Andhra Pradesh

Chittoor-II at triputi

CC/65/2014

Kola Vittal, S/o. Late Kola Chandra Sekhar - Complainant(s)

Versus

M.Krishnam Raju, S/o. Late M.Suryanarayana Raju - Opp.Party(s)

M.Vinod

14 Oct 2015

ORDER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            Filing Date:22.11.2014

Order Date: 14.10.2015

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

WEDNESDAY THE FOURTEENTH DAY OF OCTOBER, TWO THOUSAND AND FIFTEEN

 

 

C.C.No.65/2014

 

Between

 

Kola Vittal, S/o. Late Kola Chandrasekshar,

Hindu, aged about 33 years, residing at

D.No.11-46, Kapu Street, Yogimallavaram,

Tiruchanur, Tirupati rural mandal,

Chittoor District.                                                                              … Complainant

 

 

 

And

 

1.M.Krishnam Raju, S/o. Late M.Suryanarayana,

Hindu, aged about 47 years, residing at 302,

Anvesh Arcade, Enadu Colony, Vivekananda Nagar,

Kukatpally Colony, Hyderabad.                                                    …  Opposite party.

 

 

 

            This complaint coming on before us for final hearing on 28.09.15 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.M.Vinod, & Smt. K.C.Sarala, counsel for the complainant, and Sri.S.Ugandhar Varma, counsel for the opposite party and having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

          This complaint is filed under Section-12 of C.P.Act 1986 by the complainant  for the following reliefs 1) to direct the opposite party to hand over the possession that is occupancy certificate and fulfill the conditions of sale deed. 2) to direct the opposite party to pay a sum of Rs.15,00,000/- to the complainant for causing monitory and reputation loss &  3) to direct the opposite party  to pay a sum of Rs.5,000/- towards cost of the litigation.  

          2.  The averments of the complaint in brief are:-   that the complainant entered into an agreement with the opposite party on 10.09.2012 to purchase a flat No.305, in Sai Rekha Sadhan for a sum of Rs.17,83,100/-. On the date of the agreement the complainant paid Rs.8,00,000/- and the balance of sale consideration is agreed to be paid on the date of registration. Accordingly on 26.10.2012 the complainant paid the balance amount of Rs.9,83,100/- and the opposite party executed the registered  sale deed.

          3.  As per terms of agreement construction of the building in flat No. 305, shall be completed within six months from the date of agreement (10.09.2012) and hand over the possession of the same to the complainant but so far the opposite party has not handed over the possession of the building to the complainant. That the complainant availed the loan of Rs.10,00,000/- from HDFC Bank for purchasing of the house and paying the installments at Rs.8,500/-per month regularly to the HDFC Bank and also paying rent at Rs.10,000/- per month. That he has paid the total cost of the building. Even after lapse of two years, the opposite party has not handed over the possession due to which the complainant sustained loss of Rs.7,00,000/- , he also suffered loss of reputation for which the opposite party has to pay Rs.8,00,000/-.     

          4.  One Murali brother of the opposite party is maintaining the apartment. On 28.03.2014 the complainant approached the said Murali and asked when he is going to hand over the possession of the building for which Murali gave reply recklessly, that the complainant to ask the opposite party. The complainant tried to contact the opposite party through phone but he did not lift the phone. Thus the complainant was constrained to pay rents and equal monthly installments for the bank loan. Murali said that the complainant shall wait till he handed over the possession. On 04.04.2014 complainant got issued notice but it was returned. As he has no other option, the complainants file the complaint. There is deficiency in service on part of the opposite party. Hence the complaint.

            5.  The opposite party filed his written version stating that the complainant himself alone is not the purchaser of the flat. But his mother Sarala and complainant have jointly purchase the said flat. The opposite party admitted that as per condition 5 of the agreement of the sale, construction of the building shall be completed and hand over the possession of the building/flat within six months from the date of agreement. That the opposite party is aware of the loan availed by the complainant and denied the other averments of the complaint. Opposite party further contended that the construction of the house in flat No.305 was completed long back and delivered possession of the flat in terms of agreement of sale. And the complainant is in possession and enjoyment of the sale. That the complainant obtained Aadhar Card in his favour in evidence thereof being residing in the said flat and the complainant got performed his marriage on 15.08.2014 where in the wedding invitation address of the complainant was shown as flat No.305 Sai Rekha Sadhan Apartment, Tirupati. Copy of wedding invitation and Aadhar card are filed here with. Complaint is filed against the opposite party in his individually capacity but the sale deed is between the complainant and  the firm Mrs. M.K.R. Constructions as such the complaint is not maintainable against the opposite party individually and prays to dismiss the complaint with exemplary costs.  

          6. The complainant and opposite party have filed their respective evidence affidavits and written arguments and got marked Ex.A1 to A6 for  the complainant and Ex.B1 to B2 for the opposite party.

          7.  Now the points for consideration are:-      

            (i).  Whether the opposite party has completed the construction of building in flat No.305, Sai Rekha Sadhan Apartment and handed over the possession of the constructed flat to the complainant within stipulated time as per condition No.5 of agreement?

            (ii).  Whether the complainant sustained monitory loss of Rs.8,00,000/- and loss of Rs.9,00,000/- towards damage of reputation?

            (iii).  To what relief?

           8. Point No.(i):-  To answer this point, it is pertinent  to mentions the clause (5) point agreement of sale dated 10.09.2012 i.e. Ex.A1.

           Clause(5):- “the builder shall complete the construction of the said flat and hand over possession of the same with in six months from the date of the execution of this agreement”. The complainant and the opposite party have entered into the agreement of sale on 10.09.2012 as such, the opposite party has to complete the construction of building in flat No.305 of Sai Rekha Sadhan Apartments and deliver the possession of the same to the complainant on or before 10.01.2013. But there was no material on record evidencing that the opposite party has completed the construction and delivered the possession of flat No.305 to the complainant within the stipulated time. Clause(8) of the agreement dated 10.09.2014 runs further as follows.    

          Clause (8):- “The VENDEE/ PURCHASER shall within 14 days of receipt of the notice from the builder that the said flat is ready for use and occupation, take possession of the said flat. The VENDEE/PURCHASER shall be entitled to take the possession of the said flat, only if he/she has observed and performed all the obligations and stipulations contained in this agreement and has also duly paid to the builder all the amounts due and  payable by him to them”.

            It clearly shows that immediately on completion of the construction of the building in flat No.305 the builder has to serve notice on the complainant calling upon the complainant that the construction of the building is completed and take over the possession of the flat. It is a mandatory stipulation on part of the opposite party. But in these case the opposite party failed to issue any such notice to the complainant as contemplated under clause(8) of the agreement of sale.

           9. Instead of complying with the terms and conditions of the agreement dated 10.09.2014 to prove his bonafiedis, the opposite party relying on Ex.B1 and B2 Aadhar card dated 28.05.2013 in the name of the complainant and wedding invitation dated 15.08.2014 in respect  of the marriage of complainant. In the agreement it self flat No.305 was mentioned, the name of the apartment was mentioned as Sai Rekha  Sadhan. Subsequently on 26.10.2012 it self the opposite party has executed the registered sale deed in favour of the complainant and his mother. In which also flat number is mentioned as 305 and apartment name is mentioned as Sai Rekha Sadhan. Thus it is clear that the complainant is the owner of flat No.305 situated in Sai Rekha Sadhan 3^rd floor. As such mentioning the said address  for the purpose of obtaining Aadhar Card and also mentioning the same address in the wedding invitation of the complainant is not at all wrong and that Ex.B1 and B2 themselves does not prove that the opposite party has completed the construction and deliver possession of the flat to the complainant within stipulated time.

         10. The opposite party simply mentioned in his written version and his chief affidavit and also written arguments that the construction was completed long back and possession of flat was delivered to the complainant within the time stipulated in condition No.5 of the agreement. But he failed to mention when construction was completed in flat No.305 and when possession of the flat was delivered to the complainant or to his mother or to both. If the opposite party really completed the construction by himself and delivered the possession of the flat to the complainant he ought to have mentioned the specific date of such completion of the construction and delivery of the possession. Possession certificate was also not issued to the complainant so far. It seems that the opposite party has violated the terms and conditions of agreement of sale dated 10.09.2012. He is simply trying to take advantage of Ex.B1 and B2 the Aadhar card and wedding invitation of the complainant which is quite un -fair on part of the opposite party.

         11.  The opposite party raised another defence basing on condition No.9 of the agreement of sale. Condition No.9 runs as follows.

          Condition No.9:-“ the builder shall not incur and liability if the completion of the building is delayed and unable to construct and deliver the possession of the said flat with in the date stipulated herein above if the construction of the said building is delayed or stopped by reason or  any account of prevention, obstruction or prohibition by the authorities concerned which is beyond the control for no fault of the builder”. The clause(9) of the agreement envisages that in case any delay was occurred due to obstructions, preventions or any other reason and which were beyond the control of the builder then only he will not be held responsible. We are unable to understand as to why the opposite party is also taking advantage of condition No.9.The opposite party cannot blow hot and cool at the same time. In one way he is stating that the construction of the building was completed long back and also delivered the possession of the building to the complainant within stipulated time on the other hand he has also taking defence that in case any delay is there in construction of the building by the reasons beyond his control he is not liable. No where in his pleadings, evidence affidavit or in written arguments assigned any such reasons that the construction of the building was delay because of any of the reasons mentioned in Clause (9) of the agreement. Therefore it appears that the opposite party is trying to sail on two boats at a stretch. He is not specific with regard to the terms and conditions No.5, 8 and 9 in respect of construction of the building and deliver possession of the same. Except Ex.B1 and B2 there is no any other document filed in support of the case of the opposite party. Therefore it clearly apparent on the face of record that the opposite party has violated the terms and conditions of agreement of sale and failed to comply with the terms and conditions set out in the agreement of sale and also failed to complete the construction of the building in flat No.305 of Sai Rekha Sadhan Apartment and delivery possession of the flat to the complainant within time as contemplated in condition No.5 of agreement of sale dated 10.09.2012.

         12. Another point is, that the opposite party raised another objection that the complainant did not make the firm M.K.R.Constructions  as party to this proceedings. The opposite party himself is representing the M.K.R.constructions. The opposite party himself executed the sale deed as Managing Director of M.K.R.Constructions, therefore there is no wrong in institution of case against the opposite party. Since the opposite party happens to be the builder and Managing Director of M.K.R.Constructions. Therefore, under the above circumstances we are of the opinion that the opposite party failed to complete the construction of the building in flat No.305 and deliver the possession of the same to the complainant in terms of condition No.5 of the agreement of the sale dated 10.09.2012 and also failed to comply with terms of condition No.8 and  it further shows that the opposite party has clearly violated the terms and conditions of the agreement of sale and there is deficiency in service on part of the opposite party. Accordingly this point is answered.

         13.  Point No.(ii):- to answer this point, burden lies on the complainant to prove that he sustained a monitory loss of Rs.7,00,000/- and also sustained loss of reputation to a tune of Rs.8,00,000/-. During the oral arguments the learned counsel for the complainant argued that he got the construction completed in flat No.305 subsequently as such, he sustained monitory loss. The complainant failed to establish as to how he could arrive at a conclusion that she sustained a monitory loss of Rs.7,00,000/-.He failed to file any estimation report to complete the construction of work. whom the complainant has engaged to complete the construction ?when he could complete the construction and how much amount he invested for completion of the construction? In the absence of the above details it  is not possible to arrive at a decision that the complainant has sustained monitory loss of Rs.7,00,000/- therefore, the complainants version regard in sustaining monitory loss of Rs.7,00,000/- cannot be believed.

          14. Admittedly the complainant has paid total cost of building nearly Rs.18,00,000/- to the opposite party having accepted total cost of the building . The opposite party expected to completing the construction and deliver the possession of the property to the complainant within the times stipulated in clause (5) of the agreement dated 10.09.2012. The opposite party is not supposed to enjoy the hard earnings of the complainant without completing the construction and delivering of the property. In this regard I am relying on a decision reported in “1.(2015) C.P.J 107 Delhi, Sandeep Lohya, Aswini Kumar Lohya, Gitish Kumar Loiya Vs Parsunath Developer where in their land lord of Delhi Consumer Dispute Redressal Commission held that - Consumer Protection Act 1986 section 2(1)(g), 2(1)(r),14(1)(d) and 17- housing/flat buyer agreement- 25% of total value of flat deposited. Provisionally allotment letter issued. Non delivery possession- deficiency in services- unfair trade practice –development at the site shows that no money was invested by opposite party, complainants have pleaded on record the photograph of the site along with copy of recent newspaper puplication show in that only foundation of tower had been constructed – opposite party has been making misuse of buyers hard earn money- opposite party is guilty of breach of contract- refund of    principal amount along with interest @ 10% per annum directed to each of complainant- compensation @ Rs.4,50,000/-awarded for mental agony, anguish and frustration. Litigation cost Rs.2,00,000/- awarded directions  issued. In the said case the complainant has paid Rs.12,95,253.75/-in the case on hand the complainant has paid Rs.17,83,100/- to the opposite party. Admittedly the date of registration of the flat i.e. on 26.10.2012 but so far the opposite party failed to comply with the terms and conditions of the agreement and also no evidence is placed by the opposite party to prove that he has completed construction and delivered possession of the property to the complainant as per the stipulated time referred to in Clause(5) of the agreement sale dated 10.09.2012 or even subsequent there too. The facts of the above decision are squarely applicable to the facts the case on hand. The opposite party thus committed breach of contract (agreement of sale dated 10.09.2012). Similarly the complainant also failed to substantiate his claim to the fact that he sustained monitory loss of Rs.7,00,000/- and loss of reputation to a tune of Rs.8,00,000/-.similarly the complainant also failed to file the any document to prove that he is paying at Rs.10,000/- per month  for the house in which he is a tenant. He failed to file rent receipt, in which house he is stating? Where the said rented house is located, since how long he is paying rents? In the absence of all these particulars the claim of complainant in respect of payment of rentals is also cannot be believe. In the above circumstances we are of the opinion that the complainant also failed to prove that he sustained a monitory loss and loss of reputation and also paying rentals etc.

          15. Since the delivery of the possession of property to the complainant was not proved by the opposite party by cogent evidence, it can be held safely that the opposite party has committed breach of contract , the complainant also failed to prove his case in respect of monitory loss, loss of reputation and payment of rentals. Since it is prove that the opposite party failed to complete the construction of the building within stipulated time and deliver possession of the property to the complainant within stipulated time. The opposite party is liable to pay compensation for the deficiency in service on part of the opposite party and the complainant is entitled to compensation for the deficiency in service on part of the opposite party. Accordingly this point is answered.

          16. Point No.(iii):-  In view of our holdings on point 1 and 2 we are of the opinion that the deficiency in service on part of the opposite party has been established and complaint therefore is to be allowed accordingly.

             In the result complaint is partly allowed directing the opposite party to pay a sum of Rs.5,00,000/- (rupees five lakhs only) to the complainant towards compensation for the deficiency in service on part of the opposite party. The opposite party further directed to pay a sum of Rs.2,000/-(rupees two thousands only) towards costs of the litigation. The opposite party further directed to comply with the order within six (6) weeks from the date of receipt of copy of this order. Failing which, the compensation amount of Rs.5,00,000/- (rupees five lakhs only) shall carry interest @ 9% per annum from the date of agreement of sale dated 10.09.2012 till realization. The rest of the claim is dismissed.

              Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 14^th day of October, 2015.

        Sd/-                                                                                                             Sd/-

Lady Member                                                                                                      President

 

C.C.No.65/2014

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF BOTH SIDES

 

 

PW-1:  Kola Vittal (Chief Affidavit filed).

RW-1:  M.Krishnam Raju (Evidence Affidavit filed).

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Description of Documents
Ex.A1	A photo copy of Agreement between the Complainant and Opposite Party filed on behalf of complainant. Dt: 10.09.2012.
2.	A True copy of HDFC bank statement of the complainant filed on behalf of the complainant. Dt: 29.11.2014.
3.	Office copy of legal notice filed on behalf of the Complainant. Dt: 04.04.2014.
4.	Returned cover filed on behalf of the complainant and Acknowledgement. Dt: 12.04.2014.
5.	A Photo copy of sale deed of Semi-finished Flat executed by Opposite Party in favour of Complainant filed on behalf of the complainant. Dt: 26.10.2012.

 

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

Exhibits	Description of Documents
Ex.B1.	A photo copy of Aadhaar Card of Complainant bearing No.524529695053 Dt: 28.05.2013.
2.	Original wedding Invitation of complainant. Dt: 15.08.2014.

 

 

                                            

                                                                                                                 Sd/-                                                                                                                                                 

                                                                                                              President

               

 

// TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

            Dist. Consumer Forum-II, Tirupati.

 

Copies to:-     1. The Complainant.

                      2. The opposite party.