BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL HYDERABAD.
C.C.No.119/2010
Between:
1.Dr.R.Sudhakar
S/
R/
Himayathnagar, Road no.7,
Hyderabad.
2.
S/
Employee in World Bank,
Chennai. …Complainants
2nd complainant was added as per the order
in I.A.No.1745/2011
And
1.M/s. Sri
rep. by its Partner Sri
S/ years,
Occ:Business, having its office at unit no.3,
1st floor,
Chiragali Lane,
Hyderabad.
2.
S/
Occ:Business, having its office at Unit no.3,
1st floor,
Abids, Hyderabad.
3.Naman
Aged: 30 years,
having its office at Unit no.3, 1st floor,
Ragav
Abids, Hyderabad.
4.
S/Aged 26 years,
at unit no.3, 1st floor,
Chiragali Lane,
Hyderabad. … Opposite parties
Counsel for the complainant : Mr.
Counsel for the : M/s.
QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,
SMT.M.SHREESHA, HON’BLE MEMBER
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
MONDAY, THE SEVENTEENTH DAY OF DECEMBER,
TWO THOUSAND TWELVE.
Oral : (Per Sri
***
The complainants filed the complaint under Section 17 (1 of the Consumer Protection Act,1986 seeking direction to the opposite parties to pay to the complainants as follows:
towards excess amount collected from the complainant @ Rs.500/- on the total area of 1976 sq.fts.
b). Rs.1 which is not at all payable.
c). Rs.4 i.e. for 156 sq.fts @ Rs.2800/- .
d). Rs.8 the value of the land for which the complainants are entitled and the same is not included in the undivided land mentioned in the sale deed (short fall) to an extent of 26 sq.yds. @ Rs.34 per
e). Rs.10 the construction cost for the unfinished items incurred by the complainants.
f). Rs.3 towards compensation on account of inconvenience and for mental agony due to the deficiency in service by the opposite parties.
g). a sum of Rs.50 cost of the complaint
Opposite No.1, the partnership firm, entered into a contract of construction with the land lords Smt. and five others, under G.P.A. cum Development Agreement bearing document no.1758/04 and by virtue of this, the opposite party no.1 offered the property for sale The complainant no.1 has entered into a contract with the opposite party no.1 for purchase of flat no.201, at door no.3-6-527, in Highness Residency, Road No.7, @ Rs.2800/- per The complainant no.1 paid an advance of Rs.50,116/- on 24.6.2006 as against the total sale consideration of Rs.55,32,800/- and entered into an agreement with opposite party no.1 firm The cost of the other amenities described in the agreement is Rs.5 Thus the total cost of the flat is Rs.60
second opposite party represented that the municipal authorities have accorded the permission for construction of multi storied building and he promised that the construction would be carried out as per the specifications and design explained in the development agreement and as per permit. The time for completion of the construction work is two years as per the Development Agreement, but the construction was totally delayed for the reasons attributable to the opposite parties alone On number of occasions, the complainant no.1 approached opposite party no.2 and demanded for completion of the construction work and handover the flat The complainant no.1, all the time, waited believing the representations of the opposite party that the construction work within a short time. Finally, the complainant no.1 insisted the opposite parties to complete the work and handover the property. But opposite 1 and 2 have miserably failed to perform their obligation in accordance with the agreement.
The further case of the complainants is that complainant no.1 has paid an amount of Rs.40,50,116/- by April, 2008, by that time, even 50% of the work was not attended by the opposite parties Later, the entire construction work was stopped by the opposite parties and the reasons for stopping the construction work was not disclosed to the complainants As there is no other alternative and as major portion of the amount was already paid, the complainant no.1 had attended the remaining 50% of pending works by spending an amount of Rs.10 It was the obligation of the developer to complete the said works. The complainant no.1 suffered a lot, both financially and mentally, by spending huge amounts more than Rs.10 for completion of the unfinished portion of the construction work.
Opposite parties have started the complainant no.1 by demanding more money. Opposite party no.2 demanded the complainant no.1 enhance the rate for Rs.2800/- to Rs.3,300/- and started demanding the complainant no.1 to pay more amount for getting the plan regularized. As the complainant no.1 has an amount of Rs.40,50,000/- to the opposite parties and has spent more than Rs.10 for completing the unfinished works, he refused to pay the amounts demanded by opposite party no.2. The complainant no.1 was dragged to helpless situation, since the complainant no.1 did not obtain any sale deed and the agreement of sale was not even reduced to writing by that date and all the amounts were paid Thereby, opposite parties 2 to 4 have coerced the complainant no.1 and obtained number of Under coercion, the complainant no.1 issued the and 569382 as if drawn for self, their staff have
Opposite party no.2 again demanded the complainant no.1 to issue in the name of his son i.e. opposite party no.3 and collected the for Rs.4 respectively, drawn on HDFC bank, opposite party no.3 from complainant no.1, at the time of permitting the first complainant for attending the said referred unfinished works towards the security and he promised that the But opposite party no.2 failed to return those two no.1 on number of white papers, stating that he needs the same for the purpose of income tax Under the circumstances explained supra, the complainant no.1 was forced to follow the dictations of opposite party no.2 Opposite party no.2 coerced the complainant in obtaining the on white papers. The further case of the complainants is that opposite party further demanded Rs.20 by giving pressure. As the complainant no.1 was in solitary confinement and due to mental pressure by obtaining a loan, made the payment of Rs.20 towards sale consideration and got the sale deed executed in the name of his son as the funding agency (HDFC Bank) have insisted the complainant no.1 to get the sale deed executed in his son’s name as he is having repaying sources for making monthly EMI, then only the required loan can be sanctioned But the opposite parties have failed to return the respectively drawn on HDFC bank opposite party no.3 Opposite party no.2 that two
The further case of the complainants is that the quality of construction work is very poor and not in accordance with the specifications mentioned in the Development Agreement and not as per the building permission Opposite party no.2 has collected Rs.9 excess amount than the agreed amount by enhancing the rate per
The further case of the complainants is that opposite party no.2 has collected Rs.1,47,044/- under the guise of Service Tax which is not at all payable, from the complainants and withholding the same till now, without refunding to the complainants till date The same to the complainants with interest @ 24% p.a.
The common areas, which is loaded on the complainants, is 18% and collected the amount of rate accordingly, but the common area, which is constructed and left for by the opposite parties, is only 10%, the opposite parties have levied and collected an amount of Rs.7,14,000/- towards excess common area from the complainants . The same to the complainants.
The undivided and unspecified share of land out of total extent of the complainant shall be 76 as per the prorate of the construction, but the opposite parties have allotted 50 land in the total land and executed the Sale Deed. There is a shortfall of undivided share of land to an extent of 26 sq.yds The opposite parties are liable to refund the amount @ Rs.34 per
The complainants are also entitled for refund of Rs.10 which was spent by complainant no.1, on unfinished items and the opposite parties have agreed for refund of the same vide agreement
The complainant no.1, on number of occasions, called upon opposite parties 1 and 2 to rectify the defects, but they did not respond positively. The complainant alone attended the defects by spending an amount of Rs.3 for rectification of defects.
The further case of the complainants is that complainant no.1 demanded in their notice dt.18.3.2010 and through his earlier letters asking the opposite parties 1 and 2 to comply with the obligations, but the opposite parties failed to do Even till the date of complaint, the construction work was not completed in accordance with the contract agreement The entire construction activity was stopped for more than three years, by the opposite parties, without notifying the reasons for such delay, to the complainants Thus there deficiency in service on the part of the opposite parties, which caused much damage to the complainants, which shall be compensated under law.
Resisting the complaint, the opposite parties filed written version. While denying the fact that the complainant no.1 has purchased the property from the opposite party in the name of his son, the opposite parties contended that has no locus to file the complaint The opposite parties further contended that the complainant no.2 entered into contract with them, but not the complainant no.1 The complainant no.1 has not entered into any with opposite parties, as such, the question of alleged terms of contract are false and imaginary.
The opposite parties contended that whatever amount received by the opposite parties, was received through and the same is reflected in the sale deed bearing document no.1431/2009 Dt.17.6.2009 as well as the agreement of sale dt.26.11.2008 filed by the complainant. At no point of time, the opposite party no.1 received any in cash, from the complainant or from his son.
While admitting, that the construction work is to be completed in two years as per the development agreement, the opposite parties contended that the construction was totally delayed is not the subject matter of the complaint before this Commission development agreement was between the builder and the owner and the complainants have nothing to do with the same.
The it was categorically mentioned that the flat is already at the finishing stage and thereafter the sale deed was also executed in long back and the complaint is filed after more than one year from the date of registered sale deed. At no point of time, there was any complaint by the purchasers of the flat the delay in construction of the flat.
for flooring, cement, plastering and other works, the opposite parties contended that the complainant no.1 has not given any details of expenditure incurred by him, apart from that, the sale deed executed in complainant no.2 clearly discloses that complete finished flat was handed over to the purchaser, as such, the question of finishing work by the complainant no.1 by incurring huge amount of Rs.10 cannot be believed under any circumstances.
Agreement entered into between the parties, particularly the complainant no.2 and opposite party no.1 clearly shows the valuable consideration of Rs.34,00,116/- and any further amount alleged to be paid by the complainant no.1 to the opposite party is not at all true and correct As the complainant no.1 himself has not purchased the flat, the question of his payment does not arise The no.1 in collusion with his son complainant no.2 is now claiming that the amount was paid by him, though the amount was paid in the name of the complainant no.2. Further, once the transaction between the complainant no.2 and opposite party is already concluded, in view of the execution of the sale deed, the complainants have no right to claim any amount afterwards The opposite parties denied the allegation that opposite party no.2 demanded the complainant no.1 to issue and 12.1.2009 for Rs.5 each and further that the said and contended that the as alleged in the complaint were issued as if they are drawn self However, a false story created stating that it was drawn by the staff of the opposite party .
The opposite parties denied the allegation that the opposite party no.2 deposited two complainant for a sum of Rs.4 respectively on 10.6.2009 and contended that no.1 himself obtained hand loan of Rs.6,85,000/- from the opposite party no.3 and also executed a promissory note for the said sum and thereafter issued post dated discharge of the said liability and since the said amount was not paid and the issued a legal notice u/s.138 of calling upon the complainant to pay the amount, failing which, the criminal complaint will be filed against him and thereafter as a counter blast, the present complaint is filed before this Commission in order to harass the opposite party no.3 and to see that opposite party no.3 shall not take any steps u/s.138 of against complainant no.1. The allegation that the said but a created story. The opposite party has neither deposited the said of the complainant nor requested him to pay the cash. But the fact remained that the said amount was given as a hand loan to the complainant no.1 as the complainant no.1 required the said sum to assist his son financially for the purpose of registration expenses and other requirements in good faith believing the complainant no.1, gave hand loan and the complainant no.1 being a doctor himself executed a promissory note, accepting and acknowledged the liability at the time of receipt of the said amount The towards the discharge of the hand loan obtained by him in writing and the document of which is already filed before the criminal proceedings initiated against complainant no.1 herein. Therefore, the allegations that complainant no.1 issued in is false and baseless The allegation that the opposite party no.3 did not return the and further that they have obtained signatures of the complainant no.1 on white papers saying that they need the amount for the purpose of income tax is all a created story to avoid the liability of the above said amount of Rs.6,85,000/- .
The opposite parties further contended, that the complainant no.2 himself got the sale deed registered in his and at the time of execution of registered sale deed, he has paid the amount of balance sale consideration of Rs.20 through bankers drawn on HDFC Bank The contra allegation in the complaint denied as false and baseless.
The other with regard to the quality of construction and with regard to finishing of the flat is only the subject matter between the complainant no.2 and opposite party and complainant no.1 has nothing to do with the same. The opposite parties further contended that the opposite party has not collected any excess amount much less Rs.9,88,000/- as alleged by the complainant The other of Rs.1,47,044/- alleged to have been collected by the opposite party on the guise of service tax is also not correct, work done by the opposite party no.1 on the request of the purchaser of the flat.
With regard to the common area, the opposite parties contended that the undivided share of land as claimed by the complainant as 76 is also without any basis the area left after road widening leaving southern side road and remaining area was divided among the total flats including the commercial area and it is not the case that the opposite party has taken any land area from the total area. the land available was divided on the units available in the apartment.
The opposite party has already executed the sale deed in respect of the 1976 share of land as alleged by the complainant The complaint is therefore liable to with costs to these opposite parties.
Subsequently, the complainant no.2 filed an application in C.C.I.A.No.1745/ seeking to complainant no.2 in the complaint, on 17.8.2011 and the petition was allowed on 15.11.2011 and the son of the complainant no.1 was as complainant no.2 in the proceedings. Thereafter, the opposite parties filed an additional written version contending that the complainant no.2 purchased property on 17.6.2009 and from the date of purchase of the property till the date of even filing of at any point of time and that the petition was filed beyond two years from the date of sale deed, as such, the present complaint is barred by limitation and liable to be dismissed on this ground alone. When the complaint is barred by limitation, relief as prayed is liable to be rejected. The complainant no.1 is not competent to file the present complaint, in view of the fact that he is not a ‘consumer’ as defined under the Act Apart from that, the complainant no.2 having satisfied with all the aspects, took possession of the property under registered sale deed in the month of June, 2008, it is deemed as contract is concluded and once the contract is concluded, the complainant no.2 has even otherwise no right to go beyond the concluded contract The complaint is therefore liable to with costs.
During the course of enquiry, in order prove their case, both the complainants filed evidence affidavits and got marked Exs.A1 to A33. On behalf of opposite parties, opposite party filed evidence affidavit and got marked Exs.B1 to B6
We heard for both parties and perused the entire material on record, including the written arguments filed by both sides.
Now the points that arise for consideration are:
1). Whether the complainant no.1 is not proper and necessary party to the proceedings in question?
2).
3). Whether there is any deficiency in service on part of the
4).
Point no.1
It is an admitted fact that the opposite party no.1 represented by its Managing Partner opposite party no.2 and as a GPA holder of land owners has executed an Agreement of Sale agreeing to sell the flat no.201 at door no.3-6-527 in Highness Residency, Road No.7, Hyderabad (subject flat). It is also an admitted fact that in pursuance of the said Agreement of Sale, the same vendors the original of Ex.A11 Sale Deed in
The contention of the complainants is that the complainant no.1 being the father of complainant no.2 purchased the subject flat from opposite parties and obtained the above said agreement of sale and sale deed in has insisted the complainant no.1, to get the sale deed executed in his son’s name, as he is having repaying sources, for making payment of monthly EMIs, then only the required loan will be sanctioned As stated above, the opposite parties admitted execution of the above said agreement of sale and sale deed in a purchaser, as such, he has no locus in view of the fact that he is not a ‘consumer’ as defined under the Consumer Protection Act, as the complainant no.2 entered into contract with them, but not the complainant no.1.
Complainant no.2 has admitted that his father complainant no.1 purchased the subject flat in his name and that his father paid the entire sale consideration to the opposite parties It is the case of the complainants that complainant no.1, from the beginning looking after the sale transactions with opposite parties and paying amounts no.1 used to represent complainant no.2 being his father. In view of the definition of ‘consumer’ as provided under Section 2(1)(d), the consumer means ‘any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods’. According to the complainants, both of them are in possession of the subject flat and it is not their case that the complainant no.2 alone is in possession of the subject flat Being the user of the subject flat, along with complainant no.2, complainant no.1 falls under the definition of ‘consumer’ under Consumer Protection Act The letters addressed by the complainant no.1 to the opposite party are on record. Ex.A17 reply notice was got issued by the opposite parties to the letters addressed by the complainant no.1 From the evidence placed on record it is evident that there was correspondence between the complainant no.1 and opposite parties since the beginning of the sale transaction It is true, the original complaint was filed by the complainant no.1 alone, but subsequently the complainant no.2 was got and both of them are prosecuting the complaint together. Further, in Ex.A17 the reply notice got issued by the opposite parties to the Exs.A15 & A16 letters addressed by the complainant no.1 to opposite party no.1, the opposite parties have not disputed the status of the complainant no.1 Under these circumstances, we are not inclined to accept the contentions of the opposite parties that the complainant has no locus complaint that the complainant is not a consumer within the meaning of the Consumer Protection Act and that the complaint is not maintainable under law.
Point No.2:
The of the opposite parties is that Petition was filed by the complainant no.2 beyond two years from the date of the sale deed, as such, the present complaint is barred by limitation and is liable to be dismissed on this ground alone.
As stated above originally the complainant no.1 filed the complaint on 27.12.2010. Ex.A11 Agreement of Sale is dt.17.6.2009. The original complaint is therefore filed within the limitation as provided under Section 24-A of the Consumer Protection Act. All pleas have been taken in the original complaint and the same pleas have been adopted by the complainant no.2 also, after he was orders dt.15.11.2011 in CCIA.1745/2011 which was filed on 17.8.2011 No new plea has been taken after the complainant no.2 came on record Under these circumstances, we are of the view that the complaint by limitation.
Point No.3:
As contended by the complainants, the time for the completion of the construction work is two years as per the Development Agreement vide Ex.A1 entered into between the owners of the property and the builders opposite parties 1 and 2 herein and another On other hand, the contention of the opposite parties is that the construction work is totally delayed is not the subject matter of the present complaint and that the development agreement was between the builder and the owners and that the complainants have nothing to do with the same. It is an admitted fact that there was an oral agreement between the complainant no.2 and opposite parties prior to the date of Ex.A7 agreement of sale The opposite parties did not deny the fact within two years the construction work to be completed and that there was delay in completion of construction work. The evidence on record established the said facts.
At page 5, of Agreement of Sale, it is categorically mentioned ‘that the purchaser, at his cost, did flooring including polishing, for developer and as such, the developer shall deduct the said amount from the said cost from the balance sale consideration Though the second opposite party represented that the municipal authorities have accorded permission for construction of multi storied building and that he promised that the construction would certainly be carried out as per the specifications and the design explained in the Development Agreement and as per the MCH permission From the above admitted facts, it is evident that there is deficiency in service on the part of the opposite parties 1 and regarding completion of construction and delivery of possession of the flat purchased in the name of complainant no.2.
It is the case of the complainants that the first complainant on number of occasions addressed letters to opposite party no.2 to comply with the demand and to fulfill their obligations Exs.A13, A14 and A15 letters are some of such letters Ex.A17 is the reply notice dt.5.1.2010 got issued by the opposite party to the complainant no.1 Complainant no.1 responded to Ex.A17 giving Ex.A18 reply notice dt.18.3.2010. The complainant no.1, categorically demanded in their Ex.A18 notice and their earlier letters asking the opposite parties 1 and 2, to comply with the obligations.
Now coming to the claims of the complainants made in the complaint, under claim (a), the complainants claimed a sum of Rs.9,88,000/- towards excess amount collected from the complainant @ Rs.500/- per 1976 the interested averments in the complaint, evidence affidavit and additional evidence affidavit filed by the complainants, the complainants have not adduced any cogent evidence to prove that the opposite parties have demanded the complainant no.1 to enhance the rate of the sq. ft. from Rs.2800 to 3300 or @ 500/- on the total area of 1976 complainants as alleged in the complaint and claimed in the prayer portion of the complaint Therefore, it is only a mere allegation without any evidence and even agreement of sale was entered between the complainant no.2 and opposite parties on 26.11.2008 wherein the value is clearly mentioned and later the sale deed was also executed in pursuance of the agreement of sale. Therefore, the complainants failed prove that the opposite parties have collected Rs.9,88,000/- towards excess amount of sale consideration. The complainants therefore not entitled to the amount of Rs.9,88,000/-.
Under claim no.(b) of the prayer portion of the complaint, the complainants claimed refund of sum of Rs.1,47,044/- the amount collected under the guise of service tax, which is not at all payable by the complainants In support of this claim, the complainants filed Ex.A16 letter Ex.A19 copy of G.O. issued by Government of India, Ministry of Finance Dept. of Revenue Central Board of Excise and Customs, New Delhi dt.29.1.2001. As seen from the purchasers of the residential flats are not liable to pay service tax to the Government.
Now it is to whether the opposite parties have collected any service tax as contended by the complainant.
The complainants have not filed any receipt, to show that the opposite parties 1 and 2 have collected service tax from the complainants However, in Ex.A18 reply notice got issued by the complainant no.1 to Ex.A17 got issued by the opposite parties at the complainant no.1 categorically stated that the opposite parties have collected an amount of Rs.1,47,044/- by way of Bank i.e. opposite party no.1, from the complainant no.1, under the guise of service tax and that no service tax shall be paid on the sale transaction, pertaining to dwelling house as per law in force and hence the question of providing any receipt by the opposite parties to the complainant no.1 does not arise and demanded the opposite parties to refund the amount collected by them towards service tax to the complainant no.1. opposite parties have not denied this statement of the complainant no.1 either in their written version or in the evidence affidavits filed on behalf of the opposite parties.
In reply notice got issued by the opposite parties to the complainant no.1, at page 3, it is mentioned as follows:
“while so, that you have not mentioned anything in your earlier letter but for the first time on 22.10.09 you again raised a dispute of service tax kept with my client and my client is under obligation to provide you receipt after making payment to the concerned department.
From the above contents of Ex.A17, reply notice it is clear opposite parties have admitted the collection of the service tax from the complainants and other purchasers of the flat. At page 7 and end of of Rs.1,47,044/- from the complainant, but contended that the said amount was collected towards the extra work done by opposite party no.1, on the request of purchaser of the flat Except bald statement in written version, opposite parties have not adduced any evidence in proof of their above contention The burden is on them to prove that the of Rs.1,47,044/- collected by them by way of was not towards the service tax and it was collected towards the extra work done by the opposite party no.1. The opposite parties have not filed any documents in proof of their contention discharging the said burden In view of the above facts and circumstances, it is established that the opposite have collected Rs.1,47,044/- from the complainants towards service tax.
As seen from Ex.A19 G.O., no service tax shall be paid on the sale transaction pertaining to dwelling house It is an undisputed fact that the complainants purchased the subject flat for their residential purpose Under these circumstances, we have no hesitation to hold that the opposite parties 1 and 2 are liable to refund the amount of Rs.1 which was collected by them from the complainant no.1 by way of
Under the claim ‘c’ the complainants claimed payment of Rs.4,36,800/- towards the value of the common area which loaded excess than construction i.e. for 156 sq.fts @ Rs.2800/- per the complainants claimed a sum of Rs.8,97,000/- towards the value of the land for which the complainant is entitled and the same is not included in the undivided land mentioned in the sale deed (shortfall ) to an extent of 26 @ Rs.34,500/- per
In the written arguments, the complainants have submitted that the common area which is loaded on the complainants is 18% and collected the rate of amount accordingly, but the common area, which is constructed and left for, by the opposite parties is only 10% The opposite parties have and collected an amount of Rs.7,14,000/-, towards excess common area, from the complainants . The same shall be refunded to the complainants The complainants further submitted that undivided and unspecified share of the land out of the total extent of the complainants shall be 76 Thus, there is shortfall of undivided share of land to an extent refund the amount @ Rs.34500/- per
The opposite parties have denied the above two claims of the complainants as also denied the above submissions of the complainants.
As seen from Ex.A7 and A20 the copies Agreement of Sale plinth area admeasuring 1976 undivided share of land admeasuring 50 either vendee or vendor, whereas all remaining pages in Ex.A7 and all pages in Ex.A20 bear the signature of complainant no.2 However, there is no difference regarding the measurement of the flat and area mentioned in page 4 of Ex.A7 and page 4 of Ex.A20, though there is variation regarding the total sale consideration and the part of the consideration paid and the balance of sale consideration Therefore the discrepancy regarding the extent of the flat and common area and undivided area mentioned in page 4 of Ex.A7 and page 4 of Ex.A20 is not relevant for the purpose of deciding these two claims which are concerned with the measurement of the flat, common area and undivided land.
Further, the complainant no.2 having entered into an agreement of sale in the year 2008 and thereafter got executed the sale deed in his on 17.6.2009, the complainant cannot say that he was not aware of measurement of the flat. Suffice to mention here, that the complainant is bound by the terms of the agreement, which clearly states about the measurement of the flat and undivided land in recital as well as in the schedule of the property The complainants have not filed any document to show, whether the actual measurement was taken by the complainant by an engineer or architect or else any expert informing the opposite parties with regard to the calculation of undivided share of land and the area of flat including common area and car parking Further, once the complainant made payments towards the full sale consideration relating to the flat, which he has taken possession, then the complainant cannot claim that there is shortage of area of the flat allotted to him.
In view of the above facts and circumstances, the complainants have failed to prove the above two claims. Therefore, the complainants are not entitled to these two claims.
Under Claim ‘e’ the complaint, the complainants have claimed Rs.10 towards construction of the unfinished items incurred by the complainant. The contention of the complainants is that they have paid Rs.40,50,116/- by April, 2008, by which time, the entire construction work was stopped by the opposite parties and the reasons for stopping the construction work was not disclosed to the complainants As there is no other and as major portion of the amount was already paid, the complainant no.1 had attended the remaining 50% of the pending works by spending an amount of Rs.10 to get that amount from the opposite parties.
In his cost did flooring, including polishing, From the above recital in Ex.A7, it is obvious that the opposite parties have admitted about not completing the construction of the flat and about the completion of the remaining works by the complainants and agreed to deduct the amount spent by the complainants for completion of the remaining construction, from the balance sale consideration at the time of execution of sale deed Ex.A11 does not show that the amount spent by the complainants for completion of the construction from the balance sale consideration at the time of execution of registered sale deed.
Further, in the plan attached to the registered sale deed, it is mentioned that semi finished flat no.201 was sold The contention of the opposite parties is that inadvertently, the word ‘semi finished’ is in the plan attached to the registered sale deed and that the entire construction was completed even before the agreement of sale.
In order to prove that the complainants have incurred a sum of Rs.10 completion of construction of unfinished flat, they have filed Exs.A21 to A29 bills Exs.A21 to A29 bills pertaining to the cost incurred for flooring , sanitary and taps hardware , glass works, painting, electrical, doors etc for a total sum of Rs.13,30,608/-. Almost all the bills relate to the period prior to the agreement of sale and only a few bills relate to the period subsequent to the sale deed Ex.A30 is the letter addressed by the flat owners to builder i.e. opposite party no.1 listing works which are kept incomplete. The opposite parties have not disputed receipt of Ex.A30 letter dt.25.6.2010 addressed by some of the flat purchasers including the complainantno.1 herein, to the opposite party no.1 i.e. the builder listing out the works, which are kept incomplete Admittedly they did not respond to Ex.A30 letter From Ex.A30 letter it is obvious that even by 25.6.2010 i.e. subsequent to the date of Ex.A11 sale deed i.e. 17.6.2009 there were pending works to be completed by the opposite party no.1 builder In view of the above facts and circumstances, we are of the view that the opposite parties are liable to refund the amount spent by the complainant prior to the agreement of sale and also after execution of the registered sale deed.
Under Claim ‘f’ the complainants claimed Rs.3 towards the compensation on account of inconvenience and for mental agony due to the deficiency in service by the opposite parties and under claim ‘g’ the complainants claimed a sum of Rs.50,000/- towards the costs of the complaint Having regard to the facts and circumstances of the case and to meet the ends of justice, it is reasonable to direct the opposite parties to pay a sum of Rs.25000/- towards the compensation and Rs.5000/- towards costs of the complaint.
The complainants have alleged that the opposite parties have demanded and collected some at the time of handing over the flat for attending the unfinished works towards the security, promising that the but the second opposite party failed to return those demands. The opposite parties denied the same. They have taken some other pleas but no relief is sought for regarding the returning of the amount under the alleged Hence, we have not considered the contentions counter contentions of both the parties regarding the other aspects than the aspects covered by the reliefs sought for in the complaint.
In the result, the complaint is allowed in part directing the opposite parties to pay a sum of Rs.1,47,044/- that was collected by the opposite parties under the guise of service tax and to pay sum of Rs.13,30,608/- towards the expenses incurred by the complainants for completing the unfinished works of the flat with interest at 9% p.a. from the date of Ex.A16 The remaining claims of the complainants .
The opposite parties are directed to pay a sum of Rs.5000/- to the complainants towards costs of the complaint The opposite parties are directed to comply with the order within six weeks from the date this order .
PRESIDENT
MEMBER
MEMBER
Pm* Dt. 17.12.2012
APPENDIX OF EVIDENCE
Witnesses examined
For the nil For the
Evidence affidavit of complainant filed
Affidavit evidence of filed
Exhibits marked on behalf of the complainants
Ex A-1 :Development agreement cum GPA Dt. 21.6.2004
Ex A- :Legal opinion of
Ex A- :Supplement development agreement Dt. 22.1.2006.
Ex A-4 : Retirement deed of
Ex A-5 : dt.14.6.2008 addressed to OP No.2 by complainant
Ex A- Account details prepared by OP2
Ex A- of sale
Ex A-8: Statement showing made.
Ex A-9 IDBI Bank for Rs. 5
Ex A-10:Cheque issued by the of IDBI Bank for Rs. 5 Ex A-11
Ex A-12
Ex A-13 no.2
Ex A-14 .
Ex A-15 to OP1 by complainant no.1 Ex A-16 to OP1 by complainant
Ex A-17: Reply got issued by OP1 to
Ex A-18:reg. reply to
Ex A-19
Revenue, Central Board of and Customs.
Ex A-20
Ex A-21
Ex A-22 (Ex A-23
Ex A-24
Ex A-25
Ex A-26 to glass works ( for windows and doors 4 Nos.)
Ex A-27Ex A-28
Ex A-29
Ex A-30 by complainants along with other flat owners.
Ex A-31
Ex A-32
Ex A-33:Lr. issued by complainant to Ops
For the opposite
Ex B-1 : Copy of memo
Ex B-2 : Copy memo
Ex B-3 : letter issued by respondent No.3
Ex B-4 : Copy of legal notice dt.21.12.2010 O.P.No.3 to Ex B- copy of acknowledgment
Ex B-6
PRESIDENT
MEMBER
MEMBER
Pm* Dt. 17.12.2012
