BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD.
F.A.No.524/2005 against C.D.No.1112/1999, District Consumer Forum-II, HYDERABAD.
Between:
M/s.Shaili Estates (P) Ltd.,
A Company incorporated under Companies
Act, Having its Registered office at
6-3-787, Ameerpet, Hyderabad-500 016,
Represented by its Managing Director
Sri J.Krishna Rao, S/o.J.Seshagiri Rao
Aged about 44 years, Occ:Business,
R/o.Hyderabad. ..Appellant/
Opposite party
And
Mrs.Yaseen Tabbassum
W/o.Aman Aahmed,
Aged about 31 years,
Occupation:Housewife,
R/o.Himayathnagar,
Hyderabad. Respondent/
Complainant
F.A.No.525/2005 against C.D.No.1120/1999, District Consumer Forum-II, HYDERABAD.
Between:
M/s.Shaili Estates (P) Ltd.,
A Company incorporated under Companies
Act, Having its Registered office at
6-3-787, Ameerpet, Hyderabad-500 016,
Represented by its Managing Director
Sri J.Krishna Rao, S/o.J.Seshagiri Rao
Aged about 44 years, Occ:Business,
R/o.Hyderabad. ..Appellant/
Opposite party
And
Mrs. Mustafa Mahjabeen
W/o.Syed Habeen Mohsin BilfaqueeH,
Aged about 34 years,
Occupation:Housewife,
R/o.10-5-33/2, Ahmednagar,
Hyderabad. Respondent/
Complainant
F.A.No.526/2005 against C.D.No.1114/1999, District Consumer Forum-II, HYDERABAD.
Between:
M/s.Shaili Estates (P) Ltd.,
A Company incorporated under Companies
Act, Having its Registered office at
6-3-787, Ameerpet, Hyderabad-500 016,
Represented by its Managing Director
Sri J.Krishna Rao, S/o.J.Seshagiri Rao
Aged about 44 years, Occ:Business,
R/o.Hyderabad. ..Appellant/
Opposite party
And
Mr.Syed Zainulabidin Ali Khan
S/o.late Nawab Azeez Nawaz Jung
Bahadur, aged about 76 years,
R/o.Plot No.744, Road No.38,
Jubilee Hills, Hyderabad. Respondent/
Complainant
F.A.No.527/2005 against C.D.No.1116/1999, District Consumer Forum-II, HYDERABAD.
Between:
M/s.Shaili Estates (P) Ltd.,
A Company incorporated under Companies
Act, Having its Registered office at
6-3-787, Ameerpet, Hyderabad-500 016,
Represented by its Managing Director
Sri J.Krishna Rao, S/o.J.Seshagiri Rao
Aged about 44 years, Occ:Business,
R/o.Hyderabad. ..Appellant/
Opposite party
And
Mrs.Badar Bibi Fakherunnisa Begum
W/o.Syed Nayeem,
Aged about 30 years,
Occupation:Housewife,
R/o.Qowli Bazar, Bellary, Karnataka,
Represented by Mr.Syed Zainulabidin Ali Khan,
S/o.late Nawab Azeez Nawaz Jung Bahadur
R/o.6-3-787, Ameerpet, Hyderabad. Respondent/
Complainant
Counsel for the Appellant: Mr.N.V.Ramakrishna Murthy.
(Common in all appeals)
Counsel for the Respondent: Mr.T.Narender Reddy
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
AND
SRI G.BHOOPATHI REDDY, MEMBER.
FRIDAY , THE THIRD DAY OF OCTOBER,
TWO THOUSAND EIGHT
Oral Order:(Per , Hon’ble Member)
***
These appeals are disposed of by a common order, since the facts are similar in all these cases.
F.A.No.524/2005:
The brief facts as set out in the complaint are as follows
The opp.party along with others entered executed a registered agreement of sale on 26-6-1996 in favour of the complainant , according to which opposite party has agreed to sell Flat No.414 infourth floor admeasuring 1647 sq. ft. plinth area in Block No.14, car parking No.63 with 120 sq. feet, plinth area together with 50 sq. yards of undivided share of land in the complex named as Royal Pavilion Apartment at Ameerpet, Hyderabad. As per clause 2 of agreement of sale, opposite party has undertaken to complete the construction of flat and handover the same within 18 months from the date of agreement with a grace period of 3 months. Opposite party has agreed that if there is delay in delivering possession, it shall pay Rs.10/- per sq. feet plinth area per month totalling to Rs.16,500/- per month. The complainant submitted that the opposite party failed to complete the construction and handover possession even after grace period from the date of agreement though she completed her part of obligation. Hence the complainant approached the District Forum to direct the opp.party to complete the construction of the flat with specifications as per sale agreement and hand over possession, to pay Rs.2,64,000/- being arrears of liquidated damages at Rs.16,500/- per month from April, 1998 till end of July, 1999, to pay future liquidated damages of Rs.16,500/- per month together with compensation of Rs.1,00,000/- and costs.
Opposite party filed counter stating that C.P.Act does not provide to pass orders for recovery of money. As per contract of sale, the original owners have to deliver possession of land and complainant is also one of the party to deliver possession of land. The owners have filed a suit in Civil Court and the complainant is one among them and the suit is still pending, hence they could not construct the flats in the land involving in litigation fearing that he would not be able to sell the flats. Opposite party also submitted that the damages agreed between the parties is only Rs.1/- per sq. feet and not Rs.10/- and it occurred in the agreement due to typographical error and prayed for dismissal of the complaint.
Exs.A1 to A3 documents are filed on behalf of the complainant. The Dist.Forum based on the evidence adduced and pleadings put forward, allowed the complaint in part directing opposite party to complete the construction of flat as per specifications and further directed to pay liquidated damages of Rs.16,500/- per month from April, 1998 till the date of completion and handing over possession of flat No.414, together with compensation of Rs.10,000/- and costs of Rs.1,000/-.
Aggrieved by the said order, opposite party preferred this appeal contending that the District Forum has not discussed Ex.A1 agreement and as per the said agreement of sale the complainant is not a consumer and he cannot invoke provisions of Consumer Protection Act. The Dist.Forum failed to see that the complainant suppressed the development agreement which is nothing but partnership agreement wherein land owners bring in the sock in trade being the land and the developer brings the working capital in the form of finances and investments and then the finished product in the form of apartments to the extent of share of each owner is appropriated towards the share of the owners and the share of the builder is appropriated by the builder to dispose of the same in any way which he prefers and thus there is no scope to treat the owner of the land or the partner in the enterprise as a Consumer.. The Dist.Forum failed to see that the complainant also suppressed the sale deed exeucted by Mr.Zainulabidin Ali Khan in favour of the appellant and the four agreements to sell executed by the appellant. The Dist.Forum failed to see that whatever amount that is paid by the owner is nothing but a kind of adjustment for exacting the shares as a private arrangement at the request of Mr.Zainulabidin Ali Khan. The nature of the dispute is not a consumer dispute and the complainant ought to have approached the Civil Court for specific performance of contract. The Dist.Forum failed to see that the penal clause stipulating for delay in handing over @ Rs.10/- per sq. ft. becomes 40% of the total consideration in one single year and in two years time it becomes the total consideration and hence Rs.10/- per sq.ft. of penalty is most probably a typographical mistake and as per the contention of the appellant Rs.1-/- per sq.ft. only appears to be right contemplation of parties. The Dist.Forum committed illegality in awarding penal damages from April,1998 without first determining as to when the property was handed over to the appellant to facilitate the development of the land and there is no finding with regard to the date of handling over of the possession. The appellant submits that the title of the property is in dispute in O.S.no.843/1981 on the file of the II Additional Judge City Civil Court, Hyderabad .. The appellant prayed to set aside the order of the Dist.Forum .
The point for determination arises for determination is whether the order passed by the District Forum is sustainable?
The appellant contended that the dispute raised by the complainant is not a consumer dispute and it is not maintainable before the Dist.Forum. The respondent resisted the plea that the dispute raised by her is a consumer dispute and the finding of the Dist Forum may be confirmed. The complainant has filed documents Exs.A1 to A3. Ex.A1 is the copy of the agreement of sale dt.26.6.96 executed in between the land lord builders in favour of the complainant. As per the agreement of sale clause no.1 the complainant paid the total sale consideration of Rs.4,84,000/- to the developer on 29.6.1995 and the developer has acknowledged the receipt of the total sale consideration. As per the Clause no.2 of the sale agreement it is stated that " The developer under takes to complete the construction of the schedule flat and hand over possession of the same to the purchasers within 18 months from the date of this agreement with a grace period of 3 months as per working plan and specifications annexed to the Agreement . If there is any further delay the developer shall pay a sum of Rs.10/- per sq.ft plinth area per moth (totalling to Rs.16,500/- per month) to the purchaser towards liquidated damages”. As per the conditions 1 and 2 of the agreement the complainant is entitled for purchase of the flat and the dispute raised before the Dist.Forum is maintainable. and Section 3 of the Consumer Protection Act over rights the provisions of other Acts . The complainant has got right either to approach a Civil Court or he can file a complaint before the District Forum . As per the agreement the developer had to handover possession by 26.3.98. The developer has not constructed the flat nor handed over the possession as per the agreed terms and conditions of the agreement.
The appellant submits that the complainant ought to have approached the Civil Court to file a suit for specific performance , the complaint filed before the District Forum is not maintainable. The submission made by the appellant is not sustainable. As per the terms and conditions laid down in the agreement the complainant has filed a complaint before the District Forum. Before filing the complaint a legal notice was issued. Ex.A2 is the copy of the legal notice Ex.A3 is the post al acknowledgement . After receipt of the said notice the appellant has not given any reply to the legal notice. The complaint filed before the District Forum is maintainable. The District Forum has elaborately discussed and given finding on this aspect. The appellant submits that there is civil litigation pending in between the land lord and builder in those circumstance possession was not handed over as the construction could not be completed. and in the mean while the complainant has filed this complaint and the complaint filed before the District Forum is not maintainable. The appellant has not filed any plaint copy of O.S.No.843/ 1981 on the file of the IInd Additional Judge, City Civil Court, Hyderabad or counter and other relevant documents pertains to that suit are not . The appellant has raised a false plea before the District Forum and the Dist.Forum has elaborately discussed and given finding on this aspect . The appellant is now challenging the said finding stating that on account of the civil suit filed by the land owners against the appellant in O.S.NO.843/81 Additional Judge, City Civil Court, Hyderabad the construction could not be completed. The title dispute pertains to the land lord and builder is no way concerned with regard to the present complaint filed before the District Forum is concerned. The appellant further submits that he was not given any opportunity before the District Forum and the order passed by the District Forum is an exparte order. The submission made by the appellant is concerned we have gone through the order passed by the District Forum . The appellant herein has already filed counter before the District Forum. The District Forum has taken into consideration the counter and other documents filed by the opp.party. The order passed by the District Forum is not a exparte order On the other hand on perusal of the docket sheet order itself goes to show that the arguments of the complainant were heard on 4.6.2003 and thereafter the opp.party has not come forward to submit the arguments nor filed written arguments. The District Forum passed orders on merits on 12.3.2004.
The appellant submits that the penal clause stipulating for delay in handing over @ Rs.10/- per sq. ft. becomes 40% of the total consideration in one single year and in two years time it becomes the total consideration and hence Rs.10/- per sq. ft. of penalty is most probably a typographical mistake while drafting agreement . The submission made by the appellant is concerned we have gone through the legal notice issued by the complainant prior to filing of the complaint . In the said legal notice also the same plea was taken stating that the opp.party has failed to complete the construction of flat agreed to be sold to him and hand over the possession of the same within a period 21 months from the date of the agreement and she is entitled for payment of liquidated damages of Rs.16,500/- per month. We have also gone through the terms and conditions of the agreement Ex.A1 . As per the condition no.2 of the sale agreement the opp.party is liable to pay Rs.10/- per sft. plinth area per month to the purchaser towards the liquidated damages. The terms and conditions of the agreement are binding on the appellant. It is not a typographical mistake. The appellant has relied on GHAZIABAD DEVELOPMENT AUTHORITY vs. BALBEER SINGH reported in II (2004) CPJ 12 (SC) wherein it was held that when the delivery of possession being directed no damages would be awarded simultaneously in view of the fact that the escalation or depreciation of the value of the property as it enures to the benefit of the complainant. In the said case it was held that uniform interest @ 18% p.a. cannot be granted in all cases and compensation cannot be uniform in all cases and the compensation must be under different separate heads and must vary from case to case depending on facts of each case. The principle laid down in this case is not applicable in our present case is concerned . In our present case is concerned as per Ex.A1 agreement under clause 2 the opp.party himself agreed to pay damages in case of delay in handing over possession @ 10/- per sq.ft.plinth area as per the agreed terms and conditions the appellant is liable to pay the damages. The Dist.Forum has elaborately discussed and given finding that the complainant is entitled to the liquidated damages @ Rs.16,500/- per month from April,1998 till the date of completion of handing over possession of the flat ,to pay compensation of Rs.10,000/- and costs of Rs.1000/- . There are no reasonable grounds to interfere with the order passed by the District Forum . Order of the District Forum is confirmed.
In the result appeal F.A.No.524/2005 is dismissed. Order of the District Forum is confirmed.
For the same reasons mentioned in F.A.No.524/2005 , the other appeals F.A.Nos.525/05, 526/05 and 527/05 are also dismissed. For compliance of order 6 weeks time granted.
PRESIDENT MALE MEMBER.
Dt.3.10.2008
