BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
C.C.202 of 2013
Between:
1.Prasanth Kumar Varanasi
S/o Mr. Madhusudana Rao,
Aged about 31 years
2.V. Madhusudana Rao,
s/o Anjaneyulu, aged about 51 years
both are R/o 5-11-33/A, op. MRO office
Vizianagaram – 535 001 .. Complainant
And
01. M/s. Aliens Developers (P) Ltd
Rep. by its Managing Director & Joint Managing Director
Mr. Hari Chall, S/o Mr. CVR Chowdhary &
Mr. C. Venkat Prasanna Chlla, S/o Mr. CVR Chowdhary,
Respectively, C/o Flat No. 910, Teja Block,
My Home Navadeepa Apartments, Madhapur,
Near Hitech City, Hyderabad - 500081.
02. Mr. Hari challa, S/o Mr. CVR Chowdhary,
Managing Director, M/s. Aliens Developers (P) Ltd
O/o Flat No. 910, Teja Block,
My Home Navadeepa Apartments, Madhapur,
Near Hitech City, Hyderabad - 500081.
03. Mr. C. Venkat Prasanna, , S/o Mr. CVR Chowdhary,
Joint Managing Director, M/s. Aliens Developers (P) Ltd
O/o Flat No. 910, Teja Block,
My Home Navadeepa Apartments, Madhapur,
Near Hitech City, Hyderabad - 500081.
(present addresses o parties s.no. 1 to 3 are at Aliens space station, Tellapur post, Ramachandrapuram Mandal, Medak Dist, Hyderabad.
Pin – 502 032.
.. Opposite parties
Counsel for the Complainant : M/s. V. Appa Rao
Counsel for the Opposite parties :M/s. Alluri Krishnam Raju for Ops 1 to 3
QUORUM:
HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA, PRESIDENT
AND
SRI R. LAKSHMINARASIMHA RAO, HON’BLE MEMBER
FRIDAY, THE TWENTY SEVENTH DAY OF JUNE
TWO THOUSAND FOURTEEN
Oral Order : ( As per Sri R. Lakshminarasimha Rao , Hon’ble Member )
1. This complaint is filed to direct the opposite parties 1 to 3 to hand over possession of the flat forthwith on completion in all aspects including completion of common areas and obtain statutory permission thereof including occupancy certificate from the concerned authorities, to pay an amount of Rs.3,52,000/- towards rent @ Rs.22,000/- per month w.e.f. 1.6.2012 to 30.09.2012 and subsequently @ Rs.22,000/- and Rs.10 lakhs towards compensation for mental agony etc., lternatively, to pay Rs.32,82,702/- towards sale consideration with interest @ 24% pa from 12.3.2010 to 30.09.2013 comes to Rs.24,13,000/- and subsequent interest @ 24% pa and Rs.50,000/- towards legal charges etc.
2. The brief facts that led to the filing of this complaint are that the Complainants entered into an agreement of sale on 12.03.2010 for purchase of a flat no. 482 , Station -13th on 4th floor of the complex Space Station – 1 in the super built up area of 1402 sq. feet with one covered car parking space besides undivided share of land of 30.14 sq. yards out of total land of 82976.89 sq. yards in survey nos. 384, 385 and 426/A, situated at Tellapur Village, Ramachandrapuram Mandal, Medak district for a sale consideration of Rs.36,96,958/- and paid a sum of Rs.32,82,792/-. The opposite parties executed sale deed bearing No. 11309 of 2012 dated 3.8.2012 and construction agreement bearing No. 11309 of 2012 dated 3.8.2012 and the complainants have to play balance sale consideration of Rs.4,16,166/- at the time of handing over possession of the same after completion of construction in all respects on or before 31.05.2012 including the grace period of six months, in default, the opposite parties have to pay Rs.3/- per sq.feet of built up area.
3 The opposite parties without delivering possession of the flat to the complainants, they have utilized it for their administrative purposes. Hence the complainant got issued notice to the opposite parties on 19.08.2013 and there was no response from them. The 1st and 2nd complainants have been paying rent @ Rs.13,000/-per month besides paying monthly home loan instalments. Since the opposite parties are using the flat allotted to them for their administrative purposes, they are liable to pay rent @ Rs.22,000/- per month from 1.6.2012 till hand over possession. There is deficiency in service on the part of the opposite parties in not handing over possession within the stipulated date as per the agreement and in that context they were subjected to mental agony and suffering. Hence, the complaint.
3. The opposite parties contended that the Complainant did not apply for cancellation of the flat and refund of the amount. Since the project is massive one, due to the Telangana agitation the real estate business it faced lot of problems and also due to delay in getting clearance from statutory bodies, the opposite parties could not complete the same within the stipulated time. The said fact was informed to the complainant and also mentioned in the agreement of sale under clause No.xiv and described as ‘force majeure’. Since there is an arbitration clause no. 18 in the sale agreement, the dispute has to be referred for arbitration and the Courts have no jurisdiction to adjudicate the dispute. It is admitted that under clause VIII of the agreement the flat will be delivered by 31.5.2012 and further six months grace period is available and in default, the opposite parties are liable to pay compensation as per clause VIII (f) and that the complainant is due to pay an amount of Rs.4,16,166/- to them. The opposite parties denied that they are using the flat for their own purposes As per the terms of the agreement, except compensation for the delay in handing over possession of the flat, the complainant is not entitled for any other amount as prayed for . Except lacunae in clearance from the statutory bodies, there is no delay on their part. There is no deficiency in service on their part and the complainant is not entitled for any amount and prayed for dismissal of the complaint.
4 The complainant No.1 filed his affidavit and relied on the documents, Exs.A1 to A1-8. Mr. Venkat Prasanna Challa, Joint Managing Director of the opposite parties filed his affidavit. No documents were marked on their behalf.
5. The learned counsels for the complainant filed written arguments.
6.The points that arise for consideration are :
i. Whether the complainants are entitled for possession and registration of flats or in the alternative refund of the amount, if so, to what amount?
ii. Whether the complainants are entitled to compensation?
iii. To what relief?
7. It is an undisputed fact that the complainants entered into an Agreement of sale on 12.03.2010 for purchase of a flat no. 482 , Station -13th on 4th floor of the complex, by name, Space Station – 1 in the super built up area of 1402 sq. feet with one covered car parking space besides undivided share of land of 30.14 sq. yards out of total land of 82976.89 sq. yards in survey nos. 384, 385 and 426/A, situated at Tellapur Village, Ramachandrapuram Mandal, Medak district for a sale consideration of Rs.36,96,958/- and paid Rs.32,82,792/- in advance and the balance amount due is Rs.4,16,166/-. The opposite parties had agreed to complete the construction and hand over possession of flat by 31.05.2012 from the date of execution of agreement. They also agreed to pay Rs.3/- per sft. in case there is delay in handing over possession of flat to the complainant.
8. The opposite party No.1 could not complete the project within the time frame as it could not get the required clearance from statutory bodies and they had taken shelter under clause No.XIV ‘force majeure’ The complainant, therefore, seek possession of the completed apartment, rent incurred, compensation and costs.
9. It is the contention of the opposite party no.1 that the agreement provides for reference to an Arbitrator in case of any dispute and therefore the complaint is not maintainable before this Commission. An arbitration clause in an agreement is no bar for the complainant to invoke jurisdiction of Consumer Forum. We are fortified by the judgment of the Apex court in National Seeds Corporation Ltd., V. M.Madhusudhan Reddy reported in (2012) 2 SCC 506 the Supreme Court has considered the jurisdiction of the Consumer Fora and Commissions while adjudicating matter wherein there is an arbitration clause in the contract and held as follows:
“The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.”
10. It is pertinent to note that the complainants had not approached or appointed an arbitrator on his behalf and they have instead chosen to file the case before this Commission and that no Arbitration Award has been passed. Therefore, we hold that the complaint is maintainable before this Commission.
11. POINT NO.2: The opposite parties agreed to complete construction of the Flat and deliver its possession to the complainant by 31.05.2012. The complainant paid the sale consideration of the Flat in accordance with the payment schedule of the Agreement of Sale. The balance sale consideration payable is Rs.4,16,166/- for which he expressed his readiness to pay to the opposite parties. The opposite parties have not delivered possession of the Flat to the complainant event after grace period of six months which was expired by 30.11.2012. Clause VIII(f) of the Agreement provides for payment of compensation to the complainant for the delay in delivering possession of the Flat to the complainant. Clause VIII(f) of the Agreement reads as under:
“ Holding charges : That if the purchaser/s fails or neglects to take the delivery of the Apartment within the time prescribed under the said “ notice of possession” issued by the Developer, the Purchaser/s shall be liable to pay “ Holding chares” @ Rs.3/- ( Rupees three ) per sq. ft. per month, starting from the expiry of the date prescribed in the “ Notice of Possession’ till the date the Purchaser/s takes actual physical possession of the Apartment. The holding charges shall be in addition to the amount payable by the purchaser/s as his/her/teir share to the Government or Municipal taxes, maintenance or other administrative charges, on a proportionate basis , as determined by the Developer or the Maintenance Agency, for the period for which the purchaser/s has not taken the actual physical possession of the Apartment ”.
12. The complainant proceeded to pay the consideration of the Flat with the hope that the opposite parties would complete the construction and deliver the Flat wherein he could reside with his satisfaction having been fulfilled and he could avoid payment of rent as well. However, the opposite parties have not kept their promise and for the delayed period they expressed their readiness to pay the amount in terms of the agreement. The complainant has stated that the opposite partt has been utilizing the flat for running their office. The opposite parties cannot use the flat for its office purpose as it is sold to the complainant.
13. The difficulty that the complainant faced due to the delay caused in completing the construction of the Flat on the part of the opposite parties has grown many fold as the complainant has to pay EMIs irrespective of the completion of the Flat and he has to reside in a house paying rent which according to him is Rs.22,000/-. It is natural for a person to suffer mental tension by being deprived of residing in the Flat and on being obligated to pay EMIs to the Bank.
14. The complainant claimed an amount of Rs.22,000/- towards rent and a sum of Rs.10,00,000/- towards compensation. By virtue of Clause VIII (f) of the Agreement, the opposite party is liable to pay Rs.3/- per sft from 01.12.2012. Taking into consideration of the hardship the complainant undergone and the amount of Rs.3/- per sft from 01.12.2012 payable by the opposite parties, we are inclined to award a sum of Rs.10,000/ -per month towards the rent from 01.12.2012 and a sum of Rs.50,000/-towards compensation. The opposite parties are liable to pay the rent of Rs.10,000/- per month from 01.12.2012 till possession of the flat is delivered and occupancy certificate is handed over to him. As such, the complaint deserves to be allowed.
15. POINT NO.3: In the result, the complaint is allowed. The opposite parties are directed to complete the construction of the Flat bearing number 482 and deliver its possession to the complainants and hand over copy of occupancy certificate to the complainant and pay from 1.12.2012 an amount of Rs.10,000/-towards rent to the complainant till possession of flat is delivered to the complainant. The complainants shall pay the balance sale consideration of Rs.4,16,166/- to the opposite parties Further, the opposite parties shall pay to the complainant a sum of Rs.50,000/-towards compensation and an amount of Rs.5,000/-towards costs. Time for compliance four weeks.
PRESIDENT
MEMBER
DATED :27.06.2014
( contn…page 7)
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE COMPLAINANT : NONE
FOR THE OPPOSIE PARTIES : NONE
DOCUMENTS MARKED
FOR THE COMPLAINANT :
Ex.A-1: 12.10.2010 : copy of agreement
Ex.A-2: 03.08.2012 : sale deed
Ex.A-3; 03.08.2012 ; construction agreement
Ex.A-4: - ; Latest offer documents made available to the public
by the 1st opposite party
Ex.A-5: 19.08.2013 : legal notice from the complainant to the opposite parties
Ex.A-6: - ; Original copies of Registered postal receipts and
acknowledgement cards ad returned cover
Ex.A-7; 21.03.2006 : letter of incorporation
Ex.A-8: - : Form no. 32.
FOR THE OPPOSITE PARTIES : nil
PRESIDENT
MEMBER
DATED :27.06.2014
