BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
CC 41 of 2012
Between:
1) Mrs. Sunanda,
W/o. Randhir Thakur
2) Randhir Thakur,
S/o. Late Radhuraj Singh
R/o. 2-2-25/P/3
DD Colony, Baghamberpet
Hyderabad. *** Complainants
And
1) M/s. Cyberabad Hitech Integrated Township
Development Corporation Pvt. Ltd.
Rep. by its Managing Director
Regd. Office at : 1009, Phase-XIII
Kukatpally, Hyderabad.
2) I. Syam Prasad Reddy
S/o. Late Venku Reddy
Whisper Valley, H.S. Durga
Hyderabad-8.
*** Opposite Parties
CC 42 of 2012
Between:
1. Mrs. Sunanda,
W/o. Randhir Thakur
2. Randhir Thakur,
S/o. Late Radhuraj Singh
R/o. 2-2-25/P/3
DD Colony, Baghamberpet
Hyderabad. *** Complainants
And
1) M/s. Cyberabad Hitech Integrated Township
Development Corporation Pvt. Ltd.
Rep. by its Managing Director
Regd. Office at : 1009, Phase-XIII
Kukatpally, Hyderabad.
2) I. Syam Prasad Reddy
S/o. Late Venku Reddy
Whisper Valley, H.S. Durga
Hyderabad-8.
*** Opposite Parties
Counsel for the Complainants: M/s. G. Nanda Gopal
Counsel for the Opposite Parties : M/s. V. Gourishankara Rao
CORAM:
SMT. M. SHREESHA, PRESIDING MEMBER
&
SRI S. BHUJANGA RAO, MEMBER
TUESDAY, THE TWENTY SIXTH DAY OF MARCH TWO THOUSAND THIRTEEN
ORAL ORDER: (Per Smt. M. Shreesha, Member)
***
1) The above complaints are filed u/s 17 (a)(1) of the Consumer Protection Act seeking direction to Opposite Parties to deliver possession of flat Nos. 61207 & 61208 in MAPLE block and pay interest of Rs. 6,57,273/- for the delay together with compensation and costs.
2) Since the facts and law involved in both the above complaints are similar filed against the very same opposite parties, we dispose of them by this Common order.
3) The brief facts as stated in the complaint are that the complainants have entered into an agreement of sale on 12.10.2007 with the Op for purchase of flat No. 61207 in 12th floor MAPLE Block admeasuring 1931.90 sft together with undivided share of land at “Indu Fortune Fields (Gardenia) in S.No. 1009, KPHB Colony, Kukatpally, Ranga Reddy district for a total consideration of Rs. 51,07,485/-. The Op issued an allotment letter on 12.10.2007 and the complainants submitted that they had paid an advance of Rs. 11 lakhs at the time of agreement of sale and balance consideration of Rs. 44,07,485/- has been arranged through HDFC bank. The complainant submit that they had repaid the bank loan along with interest on 22.11.2011.
4) As per the agreement of sale the Op has to complete the said construction within 24 months from the date of approval with a grace period of additional three months. 24 months from the date of agreement of sale + three months grace period ends by 12.1.2010. The Op did not deliver the possession. The complainants rely on clause 6(d) of the agreement of sale which states as follows :
“The purchaser shall take possession of the schedule-C i.e., said flat after paying in full all the dues including deposits and charges mentioned in this agreement and overdue interest if any, within 15 days from the date of receipt of notice in writing from the developer intimating that the schedule-C property is ready for use and occupation.”
5) The complainants submit that in spite of several requests the Op did not did not deliver the possession of the flat and hence this complaint seeking direction to the Op to register and deliver possession of flat No. 61207 in 12th floor of MAPLE Block and also pay an amount of Rs. 6,57,273/- towards interest for the delayed period from 2010 to 22.11.2011 together with compensation of Rs. 2 lakhs and costs.
6) The Ops filed their written version stating that Op1 is a private limited company and Op2 is the managing director of Op1 and that the directors are not liable for the debts of the company, and therefore the complaint is not maintainable against Op2 in his individual capacity. The Ops admit that the complainants entered into an agreement of sale on 12.10.2007 with Op1 for purchase of flat No. 61207 in the 12th floor and admit that the sale consideration is Rs. 51,07,485/- and the cost of amenities is Rs. 6,37,711/-. The complainants have to make the payments as per the schedule-G of the allotment letter i.e.,
20% at the time of booking,
15% at the time of execution of agreement of sale.
15% in August, 2007
15% in December, 2007
15% in March, 2008
10% in August, 2008 and
balance 10% in December, 2008.
Thus the complainants are still due an amount of Rs. 5,10,748/- for flat unit cost plus amenities cost of Rs. 6,37,711/- totalling Rs. 11,48,459/- to the Op. As per clause 1(a) of the agreement of sale ’the sale consideration is exclusive of car parking, corpus fund, maintenance charges and taxes such as VAT, service tax, stamp duty, and such other taxes that may be introduced by the Govt./APHB or any other statutory authorities. The complainants are due for payment of part amount towards flat unit cost and total amount due towards amenities cost. The complainants are defaulters as per books of account of the OP. The allottees have to pay stamp duty, registration charges, transfer, legal charges, deposits for water and electricity connections, maintenance for common facilities, car park, corpus fund and other charges as may be levied.
It is further submitted that as per payment schedule the complainants have to pay :
Rs. 10,21,497/- on 04.04.2007
Rs. 7,66,123/- on 06.05.2007
Rs. 7,66,123/- on 23.08.2007
Rs. 7,66,123/- on 05.12.2007
Rs. 7,66,123/- on 15.03.2008
Rs. 5,10,748/- on 13.08.2007
Rs. 5,10,748/- on 30.12.2008
The complainants paid an amount of Rs. 11 lakhs but did not pay any amounts towards car parking (double), corpus fund, maintenance, piped gas, water and electricity as agreed. On 18.5.2011 the Ops wrote a letter to the complainants to pay the due amounts which were pending since December, 2008. The Op also issued final reminder on 6.4.2011 through e-mail to hand over possession of the flat to the complainants subject to payment of balance towards unit cost and amenities cost. On 8.7.2011 the Op intimated to the complainants that the flat was ready and requested to make due payments. The complainants visited the flat only in the month of January, 2012 and suggested some changes which the Op rectified by 1st week of April, 2012 and kept the flat under observation for two weeks for testing the leakages. On 17.4.2012 the Op informed the complainants that the flat is ready for occupation and requested to pay the due amount of Rs. 11,48,459/-. The Ops are entitled to claim interest @ 18% p.a. as per clause-2 of the agreement of sale for any default in payments. It is the complainants who are defaulters and there is no deficiency in service on their behalf and seek dismissal of the complaint with costs.
7) The complainants filed their affidavits by way of evidence and filed Ex. A1 to A6 are marked on their behalf. The Ops also filed their affidavits by way of evidence and Ex. B1 to B9 are marked on their behalf.
8) The brief point that arises for consideration is whether there was any deficiency in service on behalf of Ops and whether the complainants are entitled to the reliefs sought for in the complaint?
9) The facts not in dispute are that the complainants entered into agreement of sale with Ops on 12.10.2007 evidenced under Ex. A1 for purchase of flat No. 61207 in 12th floor MAPLE block admeasuring 1931.90 sft together with undivided share of land at ‘Indu Fortune Fields (Gardenia)’ in S.No. 1009, KPHB Colony, Kukatpally for a total consideration of Rs. 51,07,485/- and paid an advance of Rs. 11 lakhs on the date of agreement and agreed to pay balance of sale consideration of Rs. 40,07,485/- as per Schedule-G. It is also not in dispute that as per the agreement of sale the said flat is supposed to be handed over to the complainants within 24 months from the date of approvals + 3 months grace period and equally the complainants have to pay the amounts as per Schedule-G which is payment schedule. Ex. A1 agreement of sale gives the schedule of payment:
Schedule-G
20% at the time of booking,
15% at the time of execution of agreement of sale.
15% in August, 2007
15% in December, 2007
15% in March, 2008
10% in August, 2008 and
balance 10% in December, 2008.
10) It is the complainants case that in spite of payment of a major portion of sale consideration, the Ops did not deliver the possession of flat. Ex. A3 evidences that the complainant had taken a housing loan from HDFC bank which has also been repaid. Ex. A2 includes tripartite agreement between the Ops, HDFC bank and the complainants herein. The complainants sent an e-mail on 24.8.2011 to the Ops stating that as the flat Nos. 61207 and 61208 of ‘Indu Project’ have not been delivered to them on time they have been paying substantial amount of interest on home loans. Thereafter there is correspondence between the complainants and Ops evidenced under e-mails Ex. A4 and on 25.8.2011 the complainants vide e-mail had sought for compensation for the expenses incurred by the complainants because of the delay in handing over the possession. The Ops vide their e-mail dt. 14.7.2011 stated that the apartment is ready for possession and that they are not ready to pay interest on behalf of the complainants. Ex. A5 is the certificate of incorporation of the company. Ex. A6 is the legal notice got issued by the complainants to Op1 on 24.3.2012 seeking for handing over possession of flat No. 67207. Ex. B1 to B4 are the exchange of e-mails between the parties dt. 17.4.2012, 14.2.2012, 8.7.2011 in which the complainants have sought for some rectification of defects i.e, water seepage from the ceiling for which Ops vide Ex. B2 replied that the said seepage would be rectified. Ex. B4 e-mail evidences that the flat was ready for occupation as on 8.7.2011 but there after the complainants have sought for rectification of some leakages which was done by the Ops subsequently. Ex. B5 is an e-mail dt. 6.4.2011 addressed to complainants in which Ops have stated that “this is to inform you that your unit is ready for final handover. Request you to please make the balance payment if any at the earliest and take hand over of the unit. You are also requested to visit the office for an inspection latest by 15.4.2011 failing which the unit will be deemed as final hand over.” Ex. B6 is the letter addressed by Op1 to the complainants demanding them to pay outstanding amount of Rs. 9,48,959/- together with interest at Rs. 2,18,376/- as per clause 2(b) of the agreement of sale which states that the payments not received on time will attract an interest @ 18% p.a. Ex. B7 is the demand note which gives the breakup of the amount of Rs. 11,48,459/- as follows :
1. Unit cost due Rs. 5,10,748/-
2. Car Parking Rs. 3,50,000/-
3. Corpus Fund Rs. 1,00,000/-
4. Maintenance Rs. 35,711/-
5. Piped Gas Rs. 27,000/-
6. Water & Electricity Rs. 1,25,000/-
--------------------
Total Rs. 11,48,459/-
--------------------
11) Ex. B8 gives the payment schedule which has to be made as per the agreed terms. The counsel for the complainants submitted that there is no evidence to show that there are dues from them whereas Ops counsel submits that Ex. B7 and B8 show the outstanding amounts from the complainants.
12) The Ops counsel submitted that they are ready and willing to deliver the flat if the complainants are ready to pay the dues. Since there is contributory negligence on behalf of both sides i.e, the complainant have not paid the outstanding amounts, equally the Ops have not delivered the said flat to the complainants in defect free condition i.e., rectification of leakages of seepage. The learned counsel for the complainant filed a statement of account stating the payments made by the complainants for flat Nos. 61207 & 61208 which reads as follows :
Statement of Account for the flat Nos. 61207 & 62108
Total Cost of the two flats
Flat No. 61207 Rs. 51,07,485
Flat No. 61208 Rs. 35,69,070
------------------ 86,76,555
Less: Advance paid for
both the flats Rs. 17,21,210
Less: Amount paid by the
Bank Rs. 60,87,688
------------------ 78,08,898
--------------
Balance outstanding 8,67,657
Add: Amenities for flat No. 61207
(Car parking double, corpus fund etc.) 6,37,711
Add: Amenities for flat No. 61208 20,122
----------- 6,57,833
---------------
Total due amount including 15,25,490/-
Amenities to Ops ---------------
i.e., CC No. 41/2012 Rs. 11,48,459/-
CC No. 42/2012 Rs. 3,77,031/-
13) Keeping in view the facts and circumstances of the case, we are of the considered opinion that the complainants have to pay Rs. 11,48,459/- in CC No. 41/2012 and Rs. 3,77,071/- in CC 42/2012 and the opposite parties within four weeks from the date of receipt of this order and on receipt of such amounts from the complainants, shall hand over possession of flat No. 61207 and flat No. 61208 to the complainants herein in a defect free condition.
14) The learned counsel for the complainants submitted that the complainants are entitled to interest on the amounts paid to the bank as there was delay in handing over possession of flats by the opposite parties. Equally the counsel for the opposite parties contended that they were ready and willing to hand over possession of flats but complainants have not paid the entire amounts.
15) We rely on Clause-6 of the agreement with respect to delivery of possession. It states that the opposite parties should deliver the flats within 24 months from the date of approvals + three months grace period. The date of agreement is dt. 12.10.2007. Clause-6(d) of the agreement reads as follows:
“The purchaser shall take possession of the schedule-C i.e., said flat after paying in full all the dues including deposits and charges mentioned in this agreement and overdue interest if any, within 15 days from the date of receipt of notice in writing from the developer intimating that the schedule-C property is ready for use and occupation”
16) It is an admitted fact that the complainants did not pay the full sale consideration, equally there is contributory negligence on both sides. We observe from the record that the opposite parties have sent e-mails asking the complainants to take possession of flats only in the year 2011 and then after that leakages were rectified for which act a reasonable compensation of Rs. 1 lakh is to be paid by the opposite parties to the complainants.
17) For the aforementioned reasons, as the complainants did not pay the entire sale consideration as agreed upon, we are of the considered view that they are not entitled to interest on the amounts paid by them to the bank.
18) In the result both the complaints are allowed in part and the opposite parties are directed to hand over possession of flat No. 61207 and flat No. 61208 to the complainants after receipt of balance sale consideration of Rs. 11,48,459/- in CC No. 41/2012 and Rs. 3,77,031/- in CC No. 42/2012 within four weeks from the date of receipt of this order. Further the opposite parties are directed to pay a compensation of Rs. 1 lakh and costs of Rs. 10,000/- in each complaint.
1) _______________________________
PRESIDING MEMBER
2) ________________________________
MEMBER
CC No. 41/2012
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
COMPLAINANTS OPPOSITE PARTIES
None None
DOCUMENTS MARKED FOR COMPLAINANTS:
Ex A1 12.10.2007 Agreement of sale.
Ex. A2 24.10.2007 Tripartite agreement
Ex. A3 12.11.2011 Certificate issued by HDFC bank as to sanction of loan
of Rs. 74 lakhs to complainants
Ex. A4 ---- Bunch of e-mails exchanged between the parties.
Ex. A5 07.12.2001 Certificate of incorporation of Op company.
Ex A6 24.03.2012 Legal notice got issued by complainant to Ops.
DOCUMENTS MARKED FOR OPs:
Ex. B1 --- e-mails exchanged between the parties.
To
Ex. B5
Ex. B6 18.05.2011 Pre-cancellation letter sent by Ops to complainant.
Ex. B7 --- Demand notice of Ops for unit No. 61207
Ex. B8 --- Payment schedule relating to unit No. 61207
Ex. B9 20.10.2010 Letter of Ops to complainants about installation of
Electricity meter and payment of bills every month.
CC No. 42/2012
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
COMPLAINANTS OPPOSITE PARTIES
None None
DOCUMENTS MARKED FOR COMPLAINANTS:
Ex A1 12.10.2007 Agreement of sale.
Ex. A2 12.10.2007 Allotment letter.
Ex. A3 12.11.2011 Certificate issued by HDFC bank as to sanction of loan
of Rs. 74 lakhs to complainants
Ex. A4 ---- Bunch of e-mails exchanged between the parties.
Ex. A5 07.12.2001 Certificate of incorporation of Op company.
Ex A6 24.03.2012 Legal notice got issued by complainant to Ops.
DOCUMENTS MARKED FOR OPs:
Ex. B1 --- e-mails exchanged between the parties.
To
Ex. B5
Ex. B6 18.05.2011 Pre-cancellation letter sent by Ops to complainant.
Ex. B7 --- Demand notice of Ops for unit No. 61208
Ex. B8 --- Payment schedule relating to unit No. 61208
1) _______________________________
PRESIDING MEMBER
3) ________________________________
MEMBER
26/03/2013
*pnr
UP LOAD – O.K.
