BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD.
C.C.No.197/2013
Between:
Akshay Kumar S/o.Sh.Vijai Kumar
Aged about 38 years, Occ: Scientist,
Residing at 304, Plot Number 28-29
Brundhavan Apartment, Geethanagar,
Old Safilguda, Hyderabad. Complainant
And
- M/s Aliens Developers Private Limited,
A company registered under Indian
Companies Act, 1956,
Rep. by its Managing Director & Joint
Managing Director, Mr.Hari challa
S/o.C.V.R.Chowdary &
Mr.C.Venkatprasanna S/o.Mr.C.V.R.Chowdary
Respectively, office at Flat No.910, Teja
Block, My Home Navadweep Apartments
Madhapur, Hi-tech City, Hyderabad-500 081.
- Mr.Hari challa, S/o.Mr.C.V.R.Chowdary
Managing Director
M/s Aliens Developers Private Limited,
Regd. Office at Flat No.910, Teja
Block, My Home Navadweep Apartments
Madhapur, Near Hi-tech city Hyderabad-500 081.
- Mr. C.Venkata Prasanna S/o.C.V.R.Chowdary
Joint Managing Director
M/s Aliens Developers Private Limited,
office at Flat No.910, Teja
Block, My Home Navadweep Apartments
Madhapur, Near Hi-tech city Hyderabad-500 081. .Opposite parties.
For the complainant: Mr.Akshay Kumar, Party in person.
Counsel for the opposite parties :M/s A.Krishnam Raju.
QUORUM: HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA, PRESIDENT.
AND
SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER.
WEDNESDAY, THE EIGHTEENTH DAY OF JUNE,
TWO THOUSAND FOURTEEN
Oral Order (As per Hon’ble Sri Justice GopalaKrishna Tamada, President)
***
This complaint is filed U/s.17 of Consumer Protection Act, 1986 for a direction to the opposite parties to refund an amount of Rs.25,00,000/- with interest at 18% p.a. from the respective dates of payment till the date of realization together with compensation of Rs.5,00,000/- towards mental agony and costs of Rs.10,000/-.
The case of the complainant is that he along with his wife, Mrs.Shalini Sardana attracted by the publicity made by the opposite parties approached the opposite parties and booked a flat bearing No.816 in 8th floor Station-3 admeasuring 1874 sq. ft. in the ‘Space Station’ for a total consideration of Rs.52,34,250/- including the amenities. The complainant paid an amount of Rs.2,50,000/- by way of cheque drawn on Punjab National Bank and the opposite parties issued Customer information sheet clearly mentioning the details of allotment of the above said flat with payment schedule duly signed by them to the complainant. An agreement of sale was executed on 05-3-2011 and in pursuance of the said agreement, the complainant paid a sum of Rs.25,00,000/- on the following dates:
S.No. Amount Deposited Payment mode Date of payment
1. 2,50,000/- By cheque PNB Barnala No.40147314 dt.14-2-2011
2. 2,50,000/- By cheque PNB Barnala No.401474 dt.30-3-2011
3. 2,50,000/- By cheque PNB Barnala No.401475 dt.30-3-2011
4. 2,50,000/- By cheque ICICI Banjara Hillls 250186 30-3-2011
5. 15,00,000 By loan transfer SBI RACPC 27-4-2011
The complainant submitted that at the time of purchase of the flat, the opposite parties promised that the flat would be completed and possession of the flat will be delivered by August, 2012 which includes the grace period of 9 months and on failure to complete the said flat within the said period, Rs.3/- per sq.ft. shall be paid as penalty to the customer and as per the promise the opposite parties ought to have handed over the flat No.816 on or before August, 2012. The complainant submitted that though the opposite parties received an amount of Rs.25,00,000/- they did not even take up the construction work of the tower in which the flat of the complainant was allotted and there was no progress at all and are unilaterally going on changing the possession dates from August 2012 to September, 2014 and one more time to indefinite. The opposite parties without disclosing the building plans or progress of the project assured the complainant that the flat would be completed on or before August, 2012 and the complainant submitted that he is paying about Rs.37,000/- as EMI to the bank and in view of non completion of the flat by the opposite parties, he is compelled to live in a rented house by paying a monthly rent of Rs.9,450/-. The complainant submitted that he sent emails to the opposite parties number of times and also a personal notice which they refused to accept. Hence the complaint.
Opposite parties filed written version contending that the complainant filed the complaint to gain out of 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.
The opposite parties have submitted an application for conversion of agricultural land into non-agricultural land on 23.10.2006 and FTL clearance was granted on 30.12.2006. Permission was granted on 14.04.2007 for conversion of agricultural land into non-agricultural land and thereafter HUDA earmarked the land as agricultural zone and the opposite parties 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 3.04.2008 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 subsequently it was reduced from 91.40 meters to 90.40 meters. The opposite parties obtained NOC from Airport Authority on 10.07.2009.
The opposite parties have submitted that HUDA accorded technical approval on 14.10.2009 for ground +20 upper floors and release of building permission upto 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, they could not complete the project within the time frame. The opposite parties informed the complainant about the delay in completion of the project due to delay in clearance from the authorities concerned. In view of arbitration clause the complaint is not maintainable before this Commission.
The opposite parties submit that they agreed to pay Rs.3/- per sq ft per month to maintain the goodwill and that too after payment of dues payable by the complainants in terms of Clause VIII(g) of the Agreement and the project was delayed due to reasons beyond its control. The opposite parties submit that the progress of construction is based on various factors and stated that the opposite parties are committed to the project and taking all necessary steps to complete the entire project at the earliest and the delay was caused due to circumstances beyond their control which fall under ‘force majure’ clause XIV of Agreement dt.28-10-2010 and therefore the said delay cannot be construed as deficiency of service and submitted that the complainant is not entitled for refund of Rs.25,00,000/- or any interest, compensation or costs and prayed to dismiss the complaint.
The complainant filed his affidavit and marked Exs.A1 to A16. The Managing Director of the opposite party filed his affidavit in support of their case.
The complainant and the learned counsel for the opposite party filed written arguments.
Heard.
The points for consideration are:
- Whether the compliant is maintainable in view of arbitration clause in the agreement of sale?
- Whether the complaint is not a consumer dispute?
- Whether there is any deficiency in service on the part of the opposite parties ?
- To what relief?
The facts not in dispute are that the complainant entered into an “Agreement for Sale”, Ex.A3 with the opposite parties on 05-3.2011 for purchase of Flat bearing No.816, 8th floor Station -3 admeasuring 1874 sq ft. for a total sale consideration of Rs.52,34,250/- including the amenities and paid an advance of Rs.2,50,000/- as advance and thereafter paid a sum totalling to Rs.25,00,000/- on different dates. It is the case of the complainant at the time of purchase of the flat that the opposite parties promised that the flat would be completed and possession would be delivered by August, 2012 and on failure to complete within the said period, they promised to pay Rs.3/- per sq. ft. per month as penalty. The complainant submitted that as per the promise, the opposite parties ought to have handed over the flat No.816 by August, 2012 and even though they received an amount of Rs.25,00,000/-, they did not take up the construction work of the tower in which his flat was allotted which amounts to deficiency in service and unfair trade practice and that he is paying about Rs.37,000/- as EMI to the bank for the flat and also living in a rented house and paying Rs.9,450/- as rent. He submitted that he had sent several emails i.e. Exs.A7 and A9 and also got issued Ex.A10 and A13 notices, and as there was no response, he prayed for refund of the amount paid together with compensation and costs.
The learned counsel for the opposite parties submitted that the complainant does not come within the meaning of ‘consumer’ and his remedy is elsewhere but not before this Commission and as there is a clause of arbitration, this Commission has no jurisdiction to entertain the complaint. It is his further submission that interest @ 18% p.a. and compensation claimed by the complainant are on the higher side.
The agreement of sale provides reference to arbitration. The learned counsel for the opposite parties have contended that in view of the arbitration clause in the agreement, the complainant cannot maintain the complaint before this Commission. In terms of the agreement of sale, the dispute has to be decided by means of arbitration. 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 complainant 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.”
The complainant has submitted that owing to failure of the opposite parties in taking up the construction of the Flat No.816 which amounts to deficiency in service, he opted for refund of the amount paid. As the complainant is not asking for any declaration or specific performance of contract etc., and his very prayer as per the complaint is for refund of the money, he has parted with, we are of the view that this complaint is maintainable and this is a consumer dispute.
The opposite parties further contended that as per the agreement para VIII (g) of the complaint, it is agreed between the parties that for any delay in delivering the possession, the opposite party shall pay compensation charges of Rs.3/- per sq. ft. per month that too after payment of dues payable by the complainant. The learned counsel for the opposite parties, Mr.Krishnam Raju contend that the cancellation of the agreement of sale depends on the terms and conditions and made a reference to the judgement of the Hon’ble National Commission reported in 2009(2) CPR 197 (NC) wherein it was held that ‘the courts cannot add anything or improve upon the terms of the contract between the parties’ and stated that the said principle is applicable to the present case. Except merely stating as above, the learned counsel has neither placed the said judgement before us nor demonstrated as to how the said judgement is applicable to the case on hand. What is to be inferred from the judgement is that the courts can neither add nor improve beyond the terms of the contract between the parties and such a view cannot be disputed. As the said judgement is not demonstrated before us, we are unable to take any clue from the said judgement and accordingly the same is rejected. The opposite parties contended that they are ready to refund the amount to the complainant according to the terms and conditions i.e. after deducting 20% of the amount out of the amount received.
Apparently the complainant parted with an amount of Rs.25,00,000/- and the last payment was made on 27-4-2011. From a perusal of the documents which are marked as Exs.A2, A4 to A6, there is no dispute with regard to the payment and the harassment faced by the complainant due to failure of taking up the construction of the flat. The first payment was made on 14-2-2011 with a fond hope that they could live in the flat comfortably by the year 2012. Their dreams were shattered and in those circumstances, they opted for refund of the amount paid. As could be seen from the notice, the complainant sought for refund of the amount as the opposite parties have not yet started construction and on the other hand the opposite party admitted that the delay in construction is due to reasons beyond their control and offering Rs.3/- per sq. ft. after payment of entire amount is definitely unfair trade practice. As the opposite parties after having received an amount of Rs.25,00,000/- have not yet started construction and relying on the clauses mentioned in the agreement and also are raising untenable pleas that unregistered documents cannot be looked into amounts to unfair trade practice as the opposite parties are enjoying the hard earned money parted by the complainant and at the same time the complainant is repaying the loan to the Bank and in those circumstances, we are of the view that the complainant is entitled for refund of the entire amount paid with interest at 12% p.a. from the date of last payment which was made on 27-4-2011 till the date of realization together with costs of Rs.10,000/-.
Accordingly this complaint is allowed in part and the opposite parties are directed to refund the amount of Rs.25,00,000/- with interest at 12% p.a. from the date of last payment i.e. 27-4-2011 till the date of realization together with costs of Rs.10,000/- to be paid within a period of four weeks from the date of receipt of this order.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.18-6-2014.
//APPENDIX OF EVIDENCE//
WITNESSES EXAMINED
For complainants: For Opp.parties:
Affidavit of the complainant filed. Managing Director of OP.1
filed his affidavit.
Exhibits marked on behalf of the complainants:
Ex. A1:Customer information sheet with customer ID No.179075.
Ex.A2-Receipt dt. 13-2-2011 issued by the opposite party for rs.2,50,000/-
Ex.A3-Agreement of sale executed by the opposite parties in favour of the complainant
Dated 05-3-2011.
Ex.A4-Receipt dt.30-3-32011 for Rs.7,50,000/-.
Ex.A5-Electronic clearing service (Debit clearing dt.26-4-2011 given by the
complainant to the Bank officials.
Ex.A6-Receipt dt.28-4-2011 issued by the opposite parties for Rs.15,00,000/-.
Ex.A7-Email addressed by the complainant to opposite party dt.20-3-2012.
Ex.A8-Email letter dt.10-5-2012 received from customer care of opposite party.
Ex.A9-Email letter addressed by the complainant to the customer care of OP
dt.08-8-2012.
Ex.A10-Personal notices sent by the complainant to the MD and Manager of OP
Dt.18-1-2013.
Ex.A11-Email letter dt.28-1-2013 received from OP
Ex.A12-B-monthly site update Feb-March, 2013 issued by OP dt.26-4-2013.
Ex.A13-Notice dt.17-8-2013 issued by the complainant to MD and Joint MD of OP
Ex.A14-Email letter showing payment of rent of Rs.9,450/-.
Ex.A15-Certificate of incorporation of the opposite prties.
Ex.A16-Memo.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.18-6-2014.
