BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
C.C.NO.133 OF 2012
Between
1. Mr.M.Srinivas S/o M.Krishna Rao
aged 35 years, Occ: Business
R/o Flat No.102, Aditya’s Hill Paradise-II
Nandagiri Hills, Jubilee Hills,
Hyderabad.
2. Mrs Menaka W/o Mr.M.Srinivas
age: 29 years, Occ: Housewife
R/o Flat No.102, Aditya’s Hill Paradise-II
Nandagiri Hills, Jubiless Hills, Hyderabad
Complainants
A N D
Aditya Construction Company India (P) Ltd.,
rep. by its MD Mr.Rajesh Pagadala
Plot No.A/29, Aditya Mansion, Road No.5
Jubilee Hills, Hyderabad-500034. Opposite party
C.C.NO.134 OF 2012
Between
Mr.Bollineni Sridhar S/o Subbaiah Chowdary
aged 35 years, Occ: Business
R/o Flat No.306, H.No.8-2/603/1/13 to 18
Solitaire Banjara, Besides Income Tax Colony
Krishnapuram, Road No.10, Banjara Hills
Hyderabad-034
Complainant
A N D
Aditya Construction Company India (P) Ltd.,
rep. by its MD Mr.Rajesh Pagadala
Plot No.A/29, Aditya Mansion, Road No.5
Jubilee Hills, Hyderabad-034
Opposite party
Counsel for the Complainant M/s N.Sudarshan Setty
(common in both complaints)
Counsel for the Opposite party M/s Legal Matrix
(common in both complaints)
QUORUM: SRI R.LAKSHMINARSIMHA RAO, Hon’ble I/C PRESIDENT
&
SRI S.BHUJANGA RAO, HON’BLE MEMBER
MONDAY THE TWENTY FIFTH DAY OF NOVEMBER
TWO THOUSAND THIRTEEN
Order ( As per R.Lakshminarsimha Rao, Hon’ble I/c.President)
***
Both the complaints bear similar facts and as such they are being disposed of by a common order. C.C.No.133 of 2012 is taken as lead case.
The complaint is filed seeking direction to the opposite party to receive the balance sale consideration of Rs.60 lakhs and register the flat no.101 in Aditya’s Hill Paradies-II at Nandagiri Hills, Jubilees Hills or in the alternative to refund the amount of Rs.20,00,000/- with interest @ 18% per annum, to pay Rs.2,00,000/- towards compensation and Rs.50,000/- towards mental agony and costs of Rs.10,000/-.
The averments of the complaint are that the complainants agreed to purchase a flat in the venture of the opposite party for a total sale consideration of Rs.80 lakhs and paid an amount of Rs.2,50,000/- by way of cheque No.435281 and Rs.17,50,000/- by way of transfer from the amounts paid by them to Villa No.13 of Aditya’s Eden Woods towards advance. The opposite party issued confirmation letter dated 08.06.2009 and allotted Flat No.101 and advised to go for registration by making balance payment within 30 days failing which 18% interest will be levied. The opposite party had orally informed the complainant that the flat is at semi-finished stage and opposite party will inform them after completing the finishing works.
The complainants submitted that they visited the office of the opposite party several times to pay the remaining sale consideration and the opposite party had refused to receive the amount stating that the flat is not yet completed and informed them that they would inform them after the construction of the flat is completed. The complainants visited the office of the opposite party and found that the opposite party shifted its premises to some other place. After enquiry the complainants found the address and visited the office of the opposite party and requested the opposite party to register the flat after receipt of balance sale consideration.
The complainants submit that the opposite party informed the complainants that the amount paid by them is forfeited. The complainants submitted that they are ready and willing to pay the balance sale consideration of Rs.60,00,000/- and get the flat registered in their name and submitted that time is not the essence of the contract and no time was fixed for payment of balance sale consideration and further the complainants have always been ready and willing to pay the balance sale consideration and the opposite party is not coming forward to register the flat and complete the finishing works. The complainants got issued notice demanding the opposite party to receive the balance sale consideration and register the flat and there was no response and thereby they filed the complaint.
The opposite party resisted the case contending that the complainants taking the advantage of their own wrong filed the complaint by making false allegations against the opposite party. The complainants cannot claim any damages or reliefs as they have committed default in making balance sale consideration. The complainant along with his relative booked a villa bearing NO.13 in Aditya’s Eden Woods project by paying Rs.20 lakhs. After making the payments, the complainants expressed their inability in paying the further payment towards the cost of villa and requested to adjust the amount towards the flat cost at Aditya’s Hill Paradise at Jubilee Hills. After considering the request of the complainants the opposite party issued a confirmation letter dated 8.6.2009 for flat no.101 provided the complainants get the registration of the flat immediately by making the payment of remaining sale consideration.
The complainants expressed their inability to get the flat registered in their favour and requested to grant some more time. The opposite party extended time for 30 more days for payment of balance sale consideration. The actual cost of the flat was Rs.1,25,00,000/- and not Rs.80 lakhs as stated by the complainants. The complainants have paid only a meager amount of Rs.20 lakhs leaving a balance amount of Rs.1,05,00,000/-. The complainants never came forward to pay the balance sale consideration and get the flat registered in their favour.
The opposite party submitted that the complainant himself agreed, accepted and signed the confirmation letter dated 8.6.2009 which has the timeline expressly mentioned in clear terms as 30 days for the payment of balance sale consideration. The complainants have no locus standi to file the complaint as he is a defaulter and violated the terms of the confirmation letter. The complaint filed by the complainants is barred by law of limitation. No cause of action arose at any time giving right to the complainants to file the complaint. The opposite party submitted that there is no deficiency in service on its part and prayed for dismissal of the complaint.
The complainant no.1 filed his affidavit and the documents, Exs.A1 to A6. The Managing Director of the opposite party filed his affidavit and did not choose to file any documents.
The learned counsel for opposite party filed written arguments.
The point for consideration is whether the opposite party has rendered any deficiency in service?
There is no dispute in the fact that the complainants agreed to purchase flat bearing No.101 in Aditya’s Hill Paradise-II and the complainants paid a sum of Rs.2,50,000/- and a sum of Rs.17,50,000/- a total amount of Rs.20,00,000/- to the opposite party towards part sale consideration. The opposite party issued confirmation letter on 08-6-2009(Ex.A1) acknowledging receipt a sum of Rs.20,00,000/- from the complainants and the terms and conditions mentioned in the confirmation letter goes to show that balance payment was to be made within 30 days failing which interest @ 18% p.a. would be levied and the other condition incorporated in the confirmation letter is regarding non refund of the amount in case of cancellation.
The opposite party contends that the sale consideration of the flat is not Rs.80,00,000/- as stated by the complainant and the agreed cost of the flat is Rs.1,25,00,000/-and the complainants intentionally misrepresented the fact stating the cost of the flat as Rs.80,00,000/- and the complainants are still due an amount of Rs.1,05,00,000/-.
The complainants got issued notice through their advocate on 01-8-2012(Ex.A2) demanding the opposite party to receive a sum of Rs.60,00,000/- towards balance sale consideration and interest at 18% p.a. thereon and register the flat in their name. In the notice the complainants mentioned the sale consideration of the flat as Rs.80,00,000/-. Paragraph 2 of the notice read as under:
2. Our clients represent that you have approached our clients and offered to sell the flats in Aditya’s Hill Paradise-II at Nandagiri Hills, Jubilee Hills, Hyderabad. Our clients accepted to purchase the flat in the said venture for a total sale consideration of Rs.80,00,000/- and paid an amount of Rs.2,50,000/- + Rs.17,50,000/- totalling an amount of Rs.20,00,000/-. Our clients represent that they have paid an amount of Rs.2,50,000/- vide cheque bearing No.435281, drawn on the Federal Bank Limited and paid an amount of Rs.17,50,000/- by way of transfer from the amounts paid by them to Villa No.13 of Aditya’s Eden Woods. As per the said request you had transferred an amount of Rs.17,50,000/- from the account of Villa No. 13 of Aditya’s Eden Woods and adjusted towards purchase of Flat No.101 in Aditya’s Hill Paradise-II, as such you have received an amount of Rs.20,00,000/- towards advance. You have issued CONFIRMATION LETTER dated 08-6-2009 and allotted Flat No.101 and advised to go for registration by making balance payment within 30 days, failing which 18% interest will be levied. You had orally informed that said flat is at semi finished stage and you will inform them after completing the finishing works. Our clients represent that though you have agreed to inform our clients after completing the finishing works, you have not informed our clients.
A combined reading of the notice and the confirmation letter make it clear that the sale consideration of the flat is Rs.80,00,000/- and not Rs.1,25,00,000/- as contended by the opposite party. The opposite party has not adduced any evidence as contended in the written arguments that the entire letter is not produced and he ought to have produced the same in support of its contention that the sale consideration of the flat is Rs.1,25,00,000/-.
The opposite party would contend that the complainants had not paid balance sale consideration within the stipulated period of 30 days from the date of issuance of confirmation letter. The opposite party has not taken any steps such as issuing notice demanding for payment of balance sale consideration of the flat or effecting cancellation of the allotment of the flat. Mere contention that the complainants committed default in making payment of the balance sale consideration would not by itself cannot be a ground for the opposite party to deny to perform its part of contract.
The opposite party having received a sum of Rs.20,00,000/- towards part sale consideration of the flat rendered deficiency service and in the circumstances, this Commission is inclined to hold the complainants entitled to registration of the flat on payment of balance sale consideration. The complainants contend that they were and have been ready to pay the balance sale consideration for the purpose of getting registration of the flat and the opposite party has not come forward and failed to complete construction of the flat as also it had refused to receive the amount. The notice got issued by the complainants establish the plea of the complainants that they were and have been ready to pay the balance sale consideration to the opposite party.
The learned counsel for the complainants have relied upon the following decisions of this Commission in
i) C.C.No.44 of 2012
ii) C.C.No.135 of 2012
iii) C.C.No.123/2012
iv) C.C.No.37 of 2009
and the decision of the Hon’ble National Commission in RP No.3479/2011 in The Manager, Mapsko Builders Pvt. Ltd., New Delhi and another v. Mrs.Sunil Dahiya and OP No.385/2002 in Bhagat Singh, Gurgoan v. M/s.Adharshila Towers (P) Ltd., and another.
In Bhagat Singh (Supra) the Hon’ble National Commission held that the parties are bound by the terms of the agreement and the opposite party cannot float the scheme without obtaining layout approval sanction from the authority concerned. It was held that the opposite party proceeded to delay the construction of the house and it had not approached the National Commission with clean hands.
Mrs. Sunil Dahia’s is a case where the complainant booked an independent ground floor in a project launched by the opposite party and paid a sum of Rs.1,50,000/- towards part payment. The opposite party had not allotted the residential independent ground floor as also it failed to start construction of the unit. The opposite party raised objection that the complainant was a defaulter and failed to pay the amount as per payment schedule and as such the allotment was cancelled and the earnest money paid by the complainant was forfeited. The National Commission had not accepted the plea of the opposite party and held that the opposite party failed to show as to what was the status of the construction at the time the complaint was filed before the District Forum.
Mr.Alok chordia is a case filed against the opposite party herein and this Commission observed that there is no clause in the terms and conditions to show that the opposite party is entitled for forfeiture of the amount paid by the complainant.
Mr. Venkata Sheshagiri Rao’s is a case filed the opposite party herein and it was the case of the complainant that the opposite party without completing the construction of the venture as agreed demanded for balance sale consideration and failed to furnish copies of the documents to the complainant. This Commission held:
“The complainant had submitted that the demand by the opposite parties for the instalments against the terms and conditions of the booking confirmation letter and the refusal of the opposite parties to amend the sale agreement as also their failure to handover the title deeds and the link documents made him lose the opportunity to avail loan at low lending rate from the LIC Housing Finance. The contention of the complainant has acceptable force and it can be safely concluded that there was deficiency in service on the part of the opposite parties in the matter relating to loan transaction by the Bank and their demand for instalments in contravention of terms of booking letter.
For the foregoing reasons this Commission is of considered view that the opposite party cannot retain the amount by resorting to cancellation of allotment of the flat. Taking into consideration of totality of the circumstances of the case, this Commission holds the complainant is entitled to the refund of the amount with interest @ 9% p.a. from the date of last payment i.e. 24.1.2012”.
In “Sushil Kumar Pandey(supra), this Commission held that the complainant proceeded to purchase the flat with its features as mentioned in the brochure and agreement of sale and the opposite party retained the amount with it without proceeding to perform its part of contract and the specifications mentioned in the brochure were held to be different from the actual specifications of the flat.
Mr.Anki Reddy Seelam’s is also a case filed against the opposite party herein wherein the complainant sought for refund of the amount with compensation and costs. This Commission held that the opposite party cannot unilaterally forefiet paid by the complainant and it cannot unilaterally cancel the allotment without fulfilling corresponding obligation cast on it.
The catena of decisions mentioned above would spell out the deficiency in service on the part of the part of the opposite party herein as also its failure to perform its obligation. The opposite party ought to have refunded the amount paid by the complainants or registered the flat in favour of the complainants after receiving the balance sale consideration. As there is some dispute with regard to payment of interest on the balance sale consideration and the complainants have sought for an alternative relief for refund of the amount paid by them and we are inclined to hold the complainants entitled to refund of the amount paid by them with interest thereon at 9% p.a. from the date of notice (Ex.A2) i.e.01-8-2012 till payment together with costs of Rs.5000/-. Time for compliance four weeks.
In the result this complaint is allowed in part directing the opposite party to refund the amount paid by the complainants i.e. Rs.20,00,000/- with interest thereon at 9% p.a. from the date of notice (Ex.A2) i.e.01-8-2012 till payment together with costs of Rs.5000/-. Time for compliance four weeks.
C.C.No.134 of 2012:
For the same reasons as stated in C.C.No.133/2012, this complaint is also allowed in part directing the opposite party to refund the amount paid by the complainant i.e. Rs.20,00,000/- with interest thereon at 9% p.a. from the date of notice (Ex.A2) i.e.01-8-2012 till payment together with costs of Rs.5000/-. Time for compliance four weeks.
INCHARGE PRESIDENT.
MEMBER.
JM Dt.25-11-2013
//APPENDIX OF EVIDENCE//
Witnesses examined for
C.C.No.133 of 2012
For the complainants: For the Opp.party
Affidavit evidence of the Affidavit evidence of MD of
1st complainant filed. Opposite party filed.
Exhibits marked for the complainants:
Ex.A1 Confirmation letter, dated 08.06.2009
Ex.A2 Legal Notice, dated 01.08.2012
Ex.A3 Postal Receipt, dated 02.08.2012
Ex.A4 Acknowledgment, dated 03.08.2012
Ex.A5 Articles of association of opposite party
Ex.A6 Memorandum of Association.
Exhibits marked for the opposite party:
-Nil-
C.C.No.134 of 2012
For the complainant: For the Opp.party
Affidavit evidence of Affidavit evidence of MD of
the complainant filed. Opposite party filed.
Exhibits marked for the complainant:
Ex.A1 Confirmation letter, dated 08.06.2009
Ex.A2 Legal Notice, dated 01.08.2012
Ex.A3 Postal Receipt, dated 02.08.2012
Ex.A4 Acknowledgment, dated 03.08.2012
Ex.A5 Articles of association of opposite party
Ex.A6 Memorandum of Association.
Exhibits marked for the opposite party:
-Nil-
INCHARGE PRESIDENT.
MEMBER.
JM Dt.25-11-2013
