BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.543/2009 against C.C.No.709/2008, DISTRICT FORUM-I,Hyderabad.
Between
1.M/s.Sri Vyshnavi Constructions & Developers
Rep. by its Managing Partners
Sri C.G.Sajjan Kumar, S/o.C.G.Girmaji Rao,
Aged about 40 years, Occ:Business,
Sri K.Pramod Reddy, S/o.K.Prabhakar Reddy,
Aged about 37 years, Occ;Business,
Office at 3-4-130, Hima Apartments, Street
No.15, Barkatpura, Hyderabad.
2. C.G.Sajjan Kumar, S/o.C.G.Girmaji Rao,
Aged about 40 years, Occ:Business,
R/o.Flat No. 302 , Tirumala Apartments,
Behind Pantalooms Showroom,
Himayathnagar, Hyderabad.
3. K.Pramod Reddy, S/o.K.Prabhakar Reddy,
Aged about 37 years, Occ: Business,
R/o. Flat No.57, H.No.201, Amar Society ,
Beside Kavuri Hills, Near Durgam Cheruvu,
Ranga Reddy District. …Appellants/
Opp.parties 5 to 7
And
1.Ch.Mahender Reddy, S/o.Ch.Venkat Ram Reddy,
Aged about 50 years, Occ:Software Engineer,
2. Ch.Rajitha Reddy , W/o.Ch.Mahender Reddy,
Aged about 43 years, Occ:Software Engineer,
Both are presently residing at USA rep. by their
SPA holder K.Ramachandra Reddy ,
S/o.K.Gopal Reddy, aged about 75 years,
Occ:Retired , R/o.H.No.5-62/4A, V.V.Nagar,
Street No.8, Habsiguda, Secunderabad. …Respondents/
Complainants
3. Arab Jaywanth Raj , S/o. Ganapath Rao,
Aged about 75 years, Occ;Advocate.
4. Prabhavathi, W/o.Jaywanth Raj,
Aged about 73 years, Occ;Housewife,
5. Dr.Rajeev Arab, S/o.Jaywanth Raj,
Aged about 51 yrs., Occ:Doctor,
6. Sanjeev Arab , S/o.Jaywanth Raj,
Aged about 49 yrs., Occ:Business,
R/o.H.No.3-4-823/1, Barkatpura,
Hyderabad. …Respondents/
Opp.parties 1 to 4
Counsel for the Appellants : M/s. B.V.V.S Murthy
Counsel for the respondents : M/s.A.Jaywanth Raj-R3,R5 and R6
F.A.No.1033/2009 against C.C.No.709/2008, DISTRICT FORUM-I,Hyderabad.
Between:
1.Ch.Mahender Reddy, S/o.Ch.Venkat Ram Reddy,
Aged about 48 years, Occ:Software Engineer,
( Presently residing at USA rep. by their
SPA holder K.Ramachandra Reddy,
S/o.K.Gopal Reddy, aged about 72 years,
Occ:Retired , R/o.H.No.5-62/4A, V.V.Nagar,
Street No.8, Habsiguda, Secunderabad).
2. Ch.Rajitha Reddy , W/o.Ch.Mahender Reddy,
Aged about 41 years, Occ:Software Engineer,
R/o.Barkatpura ,Hyderabad. …Appellants/
Complainants
And
1. Arab Jaywanth Raj , S/o. Sri Ganapath Rao,
Aged about 73 years , Occ;Advocate.
2. Prabhavathi, W/o.Jaywanth Raju,(died)
Aged about 71 years, Occ;Housewife,
3. Dr.Rajeev Arab , S/o.Jaywanth Raju ,
Aged about 49 yrs., Occ:Doctor,
4. Sanjeev Arab , S/o.Jaywanth Raju,
Aged about 47 yrs., Occ:Business,
(All R/o.H.No.3-4-823/1, Barkatpura,
Hyderabad.)
5. M/s.Sri Vyshnavi Constructions & Developers
Rep. by its Managing Partners
Sri C.G.Sajjan Kumar , S/o.Sri C.G.Girmaji Rao,
Aged about 36 years, Occ:Business,
Sri K.Pramod Reddy, S/o.K.Prabhakar Reddy,
Aged about 34 years, Occ;Business,
Office at 3-4-130, Hima Apartments, Street
No.15, Barkatpura, Hyderabad.
6. C.G.Sajjan Kumar , S/o. Sri C.G.Girmaji Rao,
Aged about 36 years, Occ:Business,
R/o.Flat No. 302 , Tirumala Apartments,
Behind Pantallooms Showroom,
Himayathnagar, Hyderabad.
7. K.Pramod Reddy, S/o. Sri.K.Prabhakar Reddy,
Aged about 34 years, Occ: Business,
R/o. Flat No.57 , H.No.201, Amar Society ,
Beside Kavuri Hills, Near Durgam Cheruvu,
Ranga Reddy District. Respondents/
Opp.parties
Counsel for the Appellants : M/s. Raja Gopallavan Tayi
Counsel for the respondents : Mr.Susheel Kumar Dubey-R1,R3 & R4
QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT
AND
SMT.M.SHREESHA, HON’BLE MEMBER
TUESDAY, THE TWENTY SEVENTH DAY OF SEPTEMBER,
TWO THOUSAND ELEVEN.
Oral Order: (per Smt.M.Shreesha, Hon’ble Member)
****
Aggrieved by the order in C.C.No.709/2008 on the file of District Forum-1, Hyderabad , the opp.parties 5 to 7 preferred F.A.No.543/2009 and Complainants preferred F.A.No.1033/2009 . As both these appeals arise out of a common complaint they are being disposed of by this common order.
The brief facts as set out in the complaint are that the opposite parties 6 and 7 are in construction business i.e. construction of apartments in the name and style of Sri Vyshnavi Constructions & Developers i.e. opp.party no.5. Opp.parties 1 to 4 are the owners of property bearing municipal no.3-4-823/1 admeasuring 759 sq.yards situated at Barkatpura, Hyderabad (referred to as Schedule A property) and opp.parties 1 to 4 entered into a development agreement dt.2.8.2004 with opp.party no.5 rep. by opp.parties 6 and 7 for construction of apartment complex in the said place. Opp.parties 6 and 7 constructed an apartment complex in the said place consisting of 15 flats and named it as Royal Residency. Opp.party no.5 represented by opp.parties 6 and 7 entered into an agreement of sale on 20.10.2005 with the complainants in respect of flat bearing no.302 in third floor admeasuring 1440 sft. in the middle block ( hereinafter referred to as Schedule B property ). Complainants submit that as per the agreement of sale the entire sale consideration was agreed at Rs.14,40,000/- for the said flat and on the date of agreement of sale they have paid an amount of Rs.3 lakhs keeping balance sale consideration of Rs.11,40,000/-. By 1st May 2007 the complainants have paid entire sale consideration including registration charges and opp.parties 6 and 7 delivered possession of Schedule B property to the complainants and ‘No Due Certificate’ was issued by opp.party no.5 signed by opp.party no.6 stating that complainants cleared all dues. Inspite of receiving entire sale consideration and delivering the possession of flat, opp.parties have not executed registered Sale Deed in favour of the complainants with regard to the Schedule B property . The complainants made repeated requests to the opp.parties 1, 5 to 7 to execute a registered Sale Deed but they did not do so. On 28.5.2008 opp.party no.6 sent a Sale Deed copy to the complainants asking to affix thumb impressions in the annexure of the Sale Deed stating that they are going to register the Schedule B property in favour of the complainants. The complainants affixed their thumb impressions on the annexures of the Sale Deed and gave back the same to opp.party no.6 for which acknowledgement was issued. Thereafter the opp.parties have failed to execute the registered Sale Deed in favour of the complainants. Hence the complainants are constrained to issue a legal notice on 20.6.2008 to opp.parties 1,6 and 7 for which the opp.parties 1 & 7 did not give any reply and opp.party no.6 issued a reply legal notice dt.23.7.2008 stating that opp.party no.1 who is the land lord is not coming forward to execute the Sale deed. The complainants submit that inspite of paying entire sale consideration by them, opp.parties did not register the flat in their names causing lot of mental agony to them which amounts to deficiency in service. Hence the complaint seeking direction to opp.parties 1 to 7 to execute the registered Sale Deed in favour of complainants with regard to the Schedule B property, to pay Rs.3 lakhs for deficiency of service , to pay Rs.2 lakhs towards mental agony and to award costs .
Opp.parties 1,3 & 4 filed counter stating that they are the original owners of the Schedule A property and they came to know through legal notice dt.30.6.2008 that the complainants entered into an Agreement of Sale on 20.10.2005 with opp.party no.5 represented by opp.parties 6 and 7 in respect of flat no.302 III rd Floor admeasuring 1440 sft, Royal Residency. This has been done without their knowledge and opp.parties 5 to 7 have no exclusive right to enter into agreement of sale with respect to the said Schedule B property. Opp.party no.1 submits that himself and opp.parties 3 and 4 are the original owners of schedule A property and are not parties to the Agreement of Sale dt.20.10.2005 and there is no privity of contract between the opp.parties 1,3 and 4 and the complainants. The opp.parties submit that the complainants cannot enforce the terms and conditions of so called agreement of sale dt.20.10.05 against them and the complainants cannot claim execution of registration of Deed of Sale in respect of Schedule B property against opp.parties 1,3 and 4 . Opp.party no.1 submits that himself and his wife (deceased) and his sons have entered into Development Agreement on 2.8.2004 with opp.parties 5,6 and 7 in regard to development and construction of multi storied building in Schedule A premises. As per clause 11 of the terms of the Development Agreement opp.parties 1, 3 and 4 and opp.parties 5 to 7 are entitled to share the 5 residential flats as follows:
Owners share(Ops.1,3 and 4) : One flat in Ist floor
One flat in Vth floor
Builders share (Ops.5,6 & 7 ) : One flat in IInd floor
One flat in IIIrd floor
One flat in IV th floor
Excess area of half the flat retained by opp.parties 5,6 and 7 is on 50% share of the opp.parties 1,3 and 4 which shall be reimbursed by the opp.parties 5 , 6 and 7 to opp.parties 1,3 and 4 at mutually agreed price. As per the Development Agreement, opp.parties no.1, 3 and 4 are entitled to 50% share of the flat and the remaining 50% share of the flat vests with the opp.parties 5,6 and 7. The complainants having gone through the Development Agreement dt.2.8.2004 before entering into Agreement of Sale with opp.parties 5,6 and 7 ought to have approached opp.parties 1,3 and 4 and express their intention to purchase the flat. Opp.parties 5,6, and 7 with sole intention to cause monetary loss to opp.parties 1 ,2 and 3 have colluded with complainants and brought into existence the Agreement of sale dt. 20.10.2005 which is invalid and the complainants cannot even seek specific performance of the said agreement. Opp.parties submit that they are not aware as to whether the complainants have paid Rs.11,40,000/- to opp.parties 5 , 6 and 7 towards sale consideration of flat no.302 admeasuring 1440 sft. and opp.parties have not received a single paisa either from the complainants or opp.parties 5 to 7. The opp.parties gave a representation dt.5.7.2008 to opp.parties 6 and 7 stating that they are the owners of flat no.302 to the extent of 50% of the area and demanded payment of 50% of the sale consideration amount and opp.parties 6 and 7 promised to pay the true sale consideration amount to the extent of 50% within a month but failed to pay the same. Opp.party no.6 in his reply notice dt.23.7.2008 stated that they have delivered 1457 sft. and further stated that the rate per sft. is Rs.1625/- per sft. and even assuming the said rate of Rs.1625/- per sft. to be true the sale consideration of the flat no.302 comes to around Rs.30 lakhs .The market value of flat no.302 is around Rs.30 lakhs. The dispute of the complainants cannot be adjudicated under the provisions of C.P.Act and the complainants ought to have approached the Civil Court for adjudication of the matter and opp.parties prayed for dismissal of the complaint with costs.
The District Forum based on the evidence adduced i.e. Exs.A1 to A10 and B1 allowed the complaint partly directing opp.parties 5 to 7 jointly and severally to execute the Sale Deed in favour of the complainants 1 and 2 . Opp.parties 5 to 7 are also to pay Rs.10,000/- towards compensation along with Rs.2000/- towards costs .The complaint against opp.parties 1 to 4 is dismissed. ( The complaint against opp.party no.2 is dismissed as abated for not taking steps against her).
Aggrieved by the said order opp.parties 5 to 7 preferred F.No.543/2009 and complainant preferred F.A.No.1033/09. Appellants/opp.parties 5 to 7 in F.A.No.543/09 filed Ex.B2 as additional evidence. Respondents 3, 5 and 6/opp.parties 1, 3 and 4 in F.A.No.543/09 filed Exs.B 3 to B9 as additional evidence before this Commission.
It is the complainants’ case that opp.parties 1 to 4 are the land owners who entered into a Development Agreement Ex.A1 dt.2.8.2004 with opp.party no.5 represented by opp.parties 6 and 7 and the complainant purchased flat no.302 admeasuring 1440 sq.ft. and entered into Ex.A2 Agreement of Sale dt.20.10.05 with the opp.parties 5 to 7 for a total sale consideration of Rs.14,40,000/-. Ex.A3 evidences that the flat has been allotted to the complainants on 1.5.2007. Ex.A5 is the legal notice dt.30.6.2008 got issued by the complainants to the ops.1, 6 and 7 calling upon them to execute the registered Sale Deed for which opp.party no.6 replied vide Ex.A9 dt.23.7.08 stating that the complainants have not paid Rs.27,265/- and they also did not pay the registration charges on 1.5.07 and that opp.party no. 1 land owner is dragging the matter but opp.party no.6 is ready to register the Sale Deed. Opp.party no.1 got issued a legal notice Ex.B1 dt.5.7.08 to opp.parties 6 and 7 calling upon them to pay 50% of the sale consideration for flat no.302 as per the terms and conditions of Ex.A1 Development Agreement. The learned counsel representing appellants/complainants submitted that opposite parties 1, 3 and 4 who are the land owners should also execute the sale deed along opposite parties 5 to 7. He contended that though the scheduled property falls to the share of the builder still it is incumbent on opp.parties 1 to 4 to sell the undivided share of land.
A brief perusal of Ex.A1 Development Agreement shows that there are 15 flats totally and the land owners i.e. opp.parties 1 to 4 got one flat in the 1st floor , one flat in IInd floor , one flat in the 5th floor in the front block and the one flat in the third floor and one flat in the fourth floor rear block and one flat in 1st floor and one flat in the 5th floor in the middle block . i.e. in total 7 flats. A brief perusal of clauses 8,10 and 11 clearly state that 2nd party i.e opp.parties 5 to 7 also got 7 flats. Clause 11 reads as follows:
“11. That the first party and second party shall share the flats in the middle block as follows:
First Party : One flat in first floor, one flat in fifth floor
Second floor: one flat in second floor, one flat in third floor , one flat in fourth floor . an excess area of half the flat retained by the second party on the 50% share of the first party shall be reimbursed by the second party to the first party as mutually agreed by both the parties.”
The aforementioned clause clearly depicts that the 8th flat is to be shared 50% by the first party and the second party as mutually agreed by both parties. The contention of the complainants that the builders alone i.e. opp.parties 5 to 7 own flat no.302 and therefore the entire sale consideration was paid to them, but still the land owner also should execute the sale deed because of undivided share of land, is unsustainable. The learned counsel for the land owner has filed all the 7 Sale Deeds which he had entered into with third parties and these are marked as Exs.B2 to B8. If the flat has entirely fallen to the builder’s share and if the entire sale consideration has been paid only to the builders, there are no substantial grounds for the complainants to seek land owners’ cooperation now at this stage in executing the Sale Deeds. The learned counsel for the appellants/ opp.parties 5 to 7 contended that as per the Development Agreement, the money was reimbursed to the owner which he has to pay by way of amenities for 7 flats i.e. an amount of 13,41,000/- was reimbursed to owners. But we observe from the record that no such plea was taken in the reply notice and there was no such mention even in their reply notice Ex.A9 given by opp.party no.6 and there is no documentary evidence filed to substantiate this contention. The learned counsel representing the land owners i.e. opp.parties 1 to 4 contended that they did not receive any amount towards sale consideration for the impugned flat and therefore they did not join the execution of the Sale Deed. It is also pertinent to note that Ex.A2 Agreement of Sale does not show the land owners i.e. opp.parties .1 to 4 as party. Ex.A2 Agreement of Sale is only between the builder and the complainant. The learned counsel for opp.parties 1 to 4 contended that the complainant and builder entered into Ex.A2 Agreement of Sale without the knowledge of opp.parties 1 to 4. Ex.A2 also shows that opp.parties 1 to 4 are not parties to it and when no sale consideration was admittedly paid to opposite parties 1 to 4 seeking a direction to them to execute the Sale Deed is unsustainable. Therefore keeping in view the facts and circumstances and afore mentioned documents specifically Clause 11 in Ex. A1 Development Agreement entered into between the land owners and builders, we are of the considered view that 50% of the share of the said flat belongs to the land owners and both the land owners opp.parties 1,3 and 4 and the builder opp.party no.5 represented by opp.parties 6 and 7 shall jointly execute the Sale Deed and opp.parties 5 to 7 shall pay half of the total sale consideration received by them to opp.parties 1,3 and 4 towards the said flat no.302 within 4 weeks from the date of receipt of this order, failing which the land owner can recover the amount from the builder by taking recourse under Section 27. We confirm the amount of compensation and costs awarded by the District Forum against opp.parties 5 to 7 .
In the result F.A.543/09 filed by opp.parties 5 to 7 and F.A.1033/09 filed by the complainants are allowed in part modifying the order of the Dist. Forum and directing opposite parties .1,3 and 4 to jointly execute Sale Deed of flat no.302 along with the Builder opposite parties 5 to 7 and opp.parties 5 to 7 are directed to pay to the land owners i.e. opp.parties 1,3 and 4 , 50% of the total sale consideration received by them towards the impugned flat within four weeks from the date of receipt of this order, failing which the land owners can take recourse under Section 27 of the C.P.Act . The direction of the District Forum with respect to compensation and costs is confirmed. Time for compliance four weeks.
PRESIDENT
MEMBER
Pm* Dt. 27.9.2011.
