STATE CONSUMER DISPUTES REDRESSAL COMMISSION
OF TELANGANA AT HYDERABAD
CC NO.64 OF 2015
Between :
Tella Srinivasa Rao S/o T.Purna Chandra Rao,
aged about 45 years, R/o 102, Teja Block,
My Home Navadweepa Apartments,
Madhapur, Hyderabad – 500 033.
… Complainant
AND
1) M/s Hill County Properties Ltd.,
Formerly known as M/s Maytas Properties (P) Ltd.,
Rep. by its Managing Director
Mr.Muralidhar Khattar S/o Jugalram Khattar,
Aged about 75 years, O/o Customer Support
Department, Hill County, Bachupally,
Miyapur, Hyderabad – 500 072.
2) Mr.Muralidhar Khattar S/o Jugalram Khattar,
Aged about 75 years, Managing Director
M/s Hill County Properties Ltd.,
O/o Customer Support Department,
Hill County, Bachupally, Miyapur,
Hyderabad – 500 072.
… Opposite Parties
Counsel for the Complainant : M/s V.Appa Rao & B.Srinivas
Counsel for the Opposite parties : M/s K.Vishweshwar Reddy
Coram :
Hon’ble Sri Justice B.N.Rao Nalla … President
and
Sri Patil Vithal Rao … Member
Tuesday, the Third day of January
Two thousand Seventeen
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is a complaint filed under Section 17 (1)(a)(i) of the Consumer Protection Act, 1986 alleging deficiency in service and negligence on the part of the Opposite parties and seeking direction to register and handover the house on completion in all aspects besides obtaining necessary occupancy certificate; to pay compensation of Rs.5/- per square feet per month over super built-up area of 4584 for a period of 3 months w.e.f. 01.02.2009 to 30.09.2009 amounting to Rs.1,83,360/- and reciprocal interest on the sale consideration amount @ 24% p.a. from 01.10.2009 to 31.07.2012 amounting to Rs.79,54,000/- and fair rent of Rs.10/- per square feet per month over super built-up area of 4584 w.e.f. 01.08.2012 to 31.03.2015 amounting to Rs.14,66,880/- and subsequent rent from 01.04.2015 till handing over the flat; to pay compensation of Rs.3,00,000/- towards mental agony; to pay costs of the complaint at Rs.50,000/- and award any other reliefs.
2. It is the case of Complainant that OP No.1 as Developer and OP No.2 being its Managing Director and OP No.3 being the Director of OP No.1 made believe her that they undertook the development of landed property admeasuring Ac.85.36 guntas in Sy.Nos.192/P, 193/P, 194/P, 196/P, 197/P, 198/P, 201/P and 282/P, situated at Hill County, Bachupally village, Qutbullapur mandal, Ranga Reddy district under Development Agreement-cum-GPA bearing No.102/2006, dated 30.12.2005. They informed that they obtained necessary permissions for the lay-out as well as building construction of residential independent villas/houses over the said land vide letter No.5876/MO2/Plg/H/2005, dated 21.03.2006 and 5871/P4/Plg/HUDA/2007, dated 29.08.2007 and that they hve got absolute rights over the Plot No.77 admeasuring 589 square yards, out of total land measuring Ac.85-36 comprising of 4274 square feet of super built-up area.
3. Believing the version of Ops, Complainant agreed to purchase a residential flat No.4D, type-1 on 4th floor in Khandla block comprising of 4584 square feet super built-up area besides 621 square feet of garden deck, with a covered car parking thereon and undivided share of land admeasuring 240 square yards out of total land of Ac.16.95 guntas in the project M/s Hill County in Survey Nos.194/P, 196/P and 197/P situated at Bachupally village, Qutbullapur mandal, Ranga Reddy district, for a sale consideration of Rs.1,42,64,103/- and entered into an agreement of sale dated 18.10.2006. In pursuance of the agreement, the Complainant paid 82% of the sale consideration amounting to Rs.1,16,96,540/- by 15.12.2007 and agreed to pay the balance amount at the time of handing over the possession of house by completing in all aspects as per the specifications agreed thereto. As per agreement, Ops agreed to complete the construction of the Apartment in 24 months from the date of agreement with a grace period of 3 months.
4. Though much time had elapsed, the Ops failed to complete the construction and handover the flat to the Complainant. As there was no response, the Complainant got issued a notice dated 04.11.2014 to which a reply dated 14.11.2014 was given informing that the flat was ready for occupation and the same was informed by letter dated 31.12.2012 but no such information is received by the complainant.
5. Complainant is interested to have possession of the house on transfer of the title of the house on completion including amenities besides obtaining occupancy certificate from the concerned. Complainant incurred huge loss on account of non-completion of the house. All this amounts to deficiency in service and negligence on the part of the Ops. Hence, the complaint with the prayer as stated, supra, in paragraph No.1.
6. The opposite party no.1 resisted the claim contending that the above consumer case is not maintainable on the grounds raised therein and is liable to be dismissed in limine. There is no deficiency of service on their part. The Agreement for sale was entered into on 18.10.2006 and the unit was to be delivered on 18.10.2008 with grace period of 3 months. The cause of action for filing the complaint arose on 18.10.2006 but the Complainant lodged the present complaint after 7 years as an arm-twisting method to make this OP to comer to its terms. Section 24A of C.P. Act clearly specifies time limit for filing a consumer complaint is 2 years from the date of cause of action. The complaint of the Complainant is hopelessly barred by limitation and is liable to be dismissed on this ground alone. That, the unit has been completed and the same was intimated to Complainant on 17.10.2012 itself and instead of taking possession, lodged the present complaint. It admitted to have agreed to sell the subject property for the consideration thereof.
7. The OP No.1 is a limited company incorporated under the provisions of Companies Act, 1956, inter-alia engaged in the business of construction and has changed the name from M/s Maytas Properties Limited to M/s Hill County Properties Limited. The project commenced as per schedule and was proceeding as per the projected rate but on a wholly incorrect understanding of its association with Satyam Group of Companies, various investigations and proceedings were instituted against it. The resulting adverse media reports and other reports led to doubts and wrongful perceptions about its independent and unrelated status. Resulting which, the investors and lenders which had committed to funding the Hill County project of OP No.1, sought to resile and withdraw from the project causing serious and acute shortage of funds.
8. Various attachments and court orders had also delayed the project. The various steps taken by it brought back the project on track. In compliance of the Company Law Board orders dated 13.01.2011 IL&FS, the new management of OP No.1 commenced the construction at Hill County project and infused more than 1200 crores into the OP No.1 to complete Hill County project. The customers were also invited to visit for completing the final inspection of their respective units and Complainant was kept continuously informed about the status of construction, its completion apart from letters and e-mails.
9. The construction was initially delayed only because of the force majeure events which were beyond the control of the Ops and the new promoters of the OP No.1 have been inducted as strategic investor into the OP No.1 in order to complete the construction of the project. There is no willful default or deficiency of service on its part. As on date, 696 independent houses have been sold, of which, 556 houses have been accordingly handed over to the customers and the process of handing over balance units is continuing. The OP is committed to compensate all the customers including the complainant @ Rs.5/- per square feet for the entire period of delay in delivering the independent house. The fair rental value where the project is located, were much lesser i.e., only Rs.2.40/- per sft., from 2008 till end of 2011. Even now, the fair rental value is only Rs.4.28/- per sft., w.e.f. April, 2012.
10. That, on account of the fall out of the events following the enquiries against Satyam Computers Ltd., the Opposite party was subjected to series of compelling economic circumstances which derailed the Hill County project. Vide letter dated 17.10.2012 intimated the Complainant about completion of construction of the subject flat and by letter dated 31.12.2012 requested the Complainant to inspect the flat and clear all dues and again by letter dated 06.03.2013 informed the Complainant to take over possession and by e-mail dated 17.02.2014 requested the complainant to come forward for registration of house in his name. Vide e-mail dated 21.05.2014 again informed the complainant regarding his entitlement to the amount of compensation payable to him for the delay in delivering the apartment and vide e-mail dated 28.10.2014 intimated the Complainant regarding readiness of the apartment requested to complete the formalities of taking possession and also requested to pay the balance amount by letter dated 11.12.2014.
11. That, after completion of entire Hill County project and after a few customers had approached the consumer fora before the new management came into place, succeeded in their claim for refund of amounts paid by them and the complainant appears to have developed a wrongful motive and intention to make an immoral and unlawful gain and have therefore, filed the present complaint seeking refund of the amounts on untenable and illegal basis. In fact, Complainant was informed to take possession of the completed flat by letter dated 17.10.2012, 31.12.2012 and 06.03.2013 and therefore the present complaint seeking registration and handover of the flat is barred in law.
12. The Opposite party has completed construction of independent houses and apartments in Hill County with amenities like power sub-stations, permanent sewage treatment plants (STP), supply of manjeera water for 24 hours, storm water drainage, club house with banquet hall, library, swimming pool, tennis court, badminton court, library, mini-cricket stadium etc., gas pipeline connection, e-deck environment, internet, telephone, DTH, security systems. The Department of Income-Tax has lifted ban on registrations of flats/independent houses in compliance of order dated 05.12.2012 by the Hon’ble High Court of A.P. in WP No.11412/2012 which was filed by the Association named the Hill County Home Owners Welfare Association.
13. OP No.1 had obtained lay-out permission from HUDA, vide Letter No.5876/MP2 /PLG/H/2005, dated 21.03.2006. The Complainant is not entitled to any compensation much less Rs.50,000/- per month and the alleged claim for payment of compensation is frivolous as per her own admission that, as per the Agreement for Sale, he is eligible for compensation @ Rs.5/- per sft. In spite of intimation, the Complainant has not taken possession of the flat and is liable to pay the balance sale consideration. The present complaint is intended to gain wrongfully and to cause wrongful loss to the OP. Therefore, it prayed for dismissal of the complaint with exemplary costs.
14. Though OP No.2 served with notice, has not chosen to file any written version.
15. The Complainant filed his affidavit as evidence and the documents Ex.A1 to A8 On behalf of the opposite parties, the authorised person of the Opposite party no.1 by name Neerav Kapasi filed his affidavit and the documents, Ex.B1 to B38.
16. The counsel on both sides filed written arguments. Heard both.
17. The points for consideration are :
i) Whether the complaint is maintainable in view of barred by limitation ?
ii) Whether the complaint is not a ‘consumer dispute’?
iii) Whether there is any deficiency in service on the part of the Opposite parties?
iv) To what relief ?
18. POINT NO.1 TO 3 : The Complainant entered into “Agreement of Sale” on 18.10.2006 with the Opposite party No.1 for purchase of villa/house bearing flat No.4D, type-1 on 4th floor in Khandla block comprising of 4584 square feet super built-up area besides 621 square feet of garden deck, with covered car parking and undivided share of land measuring 240 square yards in Sy.Nos.192/P, 193/P, 194/P, 196/P, 197/P, 198/P, 201/P and 282/P, situated at the project by name Hill County, Bachupally village, Qutbullapur mandal, Ranga Reddy district for a sale consideration of Rs.1,42,64,103/- and paid 82% of sale consideration amounting to Rs.1,16,96,540/-, proposed to be constructed by the Opposite parties, which is not in dispute. The agreement of sale provides for completion of the construction of house/ villa within 24 months from the date of agreement with grace period of 3 months, which concludes on 18.01.2009.
19. Unfortunately, the developer stopped construction and it has come to a standstill, when Satyam group of companies in which developer is one of the constituent company, went into liquidation. The developer resisted the complaint on the ground that, on account of ‘force majeure’ problems, the project could not be completed on time and thereafter they took every care to complete the project and in fact, they intimated the Complainant to take delivery of the possession of the flat No.4D through their letters dated 17.10.2012, 31.12.2012, 06.03.2013 and e-mails dated 17.02.2014, 21.05.2014 and 28.10.2014, but the Complainant did not come forward for registration. There is no denial from the side of Complainant for the same.
20. As against the same, the counsel for Complainant would contend that the due date for completion of the flat is 18.01.2009 and as per the version of the OP No.1 is 31.12.2012, however, the Developer did not complete the flat. Hence, complainant got issued the notice on 04.11.2014, to which, the OP replied on 14.11.2014 and the complaint is filed on 27.03.2015, hence, within limitation. Admittedly, the complaint is filed on 27.03.2015.
21. A perusal of letter dated 17.10.2012 marked as Ex.B22 would go to show that the subject flat is ready for fit-outs. However, the final coat of painting, plumbing fixtures, shower cubicles and modular kitchen would be completed after the fit-outs are carried-out, which mean the flat is not complete. Again under Ex.B23 and B24 the same was informed to the Complainant. Under Ex.B27, the OP No.1 informed that the flat is ready for handover and accordingly requested to complete the formalities.
22. We may state here that though under Ex.B27, it was informed that the flat is complete and ready to handover. Again, under Ex.B28 dated 11.12.2014, in crystal clear terms, the OP No.1 informed the Complainant to pay the balance amount of Rs.32,60,920/-, however, complainant did not respond to these two letters but instead got issued the notice dated 04.11.2014 and 20.11.2014, to which, the Opposite party No.1 replied on 14.11.2014 and 26.11.2014. Admittedly, the Complainant sought for refund of the amount under Ex.A2 notice but the present complaint is filed seeking possession of the flat.
23. The condition No.7(d) of terms and conditions of Ex.A1 Agreement for sale, reads as follows:
“In the event of any further delay beyond the time stipulated in Clause 7(a), 7(b) and 7(c), the Developer and the Land Owner shall pay the Purchaser an amount of Rs.5/- per sft of contracted built-up area for every month of delay upto a maximum of 8 months.”
The Developer did not dispute to comply with the above provision. Admittedly, as per the OP No.1, the house was complete and ready for handover as on 17.10.2012. As per the terms of Agreement of sale dated 18.10.2006, the house was agreed to be constructed within 24 months from the date of agreement with a grace period of 3 months, which would conclude on 18.01.2009. Admittedly, the flat was stated to be complete and ready for handover as on 17.10.2012 with a delay of nearly four years. However, in this regard, we may state that there were some items which were yet to be completed which necessitated the Complainant to file the present complaint. From the above discussions, it is clear that there is gross negligence on the part of the OP No.1.
24. Not keeping-up promise to complete construction of the villa/house/flat within the stipulated period and failure to deliver possession of the flat constitutes deficiency in service on the part of the Developer. The contention of the Developer that the complaint is barred by limitation and that it is not maintainable is not sustainable. To the averment that complaint of Complainant is barred by limitation, the learned counsel for Complainant would contend that since the Developer failed to hand over the possession of the house/villa within the stipulated time, it is a continuing cause of action. In that regard, he relied on the Judgment reported in (2007) 3 SCC 142, decided on 22.02.2007 by the Hon’ble Supreme Court of India, in the matter of Transport Corporation of India Ltd., Vs. Veljan Hydrair Ltd., wherein it is observed as follows:
“Limitation – Whether complaint barred by time – Section 24A of Consumer Protection Act, 1986 – Held, limitation for an action would not start to run until there was a communication from Appellant, either informing about loss or expressing its inability to deliver or refusal to deliver, or until Respondent makes a demand for delivery or payment of value of the consignment after waiting for a reasonable period and there was non-compliance – Hence complaint not barred under Section 24A.”
25. The Complainant entered into agreement for sale dated 18.10.2006 for purchase of flat on his name for his occupation and enjoyment, as such, he falls within the meaning of ‘consumer’ as defined under the Act and the present dispute raised by the Complainant is a consumer dispute. As stated above, though the OP No.1 alleged to have made ready the house for handover on 1710.2012, some items are yet to be completed, which constitutes cause of action which is continuing one. Admittedly, the complaint is filed on 27.03.2015, which is within limitation as the cause of action is continuing one. Nothing is whispered by the OP No.1 during the course of arguments whether the left over items are completed yet or not. Hence, in view of the discussions made above, we answer the points 1 to 3 in favour of the Complainant and against the Opposite parties.
26. POINT No.4 : In the result, the complaint is allowed directing the Opposite parties 1 and 2
(a) to complete the construction of the flat/house bearing No.4D, type-1 on 4th floor in Khandla block comprising of 4584 square feet of super built-up area besides 621 square feet of garden deck, with covered car parking thereon and undivided share of land admeasuring 240 square yards out of total land measuring Ac.16-95 in Sy.Nos.192/P, 196/P and 197/P, situated at the project Hill County, Bachupally village, Qutbullapur mandal, Ranga Reddy district in all aspects, execute the sale deed conveying the above property and also to handover the copy of Occupancy Certificate to the complainant
(b) to pay an amount of Rs.1,83,360/- (i.e., @ Rs.22,920/- per month for 4584 square feet as compensation for a period of 8 months);
(c) The Complainant shall pay the balance sale consideration of Rs.25,67,563/-, in addition to the stamp duty and registration charges to the Opposite parties No.1 and 2.
(d) to pay to the complainant an amount of Rs.5,000/- towards costs.
Time for compliance four weeks.
PRESIDENT MEMBER
Dated : 03.01.2017
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainant : For Opposite parties :
Affidavit evidence of Tella Srinivasa Rao Affidavit evidence of Neerav Kapasi
(on behalf of Ops 1 to 3)
EXHIBITS MARKED
For Complainant :
Ex.A1 is copy of Agreement for sale, dated 18.10.2006 executed by the OP No.1 in favour of the Complainant.
Ex.A2 is office copy of legal notice dated 04.11.2014 got issued by the Complainant to the Ops.
Ex.A3 is the original reply notice, dated 14.11.2014 got issued by the OP No.1 to the counsel for the Complainant.
Ex.A4 is office copy of legal notice dated 20.11.2014 got issued by the Complainant to the OP No.1.
Ex.A5 is original reply notice dated 26.11.2014 got issued by the OP No.1 to the counsel for the Complainant.
Ex.A6 are the original postal receipts (2) nos. and one postal acknowledgement of OP No.1.
Ex.A7 is copy of Fresh Certificate of Incorporation consequent upon change of name of Maytas Properties Limited to Hill County Properties Limited, issued by Registrar of Companies, Andhra Pradesh, dated 16.08.2013.
Ex.A8 is copy of Form-32 showing the appointment of Sri Murlidhar Khattar as Director of M/s Maytas Properties Limited, w.e.f. 30.09.2011 onwards.
For Opposite parties
Ex.B1 is copy of extract of the minutes of the meeting of the Board of Directors of M/s Hill County Properties Limited held on 24.08.2013.
Ex.B2 is copy of Fresh Certificate of Incorporation consequent upon change of name from M/s Maytas Properties Limited to Hill County Properties Limited, dated 16.08.2013 furnished by the Registrar of Companies, Andhra Pradesh.
Ex.B3 is Photostat copy of the orders dated 05.03.2009 IN cp No.04/2009 in CA No.95/09, 96/2009 on the file of Company Law Board, Principal bench, new Delhi.
Ex.B4 is Photostat copy of Attendance-cum-Order sheet of hearing of Principal Bench of the Company Law Board on 13.01.2011 in CP No.04/2009.
Ex.B5 is Photostat copy of Form-32 in respect of the whole-time Director by name Byrraju Ramaraju, Director Datla Gopala Krishnam Raju and Director Datla Venkata Satya Subba Raju declaring to have not associated with Maytas Properties Limited w.e.f. 07.02.2011 and also Form-32 appointing Arun Kumar Saha, as Additional Director of Maytas Properties Limited w.e.f. 22.01.2011.
Ex.B6 is copy of Attendance-cum-order sheet of the hearing of Principal Bench of the Company Law Board on 12.03.2013 in CP No.04/2009.
Ex.B7 is copy of Attendance-cum-order sheet of the hearing of Principal Bench of the Company Law Board on 10.07.2013 in CP No.04/2009.
Ex.B8 is copy of letter dated 25.02.2011 addressed by OP No.1 to its customer appraising the stage of construction of the houses.
Ex.B9 is copy of letter dated 08.04.2011 addressed by OP No.1 to its customer appraising the stage of construction of the houses.
Ex.B10 is copy of letter dated 17.06.2011 and 28.07.2011 addressed by OP No.1 to the Hill County Home Owners informing the stage of construction of the apartment towards and independent houses.
Ex.B11is copy of letter dated 08.09.2011 addressed by OP No.1 to its customers informing the stage of construction of the apartment towards and independent houses.
Ex.B12 is copy of letter dated 25.10.2011 addressed by OP No.1 to its customers informing the stage of construction of the apartment towards and independent houses.
Ex.B13 is copy of letter dated 29.12.2011 addressed by OP No.1 to its customers informing the stage of construction of the apartment towards and independent houses.
Ex.B14 is copy of letter dated 02.03.2012 addressed by OP No.1 to its customers informing the stage of construction of the apartment towards and independent houses.
Ex.B15 is copy of letter dated 16.05.2012 addressed by OP No.1 to its customers informing the stage of construction of the apartment towards and independent houses.
Ex.B16 is copy of letter dated 26.09.2012 addressed by OP No.1 to its customers informing the stage of construction of the apartment towards and independent houses.
Ex.B17 is copy of letter dated 23.08.2013 addressed by OP No.1 to the customers appraising the progress of the work.
Ex.B18 is letter dated 20.07.2012 addressed by the Executive Officer, Gram Panchayat, Bachupalli to the OP No.1 informing the fair rental values.
Ex.B19 are the copies of Occupancy Certificates in respect of the various blocks in the Hill County project of M/s Hill County Properties Limited, dated 05.08.2013, furnished by the Executive officer, Gram Panchayat, Bachupally.
Ex.B20 is copy of the orders dated 05.12.2012 in WP No.9227 of 2010 and batch on the file of Hon’ble High Court of Andhra Pradesh.
Ex.B21 is copy of letter dated 12.12.2012 addressed by the OP No.1 to its customer appraising the progress of construction.
Ex.B22 is copy of intimation letter dated 17.10.2012 addressed by the OP No.1 to the Complainant.
Ex.B23 is copy of intimation letter dated 31.12.2012 addressed by OP No.1 to the complainant.
Ex.B24 is copy of intimation letter dated 06.03.2013 addressed by OP No.1 to the complainant.
Ex.B25 is copy of e-mail dated 17.02.2014 addressed by OP No.1 officials to the complainant, requesting to come forward for registration.
Ex.B26 is copy of e-mail, dated 21.05.2014 addressed by the OP No.1 officials to the complainant.
Ex.B27 is copy of e-mail, dated 28.10.2014 addressed by OP No.1 officials to the complainant.
Ex.B28 is copy of letter dated 11.12.2014 addressed by OP No.1 to the Complainant requesting to pay the outstanding amounts.
Ex.B29 is copy of letter dated 31.05.2013 addressed by OP No.1 to its customers.
Ex.B30 is copy of letter dated 17.01.2014 addressed by OP No.1 to its customers.
Ex.B31 is copy of letter dated 22.08.2014 addressed by OP No.1 to its customers.
Ex.B32 is copy of letter dated 16.05.2015 addressed by OP No.1 to its customers.
Ex.B33 are copies of the Occupancy Certificates, dated 05.08.2013 in respect of various blocks in the Hill County project of M/s Maytas Properties Limited, furnished by the District Panchayat Officer, Rangareddy district.
Ex.B34 is the copy of orders in WVMP No.3074/2014 in WPMP No.31171/2014 in WP No.24914/2014, dated 02.12.2014 passed by the Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh.
Ex.B35 is copy of the Occupancy Certificate, dated 05.08.2013 in respect of various blocks in the Hill County Project of M/s Hill County Properties Limited, furnished by the Executive Officer, Gram Panchayat, bachupally.
Ex.B36 are the photographs showing the completion of the subject flat and apartment in question, as on 18.11.2016.
Ex.B37 are the photographs showing the apartments towers view and the e-deck at Hill County as on 18.11.2016 and 19.11.2016.
Ex.B38 is office copy of the reply notice, dated 14.11.2014 got issued by the OP No.1 to the counsel for the Complainant.
PRESIDENT MEMBER
Dated : 03.01.2017
