BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.

CC 44 of  2012

Between:

Alok Chordia, S/o. M.S. Chordia

Age: 44 years, Pvt. Employee

Flat No. 306, Santosh Plaza

Nagarjunasagar Road

IS Sadan, Saidabad

Hyderabad-500 059.                                   ***               Complainant

And

1)  M/s. Aditya Construction Company 

India Pvt. Ltd.  A/12,

Chandralok Complex

Road No. 2, Film Nagar, Jubilee Hills

Hyderabad-500 033.

2)  M/s. Aditya Construction Company 

India Pvt. Ltd. Aditya Mansion

Plot No. 29/A, Road No. 5

Jubilee Hills,

Hyderabad-500 033.

Rep. by its Managing Director

T. Satyanarayana

3)  M/s. Aditya Construction Company 

India Pvt. Ltd. Aditya Mansion

Plot No. 29/A, Road No. 5

Jubilee Hills,

Hyderabad-500 033.

Rep. by its  Asst. Manager-CRM

Subraymanyam.

4)  The Branch Manager

The ICICI Bank

Jubilee Hills Branch

Hyderabad.                                                           ***               Opposite Parties

Counsel for the complainant:                      M/s. CH. Anjaneyulu

Counsel for the Ops:                                   M/s.  Legal Matrix Solicitors &

Advocates (Ops 1 & 2)

                                                                   M/s. S. Nagesh Reddy (Op4)

CORAM:

                              SMT. M. SHREESHA, PRESIDING MEMBER

&

                             SRI  S. BHUJANGA RAO, MEMBER

FRIDAY, THE TWENTIETH DAY OF SEPTEMBER TWO THOUSAND THIRTEEN

ORAL ORDER:  (Per Smt. M. Shreesha, Member)

***

1)                 This is a complaint filed u/s 17(a)(i) of the Consumer Protection Act.

2)                 The brief facts as stated in the complaint are that the complainant booked a flat in  Richmand D Block  Flat No. 1206 of 1800 sft for Rs. 52,70,000/- out of which he paid  Rs. 5,27,000/- on 8.12.2010.  He got the  bank loan approved for 85% of the amount.   In response to booking of said flat No. 1206 the opposite parties  sent a letter dt. 23.12.2010 to the complainant for processing of the complainant’s home loan.  The complainant agreed to the terms and conditions mentioned in the letter and got  eligibility for  loan  and requested  the Ops to furnish allotment letter, flat buyer agreement,  payment receipts, permission to mortgage/NOC etc. to be submitted to the bank but there was no response.   Thereafter the Ops changed the scheme from pre-EMI to construction link payment without any consent from the complainant.    The Ops got  the building permission on 7.7.2011 for construction of  multi-storied residential apartments with 14 floors consisting of 9 blocks including sub-cellar, cellar and stilt for parking.   The complainant submits that the Ops got the construction permission very late and therefore  they did not enter into the  Tripartite Agreement with  the bank and the customers.  Because  the Ops failed to submit the documents on time the eligible bank loan sanctioned was lapsed.   In spite of several representations made by the complainant even e-mail on 19.12.2011 for which Op3 sent a reply on 9.1.2012  stating that the Ops cancelled the booking of flat  and forfeited the amount paid without any reasons.  The complainant got issued a legal notice on 25.1.2012 for which Ops did not respond.  Hence this complaint seeking directions to Ops to:

                     i.        Direct the Ops to complete the construction of the flat NO. 1206, Richmond Block-D  in Imperial Heights by declaring that the cancellation of flat as well as forfeit of paid amount of Rs. 5,27,000/-  dt. 19.1.2011 is  illegal and against law. 

                   ii.        Also direct the Ops not to alienate  the flat bearing No. 1206 Richmond Block-D  in Imperial Heights to any third party till disposal of the complaint.

                  iii.        To direct the Ops to pay the compensation in delay of construction, cheating, mental agony etc. for an amount of Rs. 2 lakhs

                  iv.        To award costs of the complaint.

3)                Ops 1 & 2 filed written version stating that  they never advertised that they are holding approvals from GHMC for high rise buildings  and admit that they have received an advance of Rs. 5,27,000/- from the complainant out of sale consideration of Rs. 52,70,000/- but deny that  they never informed  the complainant  that  the complainant needs to pay 85% of sale consideration at the time of delivery of possession of flat.  They admit that they have sent a letter dt. 23.10.2010 requesting the complainant to send the documents for processing the home loan.    If the  purchaser wants to  opt for housing  loan he should  be eligible to an extent of  85% of the flat cost and the same shall be disbursed to the Ops as per the progress of the construction.  The remaining  5%    has to be paid  after completion of total construction and the same was intimated by letter dt. 10.10.2011 demanding the complainant to pay due amount of Rs. 18,44,500/-  as the second slab was completed.  They admit that the complainant got the home loan approved  from Op4 bank but due to change in the financial status of the complaint the bank did not sanction the loan.   They deny that the complainant intimated to the Ops about sanction of loan and sought for relevant documents for disbursal of amount. 

4)                The Ops contend that  prior to high rise permission they were having sanction plans for construction up to 5th floor and they started construction in  the year 2010 itself.  As they were having sanctions for construction up to 5th floor they   deny that they violated any terms and conditions of the agreement dt. 27.10.2011.  Op4 only approved the project with their bank which means any customer  who  avails loan from the bank for purchase of flat in the said project,  it does not require any further documents for sanction of loan except for personal documents of the customer.    The allegations made in the legal notice are denied by the Ops and they  are ready to give the said flat to the complainant as it is still not yet allotted to any party

subject to condition that  if he makes  the balance payments as per the schedule given in the letter dt. 10.10.2011.  The Ops finally submitted that they are ready to register the flat if  the  complainant makes payments as per the schedule.   Hence there is no deficiency of service on their  behalf and seeks dismissal of the complaint with costs.

5)                OP4 filed counter  stating that the complaint is devoid of merits and that this Op is not related to the construction of the flat and that this Op has given  in  principle sanction of home loan asking the company to comply with terms and conditions of the sanction letter and hence there is no deficiency of service on their behalf.

6)                The complainant filed his affidavit by way of evidence and  Exs. A1 to Exs. A19 are marked on  his behalf.  The Ops also filed their affidavits by way of  evidence and  did not  choose to file any documents.

7)       The complainant filed his  written arguments and Op4  bank also filed its written arguments. 

8)                The brief point that falls for our consideration is whether there is any deficiency of service on  behalf of Ops and whether the complainant is entitled to the reliefs sought for in the complaint? 

9)       The facts not in dispute are that the complainant  booked a flat No. 1206 in Richmand D-block  with Ops 1to 3  who are the builders herein for  total sale consideration of Rs. 52,70,000/- and paid an advance of Rs. 5,27,000/-.   There after the  it is the complainant’s case  that  he got the housing loan approved by Op4 on 27.11.2010  but because Ops 1 to 3 did not furnish the required documents viz., allotment letter, payment receipts, permission to mortgage/NOC  for the disbursement of bank loan,  his loan sanction has lapsed.   He relies on Exs. A12 & A13 dt. 25.11.2010 and 23.1.2011 which are the letters written by Op4  to  the builder with respect to sanctioning of the loan.    It is the complainant’s case that the Ops 1 to 3 got the sanction  for the

high rise apartments only on 7.7.2011 as evidenced under Ex. A14 and submits that because of their delay in getting the sanction plan they did not enter into  Tripartite Agreement  with Op4  bank and therefore his loan  was lapsed.  A15 is the  e-mail dt. 30.6.2011 addressed by the complainant to Ops 1 to 3 seeking for all the formalities to be completed with respect to loan disbursement.  A16 is the letter dt. 24.11.2011 addressed by the complainant to OPs with respect to his loan disbursement.   Ex. A17  is the Memorandum of Association of  the builder company, A18  is the  Articles of Association of the  builder company  and  Ex. A19 is the location plan. 

10)              Ex. A1 is the cancellation letter  dt. 19.1.2012  in which the  complainant’s flat allotment was cancelled  referring to the earlier letter dt. 15.11.2011 in which Ops have requested the complainant to pay Rs. 18,44,500/- which is still overdue.    We observe from the record that there is no clause, terms,  conditions filed by the Ops that they are entitled to this forfeiture of the entire  advance amount paid by the complainant.  Such a forfeiture amounts to unfair trade practise specially keeping in view that the building permission for high rise apartments was obtained only on 7.7.2011 vide Ex. A14.

11)              Taking into consideration the submissions of the Ops 1 to 3 in their written version that they are ready and willing to register the flat provided the complainant makes  balance payments as per  the schedule plan and also the fact that  the said flat is not alienated to any third party and also taking into consideration the prayer of the complainant with respect to  a direction to Ops to complete the construction of the flat, we are of the considered view that the complainant can approach the Ops 1 to 3  and make the balance payments as per the schedule.  Ex. A4 legal notice dt. 25.1.2012 got issued by the complainant to Ops 1 to 3 evidences that the  complainant is ready to pay the

remaining flat cost mentioned in the payment schedule  and the Ops shall hand over the completed flat  to the complainant  and if the complainant does not choose to make the balance payments and take possession of the flat the Ops shall refund the amount of Rs. 5,27,000/-   which the complainant had paid as an advance with interest @ 9% p.a., from the date of complaint till the date of payment together with costs of Rs. 10,000/-.   We do not see  that it is a fit case to award compensation  keeping in view the facts and circumstances of the case.   The complaint against Op4 is dismissed but without costs. 

12)              In the result this complaint is allowed in part directing Ops 1 to 3 to complete the construction of the flat and hand over the  flat provided the complainant makes balance payment as per the schedule and if the complainant does not choose to take possession of the flat,  the Ops 1 to 3 shall refund advance amount of Rs. 5,27,000/- paid by the complainant with interest @ 9% p,a., from the date of complaint till the date of payment together with costs of Rs. 10,000/-.  Time for compliance three months.  The complaint against Op4 is dismissed but without costs. 

1)       _______________________________

PRESIDING MEMBER    

2)           ________________________________

MEMBER    

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

COMPLAINANT                                                                              OPPOSITE PARTIES

None                                                                                      None

DOCUMENTS MARKED FOR  COMPLAINANT:

Ex. A1             19.01.2012      e-mail sent by Op to complainant cancelling  his flat along with

                                                letter

Ex. A2             19.12.2011      Letter of complainant to Ops.

Ex. A3             22.01.2012      India Post Office  tracking data.

Ex. A4             25.01.2012      Legal notice got issued by the complainant to Ops.

Ex. A5                 ---                Postal receipts

Ex. A6                 ---                Postal acknowledgements.

Ex. A7             27.11.2010     Letter of Ops to complainant

Ex. A8              08.12.2010     Receipt issued by Ops to complainant for Rs. 5,27,000/-  towards

                                                the Flat No. 1206-D

Ex. A9              23.12.2010     Letter of Ops to complainant.

Ex. A10            10.10.2011     Project  Progress & Payment  Status Report

Ex. A11            09.07.2011     Letter of   complainant to Ops.

Ex. A12            25.11.2010     Letter of  bank to Op company

Ex. A13            25.06.2011     Letter of bank to complainant

Ex. A14            07.07.2011     Building permit order issued by GHMC to the developer

Ex. A15            30.06.2011     e-mail of complainant to Ops regarding property papers for

                                                disbursement.

Ex. A16            24.11.2011     Letter of complainant to Op company

Ex. A17            09.02.2012     Form-23 relating to Op company and Memorandum of Association

                                                of Op company dt. 22.2.2006.

Ex. A18            22.02.2006     Articles of Association of Op company

Ex. A19                   --              Location Plan issued by Op company

DOCUMENTS MARKED FOR  O.Ps:                     Nil

1)      _______________________________

PRESIDING MEMBER 

2)      ________________________________

MEMBER  

*pnr                                                                              

UP LOAD – O.K.