BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
FA NO.1042 OF 2013 AGAINST CC NO.20 OF 2012
ON THE FILE OF DISTRICT FORUM, MEDAK AT SANGAREDDY
Between:
M.Nagoor Rao S/o Hazrathaiah,
aged 39 years, Occ: Business & Prop. Of
Sri Sravani Engineering Industries,
R/o Flat No.101, Siri Residency,
Madeenaguda, Serilingampalli mandal,
Rangareddy district.
…Appellant/Opposite party No.1
And
1) Maruti Parashuram Patil
S/o Parashuram Ramachandra Patil,
aged 47 years, Occ: Pvt. Employee,
R/o 5-1-1-A-6, Shanthinagar,
Sangareddy town and mandal,
Medak district.
…Respondent/Complainant
2) The Chief Manager,
SBI, Sangareddy branch,
Sangareddy.
3) The Assistant General Manager,
State Bank of India,
Regional Business Office,
Sharada Complex, Chanda Nagar,
Serilingampally mandal, Rangareddy.
4) The Regional Business Officer,
State Bank of India,
Sharada Complex, Chanda Nagar,
Ranga Reddy.
5) The Chief General Manager,
State Bank of India,
Local Head Office: Koti,
Hyderabad.
6) The General Manager,
State Bank of India,
Customer Grievance Cell,
Local Head Office,
Koti, Hyderabad.
7) The Chairman,
State Bank of India,
Mumbai.
(Respondents No.2 to 7 are
not necessary parties)
…Respondents/Opposite parties 2 to 7
Counsel for the Appellant : Sri V.Gouri Sankara Rao
Counsel for the Respondents : Sri Joshi Mohan Sharma-R1.
FA NO.1292 OF 2013 AGAINST CC NO.20 OF 2012
ON THE FILE OF DISTRICT FORUM, MEDAK AT SANGAREDDY
Between:
1) The Chief Manager,
SBI, Sangareddy branch,
Sangareddy.
2) The Assistant General Manager,
State Bank of India,
Regional Business Office,
Sharada Complex, Chanda Nagar,
Serilingampally mandal, Rangareddy.
3) The Regional Business Officer,
State Bank of India,
Sharada Complex, Chanda Nagar,
Ranga Reddy.
4) The Chief General Manager,
State Bank of India,
Local Head Office: Koti,
Hyderabad.
5) The General Manager,
State Bank of India,
Customer Grievance Cell,
Local Head Office,
Koti, Hyderabad.
6) The Chairman,
State Bank of India,
Mumbai.
…Appellants/OP No.2 to 7
And
1) Maruti Parashuram Patil
S/o Parashuram Ramachandra Patil,
aged 47 years, Occ: Pvt. Employee,
R/o 5-1-1-A-6, Shanthinagar,
Sangareddy town and mandal,
Medak district.
…Respondent/Complainant
2) M.Nagoor Rao S/o Hazrathaiah,
aged 39 years, Occ: Business & proprietor of
Sri Sravani Engineering Industries,
R/o Flat No.101, Siri Residency,
Madeenaguda, Serilingampalli mandal,
Rangareddy district.
…Respondent/O.P.No.1
Counsel for the Appellants : Sri V.S.Krishnudu
Counsel for the Respondents : Sri Joshi Mohan Sharma-R1.
Sri V.Gouri Sankara Rao-R2.
Coram :
Hon’ble Sri Justice B.N.Rao Nalla … President
Tuesday, the Twenty First day of February
Two thousand Seventeen
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
These are the appeals filed by the Opposite parties aggrieved by the orders of District Consumer Forum, Medak at Sangareddy dated 17.09.2013 made in CC No.20 of 2012 in allowing the complaint and making the Complainant entitling a quantum of interest on the loan amount of Rs.13,00,000/- in respect of the proportionate period which shall be calculated by the bank in view of disbursement of entire loan amount to Opposite party No.1 even without properly verifying the factum of progress and completion of construction work and further directing the Opposite party No.1 to pay a sum of Rs.1,30,000/- towards rent of the hired building and a sum of Rs.3,24,770/- towards cost of the deficit built-up area of 130 sft. and cost of unfinished construction of the flat as calculated by the civil engineer, PW2 and to pay the compensation and damages of Rs.50,000/- and costs of Rs.10,000/-, granting time of one month for compliance.
2) For the sake of convenience, the parties are referred to as arrayed in the complaint.
3) The case of the complainant, in brief, is that Complainant entered into an agreement on 30.07.2008 registered as document No.11074/2008 with the OP No.1 builder to purchase the flat bearing No.207 admeasuring 1000 sft of built-up area over plot Nos.86 to 90 in Sy.Nos.802, 806 & 807 admeasuring undivided share of land 25 sq.yards, situated at Sri Sai Sravani Nilayam, Beeramguda, hamlet of Ameenpur village, Patancheru mandal for a consideration of Rs.5,00,000/- apart from car parking charges of Rs.85,000/-; Rs.25,000/- towards installation of transformer; Rs.10,000/- towards manjeera water supply and Rs.30,000/- towards lift. The complainant paid earnest money of Rs.2,55,000/-. OP No.1 assured to get the loan sanctioned from OP No.2 and accordingly executed sale deed on the same day registered as document No.11075/2008 mentioning the delivery of flat though the same is actually not delivered till date.
4) When the OP No.2 bank started deducting the loan instalments from the salary account of Complainant, on verification, it came to light that the OP no.2 had sanctioned the loan of Rs.13,00,000/- of which it paid Rs.5,00,000/- on 30.07.2008 and Rs.7,00,000/- on 04.08.2008 and Rs.1,00,000/- on 20.10.2008 without knowledge and consent of the complainant, in collusion with OP No.1. As per the agreement, the OP No.1 promised to handover the flat within 24 months but failed to comply with. No amenities, as agreed, are provided. Upon which, there took place correspondence in between the parties. On measurement, the built-up area is found to be short to that of agreed one.
5) In the agreement of sale and the sale deed, the sale consideration is mentioned as Rs.5,00,000/- but the bank officials have released the amount of Rs.13,00,000/- without any basis, which is a clear case of collusion. The OP No.1 also deviated the construction permission and approved plan. As such, the complainant got issued notices to the Ops and stopped paying the loan instalments. All these acts amounts to deficiency in service and negligence on the part of the Ops. Hence the complaint with a prayer to direct the Ops 1 to 7 to pay interest on the loan for 39 months amounting to Rs.2,90,000/-; to pay rent of Rs.1,30,000/- for not handing over the premises; to reimburse the amount of Rs.10,55,000/- towards excess amount received by OP No.1; to pay Rs.1,95,000/- towards difference of built-up area of 130 sft.; to pay damages of Rs.2,00,000/- and costs of the complaint.
6) OP No.1 resisted the claim contending that the entire claim of the complainant is baseless and that the firm of which he is the proprietor is not made a party to the case and that the forum has no jurisdiction to entertain the complaint and the same is barred by limitation. It is contended that the complainant agreed to purchase the subject flat for a total consideration of Rs.23,45,000/- including car parking, lift, electricity transformer and manjeera water connection and after negotiations, paid an amount of Rs.2,55,000/- in cash and expressed his willingness to obtain housing loan from OP No.2 and promised to pay the balance amount after deducting the loan amount from the total sale consideration. Accordingly, agreement for sale was executed for Rs.6,50,000/- and another agreement for completion of balance works was executed on 22.07.2008 for Rs.13,54,000/-. The complainant obtained loan of Rs.13,00,000/- from the OP No.2 bank by authorizing it to make payments. As per the agreement, he had completed the construction and provided all the amenities by receiving an amount of Rs.15,55,000/- including advance amount of Rs.2,55,000/- as against the total sale consideration of Rs.23,45,000/-. Still the complainant is due an amount of Rs.7,90,000/- to the OP No.1 and that even after taking over possession of the flat, the complainant did not pay the same and filed the present complaint with false allegations to evade payment. Hence, prayed to dismiss the complaint with costs.
7) Opposite parties 2 to 7 filed their written version opposing the case of the complainant on the premise that the Complainant purchased the semi-finished flat for a consideration of Rs.5,00,000/- from OP No.1 through the sale deed dated 30.07.2008 registered as document No.11075/2008 and subsequently entered into an agreement with OP No.1 for completion of the left-over works for an amount of Rs.13,54,000/-. It is contended further that the complainant obtained loan of Rs.13,00,000/- from their bank which was paid to him by debiting from his savings bank account from time to time as per the authorization given by the complainant and after inspection of progress of the construction work and thereafter the complainant took possession of the flat. These opposite parties were unnecessarily dragged into litigation making false and baseless allegations of cheating, etc., against them in collusion with the OP No.1, hence, prayed to dismiss the complaint with costs.
8) During the course of enquiry before the District Forum, in order to prove his case, the Complainant got filed his evidence affidavit as PW1, affidavit of one K.Bhasker (licenced Engineer) as PW2 and that of one Pusala Ramulu Goud (landlord) as PW3 and the documents Exs.A1 to A16 and on behalf of the Opposite parties, OP No.1 got filed his evidence affidavit as RW1 and on behalf of the Ops 2 to 7, got filed the affidavit evidence of one P.chandrashekar Rao, its Chief Manager as RW2 and the documents Ex.B1 to B7.
9) The District Forum after considering the material available on record, allowed the complaint bearing CC No.20/2012 by orders dated 17.09.2013, as stated, supra, at paragraph no.1.
FA NO.1042/2013 :
10) Aggrieved by the above orders, the Appellant/Opposite party No.1 preferred the above appeal contending that the forum below (a) failed to that there is no deficiency in service on the part of the Appellant; (b) failed to see that the Respondent No.1 is a defaulter since he failed to pay the total sale consideration to him; (c) failed to consider the documents exhibited in proper perspective; (d) failed to see that Appellant has completed the flat and provided all amenities and that the Respondent No.1 failed to pay the balance consideration of Rs.7,90,000/- as against the total amount of Rs.23,45,000/-; (e) failed to see that the photograph and CD taken by the Civil Engineer are not binding on the Appellant which were taken during pendency of the complaint and behind the back, as such, the forum below ought not to have relied on the said report; (f) failed to appreciate the Orders in FA No.884/2011. Hence, prayed to allow the appeal and set aside the orders of forum below.
FA NO.1290/2013 :
11) Aggrieved by the above orders, the Appellants/Opposite parties 2 to 7 preferred the above appeal contending that the forum below (a) failed to consider that the purchaser approached the district forum more than 3½ years from the date of commencement of recovery of EMIs and further the purchaser has not raised any objection at any point of time and even in his reply dated 10.04.2010 addressed by him, there was no mention about anything against the bank and the complaint is not filed within the stipulated period of 2 years; (b) ought to have seen that the purchaser has not made any protest for calculating the EMIs on the entire loan amount of Rs.13,00,000/-; (c) ought to have seen that the purchaser did not choose to mention or file the construction agreement entered in the year 2008 with developer; (d) ought to have seen that nothing could be imputed as against the bank for releasing the amount; (e) failed to see that there was no deficiency of service on the part of the appellants. Hence, prayed to allow the appeal and set aside the orders.
12) The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
13) It is not in dispute that the developer had offered the flat for sale the subject flat to the purchaser who agreed to purchase the same and have entered into an agreement for sale on 11.07.2008 for Rs.6,50,000/- and the execution of sale deed for Rs.5,00,000/- on 30.07.2008. The only dispute is that the developer failed to complete the construction of the flat in all respects and that the purchaser has not agreed for payment of Rs.13,54,000/- as mentioned in Ex.B2. Though the purchaser would contend that Ex.B2 is obtained by fraud, misrepresentation and cheating, basing on the very Ex.B2, the bank had sanctioned the loan of Rs.13,00,000/- and released the amount as is evident from Ex.B6 statement of account. Admittedly, the bank started deducting the loan instalments from the salary account (savings bank account) of the purchaser from time to time, which is not disputed at any point of time by the purchaser thereby strengthening the contention of the bank.
14) A perusal of the recitals of the documents under Ex.B1 (replica of Ex.A9) agreement of sale, Ex.B2 agreement for completion of semi-finished flat and Ex.B3 (replica of A10) sale deed, would speak otherwise. In the document Ex.B1, the schedule-B reads as follows:
“Flat No.207, 2nd floor of “Sri Sai Sravani Nilayam” having plinth area of 1030 sft along with undivided share of land 25 sq. yards, out of 1146.22 sq.yds. constructed on plot Nos.86, 87, 88, 89 and 90 in Survey No.802, 806 & 807 having total plot area 1146.22 sq. yds, situated at Beeramguda, Ameenpur village, Patancheruvu mandal, Medak district….”.
SCHEDULE OF SPECIFICATIONS OF CONSTRUCTIONS
Structure | RCC Framed structure (1:2:4) |
Super structure | 4 ½ thick moulded brick walls with CM red burnt brick walls in CMM |
Main door | M.Teak wood frame with Teak Wood Shutters |
Other doors | Non-teack wood (Neem) frames and shutters with flush doors |
Windows | Non-teak wood frames and shutters with M.teak wood along with safety grills |
Kitchen | Green marble, platform with built-in sink and glazed tiles dado upto 1.5 feet height. |
Shelves | 100 RFT |
Flooring | Vitrified tiles |
Toilets | Two toilet with Indian is one another one is western type with ceramic tile flooring and 6.0 height glazed tile dadoing and sanitary fittings. |
Painting | White wash paint for inner walls and snow chem.. paint for external walls and enamel to wood work |
Electrical | Concealed copper wire of suitable gauge with adequate points |
Water supply | Bore-well over head tank |
NOTE : CAR PARKING, TRANSFORMER, MANJEERA WATER, DRAINAGE, TAX ASSESSMENTS, REGISTRATION EXPENDITURE, SALES TAX ETC., ARE EXTRA AND HAVE TO BE BORNE BY THE PURCHASER/VENDEE”
The schedule-A & B of Ex.B3 sale deed reads as follows:
SCHEDULE-A
“All that piece and parcel of the site admeasuring 25 sq.yards/20 sq. mts., Plot Nos. 86, 87, 88, 89 & 90 in Survey No.802, 806 & 806, situated at Beeramguda village & G.P. Medak district Sub-Registrar, Sangareddy….
SCHEDULE-B
Flat No.207, in second floor with a plinth area of 1030 sq. feet including common areas in the residential/commercial complex named Sri Sai Sravani Nilayam constructed in the ‘A’ schedule property bounded by……”
The schedule-B of Ex.B2 agreement for completion of semi-finished flat
SCHEDULE-B
Flat No.207, 2nd Floor of “Sri Sai Sravani Nilayam” having plinth area of 1030 sqft along with undivided share of land 25 sq.yds. out of 1146.22 sq. yds. constructed on plot Nos. 86, 87, 88, 89 & 90 in Survey No.802, 806 & 807, having total plot area 1146.22 sq. yds situated at Beeramguda Ameenpur village, Patancheruv mandal, Medak Dist.”
All the three schedules are different to each other. Added to it, under Ex.B1 the Appellant agreed to sell the flat consisting of specifications of constructions therein. If this is considered to be true, there remains nothing to be attended so as to enter into an Agreement for completion of semi-finished flat. Nowhere in Ex.B1 is it mentioned that the flat agreed to be sold to the purchaser is a semi-finished flat. Even otherwise, the contents of Ex.B2 are similar to the contents under Ex.B1 and there is no mention as to the nature of left-over works entrusted to be attended by Sri Sravani Engineering Industries. The entire recitals are in the nature of directives from the side of Sri Sravani Engineering Industries rather from the owner of the flat to attend particular works for the consideration involving huge amount of Rs.13,54,000/-. The verbatim of the recitals under Ex.B1 and B2 are similar to each other and there is any amount of confusion and discrepancies as to the consideration mentioned therein, which reads as follows:
“The vendors agree to sell and the purchaser agrees to purchase the Flat No.207, on second floor, of “SRI SAI SRAVANI NILAYAM” having plinth area of 1030 sqft. along with undivided share of land 25. sq.yds out of 1146.22 sq.yds., constructed on plot Nos.86, 87, 88, 89 & 90 in Survey No.802, 806 & 807 having total plot area 1146.22 sq.yds. situated at BEERAMGUDA VILLAGE, AMEENPUR G.P.PATANCHERUV MANDAL, MEDAK DISTRICT., to the Vendee for a total sale consideration of completion the said works Rs.13,54,000/- (thirteen lakhs fifty four thousands only) to be paid bythe purchaser completion of said works.
That the first party agreed to pay an amount of Rs.13,54,000/- to the second party towards completion of work from semi-finished into finished one and the second party agreed for the same.”
From the reading of above recitals, it can be deduced that the total sale consideration of the flat offered to sale is Rs.13,54,000/-. The words “vendors” “purchaser” and “vendee” denotes the entire transaction to be an agreement for sale in nature rather than completion of semi-finished flat. On perusal of entire contents of Ex.B2, nowhere it finds place the nature of work to be attended, quality of construction to be carried out or the fixtures and fittings to be made in the subject flat. There is no narration as to the quality of work, quantity of work and the place of work to be attended. Hence, it can be safely inferred that the same is executed purely for the purpose of obtaining loan from the bank.
15) As stated supra, the developer agreed to sell the subject flat consisting of RCC frame structure, super structure, main door, other doors, windows, kitchen, shelves, shelves, flooring, toilets, painting, electrical and water supply for a total consideration of Rs.5,00,000/- apart from charging Rs.1,50,000/- for car parking, transformer, manjeera water and lift under Ex.B1. In addition to these, the developer had agreed to provide the grills to the balconies as well as to the windows of apartments, which can be evidenced from clause-9(d) of the sale deed, which reads as follows:
“………The vendee shall not close the verandahs or lounges or also shall not alter the exterior colour of the building complex. For this purpose, the flat owners means all persons having rights, title or interest in any part of the building. The design of the grills provided to the balconies as well as to the windows of apartments shall not be replaced with any other design so as to maintain uniformity in the appearance of the building.”
From the above, it can be safely inferred that the developer agreed to provide colour and grills to the flat. If all these amenities are kept aside, nothing is stated in the agreement for completion of semi-finished flat as to what are the nature of works that would be attended by the Sri Sravani Engineering Industries, item-wise and category wise. Be that as it may, the fact remains that the bank, without verifying all these aspects had sanctioned the loan and released the money in favour of the developer. In order to cover-up its laches, the bank would contend that the flat is completed and delivered to the purchaser but failed to produce any piece of paper to that extent. On the other hand, the purchaser filed the photographs marked as Ex.A5 which would speak any amount of lapses on the part of the developer in completion of the subject flat, resulting in filing the present complaint which is under challenge in this appeal. To deny the evidence let-in by the purchaser, no material is brought on record by the developer or the bank.
16) As stated supra, the bank too failed in visualizing the mischief played by the developer in getting drafted the agreement for construction of semi-finished flat while sanctioning the loan. The bank was well aware of the contents thereof. Any prudent man would understand the reality of the recitals and contents of the agreement thereon. The bank could have been more vigilant while sanctioning such loans. Having sanctioned the loan basing on the Agreement for construction of semi-finished flat, now it cannot turn around and contend that the purchaser has not raised any objection either at the time of sanctioning the loan or while deducting the EMIs. The bank did not place any convincing material to show that the flat had been constructed and made ready for occupation of the purchaser. Without verifying the progress of the construction and without verifying the completion of construction works, it had released the amount. Even no piece of paper is filed to show that the flat was delivered and handed-over to the purchaser. This Commission is not inclined to accept the contentions raised by the bank.
17) No material is brought on record by the developer to show that the subject flat was agreed to be sold for a total sale consideration of Rs.23,45,000/-, hence, this Commission do not accept the said plea. In so far as the completion of the flat in all aspects is concerned, the forum below had dealt in detail and hence there is no need to this Commission to go into those aspects again. In so far as payment of rent is concerned, the purchaser has filed the affidavit evidence of PW3 which would establish that he obtained house on rent. The other aspect of deficit of built-up area has been already answered by the forum below. It is to be stated that the forum below had discussed in detail on all the aspects and rendered its finding which cannot be found fault with. For the aforesaid reasons, this Commission does not find any infirmities or irregularities in the orders of the forum below and accordingly this Commission answers the point framed for consideration at paragraph No.11, supra, against the developer and bank and in favour of the purchaser.
18) In the result, both the appeals fail and are accordingly dismissed but in the circumstances, no costs. Time for compliance : four weeks.
PRESIDENT
Dated 21.02.2017
