BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
C.C. 53/2009
Between:
Ravi Krishna Prasad
Presently residing at
1725, Courpney Creek Dr Charlotte
North Carolina-2817, USA
Rep. by GPA Holder
Ravi Ramesh Babu
S/o. Ravi Venkateswara Rao
Flat No. 11-1, Daffodil Towers
L&T Infocity, Serene Colony
Gachibowli, Hyderabad-32. *** Complainant
And
M/s. NCC Urban Infrastructure Ltd.
Rep. by its Authorized Signatory
M. Venugopal, S/o. M. Hanumantha Rao
Regd. Office at 41, Nagarjuna Hills
Punjagutta, Hyderabad- 500 082. *** Opposite Party
Counsel for the Complainant: M/s. V. Gourisankara Rao
Counsel for the OPs: M/s. A. Venkatesh
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
FRIDAY, THIS THE TWENTIETH DAY OF AUGUST TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
***
1) This is a complaint filed u/s 17 of the Consumer Protection Act for refund of Rs. 16,11,334/- together with interest, compensation and costs paid towards purchase of a flat.
2) The case of the complainant in brief is that he is a resident of USA executed GPA in favour of his father to enter into an agreement with the opposite party a builder for purchase of a flat. Accordingly his father paid Rs. 16,11,334/- on various dates viz., Rs. 4 lakhs on 24.5.2007, Rs. 2 lakhs on 5.6.2007, Rs. 9,97,340/- on 11.6.2007 and Rs. 13,994/- on 9.7.2007 to the opposite party. When he sought loan for payment of remaining balance of sale consideration the nationalized banks raised objection. He came to know that there was no proper permission. The government had informed that the Hon’ble Supreme Court ordered status quo during the pendency of the dispute. The very entering into agreement for sale of the flat is contrary to the orders of the Supreme Court. The opposite party had suppressed the orders of Supreme Court besides various orders of injunctions issued by statutory authorities. The complaint was filed seeking refund of Rs. 16,11,334/- with interest @ 24% p.a., Rs. 5,00,000/- towards increase in dollar rate, Rs. 15 lakhs towards increased rate of apartment and costs.
3) The opposite party builder resisted the case by denying each and every allegation made by the complainant. It alleged that there was breach of agreement and he did not adhere to the payment schedule annexed to the agreement viz.,
S.No. | Schedule | % | Rs. |
1 | Against agreement | 15% | 16,11,334/- |
2 | 25.09.2007 | 20% | 21,48,445/- |
3 | 25.12.2007 | 20% | 21,48,445/- |
4 | 25.03.2008 | 10% | 10,74,222/- |
5 | 25.06.2008 | 10% | 10,74,222/- |
6 | 25.09.2008 | 10% | 10,74,222/- |
7 | 25.12.2008 | 10% | 10,74,222/- |
8 | Handing over/ Registration whichever is earlier | 5% | 5,37,111/- |
| Total | 100% | 1,07,42,225/- |
As against the said amount the complainant had paid Rs. 16,11,334/-. The complainant had verified the title and having satisfied entered into agreement of sale on 7.7.2007 for purchase of a flat for a consideration of Rs. 1,07,42,225/- as mentioned above. They have applied for regularization of the title for the land situated at Sy.No. 46 part and Sy.No. 53 part including the extent of Ac. 9.24 gts. They purchased the property from the real owners under various deeds and they have acquired the property by virtue of permit No. 13092/BP/CDA/2006 Dt. 15.5.2007 issued by Cyberabad Development Authority. It had started other preparatory works. Pursuant to the above approval HUDA had also issued proceedings permitting it to construct residential apartments. It had never promised to arrange for loan or financial assistance through financial institutions or banks. It had only promised to assist the complainant for processing the loan. The property was not under any litigation. This was made in order to evade the agreement of sale and to cover up his own breach. They were not a party to the proceedings. Substantial part of sale consideration was due. In order to evade the complainant was taking all these untenable pleas to get over payment of balance of sale consideration. It was ready to execute sale deed provided balance of sale consideration is paid. Since there are latches on the part of complainant and had violated the terms of the agreement, it was not liable to refund the said amount and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed the affidavit evidence of his GPA and got Exs. A1 to A17 marked while the opposite party filed the affidavit evidence of its authorized signatory and got Exs. B1 & B2 marked.
5) The points that arise for consideration are :
Whether there was cloud cast on the title of the opposite party by virtue of various proceedings before the High Court of A.P. as well as Supreme Court?
Whether the complainant has violated the terms of the agreement and is not entitled to refund of the amount?
To what relief?
6) It is an undisputed fact that the opposite party is a builder. The complainant agreed to purchase a flat No. 202 in Block-A on the second floor admeasuring 2430 sft in Ac. 3.16 gts in Sy. No. 46/part & Sy. No. 53/palki situated at Gachibowli village of Serlingampally mandal of Ranga Reddy district for Rs. 1,07,42,225/- under agreement of sale Ex. A1 dt. 7.7.2007. It is also not in dispute that the complainant had paid Rs. 16,11,334/- on various dates towards part of sale consideration. The complainant had agreed to pay balance of sale consideration in various instalments vide schedule which we have already adverted to. The complainant sought for refund of the amount on the ground that he came to learn that the title over the property is not clear and the various permissions and approvals obtained from various authorities viz., HMDA, HUDA, CYUDA etc. was a subject matter in a proceedings before the Hon’ble Supreme Court wherein the orders of status quo were issued. Later the High Court of A.P. in W.P. No. 3860/2008 also issued status quo orders. In the light of litigation he does not want to proceed ahead and sought for refund of the amount. No doubt the opposite party had obtained approval for construction of residential apartments vide permit No. 13092/BP/CDA/2006 dt. 15.5.2007 from Cyberabad Development authority. Pursuant to it GHMC issued proceedings No. G/353/BP/WG/2611/07 dt. 13.6.2008 permitting the opposite party to construct the residential apartments. The Vice-Chairman, HUDA addressed a letter Ex. A14 dt. 17.1.2008 to the Principal Secretary to Government, Revenue Department mentioning that:
“the Joint Collector, Ranga Reddy district has informed that Sy. Nos. 46,47, 51, 52, and 53 of Gachibowli village, Serlingampally mandal are subject matters of dispute in SLP No. 6093/2006 and 7013/2006 which are still pending beore the Hon’ble Supreme Court. The Joint Collector has further informed that the Hon’ble Supreme Court has passed interim orders in the said SLP on 8.9.2006 whereby the court has ordered status quo be maintained on the spot.
It is submitted that M/s. NCC Urban Infrastructure Ltd., has applied for permission of construction of residential apartments in the said land. M/s. NCC Urban Infrastructure Ltd., claim to have acquired an extent of Ac. 6.16 gts and 3.08 gts in Sy. No. 46 and 53 respectively by way of purchase. The vendors of applicant appears to have got regularization under G.O Ms. No. 455 Revenue (UC-II) Dept. On verification, it is further noticed that the Government of A.P. has regularized the said lands under G.O. Ms. No. 1816 Revenue (UC-II) Dept. dt. 18.10.2005 and G.O. Ms. No. 2183 Revenue (UC-II) dt. 27.12.2005. Cyberabad Development Authority has accorded permission for construction of residential apartments vide permit No. 13092/BP/CDA/2006 dt. 15.5.2007 in the said land.
In view of the above, I request you to clarify status of the land in the instant case, so as to take appropriate necessary action with regard to the buildings permission that have been accorded.”
The Government by its letter Ex. A15 dt. 20.10.2007 directed the Vice-Chairman, HUDA, Hyderabad as under :
I am to inform that the lands in Sy. No. 46,47, 51, 52, 53 of Gachibowli village, Serlingampally manal, Ranga Reddy district are covered in SLP No. 6093/2006 and 7013/2006 wherein the Hon’ble Supreme Court has passed interim orders dt. 8.9.2006 to maintain status quo on the spot.
Keeping in view the orders of the Hon’ble Supreme Court to maintain status quo on the spot in respect of lands in question, it is requested not to accord any permission of constructions in the subject lands. If any permissions are already accorded, steps may kindly be taken to cancel the same and to stop the construction activity as it may lead to breach of orders passed by Hon’ble Supreme Court.”
The Deputy Collector, Serlingampally by his letter Ex. A16 dt. 8.5.2009 informed the the Deputy Commissioner, GHMC, Serlingampally that they found construction activity is still in progress. During enquiry it was informed that they got regularization from the Government under ULC Act and got construction permissions from the HUDA and Municipality, and as such they have not stopped the construction activity. It seems that so far no steps were taken by HUDA and Municipal authorities to stop the construction activity in the lands covered by status quo orders of Hon’ble Supreme Court.
In view of the above, kindly furnish the particulars of permissions granted in the subject lands so as to enable to bring the same to the notice of Hon’ble Supreme Court. It is also requested to take immediate necessary steps to stop the construction activity in the subject lands as it is covered by status quo orders of the Hon’ble Supreme Court to avoid legal complications in the interest of Government.”
7) Dr. K. Manmohan Reddy filed W.P. No. 3860/2008 before the High Court of A.P. against 101 respondents including the Government of A.P, Revenue Department, Municipal Administration, Urban Land Ceiling Authority, Cyberabad Development Authority, etc and also the opposite party as R11 for a writ of mandamus to declare the exemption order issued by the Government of A.P as illegal and that owners have no right to transfer the lands in Sy.Nos. 35,36,37,40,42, 43, 44, 46, 47 and 53 part of Gachibowli village in view of surrender of the tenancy claim and more so in the light of Civil Appeal Nos. 6093/2006 and 7013/2006 and to stop illegal constructions over the disputed area and subsequent sale transactions in Sy. No. 46 of Gachibowli village as illegal and void.
8) Ex. A17 is the order of High Court in W.P. No. 3860/2008 wherein it was observed :
Be that as it may, the petitioners even though contend that respondent Nos. 10 & 11 in the guise of making construction in Sy.Nos. 46 and 43 are trying to encroach upon their land in Sy. No. 51, the fact remains, the same being a disputed question of fact, cannot be gone into by this court in exercise of its power under Article 226 of the Constitution of India, and that the remedy of the petitioners is to approach the competent civil court and obtain necessary reliefs. However, for the present, the limited relief that can be granted to the petitioners is to direct the respondent Nos. 10 and 11 not to make any constructions in the plots owned by the petitioners in Sy.No. 51 and more so when it is the specific case of respondent No. 10 and 11 that they are not concerned with the land in Sy. No. 51 and that they are not making any construction in Sy.No. 51 in which the petitioners are claiming to own plots.
Pending further orders, the parties are directed to maintain status quo obtaining as on today with regard to the plots Nos. 224 and 224A of the petitioners admeasuring 355 sq.yds each situated in Sy. No. 51 of Gachibowli village, Serlingampally Mandal, Ranga Reddy district.
9) A perusal of the above would undoubtedly disclose that the matter is pending with the Hon’ble Supreme Court and the various approvals/permissions obtained by the opposite party are in question. The Supreme Court directed the opposite party not to make any constructions. In the circumstances the opposite party could not have commenced the constructions nor in a position to hand over the same. When the title itself is in cloud, the complainant does not want to proceed ahead and pay the entire amount.
10) When the opposite party, despite the order of Supreme Court has been proceeding ahead with constructions would itself show that it has scant respect for law. The complainant cannot be asked to go ahead and pay the amount. The above proceeding would undoubtedly indicate that the opposite party despite the orders of the Hon’ble Supreme Court has been proceeding ahead of construction which it ought not to have made nor can claim the balance amount. In the circumstances the complainant is justified in seeking refund of the amount. The opposite party alleges that it is ready to execute the sale deed, and after all it has nothing to lose. It will collect the entire amount and complainant has to face the litigation. As we could see from the proceedings, when it is at fault in proceeding ahead with the project, it can no longer defend by stating that it was ready to execute the sale deed.
11) The complainant has claimed interest @ 24% p.a. on the said amount. The Hon’ble Supreme Court time and again directed in cases of this nature to award interest @ 9% p.a. which would meet whatever loss that was sustained by the complainant for parting the amount.
12) The complainant has claimed Rs. 5 lakhs towards increase in rate of US dollars which we are unable to appreciate to grant this amount. It is not his case that the amount was paid in US dollars. Equally his claim of Rs. 15 lakhs, for the increased rates of apartments of similar nature. In fact there is recession in real estate market, which we can take judicial cognizance. At any rate, no evidence whatsoever was filed to state that there was increase in the rates of apartments in and around the property. However, we intend to award Rs. 25,000/- towards compensation for the mental agony suffered by the complainant.
13) In the result the complaint is allowed in part directing the opposite party to refund Rs. 16,11,334/- with interest @ 9% p.a., from 9.7.2007 till the date of payment together compensation of Rs. 25,000/- and costs computed at Rs. 10,000/-. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
COMPLAINANT: OPPOSITE PARTY
None None.
Documents marked for complainant:
Ex A-1 Copy of Agreement of Sale Deed dt :07.07.2007
Ex A-2 Copy of GPA (Notarized) in favor of the complainant dt :06.11.2006
Ex A-3 Copy of Letter dt:22.12.2008 from M/s. NCC Urban Infrastructure
Ex A-4 Copy of Letter of the Complainant dt :24-02-2009 to the Chief Manager State Bank of India, Hyd
Ex A-5 Copy of reply letter of State Bank of India dt :16-03-2009 to the complainant.
Ex A-6 Copy of complainant ( through his GPA Holder) letter dt:11-04-2009 to the respondent
Ex A-7 Copy of reply letter dt : 28-04-2009 from NCC Urban Infrastructure Ltd .
Ex A-8 Copy of letter dt : 13-03-2009 from the Branch Manager, SBI, Sec’bad to M/s. NCC Urban Infrastructure Ltd
Ex A-9 Copy of Legal Notice dated : 25-05-2009 to M/s. NCC Urban Infrastructure Limited.
Ex A-10 Copy of Government of A.P. Revenue Dept.notice No.B/828/2007 dt : 22.7.2007 issued by the Tahsildhar , Serilingampally.
Ex A-11 Copy of Order passed in Hon’ble Special Leave to Appeal (Civil) 15703/2006 CC 6093 dated : 8-09-2006
Ex A-12 Letter of HMDA dt : 31-12-2009 to GPA Holder
Ex A -13 Letter dt : 12-12-2007 of HUDA to The Collector ,R.R.Dist.
Ex A-14 Letter dt : 17-01-2008 of HUDA to The Principal Secretary to Govt.
Revenue Dept, Hyd.
Ex A-15 Letter dt : 20-01-2007 of RDO , R.R. District. To VC, HUDA, Hyd.
Ex A-16 Letter of Tahsildar of Serilingampally dt : 8.5.2009 to the Deputy Commissioner, GHMC, Serilingampally.
Ex A-17 Order in W.P.No. 3860 /2008 dt : 28-03-2008 of Hon’ble High Court of A.P. at Hyderabad.
Documents marked for Opposite Party :
Ex B-1 Letter of NCC Urban Infrastructure Limited to the complainant dt : 22.12.2008
Ex B-2 Letter of NCC Urban Infrastructure Limited to the GPA Holde dt : 22.12.2008
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 20/08/2010.
*pnr
