BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD.
C.C.No.95 OF 2010
Between:
Ras Behari Sen S/o Bipin Behari Sen
aged about 62 years, Occ: Retired from service
R/o Flat No.103, Om Sree Neelesh Enclave
1-30-355, Plot No.40, Opp: Nalla Pochamma Temple
Kanajiguda Trimulgherry, Secunderabad-015
Complainant
AND
- M/s Indrani Constructions
Plot No.C. Second Floor, Avanthi Colony
Kharkhana, Secunderabad
rep. by its Managing Partner
Mr.S.Krishnamurthy S/o Mr.K.Subrahmaniam
aged about 33 years, Occ: Business
R/o Plot NO.53, Brooke Bond Colony,
Kakaguda, Secunderabad
- Mr.S.Krishnamurthy S/o Mr.K.Subramamiam
aged about 33 years, Occ: Managing Partner
M/s Indrani Constructions R/o Plot NO.53,
Brooke Bond Colony, Kakaguda
Secunderabad
Opposite parties
Counsel for the complainants Sri N.Balu
Counsel for the opposite parties Sri Suresh Kumar Bang
QUORUM: SRI R.LAKSHMI NARASIMHA RAO, HON’BLE MEMBER
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER
FRIDAY THE TWENTY SEVENTH DAY OF APRIL
TWO THOUSAND TWELVE
Oral Order:(Per Sri R.Lakshmi Narasimha Rao, Hon’ble Member.)
***
1. The complainant filed the complaint seeking direction to the opposite parties to pay a sum of `35,42,000/- which includes the amounts paid towards the cost of the flat amounting to `24,42,000/- together with `10 lakh towards compensation and also prayed to stay of any further operations of the opposite parties to enable the settlement of matters with the complainant.
2. The averments of the complaint are that the complainant entered into agreement for sale and Agreement for construction with the opposite parties no. 1 and 2 to purchase the flat no.103, first floor-,admeasuring 1421 sft including common area in the premises of plot nos.24,25,27 and 28 at Bharani Colony, Ramakrishnapuram, Secunderabad. The complainant entered into agreement for sale with the opposite parties no.1 and 2 on 30.01.2009 to purchase the flat for sale consideration of `30,42,000/- and as per the terms of the agreement, the complainant paid the sale consideration of `25,42,000/- to the opposite parties no.1 and 2 and the opposite parties no.1 and 2 have to deliver possession of the flat within three months from the date of execution of the agreement.
3. The opposite parties no.1 and 2 did not complete the construction of the flat. The complainants got issued notice dated 10.03.2010 requesting the opposite parties no.1 and 2 to complete the construction work of the flat. As per the terms of the agreement of sale, the flat has to be handed over to the complainant on or before 30.04.2009. The opposite parties had not completed the construction work of the flat
4. The opposite parties no.1 and 2 filed counter contending that the first opposite party started construction work and completed the ground floor and upper five floors in super structure. The rest of the construction work could not be completed due to global recession, position of the state of affairs and market trends of the reality sector besides the issue of Telangana as a result of which there was financial crunch and the purchasers of the flat failed to pay the amounts as agreed. About 90% of the work of the building has been completed by the respondents by availing loan on higher interest. It is contended that the complainant agreed to wait till completion of the project and demanded for compensation of `6/- per sq.feet per month against the agreed amount of `2/- per sq.feet per month. The opposite parties agreed to pay the compensation as agreed under the agreement of sale and construction or in the alternate requested the complainant to deduct the compensation amount out of the balance sale consideration payable by him at the time of execution and registration of the sale deed. Only minor work is to be completed in the flat besides providing common amenities such as supply of electricity, water, drainage and installation of elevator and generator.
5. The complainant filed his affidavit and five documents which have not been marked. On the side of the opposite parties, the opposite party no.2 has filed his affidavit but no documents.
6. The points for considerations are:
i) Whether there is deficiency in service on the part of the opposite parties?
ii) To what relief?
7. POINT NO.1: There is no dispute of the fact that the opposite parties no.1 and 2 entered into agreement of sale-cum-agreement for construction with the opposite parties no.1 and 2 for construction of the flat. As per clause 3 of the agreement of sale the opposite parties no.1 and 2 have to complete construction work of the flat and hand over it to the complainant within three months from the date of agreement of sale , i.e., 30.1.2009.
8. The complainant paid the amount of `25,42,000/- on various dates till 25.3.2009. As per the terms and conditions of the agreement, the complainant has to pay balance sale consideration at the time of handing over of the flat by the opposite parties no. 1 and 2. The opposite parties no.1 and 2 state that entire construction work except the finishing work has been completed whereas the complainant submits that the construction work has not been completed, he has requested the opposite parties for several times to complete the construction of the flat as per the terms of the agreement. Only minor works are to be completed in the flat besides providing common amenities such as supply of electricity, water, drainage and installation of elevator and generator. The learned counsel for the complainant submits that the inordinate delay caused by the opposite party in completing the service, delay in building plan approval obtained by the opposite parties from the municipal authorities and that the opposite parties failed to complete the construction of flooring, sump, erection of transformer, drainage and water connection as also borewell and elevator.
9. He has submitted that the opposite parties failed to furnish copy of occupation certificate to the complainant. He submits that delivery of possession of the flat without an occupation certificate is an illegal act. The learned counsel contends that as per the agreement of sale, the opposite parties are liable to pay an amount of `2/- per sft towards compensation for the delay caused in completion of the construction of the flat.
1. Lucknow Development Authority Vs M.K.Gupta reported in AIR 1994 Supreme Court 787
2. Mrs Veena Khanna of New Delhi Vs M/s Ansal properties and Adharshila Towers, New Delhi decided on 9.7.2007.
10. In Lucknow Development Authority’s case the Hon’ble Supreme Court observed:
If the service is defective or it is not what was represented then it would be unfair trade practice as defined’ in the Act. Any defect in construction activity would be denial of comfort and service to a consumer. When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immoveable property as argued but deficiency in 17 rendering of service of particular standard, quality or grade. Such deficiencies or omissions are defined in Sub-clause (ii) of Clause (r) of Section 2 as unfair trade practice.
11. In Mrs Veena Khanna’s case, the complainant demanded for refund of the deposited amount on the premise that the builder failed to show progress in the construction work of the building. The National Commission held that “because of delay in construction and delay in deciding the matter, it is practically impossible for a retired government employee to purchase a flat at the present price. Therefore, there are two alternatives, a) one is to give adequate compensation for delay and to direct the opposite parties to hand over possession of an alternative flat in the vicinity of the area where the flat was allotted to the complainant b) or secondly, to pay adequate compensation to enable the complainant to purchase a new flat of the same area in the same or similar locality”. The National Commission awarded an amount of `7,50,000/- as compensation to the complainant on the premise that the value of the flat was escalated.
12. The opposite parties no.1 and 2 have not completed the constriction of the flat bearing number 103 despite receipt of the amount of `25,42,000/- from the complainant and the failure of the opposite parties no.1 and 2 to carry out the construction work in accordance with the terms of the agreement of sale constitutes deficiency in service on their part. The complainant is entitled to compensation for being deprived of the amount and the flat for a considerable period of time. As per clause 3 of the agreement, the opposite parties agreed to pay `2/- per sft to the complainant on their failure to complete the construction of the flat within 3 months from the date of the agreement.
13. In the result, the complaint is allowed and the opposite parties no. 1 and 2 are directed to complete the construction of the flat bearing number 103 at Bharani Colony, Ramakrishnapuram and provide amenities to the flat and pay an amount of `2/- per sft per month from 30.4.2009 till payment together with costs of `3,000/-.
MEMBER
MEMBER
Dt.27.04.2012
KMK*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
NIL
EXHIBITS MARKED
For Complainant : NIL
For opposite parties : NIL
MEMBER
MEMBER
