation Forum was invented to add further more Rs.2,81,000/- to his treasury box and he paid an amount of Rs.18,25,000/- out of the total cost of the Bungalow of Rs.22,56,572/-and it have to be delivered by 02.02.2008 with a grace period of six months and that after three years passed by during the year 2011, the appellant gave oral permission without any letter of delivery to occupy the bungalow and when he stepped into it, the appellant filed criminal case.
17). We have perused the material available on record. Ex.A-2 dated 03.2.2006 is the sale deed pertaining to the plot No.72 admeasuring 180 sq.yards for an amount of Rs.,5,00,000/- executed in favour of the respondent/complainant. Ex.A-3 dated 03.02.2006, agreement of construction, wherein, it is stated that the builder shall construct for the Buyer a Deluxe Bungalow admeasuring 1405 sq. ft of built up area on plot of land bearing plot No. 72 for a consideration of Rs.9,75,000/- and it should be paid in four quarterly installments. It is also mentioned therein that the buyer shall be liable to pay simple interest calculated @ 1.5% per month on all delayed payments of installments and under no circumstances shall the buyer delay the payment of installments for more than 3 months from the due date. The Builder shall complete the construction of the Bungalow and hand over possession of the same within 18 months from the date of the agreement with a grace period of six months except the reasons beyond te control. Further, the Buyer shall not be entitled to take possession if he/she has not fulfilled the obligations under this agreement. It is further clearly mentioned therein that " any delay in occupation of the bungalow shall result in and interest penalty of 2% per month on the dues outstanding to be computed from the date of intimation of completion by the builder. A further penalty of Rs.10,000/- per month will be charged as holding charges for any delay in taking possession after intimation of completion by the builder ".
18) We have observed disputed facts with regard to total consideration of the house, payments made by the respondent/complainant, due amounts to be paid, inspection reports by surveyor and the amounts mentioned therein and the dispute with regard to occupation of the house by the respondent/complainant and one sided terms and conditions on behalf of the builder in the Ex.A2 sale deed and all these aspects would be decided on the basis of the elaborate enquiry and detailed discussion and in those circumstances since complicated questions of fact and law are involved, we are of the opinion that the Civil Court is the appropriate Court to decide the matter.
19). After considering the foregoing facts and circumstances and also having regard to the contentions raised on both sides, this Commission is of the view that the Civil Court is the appropriate Forum to decide the matter and the parties are at liberty to approach Civil Court, if they are so advised.
20). Point No. 2 :
In the result, the appeal is disposed of setting aside the impugned order dated 22.04.2014 in CC No. 31 of 2012 on the file of the District Forum, Medak at Sanga Reddy with a direction to approach appropriate Civil Court, if they are so advised. There shall be no order as to costs.
PRESIDENT Dated : 19.02.2018. [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER