STATE CONSUMER DISPUTES REDRESSAL COMMISSION

OF TELANGANA : AT HYDERABAD

                                                             CC NO. 19 OF 2016

 Between :

1.  Nitin Balwant Cholkar

S/o Mr. Balawant Ramachandra Cholkar

Aged about 43 years

2. Mrs. Vidya Nitian Cholkar

W/o Mr. Nitin Balwant Cholkar, aged about 38 years

Both are R/o Flat No.303, Building –C, Avaneesh Apts,

Behind PINAC memories, Kothrud,

Pune 0 411 038, Maharashtra

Present address :

Flat No. 104, Tower No.3, Blue Ridge,

Hindjewadi, Phase -1, Pune – 411 057.

            Maharashtra                                                  .. COMPLAINANTS

          A N D

1. M/s. Aliens Developers (P) Ltd

            Rep. by its Managing Director & Joint Managing Director

Mr. Hari Challa, S/o Mr. CVR Chowdhary &

Mr. C. Venkat Prasanna, S/o Mr. CVR Chowdhary,

Respectively, O/o Flat No. 910, Teja Block,

My Home Navadeepa Apartments, Madhapur,

Near Hitech City, Hyderabad - 500081.

2. 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.

3. 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 of parties s.no. 1 to 3 are at

Aliens space station, Tellapur post,

Ramachandrapuram Mandal,

Medak Dist, Hyderabad – 502032               ..          OPPOSITE PARTIES

  Counsel for the Complainant                      :          Sri V.Appa Rao

Counsel for the Opp. Parties                         :      Sri P.RajasripathiRao  for Ops 1 to 3

 CC NO. 26 OF 2016

 Between :

1. Sanjiv Agarwal

S/o Mr. SR Garwal, aged about 43 years;

2. Mrs. Vandana Agarwal

W/o mr. Sanjiv Agarwal, aged about 41 years.

Both are R/o 103, Vishwajyothi Apartments,

Lane-9, Brahmanwadi, Begumpet,

Hyderabad – 500 016.

Present address, Flat No. L-2001, Aparna Sarovar,

          Nalgonda, Hyderabad – 500 046.

          A N D

1. M/s. Aliens Developers (P) Ltd

            Rep. by its Managing Director & Joint Managing Director

Mr. Hari Challa, S/o Mr. CVR Chowdhary &

Mr. C. Venkat Prasanna, S/o Mr. CVR Chowdhary,

Respectively, O/o Flat No. 910, Teja Block,

My Home Navadeepa Apartments, Madhapur,

Near Hitech City, Hyderabad - 500081.

2. 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.

3. 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 of parties s.no. 1 to 3 are at

Aliens space station, Tellapur post,

Ramachandrapuram Mandal,

Medak Dist, Hyderabad – 502032               ..          OPPOSITE PARTIES

  Counsel for the Complainant                      :          Sri V.Appa Rao

Counsel for the Opp. Parties                         :      Sri P.RajasripathiRao  for Ops 1 to 3

 CC NO. 33 OF 2016

 Between :

Buju Sebastian

S/o Mr. Thomas Sebastian, aged about 36 years,

R/o Flat No. 405, Block 37, Rain Tree Park, Kukatpally,

Hyderabad – 500 072                                                                       ..Complainant

          A N D

1. M/s. Aliens Developers (P) Ltd

            Rep. by its Managing Director & Joint Managing Director

Mr. Hari Challa, S/o Mr. CVR Chowdhary &

Mr. C. Venkat Prasanna, S/o Mr. CVR Chowdhary,

Respectively, O/o Flat No. 910, Teja Block,

My Home Navadeepa Apartments, Madhapur,

Near Hitech City, Hyderabad - 500081.

2. 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.

3. 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 of parties s.no. 1 to 3 are at

Aliens space station, Tellapur post,

Ramachandrapuram Mandal,

Medak Dist, Hyderabad – 502032               ..          OPPOSITE PARTIES

  Counsel for the Complainant                      :          Sri V.Appa Rao

Counsel for the Opp. Parties                         :      Sri P.RajasripathiRao  for Ops 1 to 3

CC NO. 55 OF 2016

 Between :

Mr. Arraju Surya Prakash Madan Mohan

S/o late Shri S.V. Ramachandra Rao, aged about 62 years

R/o 303, Sana Square apartments,

Kandaswamy lane, Hanumantekedi, Koti,

Hyderabad – 500 097                      

( Present address H.no. 1-1-7/13, Ashok colony,

Street No. 3, Lane No. 5, Kapra, ECIL Post,

Hyderabad – 500 062)                                              .. complainant

          A N D

1. M/s. Aliens Developers (P) Ltd

            Rep. by its Managing Director & Joint Managing Director

Mr. Hari Challa, S/o Mr. CVR Chowdhary &

Mr. C. Venkat Prasanna, S/o Mr. CVR Chowdhary,

Respectively, O/o Flat No. 910, Teja Block,

My Home Navadeepa Apartments, Madhapur,

Near Hitech City, Hyderabad - 500081.

2. 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.

3. 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 of parties s.no. 1 to 3 are at

Aliens space station, Tellapur post,

Ramachandrapuram Mandal,

Medak Dist, Hyderabad – 502032               ..          OPPOSITE PARTIES

  Counsel for the Complainant                      :          Sri V.Appa Rao

Counsel for the Opp. Parties                         :      Sri P.RajasripathiRao  for Ops 1 to 3

CC NO. 56 OF 2016

 Between :

Mr. Mohan Lal Tiwari,

S/o Lt. Mr. Govind P. Tiwari, aged about 69 years

Occ :.Ex.Army, R/o Near Monu Mintu Kiraana Store

Karmachaari Nagar, Sikola Basti

Durg, Chattisgarh – 491 001                        ...         complainant

          A N D

1. M/s. Aliens Developers (P) Ltd

            Rep. by its Managing Director & Joint Managing Director

Mr. Hari Challa, S/o Mr. CVR Chowdhary &

Mr. C. Venkat Prasanna, S/o Mr. CVR Chowdhary,

Respectively, O/o Flat No. 910, Teja Block,

My Home Navadeepa Apartments, Madhapur,

Near Hitech City, Hyderabad - 500081.

2. 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.

3. 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 of parties s.no. 1 to 3 are at

Aliens space station, Tellapur post,

Ramachandrapuram Mandal,

Medak Dist, Hyderabad – 502032               ..          OPPOSITE PARTIES

  Counsel for the Complainant                      :          Sri V.Appa Rao

Counsel for the Opp. Parties                         :      Sri P.RajasripathiRao  for Ops 1 to 3

CC NO. 66 OF 2016

 Between :

Mr. Sameer Patil

S/o Mr. Mahendra Patil, aged about 37 years,

R/o 6- Madhughat, Vikaram Nagar, Kalwa (W),

Mumbai – 400 605                                        ..          complainant

          A N D

1. M/s. Aliens Developers (P) Ltd

            Rep. by its Managing Director & Joint Managing Director

Mr. Hari Challa, S/o Mr. CVR Chowdhary &

Mr. C. Venkat Prasanna, S/o Mr. CVR Chowdhary,

Respectively, O/o Flat No. 910, Teja Block,

My Home Navadeepa Apartments, Madhapur,

Near Hitech City, Hyderabad - 500081.

2. 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.

3. 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 of parties s.no. 1 to 3 are at

Aliens space station, Tellapur post,

Ramachandrapuram Mandal,

Medak Dist, Hyderabad – 502032               ..          OPPOSITE PARTIES

  Counsel for the Complainant                      :          Sri V.Appa Rao

Counsel for the Opp. Parties                         :      Sri P.RajasripathiRao  for Ops 1 to 3

CC NO. 125 OF 2016

 Between :

Venugopal Kompally

S/o Mr. K. Mallesham, aged about 35 years,

R/o 2-1-71, Gole Hanuman Chowk, Nizamabad    ..          complainant

          A N D

1. M/s. Aliens Developers (P) Ltd

            Rep. by its Managing Director & Joint Managing Director

Mr. Hari Challa, S/o Mr. CVR Chowdhary &

Mr. C. Venkat Prasanna, S/o Mr. CVR Chowdhary,

Respectively, O/o Flat No. 910, Teja Block,

My Home Navadeepa Apartments, Madhapur,

Near Hitech City, Hyderabad - 500081.

2. 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.

3. 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 of parties s.no. 1 to 3 are at

Aliens space station, Tellapur post,

Ramachandrapuram Mandal,

Medak Dist, Hyderabad – 502032               ..          OPPOSITE PARTIES

  Counsel for the Complainant                      :          Sri V.Appa Rao

Counsel for the Opp. Parties                         :      Sri P.RajasripathiRao  for Ops 1 to 3

CC NO. 126 OF 2016

 Between :

Mr. Rawulwar Harinarayan

S/o mr. R. Ramdas, aged about 43 years,

R/o H.No.28, MIGH, APHB colony, Moulali

Hyderabad – 500 040                                               ..          Complainant

          A N D

1. M/s. Aliens Developers (P) Ltd

            Rep. by its Managing Director & Joint Managing Director

Mr. Hari Challa, S/o Mr. CVR Chowdhary &

Mr. C. Venkat Prasanna, S/o Mr. CVR Chowdhary,

Respectively, O/o Flat No. 910, Teja Block,

My Home Navadeepa Apartments, Madhapur,

Near Hitech City, Hyderabad - 500081.

2. 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.

3. 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 of parties s.no. 1 to 3 are at

Aliens space station, Tellapur post,

Ramachandrapuram Mandal,

Medak Dist, Hyderabad – 502032               ..          OPPOSITE PARTIES

  Counsel for the Complainant                      :          Sri V.Appa Rao

Counsel for the Opp. Parties                         :      Sri P.RajasripathiRao  for Ops 1 to 3

CC NO. 169 OF 2016

 Between :

1. Tarun Deep

S/o Mr.Dharam Palkumar, aged about 36 years.

2. Mrs. Nidhi Chopra

W/o mr. Tarun Deep, aged about 32 years,

Both are R/o H.no. 652, New Model colony

Near prem nagadr, Ambala city

Haryana 134 003                              ..          complainants

          A N D

1. M/s. Aliens Developers (P) Ltd

            Rep. by its Managing Director & Joint Managing Director

Mr. Hari Challa, S/o Mr. CVR Chowdhary &

Mr. C. Venkat Prasanna, S/o Mr. CVR Chowdhary,

Respectively, O/o Flat No. 910, Teja Block,

My Home Navadeepa Apartments, Madhapur,

Near Hitech City, Hyderabad - 500081.

2. 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.

3. 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 of parties s.no. 1 to 3 are at

Aliens space station, Tellapur post,

Ramachandrapuram Mandal,

Medak Dist, Hyderabad – 502032               ..          OPPOSITE PARTIES

  Counsel for the Complainant                      :          Sri V.Appa Rao

Counsel for the Opp. Parties                         :      Sri P.RajasripathiRao  for Ops 1 to 3

CC NO. 184 OF 2016

 Between :

1. Manish Mandhyan

S/o Mr. RC. Mandhyan, aged about 45 years.

2. Mrs. Rebecca Shobhana Mandhyan

W/o Mr. Manish Mandhyan, aged about 43 years.

R/o Flat No. 502, Foot Man’s Residency, 12-5-87,

Vijay puri colony, South Lallaguda,

Secunderabad – 500 017.

Present address Flat No. 102, Manbhum Srilata

10-3-48, 24/A,East Marredpally,

Secunderabad – 500 026                              .. complainants

          A N D

1. M/s. Aliens Developers (P) Ltd

            Rep. by its Managing Director & Joint Managing Director

Mr. Hari Challa, S/o Mr. CVR Chowdhary &

Mr. C. Venkat Prasanna, S/o Mr. CVR Chowdhary,

Respectively, O/o Flat No. 910, Teja Block,

My Home Navadeepa Apartments, Madhapur,

Near Hitech City, Hyderabad - 500081.

2. 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.

3. 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 of parties s.no. 1 to 3 are at

Aliens space station, Tellapur post,

Ramachandrapuram Mandal,

Medak Dist, Hyderabad – 502032               ..          OPPOSITE PARTIES

  Counsel for the Complainant                      :          Sri V.Appa Rao

Counsel for the Opp. Parties                         :      Sri P.RajasripathiRao  for Ops 1 to 3

QUORUM             :

                        HON’BLE SRI JUSTICE M.S.K. JAISWAL , HON’BLE  PRESIDENT

                                                            AND

SRI K. RAMESH, HON’BLE  MEMBER

                                    THURSDAY, THE SIXTH DAY  OF SEPTEMBER

                                                   TWO THOUSAND EIGHTEEN

Oral Order :

***

    01).           The complaints arise out of identical facts and similar circumstances and hence  they are disposed of by common order.   The complaint in   C.C.No.19/2016 is taken as the lead case. 

2)                 The case of the Complainants in brief, is that the Opposite party No.1 company represented to them that they are engaged in the business of constructing multi-storied apartments and entered into development agreement with the owners of the land comprised in survey Nos. 384, 385 and 426/A situated at Tellapur village, Ramachandrapuram Mandal, Medak District to construct high rise apartments under the name and style of ‘Aliens Space Station’ and obtained permission bearing No.HUDA/621/P4/PLG/HUDA/2008 and they would provide all amenities therefor, with certain grace period and on such representation of the opposite parties, the complainants  entered into agreement of sale for purchase of flats, having super built-up area with one car parking along with undivided share of land, as detailed below.

 3.       The complainants entered into agreements of sale in respect of flats at Aliens Space Station, situated at Tellapur village, Ramachandrapuram Mandal, Medak District for the consideration thereof as detailed in the table below:

4. The Opposite parties had not commenced construction of the flats even after the stipulated period  expired. There is no possibility of the construction of the flats and also the Opposite parties had not responded to the repeated requests of the Complainants.  The Complainants got issued the legal notice, to which there was no response.  The Complainants had sought for return of the amount with interest, compensation and costs of the complaint, in each case, as detailed below.

5).        The opposite parties resisted the claim contending  that the Complainant filed the complaint to gain out of the  breach of contract and the complaint is not maintainable in view of there being  no consumer dispute and the arbitration clause in the agreement of sale providing for arbitration. It is contended that the complaint is filed for recovery of money which is not a consumer dispute and that once the agreement is cancelled and account is settled there is no relationship between the parties.

 6.       The opposite parties submitted that on their application for conversion of agricultural land into non-agricultural land and FTL clearance, permission was granted for conversion of agricultural land into non-agricultural land on 14.04.2007 and FTL clearance was granted on 30.12.2006 and thereafter HUDA earmarked the land as agricultural zone and the opposite patties have filed application for change of use of the land as commercial use zone. The Municipal Administration and Urban Development (I) Department notified the land in survey number 384 as residential use zone. The project could not be commenced in view of proposed road under Master Plan, until realignment of the proposed road without affecting the land in survey number 384 is made. Realignment of the proposed road was approved on 03.04.2008 and the permission was accorded approving the building plan on 11.04.2008. The opposite parties have obtained NOC from the AP Fire Services Department on 15.12.2007 and permission was granted in respect of the building with height of 90.40 meters. The opposite parties obtained NOC from Airport Authority on 10.07.2009.

 7.       The opposite parties have submitted that HUDA accorded technical approval on 14.10.2009 for ground + 20 upper floors and release of building permission up to 29 floors is awaited. The opposite parties have taken all necessary steps to complete the project at the earliest and the project being massive and due to the reasons beyond the control of the opposite parties, the opposite parties could not complete the project within the time frame. The opposite parties informed the complainants about the delay in completion of the project due to delay in clearance from the authorities concerned.

 8.       The opposite parties submitted that the opposite parties agreed to pay Rs.3/- per sqft in terms of Clause VIII (g) of the Agreement for the delay caused in completing the project and adjust the amount towards dues payable by the complainants. The opposite parties completed some of the Towers and delivered them to the customers. Unexpected global recession, separate Telangana Agitation and the mass people strike affected the construction which is beyond the control of the opposite parties no.1 and 2.  The complainants not bearing with the opposite parties taking advantage of the situation opted to take back their amounts instead of the flats.

 9.       The complainants failed to pay balance sale consideration as per the terms of the Agreement. If the complainants cancel the agreement and take back their money, they will forego amount towards cancellation charges and to avoid the same, they approached this Commission.  The opposite parties had taken every care as to the benefit of their customers and incorporated clause in the Agreement as to their liability to pay damages @Rs.3/- per sq.ft. which would show their fairness and the complainants are not entitled to any money or compensation  and their claim is illegal.  The complainants are not entitled for refund of amount and interest thereon and any compensation and costs.  There is no deficiency of service on the part of the Opposite parties.  Hence prayed for dismissal of the complaint.

 10.     The Complainant(s) in the following CCs filed affidavit evidence and got marked the following documents.

CC No.19/2016 filed affidavit of Nitin Balwant Cholkar and documents, ExA1 to 10

CC No.26/2016 filed affidavit of Sanjeev Agarwal  and documents, Ex.A1 to A7

CC No.33/2016 filed affidavit of Bizu Sebastian and documents, Ex.A1 to A11

CC No.55/2016 filed affidavit of Sarraju Suryaprakash Madan Mohan and documents, Ex.A1 to A10

CC No.56/2016 filed affidavit of Mohanlal Tiwari and documents, Ex.A1 to A10

CC No.66/2016 filed affidavit of Sameer Patil and documents, Ex.A1 to A16

CC No.125/2016 filed affidavit of Venugopal Kompally & documents, Ex.A1 to A07

CC No.126/2016 filed affidavit of Harinarayana Rawalwar and documents, Ex.A1 to A10

CC No.169/2016 filed affidavit of Tarun Amardeep and documents, Ex.A1 to A10

CC No.184.2016 filed affidavit of Manish Mandhyan and documents, Ex.A1 to A12

 On behalf of the opposite parties, the Managing Director of the Opposite party no.1 by name Hari Challa filed his affidavit and no  documents were marked.

11.     The counsel for the Complainants and the Opposite parties had advanced their arguments reiterating the contents of the complaint and the written version in addition to filing written arguments by either of them.  Heard both sides.

 12.     The points for consideration are :

i)        Whether the complaint is maintainable in view of arbitration clause in the

            agreement of sale ?

 ii)       Whether the issue involved in the case is not a ‘consumer dispute’?

 iii)      Whether there is any deficiency in service on the part of the Opposite

            parties?

 iv)      To what relief ?

 13.     POINT NO.1 :  The Complainants entered into “Agreement of Sale” with the Opposite parties for purchase of flats as detailed supra, for the consideration thereof and paid the amounts shown therein, proposed to be constructed by the Opposite parties, which are not in dispute.  The agreements of sale were entered into between the Complainants and the Opposite parties in respect of the above stated flats as detailed in the table supra.  Thereafter, the Complainants paid the part consideration amount as per the pricing pattern of the flat issued by the Ops on various dates. The agreement of sale provides for reference to arbitration.  The learned counsel for the opposite parties have contended that in view of the arbitration clause in the agreement, the Complainants cannot maintain the complaint before this Commission. 

 14.     However, remedy provided under the provisions of Consumer Protection Act is an additional remedy and in the light of law laid in “National Seeds Corporation Ltd., Vs. M.Madhusudhan Reddy reported in (2012) 2 SCC 506 wherein the maintainability of the complaint before consumer forum prior to the complainants having exhausted the other remedy was considered as under:

 “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.”

 Thus, in view of the ratio laid in aforementioned decision, the consumer has two options, either to proceed for arbitration process or to invoke the provisions of the Consumer Protection Act.  As such, it cannot be said that the complaint is not maintainable before this Commission in view of the arbitration clause in the agreement.  For the above reasons, the Point No.1 is answered in favour of the Complainants and against the Opposite parties.

 15.     During  the arguments, counsel for Complainants reiterated the same facts as averred in the complaint besides stating that the Opposite parties ought to have acted in accordance with the provisions of the Andhra Pradesh (Promotion of Construction and Ownership) Act & Rules, 1987 while undertaking such agreements and hence pleading ‘force majeure’ does not arise.  They relied on Section 72 of Indian Contract Act and referred  Judgment of Hon’ble Apex Court in Brij Pal Sharma Vs. Ghaziabad Development Authority reported in III (2005) CPJ 43 (SC) and submitted that the Apex Court opined that grant of interest @ 18% P.A. by way of damages and compensation is justified.  He further relied on decision in Ghaziabad Development Authority Vs. Balbir Singh reported in II (2004) CPJ 12 wherein it is stated “in our view, irrespective of whether there was genuine reason to cancel or not, the monies must be returned with interest @ 18%.”  In the case of  Ghaziabad Development Authority versus Balbir Singh, the Hon’ble Supreme Court further observed that the interest shall be payable from the dates of deposit of the amounts till the date of repayment. 

 16.     On the other hand, the counsel for the Opposite parties submitted that as per agreement, if the Complainants want to cancel the booking of the flat, they shall forego 10% of the total flat cost as charges which is agreed by them and in that regard, relied on Judgment reported in 2009 (2) CPR 197 (NC) : II (2009) CPJ 276 (NC) in Punjab Urban Planning and Development Authority and another Vs. Shyam Sunder Tiwari and others, wherein, it is held that “courts cannot add anything or improve upon the terms of contract between the parties.”  The facts of the said case and facts of the case on hand are different.  In the said case, the Petitioner Authority withdrew the scheme and there was provision for refund of earnest money.  In the case on hand, there is no provision for forfeiture  of earnest money.  Admittedly, on failure to comply with terms and conditions of agreement by the Opposite parties, the Complainants sought for refund of the amount.  Hence, this Commission does not find any merit in the contention put forth by the learned counsel for Opposite parties.

 17.     POINTS No.2 & 3 : The Opposite parties 1 to 3 entered into Development Agreement with the land owners of the land admeasuring Ac.19.26 guntas in survey numbers 383, 385 and 426/A situate at Tellapur village of Ramachandrapuram mandal, Medak district and they agreed to deliver the residential flat to the Complainants in accordance with the terms and conditions agreed upon and consented thereto and as per specifications given therein.  The Development Agreement is not merely an agreement and in fact, it is “Development Agreement-cum-Power of Attorney”. 

 18.     In pursuance of the development agreement, the opposite parties have obtained permission for construction of the residential building on the land and admittedly there has been abnormal delay in completion of the project in so far as this complaint is concerned.  The opposite parties have attributed the reasons for  delay to the authorities concerned in granting permission and No Objection Certificate etc., as to the cause for delay in completion of the project.  The opposite parties would contend that the cause for delay is beyond their control which is ‘force majeure’. 

 19.     The force majeure clause in the Agreement of sale does not include within its ambit the delay caused in granting permission, NOC etc.,  The Opposite parties failed to explain how they could take shelter under the cover of “force majeure”. We may state that the delay caused in obtaining permission or NOC etc., cannot be considered as ‘force majeure’.  The opposite parties ought to have informed the complainants about the delay likely to be caused in obtaining the permission which they failed to.  For that matter, the Opposite parties cannot receive any sale consideration from any person in respect of any flat unless they have obtained permission from HUDA or HMDA. 

 20.     The complainants have submitted that owing to failure of the opposite parties in completing the construction of the subject flats, they opted for cancellation of the agreement of sale of flats and the opposite parties have contended that in order to maintain cordial relations with the complainants, they agreed to pay compensation in terms of the agreement which they entered into in normal course with other customers.  The complainants got issued a notice to the Opposite parties through their counsel setting forth series of events of delay and negligence and false promises made by the Opposite parties seeking for refund of the amount on the premise of inaction on the part of the opposite parties.

 21.     The opposite parties have promised to complete construction of the flat and hand over its possession to the complainant(s) within the stipulated time therein with a grace period of six/nine months as agreed and on their failure to perform their part of contract, the opposite parties have proposed to pay rents but failed to pay the same.  However, there is no communication from the side of the opposite parties in this regard and the opposite parties have not filed a piece of paper to show their readiness to pay compensation or  adjust the same towards the dues payable by the complainants.  Having received the part sale consideration amount, the Opposite parties kept with them without commencing the construction work of the building.

 22.     Not keeping-up promise to complete construction of the building and failure to deliver possession of the flat constitutes deficiency in service on the part of the opposite parties.  The complainants have two options left for recovery of the amount, either by filing suit in court of law or by way of filing complaint before State Consumer Disputes Redressal Commission in view of the amount claimed falling within the pecuniary jurisdiction of this commission.  The contention of the opposite parties that the complaint is not maintainable is not sustainable. 

 23.     The Opposite parties can only receive such amount of sale consideration which would be in accordance with the payment schedule and correspond to the stage of construction of the flats.  However, the Opposite parties had received the sale consideration in excess of what was to be received from the complainants particularly the construction of the building was not yet commenced.  Not keeping-up the promise to complete construction of the building and failure to deliver possession of the flat as also not keeping-up promise to refund the amount as per the terms of the repayment schedule constitutes deficiency in service on the part of the Opposite parties.

 24.     The learned counsel appearing for the complainant contended that the complainants paid substantial amounts towards the price of their respective flats agreed to be purchased and the agreements were entered into and the opposite parties agreed to deliver the flats in or about 2 or 2 ½  years from the date of agreement of sale, but, failed to keep up their obligations and postponed the matters  in spite of repeated demands made by the complainants.  Therefore, the complaints filed by the complainants  are within the limitation U/s. 24-A of the Consumer Protection Act and in support of his contention, he relied upon various judgments. The Hon’ble National Commission observed in Consumer Case No. 1443 of 2016  dated 04.06.2018 in the case of  Sameer Dewan Vs. M/s. Unitech Limited that as per the builder/buyer agreement , the opposite party had  promised to construct and deliver possession of the subject apartment to the complainant in consideration of paying agreed  consideration amount. The opposite party till date has not offered possession of the subject apartment to the complainant and also has not refused to deliver possession.  Thus, this is a clear case of continuing cause of action. In the cases on hand also, neither the builder completed the construction of flats nor offered to deliver possession of the same and thereby it can be held that the complaints filed by the complainants are within the limitation period. In the above referred judgement, the Hon’ble  National Commission was pleased to award interest @ 10% P.A. on the amount with effect from the dates of respective payments of instalments.

25.       The complainants claimed refund of amount paid together with interest besides claim for damages to the tune of Rs.5,00,000/- to 10,00,000/-.  The complainants cannot be said to have acquiesced to the delay in construction of the project.  Though the complainants have not disputed that the opposite parties have informed them about the cause for delay in obtaining permission and NOC etc., which does not disentitle them from claiming compensation.  The complainants are entitled to interest @ 10% p.a. on the amount with effect from the dates of respective payments of instalments till the date of realization. For the reasons stated supra, the Points No.2 and 3 are answered in favour of the Complainants and against the Opposite parties.

26.     POINT No.4 : In the above facts and circumstances, the points 1 to 4 are answered accordingly holding that the Opposite parties 1 to 3 are jointly and severally liable to pay the amounts to the Complainants.

  27.     (i) CC NO.19/2016  : In the result, the complaint is allowed directing the Opposite parties to pay an amount of Rs.27,16,115/- with interest @ 10% P.A. on the amount with effect from the dates of respective payments of instalments till the date of realization and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.6,000/-.  Time for compliance four weeks.

 (ii)      CC NO.26/2016 : In the result, the complaint is allowed directing the Opposite parties to pay an amount of Rs.28,49,578/- with interest @ 10% P.A. on the amount with effect from the dates of respective payments of instalments till the date of realization and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.6,000/-.  Time for compliance four weeks.

 (iii)     CC NO.33/2016 : In the result, the complaint is allowed directing the Opposite parties to pay an amount of Rs.24,47,103/- with interest @ 10% P.A. on the amount with effect from the dates of respective payments of instalments till the date of realization and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.6,000/-.  Time for compliance four weeks.

 (iv)     CC NO.55/2016 : In the result, the complaint is allowed directing the Opposite parties to pay an amount of Rs.24,75,000/- with interest @ 10% P.A. on the amount with effect from the dates of respective payments of instalments till the date of realization and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.6,000/-.  Time for compliance four weeks.

 (v)      CC NO.56/2016 : In the result, the complaint is allowed directing the Opposite parties to pay an amount of Rs.27,50,973/- with interest @ 10% P.A. on the amount with effect from the dates of respective payments of instalments till the date of realization and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.6,000/-.  Time for compliance four weeks.

 (vi)     CC NO.66/2016 : In the result, the complaint is allowed directing the Opposite parties to pay an amount of Rs.43,12,004/- with interest @ 10% P.A. on the amount with effect from the dates of respective payments of instalments till the date of realization and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.6,000/-.  Time for compliance four weeks.

 (vii)    CC NO.125/2016 : In the result, the complaint is allowed directing the Opposite parties to pay an amount of Rs.16,77,350/- with interest @ 10% P.A. on the amount with effect from the dates of respective payments of instalments till the date of realization and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.6,000/-.  Time for compliance four weeks.

 (viii)   CC NO.126/2016 : In the result, the complaint is allowed directing the Opposite parties to pay an amount of Rs.26,57,548/- with interest @ 10% P.A. on the amount with effect from the dates of respective payments of instalments till the date of realization and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.6,000/-.  Time for compliance four weeks.

 (ix)     CC NO.169/2016 : In the result, the complaint is allowed directing the Opposite parties to pay an amount of Rs.19,56,370/- with interest @ 10% P.A. on the amount with effect from the dates of respective payments of instalments till the date of realization and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.6,000/-.  Time for compliance four weeks.

 (x)      CC NO.184/2016 : In the result, the complaint is allowed directing the Opposite parties to pay an amount of Rs.24,81,406/-with interest @ 10% P.A. on the amount with effect from the dates of respective payments of instalments till the date of realization and a sum of Rs.1,00,000/- towards compensation together with costs of Rs.6,000/-.  Time for compliance four weeks.

PRESIDENT           MEMBER

Dated : 06.09.2018

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

C.C. NO. 19 OF 2016

For Complainants :

 Ex.A1   is Photostat copy of the Agreement of Sale, dated 06.03.2010

Ex.A2   is Photostat copy of the receipt DT.19.01.2008

Ex.A3   is Photostat copy of the receipt 13.12.2006.

Ex.A4   is Photostat copy of receipt dated 15.04.2010

Ex.A5   is Photostat copy of Bank sanction letter dated 31.03.2010

 Ex.A6   is Photostat copy of the statement of account dated 30.12.2014

Ex.A7   is Photostat copy of latest offer documents made available to the public by the 1^st Op

Ex.A8   is Photostat copy of the legal notice served on the Ops dt.22.8.2015

Ex.A9   is the Photostat copy of letter of incorporation dt. 21.3.2006

Ex.A.10 is Photostat copy of the Form-32 obtained from the Registrar of Companies, in respect of the OP No.1 company.

 C.C. NO. 26 OF 2016

For Complainants :

 Ex.A1   is Photostat copy of the Agreement of Sale, dated 08.07.2009

Ex.A2   is Photostat copy of the letter/receipt DT.03.03.2010

Ex.A3   is Photostat copy of latest offer documents made available to the public by the 1^st Op

Ex.A4   is office copy of the legal notice served on the Ops dt.05.01.2016

Ex.A5  Registered postal receipts and returning cover

Ex.A6  copy of letter of incorporation dt. 21.3.2006.

Ex.A7  Form no. 32 dt. 21.3.2006.

C.C. NO. 33 OF 2016

For Complainants :

 Ex.A1   is Photostat copy of the Agreement of Sale, dated 16.10.2012

Ex.A2   is Photostat copy of the receipt dt. 29.09.2012

Ex.A3 is the coy of receipt dt. 13.10.2012.

Ex.A4  is the copy of receipt dt.20.10.2012.

Ex.A5 is the copy of receipt dt. 29.11.2012

Ex.A6 copy of statement of account dt. 05.04.2014

Ex.A7 is the    is Photostat copy of latest offer documents made available to the public by the 1^st Op

Ex.A8   is office copy of the legal notice served on the Ops dt.31.01.2015.

Ex.A9  is the Registered postal receipts and returning cover and acknowledgement cards

Ex.A10  is the copy of letter of incorporation dt. 21.3.2006.

Ex.A11 is the copy of             Form  no. 32.

C.C. NO. 55 OF 2016

For Complainants :

 Ex.A1   is Photostat copy of the Agreement of Sale, dated 30.01.2012

Ex.A2   is Photostat copy of the receipt dt. 05.01.2012

Ex.A3 is the coy of receipt dt. 29.03.2012

Ex.A4  is the copy of receipt dt.19.04.2012

Ex.A5  is copy of home loan statement of account dt. 12.02.2015.

Ex.A6 is the    is Photostat copy of latest offer documents made available to the public by the 1^st Op

Ex.A7   is office copy of the legal notice served on the Ops dt.18.01.2016

Ex.A8  is the copies of Registered postal receipts and returning cover and acknowledgement cards

Ex.A9  is the copy of letter of incorporation dt. 21.3.2006.

Ex.A10 is the copy of             Form  no. 32.

C.C. NO. 56 OF 2016

For Complainants :

 Ex.A1   is Photostat copy of the Agreement of Sale, dated 02.09.2009

Ex.A2   is Photostat copy of the receipt dt. 22.08.2009

Ex.A3 is the coy of receipt dt. 28.11.2009.

Ex.A4  is the copy of receipt dt.25.02.2010

Ex.A5  is copy of home loan sanction letter  dt. 25.02.2010

Ex.A6 is the    is Photostat copy of latest offer documents made available to the public by the 1^st Op

Ex.A7   is office copy of the legal notice served on the Ops dt.27.08.2014

Ex.A8  is the copies of Registered postal receipts and acknowledgement cards

Ex.A9  is the copy of letter of incorporation dt. 21.3.2006.

Ex.A10 is the copy of             Form  no. 32 dt.21.3.2006.

C.C. NO. 66 OF 2016

For Complainants :

 Ex.A1   is Photostat copy of the Agreement of Sale, dated 18.01.2012

Ex.A2   is Photostat copy of the receipt dt. 12.01.2012

Ex.A3 is the copy of receipt dt. 11.01.2012

Ex.A4  is the copy of receipt dt.21.01.2012

Ex.A5 is the copy of receipt dt. 12.01.2012

Ex.A6 is the copy of receipt dt. 01.08.2012.

Ex.A7 is the copy of receipt dt. 09.02.2012.

Ex.A8 is the copy of receipt dt. 23.05.2012

Ex.A9 is the copy of receipt dt. 06.09.2012.

Ex.A10 is the copy of home loan sanction letter dt. 20.01.2012.

Ex.A11 is the copy of home loan statement dt. 20.07.2015

Ex.A12  is the    is Photostat copy of latest offer documents made available to the public by the 1^st Op

Ex.A13   is office copy of the legal notice served on the Ops dt.17.03.2016

Ex.A14 is the copies of Registered postal receipts and acknowledgement cards

Ex.A15  is the copy of letter of incorporation dt. 21.3.2006.

Ex.A16 is the copy of             Form  no. 32 dt.21.3.2006.

C.C. NO. 125 OF 2016

For Complainants :

 Ex.A1   is Photostat copy of the Agreement of Sale, dated 04.10.2009

Ex.A2   is Photostat copy of home loan statement of account  dt.03.05.2010

Ex.A3  is the    is Photostat copy of latest offer documents made available to the public by the 1^st Op

Ex.A4   is office copy of the legal notice served on the Ops dt.02.07.2016

Ex.A5 is the copies of Registered postal receipts and acknowledgement cards and return cover

Ex.A6  is the copy of letter of incorporation dt. 21.3.2006.

Ex.A7 is the copy of   Form  no. 32 dt.21.3.2006.

 C.C. NO. 126 OF 2016

For Complainants :

 Ex.A1   is Photostat copy of the Agreement of Sale, dated 21.10.2009.

Ex.A2 is the copy of receipt dt. 6.2.2010.

Ex.A3 is the copy of receipt dt. 21.09.2009.

Ex.A4 is the copy of letter

Ex.A5  is the  is Photostat copy of home loan statement of account  dt.28.06.2010

Ex.A6  is the  Photostat copy of latest offer documents made available to the public by the 1^st Op

Ex.A7   is office copy of the legal notice served on the Ops dt.02.07.2016

Ex.A8 is the copies of Registered postal receipts and acknowledgement cards and return cover

Ex.A9  is the copy of letter of incorporation dt. 21.3.2006.

Ex.A10 is the copy of             Form  no. 32 dt.21.3.2006.

 C.C. NO.169  OF 2016

For Complainants :

 Ex.A1   is Photostat copy of the Agreement of Sale, dated 24.10.2010.

Ex.A2 is the copy of receipt dt. 10.10.2010

Ex.A3 is the copy of receipt dt. 08.11.2010

Ex.A4 is the copy of receipt dt. 02.02.2011

Ex.A5 is the copy of receipt dt.28.04.2011.

Ex.A6  is  the  Photostat copy of latest offer documents made available to the public by the 1^st Op

Ex.A7   is office copy of the legal notice served on the Ops dt.26.07.2016

Ex.A8 is the copies of Registered postal receipts and acknowledgement cards and returned cover

Ex.A9  is the copy of letter of incorporation dt. 21.3.2006.

Ex.A10 is the copy of             Form  no. 32 dt.21.3.2006.

C.C. NO.184 OF 2016

For Complainants :

 Ex.A1   is Photostat copy of the Agreement of Sale, dated 31.07.2009

Ex.A2 is the copy of receipt dt. 30.06.2009

Ex.A3 is the copy of receipt dt. 01.08.2009

Ex.A4 is the copy of receipt dt. 31.08.2009

Ex.A5 is the copy of receipt dt.30.09.3009

Ex.A6 is the copy of receipt dt. 24.10.2009.

Ex.A7 is the copy of home loan statement of account dt. 12.01.2010.

Ex.A8   is  the  Photostat copy of latest offer documents made available to the public by the 1^st Op

Ex.A9  is office copy of the legal notice served on the Ops dt.23.06.2016

Ex.A10 is the copies of Registered postal receipts and acknowledgement cards and returned cover

Ex.A11  is the copy of letter of incorporation dt. 21.3.2006.

Ex.A12 is the copy of             Form  no. 32 dt.21.3.2006.

PRESIDENT           MEMBER

Dated : 06.09.2018