BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
C.C.275 of 2013
Between:
1.Sunil Laxman Patil
S/o Laxman Mahadev patil
Aged about 36 years
2.Prajakta Sunil Patil
W/o Sunil Laxman Patil
Aged about 29 years
both are R/o Flat no. 503,
NCL Krishna near Image Gardens,
Madhapur, Hyderabad – 500 081.
( Presently residing at Flat 402, MR Sathyam Enclave,
Church road, Nar Kakde Nursing Home,
Near Thipasandra, indiranagar, Bangalore – 560075 .. Complainant
And
01. M/s. Aliens Developers (P) Ltd
Rep. by its Managing Director & Joint Managing Director
Mr. Hari Chall, S/o Mr. CVR Chowdhary &
Mr. C. Venkat Prasanna Challa, S/o Mr. CVR Chowdhary,
Respectively, C/o Flat No. 910, Teja Block,
My Home Navadeepa Apartments, Madhapur,
Near Hitech City, Hyderabad - 500081.
02. Mr. Hari challa, S/o Mr. CVR Chowdhary,
Managing Director, M/s. Aliens Developers (P) Ltd
O/o Flat No. 910, Teja Block,
My Home Navadeepa Apartments, Madhapur,
Near Hitech City, Hyderabad - 500081.
03. Mr. C. Venkat Prasanna, , S/o Mr. CVR Chowdhary,
Joint Managing Director, M/s. Aliens Developers (P) Ltd
O/o Flat No. 910, Teja Block,
My Home Navadeepa Apartments, Madhapur,
Near Hitech City, Hyderabad - 500081.
(present addresses o parties s.no. 1 to 3 are at Aliens space station, Tellapur post, Ramachandrapuram Mandal, Medak Dist, Hyderabad.
Pin – 502 032.
.. Opposite parties
Counsel for the Complainant : M/s. V. Appa Rao
Counsel for the Opposite parties : M/s. Alluri Krishnam Raju
QUORUM:
HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA, PRESIDENT
AND
SRI R. LAKSHMINARASIMHA RAO, HON’BLE MEMBER
WEDNESDAY, THE SIXTEENTH DAY OF JULY
TWO THOUSAND FOURTEEN
Oral Order : ( As per Sri R. Lakshminarasimha Rao , Hon’ble Member )
****
01 This complaint is filed to direct the opposite parties 1 to 3 to hand over possession of the flat on completion in all aspects including completion of common areas besides obtaining of necessary statutory permission thereof, alternatively, to pay sale consideration of Rs.31,12,067/- with interest @ 24% pa amounts to Rs.19,30,000/-for the period from 10.03.2011 to 31.11.2013 and subsequent interest with effect from 1.12.2013 @24% pa, to pay Rs.10 lakhs towards compensation for mental agony etc, Rs.50,000/- towards legal expenses.
02. The brief facts that led to the filing of the complaint are that the complainant entered into an agreement of sale on 10.03.2010 for purchase of a Flat no. 1772 , Station -12 on 17th floor of the complex, by name, Space Station – 1 in the super built up area of 1874 sq. feet with one covered car parking space besides undivided share of land of 40.29 sq. yards out of total land of 82976.89 sq. yards in survey nos. 384, 385 and 426/A, situated at Tellapur Village, Ramachandrapuram Mandal, Medak district for a sale consideration of Rs.61,44,312/- and the complainant paid Rs.31,12,067/-. The complainants have to pay balance sale consideration of Rs.30,32,245/- at the time of handing over possession of the same after completion of construction in all respects on or before 31.08.2012 as per Clause VIII of agreement of sale dated 10.03.2011.
03 As the construction of the flat was not in progress, the complainant got issued notice to the opposite parties on 09.10..2013 and there was no response for the notice from them. The opposite parties offered the Flats for Rs.73,33,065/-. The opposite parties vide MOU dated 14.5.2011 promised to pay the home loan PreEMI installments + interest charged therein as charged by the home loan banker under the scheme of PreEMI scheme and paid it till December 2012 and discontinued we.f. 1.1.2013 and failed to hand over the flat. There is deficiency in service on the part of the opposite parties in not handing over possession within the stipulated date as per the agreement and in that context they were subjected to mental agony and suffering. Hence, the complaint.
04 The opposite parties by filng written version contended that as the project is massive one, due to the global recession and Telangana agitation they faced several problems and also due to delay in getting clearance from statutory bodies, the opposite parties could not complete construction of the Flat within the stipulated time which was informed to the complainant and also mentioned in the agreement of sale under clause No.xiv and described as ‘ force majeure’ . Since there is an arbitration clause no. 18 in the sale agreement, the dispute has to be referred for arbitration and the Courts have no jurisdiction to adjudicate the dispute. It is admitted that under clause VIII of the agreement the flat will be delivered by 31.8.2012 and the complainant is still due As per the agreement, except compensation for the delay in handing over possession of the flat, the complainant is not entitled for any other amount as prayed for . Payment of EMIs is based on the Tripartite agreement and MOU dated 14.5.2011. Except lacunae in clearance from the statutory bodies, there is no delay on their part. There is no deficiency in service on their part and the complainant is not entitled for any amount and prayed for dismissal of the complaint.
5 The complainant No.1 filed his affidavit and relied on the documents, Exs.A1 to A1-15. Mr. Venkat Prasanna Challa, Joint Managing Director of the opposite parties filed his affidavit and no documents were marked on their behalf.
6. The learned counsel for the complainant as well as counsel for the opposite parties filed written arguments.
7. The points that arise for consideration are :
i. Whether the complainants are entitled for possession and registration of flats or in the alternative refund of the amount, if so, to what amount?
ii. Whether the complainants are entitled to compensation?
iii. To what relief?
8. POINT NO.1 : It is an undisputed fact that complainants had booked the flat and entered into an Agreement of sale on 10.03.2010 for purchase of a flat no. 1772 , Station -12 on 17th floor of the complex, by name, Space Station – 1 in the super built up area of 1874 sq. feet with one covered car parking space besides undivided share of land of 40.29 sq. yards out of total land of 82976.89 sq. yards in survey nos. 384, 385 and 426/A, situated at Tellapur Village, Ramachandrapuram Mandal, Medak district for a sale consideration of Rs.61,44,312/- and paid Rs.31,12,067/- and for the balance amount of Rs.30,32,245/- The opposite parties had agreed to complete the construction and hand over possession of flat by 31.08.2012 from the date of execution of agreement. It also agreed to pay Rs.3/- per sft. in case there is delay in handing over possession of flat to the complainant. Pursuant to the tripartite agreement the opposite party No.2 undertook to disburse the loan amount to the opposite party No.1 as agreed upon.
9. The opposite party No.1 could not complete the project within the time frame as it could not get the required clearance from statutory bodies and it takes shelter under clause No.XIV ‘force majeure’ The complainant, therefore, seek possession of the completed apartment, rent incurred, compensation and costs.
10. It is the contention of the opposite party no.1 that the agreement provides for reference to an Arbitrator in case of dispute and therefore the complaints are not maintainable before this Commission. An arbitration clause in an agreement is no bar for the complainant to invoke jurisdiction of Consumer Forum. We are fortified by the judgment of the Apex court in National Seeds Corporation Ltd., V. M.Madhusudhan Reddy reported in (2012) 2 SCC 506 the Supreme Court has considered the jurisdiction of the Consumer Fora and Commissions while adjudicating matter wherein there is an arbitration clause in the contract and held as follows:
“The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.”
11. It is pertinent to note that the complainants had not approached or appointed an arbitrator on his behalf and they have instead chosen to file the case before this Commission and it is also pertinent to note that no Arbitration Award has been passed. Therefore we hold that the complaint is maintainable before this Commission.
12. POINT NO.2: The opposite party no.1 agreed to complete construction of the Flat and deliver its possession to the complainant by 31.08.2012. The complainant paid the sale consideration of the Flat in accordance with the payment schedule of the Agreement of Sale. The balance sale consideration payable is Rs. 30,32,245/- which he expressed his readiness to pay to the opposite parties. The opposite parties have not delivered possession of the Flat to the complainant by 30.08.2012. Clause VIII(f) of the Agreement provides for payment of compensation to the complainant for the delay in delivering possession of the Flat to the complainant. Clause VIII(f) of the Agreement reads as under:
“ Holding charges : That if the purchaser/s fails or neglects to take the delivery of the Apartment within the time prescribed under the said “ notice of possession” issued by the Developer, the Purchaser/s shall be liable to pay “ Holding chares” @ Rs.3/- ( Rupees three ) per sq. ft. per month, starting from the expiry of the date prescribed in the “ Notice of Possession’ till the date the Purchaser/s takes actual physical possession of the Apartment. The holding charges shall be in addition to the amount payable by the purchaser/s as his/her/teir share to the Government or Municipal taxes, maintenance or other administrative charges, on a proportionate basis , as determined by the Developer or the Maintenance Agency, for the period for which the purchaser/s has not taken the actual physical possession of the Apartment ”.
13. The complainant proceeded to pay the consideration of the Flat with the hope that the opposite parties would complete the construction and deliver the Flat wherein he could reside with his satisfaction having been fulfilled and he could avoid payment of rent as well. However, the opposite parties have not kept their promise and for the delayed period they expressed their readiness to pay the amount in terms of the agreement.
14. The difficulty that the complainant faced due to the delay caused in completing the construction of the Flat on the part of the opposite parties has grown many fold as the complainant has to pay EMIs irrespective of the completion of the Flat and he has to reside in a rented house paying rent. It is natural for a person to suffer mental tension by being deprived of residing in the Flat and on being obligated by the terms of the Tripartite Agreement to pay EMIs to the Bank.
15. The complainant claimed an amount of of Rs.10,00,000/- towards compensation. By virtue of Clause VIII (f) of the Agreement, the opposite party is liable to pay Rs.3/- per sft from 01.12.2012. The opposite parties are liable to hand over occupancy certificate to the complainant. As such, the complaint deserves to be allowed.
16.POINT NO.3: In the result, the complaint is allowed. The opposite parties are directed to complete the construction of the Flat bearing no. 1772 , Station -12 on 17thfloor of the complex, by name, Space Station – 1 situated at Tellapur village, Ramachandrapuram Mandal, Medak District and deliver its possession to the complainant and hand over copy of occupancy certificate to the complainant. The complainant shall pay the balance sale consideration of Rs.30,32,245/- to the opposite parties Further, the opposite parties shall pay to the complainant an amount @ Rs.3/- per sft as per Clause VIII (f) of the agreement from 01.12.2012 till handing over possession of Flat towards compensation and an amount of Rs.5,000/-towards costs. Time for compliance four weeks.
PRESIDENT
MEMBER
DATED :.16.07.2014
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE COMPLAINANT : NONE
FOR THE OPPOSIE PARTIES : NONE
DOCUMENTS MARKED
FOR THE COMPLAINANT :
Ex.A-1: 10.03.2011 : Agreement of sale
Ex.A-2: 14.05.2011 : Memorandum of Understanding
Ex.A-3: 24.02.2011 : copy of receipt No. 06498 for Rs.4,00,000/-
Ex.A-4: 02.05.2011 : copy of receipt No. 08133 for Rs.2,14,432/-
Ex.A-5; 30.05.2011 : copy of receipt no. 08166 for Rs.17,52,000/-
Ex.A-6: 30.07.2011 : copy of receipt no. 08092 for Rs.1,54,000/-
Ex.A-7: 15.11.2012 : copy of receipt no. 11453 for Rs.5,91,006/-
Ex. A-8: 20.05.2011 : copy of home loan letter
Ex. A-9: 05.12.2013 : Statement of Bank Account
Ex.A-10: 05.12.2013 : copy of home loan statement
Ex.A-11: 09.10.2013 : Legal notice from the complainant to the Ops
Ex.A-12: 10th, 11th, 12th
Oct,2013 : Original receipts of regd post, acknowledgement cards & returned cover
Ex.A-13: 21.03.2006 : Certificate of Incorporation
Ex.A-14: 21.03.2006 : FORM 32
Ex.A-15: - : Statement of Account No. 553010100167383 for the period from 24.04.2011 to 24.04.2012
FOR THE OPPOSITE PARTIES : nil
PRESIDENT
MEMBER
Dated : 16.07.2014.
