BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
C.C.No.90 OF 2011
Between
1. T.Madhavi W/o.T.Pratap
Aged about 32 years, Occ:Teacher
2. Dr.P.Satyanarayana S/o.P.Lakshminathan,
Aged about 65 years, Occ:Ayurvedic
Doctor, Both residing at H.No.2-1-566,
Shankermutt, Nallakunta, Hyderabad. A.P. Complainants
And
1. Jaligama Ramesh S/o.Late J.Balaiah @ Balappa
Aged 50 years, Occ:Business, R/o.H.No.3-6-369/A/22,
Street No.1, Himayatnagar, Hyderabad.
2. Sri Sikhara Constructions having its office at
Flat No.102, Sphinix Apartments, Street No.1,
Himayathnagar, Hyderabad, being rep. by
Managing Partner, R.Narasimha Reddy.
3. K.Vishnu Vardhan Reddy S/o.late K.Kista Reddy
Aged 51 years, Occ:Business, R/o.Flat No.301,
Star Homes,Domalguda, Hyderabad.
4. R.Narasimha Reddy S/o.R.Satyanarayana Reddy
Aged about 58 years, Occ:Business,
R/o.Flat No.301, Sphinix Apartments, Street No.1
Himayathnagar, Hyderabad. Opp.parties 1 to 4.
Counsel for the Complainants : Mr. Md.Muneeruddin
Counsel for the Opposite parties : Mr. Md.Abdul Samad-O.P.1
Notice of O.P.2 returned
M/s.J.Srinivas Reddy-O.P.3
M/s. Mohd.Moizuddin Ahmed-O.P.4
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,
SMT.M.SHREESHA, HON’BLE MEMBER,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMEBR.
WEDNESDAY, THE EIGHTH DAY OF AUGUST,
TWO THOUSAND TWELVE
Order (Per Smt.M.Shreesha, Hon’ble Member)
***
The brief facts as set out in the complaint are that the complainant No.1 is the daughter of complainant No.2 and they intended to purchase a flat. The complainants submitted that on 08-8-2008, opposite party No.1 and opposite party No.4 offered to sell flat No.101 to the complainants admeasuring 1040 sq. ft. @ 4150 sq. ft in the premises admeasuring 773 sq. yds. bearing Municipal No.3-6-369/A/22, Plot No.5, Street No.1, Himayathnagar, Hyderabad. The complainants submitted that they are liable to pay a further sum of Rs.3,00,000/- towards cost of all amenities and car parking at the time of delivery of possession and execution of registered sale deed. The complainants submitted that opposite parties 1 and 4 informed that opposite party No.1 is the owner and opposite parties 3 and 4 are partners of opposite party No.2 firm which has entered into development agreement to construct multi-storied apartments. The complainants submitted that on the assurance of opposite parties 1 and 4 to execute agreement of sale, the complainant paid Rs.2,10,000/- and a further sum of Rs.1,40,000/- on 07-9-2008 but they did not execute written agreement of sale and after follow up, they executed an agreement of sale on 20-9-2008 in favour of the complainant after receiving a cash of Rs.15,00,000/- from the complainants on 20-9-2008 and further Rs.5,00,000/- by way of post dated cheque No.878155 dated 09-10-2008 in the name of opposite party No.1 as per the terms of the agreement and the sale consideration was subject to actual measurement of flat No.101. The complainants submitted that the opposite parties promised to complete the construction work of the said apartment and deliver physical possession to them in all respects within 15 months from 20-9-2008. The complainants submitted that as per agreement of sale dated 20-9-2008, the complainants have to pay Rs.43,16,000/- towards cost of flat and an additional amount of Rs.3,00,000/- towards cost of all amenities and car parking and the sale consideration was subject to actual measurements and admitted receipt of cash of Rs.15,00,000/- and a further sum of Rs.5,00,000/- vide post dated cheque as per agreement of sale and the balance sale consideration was agreed to be paid as under:
a) Rs.11,50,000/- at the time of brick work of flat No.101
b) Rs.11,50,000/- at the time of flooring of flat No.101
c) Balance amount to be paid at the time of handing over possession of flat No.101 subject to actual measurement and sale deed to be executed simultaneously with delivery of possession.
The complainants submitted that the opposite parties did not deposit the cheque for Rs.5,00,000/- dated 09-10-2008 and on 14-10-2008, opposite party No.1 approached the complainants and requested them to take back the cheque and requested the complainants to pay Rs.2,00,000/- in cash and pay balance sum of Rs.3,00,000/- by a substitution cheque on the pretext that such a situation arose due to their own internal arrangement among the partners and the land owner and the complainants accordingly received the cheque and paid Rs.2,00,000/- in cash and gave cheque for Rs.3,00,000/-, which was also encashed. The complainant submitted that on 29-1-2009, opposite party No.4 approached them and collected a sum of Rs.1,00,000/- due to some urgent work of the suit apartments and offered to adjust the same against part of sale consideration but the complainants expressed their inability and the opposite party No.4 stated to the complainants that he will make temporary arrangement from a known person, by name, Mr.Shankerlal Gupta and requested the complainants to pay the said amount to him and the complainants agreed for the same.
The complainants further submitted that at the time of execution of agreement of sale dated 20-9-2008, opposite parties failed to provide a copy of approved plan of GHMC to the complainants and on 27-8-2009, they came running and informed that the Commissioner of GHMC shall be demolishing the entire apartment on account of deviations and illegal construction and requested the complainants to pay Rs.3,40,000/- by way of pay order in the name of Commissioner, GHMC, Hyderabad to regularize the deviation for which they filed application under Building Penalization Scheme vide file bearing No. BPS 9874/CZ/09/08 and the complainants left with no option paid the same and the opposite parties promised to adjust the same against part of sale consideration of the flat. The complainants submitted on 29-8-2009, opposite parties 3 and 4 approached them and requested to pay Rs.3,00,000/- against security of cheque No.133376 dated 31-8-2009 to meet urgent official and unofficial expenses for regularization of the said apartment and the complainant after talking to opposite party No.1 on phone agreed to adjust the same against part sale consideration of the flat against the security of cheque dated 133376 dated 31-8-2009 and the opposite parties agreed to adjust the same towards sale consideration of the flat. The complainants submitted that the actual built up area of the flat No.101 is only 777 sq. ft. and as per the agreement of sale , the sale consideration of flat shall be @ Rs.4150 sq. ft. subject to actual measurement and therefore the sale consideration of flat No.101 came to Rs.32,24,550/- against which the complainants have already paid Rs.30,90,000/- and are liable to pay balance sale consideration of Rs.1,34,550/- plus Rs.3,00,000/- for amenities and car parking which is as under:
Date | Particulars Payment | Amount |
08-8-2008 | Initial cash payment (doc.No.1) | 2.10,000/- |
07-9-2008 | Further cash payment (doc No.3) | 1,40,000/- |
20-9-2008 | Cash payment at the time of execution of agreement of sale of flat No.1 (doc.No.3) | 15,00,000/- |
14-10-2008 | Cash against cheque No.878155 (doc.No.4) | 2,00,000/- |
06-11-2009 | Cash against cheque No.896173 (doc No.5) | 3,00,000/- |
29—1-2009 | Cash paid to Shankerlal Guptaji in lieu of cheque issued by O.P.4 bearing No.163373 (doc 6 & 7) | 1,00,000/- |
29-8-2009 | Paid on behalf of opposite parties for building penalization BPS No.9874/CZ/09/08 (doc No.8) | 3,40,000/- |
31-8-2009 | Cash paid to OP3 and 4 against Security of cheque No.133376 (doc No.9) | 3,00,000/- |
| Total | 30,90,000 |
The complainants submitted that they are liable to pay Rs.4,34,550/- only at the time of delivery of possession and execution of registered sale deed but opposite party No.1 issued a legal notice to the complainants dated 24-3-2001 calling upon the complainants to pay Rs.16,50,000/- as part consideration and contended that have to forfeit the amounts paid by the complainant for which the complainants got issued a legal notice to opposite parties on 30-3-2011 for which opposite party No.4 issued a reply notice evasively stating Rs.3,40,000/- was paid towards some mortgage loan and denied payments of Rs.1,40,000/-, Rs.3,00,000/- and Rs.2,10,000/- and this amounts to deficiency in service and unfair trade practice and inspite of several reminders, the opposite parties did not come forward to complete the construction of the apartments in all respects and on the other hand made illegal efforts to cancel agreement of sale dated 20-9-2008. Hence the complaint for a direction to the opposite parties to complete the construction of the flat No.101 in all respects within a specified time frame and to furnish the complainants Occupancy certificate from GHMC in respect of flat No.101, to furnish a report of actual measurement of plinth area in respect of flat No.101, to receive balance sale consideration from the complainants as per actual measurement and execute registered sale deed, to demarcate the parking space allotted to flat No.101 and also to jointly and severally pay compensation in lieu of monthly rents @ 10,000/- per month from 01-1-2010 for non completion of construction work of flat No.101 from 01-1-2010 to 01-10-2011 summing up to Rs.2,20,000/- or alternatively direct the opposite parties to refund Rs.30,90,000/- with interest at 18% p.a. from 01-1-2010 till the possession of flat together with compensation of Rs.5,00,000/- and costs of Rs.10,000/-.
Opposite party No.1 filed counter denying the allegations made in the complaint and submitted that the complainants have suppressed the material facts and denied that they are ‘consumers’. He denied that the complainants paid a sum of Rs.2,10,000/- on the assurance to execute agreement of sale and another sum of Rs.1,40,000/- on 07-9-2008 is absolutely false and baseless and submitted that the complainants on 20-9-2008, paid only a sum of Rs.15,00,000/- as advance part sale consideration out of the total agreed sale consideration and the complainant had agreed to pay another Rs.5,00,000/- through cheque bearing No.878155 dated 09-10-2008 but have not issued the above referred cheque stating that they do not have enough funds. Opposite party No1. also denied that opposite party No.4 approached the complainants and requested to pay Rs.1,00,000/- and to adjust the same in sale consideration with temporary arrangement from Shankarlal Guptaji and allegation of issuance of cheque bearing No.163373 is also denied. He further contended that opposite party No.4 is no way concerned with the said flat except opposite party No.1 nobody has got any right, title and interest to deal with the said flat. He also denied that they failed to provide copy of approved plan and on 27-8-2009 they requested the complainant to pay Rs.3,40,000/- by way of pay order in the name of Commissioner GHMC to regularize the deviation etc. are false and allegation that opposite party No.4 stated that he being a close friend of complainant No.2 and made the complainant to pay Rs.3,40,000/- to municipal authorities on 29-8-2009 and promised to adjust the same against sale consideration is totally incorrect. In fact opposite party No.4’s wife is suffering from cancer and she was taken to Bombay for treatment who later passed away and opposite party No.4 being a close friend deposited his title deeds with complainant No.2 and requested to pay the aforesaid amount of Rs.3,40,000/- to municipal authorities and opposite party No.4 had paid the said amount to complainant No.2. Opposite party No.1 submitted that the builder had handed over possession of the flat No.101 to
him as he is entitled to it. The allegation that on 29-8-2009 opposite parties 3 and 4 approached the complainants and requested to pay Rs.3,00,000/- for meeting urgent official work is denied.
Opposite party No.1 submitted that the actual area of the flat with common area is only 777 sq. ft. as such total sale consideration of flat is Rs.32,24,550/- and the calculation table shown in the complaint is false. He also denied the allegation that the cost of all amenities and parking charges of Rs.3,00,000/- to be paid at the time of registration of sale deed is false and baseless. Opposite party No.1 admitted that it got issued a legal notice to the complainants and they failed to perform their part of obligation and he has cancelled the agreement of sale and forfeited advance sale consideration of Rs.15,00,000/- paid at the time of execution of agreement of sale dated 20-9-2008 and submitted that the complainant got issued a false reply. Opposite party No.4 also issued a notice to the complainants marking a copy to opposite party No.1 which clearly contemplates that he had not received any amount towards sale consideration and he is not concerned with the said flat. Opposite party No.1 denied the allegations that he committed deficiency in service and unfair trade practice and that they are coming forward to complete the construction work etc. are false and denied the same.
Opposite party No.1 submits that the complainants approached him to purchase flat No.101 on 1st floor admeasuring 1040 sq. ft. along with 30.58 sq. yds. of undivided share of land and he was in urgent need of money offered to sell the said flat for a total sale consideration of Rs.46,16,000/- plus Rs.3,00,000/- towards car parking and other amenities. The complainants agreed to purchase the aid property with a condition that they shall pay a sum of Rs.20,00,000/- as on the date of agreement towards advance part sale consideration and balance sale consideration of Rs.11,50,000/- shall be paid at the time of brick work and a sum of Rs.11,50,000/- shall be paid at the time of flooring of the flat and the remaining balance at the time of handing over possession and entered into an agreement of sale on 20-9-2008 offering to sell the above flat. Opposite party No.1 submitted that the complainants paid only Rs.15,00,000/- as advance part sale consideration out of agreed sale consideration and agreed to pay Rs.5,00,000/- through cheque bearing No.878155 dated 09-10-2008. Opposite party no.1 submitted that the complainants have been visiting the site where the construction of the flat is going on but intentionally avoided to perform their part of obligation and have not issued the above cheque for Rs.5,00,000/- as they do not have enough money and even at the stage of brick work and even after completion of brick work, the complainant did not pay the balance sale consideration as agreed and therefore opposite party No.1 got issued a legal notice on 24-3-2011 calling upon the complainants to pay Rs.16,50,000/- towards part payment of sale consideration as brick work of the flat is completed, sanitation, electrical and flooring work is under progress or else opposite party No.1 will be constrained to cancel the agreement of sale and forfeit the advance part sale consideration of Rs.15,00,000/- for which the complainant issued a reply dated 30-3-2011 with false facts. Opposite party No.1 submitted that opposite party No.4 also issued a notice dated 15-4-2011 to the complainants marking copy to him that he had not at all receive any amount towards sale consideration and that he is not concerned with the said flat. Opposite party No.1 submitted that the complaint is bad for mis-joinder and non-joinder of necessary parties and prayed for dismissal of the complaint.
Opposite party No.3 filed counter denying the allegations made in the complaint. He submitted that opposite party No.1 is the absolute owner and that as per the development agreement flat No.101 fell to his share and therefore opposite party No.1 has right to receive the sale consideration and that opposite party No.3 has nothing to do with the flat and that he is not aware of the transactions that took place between the complainant and opposite party Nos.2 to 4. He submitted that he had not received any sale consideration from the complainants and submitted that opposite parties 2 and 4 colluded with the complainant and violated the rules and regulations of GPA of Sri Sikhara Constructions rep. by Partner K.Vishnuvardhan Reddy. Opposite parties 2 and 4 signed and executed an agreement with the complainant and other third parties and received sale consideration which is not binding on him and he was made unnecessarily a party and denied all other allegations. He submitted that the complaint is barred by limitation and filed with all false, incorrect and baseless allegations and prayed to dismiss the same with costs.
Opposite party No.4 filed counter denying the allegations made in the complaint. He submitted that many complaints were filed by the purchasers of flats complaining of non registration of the flats and a bare reading of these complaints goes to show that the complaints were filed with active connivance and collusion between the complainant and opposite party No.3 who swindled away the amount without paying even a single pie to opposite party No.4 who is entitled to receive the sale consideration. He submitted that he is not aware of the various payments made by the complainants and offering of flat No.101 and submitted that the complainant at no point of time approached opposite party No.4 for purchase of the said flat and submitted that he has no right to deal with the said flat as it was allotted to opposite party No.1 as per the development agreement. He submitted that there is no privity of contract between opposite party No.4 and submitted that M/s.Sikhara Constructions, opposite party No.2 is a registered partnership firm has entered into registered development agreement cum general power of attorney with the owner to develop and construct residential apartments in which the owner and the firm have got their specified share. He denied the allegation that he received Rs.1,00,000/- on 29-2-2009 in cash through Shankarlal Guptaji to be adjusted towards sale consideration for the flat belonging to opposite party No.1 and also denied issuance of cheque. He also denied the allegation that the complainant made payment of Rs.3,40,000/- to municipal authorities on 29-8-2009 and opposite party No.4 promised to adjust the same as sale consideration of the schedule flat is denied. Opposite party no.4 also denied that he approached the complainants and requested to pay a sum of Rs.3,00,000/- against security of cheque and submitted that he has not received any amount towards the aforesaid flat. Opposite party No.4 admitted to the exchange of notices and submitted that there is no deficiency in service and prayed for dismissal of the complaint with costs.
Complainant No.1 filed her affidavit reiterating the facts stated in the complaint. She submitted that opposite party No.4 issued reply to the notice and denied payment of Rs.3,40,000/- towards part sale consideration for flat No.101 and stated that it was towards some mortgage loan and also denied payments of Rs.1,40,000/- and Rs.3,00,000/- and Rs.2,10,000/-. She submitted that opposite party No.1 in his counter projected that they do not have sufficient money to pay him but admitted that he paid a sum of Rs.3.50 lakhs to opposite party No.4 towards medical expenses of his wife which show that they have enough funds but he is misguideing this Commission and projecting that they committed breach of contract. She submitted that opposite party No.2 (sic 3) in his counter stated opposite party Nos.1 and 4 colluded and violated the rules and regulations of partnership concern, M/s.Sikhara Constructions and entered into agreement of sale with third parties and received sale consideration. The complainant submitted that since the partnership of opposite party No.3 with opposite parties 1 and 4 is not denied, opposite party No.3 is a necessary party. She submitted that opposite party No.3 in his counter at para 6 stated that the partnership firm has taken all steps but neither specified how much amount has been paid and what was the source nor filed any documentary evidence to show that it was paid by the partnership firm. She further submitted that opposite party No.3 denied issuing of cheque for Rs.3,00,000/- in security of amount but failed to explain how the said cheque came into their custody. She further submitted that opposite party No.4 is trying to wash out his hands by simply stating that he has nothing to do with the sale transaction and contended that it belonged to opposite party No.1 but opposite party No.4 miserably failed to explain why he signed receipts for Rs.1,40,000/-, 2,10,000/-, letter for Rs.1,00,000/- signed as joint signatory on cheque for Rs.3 lakhs and the above facts show that there is deficiency in service on the part of the opposite parties and that they are not completing the construction work with all amenities and not furnishing the report of actual measurement of flat No.101 and are making illegal efforts to cancel the agreement of sale dated 20-9-2008 and prayed to allow the complaint and relied on Exs.A1 to A12.
Opposite party Nos.1, 3 and 4 filed affidavits reiterating the facts stated in the counter and opposite party No.1 and relied on Exs.B1 and B2 but the said documents are not filed and marked.
The point for consideration is whether there is any deficiency in service on behalf of opposite parties 1 to 4 and if the complainant is entitled to the relief sought for in the complaint?
It is the complainants’ case that opposite parties 1 and 4 approached them to purchase flat No.101 of 1040 sq. ft. for a consideration of Rs.4150 per sq.ft. with undivided share of 30.58 sq. yds. Ex.A3 is the agreement of sale dated 20-9-2008 executed between the opposite parties and the complainants evidencing that the complainants have paid an amount of Rs.15,00,000/- on 20-9-2008 and have issued a post dated cheque for an amount of Rs.5,00,000/- dated 09-10-2008 (Ex.A4) and the balance sale consideration will be paid as follows:
i) Rs.11,50,000/- at the time of brick work.
ii) Rs.11,50,000/- at the time of flooring
iii) Balance amount at the time of handing over possession.
iv) Additional Rs.3,00,000/- for providing car parking and other amenities.
It is the complainants case that flat No.101 fell to the land owner’s share i.e. opposite party no.1 who is the co-owner with Jaligama Prakash, Jaligama suresh and Jaligama Ashok. As per the agreement Ex.A3, the flat was to be delivered within 15 months i.e. by 21-12-2009. It is the complainants case that the actual measurement of flat No.101 is 777 sq. ft. against which the complainants already paid Rs.30.90,000/- for which opposite parties denied the payments and got issued a legal notice that only Rs.15,00,000/- was paid.
It is the complainant’s case that the amounts were paid as follows:
Date | Particulars Payment | Amount |
08-8-2008 | Initial cash payment (doc.No.1) | 2.10,000/- |
07-9-2008 | Further cash payment (doc No.3) | 1,40,000/- |
20-9-2008 | Cash payment at the time of execution of agreement of sale of flat No.1 (doc.No.3) | 15,00,000/- |
14-10-2008 | Cash against cheque No.878155 (doc.No.4) | 2,00,000/- |
06-11-2009 | Cash against cheque No.896173 (doc No.5) | 3,00,000/- |
29—1-2009 | Cash paid to Shankerlal Guptaji in lieu of cheque issued by O.P.4 bearing No.163373 (doc 6 & 7) | 1,00,000/- |
29-8-2009 | Paid on behalf of opposite parties for building penalization BPS No.9874/CZ/09/08 (doc No.8) | 3,40,000/- |
31-8-2009 | Cash paid to OP3 and 4 against Security of cheque No.133376 (doc No.9) | 3,00,000/- |
| Total | 30,90,000 |
The opposite parties 1, 3 and 4 in their affidavits filed by way of evidence denied all payments except for Rs.15,00,000/- vide Ex.A3, agreement of sale. The counsel for the complainant submitted that Exs.A1 and A2, A4 and A5 are the photo copies of the receipts issued by opposite parties 1 and 4 for an amount of Rs.2,10,000/-, Rs.1,40,000/-, Rs.2,00,000/- and Rs.3,00,000/- respectively. The receipt of these amounts has been denied by opposite parties 1 and 4. The burden of proof is on the complainant to establish that Exs.A1 A2, A4 and A5 receipts have been issued by opposite parties 1 and 4. The complainant has not taken any steps to send these receipts to the handwriting expert to substantiate their case and also did not file the originals when the very issuance of the documents is being denied by the opposite parties. The Consumer Protection Act, 1986 envisages summary proceedings therefore to decide the veracity of these documents, in the absence of any handwriting expert’s opinion, does not fall within the jurisdiction of this Commission but the complainants are at liberty to approach the appropriate Forum for seeking redressal. There are no substantial grounds to explain as to why cheque, Ex.A9, was issued as security and there is no proof as to payment of amount against this cheque. Ex.A4 also includes the cheque for Rs.5,00,000/- dated 09-10-2008 which is also a part of the payment agreed under Ex.A3 but the complainant has not filed any documentary evidence to establish that this amount has been paid specially when opposite parties 1 and 4 deny the receipt of any such payment and have also got issued legal notices, Exs.A10 and A11 dated 24-3-2011 and 15-4-2011 demanding the complainant to pay the balance sale consideration of Rs.16,50,000/- as the brick work of the flat is completed and sanitation, electrical and flooring work is still under progress. The complainant contends that an amount of Rs.1,00,000/- was paid to opposite party no.4 (Exs.A6 and A7) as against the cheque issued by opposite party no.4 to one Shankerlal Gupta. There is no evidence to establish that this payment has been made towards the sale consideration of the said flat. However, Ex.A8 is the photo copy of the cheque dated 29-8-2009 paid by the complainants to Commissioner, GHMC, for an amount of Rs.3,40,000/- towards building regularization which has to be included as part of sale consideration. Ex.A9 is the photo copy of cheque once again issued by opposite parties 3 and 4 to the first complainant for an amount of Rs.3,00,000/- which the complainant contends is a loan advanced to opposite parties 3 and 4 to be adjusted against the balance sale consideration. When it is an admitted fact that flat No.101 has fallen to the share of opposite party No.1, there are no reasons as to why the complainants have advanced a loan of Rs.3,00,000/- to opposite parties 3 and 4 which is stated to be against the security of Ex.A9 cheque and now to expect this amount to be adjusted towards the sale consideration to be paid to opposite party no.1, once again without any documentary evidence of originals or handwriting expert’s opinion with respect to the amounts advanced as loan or with respect to the security given, such a direction to adjust towards sale consideration to be paid to opposite party No.1 when this transaction is stated to have been between the complainants and opposite parties 3 and 4, is unsustainable.
Keeping in view the aforementioned admitted fact and that the flat No.101 falls to the share of opposite party No.1 and that an amount of Rs.15,00,000/- plus Ex.A8 i.e. Rs.3,40,000/- has been paid by the complainants herein, we direct the complainants to pay the balance sale consideration as per the stages of construction mentioned in Ex.A3, agreement of sale to opposite party No.1 and opposite party No.1 shall hand over possession and execute the registered sale deed along with opposite parties 2, 3 and 4 as opposite party No.2 is a partnership firm and they are all arrayed as First Party as per Ex.A3. Clause 3 (iii) of Ex.A3 also envisages the actual measurement to be done prior to registration for which opposite party No.1 shall co-operate. The complainant is also entitled to damages of Rs.2,00,000/- for the inconvenience caused due to delay in completion of the project as against the promised terms of Ex.A3. The amenities are to be completed by the opposite parties prior to handing over possession within 8 weeks from the date of receipt of this order or in the alternative the complainants at their choice are entitled to seek refund of the amounts paid from opposite party No.1 i.e. Rs.18,40,000/- together with interest at 12% p.a. on Rs.15,00,000/- from 20-9-2008 and on Rs.3,40,000/- from 29-8-2009. The opposite parties 1 to 4 are jointly and severally directed to pay compensation of Rs.2,00,000/- for the mental agony and inconvenience suffered by the complainants for not having completed the construction of the flat and providing amenities in time as per Ex.A3 together with costs of Rs.5,000/-.
In the result this complaint is allowed in part directing the complainants to pay the balance sale consideration i.e. Rs.46,16,000/- less Rs.18,40,000/- subject to the measurement as mentioned in clause 3(iii) and the stages of construction mentioned in Ex.A3, agreement of sale, to opposite party No.1 and opposite party No.1 shall hand over possession and execute the registered sale deed along with opposite parties 2, 3 and 4 as opposite party No.2 is a partnership firm and they are all arrayed as First Party as per Ex.A3. Clause 3 (iii) of Ex.A3 also envisages the actual measurement to be done prior to registration for which opposite party No.1 shall co-operate. The opposite parties should jointly complete and provide amenities as per Ex.A3 within 8 weeks from the date of receipt of this order. The complainant is also entitled to damages of Rs.2,00,000/- for the inconvenience caused due to delay in completion of the project as against the terms of Ex.A3.
OR
in the alternative the complainants at their choice are entitled to seek refund of the amounts paid from opposite party No.1 i.e. Rs.18,40,000/- together with interest at 12% p.a. on Rs.15,00,000/- from 20-9-2008 and on Rs.3,40,000/- from 29-8-2009. The opposite parties 1 to 4 are jointly and severally directed to pay compensation of Rs.2,00,000/- for the mental agony and inconvenience suffered by the complainants for not having completed the construction of the flat and providing amenities on time as per Ex.A3 together with costs of Rs.5,000/-.
Sd/-PRESIDENT.
Sd/-MEMBER.
Sd/-MEMBER.
JM Dt.08-8-2012
APPENDIX OF EVIDENCE
For the complainants: For Opp.party:
Affidavit evidence of 1st complainant Affidavit evidence of O.P.1 filed.
Filed. Affidavit evidence of O.P.3 filed
Affidavit evidence of O.P.4 filed.
Exhibits marked for the complainants
Ex A-1-Receipt for cash payment Rs.2,10,000/- to OP1 & OP4
Dt : 8.9.2008
Ex A-2-Receipt for cash payment of Rs.1,40,000/- to OP1 & OP4
Dt : 7.9.2008
Ex A-3-Agreement of Sale executed by Ops in favour of complainants
Dt 20.9.2008
Ex A-4-Cheque No. 878155 acknowledging cash payment of Rs.2,00,000/- duly endorsed. Dt : 14.10.2008
Ex A-5-Cheque No.896173 acknowledging the cash payment of
Rs.3,00,000/- Dt 6.11.2008
Ex A-6-Letter issued by OP4 addressed to Shankerlal Guptaji for Cash
Payment of Rs.1,00,000/- vide cheque bearing no. 163373.
Dt 29.1.2009
Ex A-7-Cheque No. 163373 issued by OP4 in favour of Shankerlal Guptaji
Ex A-8-Pay order for payment of Rs.3,40,000/- to GHMC for building Penalisation BPS No.9874/C /09/08 paid by the complainants
Dt : 29.8.2009
Ex A-9-Cheque issued by OP3 & OP4 receiving cash sum of Rs.3 lakhs against his cheque no.133376 dt : 31.8.2009
Ex A-10-Legal notice issued to the complainants by OP1 dt : 24.3.2011
Ex A-11-Reply notice issued by OP4 dt : 15.4.2011
Ex A-12-Copy of Partnership Deed dt : 14.3.2002
Exhibits marked for the opposite parties
-Nil.
Sd/-PRESIDENT.
Sd/-MEMBER.
Sd/-MEMBER.
JM Dt.08-8-2012
