A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
C.C. 39/2012
Between :
Dr. Jasveen Jairath,
W/o Dr. Vinod K. Jairath,
Aged about 62 years,
Occ : advocacy & Research,
R/o Flat No. F-1, Eden Banjara,
Arora Colony, Street No. 7,
Avenue 8, Banjara Hills,
Hyderabad .. Complainant
And
1) M/s. PL Realtors Private Ltd
A company incorporated under the provisions of Companies Act,
Having its Registered office at # 6-3-788/36 & 37/A, 2nd floor,
Ameerpet, Hyderabad.
Rep. by its Director Mr. B. R. Mahesh, S/o late B. S. Ratnam,
R/o Hyderabad.
2) M/s. Blue Chit Developers,
A partnership Firm constituted under the Indian Partnership Act,1837
Having its Registered office at M.G. Residency, Tehervilla, Yousufguda,
Hyderabad, rep. by its Partner Mr. K. Sarath Chandra,
s/o Mr. K. Nagabhushanam, R/o Hyderabad.
3) M/s. Kondapur Towers Private Ltd
A company incorporated under the provisions of Companies Act,
Having its Registered office at # 7-1-24, B-Block, 5th floor,
Roxana Towers, Greenlands, Begumpet, Hyderabad
Rep. by its Authorized Signatory, Mr. D. N. Reddy,
S/o Mr. D. Nagireddy, R/o Hyderabad
Counsel for the Complainant : M/s. Mahmood Ali
Counsel for the Opposite parties : Mr. K.V. Siva Prasad for Ops 1 o 3
Coram ;
Sri R. Lakshminarasimha Rao… Hon’ble Member
And
Sri T. Ashok Kumar .. Hon’ble Member
Friday, the Sixth Day of September
Two Thousand Thirteen
Oral Order : ( As per Sri T. Ashok Kumar , Hon’ble Member )
****
1. This is a complaint filed by the complainant against the opposite parties to direct them to refund an amount of Rs.71,77,968/- paid under two installments viz Rs.31,77,968/- vide receipt dated 04.08.2008 and Rs.40,00,000/- under receipt dated 30.05.2009 together with interest @ 12% PA from the respective dates of payment till realization, Rs.2,75,000/- towards penalty as per the Sale agreement dated 05.06.2009 from January, 2011 to December , 2011 and to grant other reliefs.
2. The brief facts of the complaint are that the complainant entered into an Agreement dated 5th June, 2009 with the opposite party to purchase Apartment bearing No. 1703 for Rs.90,00,000/- in Tower/Block “E” admeasuring 2925 sq. feet and 2 Car parking space on the 18th floor at “ ICONIA ”, along with the undivided share of land admeasuring 69 sq. yards together with all common rights and privileges to enjoy common facilities being developed in subsequent phases in AC.8.335 gts situated in Sy Nos. 114/1, 114/2, 115/1, 116/1, 113 and 119 from and out of the Survey Nos. 113, 114/1, 115/1, 116/1, 119, 114/2, 116/2, 117/1, 118, 115/2, 114/3, 115/3, 116/3, 117/2 and 126 admeasuring Acs. 21.207 gts of Kondapur village, Serilingampally Mandal, Ranga Reddy District vide Municipal Permission No. 904/CSC/TP11/2007/2022 dt.26.06.2008 from Municipal Corporation of Hyderabad for construction of 5 Residential Towers. The complainant paid Rs.71,77,968/- i.e., vide receipt dated 04.11.2008 Rs.31,77,968/- towards 1st installment by way of cheque no. 815430 dt.2.11.2008 and vide receipt dated 30.05.2009 Rs.40,00,000/- through RTGS towards 2nd installment with an agreement to complete the construction of the scheduled apartment by the end of December, 2010 with a grace period of 6 months, failing which, the opposite party will pay a penalty of Rs.25,000/- per month to the complainant. On 31.12.2009, when the complainant met the Ops she was informed that the project was not completed as promised. Thereafter ,she made number of visits but the OP did not complete the construction and used to give evasive replies that on account of recession and internal problems they are unable to start construction and assured to compensate the complainant for the delay and hence she did not pay the balance of sale consideration. The Director of the 1st opposite party sent sms stating that he would pay back the amount with interest by the end of March, 2011 and also sent another sms on 11.04.2011 assuring that the issue will be settled but failed to settle the issue and hence she got issued a legal notice dated 16.4.2011 and OP issued reply dated 21.5.201 with false and frivolous grounds. Though, meeting was held on 14th May 2011 except giving assurances OPs had not taken any concrete steps and that there is no chance of it construction. The said acts of Ops amount to negligence and deficiency in service and hence the complaint.
3. Ops 1 to 3 filed counter opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts of the counter are as under :
The opposite parties admitted that the complainant agreed to purchase of 4 BHK Apartment bearing No. 1703 in the proposed residential project consisting of 5 towers in a part of land of Ac. 8.335 guntas out of the total extent of Ac. 21.20 guntas in the survey numbers as mentioned by the complainant and also obtained Municipal permission for construction of the same. Though the project work was commenced in July, 2008, the real estate business drastically affected due to Global recession, Reduction in Software Engineers Employment, Reduction of salaries of other Employees, continuous and unabated agitation for the separate State of Telangana as a result of which the construction activity was slow down and in addition to that most of the third party purchasers did not pay beyond three instalments and non-funding of lending bankers further deteriorated to continue the construction activity. They had to pay Rs.75.00 crores plus interest to the lending Bankers in order to avoid the Project being declared Non-performing Asset (NPA) and hence they expected to complete the construction work of the complainant within a period of 12 to 15 months. As per clause 7.2 (b) of the Agreement of Sale, though the complainant is entitled to receive a compensation of Rs.25,000/- per month if the apartment is not delivered within stipulated time, but as per clause 10.1 (i), if the complainant wants to rescind the agreement, she can do so, provided, she agrees to forego on an amount equivalent to 10% of the Total Advances paid. All the customers/purchasers of the Apartments are meeting on second Saturday of every month and monitoring the construction activity and are being satisfied with the progress. The complainant got issued a legal notice in the month of April, 2011. She refused the invitation to join the Association of the purchasers to monitor construction activity. They undertake to compensate the complainant in terms of Clause 7.2 (b) of the Agreement of sale. There is no negligence or deficiency in service on the part of the opposite parties and thus prayed to dismiss the complaint.
4. Both sides filed evidence affidavit reiterating their respective pleadings and Ex. A-1 to A-8 were marked on behalf of the complainant and no documents were marked for the Opposite parties. Written arguments filed on behalf of the opposite parties and the complainant filed reply to the written submissions filed on behalf of the opposite parties.
5. Ex. A-1 is the Receipt dated 04.11.2008 for Rs.31,77,968/- vide Cheque No. 815430 dated 02.11.2008 of State Bank of India, PBB Branch, Masab Tank Hyderabad from Dr. (Mrs) Jasveen Jairath, i.e. the complainant towards 1st installment ie ( 25% down payment out of total sale of amount of Rs.1,27,11,875/- ) for the sale of Flat No. 1703 , 4 BHK, E Block at ICONIA, Kondapur issued by the 1st opposite party . Ex. A-2 is the letter dated 26.05.2009 from the 1st opposite party to the complainant stating that Flat No. 1703 4 BHK ˔Block was allotted to the complainant and the total cost of the said flat is Rs.90,00,000/-. Ex. A-3 is the Receipt dated 30.05.2009 for Rs.40,00,000/- issued by the first opposite party in favour of the complainant. Ex. A-4 is the agreement entered in the month of June, 2009 in between the opposite parties and the complainant. Ex. A5 is the legal notice dated 16.4.2011 got issued by the complainant to the opposite parties calling upon to refund Rs.71,77,968/- paid by her together with interest @ 18% PA, Ex. A6 is the postal receipts, Ex. A7 is the set of acknowledgements and Ex. A-8 dated 21.5.2011 is the reply notice received by the complainant from the opposite parties.
6. Heard the learned counsel for the complainant and Ops with reference to their respective contentions in detail.
7. Now the points for consideration are :
(i) Whether this Commission has jurisdiction to entertain the complaint ?
(ii) Whether the complaint is within limitation?
(iii) Whether the opposite parties rendered deficient service as pleaded by the complainant ?
(iv) Whether the complainant is entitled for refund money together with interest and compensation as prayed for
(v) To what relief ?
8. Irrespective of the pleadings it is the duty of this Commission to decide whether it is has jurisdiction to entertain the complaint filed under the provisions of Consumer Protection Act and also the limitation aspect ?
Point No (I) : Admittedly the subject matter is situated at Kondapur village, Serilingampally Mandal, Ranga Reddy District which is within the territorial jurisdiction of this Commission and value of the reliefs claimed by the complainant against the opposite parties is Rs.99,95,934.88 ps and thus satisfied to hold that this Commission has territorial and pecuniary jurisdiction to entertain the complaint. .As per the decision of the Hon’ble Supreme Court in Fakir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. reported in 2008 (4) CPR 449 (SC) and the decision reported in C.D.J 2012 S.C 370 between M/S Narne Construction (P) Ltd., Vs Union of India and others and so also, the decision between Lucknow Development Authority Vs M. K. Guptha reported in (1994) I SCC 243 the housing activity comes under the definition “service” and Consumer Fora can entertain the complaint and thus Jurisdiction point agitated by the opposite party is not helpful to him. , In several decisions of Hon’ble Supreme Court of India and National Commission it was held that the development of the flat for the purpose of selling it as flats and house sites and to construct the residential flats after duly adding the value by way of providing infrastructure obtaining lay outs and other permission from the local Government etc constitute by itself a kind of service and that in view of the matter, when the person purchases the plots or flats from the developer , he/she as the case may be is not only purchases the same, but also the services associated with it. In view of the said definition, the complainant undoubtedly is entitled to file the instant consumer complaint and therefore the Consumer Commission has inherent jurisdiction to entertain the complaint. Thus Point No. 1 is decided in favour of the complaint.
9. POINT NO. (II) :
The subject agreement was entered into on 5th June, 2009 the Ops agreed to complete the construction of the subject apartment by the end of December, 2010 with a grace period of six months. The Op sent sms on 11.4.2011 stating that they would settle the matter. The complainant gave notice Ex. Notice dst. 16.4.2011 demanding the Ops to refund the amount with interest and the Ops had sent their reply notice Ex. Dated 21.5.2011 pleading the defenses and thus satisfied to hold that the complaint dated 11.4.2012 is within the two years period of limitation U/s. 24-A of Consumer Protection Act.
10. POINT NO. (iii) & (iv) :
Since common discussion is needed for both the said points they are taken up to answer together.
There is no dispute that the complainant entered into Ex. A-4 agreement with the opposite parties to purchase an Apartment bearing No. 1703 , 4 BHK, E Block at ICONIA, in the survey numbers mentioned in the complaint situated at Kondapur village, Serilingampally Mandal, Ranga Reddy District with all amenities described in the complaint for Rs.90,00,000/ -. There is also no dispute that the complainant paid Rs.71,77,968/- under two installments vide Ex. A-1 receipt dated 04.11.2008 for an amount of Rs.31,77,968/- and another Ex. A3 receipt dated 30.05.2009 for an amount of Rs.40,00,000/- and that the balance to be paid by the complainant to the opposite parties was Rs.18,22,031/-. As per the recitals of the said Ex. A4 agreement the opposite parties agreed to complete the construction of the subject apartment and deliver possession thereof to for the complainant by the end of December, 2010 with a grace period of six months. It was also agreed in it that in the event of the Ops failed to deliver the flat within the said stipulated time , the Ops have to pay penalty of Rs.25,000/- per month to the complainant. admittedly, the opposite parties did not complete the construction of subject apartment and deliver possession thereof to the complainant within the stipulated time. Whereas, the contention of the opposite parties is that though the project work was commenced in July, 2008, the real estate business drastically affected due to Global recession, Reduction in Software Engineers Employment, Reduction of salaries of other Employees, continuous and unabated agitation for the separate State of Telangana as a result of which the construction activity was slow down and addition to that most of the third party purchasers did not pay beyond three installments and lending bankers did not pay the amounts and as such they could not take up and complete the work within the stipulated time. There is no dependable evidence from the side of the Ops in the said context on record and even otherwise the said aspects are hardly helpful for the opposite parties to say that they did not render deficient service to the complainant and it appears that to cover up their laches the Ops designed the said pleas. The Ops further contended that they had to pay Rs.750.00 crores plus interest to the lending bankers in order to avoid the project being declared. Non-performing Asset. But there is no believable evidence from their side in the said context also and thus no reliance could be placed on such a plea also. Major portion of the consideration ie. Rs. 71,77,968/- was already paid by the complainant from and out of her hard earned money and since the Ops did not commence the construction work the complainant was justified in not paying the remaining amount and undisputedly as per sms OPs agreed to refund the amount with interest. The Ops did not place any material on record to prove that they are making sincere efforts in completing the construction of the venture. Non-completion of construction and non-delivery of possession of the apartment certainly amounts to deficiency in service on the part of the opposite parties.
11. The Ops also put forth an argument that all other customers/purchasers of the apartments are meeting on every second Saturday and monitoring the construction activity fo the work and are being satisfied work. But did not place a scrap of paper in support of their contention and therefore it is difficult to believe the said version also. In such circumstances, their allegation that the complainant did not cooperate with the Ops could not be appreciated in their favour. It is true as per clause 7.2(b) of Ex. A4 agreement of sale Ops agreed to pay Rs.25,000/- per month till date of delivery of apartment but the above clause can be invoked by the Ops provided the complainant agrees for receiving the apartment even if delivered with delay. But in this case, the complainant is not ready to have the apartment and is not sure whether the Ops complete the construction or not. However, whether she is entitled for compensation as prayed for or any amount in the circumstances of the case will be decided later on. All the documents in Exhibit A series described supra support the case of the complainant for refund of the amount. There is no dependable evidence from the Ops that they fulfilled all the conditions of the agreement and in such circumstances it is not fair on their part in asking the complainant to forego 10% advance paid by her or any other amount to rescind the agreement. There are no clinching circumstances on record to come to a conclusion that the Ops also made huge profits out of the venture floated by them. Even though the grounds urged by the opposite parties are not sufficient to hold that they did not render deficient service still they are mitigating circumstances to some extent and in such circumstances we are satisfied to hold that the complainant is entitled for refund of Rs.31,77,968/- vide receipt dated 04.08.2008 and Rs.40,00,000/- under receipt dated 30.05.2009 totaling to Rs. Rs.71,77,968/- together with interest @ 9% pa from the respective dates of payment till realization and when the amount so ordered to be refunded with such rate of interest from the dates of respective payments we are not inclined to grant any compensation. However, Rs.15,000/- towards costs of litigation is also justified to be awarded to the complainant. Remaining claim of the complainant stands dismissed.
POINT (V) :
12. In the result, the complaint is allowed in part and the opposite parties are hereby directed to refund Rs.71,77,968/- ( i.e .Rs. 31,77,968 on 04.08.2008 + Rs.40,00,000/- on 30.05.2009 ) together with interest @ 9% PA from the dates of respective payments till the date of realization and Rs.15,000/- towards costs of litigation to the complainant within 30 days from the date of receipt of this order.
MEMBER MEMBER
06.09.2013.
APPENDIX OF EVIDENCE
Witnesses examined
For complainant : None
For Opposite parties : None
DOCUMENTS MARKED
For complainant :
1. Ex. A-1 is the Receipt dated 04.11.2008 for Rs.31,77,968/- vide Cheque No. 815430 dated 02.11.2008 of State Bank of India, PBB Branch, Masab Tank Hyderabad
2. Ex. A-2 is the letter dated 26.05.2009 from the 1st opposite party to the complainant stating that Flat No. 1703 4 BHK ˔Block was allotted to the complainant and the total cost of the said flat is Rs.90,00,000/-.
3. Ex. A-3 is the Receipt dated 30.05.2009 for Rs.40,00,000/- issued by the first opposite party in favour of the complainant.
4. Ex. A-4 is the agreement entered in the month of June, 2009 in between the opposite parties and the complainant.
5. Ex. A5 is the legal notice dated 16.4.2011 got issued by the complainant to the opposite parties calling upon to refund Rs.71,77,968/- paid by her together with interest @ 18% PA,
6. Ex. A6 is the postal receipts,
7. Ex. A7 is the set of acknowledgements and
8. Ex. A-8 dated 21.5.2011 is the reply notice received by the complainant from the opposite parties.
For Opposite parties : nil
MEMBER MEMBER
06.09.2013.
