BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
C.C.NO.95 OF 2011
Between
O.S.Jenson
Aged 47 years, Occ: Pvt. Service
R/o Flat No.3003, D.No.3-9-105,
Misha Mansion, Krishnapuri Colony
West Marredpally, Sec’bad-026
Complainant
A N D
Mr.Sourab Modi
Managing Director S/o Mr.Satish Modi
Aged about 39 years, Occ:Business
M/s Modi Shelters Pvt Ltd.,
D.No.5-4-187/3&4, III Floor,
Soham Mansion, M.G.Road
Secunderabad-003
Opposite party
Counsel for the Complainant M/s Thomas George
Counsel for the Opposite party M/s C.Balagopal
QUORUM: SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
&
SRI THOTA ASHOK KUMAR , HON’BLE MEMBER
THURSDAY THE FIFTH DAY OF SEPTEMBER
TWO THOUSAND THIRTEEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. The complaint is filed seeking direction to the opposite party to refund `44,52,695/- paid by the complainant, to pay `1,41,000/- towards interest and `25 lakhs towards the loss of rent and compensation together with costs.
2. The averments of the complaint are that the opposite party sold the property, land measuring 194 sq.yards to the complainant and executed sale deed in favour of the complainant and his wife. The opposite party also entered into agreement for construction with the complainant for construction of a house in the land purchased by the complainant. The complainant paid `10,67,000/- towards execution of sale deed and `33,85,695/- towards consideration for construction of the house. After the payment of the amount the opposite party had gone on delaying the construction work. As per the agreement of construction the construction work was to be completed within 18 months from the date of execution of the construction agreement. The complainant got issued notice dated 13.7.2011 to the opposite party and demanded the opposite party to complete the construction work.
3. The complainant submitted that the opposite party gave reply dated 19.7.2011 and demanded for payment of the balance amount of `2,50,365/- and `5,59,276/- towards interest. The opposite party filed suit O.S.No.464 of 2011 on the file of III Senior Civil Judge Secunderabad for recovery of the amount from the complainant. The opposite party made no payment request to the complainant. The complainant incurred loss of `30 lakh towards interest and loss of rent. The opposite party failed to construct the house as per the schedule mentioned in the agreement of construction.
4. The opposite party filed written statement contending that he is the absolute owner and possessor of the total land about 19 acres in Sy.Nos.54 and 55 at Annojiguda Village, Pocharam Gram Panchayat, Ghatkesal Mandal RR.District and also in Sy.No.820, 821 and 822 of Korremula Village Ghatkesar Mandal, R.R.District. The opposite party is carrying on the business of construction and sale of independent bungalows and flat at various locations in and around the city of Hyderabad. One of the projects undertaken by the opposite party is that of independent houses in Sy.No.55 of Annojiguda Vilalge Pocharam Gram Panchayat styled as ‘Emerald Park’ and ’Emerald Park Annex’. The opposite party had handed over 200 houses to all its customers.
5. The opposite party submitted that the complainant is a defaulter in making the payments and causing hardship to other occupants. The opposite party obtained layout and permission for construction of independent houses from HUDA. The complainant had approached the opposite party with an offer to buy a plot and a house to be constructed thereon by the opposite party. The complainant entered into an agreement of sale dated 22.12.2007 embodying the terms of sale and for construction of the house. The complainant selected a plot bearing No.92-A admeasuring 194 sq.yads and the house to be constructed thereon was to be 1490 sq.ft. The complainant agreed to pay total consideration of Rs.46,00,000/- towards the cost of land and consideration for construction of the house. The consideration was exclusive of stamp duty, registration charges, VAT and Service Tax.
6. The opposite party executed sale deed dated 23.01.2008 in favour of the complainant for a consideration of `10,67,000/- to convey the open land and for the balance amount of `35,33,000/- the opposite party executed an agreement of construction dated 23.01.2008. The construction of the house is almost completed. The complainant failed to pay the installment amount of `2,50,365/- and also `5,59,276/- towards accumulated interest on the delayed payments aggregating to an amount of `8,09,641/-. The complainant also has to pay an amount of `2,30,000/- upon the completion of the house. The opposite party got issue notice dated 7.7.2011 demanding due payments. The complainant received the notice and failed to pay the due amount. Therefore, the opposite party is constrained to file suit O.S.No.464 of 2011 before Senior Civil Judge, City Civil Court at Secunderabad. The complainant is due a total sum of `8,09,641/-. The complainant had filed the complaint as a counter blast to the suit filed by the opposite party in the civil court to avoid payment of dues. Hence, the opposite party prayed for dismissal of the complaint.
7. The complainant filed his affidavit and the documents, Exs.A1 to A13. The opposite party filed his affidavit and the documents, Exs.B1 to B8.
8. Written arguments of both parties filed.
9. The points for consideration are:
1. Whether there was any deficiency in service on the part of the opposite party in not refunding the amount to the complainant?
2. To what relief?
10. POINT NO.1 It is not disputed that the opposite party is the absolute owner and possessor of the land admeasuring 19 acres in Sy.No.54 and 55 situated at Annojiguda Village, Pocharam Gram Panchayat Ghatkesar Mandal in R.R.District and also the land comprised in Sy.Nos.820, 821 and 822 of Korremula Village Ghatkesar Mandal R.R. District. There is no dispute of the fact that the opposite party is engaged in the business of construction and sale of independent bungalows and flats and it had undertaken the project “Emerald Park Annex” for construction of independent houses in the land comprised in Sy.No.55 situated at Annojiguda Village Pocharam Grampanchay in R.R. District.
11. The complainant purchased land from the opposite party through sale deed bearing document No.484/2008 dated 23.1.2008 for a consideration of `10,67,000/- and entered into agreement of construction on the same day i.e., 23.1.2008 which was registered as document no.485 of 2008. The agreement of construction was entered into, between the parties for construction of the house in the land purchased by the complainant. The complainant contends that the opposite party had not performed its part of contract by his failure to complete the construction of the house as per the terms and conditions of the Construction Agreement. Whereas the opposite party would contend that the complainant committed default in making payment of the amount as per the terms of the construction agreement.
12. The complaint is filed seeking for refund of the amount of `44,52,695/- along with interest of `1,41,000/- on the amount paid to the opposite party. Admittedly the opposite party has filed suit O.S.No.464 of 2011 on the file of III Senior Civil Judge, Secunderabad and the complainant having made his appearance in the suit, filed the instant complaint seeking for refund of the amount. The complainant by filing the complaint has not sought for possession of the house and he claimed for refund of the amount paid to the opposite party. The opposite party has filed the suit for recovery of the amount purportedly due from the complainant.
13. The learned counsel for the complainant has contended that the opposite party has violated the terms and conditions of the agreement and in order to wriggle out of the mess created by the opposite party’s misdeed, the opposite party has tried to pick holes in the dark to delay the construction work and hand over constructed residential building and it has attributed violation of terms of construction agreement to the complainant.
14. The learned counsel for the opposite party has contended that the construction of the building was completed as per the schedule and the complainant has committed default in making payment of the amount due. He has submitted that the opposite party has filed suit for recovery of the amount due from the complainant and as a counter blast to the suit, the complainant has filed instant complaint. He has contended that the complainant is due a sum of `8,09,641/- towards the amount due and interest. He has submitted that the construction of the house has been completed and the opposite party is ready to handover the house to the complainant provided the complainant paid the amount due.
15. The complainant has claimed damages and loss of rent on account of the delay in construction of the house caused on the part of the opposite party. Both parties have filed photographs pertaining to the house. The learned counsel for the complainant has submitted that the photographs showing completion of construction of house filed by the opposite party does not reflect the exact status of the construction as the dates on those photographs are likely to be superimposed and the same representation made by the opposite party in regard to the photographs filed by the complainant.
16. The terms of the construction agreement provide for payment of consideration, `35,33,000/- in phased manner and on delayed payment of instalments, the opposite party is entitled to demand for interest calculated interest @ 3% per month and in case the instalemnts as stipulated is not paid within 60 days, the opposite party is entitled to cancel the agreement without issuing any notice to the complainant. The payment schedule reads as follows:
| S.No. | Amount | Due date of payment |
| 1. | Rs.9,75,000/- | Paid |
| 2. | Rs.5,93,000/- | Will be issued by M/s ING VYSYA Bank Ltd., Hyderabad Vide Chq.No.663225, Dt.29/12/2007 |
| 3. | Rs.10,45,000/- | 3 months from date of agreement/On release of mortgage by HUDA with respect to the layout (whichever is earlier) |
| 4. | Rs.4,60,000/- | 9 months from date of agreement/On casting of slab (whichever is earlier) |
| 5. | Rs.2,30,000/- | 12 months from date of agreement/On flooring (whichever is earlier) |
| 6. | Rs.2,30,000/- | On completion of construction |
17. The complainant got issued notice dated 13.7.2011 calling upon the opposite party to comply with the terms of the agreement of construction and to pay damages to the complainant and to the notice, the opposite party issued a reply through its advocate on 19.7.2011 and filed the suit O.S.No.464 of 2011. The opposite party has claimed a sum of `5,59,276/- towards accumulated interest and an amount of `2,50,365/- towards the amount due. The opposite party has not cancelled the construction agreement and filing of the suit seeking for the amount of `8,09,641/- would show that the opposite party proceeded to impose penalty on the amount due from the complainant.
18. In terms of the construction agreement particularly clause 8 of the agreement, the opposite party has to complete the construction of the house and handover possession of the house within 18 months from the date of construction agreement, with a grace period of 6 months. The construction agreement was entered into on 23.1.2008 and the time limit for completion of the construction of the house including the grace period would expire on 23.1.2010.
19. Admittedly, by the month of January 2010 the construction of the house was not completed. The opposite party has issued notice presumably in the year 2011 as the notice does not contain any date and reply to the notice from the complainant bears the date, 10th August 2011. Through the notice the opposite party had informed the complainant that the construction of the house was nearing completion and the complainant was yet to pay an amount of `2,50,365/- as also a sum of `5,59,276/- towards accumulated interest and the installment of `2,30,000/- on completion of construction of house. The complainant in his reply dated 10.8.2011 denied the stage construction of the house as stated by the opposite party in its notice. The complainant expressed his readiness to pay amount due if any to the opposite party on taking possession of the house.
20. Prior to exchange of the aforementioned two notices, there had been notice from the complainant through his advocate to the opposite party issued on 13.7.201 to which there was a reply dated 19.7.2011 from the opposite party . The complainant has claimed a sum of `9,45,000/- by way of interest and rent due to delay in completion of the construction of the house and the opposite party has denied its liability to pay the amount on the premise that the complainant had not complied with the terms and conditions of the construction agreement and made delayed payments to the opposite party. The opposite party assured the complainant that it would complete the construction of the house and handover possession of the house to the complainant provide the complainant has paid the amount mentioned in its notice dated 7.7.2011.
21. The statement of account pertaining to the loan account of the complainant issued by ING Vysya Bank Limited goes to show that the complainant entered into agreement with the bank under agreement No.HL7000358129 and in terms of the agreement loan amount of `33,15,096/- was sanctioned and released and the complainant agreed to pay the same amount in 168 months. The statement of account would establish the fact that the complainant availed loan from the bank for the purpose of payment of instalments to the opposite party. However, it is not clear whether the loan amount was paid by the Bank to the opposite party or the complainant having withdrawn the loan amount from the Bank, paid it to the opposite party.
22. As per the terms of construction agreement the complainant has to pay the amount except `2,30,000/- within 12 months from the date of agreement or on laying of flooring by the opposite party whichever is earlier. From the notice and reply to the notice of the complainant issued by the opposite party it becomes clear that the complainant has paid the amount and he was due a sum of `2,5,365/- as also interest thereon for the delayed payments amounting to `5,59,276/- a total sum of `8,09,641/- was due by the date of notice issued to the complainant. Non-payment of amount on the part of the complainant was not made a platform either to forego 20% of the amount or cancel the construction agreement.
23. The opposite party agreed to construct the house and provide necessary common amenities and facilities in terms of the construction agreement. The opposite party had agreed to develop the project in accordance with the plan within the period of 18 months and thereafter within a grace period of 6 months from the date of construction agreement. The opposite party has agreed to intimate to the complainant upon completion of the construction of the house. The opposite party failed to complete the construction of the house within the stipulated period and its such inaction amounts to deficiency in service.
24. The complainant has filed the complaint for seeking for refund of the amount and the opposite party has filed the suit for recovery of the amount of `8,09,641/-. The complainant though denied the amount as claimed by the opposite party, has admitted that amount if any would be paid to the opposite party on taking possession of the house. The opposite party has agreed to handover possession of the house provided the complainant paid the amount due. As claimed by the opposite party, the complainant is due a sum of `8,09,641/- as on the date of fiing of the suit. The complainant has accepted to receive possession of the house as against his prayer for refund of the amount. The complainant has stated in his affidavit as under:
“If the opposite party as claimed in the written statement para No.13 is willing to handover the completed house, I have no problem in taking over possession and in a gentleman manner settle the dispute”.
25. Thus, as seen from the contention of the parties and the evidence adduced in support thereof, this Commission has come to the conclusion that the opposite party even after receiving considerable amount of consideration of `30,53,000/-, failed to complete the construction of the house as per the terms of the construction agreement. The complainant has defaulted in making payment of `2,50,000/- and interest thereon and he has to pay further amount of `2,30,000/- upon the opposite party handing over possession of the house to him. The opposite party has to shoulder responsibility for the inconvenience caused to the complainant on account of its failure to complete construction of the house within stipulated time and the complainant has also suffered loss of rent and mental tension.
27. Both parties failed to perform their respective parts of contract. The complainant failed to pay a sum of `2,50,000/- due to the complainant and the opposite party failed to proceed with construction of the house even after receiving the amount of `30,53,000/- from the complainant. Compared to the magnitude of negligence of the complainant in performance of his part of contract, the degree of magnitude of negligence of the opposite party is many times higher as the complainant paid entire consideration except a negligible sum of `2,50,000/- in terms of Construction Agreement. The opposite party ought to have completed the construction of the house and it could have demanded the complainant to pay the amount of `2,50,000/- and hand over possession of the house to the complainant and thereafter make demand him to pay the sum of `2,30,000/- which was required to be paid by the complainant subsequent to delivery of possession of the house. The complainant has been deprived of the enjoyment of his house for a period of two and half years. As seen from the evidence on record, the construction of the house is completed during pendency of the complaint before this Commission.
28. Taking into consideration of the amount claimed by the opposite party by filing the suit and the compensation claimed by the complainant on account of deficiency in service rendered by the opposite party, as also in the light of the acceptance of the complainant to take possession of the house, this Commission has inclined to grant relief of possession of the house to the complainant. Compensation payable to the complainant by the opposite party on all counts is quantified at `2,50,000/- which if excluded from the amount claimed by the opposite party, the complainant is liable to pay a sum of `5,59,641/- which in addition to the sum of `2,30,000/- payable by the complainant upon taking possession of the house comes to `7,89,641/-.
29. In the result, the complaint is allowed directing the opposite party to handover possession of the house on receipt of `7,89,641/- from the complainant. The costs of the compliant is quantified at `5,000/-. Time for compliance four weeks.
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MEMBER
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Dt.05.09.2013
కె.ఎం.కె*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
NIL
EXHIBITS MARKED
For complainant
Ex.A1 Covering letter
Ex.A2 Booking form
Ex.A3 Sale Deed
Ex.A4 Agreement of Construction
Ex.A5 Legal Notice issued by complainant
Ex.A6 Postal Receipts
Ex.A7 Reply Legal Notice
Ex.A8 Postal cover of legal notice issued by O.P
Ex.A9 Legal notice issued by OP
Ex.A10 Reply legal notice issued by complainant
Ex.A11 Postal Acknowledgement Card
Ex.A12 INg Vysya Bank account Statement
Ex.A13 ING Vysya Bank statement of account
For opposite parties
Ex.B1 Provisional Booking Form
Ex.B2 Agreement of Sale
Ex.B3 Sale Deed
Ex.B4 Agreement of Construction
Ex.B5 Statement of accounts
Ex.B6 Certificate of Incorporation
Ex.B7 Plaint Copy of O.S.464/11
Ex.B8 Authorization Letter
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