BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
C.C.No.78/2012
Between:
Dr. Akella Satya Vijay Sarma,
S/o.late A.S.R.Murthy,
Aged about 59 years, Indian,
Occ:Medical Practitioner,
R/o.H.No.1-8-7/8, Sarvodaya Colony,
Chikkadapally,
Hyderabad – 500 020. …Complainant
And
1.M/s. Modi Developers,
Door No.5-4-187/3 & 4,
3rd Floor, Soham Mansion,
M.G.Road, Secunderabad,
Rep. by its Managing Partner,
Sri Sourabh Modi.
2. Sri Sourabh Modi, S/o.Satish Modi,
Indian, aged about 40 years, Occ:Business,
R/o.Plot No.280, Road No.25, Jubilee Hills,
Hyderabad – 500 034. …Opp.parties.
Counsel for the Complainant : M/s.V.Gowrisankar Rao
Counsel for the Opp.parties : M/s. C. Bala Gopal
QUORUM:SRI R.LAKSHMI NARASIMHA RAO, HON’BLE MEMBER
SRI T.ASHOK KUMAR, HON’BLE MEMBER,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
THURSDAY,THE SIXTH DAY OF FEBRUARY,
TWO THOUSAND FOURTEEN.
Oral Order: (Per Sri S.Bhujanga Rao, Hon’ble Member)
***
This is a Consumer Complaint filed by the complainant u/s.17(1)(a)(i) of the Consumer Protection Act, 1986, alleging deficiency in service on the part of the opposite party.
The brief case of the complainant as set out in the complaint is that the opposite party no.1 is a partnership firm engaged in housing construction activity and the opposite party no.2 is the Managing Partner of opposite party no.1. During April/May 2006, the opp.parties gave wide publicity and issued colourful brochure representing the general public that they were constructing the ultra luxury residential complex under the name & style of “ PALM SPRINGS’ over an extent of Ac.1.67 at Sy.Nos.143,144, 145 part in Kompally Village, Qutbullapur Mandal, R.R.Dist. In brochure, the opp.parties represented that they will provide landscaped gardens, children play ground, swimming pool with Jacuzzi, cement concrete roads and lighting, etc.
The complainant being induced by the representations made by the opp.parties, he intended to purchase a flat in Palm Springs Apartments and visited the opposite parties and they offered to sell a flat no.505 admeasuring 1850 sft. for Rs. 24,00,000/- and further stated that the complainant has to pay Rs.50,000/- towards club membership, Rs.30,000/- towards landscaping & amenities, Rs.35,000/- towards water charges, Rs.50,000/- towards electricity (generator), Rs.1.50,000/- towards duel parking( 2 car parking places) and the total cost of the flat was fixed at Rs.27,15,000/- inclusive of amenities and it was also represented that the complainant has to bear the registration charges, VAT and service tax. The complainant submitted Booking Form on 15.05.2006 to the opp.parties and paid Rs.3 lakhs vide receipt no.404 dt.10.05.2006 and Rs.3 lakhs vide receipt dt.15.05.2006 towards booking amount. The complainant paid an amount of Rs.23,90,000/- by way of cheques by 25.5.2006. Though the opposite parties assured to execute proper agreement of sale within 30 days of the booking of the flat, they did not execute proper agreement of sale in favour of the complainant. On repeated demands made by the complainant, for execution of agreement of sale, they executed an agreement of sale in favour of the complainant for semi finished flat no.505 in 5th floor admeasuring 1500 sft. of built up area and 330 sft. of common area along with undivided share of land of 73.2 sq.yds. car parking space nos.15a &15b.
As per Clause 15 of the agreement of sale, the opp.parties have undertaken to deliver the possession of the flat on or before 31.12.2006 with a grace period of 6 more months and thus the opposite parties must complete and hand over the flat on or before 30.6.2007 duly completing in all respects. Though the complainant paid Rs.23,90,000/- by 25.05.2006 , there were several pending works and there was no proper development and further the opp.parties are demanding to pay registration charges, modification charges, property tax , VAT and service tax and according to the opp.parties, the complainant has to pay Rs.29,73,385/- in total. Later on, the complainant paid Rs.2,50,000/- vide receipt no.087 dt.25.06.2009. Thus by 25.06.2009 , the complainant paid Rs.26,40,000/- to the opposite parties. The opp.parties are still demanding the complainant to pay balance amount of Rs. 5,93,385/- including registration cost, property tax, VAT and service tax.
On 24.03.2009 the complainant brought to the notice of Maintenance Department of the opp.parties about the rectification of 10 internal pending works and one Mr.Rakesh of the Maintenance Department of the opposite parties gave an acknowledgement that the said complaints would be rectified at the earliest. But, when the complainant visited his flat on 26.04.2009, he found that there were some more defects. The complainant submitted a representation pointing out 7 works to be rectified/repaired. The new representative of the Maintenance Department of the opposite parties Mr.KSR Prasad acknowledged the said representation, but the opposite parties failed to carry out the repairs/rectifications.
Without rectifying the repairs , the opposite parties issued legal notice dt.09.03.2009 demanding to pay Rs.3,25,000/- towards registration charges, service tax, VAT etc. When the complainant personally visited the opp.parties and demanded to complete the pending works and also expressed his readiness to get the flat registered, the opposite parties assured to rectify the defects. Surprisingly, the opp.parties issued another legal ntoice dt.14.04.2011 demanding to pay Rs.2,19,060/- towards the balance dues of the flat, Rs.5,44,268/- towards accumulated interest, Rs.1,80,000/- towards holding charges from the date of assessment of property tax and maintenance charges of Rs.49,410/-.
On 29.09.2011 the complainant got issued a reply legal notice to the opp.parties pointing that there were several defects in the flat and called upon them to rectify and complete all the works, else the complainant will be constrained to demand for refund of the amount paid by him. On 16.01.2012 the complainant got issued another reply legal notice specifically pointing out that in two car parking spaces allotted to him, there was no sufficient space to park two cars comfortably and it was also pointed out that the opp.parties illegally constructed structures in the right corner of the common passage obstructing the free movement of fire safety vehicle. In the said reply legal notice, the complainant demanded the opp.parties to refund Rs.27,15,000/- along with interest and rental loss at Rs.10,000/- p.a. from January, 2007. The opposite parties got issued a reply legal notice on 17.03.2012 demanding the complainant to pay Rs.9,92,738/-and to take possession of the flat.
Due to abnormal delay on the part of the opp.parties, in completing and handing over the possession of flat, according to schedule date, the complainant is suffering huge loss of interest on Rs.26,40,000/- and also rental loss. The demand of the opposite parties to pay stamp duty and registration charges, service tax, VAT etc. even before registration amounts to unfair trade practice. The said amounts are payable by the complainant at the time of registration. Even without handing over the flat, the opp.parties cannot demand the complainant to pay maintenance charges. The question of payment of property tax without registration of sale deed and possession of the flat does not arise. The action of the opp.parties in failing to complete the flat in all respects, failing to handover the possession of the flat as per the schedule time, failure to refund the amount not only amounts to deficiency in service but also amounts to unfair trade practice. Hence, the complainant filed the complaint seeking direction to the opposite parties to complete all the pending works and handover the possession of Flat No.505 admeasuring 1830 sft. along with undivided share of land of 73.2 sq.yds. and adequate car parking space nos.15a & 15b in Pam Springs Apartment duly executing registered sale deed, or in the alternative, to refund Rs.26,40,000/- along with interest at 18% p.a. from the respective dates of payment till the date of realisation, to pay compensation of Rs.2 lakhs and to pay costs of Rs.25,000/-.
Resisting the complaint, the opposite parties filed written version denying the material allegations made in the compliant and contended that the complainant himself has approached the opposite parties and decided to buy the flat only after the balanced decision taken by him and he selected flat no.505 admeasuring 1855 sq.ft. The opposite parties admitted about execution of agreement of sale, but denied that the same was exeucted only on persuasion by the complainant. The opp.parties admitted Clause 15 of the Agreement of Sale, which stipulates the delivery of the flat by the opposite parties and contended that the complainant has to pay the instalment as per Clause 4 of the agreement of sale and the complainant has failed to keep his part of the contract. The opposite parties do not arrange for bank loans, but only try to informally guide the customers in obtaining the bank loans. The payments which the complainant listed out in para no.7 of the complaint are all have to be paid by the complainant only and the same was informed to him, at the time of booking of the flat. While admitting that the final instalment amount of Rs.1,20,000/- has to be paid on completion/handing over the possession of the flat, the opposite parties contended that the said flat is completed by all means and because of the non payment of dues by the complainant, the possession was not given to the complainant.
Regarding the defects in construction mentioned in para 9 of the complaint, the opposite parties submitted that the defects which are being pointed out by the complainant are of minor in nature and will occur commonly to any construction, which have been rectified by the opposite parties, two years ago. The complainant deliberately pointing out all this sort of minor issues, which shows the litigant attitude of the complainant. The opposite parties always promptly attend and rectify any issues of its customers.
These opp.parties further contended that there is no illegally constructed structure in the common passage, obstructing the free movement of the vehicles and all the other claims made by the complainant are false. They further contended that there are many other occupants in the project and are very much satisfied with the opposite parties and no other occupant has raised any objection with regard to the car parking area or other amenities, which clearly shows the litigant attitude of the complainant to avoid the payments to the opposite parties and to grab the property unlawfully. The Occupancy Certificate issued by the authorities, after due inspection of the site, as such, the allegation made by the complainant that the opp.parties made illegal construction etc. is false and baseless. There is no unfair trade practice by the opp.parties. The registration and other charges are paid to the Government on behalf of the complainant by the opposite parties, as otherwise, the complainant has to run around and it is only added service i.e. given by the opposite parties. As such, there is no deficiency in service by the opposite party.
The opposite parties further contended that the flats are assessed for the property tax, once the construction is completed and the complainant is liable to pay the same. The opposite parties further contended that the building was completed long back. There are many occupants staying in the said project since three years and are very much satisfied with the opposite parties and the property tax also assessed in their names. Out of 55 flats, 54 owners have taken possession three years ago and are satisfied and living comfortably in the said project. The complainant, inspite of completion of the said flat and repeated reminders, did not choose to pay the balance dues and come forward to take possession of the flat. Having vexed up with the attitude of the complainant, the opposite parties filed a suit for recovery of money against the complainant, on the file of the 3rd Sr.Civil Judge, City Civil Court, Secunderabad, which is pending adjudication. The complainant with malafide intention, to avoid legitimate dues, to the opposite parties had filed the complaint, suppressing the facts and approached this Commission with unclean hands as counterblast to the recovery suit filed by the opp.parties. The opp.parties are ready to handover the possession of the flat, subject to the payment of dues by the complainant. Therefore, the complaint may be dismissed with exemplary costs to these opposite parties.
During the course of enquiry, in order to prove his case, the complainant filed his evidence affidavit and got marked Exs.A1 to A13. On behalf of the opposite parties, the opposite party no.2 Sourabh Modi, Managing Partner of opp.party no.1 Firm filed the evidence affidavit and Exs.B1 to B7.
We heard the counsel for both the parties and perused the entire material placed before us.
Now the points that arise for consideration are:
1). Whether there is deficiency in service on the part of the opposite parties?
2).Whether the complainant is entitled to the reliefs sought for in the complaint?
3). To what relief?
Point No.1:
It is not in dispute that the complainant selected flat no.505 admeasuring 1855 sq.ft. as is evident from Ex.A1 Booking Form. It is also an admitted fact that the opp.parties executed the original of Ex.A2 Agreement of Sale, in favour of the complainant, with regard to the semi finished apartment no.505, in the 5th floor admeasuring 1500 sft. of built area , and 330 sft. of common area with proportionate share of undivided share of land, to the extent of 73.2 sq. yards and reserved the car parking space no.15a & 15b forming part of the group of residential apartments collectively named as ‘Palm Springs’ for a total consideration of Rs.27,15,000/-.
The opposite parties have admitted execution of Ex.A2 in favour of the complainant. They have not disputed the terms and conditions of Ex.A2 Agreement of Sale. It is categorically mentioned in Ex.A2 that the complainant paid booking amount of Rs.25,000/-, confirmation amount of Rs.50,000/- and part payment amount of Rs.18,40,000/-. It was further mentioned in Ex.A2 that the 1st instalment of Rs.4,80,000/- was to be paid immediately (60%), the 2nd instalment of Rs.2 lakh was to be paid on completion of the brick work (25%) and the balance final instalment(15%) of Rs. 1,20,000/- was to be paid on completion of the flat and handing over the possession of the flat.
As per Clause no.15 of Ex.A2 Agreement of Sale, the opposite parties have undertaken to deliver the possession of the flat on or before 31.12.2006 with a grace period of six months. Thus the opposite parties must complete and handover the flat on or before 30.06.2007, duly completing in all respects.
It is the case of the complainant that he paid Rs.23,90,000/- by 25.05.2006 as against the actual cost of the flat of Rs.27,15,000/-. There were several pending internal and external works. The opposite parties demanding the complainant to pay the registration charges of Rs.1,14,325/- (approx.), modification charges of Rs.4,500/-, property tax of Rs.2000/-, VAT of Rs.28,960/-( approx.) and Rs.1,08,600/- towards the service tax. Thus, according to the opposite parties, the complainant has to pay Rs.29,73,385/- in total. Later on the complainant paid Rs.2,50,000/- vide receipt no.087 dt. 25.6.2009. Thus, by 25.06.2009, the complainant paid Rs.26,40,000/- to the opposite party. The opposite parties are still demanding the complainant to pay balance amount of Rs.5,93,385/-, including the registration costs, property tax , VAT and service tax.
The opposite parties have not denied the above case of the complainant. The opposite parties have also admitted the payment of Rs.26,40,000/- by 25.06.2009. It is an admitted fact that the opposite parties filed a suit against the complainant on the file of the 3rd Sr.Civil Judge, City Civil Court, Secunderabad, for recovery of the money, alleged to have been due by the complainant. Admittedly the said suit is not yet disposed of, it is pending trial.
In para 9 of the complaint, the complainant mentioned the defective works committed, during the construction of the flat. The opposite parties in their written version, as well as in the evidence affidavit filed on their behalf, while admitting the defects, have stated that the defects which have been pointed out by the complainant in para 9 of the complaint are of minor in nature and will occur commonly, to any construction and which has been rectified by the opposite parties two years ago. In their written arguments in the middle of the page 2, the opposite parties have submitted that the defects which have been pointed out by the complainant are of minor nature and can easily be rectified by the opposite party, before handing over the possession of the apartment. From this submission, it is evident that the opposite parties have not rectified the defects, pointed out by the complainant in his complaint. Even though the complainant parted with huge amount of Rs.26,40,000/- as against the total cost of Rs.27,15,000/- even by 25.06.2009, the opposite parties did not rectify the defective works pointed by the complainant . Under these circumstances, we are of the view that there is deficiency in service on the part of the opposite parties.
However, the learned counsel for the complainant, during his arguments, submitted that there are 6 or 7 minor works, to be attended and irrespective of minor works completed or not, the complainant is ready to take possession of the flat.
The contention of the complainant is that the opposite parties are illegally demanding him to pay further sum of Rs.5,93,385/-, including the registration costs, property tax, VAT and service tax. The opposite parties contending that the complainant is liable to pay the balance amount of Rs.2,19,060/- towards balance dues and an amount of Rs.5,44,268/- towards accumulated interest and an amount of Rs.1,80,000/- towards holding charges and also an amount of Rs.49,410/- towards the maintenance charges. Admittedly, the opposite parties filed a Civil Suit against the complainant before 3rd Sr.Civil Judge , CCC., Secunderabad for recovery of the said amount. As the said suit is pending trial, we are not inclined to decide the question whether the complainant is liable to pay the said amounts to the opposite parties or not. Admittedly, the complainant has not paid the last instalment of Rs.1,20,000/-. However, this instalment amount has to be paid on completion and handing over of the flat.
As stated above, the complainant paid Rs.26,40,000/- to the opposite parties by 25.6.2009, as against the total cost of the flat Rs.27,15,000/-. If last instalment of Rs.1,20,000/- is paid, then the complainant deemed to have paid the entire sale consideration of the flat. Therefore, having regard to the principles of natural justice and to meet the ends of justice, we are of the view that the complainant should be put in possession of the flat , keeping the registration of the flat pending subject to result of the civil suit, pending on the file of 3rd Sr.Civil Judge, City Civil Court, Secunderabad.
In the result, the complaint is allowed in part, directing the complainant to pay the last instalment of Rs.1,20,000/- to the opp.parties and on such payment, the opposite parties are directed to deliver the possession of the subject flat to the complainant, along with necessary Possession Certificate within one month, from the date of payment of last instalment of Rs.1,20,000/-, by the complainant to the opposite parties. The opp.parties are directed to register the subject flat in favour of the complainant, after disposal of the civil suit, pending on the file of 3rd Sr.Civil Judge, City Civil Court, Secunderabad, filed by the opposite parties, against the complainant, for recovery of the alleged amounts due by the complainant, on complying with the decree, if any, passed in the said suit against the complainant and on payment of the required registration charges and other charges if any by the complainant. The opposite parties are directed to pay a sum of Rs.5000/- to the complainant, towards the costs of the complaint.
MEMBER
MEMBER
MEMBER
Pm* Dt.06.02.2014
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opp.parties : Nil
Evidence affidavit of complainant filed.
Evidence affidavit of opp.party no.1 filed.
Exhibits marked on behalf of the complainant:
Ex.A1 : Booking Form issued by Opp.party no.1
Ex.A2 : Agreement of Sale.
Ex.A3 : Legal notice Dt.09.03.2009 issued by opp.party no.1 to the complt. Ex.A4 : List of complaints dt.24.03.2009 given by the Complainant to the
Opp.party.
Ex.A5 : List of complaints dt. 26.04.2009 with regard to Flat no. 505
given by the complainant .
Ex.A6 : Receipt dt. 25.06.2009 issued by opposite party no.1.
Ex.A7 : Statement of account.
Ex.A8 : Legal notice dt.14.04.2011 issued by opp.party no.1 to the Complt.
Ex.A9 : Reply legal notice dt.29.09.2011 issued by the complainant
to the opposite party
Ex.A10: Addl.reply legal notice dt.16.01.2012 issued by the complainant
to the opposite party.
Ex.A11 : Reply legal notice dt. 17.03.2012 issued by the opp.party to the
complainant .
Ex.A12: Photographs.
Ex.A13 : Brochure.
Exhibits marked on behalf of the opposite parties.
Ex.B1 : Occupancy Certificate dt.29.03.2008 issued by .
Gram Panchayat office, Kompally.
Ex.B2 : House Tax Receipt dt. 29.03.2008 issued by Gram Panchayat,
Kompally for house no.3-32/505.
Ex.AB3 : House Tax Receipt dt. 28.03.2008 issued by Gram Panchayat,
Kompally, for house no.3-32/203.
Ex.B4 : House Tax Receipt dt. 28.03.2008 issued by Gram Panchayat ,
Kompally, for house no.3-32/111.
Ex.B5 : House Tax Receipt dt. 28.03.2008 issued by Gram Panchayat ,
Kompally, for house no.3-32/208.
Ex.B6 : House Tax Receipt dt. 28.03.2008 issued by Gram Panchayat ,
Kompally, for house no.3-32/106.
Ex.B7 : House Tax Receipt dt. 28.03.2008 issued by Gram Panchayat ,
Kompally, for house no.3-32/109.
MEMBER
MEMBER
MEMBER
Pm* Dt.06.02.2014
