Poli Dasaradha Reddy, S/o. P.Ramasubba Reddy filed a consumer case on 07 Sep 2017 against L.Srinivasulu, S/o. L.Suryanarayana in the Chittoor-II at triputi Consumer Court. The case no is CC/51/2015 and the judgment uploaded on 19 Sep 2017.
Filing Date: 26.10.2015
Order Date:07.09.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,
CHITTOOR AT TIRUPATI
PRESENT: Sri.M.Ramakrishnaiah, President ,
Smt. T.Anitha, Member
THURSDAY THE SEVENTH DAY OF SEPTEMBER, TWO THOUSAND AND SEVENTEEN
C.C.No.51/2015
Between
Poli Dasaradha Reddy,
S/o. P.Ramasubba Reddy,
Hindu, aged 31 years,
D.No.20-4-30/E, Chandrasekhara Reddy Colony,
Akkarampalle Post,
Tirupati Urban Mandal,
Chittoor District. … Complainant.
And
1. L.Srinivasulu,
S/o. L.Suryanarayana,
Hindu, aged about 45 years,
D.No.6-6-496, Irla Nagar,
Tirupati Town,
Chittoor District.
2. K.Padmaja,
W/o. K. Pradeep Kumar,
Hindu, aged about 47 years,
Land Owner,
Flat No.201 & 202,
Sathyadeva Residency,
Bugga Extension,
Renigunta,
Chittoor District. … Opposite parties.
This complaint coming on before us for final hearing on 24.08.17 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.G.Guru Prasad, counsel for complainant, and Sri.K.Ajey Kumar, counsel for opposite party No.1, and party-in-person for opposite party No.2, and having stood over till this day for consideration, this Forum makes the following:-
ORDER
DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT
ON BEHALF OF THE BENCH
This complaint is filed under Sections –12 and 14 of C.P.Act 1986, by the complainant against the opposite party No.1 for the following reliefs 1) to direct the opposite party No.1, to complete the pending works and to deliver possession of the flat No.302 in Satyadeva Residency, with fitness certificate for occupation from a competent authority, 2) to direct the opposite party No.1, to pay Rs.6,500/- per month towards rental charges from October 2013, 3) to direct the opposite party No.1, to pay Rs.2,00,000/- towards compensation for causing mental agony, and 4) to direct the opposite party No.1, to pay Rs.5,000/- towards costs of the complaint.
2. The brief averments of the complaint are:- That both the parties have entered into a sale deed on 18.07.2013 for the semi finished flat No.302 with undivided share in common area for Rs.10,00,000/-. The said sale deed is in pursuance of sale agreement dt:03.05.2013. According to sale agreement, opposite party No.2, the land owner, obtained sanctions and permissions for construction of the residential apartment consists of stilt floor, 1st, 2nd, 3rd and 4th floors, from TUDA under B.A.No.65/11-12 dt:13.09.2011, in Survey No.828/A1 of Renigunta village panchayat, in the name and style of Satyadeva Residency, and the land owner opposite party No.2, and the service provider / promoter opposite party No.1 with an understanding of sharing 40% and 60% respectively.
3. After the sale agreement dt:03.05.2013 for Rs.10,00,000/-, supplementary agreement for extra amenities and for completion of balance works in flat No.302 was also executed on 03.05.2013 itself by the opposite party No.1 in favour of the complainant. Thus, the complainant has to pay Rs.13,00,000/- as per payment schedule in 6 stages viz.
1. Rs.50,000/- at the time of agreement.
2. Rs.6,00,000/- at the time of completion of walls plastering.
3. Rs.3,00,000/- at the time of tile work, cupboards in the bedroom and kitchen
with cement precasted slabs.
4. Rs.3,00,000/- at the time of fixing bathroom materials, kitchen materials and
wood work.
5. Rs.4,000/- at the time of finishing white wash.
6. Rs.10,000/- at the time of handing over the completed flat in all respects.
4. In para.4 of the supplementary agreement, it is mentioned that the work shall be completed as per the specifications under annexure. In para.6 it is mentioned that promoter shall handover the flat to the purchaser only after full and final settlement of all sums from the purchaser. That the promoter shall complete the construction of the flat and handover the possession to the purchaser on or before 31.09.2013 or within the extended period agreed upon by both parties.
5. The complainant paid totally a sum of Rs.12,97,000/- by 08.08.2013 withholding Rs.3,000/- for non-completion of cupboard work in the bedroom, which is still pending. As a result he could not join in the flat. No lift also provided. Under the compelling circumstances, the complainant is residing in a private rented house bearing No.20-4-30/E, at Chandrasekhar Reddy Colony, Tirupati, by paying Rs.6,500/- per month, from October 2013 till now. The opposite party No.1 without completing the works going on demanding Rs.4,00,000/-, as it is due by the complainant. There were exchange of correspondence between the complainant and opposite party No.1 by letters dt:17.08.2014, 03.09.2014 and 17.11.2014, yet flat is not handed-over to the complainant along with a certificate from competent authority showing that it is fit for occupation.
6. The complainant got issued legal notice to opposite party No.1 on 29.09.2015, calling upon him to deliver possession of the flat No.302, with completion of work and fitness certificate. The complainant reported that he never occupied the flat on 01.12.2013 as alleged by opposite party No.1 in previous notices. For the reply notice got issued by opposite party No.1 with false allegations, the complainant issued rejoinder on 18.10.2015 stating that no amount is due from the complainant except Rs.3,000/-, which will be paid soon after completion of work and handing-over possession of the flat. The said rejoinder was returned on 23.10.2015 with an endorsement ‘party not available’. Previously another case in C.C.No.29/2008 was filed by the flat owners and it was disposed-off against opposite party No.1, and the appeal filed by the opposite party No.1 was also dismissed observing that the appellant constructed the flat without any approval. That the opposite party No.1 has violated the terms and conditions of the sale deed under Ex.A9, sale agreement under Ex.A11 and supplementary agreement under Ex.A10. Hence the complaint.
7. Opposite party No.1 filed his written version denying parawise allegations including the payment of Rs.12,97,000/- said to have been made by the complainant, and that the complainant is residing in a private rented house from October 2013 by paying Rs.6,500/- per month, and further contended that the complainant approached opposite party No.1, for purchasing flat No.302 in Satyadeva residency for Rs.23,00,000/-, out of which Rs.10,00,000/- for semi finished flat and Rs.13,00,000/- for the balance of works and extra amenities, for which complainant agreed to purchase the same. The parties have entered into an agreement of sale under Ex.A11 for Rs.10,00,000/- for the semi finished flat on 03.05.2013. That the complainant paid Rs.1,00,000/- as advance and it is agreed that the flat is to be registered at the expenses of the complainant. Opposite party No.1, executed supplementary agreement on 03.05.2013 (Ex.A10) for balance of works and extra amenities to the semi finished flat No.302 for the value of Rs.13,00,000/- and paid Rs.50,000/- as advance under supplementary agreement.
8. In pursuance of the said two agreements Exs.A10 and A11, the complainant approached IOB main branch, Tirupati, along with opposite party No.1 for housing loan. The bank received two original agreements and sanctioned loan of Rs.17,00,000/- to the complainant.
9. That the opposite party No.1 received the following amounts:
1. Rs.1,00,000/- on 30.04.2013.
2. Rs.1,00,000/- on 13.06.2013.
3. Rs. 50,000/- on 25.06.2013.
4. Rs.7,50,000/- on 08.05.2013.
5. Rs. 97,000/- on 09.07.2013.
Total Rs.10,97,000/-. Subsequently the complainant also made the following payments for the works under supplementary agreement:
Thus, a total sum of Rs.17,50,000/-. The complainant made part payments to a tune of Rs.9,00,000/- out of Rs.13,00,000/- (this is against the statement in para.21 of the written version) in respect of supplementary agreement. Opposite party No.1 requested the complainant to pay the balance amount and take possession of the property, but the complainant postponing the same on one ground or the other. Finally, on 05.08.2014 opposite party No.1 gave legal notice to complainant demanding payment of Rs.4,00,000/- with interest from 03.05.2013, for which the complainant gave reply on 17.08.2014 admitting the execution of document for Rs.13,00,000/-, but pleaded discharge.
10. On 03.09.2014, opposite party No.1 sent rejoinder stating that the complainant unauthorizedly and forcibly occupied the flat on 01.12.2013 and performed (Gruhapravesam) house warming ceremony, without paying the balance amount of Rs.4,00,000/-. Thereafter, mediation was held through one Ramesh Naidu, and the complainant agreed to pay Rs.4,00,000/- within 3 months, for which opposite party No.1 also agreed, but the complainant failed to pay the amount. Therefore, opposite party No.1 filed civil suit in O.S.No.572/2015 on the file of Principal Senior Civil Judge, for recovery of amounts, and the suit is pending. In view of the pendency of the civil suit, this Forum cannot entertain the complaint, that the complainant having occupied the flat and in possession and enjoyment of the same, filed the false case with a view to avoid payment of balance amount of Rs.4,00,000/- and prays the Forum to dismiss the complaint with costs.
11. Opposite party No.2, filed her written version contending that she is the owner of the site on which Satyadeva Residency apartment was built, after obtaining building plan approved by TUDA in B.A.65/11-12 dt:30.09.2011. That herself and opposite party No.1, jointly executed sale deed in favour of the complainant. As per Developer Agreement dt:18.03.2013, opposite party No.1 got 60% and opposite party No.2 got 40% out of constructed area. She further stated that the complainant has not occupied the portion due to pending works in flat No.302, for want of cupboards, and prays that she has been added as a formal party and case may be dismissed against her.
12. In support of the case, the complainant himself filed evidence affidavit as P.W.1 and got marked Exs.A1 to A14. For opposite parties evidence affidavits of R.W.1 and R.W.2 were filed and got marked Exs.B1 to B9, and Ex.C1 Commissioner Report is marked.
13. Now the points for consideration are:-
(i). Whether there is deficiency in service on the part of the opposite party
No.1?
(ii) Whether the complainant has occupied the flat No.302 on 01.12.2013 as
alleged by opposite party No.1?
(iii) Whether the complainant is entitled for the reliefs sought for?
(iv) To what relief?
14. Point No.(i):- To answer this point, the complainant has to prove that there is deficiency in service on the part of the opposite parties. Admittedly, sale deed under Ex.A9 dt:18.07.2013 was executed by opposite parties 1 and 2 in favour of the complainant in pursuance of Ex.A11 sale agreement dt:03.05.2013. The sale deed was in respect of a semi finished flat No.302 in Satyadeva Residency to be constructed by opposite party No.1. According to opposite party No.1, the complainant has forcibly taken possession of the flat on 01.12.2013. He did not specify whether he has completed the pending works in flat No.302. There is no averment in the written version of opposite party No.1, that he has finished the works pending in flat No.302, and delivered possession of the flat to the complainant. But, opposite party No.1 is contending that the complainant is yet to pay a sum of Rs.4,00,000/- for which opposite party No.1, has filed a civil suit in O.S.No.572/2015 on the file of Principle Senior Civil Judge, Tirupati, for recovery of the amount due from the complainant and the said suit is pending. As could be seen from Ex.C1, Commissioner Report, the lift is not provided in the provision allotted for the lift, and lift is yet to be fixed. Even according to written version of opposite party No.2, the land owner, lift is not provided so far. In respect of completion of pending works in flat No.302, Commissioner Report shows that there were no doors, no wood work is carried out, no cup-boards were set-up except cement pre-cast slabs in the bedroom and kitchen room. The supplementary agreement under Ex.A10, at Condition No.3, it is mentioned that Rs.3,00,000/- to be paid at the time of completion of tiles work and cupboards in bed room and kitchen (cement pre-casted slabs). So, the word cement pre-casted slabs apply to the kitchen only, so far as cupboards are concerned, the opposite party No.1 has to fix the cupboards in bedrooms. The specifications and work to be completed are listed in the annexure, are agreed to be the work to be completed between the purchaser and the promoter for the said consideration amounting to Rs.13,00,000/-, but unfortunately for the reasons best known either of the parties did not furnish the annexure. Though, opposite party No.1 specifically contending that the complainant has forcibly and unauthorizedly occupied flat No.302 on 01.12.2013 and residing therein by performing house warming ceremony, no such proofs were filed and there were no material to show that the complainant is residing in flat No.302. The complainant specifically mentioned in his complaint and also in his evidence affidavit that so far he did not occupy the flat No.302, as the pending works therein were yet to be completed by opposite party No.1. In the commissioner report as well as evidence affidavit of complainant, it is found that opposite party No.1 has not completed the pending works in flat No.302 so far. Though he has agreed in Ex.A9 and Ex.A11 that he will complete the entire pending works in the semi finished flat and deliver possession of the flat to the complainant after receiving the entire sale consideration by 31.09.2013, till now i.e. till the date of hearing the complaint on 24.08.2017 i.e. to say for about 4 years 8 months beyond the agreed time, opposite party No.1 could not complete the work.
15. The opposite party No.1 contending that he could not fix the lift and carryout wooden works and cupboard works on the ground that the complainant is yet to pay Rs.4,00,000/- towards the sale consideration and extra amenities as agreed in Ex.A10, but in his own written version at para.19, he admitted that he received a sum of Rs.10,00,000/- under agreement of sale (Ex.A11). Prior to it on the date of agreement of sale, admittedly the complainant has paid a sum of Rs.1,00,000/-So, totally he received the sale consideration in respect of the semi finished flat by the date of Ex.A9 sale deed itself. So far, as supplementary agreement under Ex.A10 is concerned, at para.21 of written version, opposite party No.1 specifically admitted as follows: “Subsequently the complainant made part payments for the supplementary agreement as follows – Rs.50,000/- on 04.05.2013; Rs.7,50,000/- on 24.07.2013; Rs.2,00,000/- on 08.08.2013; Rs.7,50,000/- by bank. So, totally Rs.17,50,000/- he received from the complainant. The total cost of the flat No.302 is Rs.10,00,000/- for the semi finished flat and Rs.13,00,000/- under supplementary agreement, totally Rs.23,00,000/-, as against this amount, admittedly opposite party No.1 received Rs.27,50,000/- i.e. a sum of Rs.4,50,000/- in excess to the agreed amount. These admitted facts cannot be disputed and they needs no proof. Having received the entire sale consideration and even Rs.4,50,000/- more than the agreed sale consideration under the documents Exs.A9, A10 and A11, the opposite party No.1 failed to complete the balance of pending works till date. It shows that there is negligence as well as deficiency in service on the part of the opposite party No.1.
16. In support of his version, the learned counsel for complainant relied on a decision reported in I (1996) CPJ 278 NC – V.L. Bhanukumar Vs. Dega Sundara Rama Reddy and Ors. – in which their Lordships observed that complainant paid the entire cost of the flat, but the opposite party failed to deliver possession – opposite party controverted the allegation and asserted that the flat was ready as back as in August 1991, but the complainant failed to pay the balance amount for the extra work and take possession. In the said decision, the case of the complainant is that he was in need of a residential accommodation in the city of Madras. He came across an advertisement / brochure issued by M/s. Pioneer Building Syndicate Pvt. Ltd. (opposite party No.3) and the Architect, Mr.Sarat Kakumanu (opposite party No.6) advertising the building project as “Pioneer Homes Constructing Mandira Apartments in T.Nagar area”. The classic and distinctive features mentioned in the brochure included amongst other facilities like glass capsule lift, preview theater, indoor recreation room, basement car parking for owners of the flats to be constructed by them. In response to the enquiries made by the complainant, he received a letter dt:30.01.1991 informing him that the opposite parties are tentatively allotting to him flat No.3 M measuring 1724 sq.ft. at Mandira Apartments to be constructed at No.35, L.Raman Street, T.Nagar. The total cost of the flat was quoted as Rs.13,56,800/- comprising among other things, value of the proportionate share in the land – Rs.74,496/- cost of the flat construction – Rs.7,06,100/-, cost of amenities – Rs.1,49,200/- and the amount to be paid under the agreement of finishes – Rs.4,26,204/-. The opposite parties assured the complainant that the flat with all the facilities and the amenities would be delivered to him in the month of June 1991. The complainant was persuaded to make the entire payment in one lump sum by way of full payment in a sum of Rs.13,50,000/-. Believing the said representation, the complainant arranged to pay the entire sum of Rs.13,50,000/- as early as on 22.02.1991 and a receipt was issued by the opposite parties. The complainant thus became entitled to the allotment of flat bearing No.3 M on the third floor in the project together with the sale of the undivided share in the land proportionate to the flat. Separate agreements for the sale of the proportionate share of the land, for construction, for amenities and for finishes all dated 25.02.1991 were entered into at Madras between the opposite parties and the complainant who was made to believe that the completed flat with all the facilities will be delivered to him within the stipulated time of six months as per the conditions in the agreement. However, the opposite parties have not adhered to the time schedule or other stipulations and till date the flat together with all the amenities has not been completed. In the mean time when the work was in progress the opposite parties persuaded the complainant and on their suggestion he opted for extra works to be carried out by the opposite parties for his flat and an estimate dt:24.04.1991 was given by them to the complainant and as per the consensus the complainant agreed to pay the amount when the opposite parties completed those additional works as per specifications in the proposed flat. The complainant visited Madras from Bombay where he was then working, several times for the purpose of inspecting the flat. He has incurred heavy expenditure on this account. However, on all occasions the opposite parties used to admit that there was delay on their part in completing the project and used to assure him that the same would be completed as early as possible. Having made the full payment, the complainant had no other option but to wait for the opposite parties to complete the construction.
17. When the complainant visited the work spot in the month of March 1993, he found that the work was not completed and the progress was not as promised by the opposite parties. The complainant demanded that the opposite parties must come forward with a final commitment as to when they would be able to deliver possession of the flat as he was being put to heavy loss. The opposite parties started raising untenable disputes with a view to side track the issue and cover up their default, demanding that cost for the additional work also has to be paid by the complainant in advance. As the complainant had already burnt his fingers by paying the entire cost of the flat in advance and since the construction was not completed, the complainant flatly refused to comply with their demand and demanded that they should deliver the flat with all the amenities as per the agreement immediately to him. The complainant also visited the work site in May 1993 and found that several of the works were yet to be completed like providing the lift for the third floor flat and provision of car park amongst various other works left unfinished. When the complainant threatened to take remedial measure unless the opposite parties completed the work and delivered the flat to him, the opposite parties in a hastily move issued a notice dt:16.06.1993, falsely alleging that the flat was ready a long time ago and the handing over possession of the flat was being delayed by them for the alleged non-payment of the value of the additional work agreed to be carried out by them. The opposite parties falsely demanded payment of the amount for the alleged additional works together with interest at an exorbitant rate, which was never agreed upon between the parties. They refused to complete the construction and hand over the flat to him. In such circumstances, the complainant caused to issue a lawyer’s notice dt:10.07.1993 to the opposite parties demanding amongst other things delivery of the original registered sale deed conveying the undivided share in the land to him or his bankers. Completing construction of the flat together with all the amenities agreed upon and fittings and fixtures and handing over possession thereof to him forthwith and also payment of damages for the loss and inconvenience and mental strain caused to him by the default committed by the opposite parties. The opposite parties sent a reply dt:18.07.1993 on behalf of the opposite party Nos.2,4,5 and 6 raising false and untenable contentions. A due rejoinder dated 6th August 193 was issued on behalf of the complainant. The complainant further states in the complaint that the opposite parties have the benefit of the above amount of Rs.13,50,000/- for all this period and the complainant has been deprived of the same. The opposite parties also did not complete the construction of the flat with all the amenities and fixtures and fittings as per the original agreement and failed to deliver the possession of the flat to him by June 1991. The opposite party No.1 did not appear inspite of service of notice.
18. The opposite party Nos.2 to 6 filed joint counter affidavit contesting the complaint. After considering the versions of both parties, their Lordships of National Commission observed that there is no dispute upon the point that the builder who develops land and constructs flats is rendering service quo the prospective buyers. Thus, there is clearly deficiency in service as well as imperfection in the service rendered by the opposite parties to the complainant, who had hired those services by paying full price of the flat in advance on 22.02.1991. Their Lordships held accordingly we order that the opposite parties shall pay to the complainant interest at the rate of 15% p.a. from 01.07.1991 on the amount of Rs.13,50,000/- till possession of the flat is delivered as according to the agreement the possession of the flat was to be delivered to him in the month of June 1991. We make it clear that before taking possession the complainant should pay to the opposite parties the costs of the extra work agreed upon by the parties at Rs.73,555/- plus Rs.25,000/- for car parking. The complainant will be at liberty to give up the facility of car parking and in that case he will be not liable to pay the sum of Rs.25,000/-.
19. The learned counsel also relied on another decision reported in IV (2015) CPJ 294 (NC) – Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh, Gurdev Singh Badial – In this case also their Lordships observed that there is deficiency in service on the part of the opposite parties in handing over the possession of the allotted unit / apartment No.J1-F09-902, measuring 1550 sq.ft along with one car parking space, in “The Views”, Mohali Hills, Sector 105, S.A.S.Nagar, District Mohali, Punjab, vide allotment letter dated 23.05.2008. The price of the said unit was Rs.48,65,580.50/- which included Rs.1.50 lacs towards per car parking, External Development Charges @ Rs.112.31 per sq.ft. and Interest Free Maintenance Charges (IFMC) @ Rs.10 per square feet. Apartment Buyer’s Agreement, was executed between the parties, on 17.06.2008, at Chandigarh. The respondent opted for installment payment plan, in respect of the said apartment. Thereafter, respondent had been diligently making payment of installments, as per the payment plan / schedule. It was further stated that from 15.04.2008 till 03.07.2013, an amount of Rs.46,52,377/- through cheques as well as RTGS, had been paid by the respondent. Apart from that, respondent had also paid an amount of Rs.1,15,975/- towards interest, on delayed payments of installments, in relation to the said apartment. It was further stated that according to Clause-21.1 of the Apartment Buyer’s Agreement dt:17.06.2008, the appellants were to hand over physical possession of the residential apartment, in favour of the respondent, within a period of three years, from the date of allotment (23.05.2008) with further grace period of three months (90 days), for obtaining the Occupation Certificate from the competent authorities. Thus, appellants were to deliver possession of the residential apartment, on or before 23.05.2011 or with grace period of 90 days, at the latest by 23.08.2011. However, the possession was not offered to the respondent by the stipulated date. It was further stated that, in case of delay in handing over possession of the apartment, the appellants as per Clause-23.1 of the Apartment Buyer’s Agreement dated 17.06.2008, were liable to pay compensation @ Rs.5/- per sq.ft (Rupees five only), per month of the super area, for the period of such delay, till the possession was given, but they failed to do so.
20. When the physical possession of apartment in question, with all facilities and amenities, was not delivered to the respondent by the stipulated date, he visited the site in order to verify the status of construction of the allotted unit, but he was not permitted to do so by the representatives of the appellants. On the other hand, appellants kept on sending letters, with regard to demand of payment of remaining installments. The appellants in their written version pleaded that since the respondent is a permanent citizen of United Kingdom, he did not purchase the residential apartment in India, with a view to have his residence in the same, but on the other hand, being a speculator / investor, he had purchased the same (apartment) for resale thereof as and when there was escalation in prices, and as such, he did not fall within the definition of a ‘consumer’ as per Section-2(1)(d) of the Act. It was further pleaded that the complaint was barred by time. It was further pleaded that State Commission has no territorial and pecuniary jurisdiction, to entertain and decide the complaint. However, the factum of allotment of apartment in question, in favour of the respondent, vide allotment letter dated 23.05.2008, execution of the Apartment Buyer’s Agreement dt:17.06.2008 between the parties, stipulated date of delivery of possession of the apartment, as per Clause-21.1 of the agreement, from the date of allotment, and payment of amount of Rs.46,52,377/- through cheques as well as RTGS, towards part price of the same (apartment), as also the interest of Rs.1,15,975/- on delayed payments, was admitted. It was also admitted that possession of the apartment in question, could not be delivered in favour of the respondent by the stipulated date. It was stated that respondent was well aware of the fact that price of the unit and its area, were tentative and subject to change, as per the Apartment Buyer’s Agreement dated 17.06.2008. Since the area of the unit had been revised / increased, as such the total cost of the unit, was enhanced from Rs.48,65,580.50 to Rs.60,31,047.98, out of which an amount of Rs.46,52,377/- had only been deposited by the respondent, along with interest of Rs.1,15,975/- on delayed payments. That the appellants intimated the respondent that Occupation Certificate has been obtained from the competent authorities and that super area of the same has been changed / revised to 1908 sq.ft. from 1550 sq.ft. On the above rival contentions, the State Commission vide its order partly allowed the complaint and passed a direction to the opposite parties to refund an amount of Rs.42,91,516.80 i.e. Rs.47,68,352 – Rs.4,76,835.20 being 10% of Rs.47,68,352/- to the complainant along with interest at 12% p.a. from the respective dates of deposits within 45 days from the date of receipt of certified copy of this order. The opposite parties are further directed to pay compensation, in the sum of Rs.1,50,000/- for causing mental agony to the complainant. The opposite parties are further directed to pay Rs.20,000/- towards costs of the litigation. Being aggrieved by the said order of the State Commission, appellants have filed these appeals. There Lordships of National Commission in the appeal observed that the present appeals are nothing but gross abuse of process of law and same are required to be dismissed with punitive damages. Accordingly, present appeals stand dismissed with punitive damages of Rs.5,00,000/-. Out of this amount, a sum of Rs.2,50,000/- shall be paid to both the respondents in equal share, and the appellants are directed to deposit the sum of Rs.2,50,000/- by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission within four weeks from today and balance amount of Rs.2,50,000/- be deposited in equal share in the name of both the respondents, by way of demand draft with this Commission from today and the appeals were dismissed.
21. The facts of the above two decisions are squarely applicable to the case on hand, as the opposite party No.1, having admittedly collected a total sum of Rs.27,50,000/-, as against Rs.23,00,000/- towards cost of the flat and also cost of the extra amenities viz. cupboards in bed room and kitchen, total works in both rooms, lift, car parking etc. and also for completing unfinished work in the semi finished flat No.302, purchased by the complainant, failed to deliver possession of the flat after completing the balance of works with all amenities agreed upon even after lapse of 4 years and 8 months after due date. Thus, there is gross negligence and deficiency in service on the part of the opposite party No.1. Accordingly this point is answered.
22. Point No.(ii):- in order to answer this point, the burden lies on opposite party No.1, because he himself pleaded and deposed in his evidence affidavit that on 01.12.2013 the complainant has forcibly and unauthorizedly occupied flat No.302, and he has performed his house warming ceremony also. But the opposite party No.1 did not place any material before this Forum to prove the occupation of the flat by the complainant, on 01.12.2013 or any other date till today. The complainant also reported that, so far he never occupied the possession of the flat, as it was yet unfinished flat. Though opposite party No.1, received entire sale consideration of the flat No.302 in Satyadeva Residency, and promised to complete the pending works on or before 31.09.2013 or the extended period as mentioned under Exs.A9 and A10. So far he did not complete the pending works, as such the complainant could not take possession of the flat. Since, opposite party No.1 is disputing that complainant is yet to pay a sum of Rs.4,00,000/-, it is the matter pending before Civil Court in O.S.No572/2015 on the file of Principal Senior Civil Judge, Tirupati, it need not be discussed further, it is the parties to prove their case in the Civil Court. The Commissioner’s Report under Ex.C1, which was prepared after inspecting flat No.302, in the presence of both parties and their respective counsel clearly shows that flat No.302, is still unfinished and no amenities were provided by opposite party No.1. Opposite party No.1, having received the entire sale consideration or even more than the agreed amount of sale consideration of the flat, as well as amount for the extra amenities mentioned in both Exs.A10 and A11, he did not choose to complete the pending works, which amounts to deficiency in service on the part of the opposite party No.1, as discussed supra. By virtue of the averments of the complaint as well as evidence affidavit of P.W.1 (complainant), and the Commissioner’s Report in Ex.C1, the complainant has established that flat No.302 in Satyadeva Residency, which was purchased by the complainant is still unfinished and the opposite party No.1 failed to prove that the complainant has occupied the flat No.302, as alleged by him in his written version as well as in his evidence affidavit. Therefore, it can be safely held that the possession of flat No.302 in Satyadeva Residency is not so far delivered to the complainant and it is also established that the pending works are yet to be completed by opposite party No.1, including the provision of lift and car parking etc. it is evident from the written version of opposite party No.1 that he has received total consideration of Rs.27,50,000/- as against Rs.23,00,000/- towards the total cost of the flat No.302. Therefore, under the above circumstances we are of the opinion that the possession of flat No.302 in Satyadeva Residency, purchased by the complainant was not delivered to the complainant and the pending works are yet to be completed by opposite party No.1. So far as claim of the complainant with regard to rentals at Rs.6,500/- per month is concerned there was no such agreement between the complainant and opposite party No.1. Accordingly this point is answered.
23. Point No.(iii):- In view of our discussion on points 1 and 2, we have to state that since the complainant has established that opposite party No.1 has not completed the pending works so far in flat No.302 and as no scrap of paper filed by opposite party No.1 to show that he has completed the pending works in flat No.302 in Satyadeva Residency as agreed under Ex.A10 supplementary agreement and Ex.A11 sale agreement or Ex.A9 sale deed. Simply, opposite party No.1 stating that complainant has forcibly and unauthorizedly occupied the flat on 01.12.2013 without there being any proof. The opposite party No.1, having received entire cost of the flat by 08.08.2013 itself, is not supposed to make allegations that possession was forcibly taken by the complainant, which it seems that opposite party No.1 simply throwing the allegation on the complainant with a view to avoid the completion of pending works. Under those circumstances, we are of the opinion that the complainant is entitled for the reliefs of completion of pending works as agreed under Exs.A9, A10, A11 and vacant possession of the flat with all amenities agreed upon. The complainant is also entitled for compensation for the delay in delivering possession of the flat and also entitled to compensation for mental agony, and deficiency in service on the part of the opposite party No.1, and costs of the complaint. Accordingly this point is answered.
24. Point No.(iv):- In view of our discussion on points 1 to 3, we are of the opinion that the complainant has established that he purchased flat No.302 in Satyadeva Residency, and paid the entire cost of the flat admittedly, instead of it, opposite party No.1 did not deliver possession of the flat and that the complainant is entitled for the delivery of possession of the flat after fully completing the pending works and extra amenities as agreed in supplementary agreement under Ex.A10 and also entitled for compensation for the delay in delivery of possession of the flat. Accordingly, the complaint is to be allowed.
In the result, complaint is partly allowed directing the opposite party No.1 to complete all the pending works as agreed under Ex.A10 supplementary agreement and deliver possession of the flat No.302 in Satyadeva Residency along with all amenities agreed upon to the complainant within six (6) weeks from the date of receipt of copy of this order. Opposite party No.1 is directed to pay compensation of Rs.1,00,000/- (Rupees one lakh only) for causing mental agony to the complainant and also directed to pay a sum of Rs.4,00,000/- (Rupees four lakhs only) towards deficiency in service on the part of the opposite party No.1, for not completing the pending works in flat No.302, and not delivering the possession for the last 4 years 8 months after the prescribed time (31.09.2013). Opposite party No.1, is also directed to pay Rs.2,000/- (Rupees two thousand only) towards costs of the complaint. As no claim is made against opposite party No.2, complaint against opposite party No.2 is dismissed. Opposite party No.1 further directed to comply with the orders within six (6) weeks from the date of receipt of copy of this order, failing which the compensation awarded for deficiency in service and also for mental agony to the complainant in a sum of Rs.5,00,000/- in total, shall carry interest at 9% p.a. from the date of this order, till realization.
Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 7th day of September, 2017.
Sd/- Sd/-
Lady Member President
APPENDIX OF EVIDENCE
witnesses examined on behalf of complainant.
PW-1: Poli Dasaradha Reddy (Chief Affidavit filed).
witnesses examined on behalf of opposite parties.
RW-1: L. Srinivasulu (Chief Affidavit filed).
RW-2: Smt. K. Padmaja (Chief Affidavit filed).
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Exhibits (Ex.A) | Description of Documents |
Development Agreement in original between land owner K.Padmaja and L.Srinivasulu (Builder and Developer). Dt: 18.03.2013. | |
Reply to the legal notice of O.P. No.1 by the complainant. Dt: 17.08.2014. | |
Photo copy of Bank statement of HDFC from 30.04.2013 to 31.08.2013, Dt: 16.09.2015 and copy of Bank Statement of IOB for transfer of house loan to opposite party No.1 containing particulars from 01.01.2013 to 07.11.2013. | |
Another legal notice to the opposite party No.1 by the complainant. Dt: 29.09.2015. | |
Reply to the legal notice by the opposite party No.1 by the complainant. Dt: 10.10.2015. | |
Rejoinder by the complainant. Dt: 18.10.2015. | |
Undelivered letter addressed to the opposite party No.1 through courier as not available. Received on DCF-II, Tirupati by 26.10.2015. | |
Rental Certificate in original at Rs.6,500/- by owner Shaik Nadeem for the house No.20-4-30/E, Kothapalli, Akkarampalli Post, Tirupati, occupied by the complainant. Dt: 25.10.2015. | |
Attested photo copy of Registered Sale Deed executed by the Opposite Party No.1 and 2 infavour of the complainant for the Flat filed by the complainant. 18.07.2013. | |
Photo copy of Supplementary Agreement for extra amenities and construction of balance work. This agreement made at Tirupati on this 03.05.2013. | |
Photo copy of Sale agreement of Semi-Finished flat together with undivide share of Land for Rs.10,00,000/-. This agreement of Sale is made at Tirupati on this 03.05.2013. | |
Photo copy of Legal Notice by Opposite Party No.1 to the Complainant. Dt: 05.08.2014. | |
Photo copy of Rejoinder Notice of opposite party No.1 to the complainant. Dt: 03.09.2014. | |
Reply to the Legal Notice by the Complainant. Dt: 17.11.2014. |
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES
Exhibits (Ex.B) | Description of Documents |
Original copy of Joint Development Agreement executed between OP’s 1 and 2. Dt: 10.06.2011. | |
Original copy of Panchayat plan approval proceedings by B.A.No.65/11-12 along with the original plan issued by the Panchayat Authorities, Renigunta. Dt: 13.09.2011. | |
True copy of O.S.No.572 of 2015, In the court of the Addl. Senior Civil Judge, Tirupati. | |
True copy of C.C. of Plaint in O.S.NO. 572 OF 2015 OF ASCJ, Tirupati. | |
Original Receipts 7 in Number. | |
True copy of Reply notice issued by opposite party No.1 to the complainant. Dt:17.08.2014. | |
True copy of Notice issued by the Opposite Party No.1 to the complainant. | |
True copy of Rejoinder notice issued by opposite party No.1 to the complainant. Dt: 03.09.2014. | |
Certificate in Original issued by U. Soma Sekhar, Architectural & Structural Engineer, Chartered Engineer& Govt. Valuer. |
COMMISSIONER REPORT
Exhibits (Ex.C) | Description of Documents |
Commission Report with Photos in 13. |
Sd/-
President
// TRUE COPY //
// BY ORDER //
Head Clerk/Sheristadar,
Dist. Consumer Forum-II, Tirupati.
Copies to:- 1. The complainant.
2. The opposite parties.
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