BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
C.C.NO.7 OF 2009
Between:
1. Prabhakar Jha S/o Ugradeo Jha
aged about 32 yrs, Hindu,
Software Engineer, R/o Plot No.40,
H.No.570, Gali 4A, Ekta Vihar,
Patiyala-147 001, Punjab
2. Rakhi Jha W/o Prabhakara Jha
Aged about 26 years, Hindu
House-wife, R/o Plot No.40
H.No.570, Gali 4A, Ekta Vihar
Patiyala-147 001, Punjab
Complainants
A N D
1. M/s Hi-Rise Avenues Pvt. Ltd.,
Rep. by its Managing Director,
A.Srinivas S/o Sri Durga Prasad
R/o 360/SRT, Sanjeeva Reddy Nagar
Hyderabad-500 038, A.P.
2. A.Srinivas S/o Sri Durga Prasad
Aged about 40 yrs, Hindu
Managing Director of M/s Hi-Rise Avenues
Pvt. Ltd., R/o 360/SRT, Sanjeeva Reddy Nagar
Hyderabad-500 038, A.P.
Opposite parties
Counsel for the complainant Sri Mr.Chandrasekhar Ilapakurti
Counsel for the opposite parties Sri B.Satyanarayana
QUORUM: HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
&
SRI R.LAKSHMINARSIMHA RAO, MEMBER
THURSDAY THE TWENTY FIRST DAY OF JANUARY
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
The complaint is filed seeking direction to the opposite parties to deliver the villa/house shown in the complaint schedule property with interest @ 18% per annum over the paid amount of Rs.50,20,915/- from the date of agreement of construction and development dated 15.7.2006, to provide 40ft width road in front of the villa, to provide clubhouse, to declare the extra amounts demanded by the opposite parties in the name of VAT and other taxes as ultra vires and illegal, to award an amount of Rs.2 lakhs and damages of Rs.2 lakhs towards delay in delivering the villa/house.
The averments of the complaint are that the opposite parties are real estate agents and builders. The complainants no.1 and 2 are the absolute owners of a residential plot admeasuring 200 sq.yards bearing plot no.218 covered under Survey No.30/A/part and 308 situated at Bathupally village of Quthbullapur Mandal of Ranga Reddy District. The opposite party no.2 approached the complainants in the month of July 2006 as a developer to construct an independent villa/house with three bed room accommodation in a total built up area of 2445 sq.ft in the complaint schedule property to which on 15.7.2006 the opposite party no.2 entered into an agreement with the complainants and promised to construct independent duplex house/villa within 12 months from the date of the agreement. As per the agreement the opposite parties are liable to pay interest @ 12% per annum over the amounts paid bythe complainants in the event of delay in constructing and delivering the independent house/villa.
The opposite parties have to construct the house in accordance with the plan and design sanctioned by the concerned authorities as also they have to provide all the amenities and provisions mentioned at para no.4 of the Development Agreement such as laying of approach road, providing drainage, bore wells, club house, park, water treatment plant etc. The opposite parties have to complete the construction within the cost of Rs.24,80,000/- in a stipulated period of 12 months and hand over the house to the complainants in a hygienic and upclean manner. The opposite parties received an amount of RS.12 lakhs towards advance for the construction of the house and thereafter enchanced the cost of construction to Rs.49 lakhs. The complainants paid an amount of Rs.38,20,915/- and a total amount of Rs.50,20,915/- to the opposite parties. The opposite parties failed to deliver the house with the facilities mentioned in the development agreement.
The opposite parties have to provide 40ft wide access road in front of the complaint schedule property. The opposite parties have not laid any road and on being questioned by the complainants the opposite parties had not given any response as a result of which the overall look and market value of the house is depleted. The opposite parties did not provide any quality goods in the constructed house and the same are being used by their workman as a result of which the floors, walls and living rooms including the bathrooms are completely damaged. The opposite parties failed to provide the club house as per the terms of the development agreement. The opposite parties have not delivered the possession of the house to the complainants by demanding them to pay extra amount towards value added tax and other supplementary taxes. Such taxes cannot be imposed against the complainants in the absence of any clause in the construction and development agreement. The complainants are subjected to physical and mental agony due to the act of the opposite parties and they have incurred huge interest over the loan amount which they borrowed for the purpose of construction of house. The complainant got issued notice dated 18.2.2009 demanding the opposite party to deliver possession of the house and pay damages on the amount paid to him. The notice was returned with the postal endorsement “the door locked”.
The opposite party no.2 filed and the opposite party no.1 adopted the counter filed by the opposite party no.2.
The averments of the counter of the opposite party no.2 are that they purchased agricultural land in Sy.No.307A to an extent of Ac.4-28 gts, in Sy.No.308 to an extent of Ac.1-8gts situated at Batchupally village of Qutbullapur Grampanchayat, Ranga Reddy District through document bearing No.17896 of 2005 dated 9.12.2005 and divided the land into plots by leveling and laying roads. The opposite party obtained lay out sanction from the grampanchayat Qutbullapur. The complainants agreed to purchase residential plots bearing No.218 measuring 200 sq.yards in Sy.No.30/A and 308A situated at Batchupally village and entered into an agreement of sale for Rs.26 lakhs on 15.7.2006 and an agreement of construction of independent villa with 3 bedroom accommodation in a total built up area of 2445 sq.ft on the plot for Rs.23 lakhs, a total amount of Rs.49 lakhs.
In pursuance of the agreement of sale, the opposite parties executed sale deed in favour of the complainants on 25.8.2009. After execution of the sale deed, the opposite parties and the complainants entered into development agreement for Rs.24,80,000/- and the development agreement was antedated. The opposite parties constructed the villa in accordance with the plan and design sanctioned by the Grampanchayat, Quthbullapur and provided amenities and provisions mentioned at para no.4 of the development agreement. The opposite parties have not increased the cost of construction to the tune of Rs.49 lakhs. As per the terms of agreement, the complainants and the opposite parties agreed to the amount of Rs.49 lakhs i.e., Rs.1,20,000/- towards the consideration of the plot and Rs.24,80,000/- for the development of the plot and Rs.23 lakhs for construction of the villa. The opposite parties have received an amount of Rs.36,99,548/- only from the complainants. The opposite parties completed the construction of the villa by 5th February 2007. The complainants have not come forward to take delivery of possession of the house nor did they pay the balance amount of Rs.20,92,395/- to the opposite parties resulting they incurred liability to pay on the outstanding amount as per clause 5 of the agreement of construction and interest @ 18% per annum which comes to Rs.52,310/- till 25.3.2007, Rs.50,017/- till 31.5.2007, an amount of Rs.1,57,860/- from 1.6.2007 till the date of filing of the complaint and a sum of Rs.9,28,100/- material appreciation and also the amount due of Rs.7,00,452/- totaling to Rs.18,88,287/-.
The house has been under lock and key and no workman of the opposite parties have been using the villa of the complainants. The value added tax and supplementary taxes are the policy matters of the government of A.P. The complainants without paying the supplementary taxes and value added tax are approaching the State Commission taking advantage of receipt dated 10.8.2006. The opposite parties are ready hand over the possession of villa to the complainants after the complainants have paid the due amount. This State Commission has no jurisdiction to try the case. There is no deficiency on the part of the opposite parties. Hence, prayed for dismissal of the complaint.
The complainant no.2 has filed her affidavit. Exs.A1 to A10 have been marked.
The opposite party no.2 has filed his affidavit in support of the case of the opposite parties and on their behalf Exs.B1 to B4 have been marked.
The points for consideration are :
1) Whether there is any deficiency in service on the part
of the opposite parties?
2) To what relief?
POINT NO.1 The case is based on a contract entered into by the complainants and the opposite parties. The contract consists of three agreements, one for purchase of the residential plot bearing No.218 in Sy No.30A/part and 308 situated at Batchupally village at Qutbullapur Mandal, Ranga Reddy District and the other two agreements are the agreement for construction and development agreement. The agreement of sale culminated in execution of the sale deed bearing No. 18016 of 2006. The consideration of the plot Rs.4 lakhs was paid by the complainants to the opposite parties as the sale deed contains a recital to the effect thereto.
The amount due from the complainants to the opposite parties is Rs.4 lakhs being the sale consideration of the plot, Rs.23 lakhs towards the accommodation of three bed room house and Rs.24,80,000/- towards the consideration for development works. Thus the total amount of Rs.51,80,027/- has to be paid by the complainants to the opposite parties. The sale consideration of Rs.4 lakhs is not in dispute. The payment of the amount insofar as the construction of the house and the development works is concerned, it has to be made in phased manner in terms of the agreement of construction and the development agreement as well. The amount under the agreement of construction has to be made subject to the opposite parties completing the construction of the duplex house and delivering possession of the house within 12 months from the date of agreement. The completion of construction of the house and payment of the amount in phased manner in proportion to the stage of construction of the house are dependent each upon another and as such the payment of the amount of Rs.23 lakhs in phased manner has to be made in terms of clause 2 of the agreement of construction which is governed by the clause 4 that stipulates the period of 12 months within which the construction of the house as also delivery of its possession has to be made by the opposite parties.
According to the opposite parties, the complainants have paid an amount of Rs.50,000/- on 31.3.2006, Rs.4,20,000/- on 1.4.2006, Rs.30,000/- on 1.4.2006, Rs.18 lakhs on 19.8.2006, Rs.5,07,000/- on 1.12.2006, Rs.4,78,946/- on 23.3.2007 and Rs.9,13,000/- on 31.5.2007, a total amount of Rs.41,99,548/-. According to the opposite parties the complainants are still due an amount of Rs.7,00,452/-. Whereas the complainants’ contention is that they have an amount of Rs.12 lakhs towards advance to the opposite parties for construction of the house and Rs.38,20,915/- towards the balance and a total amount of Rs.50,20,915/- whereof an excess amount of Rs.1,20,915/- said to have been paid to the opposite parties.
The opposite parties have relied upon ExB1 to B4. ExB1 to B3 are the receipts for a sum of Rs. 5 lakhs. ExB4 is the agreement of sale wherein the sale consideration of the plot is mentioned as Rs.26 lakh whereas the sale consideration mentioned in the sale deed is Rs.4 lakh. The onus of proof lies upon the opposite parties to explain the discrepancy in the amount of sale consideration that has been mentioned in the agreement of sale and the sale deed. Once the sale deed is executed the agreement of sale pales into insignificance. The opposite parties attempt to rely upon the receipts to contend that the amount paid by the complainants is Rs.5 lakhs. In the light of execution of the receipt dated 10-08-2006 and the letter dated 10-08-2006 issued by the opposite parties admitting the receipt of the amount of Rsd.12 lakhs and Rs.38,20,915/-, the receipts and the amount mentioned therein would be of no help to the case of the opposite parties. The opposite parties cannot blow hot and cold in the same breath by contending that they have issued the receipt only for the purpose of obtaining the loan from the Bank by the complainants and also that the complainant have paid the only amounts covered under receipts. Looked at from any angle ExB1 toB4 would not establish the case of the opposite parties for the reason Ex.A1 to A3 are also issued by the opposite parties.
The opposite parties issued receipt for Rs.12 lakhs stated to have been paid by the complainants towards advance for construction of the house and the amount of Rs.12 lakhs mentioned in the receipt is reflected in the letter dated 10.8.2006. having issued the receipt dated 10.8.2006 for an amount of Rs.12 lakhs also letter dated 10.8.2006 to the ICIC Bank Limited, Hyderabad, the opposite parties cannot contend that the complainants have taken advantage of the receipt dated 10.8.2006. The statement of account issued by ICICI Bank relating to the loan account No.LBHYD 00001362185 of the complainant no.1 indicates disbursal of the loan amount of Rs.38,20,915/-. This statement of account showing the disbursal of the loan amount has to be construed in conjunction with the contents of the letter dated 10.8.2006 issued by the opposite party no.2 on behalf of the opposite party no.1 which goes to show that the opposite parties had undertaken to forward the title deeds of the complainants directly to the ICICI Bank Limited and they had also undertaken to refund the amount without demur paid to them by the bank in case the purchase transaction, for any reason is cancelled. Therefore, it does not lie in the mouth of the opposite parties to say that the amount of Rs.12 lakhs was admitted to have been paid was with an understanding that the complainants could secure the loan from ICICI Bank Limited subject to the agreement that the amount so admitted to have been paid was to be adjusted towards the due amount from the complainants. The total amount, thus paid by the complainants is Rs.12 lakhs + Rs.38,20,915/- equal to Rs.50,20,915/- whereas the amount agreed to be paid by the complainants to the opposite parties in terms of the construction agreement as also the development agreement is only Rs.49 lakhs. The amount of Rs.50,20,915/- was paid by the complainants within 12 months from the date of agreement of construction.
Having received the amount in terms of agreement of construction and development agreement, the opposite parties have the obligation to perform their part of contract i.e., they should complete the construction of the house and deliver possession of the house to the complainants by 14th day of July 2007 in terms of clause 4 of the agreement of construction as also the opposite parties had the obligation to develop the land by obtaining lay out from the grampanchayat concerned and take up the development works mentioned in clause 4 of the Development Agreement, viz;
1. Laying of approach road
2. Laying internal roads,
3. Provide drainage
4. Sewerage System
5. Street Lights
6. Provide Transformers
7. Plantation
8. Sump
9. Underground Telephone & Cable lines
10. Recharge pits
11. Borewells
12. Compound wall with solar fencing
13. Clubhouse
14. Swimming pool
15. Gymnasium
16. Park
17. Children’s play area
18. Intercom
19. Solar Water heater
20. Water Treatment Plant
The opposite parties have claimed that the complainants have not come-forward to take possession of the house construction of which was said to have been completed by 5th February 2007. There is no evidence brought on record in support of the construction of the opposite parties that the construction of the house was completed by 5th February 2007. The other contention of the opposite parties that the complainants are due an amount of Rs.20,92,395/- in terms of clause 5 of agreement of construction which stipulated payment interest @ 18% per annum and an amount of Rs.9,28,100/- towards material appreciation has no application as the complainants have paid the amount in time.
In the absence of any evidence in support of their contention that the complainants fell due an amount of Rs.7,00,452/- as also the allegation of the complainants of not coming forward to take delivery of possession of the house, the opposite parties cannot harp on the imaginary amount said to have been due from the complainants. Thus, the deficiency in service rendered by the opposite parties is manifest by their demand for the amount of Rs.18,08,287/- which is not due at all from the complainants except the amount mentioned in clause 17 of the agreement of construction, as also their failure to provide the amenities such as gymnasium, park, solar water heater and intercom within the stipulated period of 12 months in terms agreement of construction. Therefore, we are inclined to hold that the opposite parties have subjected the complainants to hardship and inconvenience by depriving them of the enjoyment of the house with all amenities as the house has been still in possession of the opposite parties. The complainants certainly might have felt mental tension for being deprived of the possession of the house which has been constructed on financial help from ICICI Bank Limited whereby they had to pay interest on the loan amount to the bank. Therefore, keeping in view of the circumstances of the case contributing to the loss and inconvenience caused to the complainants, we hold them entitled to a sum equal to the amount claimed by the opposite parties from the complainants. In these circumstances, the complainants need not pay any amount to the opposite parties as also the opposite parties cannot claim any sum from the complainants. The opposite parties are liable to complete construction of the house with all amenities mentioned in the development agreement and deliver possession of the house to the complainants.
In the result, the complaint is allowed directing the opposite parties no.1 and 2 to complete construction of the house with all amenities mentioned the development agreement and deliver possession of the house to the complainants. The opposite parties shall also pay Rs.2,000/- towards costs to the complainants. Time for compliance four months.
Sd/-
PRESIDENT
Sd/-
MEMBER
Dt.21.01.2010
Kmk*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
NIL
EXHIBITS MARKED
For complainants:
Ex.A1 Copy of sale deed dated 25.8.2006
Ex.A2 Copy of Agreement of Construction dated 15.7.2006
Ex.A3 Copy of Development Agreement dated15.7.2006
Ex.A4 Photograph
Ex.A5 Copy of letter dated 10.8.2006 of opposite party no.1
to ICICI Bank, Hyderabad
Ex.A6 Returned envelope
For opposite parties
Ex.B1 Copy of receipt dated 31.03.2006
Ex.B2 Copy of receipt dated 31.03.2006
Ex.B3 Copy of receipt dated 01.04.2006
Ex.B4 Copy of Agreement of Sale dt.15.7.2006
Sd/-
PRESIDENT
Sd/-
MEMBER
Dt.21.01.2010
