BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 122 OF 2017 AGAINST C.C.NO.178 OF 2015 DISTRICT CONSUMER FORUM-III HYDERABAD
Between
- M/s.Aliens Developers Private Ltd.,
Present Reg Office at Survey No.384,385,426/A,
Space Station, Tellapur, Hyderabad, Telangana-502032.
Rep. by its M.D.
- Sri Hari Challa, S/o.Sri C.V.R.Choudhary,
Aged about 38 years, Occ: Business,
Present Reg Office at Survey No.384,385,426/A,
Space Station, Tellapur, Hyderabad, Telangana-502032.
Appellants/opposite parties no.1 and 2
AND
- Sri Avinash J.Fernandez, S/o.Mr.Joseph Fernandez
Aged about 30 years, Occ: Private Service,
R/o.701, Center Ridge Dr.Austin,
TX,78753, USA, Rep. by complainant no.2)
- 2. Sri Abhijit J Fernandez, S/o.Mr.Joseph Fernandez,
Aged about 28 years, Occ: Private Service,
R/o.Flat No.7, Krupa Dham Apartments,
West Marredpally, Secunderabad
Respondents/complainants n
- Ms.Namrata, Vice-President
of M/s.Aliens Developers Private Ltd.,
Present Reg Office at Survey No.384,385,426/A,
Space Station, Tellapur, Hyderabad, Telangana-502032.
4. Ms.Sherry Vijaya, Manager of M/s.Aliens Developers Private Ltd., Present Reg Office at Survey No.384,385,426/A,
Space Station, Tellapur, Hyderabad, Telangana-502032.
Respondents/opposite parties no.3 and 4
Counsel for the Appellants M/s P.Rajasripathi Rao
Counsel for the Respondent No.1 M/s TNM Ranga Rao
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
TUESDAY THE FIFTH DAY OF JUNE
TWO THOUSAND EIGHTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the opposite parties no.1 and 2 aggrieved by the orders of District Consumer Forum-III, Hyderabad, dated 27.04.2015 made in CC No.178 of 2015 wherein it allowed directing the opposite parties no.1 and 2 to deliver possession of the flat No.1581, Station-13, 15th floor in Aliens Space Station-1, Tellapur, Ramchandrapuram Mandal, Medak District, to the Complainants, after completing the construction work in all aspects as per the specifications mentioned in Ex.A3, Construction Agreement dated 04.06.2012; to pay Rs.5,376/- per month from 01.12.2011 till the date of delivery of possession; to pay Rs.2,00,000/- towards compensation and costs of Rs.2,000/-. The complaint against the opposite parties no.3 and 4 is dismissed without costs. Time for compliance and in default in payment thereof the said amount shall carry interest @ 9% per annum.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainant, in brief, is that, having attracted by the brochure issued by the Opposite Parties, the Complainants have booked flat No.1581, Station-13 on 15th floor in the complex known as Aliens Space Station-1 for a sum of Rs.51,24,001/-. The Complainants have entered into an agreement of sale with the Opposite Parties for purchase of the said flat on 07-07-2010. The Complainants who are working in a private sector had a plan to take housing loan from the nationalized Bank. The Complainants and the Opposite Parties have entered into a tripartite agreement with the State Bank of India on 02-08-2010 for a sum of Rs.35,46,000/-. The balance amount was agreed to be paid by the Complainants. On 04-06-2012 the Opposite Parties have executed the Sale Deed in the name of the Complainants for a semi finished flat No.1581, Station-13 on 15th floor in Aliens Space Station-1 for a valuable sale consideration of Rs.17,92,000/- vide document No.7501/2012. They also entered into a construction agreement on the same day to construct and complete flat for an amount of Rs.30,59,486/- as per the specifications advertised by the Opposite Parties in the brochure at the time of booking the flat. Further details were mentioned in agreement of sale. The Complainants have paid the sale consideration on various dates as per the schedules mentioned by the Opposite Parties. Finally they were ready to pay the corpus fund of Rs.2,24,000/- to the Opposite Parties. But the Opposite Parties did not come forward to hand over the flat to the Complainants till date. As per the Clause VIII of the Agreement of Sale 3 the Opposite Parties are supposed to deliver the flat on or before November,2011 with a grace period of nine months but the Opposite Parties have executed sale deed on 04-06-2012. On the same day construction agreement was also executed for completion of the construction of the flat. The Complainants have sent email on 27-08-2013 requesting the Opposite Parties to hand over the flat by December,2013 positively. The same was acknowledged by the Opposite Parties by hand on 03-10-2013. The Opposite Parties have demanded additional amount of Rs.16,35,000/- to make the same modifications in flat unilaterally. The Complainants have specifically stated that they did not want any modifications and requested the Opposite Parties to hand over the flat as early as possible. The Complainant got issued a legal notice dated 13-11-2013 demanding the Opposite Parties to deliver the flat and to pay compensation of Rs.10,00,000/- within 15 days. The Opposite Party No.1 and 2 have received the notice but there was no reply from them. The Complainant again got issued another legal notice dated 03- 02-2014 invoking Clause XVIII (c) and (d) of the Agreement of Sale. There was no reply from the Opposite Parties till date. The acts and deeds of the Opposite Parties clearly constitute not only deficiency in service but also unfair trade practice. Heence, the complaint praying to direct the opposite parties to deliver flat No.1581, Station-13, on 15th Floor in Alien Space Station 1; to pay Rs.10,00,000/- towards compensation for mental agony and physical stress suffered by the Complainant; to pay Rs.1,98,912/- as compensation towards delayed period till December,2014; to pay Rs.5,376/- per month from January,2015 till delivery of possession of the flat; to award Rs.10,000/- towards costs.
4. The Opposite Parties resisted the case contended that the Forum has no territorial jurisdiction to entertain the complaint as the Opposite Parties and the subject flat are not within the jurisdiction of this Forum. It took sufficient time for conversion of the agricultural land into non-agricultural land. As per the master plan approved by the Development Authority there was a proposal of 30 meters road passing through 384,385,386 and 387 of Tellapur Village. On account of it the project could not be commenced until there is a realignment to the said proposed road without affecting the land in survey No.384 and 385 on which Space Station-1 project is being developed by the Opposite Parties. The Opposite Parties for issuance applied for NOC by the AP Fire Services Department and initially permission for construction of flats up to the height of 91.40 meters was 4 issued on 15-12-2007. Subsequently it was reduced to 90.40 meters vide letter dated 17-08-2008 by the Fire Services Department. The Opposite Parties have also obtained NOC from Airport Authority of India for construction of residential complex for survey No.384 and 385 vide letters dated 05-06-2007 and 10-07- 2009. The HUDA has accorded technical approval U/s.14 of AP Urban Area (Development) Act,1975 and communicated to the Executive Authority, Tellapur Grampanchayat vide letter No.621/P4/Plg/HUDA/2008 dated 11-04-2008. The HUDA has released technical approval up to ground + 20 floors to 29 floors is awaited. The facts referred to above reveals that the Opposite Party is committed to the project and take all the above necessary steps to complete the project. The project is a massive project and due to the reasons beyond its control, the Opposite party could not complete it within stipulated time. The said facts were informed to the Complainant and even mentioned in the agreement of sale under clause No.XIV and described as “force majure”. There is absolutely no deficiency in service on the part of the Opposite Parties in executing the project. If the Complainants want to cancel their booking, they can do so in conformity with the terms of the agreement. Hence, the opposite parties prayed for dismissal of the complaint.
5. In proof of the case of the complainants, they filed evidence affidavits and got marked Exs.A1 to A9. The opposite parties neither filed their evidence affidavits nor any documents.
6. The District Forum after considering the material available on record, allowed the complaint bearing CC No.178 of 2015 by orders dated 27.04.2016 as stated in paragraph No.1, supra.
7. Aggrieved by the said decision, the opposite parties no.1 and 2 preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. They contended that the delay in completing the flat is neither wilful nor wanton. The District Forum erred in awarding monthly rent of Rs.5,376/- when the construction agreement itself is entered on 04.06.2012. Besides awarding monthly rent, the District Forum failed to give any reasons for awarding of compensation of Rs.2,00,000/-. Hence, the opposite parties prayed to allow the appeal by setting aside the order of the District Forum.
8. Counsel for both parties present. Written arguments of the respondents no.1 and 2 filed.
9. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief?
10. The Complainants entered into “Agreement of Sale” with the Opposite parties for purchase of flat no.1581, STaton-13 on 15th Floor in Aliens Space Station for a sum of Rs.51,24,001/-. The complainant and the opposite parties have entered into a tripartite agreement with the state of India on 02.08.2010 for a sum of Rs.35,46,000/- and the balance amount was agreed to be paid by the complainants. On 04.06.2012 the opposite parties have executed the Sale Deed in the name of the complainants for semi finished subject flat for a valuable consideration of Rs.17,92,000/-. They also entered in to construction agreement on the same day to construct and complete flat for an amount of Rs.30,59,486/- as per the specifications and the complainants have paid total sale consideration amount and also agreed to pay corpus fund of Rs.2,24,000/- to the opposite parties. As per the agreement of sale the opposite parties have to deliver the flat on or before November 2011 with a grace period of nine months but the opposite parties have executed sale deed on 04.06.2016.
12. It is pertinent to see that the Construction Agreement was dated 04.06.2012 wherein there is no clause with regard to period to complete the construction of the flat. But where as in the agreement of sale it was mentioned that the developer has to complete the construction work and deliver the flat to the complainants on or before November, 2011. The opposite parties have executed the sale deed in favour of the complainants on 04.06.2012 and on the same day the opposite parties entered into construction agreement with the complainant wherein it is clearly stipulated that the time is the essence of the contract. As per clause VIII(G) of Agreement of Sale in case there was any delay in completion of flat within the stipulated period mentioned therein the developer agreed to pay Rs.3/- per sq.ft per month. But contrary to the said agreement of sale the construction agreement was executed by the opposite party on 04.06.2012 wherein it was mentioned that the time is the essence of contract. The opposite parties contended that when the construction agreement was entered on 04.06.2012 the awarding of monthly rent of Rs.5,376/- by the District Forum is not sustainable and the same is liable to be set aside. Though the construction agreement entered into on 04.60.2012 but as per the agreement of sale clause VIII(G) is binding on the parties and excuse of this nature can not be allowed to be taken by the builder, when date was specifically mentioned in the agreement. If there was any specific clause in the Construction agreement mentioning that the said flat shall be completed within a certain period then the matter will be different but in the absence of any period the period mentioned in the agreement of sale will be prevailed. So, the builder has committed default though, the complainant has paid full amount of consideration to the opposite parties. The District Forum while directing the opposite parties to delivery possession of the flat after completing the construction work in all aspects as per the specifications mentioned in Ex.A3 also awarded Rs.5,376/- per month from 01.12.2011 as per clause VIII(G) of the agreement of sale besides awarding of compensation of Rs.2,00,000/- which in our view is liable to be set aside while upholding other reliefs.
In the result appeal is allowed in part directing the opposite parties no.1 and 2 to deliver possession of flat No.1581, Station-13, 15th floor in Aliens Space Station-1, Tellapur, Ramchandrapuram Mandal, Medak District to the complainants after completing the construction work in all aspects as per the specifications mentioned in Ex.A3, the Construction Agreement dated 04.06.2012 and also pay Rs.5,376/- per month from 01.12.2011 till the date of delivery of possession together with costs of Rs.2,000/-. However, the impugned order as to awarding of compensation of Rs.2,00,000/- is set aside. Time for compliance four weeks.
PRESIDENT MEMBER
05.06.2018
