BEFORE THE ADDITIONAL BENCH OF A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.1262/2006 AGAINST C.D.No.252/2005 DISTRICT FORUM-I, HYDERABAD.
Between:
1. Varadha Sai Sudhakar, S/o.late Sri Veera
Lakshman Rao, aged about 49 years,
R/o.Flat No.201, Abhinav Arcade,
Dharam Karam Road, Ameerpet,
Hyderabad.
2. Varada Venkata Krishnaveni, W/o.Varada Sai
Sudhakar, aged about 46 years,
R/o.Flat No.201, Abhinav Arcade,
Dharam Karam Road, Ameerpet,
Hyderabad. Appellants/
Complainants
And
M/s.Lakshmi Builders, rep. by its Managing
Partner, Sri K.Narasimhulu, Flat No.E-1, Sukhamani
Apartments,1st floor, Lakdi-ka-pool,
Hyderabad-500 004. Respondent/
Complainant.
Counsel for the Appellants:M/s.A.V.Sesha Sai
Counsel for the Respondent: M/s.M.Papa Reddy
QUORUM: SRI SYED ABDULLAH,MEMBER.
AND
SRI R.LAKSHMI NARASIMHA RAO, MEMBER.
.
WEDNESDAY, THE SIXTEENTH DAY OF JUNE,
TWO THOUSAND TEN
Oral Order (Per Sri Syed Abdullah, Hon’ble Member.)
***
The appellants in this appeal are the unsuccessful complainants in C.D.No.262/2005 before District Forum-I, Hyderabad. They filed a complaint against opposite party seeking relief for refund of Rs.4,18,000/- said to have been collected in excess over and above the agreement and also claimed compensation of Rs.1,00,000/- for harassment and mental agony faced by them.
The impugned order in dismissing the complaint has been challenged as erroneous and sought to be set aside.
The facts of the case disclose that the opposite party had offered to sell the flat situated in Ameerpet admeasuring1680 sft. along with car parking and 50 sq. yds. of undivided share of land for a sale consideration of Rs.17,00,000/-. An agreement of sale was executed on 11-10-2002 and subsequently a registered sale deed was executed in favour of the complainants in respect of unfinished flat No.201 by registering the same on 29-11-2002 for a consideration of Rs.6,90,000/-. The balance amount of Rs.10,10,000/- is to be paid on completion of the unfinished works by providing the required amenities. A separate work order ws also entered into on 25-11-2002 in which it was mentioned that the sale consideration of Rs.17,00,000/- includes the price of the flat, car parking and 50 sq. yds. of undivided share of land. It is also mentioned in sale deed dated 29-11-2002 that car parking was also allotted. Though the construction was completed in the month of November, 2002 possession was not given to the complainants and opposite party demanded excess amount and until the same is paid, he stated that possession will not be delivered. Accordingly the complainants after making excess payment of Rs.21,18,000/- against Rs.17,00,000/- took possession of the flat in the month of November, 2003 and submitted that this act or omission has to be treated as deficiency in service.
Opposite party denied the allegations made in the complaint and in its version has taken the stand that there is no recital in the sale deed about providing car parking. The sale deed was executed and registered in November, 2002 and the complainant would not have waited till February, 2005 if really the opposite party had not fulfilled the terms and conditions. Opposite party from the inception requested the complainant to pay all the amounts through cheques and the complainants failed to keep up the payment as per the schedule. Further the complainants entrusted extra work which was attended to in addition to the works agreed and the complainants had to bear proportionate share of the amount to be paid for obtaining transformer, electricity meter, municipal water, drainage etc. including assessment of municipal tax and submitted that no excess amount was paid or collected. Opposite party further submitted that they never agreed to provide covered car parking free of cost and offered to provide covered car parking provided the complainants pay the proportionate share which they did not opt for . For the first time after giving notice on 01-2-2005, the complainants have raised the issues which were raised after a period of 3 years after delivery of the flat and hence prayed to dismiss the complaint.
During the enquiry, both sides filed their affidavits along with Exs.A1 to A29 and B1 to B3.
The District Forum adjudicated the point of limitation in filing the complaint as well as whether the dispute raised is a consumer dispute.
After considering the evidence and the respective contentions, the District Forum came to a conclusion that the relief’s sought against the opposite party to allot car parking in lot Nos.21 and 22 which was allotted to flat owner of 104 and also claiming refund of excess amount collected squarely falls within the jurisdiction of civil court as it requires elaborate evidence and therefore dismissed the complaint.
Aggrieved by the impugned order, the appellants have taken the stand that the District Forum having considered the evidence on record has erroneously come to the conclusion that the appellants should approach the civil court for the relief’s sought for. The District Forum failed to consider that opposite party had adopted unfair trade practice in collecting excess amounts under threat of not delivering possession and not allotting the car parking area as evidenced from Exs.A4 to A21 receipts filed.
The point for consideration is whether the impugned order is liable to be set aside and whether it suffers from any factual or legal infirmities.
The appeal is a continuation of a suit which is hall mark rule of the procedure. The District Forum gave its finding that the appellants have to approach the civil court and the District Forum cannot entertain the relief sought for. Subsequent to the filing of the appeal and during the pendency of this appeal, the appellants have filed a civil suit O.S.No.1081/2007 on the file of V Junior Civil Judge, City Civil Court, Hyderabad in which the flat owners Association moved an application, I.A.No.966/2007, raising an objection as to the maintainability of the ciivl suit in view of the arbitration clause in the sale agreement which was entered into between the parties and thereby sought a direction to relegate the matter to arbitration. The said I.A. was allowed and an order was passed on 17-1-2008 by returning the plaint with a direction to approach the arbitrator. At that stage, the appellants have issued notice to the respondent/opposite party on 31-3-2008 to invoke the jurisdiction of the arbitrator for resolving the matter and as there was no response, moved the Hon’ble High Court in Arbitration Application no.145/2008. After hearing both parties, the Hon’ble High Court passed an order on 20-4-2009 holding that the parties have got to be resolved through the mechanism of arbitration. In pursuance of the said order, Hon’ble Sri Justice Vaman Rao, former Judge of High Court was appointed as arbitrator.
Subsequently on 11-12-2009 these appellants have filed a memo stating that the matter is being heard by the arbitrator appointed by the Hon’ble High Court and thereby requested to adjourn the matter. On the said representation, the appeal was adjourned from time to time.
At the out set, it can be stated that the appellants have at first raised a consumer dispute and aggrieved by the order passed by the District Forum have filed an appeal and during the pendency of the appeal they filed a civil suit and then moved the Hon’ble High Court for passing appropriate orders for appointing an arbitrator. The Hon’ble High Court after hearing had passed an order long back in April, 2009 itself and the arbitrator had seized the matter. The appellants cannot initiate parallel proceedings for the same relief sought for. In view of the orders passed by the Hon’ble High Court in appointing an arbitrator for deciding the same relief, the appeal filed by the appellants against the order of the District Forum became infructuous and there is no necessity to dispose of the appeal on merits.
Accordingly, the appeal is disposed of holding that the appeal is infructuous as an arbitrator was appointed by the Hon’ble High Court in A.A.No.145/2008 to decide the same relief and the arbitrator has seized of the matter. There shall be no order as to costs.
Sd/-MEMBER.
Sd/-MEMBER.
JM Dt.16-6-2010
