BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
CC 5 of 2012
Between:
Smt K.Radhika W/o K.Prabhakar Chary
aged about 33 years, Occ:Housewife,
R/o H.No.1-5-6, Laxmi Nivas
General Bazar, Secunderabad
Complainant
A N D
1. K.Visweshwar Reddy S/o K.Veera Reddy
R/o H.No.5A, Srinivasa Residency
Bhagyanagar Colony, Kukatpally
Hyderabad
2. C.Srinivas Reddy S/o C.Narsi Reddy
R/o H.No.Plot No.102, Nethaji Nagar
Ring Road, Hyderabad
Opposite parties
Counsel for the Complainant: M/s. K.Visweshawara Rao
Counsel for the Respondents: Publication filed
QUORUM
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
SMT. M. SHREESHA, HON’BLE MEMBER
&
SRI S.BHUJANGA RAO, HON’BLE MEMBER
FRIDAY THE SEVENTH DAY OF SEPTEMBER
TWO THOUSAND TWELVE
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President)
***
1) This is a complained filed u/s 17(a)(1) of the Consumer Protection Act for demarcation and allot 42% share of the constructed area after completion of construction as per the terms of the agreement, handover possession and to pay rentals at `15,000/- per month, compensation of `10 lakhs and costs.
2) The case of the complainant in brief is that he is the owner and in possession of plots Nos.28 & 30 in S.Nois.45, 46/1 & 47 in GLR Sy.No.444 admeasuring 300 sq.yards situated at Kakaguda Village, Secunderabad Cantonment. He purchased it under the registered sale deed dated 20.10.2005. The opposite parties are the builders who agreed to develop the property by constructing apartments and accordingly executed Development Agreement cum General Power of Attorney on 11.11.2005. As per clauses under the agreement he was entitled to 42% built up area and opposite parties no.1 and 2 entitled to remaining 58%. The opposite parties agreed to construct in accordance with the specifications and that they would obtain all necessary permissions and sanction from Municipal Corporation and HMWS & SB at their own costs and expenses. They also agreed to construct within 12 months with a grace period of 3 months. The developer further agreed to pay `1,50,000/- interest free refundable deposit. Accordingly the property was delivered to the opposite parties no.1 and 2 on the very same date. When they pleaded inability to proceed and had to obtain funds from financial institutions, she executed DGPA on 28.3.2008. Later they started construction however deviated without demarcation. They started selling the flats fell to her share to prospective purchasers namely 102, 201 and 302 to Dr.P.Nagaraj, Padmini Peterson, Dr.Thukkaraju Sowjanya respectively, for which she would take separate steps for cancellation of the sale deeds. Due to the acts, she was unable to get the rents on the flats. She is entitled to three flats towards her share and the market rent will be `5,000/- per month and three flats would fetch `15,000/- p.m. If the delay period is reckoned from 10.2.2007 till 10.11.2001 the same comes to `8,55,000/-. They did not obtain drinking water and drainage connection nor provided common amenities. Despite completion of six years, they did not deliver the vacant possession of the property. Thereupon she got issued a registered legal notice on 29.06.2011 demanding him to complete the construction and handover possession and pay the amount rents for which they gave evasive reply. The allegation that there are minor incomplete works and they would complete and hand over when the complainant refunds interest free deposit is contrary to terms. Without delivering the possession they cannot seek the said amount. The deposit made for water and electricity connection obtained by the opposite parties and that they paid `8,55,000/-, and the proportionate charges claimed to have been born by the building can be adjusted in the rental arrears if any. Without executing the works the said contention has no basis. All this amounts to unfair trade practice. Therefore they prayed for direction to the opposite parties for demarcation and allotment of 42% share of the constructed area after completion of construction as per the terms of the agreement, handover possession and pay rentals of `8,55,000/- together with compensation of `10 lakhs for mental agony and costs.
3) Despite the fact that the notices were sent to their last known addresses as mentioned in the agreement they were returned with postal endorsement ‘ no such person’. On that paper publication was ordered in Andhra Jyothi daily newspaper edition of Hyderabad and still the opposite parties did not choose to contest and therefore invoking Sec. 28(4) C.P. Act they were set exparte.
4) The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A10 marked.
5) The points that arise for consideration are:
1. Whether the complainant is entitled to possession of her
share of the property?
2. Whether the complainant is entitled to the rental arrears?
3. Whether the complainant is entitled to any compensation?
4. To what relief?
6) It is an undisputed fact that the complainant is the owner of site of
300 Sq.yards purchased by her under sale deed dated 22.10.2005. Ex.A2 discloses that the opposite parties executed Development Agreement cum General Power of Attorney to the complainant on 11.11.2005 whereunder the opposite party as developer agreed to construct the flats and deliver 42% share in the proposed building and deliver three flats to their share along with common amenities like stair case, passages etc. A sum of `1,50,000/- was paid to the complainant towards interest free refundable deposit vide clause 3. Clause 11 stipulates the developer to deliver the built up area to her within 12 months from the date of sanction from the municipal corporation with a grace period of 3 months for completion of the building. In fact clause 18 stipulates that the complainant is entitled to sell her share of 42% to prospective purchasers. She also agreed to pay proportionate amount in respect of the cost of deposits, fees, transformer charges or other demands that may be raised by the APSEB and Hyderabad Metro Water and Sewerage Departments for providing electricity and water supply and drainage connections. Through their letter dated 9.8.2007 the sanction for construction of the flats issued to the opposite parties by Secunderabad Cantonment Board. Clause 19 stipulates payment of damages in case of breach of terms which reads as follows:
19. It is further agreed that parties to this agreement shall be bound by all the terms herein contained. If any of the parties to this agreement commit breach of any of the terms herein contained, then such other party as the case may be entitled and also to claim damages in respect of the loss sustained from the party committing the breach.
7) The complainant alleging that the opposite party did not complete the construction and hand over the same, on the contrary, sold the said property to said three persons. Therefore she sought for possession of her share of property and compensation. She estimated at `5,000/- per month towards probable rent she would set per month and Rs.15,000/- per month as claimed `6,30,000/- besides compensation towards mental agony. For the notice issued by the complainant under Ex.A6, the opposite parties gave a reply marked as Ex.A9 which reads as follows:
d. My clients further states that your client and my clients entered a flats sharing agreement dated 13.03.2008 to share the construction area in the ratios of 42:58 and identified the flats to each of them i.e. southern side flat of 1050 sft in first floor, Northern side flat of 1045 sft in second floor fallen to the share of your client and the northern side flat of 1045 sft in first floor, southern side flat of 1050sft in second floor, northern side flat off 1045 sft in third floor fallen to my clients. Apart from the said flat the flat of southern side in third floor consisting of 1050 sft is to be jointly sold by sharing the amount in the ratio of 544.70sft to your client and 505.30 to my clients or anybody can pay the cost of the area of the other party as prevailing in the market on the date of completion of work.
They further stated:
My client obtained the electricity connections and provided necessary infrastructure, panel board etc. My client also made ready to invest a further amount of Rs.1,30,000/- for providing the water connection of Hyderabad Metro Water Supplies. My client also provided drainage facilities. For the said amenities the share of your client of 42% in Rs.2,80,000/- amounting to Rs.1,17,600/- is payable. After the completing the construction my clients requested your client to repay the refundable deposit amount of Rs.1,50,000/- and share of amenities of Rs.1,17,600/- as stated above in total Rs.2,67,000/- to complete the minor works in the flats allotted to your client and also requested to come for an understating whether your client will purchase the share of my client in the flat no.2 of southern side of third floor or to sell your clients share to my clients.
8) Finally they stated that they have completed the construction as early as August 2009 and because of failure to return the refundable deposit the minor works were kept pending and whenever the payment of the said amount is made they would complete the construction and hand over the same.
9) Unfortunately despite giving reply it is not known why the opposite parties did not choose to receive the notice sent by this Commission. The postal endorsement on the envelopes ‘ not claimed’ denotes refusal to receive the notices. Though by virtue of Section 28 clause 4 of CP Act notice is sufficient still in order to inform the opposite parties, a paper publication was ordered. Even then they did not choose to give any reply. Therefore we are constrained to observe that the opposite party did not try to prove the allegations made in their reply Ex.A9. The facts mentioned in the affidavit were not controverted. Therefore, we are of the opinion that the opposite parties even after construction of building, non-handing over possession amounts deficiency in service. They cannot link up with the payments nor not handing over possession. They could have delivered possession and sought whatever the amounts due to them. However they cannot avoid delivery of possession of the share of the complainant. The opposite parties have admittedly sold away the property to third parties who were in occupation. The complainant was thus denied the possession from August 2009, which according to them were ready for occupation. Thus the complainant was denied the benefit of these flats that could have leased out it or sold it away. The complainant claiming rents from 10.2.2007. As per clause 11 it had to be completed within 12 months from the date of obtaining the necessary sanction and permission from municipality with a grace of three months period. The permission was accorded to the property on 9.8.2007 vide Ex.A4. By virtue of clause 11 the opposite parties had to construct the construction within 12 months with grace period of 3 months and accordingly it had to complete the construction by December 9.11.2008. However in the reply Ex.A9 they have mentioned that the construction was completed as early as August 2009. There was a delay of 9 months for which the opposite party was liable to pay damages as per clause 19. Since the rental value claimed at `5,000/- per month cannot be said to be high and there was no evidence that was let in by the opposite party we are of the opinion that the complainant is entitled to the said amount. Therefore reckoning at `15,000/- per month towards the rents of the complainant flats towards damages from December, 2008 till 10.11.2011 would come to `5,25,000/-. The complainant was undoubtedly entitled to compensation towards mental agony for all this period which we asses at `1,00,000/- we feel it reasonable and modest.
10) In the result the complaint is allowed in part directing the opposite parties to hand over the flats together with common areas etc as per the terms of the agreement together with compensation by way of rentals a sum of `5,25,000/- from December 2008 till November 2011, compensation of `1,00,000/- towards mental agony and costs of `10,000/-. Time for compliance four weeks.
PRESIDENT
MEMBER
MEMBER
Dt.07.09.2012
KMK*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainant For opposite parties
NIL NIL
EXHIBITS MARKED
For complainant
Ex A-1 Sale Deed Dated : 22.10.2005
Ex A-2 Development Agreement
dated : 11.11.2005
Ex A-3 NOC letter from AIRPORT
Authority of India to Smt. K.Radhika
Ex A-4 Sanctioned Plan dated : 09.08.2007
Ex A-5 Registered Development,
Agreement dated : 28.3.2008
Ex A-6 Legal notice dated 29.6.2011
Ex A-7 Returned Cover of
Sri C.Srinivasa Reddy
Ex A-8 Returned Cover of
Sri K.Visweswara Reddy
Ex A-9 Reply notice dated 6.7.2011
Ex A-10 Property Valuation certificate
dated : 7.11.2011.
For opposite parties
NIL
PRESIDENT
MEMBER
MEMBER
