BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
C.C.NO.86 OF 2012
Between
Alok Chordia S/o M.S.Chordia
Aged 44 years, Occ: Pvt. Employee
Flat No.306, Santosh Plaza, Nagarjuna
Sagar Road, IS Sadan, Saidabad,
Hyderabad-059
Complainant
A N D
1. M/s Aditya Construction Co. India Pvt Ltd.,
A/12, Chandralok Complex, Road No.2, Film Nagar
Jubilee Hills Hyderabad, AP-033
2. The Managing Director, T.Satyanarayana
Aditya Construction Co.India Pvt Ltd.,
Aditya Mansion, Plot No.29/A, Road No.5
Jubilee Hills, Hyderabad-033
3. The Assistant Manager-CRM
Mr.Subramanyam, Aditya Construction
Company India Pvt., Ltd., Aditya Mansion,
Plot No.29/A, Road No.5, Jubilee Hills
Hyderabad-033
4. The Branch Manager,
ICICI Bank, Jubilee Hills,
Hyderabad
Opposite parties
Counsel for the Complainant M/s Ch.Anjaneyulu
Counsel for the Opposite party M/s Legal Matrix (OP No.1 & 2)
Exparte (OP3&4)
QUORUM: SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
&
SRI S.BHUJANGA RAO , HON’BLE MEMBER
MONDAY THE SEVENTH DAY OF OCTOBER
TWO THOUSAND THIRTEEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. The complaint is filed claiming for completion of construction of Flat bearing number 1205 in A block of Celestia and for compensation of `2,00,000/- and costs.
2. The averments of the complaint are that the complainant booked Flat bearing number 1205 in A block in Celestia at Hafeezpet, Hyderabad for consideration of `52,70,200/- and paid a sum of Rs.25,000/- on 11.03.2011. The complainant booked another Flat bearing number 1206 in D block, Richmand , Imperial Heights for consideration of `52,70,200/- which was reduced to `52,60,000/- and adjusted to the consideration of Apartment in A Block without issuing notice to the complainant. The complainant requested the opposite parties to issue break up figures of the consideration of the Flat and the details of the floor area of the Flat as also the copy of project approval from the Muncipal authorities which the opposite parties have not furnished to the complainant.
3. The complainant submitted that he got approved loan eligibility of `1,75,00,000/- from ICICI Bank for payment of consideration of the two Flats and the complainant informed the opposite parties about the loan approval and requested it on 21.03.2011,07.07.2011, 09.07.2011 to furnish allotment letter, flat buyer agreement, payment receipt, permission to mortgage, GHMC approval etc which have to be submitted to the ICICI bank. The opposite parties have not furnished the documents to the complainant. The opposite parties obtained building permission on 07.07.2011 for construction of 14 storied building and it had violated the terms and conditions of the letter dated 27.11.2010.
4. The complainant submitted that the opposite parties failed to construct the building as per the schedule and the delay caused in completing the construction of the building caused delay in loan disbursement. The complainant had sent email on 19.12.2011 and the opposite parties replied on 19.01.2012 that the allotment of the flat was cancelled forfeiting the amount paid by the complainant and the complainant could see the reply on 22.01.1012.
5. The opposite parties have resisted the claim on the premise that the opposite party no.1 launched construction of High Rise building at Hafeezpet, Hyderabad and issued advertisement in the newspapers stating that they were going to propose construction of residential complex at Hafeezpet, Hyderabad. The complainant booked Flat bearing number 1205 A Block, Celestia Block for sale consideration of `53,60,000/- and the booking confirmation letter was signed by the complainant’s father on his behalf on 12.03.2011 and copy of the letter was given to him. The complainant had to pay minimum amount of `5.36 lakh as minimum booking advance and the complainant paid a sum of `25,000/- as advance towards minimum booking advance of the Flat No.1205 and he agreed to pay the balance minimum booking advance amount within 7 days and as such the booking of the flat was confirmed though the complainant paid an amount of `25,000/-.
6. The complainant submitted that he booked another Flat bearing number 1206 in Richmand Block D for consideration of `52,70,200/- on 27.11.2010 and paid an amount of `27,000/- and defaulted in payment as agreed in the booking form and as such the allotment was cancelled and the same was intimated to the complainant on 15.11.2011. The complainant had not intimated the opposite parties about the sanction of the loan and he did not request to furnish the allotment letter, buyer agreement etc.
7. The opposite parties submitted that their project was approved by the ICICI Bank on 24.02.2011 and they had obtained high rise sanction plan for the project on 7.0.7.2011 and prior to high rise sanction they were having sanction plan for construction up to 5 Floors and they started the construction in the year,2010. The opposite party approved the project with their bank that any customer avails loan for purchase of the Flat in their venture, it does not require any documents except the personal documents of the customer for showing financial eligibility. The complainant had not fulfilled the requirement of the terms of the letter dated 27.11.2010.
8. The opposite parties submitted that the complainant agreed to pay 15% of the cost of the Flat as advance and as per clause 3 of the terms of the booking confirmation letter, if the purchaser intends to avail loan, he would be eligible to 80% of the cost of the Flat which would be disbursed in progressive manner as per the progress of the construction. The opposite parties waited till 27.06.2011 for payment of the amount as per the terms of the booking confirmation letter dated 12.03.2011 and an amount of `13,15,000/- was due from the complainant. The present status of the project is that it is completed till 15th slab and the regular construction work is in process.
9. The complainant is not eligible for sanction of the loan and as such the opposite party no.4 had not disbursed the loan amount. The complainant had thrown blame on the opposite parties no.1 and 2. The complainant has not averred that he can get the home loan and he is ready to pay the sale consideration. If the customer fails to make payment for three months, his allotment would be cancelled. The opposite parties no.1 and2 submitted that there is no deficiency in service on their part and prayed for dismissal of the complaint.
10. The opposite parties no.3 and 4 remained exparte.
11. The complainant filed his affidavit and the documents, Exs.A1 to A14. On behalf of the opposite parties no.1 and 2, its Executive Director filed his affidavit and no documents have been filed
12. The learned counsel for the complainant nd the opposite parties no.1 and 2 have filed written submissions.
13. The point for consideration is whether the complainant is entitled to the Flat No.1205 in the venture floated by the opposite parties no.1 and 2?
14. The facts beyond any dispute are that the opposite partied had floated project” Aditya Imperial Heights” at Hafeezpet locality of Hyderabad city. The project consists of the building with residential apartments. The complainant booked on 12.03.2011 Flat bearing no.1205 in A Block in Celestia Block for consideration of `53,60,000 by paying a sum of `25,000/- on 12.03.2011 and he booked another Flat bearing number 1206 in Richmond Block D for consideration of `52,70,200/- on 27.11.2010 and paid an amount of `5,27,000/-.
15. The opposite party cancelled the allotment on the ground that the complainant failed to pay the sale consideration of the flats in accordance with the terms of the booking letter while the complainant challenged the cancellation of the allotment on the premise that the opposite parties have not furnished him relevant documents to enable him to avail loan from the opposite party no.4 and the delay caused in obtaining the layout approval by the opposite parties no.1 and 2 led to cancellation of the loan sanction by the opposite party no.4.
16. The booking confirmation letter dated 27.11.2011 and 12.3.2011 the terms thereof is the basis for formation of contract between the complainant and the opposite parties relating to the Flat Nos.1205 and 1206 being constructed by the opposite parties no.1 and 2. The letter dated 12.3.2011 contains terms and conditions pertaining to the consideration of the Flat, payment schedule, confirmation of booking etc., It provides for a minimum amount of `5.36 lakh for booking the Flat and for payment of 15% of the sale consideration for the purpose of confirmation of the booking with a rider that in case the amount falls less than 15% of the cost of the Flat, the balance amount of the 15% of the cost of the Flat is required to be paid within 7 days from the date of booking confirmation letter.
17. The parties thus, are bound by the terms and conditions of the aforementioned letter. The complainant addressed letter dated 19.12.2011 informing the opposite parties no.1 and 2 that he had received their letter dated 23.12.2010 in regard to processing of his home loan and a request made therefor to enclose the documents check list. The complainant referred to another letter dated 27.11.2010 issued by the opposite parties no.1 and 2 regarding payment schedule terms and conditions of the contract agreed upon. The complainant has mentioned in the letter that he failed to get disbursement of the loan amount from ICICI Bank, Delhi Branch and his eligibility for the bank sanction was lapsed due to delay caused by the opposite parties no.1 and 2 in obtaining permission for the building and in completing the construction of the building.
18. The opposite parties no.1 and 2 through their letter dated 27.6.2011 informed the complainant that he paid an amount of `25,000/- against the confirmation booking advance of 15% of the flat cost and as on the date of the letter the complainant was due a sum of `13,15,000/- which was required to be paid within 7 days and the complainant was further requested to pay the amount as per the terms and conditions of the booking confirmation letter as also he was requested to pay interest @ 18% per annum on the amount due in case he does not stick to the payment schedule.
19. The opposite party no.4 through letter dated 25.11.2010 informed the opposite parties no.1 and 2 that on request of the opposite parties no.1 and 2, the opposite party no.4 extended PEMY facility to the customers of the opposite parties no.1 and 2 and the facility was approved by the opposite party no.4 subject to the following terms and conditions.
1. Memorandum of Agreement to be signed by the Developer.
2. Undertaking from the Borrower.
3. ICICI would extend Retail Loans upto 85% of the cost (as Appraised by ICICI and subject to ICICI Eligibility Normal)
4. ICICI Will disburse the amount as per the Demand Schedule submitted by you to us.
5. Developer will pay the PEMI on behalf fo the customer till December 2012.
6. The Developer will provide separate auto debit/Ecs facility for individual cases.
7. PEMI Scheme will be applicable to retain loans booked in Block 1 & D for the above aforesaid project only
8. Disbursement for retail loans would happen as per the approved sanction plan.
20. The letter of the opposite party no.4 is sufficient to hold that the complainant has failed to comply with his part of contract. Even if it is presumed that the opposite party no.4 has not disbursed the loan owing to the delay caused in furnishing copies of documents to the complainant, the terms of confirmation booking letter as also the sanction of loan by the opposite party no.4 bank being restricted to 85% of cost of the flat, the complainant cannot blame the opposite parties no.1 and 2 that he could not pay the balance minimum advance amount for the reason that he could not avail the loan facility from the opposite party no.4 bank.
21. The Building Permit Order was issued in favour of the opposite party no.1 company by Greater Hyderabad Municipal Corporation on 7.7.2011. The complainant states that owing to the delay in obtaining the building permit order by the opposite parties no.1 and 2 his home loan process was obstructed. The complainant contends that the opposite parties no.1 and 2 without obtaining the building permit, delayed construction work of the building till the permit was sanctioned by GHMC. The opposite parties no.1 and 2 would contend that they had already obtained permit for construction of 5 storied building and subsequently they had obtained building permit order for the mutli-storied building consisting of 14 floors.
22. It is true that the opposite parties would have started the construction work of the building on the basis of layout approval five storied building. The opposite parties no.1 and 2 have not placed any evidence on record to show the stage wise construction till 27.6.2011 by which time the letter with demand for the amount towards balance sale consideration was made by the opposite parties no.1 and 2. In any case and viewed from any angle, both parties i.e., the complainant and the opposite parties no.1 and 2 have been found negligent and compared to the negligence of the complainant, lapse and lacking are of higher degree are found on the part of the opposite parties no.1 and 2.
23. For the foregoing reasons and taking into consideration of the totality of the circumstances, we are of the considered view that the complainant cannot claim for allotment and possession of flat no.1205 as also the opposite parties no.1 and 2 cannot retain the amount of `5,27,000/- without showing progressive stage of construction of the apartment in question in terms of the agreement. As such, this Commission holds the complainant entitled to `5,27,000/- with interest thereon at 9% per annum as also costs.
24. In the result the complaint is allowed directing the opposite parties no.1 and 2 to pay `5,27,000/- with interest @ 9% per annum from the date of complaint till payment together with costs of `5,000/-. Time for compliance four weeks.
MEMBER
MEMBER
Dt.07.10.2013
కె.ఎం.కె*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant For opposite parties
NIL NIL
EXHIBITS MARKED
For complainant
Ex.A1 Cancellation Letter dated 19.1.2012
Ex.A2 Representation dated 19.12.2011
Ex.A3 Legal notice dt.25.01.2012
Ex.A4 Postal Receipts
Ex.A5 Postal acknoweldgements
Ex.A6 Flat Booking letter dt.12.03.2011
Ex.A7 Letter dt.27.06.2011
Ex.A8 Representation dt.09.07.2011
Ex.A9 PEMI Proposal dt.25.11.2010
Ex.A10 Loan approval letter of ICICI Bank
Ex.A11 Building Permit Order
Ex.A12 Form 23
Ex.A13 Articles of Association
Ex.A14 Location Plan
For opposite parties
NIL
MEMBER
MEMBER
