BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
C.C.NO.135 OF 2012
Between
Ch.Venkata Seshagiri Rao S/o Ch.Gandhi
Aged about 37 years, Occ: Software Employee
R/o Flat No.105, Green Park Residency Apartment
Behind B.K.Guda Park, S.R.Nagar, Hyderabad
Complainant
A N D
1. M/s Aditya Construction Company India (P) Ltd.,
Chandralok Complex, Plot No.A/12, Road No.2,
Film Nagar, Apollo Hospital Road, Jubilee Hills
Hyderabad-033, rep. by its Director
Sri Durga Prasad Sugnanam
S/o Jagannayakula Sugananam
2. M/s. Aditya Construction Company India (P) Ltd,
Chandralok Complex, Plot No.A/12, Road No.2,
Film Nagar, Apollo Hospital Road, Jubilee Hills,
Hyderabad – 500 033 Rep.by its Director
Satyanarayana Yerukonda, S/o. Venkanna Yerukonda.
3. M/s. Aditya Construction company India (P) Ltd,
Chandralok Complex, Plot No.A/12, Road No.2,
Film Nagar, Apollo Hospital Road, Jubilee Hills,
Hyderabad – 500 033.Rep.by its Director
Rajesh Pagadala, S/o. Sarangapany Pagadala.
Opposite parties
Counsel for the Complainant M/s M.Hari Babu
Counsel for the Opposite party M/s Legal Matrix
QUORUM: SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
&
SRI THOTA ASHOK KUMAR , HON’BLE MEMBER
FRIDAY THE TWENTY SEVENTH DAY OF SEPTEMBER
TWO THOUSAND THIRTEEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. The complaint is filed seeking to provide the flat No.E-1404 Gardenia in E Block of Aditya Imperial Heights at Hafeezpet, Hyderabad along with amenities, facilities and specifications by receiving balance consideration of `53 lakhs or in the alternative refund the amount of `7 lakhs towards advance sale consideration with interest @ 24% p.a. together with compensation of `5 lakh and costs of `30,000/-.
2. The averments of the complaint are that the complainant that the opposite party a construction company floated venture under the name and style of ‘Aditya Imperial Heights at Hafeezpet and received an amount of `1,00,000/- by way of cheque No.696639 Dt.02-11-2011 drawn on ICICI Bank as advance. The opposite parties while acknowledging the receipt of amount have issued letter dated 07.11.2011 wherein it was mentioned that minimum flat booking advance amount is `2.5 lakhs and the booking will be confirmed after receiving the 10% of Flat Cost. In case less amount is paid, the balance shall be paid within 10 days from the date of booking. They promised to pay the rent @ `10/- per sq. ft. per month from the date of confirmation advance till the completion and the rent would be credited to the customer account on payment of first installment of 15% till completion of construction.
3. On 08.11.2011 the opposite parties demanded the payment as per the schedule. Later on 18.11.2011, again the opposite parties demanded to pay an amount of `14,00,000/- due on commencement of foundation work. By another e-mail dated. 23.11.2011 the opposite parties again demanded the payment of `14,00,000/- stating default of the payment will cause disqualify from Rental scheme. As per the booking letter dated 07.11.2011 there was time for 10 days for payment of balance booking amount and yet the opposite parties have issued demand letters for installments amount.
4. The complainant submitted that he paid an amount of `5,00,000/- by way of cheque No. 239019 dated 24.11.2011 drawn on Citi Bank. On 19.12.2011 the opposite parties have informed the commencement of 1st slab work and demanded `9,00,000/- for dues of commencement of foundation. The complainant objected and requested the opposite parties to send the draft agreement to complete the other formalities and obtain loan from the financial institutions. In response to it, the opposite parties had sent a draft agreement through email dated 21.12.2011. In the draft agreement the opposite parties did not mentioned the rental term as mentioned in the booking letter and they have changed the rental payment clause/term unilaterally. The complainant sought various documents through email dated 27.12.2011, as required by the LIC Housing Finance, to get housing loan from the opposite parties. As there is no response from the opposite parties, the complainant again sent another email dated 30.12.201. The opposite parties did not provide the documents to obtain the loan from the financial institutions by the complainant are illegal and constitutes unfair trade practice on the part of the opposite parties.
5. The Opposite parties, had not furnished the documents as requested by the complainant and they demanded the complainant to pay the installments of 1st and 2nd slab. On 24.01.2012 the complainant approached the opposite parties and requested them not to make illegal demands and provide the documents as required by financial institutions to obtain loan. The complainant paid an amount of `1,00,000/- through cheque No.112492 dated 25.01.2012 drawn on ICICI Bank. Again the opposite parties demanded through email dated 3.2.2012 to pay the second slab installment amounts The opposite parties informed the complainant through email dated 17.02.2012 stating that the documents can be collected from them. The opposite parties did not explain that why LIC will not disburse the housing loan to the complainant as the complainant is eligible for the same. In the meantime the State Bank of India, released the housing loan approval directly to the opposite parties for `48 lakhs. The complainant requested the opposite parties through email dated 17.2.2012 to insert the following clauses in the Agreement of Sale:
(i) ‘Inserting the name of his wife as one of the purchaser’
(ii) Rental scheme should be as mentioned in the booking letter - ‘The rent will be calculated and will be credited to the customer’s account every month and the sale consideration will be reduced to that extent every month.’
(iii) “Specification and amenities should be included in the agreement”
(iv) ‘time period of completing construction and that the rental scheme to continue till completion of construction’.
6. The complainant requested the opposite parties to get back with corrected agreement of sale to complete the home loan process which was sanctioned by SBI. The complainant requested the opposite parties to clarify the difference between the elevation shown in brochure and the plan and to include the latest elevation and plan in the agreement etc. As there was no reply from the opposite parties regarding the other issues raised by complainant the complainant had sent a reminder on 22.12.2012 and thereafter two more reminders to the opposite parties. The complainant made correspondence with the opposite parties from 28.02.2012 to 02.08.2012. The opposite parties had addressed letter dated 02.08.2012 intimating the complainant that they have cancelled the booking of the flat 1404. The complainant got issued notice dated 29.08.2012 to the opposite parties.
7. The complainant submitted that for payment of the advance amount and other amounts to the opposite parties, he cancelled the fixed deposits in Banks and Post offices and other deposit for loss of interest. The complainant paid the advance amount of `7,00,000/- and agreed to pay the balance installments,
8. The opposite party no.3 filed written version contending that they have not rendered any service to the complainant. The relationship between the complainant and the opposite party was purely a contractual relationship. The opposite party had agreed to pay the rent from the day of booking confirmation amount of 10% is paid by the complainant and that the same will be credited to the customer account upon payment of first installment of 15% subject to the customer making payment strictly as per the payment schedule. The complainant failed to make the payment of consideration amount as per the schedule inspite of many reminders from the opposite parties and inspite of providing the draft agreement of sale immediately as demanded by the complainant. The opposite parties have informed the complainant that SBI has accorded project approval and therefore approaching SBI instead of LIC Housing would expedite things as the said Bank is already in possession of all the title and link documents and the loan approval would only be based on the personal repayment capacity of the respective customer. The complainant had intentionally delayed by continuously sending mails that he required title documents. The opposite parties had been cooperative and also responded to the complainant’s emails and oral requests. As per the terms of the letter complainant has to make the payment as per the progress of construction. The complainant had paid `7 lakhs and thereafter stopped making payment. The opposite parties waited for a long time to let the complainant regularize the payment account and had also forwarded the draft agreement for execution. The opposite parties issued cancellation letter on failure of the complainant to make payment of sale consideration as per the schedule of payment which is in accordance with the booing terms and conditions and business norms. The opposite parties submitted that there was no deficiency in service on their part and prayed for dismissal of the complaint.
9. The complainant filed his affidavit and the documents Exs.A1 to A32. Mr.Rajesh Pagadala, the Director of the opposite party no.3 filed his affidavit and no documents have been filed.
10. The points for consideration are:
i) Whether there was deficiency in service on the part of the opposite parties?
ii) To what relief?
11. POINT NO.1: 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 applied for booking Flat bearing number E-1404 Gardenia in ‘E’ Block of the building on 2.11.2011 and paid a sum of `1,00,000/- towards advance through cheque bearing number 696639 on the same day. The opposite parties issued letter-cum- receipt dated 7.11.2011 which is stated to have been received by the complainant on 10.11.2011 by e-mail.
12. The letter dated 7.11.2011 contains terms and conditions pertaining to the consideration of the Flat, payment schedule, confirmation of booking etc., It provides for a minimum amount of `2.5 lakh for booking the Flat and for payment of 10% of the sale consideration for the purpose of confirmation of the booking with a rider that in case the amount falls less than 10% of the cost of the Flat, the balance amount of the 10% of the cost of the Flat is required to be paid within 10 days from the date of booking. The letter also provides for payment of rent by the opposite parties to the complainant @ `10/- per sq.ft. per month from the dated of confirmation of the advance till completion of the construction of the Flat and the rent is promised to be credited to the account of the complainant on payment of first installment of 15% of the cost of the Flat.
13. The parties thus, are bound by the terms and conditions of the aforementioned letter. The complainant has stated that the terms of the letter are one sided and are in favour of the opposite parties and he further stated that the opposite parties in violation of the terms of the letter demanded for a sum of `1,00,000/- the next day, i.e., 8.11.2011 and for payment of an amount of `14,00,000/- on 23.11.2011. The letter dated 7.11.2011 stipulates period of 10 days from the date of payment of advance for the purpose of payment of balance of minimum advance amount of `2,50,000/-. The complainant paid a sum of `1,00,000/-towards the minimum advance amount of `2,50,000/- and as such he got at his option the period of 10 days for making payment of balance minimum advance amount of `1,50,000/-. In contravention of the term extending time for 10 days, the opposite parties demanded the complainant on the second day of making payment of advance amount of `1,00,000/- to pay the balance amount of `2,50,000/-.
14. The demand for payment of `14,00,000/- was made through e-mails dated 11.11.2011, 18.11.2011 and the opposite parties cautioned the complainant by email dated 23.11.2011 that his failure to pay the sum of `14,00,000/- would entail in his disqualification for the benefit of rental amount. The complainant paid a sum of `5,00,000/- through cheque bearing number 239010 dated 24.11.2011and the opposite parties had sent e-mail dated 19.12.2011 informing the complainant that the construction of the building reached 1st slab stage and the complainant was required to pay a sum of `9,00,000/-towards the due of the foundation stage of the construction. At this juncture, the complainant said to have objected seeking for furnishing him of the draft agreement in order to enable him to avail loan from financial institutions.
15. The opposite parties had sent the draft agreement by e-mail on 21.12.2011 to the complainant and the complainant expressed his intention to avail from the LIC Housing Corporation on the premise of low lending rate of interest by the LICGH. The complainant informed the opposite party of his intention to avail housing loan from the LICGH through e-mail dated 27.12.2011 wherein he made a mention of documents to be furnished to him as under:
“Thank you for the draft. I am currently working on my housing loan approvals from LIC and need the following:
copy of title deeds + linked documents
copy of encumberance certificates (EC) up till date
copy of HUDA/ GHMC approvals
Also, in addition to the above, kindly me copy of final plan & elevation for the gardenia block (including detailed plan for flat 1404). These need to be included with the Sale Deed, but your email did not include the same.”
16. The complainant addressed another letter on 30.12.2011 with the same request for furnishing of the documents for the purpose of availing loan from LIC Housing Finance Corporation. The opposite parties contend that they had explained to the complainant that SBI had accorded project approval and as such approaching SBI instead of LIC Housing Finance Company would expedite the matter as the documents relating to the project were already handed over to the State Bank of India and it was made clear to the complainant that the loan approval would be made on the personal repayment capacity of the complainant. It is contended that the complainant intentionally delayed in approaching the State Bank of India by sending email to the opposite parties and later he had changed his financing bank from LIC Housing Finance Corporation to State Bank of India to gain further time and cause delay in payment of the amount due.
17. The complainant paid a sum of `1,00,000/- through cheque bearing No.112492 on 25.1.2012 for which the opposite parties issued receipt on 24.1.2012 and demanded the complainant to pay the second slab instalment amount. The complainant reiterated his request for furnishing of the documents by email dated 16.2.2012 which reads as under:
“With respect to your email below, kindly note that due to the delay by Aditya CC in providing copies of title deed & link documents, my home loan processing is delayed and hence the payments cannot be released. As already informed to you, it is required to provide front & back copies of the title & link documents for verification. Since this delay is on your side, I am not agreeing for any late payment or related clauses.
Request you to kindly provide the copies (front & back included) of the above mentioned documents so that I can complete my home loan processing accordingly”
18. The reply dated 17.2.2012 to the email sent on 16.2.2012 of the complainant would make it clear that the complainant has been consistently requesting for furnishing of the documents. The opposite parties in their reply mentioned that the documents are ready and can be collected from the opposite parties as also the opposite parties expressed their opinion that the LIC Housing Financing Corporation will not disburse the amount and it would be become problematic for the complainant as the rental scheme payment had to be paid strictly as per the stage of construction irrespective home loan eligibility.
19. The State Bank of India released housing loan approval directly to the opposite parties an amount of `48 lakhs. The complainant made a request to the opposite parties for amendment of certain clauses in the agreement of sale and some of them are:
(i) ‘Inserting the name of his wife as one of the purchaser’
(ii) Rental scheme should be as mentioned in the booking letter - ‘The rent will be calculated and will be credited to the customer’s account every month and the sale consideration will be reduced to that extent every month.’
(iii) “Specification and amenities should be included in the agreement”
‘time period of completing construction and that the rental scheme to continue till completion of construction’.
20. On 28.2.2012 the opposite parties informed the complainant that the agreement of sale was ready for signing it by the complainant and the complainant was requested to come to the office of the opposite parties as also the complainant was informed that there would not be any amendment to the terms and conditions mentioned in the agreement of sale as regards to the rental scheme. The opposite parties contended that the term relating to the rental scheme was not incorporated in the agreement of sale owing to failure of the complainant to pay 10% of the cost of the flat towards minimum advance amount. Whereas the complainant submitted that the opposite parties proceeded to demand balance of 10% of cost of the flat towards minimum advance amount contrary to the condition that the same amount was required to be paid within 10 days from the date of making payment of the advance amount of `1,00,000/-.
21. Thus, there had been violation of terms and conditions on the part of the opposite parties leading to misunderstanding between the parties which ultimately ended in cancellation of allotment of the flat in favour of the complainant. Thereafter, the complainant made correspondence with the opposite party expressing his intention to proceed further with his part of contract and there was no response from the opposite parties which led the complainant to get issued notice on 29.8.2012 for which there was no response from the opposite parties. The opposite parties ought to have sent the copies of documents. The opposite parties had demanded the minimum advance amount in contravention of the terms of the booking letter. The opposite parties have also failed to return the amount when they could not furnish the documents to the complainant to enable him to obtain the loan from LIC Housing Finance.
22. The complainant had submitted that the demand by the opposite parties for the instalments against the terms and conditions of the booking confirmation letter and the refusal of the opposite parties to amend the sale agreement as also their failure to handover the title deeds and the link documents made him lose the opportunity to avail loan at low lending rate from the LIC Housing Finance. The contention of the complainant has acceptable force and it can be safely concluded that there was deficiency in service on the part of the opposite parties in the matter relating to loan transaction by the Bank and their demand for instalments in contravention of terms of booking letter.
23. For the foregoing reasons this Commission is of considered view that the opposite party cannot retain the amount by resorting to cancellation of allotment of the flat. Taking into consideration of totality of the circumstances of the case, this Commission holds the complainant is entitled to the refund of the amount with interest @ 9% per annum from the date of last payment i.e., 24.1.2012.
24. In the result the complaint is allowed directing the opposite parties no.1 to 3 to pay `7,00,000/- with interest @ 9% per annum from 24.1.2012 till payment together with costs of `5,000/-. Time for compliance four weeks.
Sd/-
MEMBER
Sd/-
MEMBER
Dt.27.09.2013
కె.ఎం.కె*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
NIL
EXHIBITS MARKED
For the complainant:
Ex.A1 Booking letter issued by op
Ex.A2 OP e-mail demanding for payment
Ex.A3 OP e-mail enclosing confirmation
Ex.A4 Rs. 14,00,000/- foundation work
Ex.A5 disqualify rental scheme
Ex.A6 Receipt No. 1621 issued by OP for Rs. 5,00,000/- payment
Ex.A7 commencement of 1st slab work
Ex.A8 agreement
Ex.A9 agreement of sale
Ex.A10 documents and plans
Ex.A11 e-mail of the complainant
Ex.A12 installments of 1st and 2nd slab is in progress
Ex.A13 Receipt No. 1980, dated 24.01.12
Ex.A14 second slab installment amounts
Ex.A15 reply to email
Ex.A16 documents
Ex.A17 OP for correction/insertion of clauses
Ex.A18 Draft agreement of sale
Ex.A19 Draft Tri-partite agreement
Ex.A20 Clarifications
Ex.A21 Clarifications
Ex.A22 Clarifications
Ex.A23 Clarifications
Ex.A24 Clarifications
Ex.A25 Agreement of sale
Ex.A26 agreement
Ex.A27 Delay on the part of OP
Ex.A28 Email of complaint
Ex.A29 cancellation of flat booking
Ex.A30. Emails of the complainant
Ex.A31 Legal notice
Ex.A32 OP company directors
For opposite parties
NIL
Sd/-
MEMBER
Sd/-
MEMBER
