C.C.No.30 OF 2011

Between

Mr.Levaku Usha Reddy

D/o.L.Venkata Rami Reddy

Aged 36 years, Occ:Employee

H.No.6-1-1059, Flat No.505,

Taj Enclave, Khairatabad,

Hyderabad-500 004                                             ..Complainant

        And

1. M/s.Modi Builders & Realtors Pvt. Ltd.,

    A registered company having its

    Registered office at 5-4-187/3&4, III floor

    Soham Mansion, M.G.Road, Secunderabad

     Represented by its Managing Director

     Shri Sourabh Modi S/o.Shri Sathish Modi

     R/o.Plot No.280, Road No.25, Jubilee Hills,

     Hyderabad-500 034.

2.  M/s.Grandeur Homes Pvt.Ltd,

    A registered company having its

    Registered office at 5-4-187/3&4, III floor

    Soham Mansion, M.G.Road, Secunderabad

     Represented by its Managing Director

     Shri Sourabh Modi S/o.Shri Sathish Modi

     R/o.Plot No.280, Road No.25, Jubilee Hills,

     Hyderabad-500 034.

3. Shri Sourabh Modi S/o.Shri Satish Modi,

    Reptd. By Managing Director,

    M/s.Grandeur Homes Pvt.Ltd,

    A registered company having its

    Registered office at 5-4-187/3&4, III floor

    Soham Mansion, M.G.Road, Secunderabad

    R/o.Plot No.280, Road No.25, Jubilee Hills,

    Hyderabad-500 034.                                            Opp.parties 1 to 3

Counsel for the Complainant         :  Mr.K.Ravindra Babu

Counsel for the Opposite parties   : M/s.C.Balagopal

QUORUM:SMT.M.SHREESHA, HON’BLE Incharge President.

AND

SRI S.BHUJANGA RAO, HON’BLE MEMEBR.

MONDAY, THE THIRTY FIRST DAY OF DECEMBER,

TWO THOUSAND TWELVE

Order (Per Smt.M.Shreesha, Hon’ble Member)

***

        The brief facts as stated in the complaint are that the complainant lured by the advertisements of Ultra Luxury Residential Apartments i.e. Splendour situated at Sy.No.157(p) of Gajularamaram village, Quthbullapur Mandal, Ranga Reddy District decided to purchased flat No.401 in 4^th floor Block ‘A’ of Splendour  and booked the same on 16-12-2007 by paying an advance of Rs.75,000/- and also signed the provisional booking form and the opposite parties issued a receipt 047 dated 16-12-2007.  The complainant submitted that though the brochure of the opposite parties specifically mention that the consideration of the flat includes registration charges, vat and service tax surprisingly at the time of booking the flat in the Provisional booking form it was stated contrary to the brochure that the registration, vat and service tax are applicable.  The complainant submitted that the salient features of Splendour are:

·        410 Ultra luxury apartments over an area of about 4.5 acres

·        World class amenities

·        Completely residential and approved by HUDA

·        Vaasthu complaint

·        Project approved by leading banks and institutions

·        Builders with exemplary track record

·        About 12 km from Hitech City/cyber towers and about 5 km from Kukatpally

and the following amenities are promised:

        Common amenities:

·        Landscaped Gardens

·        Children’s playgrounds

·        Swimming pool with Jacuzzi

·        Sports facilities

·        Clubhouse (38000 sft)

·        Security

Completely compounded

CCTV to security room for effective surveillance

24 hours security, intercom facility between the flats and

the security area.

Panic buzzer from each flat to security room

·        Fire Safety

Smoke detectors in each flat

Fire fighting equipment as required by fire authorities

·        Parking

Double cellar car parking with pre allocated car parks for each apartment.

The complainant submitted that opposite parties executed registered sale deed vide document No.2056/08 dated 15-2-2008 in favour of the complainant for semi finished flat No.401, 4^th floor, Block-A having 1493 sft. and 440 sft. common areas together with undivided share of land to an extent of 48.3 sq. yds. and reserved double parking slot No.C1, C 31 and 32 for a total sale consideration of Rs.11,85,692/- as a package in the group of opposite parties Housing scheme.  The complainant submitted that on the same day, opposite parties entered into a registered agreement for construction of Semi Finished flat vide document bearing No.2057 dated 15-2-008 for a total consideration of Rs.29,58,388/- fixing the schedule of payment as follows:

        The complainant submitted that as on 22-3-2010, the complainant paid Rs.41,06,921/- out of total agreed consideration almost covering 100% payment except payment of small balance amounts which are to be paid on intimation from opposite parties that they are going to handover the flat with all salient features.  The particulars of payment made by the complainant to the opposite parties are as follows:

The complainant submits that though she paid 97.3% to the opposite parties well in advance, the opposite parties in their correspondence threatened her to impose penal interest if future instalments were not paid which indicates their aim to extract the amounts as much as possible.  The complainant submitted that the opposite party to her surprise got issued a legal notice dated 21-6-2010 stating that a sum of Rs.2,07,218/- is due from the complainant for flooring and she paid only Rs.1,00,000/- and she has to pay Rs.1,07,218/- and also threatened to impose interest.  The complainant submitted that though she already paid the cost of flooring, she paid further sum of Rs.1,00,000/- though she was not liable to avoid disputes and also gave reply to the legal notice on 07-7-2010 bringing the above mentioned facts and also raised her objection with regard to poor quality of the work and also suggested to arrange for joint visit  to the venture but there was no reply.  The complainant submitted that at no point of time, the opposite parties committed themselves that the venture is ready in all respects and the complainant is due payment of balance amount for handing over possession.  The complainant submitted that so far the opposite parties have not obtained drinking water connection and the condition at site are pathetic without proper roads, parking or any other facilities with unliveable conditions.  The complainant submitted that she noticed that the quality of the construction is very poor and there is no progress of work and there was no hope of the opposite parties completing the venture in time and all the works are stand still.  The complainant submitted that as per term No.9 of construction agreement dated 15-2-2008, the opposite parties have an obligation to deliver the apartment on or before December, 2009 with a further grace period of 6 months but they failed to fulfil the commitments promised by them in terms of the agreement and caused huge financial loss to the complainant.  The complainant submitted that since the flat owners are questioning the quality of work and pressurizing to deliver possession, the opposite parties are not allowing the complainants to visit their flats to know the progress of the work which shows that they have breached the terms and conditions.  The complainant submitted that in terms, clause No.5 unnumbered term of page 5 of sale deed  and clause 16 of construction agreement speaks that the complainant is entitled to claim her entire consideration paid to the opposite parties together with interest at 18% p.a. as damages in case of any breach or violation of obligation from opposite parties side.  The facts and circumstances prove that the opposite parties violated the commitments promised by them and adopted unfair trade practice and deficiency in service and therefore she got issued a legal notice on 29-10-2010 calling upon the opposite parties to deliver possession of the flat with all agreed standards in terms of the agreement or to pay back the entire sale consideration together with interest at 18% p.a. from the date of booking of the flat together with damages within 15 days for which the opposite parties issued a false reply stating that the complainant has not come forward to take possession of the flat and the opposite parties are entitled to charge Rs.10,000/- per month towards holding charges as per clause 12 of the agreement of construction dated 15-12-2008 together with interest.  The complainant submits that the contention of the opposite parties is totally false and submitted that there was no communication from the opposite parties at any point of time offering possession of the flat and submitted that the photographs filed by her show that the stand taken by opposite parties is totally false.  The complainant submitted that in her several representations, she expressed her willingness to pay the balance consideration at any time in the event of delivery of flat with all amenities in terms of brochure and submitted that she was not a defaulter and paid 99% of the consideration even before the agreed schedule of payment and the opposite parties are not entitled for any penal interest or holding charges as claimed by them.  The complainant submits that even the other flat owners also expressed by way of representations that the quality of construction is poor and filed the correspondence of other flat owners in proof of her case.  She further submitted that the opposite parties have increased the number of flats from 410 to 490 thus misguiding all the flat owners.  The complainant submitted that had she invested her amount in other financial institutions, she would have got interest of Rs.8,84,496/- periodically and had the opposite parties delivered the flat in time, she would have got rental income of Rs.3,60,000/- and submitted that the delay in completion of work and delivering of possession is only due to diversion of the amounts of the flat owners to the other residential projects of the opposite parties which caused her and her family members severe mental agony.  Hence the complaint for a direction to the opposite parties to return the entire sale consideration of Rs.41,06,921/- together with interest at 18% p.a.  in terms of clause 5 and clause 16 of the agreements from 16-12-2007 till payment and to further direct the opposite parties to pay interest paid by the complainant to the financial institutions for her loan account, to pay damages of Rs.3,60,000/-, compensation of Rs.1,50,000/- for the mental agony suffered by her and her family members.

        Opposite party No.2 filed written statement which was adopted by opposite parties 1 and 3 resisting the complaint.  They admitted that the complainant booked a flat No.401 in 4^th floor of ‘A’ block but denied that the brochure specifically mentions that the consideration of the flat includes registration charges, VAT and service tax and submitted that the said charges are excluding the consideration and are always charged extra.  They admitted that they have executed the registered sale deed dated 15-2-2008 for flat No.401 having built up area of 1493 sft. with 440 sft. of common area together with undivided share of land of 48.3 sq.yds. along with reserved double parking slot No.C1, C31 and C32 for a consideration of Rs.11,85,692/- and that they entered into registered agreement for construction dated 15-2-2008 for a consideration of Rs.29,58,388/- which was to be paid in instalments as specified in the agreement.  Opposite parties submitted that the complainant was never paid the instalments promptly and always  delayed the payments due to which interest on the over dues accumulated and she used to release the payments only after receiving the notices from them and relied on one  such letter dated 06-2-2010 where they demanded the complainant to release the instalment of Rs.2,07,218/- for completion of flooring but after receiving the said notice, she released only Rs.1,00,000/- and thereby they got issued a legal notice on 21-6-2010 for payment of further amount of Rs.1,07,218/- which the complainant failed to comply.  Opposite party No.2 submitted that after the construction of entire ‘A’ block was completed long ago and more than 50 flats have been occupied and similarly flat No.401 was also completed long back and the same was intimated to the complainant several times and requested for payment of the balance amount and take possession of the flat but the complainant never turned up and delaying to gain unlawfully and he also relied on the latest photographs of flat No.402 along with electricity bills from February, 2011 to April, 2011 pertaining to flat No.401.  Opposite party No.2 denied the allegation that the complainant paid upto 97.3% to opposite parties well in advance and that they used to threaten to impose penal interest and also denied the other allegation that the conditions at site are pathetic without proper roads, parking or other facilities and relied on the photographs.  Opposite party No.2 has denied  that terms of clause No.5 of sale deed and clause 16 of construction agreement speaks that the complainant is entitled to claim her entire consideration paid to the opposite parties together with interest @ 18% p.a. as damages in case of any breach or violation  and submitted that the complainant has wrongly interpreted the said clauses and submitted that the complainant is entitled for refund of the amount paid only when the builder due to any dispute wants to cancel the sale deed or agreement of construction and in this case they are not intending to cancel the sale deed or agreement of construction and in fact they had completed the construction of the flat long ago and wanted to deliver possession after receiving the balance amounts and submitted that they had not breached the terms of the contract nor violated any commitments promised by them and submitted that there is no deficiency in service.  They further submitted that the complainant got issued a legal notice dated 29-10-2010 seeking delivery of possession of the flat with all false allegations and that opposite party No.2 had got issued a reply dated 15-11-2010 denying the allegations made and clearly mentioned that the possession of the flat will be handed over upon payment of balance dues but the complainant instead of paying the balance dues and taking possession of the flat filed the complaint with false allegations and prayed to dismiss the complaint with costs.

        The complainant in proof of her case filed her affidavit reiterating the facts stated in the complaint and relied on Exs.A1 to A18   while the opposite parties filed the affidavit of Managing Partner of opposite party No.2 reiterating the facts stated in the written version and relied on Exs.B1 to B3.

        It is the complainant’s case that they have booked flat No.401 in Block ‘A’ in Ultra Luxury Residential Apartments on 16-12-2007 by paying Rs.75,000/- as advance for which a receipt was issued by the opposite parties.  The opposite parties entered into an agreement of construction (Ex.A3) and executed a registered sale deed on 15-2-2008 (Ex.A2) for a semi finished apartment of 1493 sq. ft. built up area and 440 sq. ft. common area together with an undivided share of land 48.3 sq. yds. respectively  and also reserved double parking slot No.C-1, C31 and C32  for a total sale consideration Rs.11,85,962/- evidenced under Ex.A2 and Rs.29,58,388/- evidenced under Ex.A3 which is the agreement for construction of semi finished flat.  It is the complainant’s case that she paid the following amounts

and the complainant has also filed the statement of account evidenced under Ex.A4.  The opposite parties got issued a legal notice to the complainant (Ex.A7) calling upon the complainant to pay an amount of Rs.2,07,218/- for completion of flooring and the complainant paid Rs.1,00,000/- and still has to pay Rs.1,07,218/-.  The complainant submitted that at no point of time, the opposite parties committed themselves that the venture is ready in all respects  and the complainant is due  balance amount for handing over possession.  The complainant submitted that so far the opposite parties have not obtained drinking water connection and the condition at site are pathetic without proper roads, parking or any other facilities with unliveable conditions.  The complainant submitted that she noticed that the quality of the construction is very poor and there is no progress of work and there was no hope of the opposite parties completing the venture in time and all the works are stand still. The complainant also replied to the legal notice on 07-7-2010 (Ex.A8) objecting to the poor quality of the work and the slow progress of construction.  The complainant submits that there is sub- standard quality of construction and the opposite parties also did not complete the amenities as stated in detail in the complaint and reflected in the brochure.  The complainant got issued a legal notice to the opposite parties (Ex.A12) on 29-10-2010 calling upon the opposite parties to deliver possession of the flat or pay back the entire sale consideration.  It is the complainant’s case that had the opposite parties delivered the flat on time, she would have got rental income of Rs.3,60,000/- and that she also suffered mental agony as the flat was not yet delivered.

        The Managing Director of opposite party No.2 who is also the M.D. of opposite party i.e. Sourabh Modi also filed his affidavit.  It is the case of the opposite parties that the complainant was never prompt in payment of instalments and always delayed the payments and therefore they got issued notice on 21-6-2010 demanding that the complainant pay an amount of Rs.2,07,218/- out of which the complainant paid only Rs.1,00,000/- and did not pay the balance amount.  Opposite party No.2 completed the construction of the entire block and many flats are occupied.  As per clause 5 of the sale deed and clause 16 of the construction agreement, the complainant is entitled to claim her consideration with interest at 18% only in case of breach or violation on behalf of opposite parties, as there is no breach, they have not committed any deficiency in service.  Opposite party No.2 issued a reply on 15-11-2010 (Ex.A13) to the notice issued by the complainant (Ex.A12) to pay the balance amounts.  The apartment is constructed as per the rules and regulations and had the complainant paid the amounts in time, there would not have been any rental loss, therefore, no deficiency in service can be attributed to them. 

        We observe from the record that the payments made by the complainant except for balance of Rs.1,07,218/- is an admitted fact and it is also not in dispute that this amount was demanded by the opposite party for the purpose of flooring on 06-2-2010.  It is pertinent to note that the sale deed is dated 15-2-2008 (Ex.A2) and the construction agreement is also dated 15-2-2008 (Ex.A3) and clause 9 stipulates that the builder should deliver the scheduled apartment on or before December, 2009 with a further grace period of 6 months.  The opposite party did not file any documentary evidence in support of their contention that they had completed the construction of the flat with all amenities as promised in the brochure.  Photographs cannot be taken as conclusive evidence of completion

The complainant is directed to re-convey the sale deed executed as per law and on such re-conveyance, the opposite parties will refund the amount within four weeks from the date of receipt of this order.  The fact remains that the opposite parties did not complete the flooring and did not fulfil their part of the contract as already much time elapsed and it is not known when they would complete the construction and probably the builder was under the impression that having executed the sale deed, it would be difficult for the purchaser to recover the sale consideration paid.  The general photographs i.e. Ex.B3, filed cannot be construed as evidence of completion. The fact remains that even after payment of more than 95% of the amount, the opposite parties did not even complete the flooring whereas the entire construction should have been completed within 15 months from 15-2-2008 (Ex.A3) i.e. by 15-7-2009.

        In the result this complaint is allowed  directing the complainant to re-convey the property at opposite parties expense by executing a deed and after such re-conveyance, the opposite parties 1, 2 and 3 to jointly and severally refund the sale consideration of Rs.41,06,921/- paid by the complainant ]

together with interest at 18% p.a. from the date of issuance of legal notice i.e.

29-10-2010 till the date of realization together with costs of Rs.5,000/-. 

                                                                        Sd/-Incharge President

                                                                                       Sd/-MEMBER.

JM                                                                                   Dt.31-12-2012

APPENDIX OF EVIDENCE

For the complainant:                                         For Opp.parties:

Affidavit evidence of complainant          Affidavit evidence of Mr.Sourabh Modi

Filed.                                                 Managing Director of O.Ps. filed

Exhibits marked on behalf of the complainant

Ex  A-1 Copy of the Brochure

Ex.A2- Copy of the sale deed dated 15-2-2008

Ex.A3-Copy of agreement for construction of semi finished flat.

Ex.A4-Copy of Splendour statement of account for flat No.401(A)

Ex.A5-Copy of letter from the complainant to opposite party dated 18-2-2010.

Ex.A6-Copy of letter from the complainant to opposite party dated 22-3-2010.

Ex.A7-Copy of letter from opposite party to complainant dated 21-6-2010.

Ex.A8-Copy of reply from the complainant to opposite party dated 7-7-2010.

Ex.A9-Copy of the letter from opposite party to the complainant dt 17-7-2009.

Ex.A10-Copy of reply from the complainant to opposite party dated 23-7-2009

Ex.A11-Copy of the letter from complainant to opposite party dt 04-12-2009

Ex.A12-copy of the legal notice from the complainant to opposite party

           dated 29-10-2010.

Ex.A13-Copy of reply notice from opposite party dated 15-11-2010.

Ex.A14-Copy of messages between complainant to opposite parties.

Ex.A15-copy of photos of schedule property.

Ex.A16-2^nd brochure issued by opposite parties for construction of 480 luxury

           Apartments.

Ex.A17-Yahoo mail dated 5-2-2012 sent by flat owners association.

Ex.A18-Yahoo mail dated 20-2-2012 sent by flat owners association.

For the opposite parties :

Ex B-1-Paper Advertisement.

Ex.B2-Electricity bills and receipts-3 Nos.

Ex.B3-Photographs with negatives-6 Nos.

                                                                        Sd/-Incharge President                                                                          

                                                                                      Sd/-MEMBER.

JM                                                                                  Dt.31-12-2012.