BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
C.C.No.51 of 2007
Between:
1. Sri Sardar Inderjeet Singh (Died per LR’s)
2. Smt.Pushpinder kaur, W/o.late Sardar Inderjeet
Singh, aged 55 yeas, Occ:Advocate.
3. Sri Sardar Prabmeet Singh, S/o.late Sardar
Inderjeet Singh, aged 24 years, Occ:Student.
Both R/o.Flat No.501, Gaurav Kalyan Apartments,
3-4-230, Kachiguda, Hyderabad.
(Complainants 2 and 3 added as per orders in
IA.No.1190/09 dated 20-7-2009) ..Complainants.
And
1. M/s Poonam Constructions
A partnership firm having its office at
3-6-689 Street No.10, Himayatnagar,
Hyderabad, rep. by its Managing Partner
Mr.Gautham Jein.
2. Mr.Gautham jein, S/o.Poonamchand Jein,
R/o.3-6-689, Street No.10,
Himayathnagar, Hyderabad.
3. Mr.Srinivasa Reddy, S/o.Sanjeeva Reddy,
R/o.1-4-880/2, SBH Colony,
Gandhinagar, Hyderabad. Opposite parties.
Counsel for the Complainant : Mr.T.Sanjay Rao.
Counsel for the Opposite parties: Mr. Shyam S.Agarwal
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
AND
SMT.M.SHREESHA, MEMBER
.
TUESDAY, THE TWELFTH DAY OF OCTOBER,
TWO THOUSAND TEN
(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member)
***
Originally, one Sardar Inderjeet Singh filed the complaint and he died during the pendency of the complaint so his legal representatives were brought on record as per the orders in I.A.No.1190/09 dated 20-7-2009. Except amending the names, the body of the complaint was not amended and hence we read the allegations as filed by the complainant Sri Sardar Inderjeet Singh.
The brief facts as stated in the complaint are that the complainant No.1 is an absolute owner of the property bearing municipal No.3-4-232 to 235, 3-4-236/1, 2 & 3 admeasuring 550 sq. yds. situated at Kachiguda, Hyderabad and entrusted the above party property to the opposite party No.1 rep. by opposite parties 2 and 3, its partners for development of the said property into a commercial-cum-residential complex and entered into an Development agreement dated 2-3-2001 and the original was in the custody of opposite party No.2 while a singed copy thereof was handed over to the complainant. As per clause 2 of the said development agreement, opposite parties agreed to construct and deliver 50% of the total constructed area proportionately on each floor as per the municipal permit to be obtained by them and as per clause 10, the parking area in the stilt shall be divided by 50% between the complainant and opposite parties. As per clause 14 it was agreed that the opposite parties shall construct an Advocate’s office admeasuring 1500 sft. exclusively for the use and enjoyment of the complainant. It was also specially mentioned in the said clause that the property to be developed was approximately valued at Rs.1.00 core and that the opposite parties are liable to pay all such taxes and charges to the authorities concerned from the date of removal of structures of the said property till the respective shares are delivered to the complainant as well as third party purchasers. Clause 18 stipulates that the opposite parties shall obtain permission from MCH within 60 days from the date of delivery of vacant possession of the said property by the complainant and the opposite parties shall complete the construction of the complex within 16 months from the date of obtaining permission from MCH and deliver 50% of the constructed area to the complainant within the stipulated time. Clause 19 stipulates that if opposite parties fail to construct the complex and deliver the 50% of constructed area to the complainant within the said time, the complainant shall be entitled for compensation at Rs.50,000/- per month from the opposite parties for a period of 12 months. Clause 25 stipulates that the opposite parties shall bear the stamp duty and registration charges for the Development agreement and clause 30 stipulates that the opposite parties shall start the construction of the complex as per the schedule and specifications appended to the said development agreement.
The complainant No.1 submitted that in view of the agreement, he got the tenant vacated on 26-4-2001 and on the same day the complainant had delivered the vacant physical possession of the said property to the opposite parties clearing all the dues for the purpose of development within two months thereof and the opposite parties demolished the old existing structures and obtained municipal sanction on 09-10-2002 though they were under obligation to obtain the same within 60 days from the date of delivery of possession. Opposite parties made construction in deviation of the sanctioned plan while constructing the complex thereby driving the complainant to face several civil and criminal cases. However, the complainant defended and initiated all such cases and co-operated with the opposite parties and incurred a sum of Rs.1,00,000/- towards expenses which the opposite parties have to reimburse. The complainant submitted that the opposite parties ought to have obtained permission from 26-4-2001 when the complainant got his tenant evicted and handed over the vacant possession and ought to have constructed the complex within 18 months from the date of demolition of the structures as the same were demolished within two months from the date of delivery of possession and delivered 50% of the constructed area in each floor to the complainant by the end of January, 2003. But opposite parties miserably failed to construct the complex and deliver 50% of the share till today and thus rendered themselves liable for payment of damages @ Rs.50,000/- per month for a period of 12 months amounting to Rs.6,00,000/-. The complainant also submitted that as per clause 26 the complainant shall have first priority to select and approve his 50% of the constructed area floor wise and the opposite parties shall not have any objection for the same. Notwithstanding such unequivocal understanding, opposite parties have miserably failed to deliver 50% of constructed area floor wise and parking area in the property to the complainant and when the complainant demanded 50% share in the entire constructed area, opposite parties 2 and 3 induced him with a promise that they would obtain a supplemental permission from MCH and make further constructions. The complainant submitted that in good faith he agreed for the proposal and co-operated with opposite parties to sell 8 flats in 1st, 2nd, 3rd and 4th floors totally admeasuring 8992 sq. ft. and registered the sale deed in favour of the respective purchasers. The complainant submitted that he was made to sign the sale deed even without going through the contents and later it came to his notice that the opposite party mentioned in the said sale deed that consideration is received by the complainant. The complainant submitted that the entire sale consideration of Rs.69,60,000/- covered by the sale deeds has been received by the opposite parties from the purchasers and the complainant’s undivided share of about 110 sq. yds. of the land is lying untouched and the said fact clearly establishes that the opposite parties had absolute intentions of making further constructions. The complainant submitted that he has not authorized the opposite parties to enter into any agreement or induct purchasers into possession of the complex in excess of 50% of the constructed area but opposite parties have inducted their nominees into possession by receiving the consideration amount from them even though they had not delivered the complainant his share of 50% and had not rectified the previous sale deeds. The complainant submitted that he waited with a fond hope that they would make further constructions on 5th floor and deliver the same but he received only the ground floor portion to an extent of 2,000 sq. ft. in December, 2005 and sold the same to a prospective purchaser thus out of the total constructed area of 10,992 sq. ft. inclusive of ground floor, he got an extent of 2000 sq. ft. that too only in the ground floor when he is entitled to 50% floor wise as per the agreement.
The complainant further submitted that in view of the opposite parties and assurance and making further constructions, the refund of security deposit to the opposite parties by the complainant was waived off in lieu of Advocate’s office to be constructed on the top floor of the complex and a Memorandum of Understanding was executed by the parties on 05-12-2005.
The complainant submitted that opposite parties miserably failed to make further construction on the 5th floor of the complex despite several requests and reminders from the complainant. He submitted that he is still entitled to 3496 sq. ft of the constructed area with proportionate parking area and even at a conservative estimation of Rs.2,000/- per sq. ft. the balance area would have fetched him Rs.69,92,000/- had the opposite parties delivered 50% of the constructed area floor wise to the complainant. The complainant further submitted that as per clause 7, the terrace of the complex shall exclusively belong to him and the parking area in the stilt has not been measured so far and his share to an extent of 50% was not earmarked and delivered to him. The complainant further submitted that the opposite parties failed to pay the arrears of property tax to the MCH from the date of demolition of the existing old structure till the date of handing over of the constructed area to the complainant and the prospective purchasers and the complainant had cleared all the dues to electricity, water and MCH and handed over the vacant physical possession of the property to the opposite parties. The complainant submitted that after handing over a property worth Rs.1.00 crore to the opposite parties for development, the complainant got a meager amount of Rs.40.00 lakhs by selling the ground floor allotted to the complainant while the opposite parties have made a fortune and that too he got the above return in view of huge appreciation of the value of the property in and around Hyderabad City. The complainant therefore got issued a legal notice dated 14-6-2007 demanding the opposite parties to hand over his share of the constructed area or pay compensation. The complainant further submitted that even till today the opposite parties have not handed over the deficit area of 3496 sq. ft. out of 50% constructed area due to the complainant due to which he was deprived of enjoyment of his constructed area which could have fetched not less than Rs.50,000/- per month. The complainant submitted that as per the development agreement, possession of balance 50% of constructed area should have been delivered to the complainant within 18 months from the date of sanction of plan and earliest by 9-5-2004 and thus the complainant is deprived of possession for 40 months till now including damages at Rs.50,000/- per month for 12 months amounting to Rs.6,00,000/-and for the balance period of 28 months at Rs.20,000/- being the loss of rent for the deficit area amounting to Rs.5,60,000/-, in all the complainant in entitled for damages of Rs.11,60,000/- apart from the above said value of the undelivered constructed area. In view of the above, the complainant submitted that he is entitled for the following amounts:
a) Legal expenses Rs. 1,00,000-00
b) Damages (Rents & Mesne profits) Rs.11,60,000-00
c) Damages towards loss of income Rs. 2,00,000-00
d) The amounts in lieu of deficit area Rs.69,92,000-00
of 3496 sq. ft. --------------------
Total Rs.84,52,000-00
===========
The complainant submitted that there is deficiency in service on the part of the opposite parties in not handing over to the complainant the deficit area of 3496 sq. ft. due to the complainant inspite of receipt of notice and the opposite parties have grossly failed to comply with the terms and conditions of the agreement result in hence he is entitled to 3496 sq. ft. of the constructed area being the deficit/balance area out of his 50% of constructed area in the complex “POONAM GURUMUKH PLAZA” Kachiguda, Hyderabad and also damages. The complainant submitted that opposite parties are avoiding to comply with the terms of the agreement of development dated 2-3-2001 with an intent to cause loss to the complainant and indulging in unfair trade practice by denying the complainant’s share in the constructed area. He further submitted that the opposite parties are in the habit of making money by misguiding the owner of properties and some land owners have filed criminal cases against theses opposite parties, one such criminal complaint has been filed by the land owner G.Shoba Latha vide FIR No.424/07 dated May, 2007 before 14th MM Criminal courts for breach of trust, intimidation and misappropriation of funds and another land owner Sri Naresh Gupta opposite to Tarakarama Theatre, Ram Koti entered into development agreement with opposite parties and opposite party no.2 never applied for sanction plan even after 18 months. Hence the complaint for a direction to the opposite parties to hand over deficit area of 3496 sq. ft or to pay compensation in lieu of deficit area of 3496 sq. ft. at Rs.69,92,000/- and also pay damages and legal expenses of Rs.14,60,000/- together with further damages of Rs.2,00,000/- and costs.
Opposite parties 1 to 3 filed counter contending that the complainant is not a consumer and does not come under the definition of consumer and that the complaint is liable to be dismissed for misjoinder of parties. They submitted that opposite party no.3 is not way concerned with opposite party No.1 as he had retired from the firm on 5-8-2004. They denied the allegation of the complainant that he is the owner of the property as on the date of filing of the complaint as the same was offered to them for development and subsequently after construction all the tenements have been sold to the prospective purchasers and therefore the complainant claiming to be still the owner of the proper is mischievous and misleading. They admitted that as per clause 2 of Development agreement dated 2-3-2001, they agreed to construct and deliver 50% of the total constructed area proportionately on each floor as per the municipal permit obtained by them and as per clause 10 of the deed, parking area in the stilt had to be divided between the parties in the same ratio and submitted that they constructed the building as per the directions of the complainant, who used to monitor the construction work almost everyday. They submitted that as per the municipal sanction, they are entitled to construct lesser area that the extent constructed and though the complainant was entitled to a lesser extent, he got more than that and only nine tenements are permitted to be constructed in the building with only nine parking spaces and in view of station road and the property being situated in a very busy commercial place having huge demand, the complainant insisted for allotting the entire ground floor to him and several persons witnessed the incidents.
The opposite parties admitted that they agreed to construct an Advocate’s office admeasuring 1500 sq. ft. exclusively for the use and enjoyment of the complainant and the complainant persuaded them to sign the development agreement incorporating the said clause but as the municipal permission and sanction could not be obtained for construction of the advocate office on the top of the terrace, the said proposal was mutually discarded. They submitted that as per the market value, the value of the property is Rs.50,00,000/- and after excluding the extent of land left for road widening is also taken into consideration., the value is Rs.40,00.000/- only. They admitted that as per clause 17, they are liable to pay taxes and charges to the parties concerned from the date of removal of structures of the said property till the respective shares are delivered to the complainant as well as third party purchasers and submitted that the complainant mentioning the said clause is not relevant. They admitted that as per clause 18 they have to obtained permission from MCH within 60 days from the date of delivery of vacant possession by the complainant and that they have to complete the construction within a period of 18 months thereafter and if they fail to construct the complex and deliver the share of the complainant within the stipulated time, the complainant is entitled for compensation and damages @ Rs.50,000/- per month for a period of 12 months. They also admitted that as per clause 25, they shall bear the stamp duty and registration charges for the development agreement and as per clause 30 they shall immediately start the construction. They denied the allegation that the complainant got his tenant vacated on 26-4-2001 and on the same day had delivered vacant possession of the property after clearing all the dues for the purpose of development and that within two months they got the existing old structure demolished. They submitted that the possession of the property was delivered to them in April, 2002 and it took them five months to obtain permit and sanction from MCH and submitted that sanction of permit and plan would not be in the hands of the individual applicant and the same being an official procedure, the sanction was issued on 09-10-2002. They denied the allegation that they made construction in deviation of the sanctioned plan driving the complainant to face several civil and criminal cases. They submitted that it was the complainant who insisted the opposite parties to construct more area and the in the process forced them to incur heavy expenditure and submitted that more than the court cases, the personal rivalry between the complainant and his brother had caused inconvenience and loss apart from other difficulties to them. They denied that he defended and initiated cases and incurred Rs.1,00,000/- towards legal expenses but admitted that the complainant co-operated to them. They submitted that they completed the construction within 18 months from the date of municipal permit i.e. from 09-10-2002 and denied that they have to complete the construction as alleged by the complainant after delivery of possession on 26-4-2001 and complete the construction by the end of January, 2003 and that they are liable for payment of damages of Rs.50,000/- per month for a period of 12 months. They admitted that the complainant was entitled for 50% of total constructed area proportionately on each floor and as per clause 26, the complainant have shall first priority to select and approve his 50% of the constructed area floor wise and opposite parties shall have no objection for the same. They submitted that the most import aspect in this case is that by exercising his right of priority and with undue influence and coercion, the complainant insisted the opposite parties to allot him entire ground floor of the building and asked the opposite parties to take the upper floors and that the ground floor of the building is to be considered a creamy layer of the entire complex and fetches several folds of the price of upper floors and out of the total sale consideration from the ground floor, major portion was taken by the complainant unaccounted in view of the difference between the prevailing rate and the market value as per the basic value register of the registrar office. They submitted that the complainant himself executed all the sale deeds in respect of the upper floors in favour of the prospective purchases who were nominees of opposite parties and now after a period of 3 years after executing the said sale deeds, cannot be allowed to plead ignorance and submitted that the complainant and his wife are highly educated persons having knowledge and well versed with law and all the transactions are done with the full consent and knowledge of the complainant. They denied the allegation that they failed to deliver 50% of the constructed area floor wise and parking area in the property to the complainant. They submitted that the wife of the complainant is a senior advocate practicing before Hon’ble High Court and always accompanied him and thus the complainant cannot be allowed to plead that there was any possibility of obtaining any supplementary permission from the MCH for the said property for construction of upper floors or any excess area. They submitted that the permission obtained by them was more than what the property could fetch at that point of time and submitted that for 500 sq. yds. permission cannot be granted for more than three floors, however, they got more FSI for the only reason that about 100 sq. yds. of the property was required to be left for road widening free of cost and the Corporation granted more FSI in lieu of the same. They submitted that in view of the above submissions, the complainant agreed for such proposal and the opposite parties sold 8 flats in first, second, third and fourth floors admeasuring 8992 sq. ft. to prospective purchasers and accordingly the complainant executed the sale deeds and it is false to allege that the complainant was made to sign the sale deeds without going through the contents and submitted that the complainant singed all the papers only after getting nod from his wife who went through all the documents meticulously every time. They denied that they received the entire sale consideration of Rs.69,60,000/- covered by the sale deed and that the complainant’s undivided share of land of 106 sq. yds. is lying untouched and the said fact establishes that they have intentions of making further constructions and submitted that the 100 sq. yds. was taken over by MCH as a pre condition for grant of permission and absolutely no undivided share of the complainant is lying untouched and the complainant is making such allegation to trouble them and have an illegal gain and submitted that the complainant himself executed the sale deeds conveying the entire constructed area along with the undivided share in the land left over after leaving the extent for road widening. They submitted that the complainant himself executed and got registered the ale deeds in favour of the nominees of the opposite parties in respect of the flats and having done so, it is meaningless on his part to state that though he had not authorized them to enter into any agreement or induct purchasers into possession of the complex in excess of 50% of the constructed area and the opposite parties have inducted their nominees in possession. In view of the complainant himself opting for ground floor portion asking opposite parties to take upper floors, the statement of the complainant that he had not been delivered 50% is incorrect and the complainant asking to get the previous sale deed rectified is also unjust. The opposite parties further submitted that the complainant himself opted for the entire ground floor forcing the opposite parties to take the upper floors, his statement that he had fond hope that opposite parties would make further construction on 5th floor and deliver it to the complainant is also false. They submitted that the complainant received entire ground floor to an extent of 2000 sq. yds. but it is false that it was in December, 2005 and submitted that the complainant was in search of prospective buyer who would give the consideration of astronomical figure and waited for a long time in search of a buyer an ultimately he could get the buyer in the month of December, 2005 and stated that out of total constructed area of 10,992 sq. ft. inclusive of ground floor, the complainant has got only 2000 sq. ft. They contended that they give assurance of making further construction cannot be believed and also denied that the refund of security deposit to the opposite parties by the complainant was waived in lieu of the advocate’s office to be constructed on the top floor of the complex and denied that a Memorandum of understanding was executed on 05-12-2005 and submitted that if at all there is any such document, they contended that it was a fabricate one. They submitted that the complainant with an intention to evade the repayment of security deposit to opposite parties and in order to prevent and coerce the opposite parties from demanding the security deposit, the complainant had indulged in such kind of illegal activities including filing this complaint. They submitted after delivery of the complainant’s constructed area, initially the complainant postponed repayment of security deposit to the opposite parties stating that he would make payment from the sale proceeds and even after the same, he did not come forward for the same and when they demanded the same, he filed the present case. They further submitted that there was no proposal for any further construction at any point of time or it can be made possible for them to construct 5th floor and they failing to construct inspite of several requests does not arise. They denied the allegation that the complainant is still entitled for 34% sq. ft. of constructed with proportionate parking and the above said balance would fetch the complainant Rs.69,92,000/-. They submitted that at the time of entering into a development agreement, the complainant insisted the opposite parties to incorporate the clause giving exclusive rights on terrace to the complainant but as per the law of the land, the rights of the terrace, in the parking area and the common areas always vest with the governing body of the complex and neither the land owner nor developer can claim any exclusive right. They submitted that so far as the parking area in the complex is concerned, the same has been allotted to the occupiers of the complex and the same is now being under the control the welfare association of the occupiers of the building and an outsider can never make any claim. They denied the allegation that they failed to pay the arrears of property tax to MCH from the date of demolition of existing structures till handing over the constructed area to the complainant/purchasers and also denied that the complainant cleared the dues to the electricity, water and municipal authorities before handing over vacant possession to them and submitted that he failed to file the bills or receipts evidencing the same and in fact they were made to make payment relating to the period prior to delivery of possession. They submitted that the value of the property at the time of development agreement was not more than Rs.50,00,000/- and taking advantage of the superior position, the complainant alleged that it was worth Rs.1,00,00,000/- and he got a meager sum of Rs.40,00,000/-. They admitted that the complainant got issued a legal notice dated 14-6-2007 demanding them to handover the alleged share of constructed area or pay compensation and to comply with other demands and they submitted that in view of indifferent attitude of the complainant which they were facing from the beginning, they felt that issuance of notice was only to prevent the opposite parties from demanding repayment of security deposit and therefore they did not choose to give any reply and instead persuaded the complainant to refund the same. They denied the allegation that the complainant is deprived of enjoyment of his constructed area and that it could have fetched not less than Rs.50,000/- per month and that possession of 50% area should have been delivered to the complainant by the end of 09-5-2004 and that the complainant is deprived of possession for 40 months including damages @ Rs.50,000/- per month for 12 month and the complainant is entitled for 3,496 sq. ft. of constructed area and damages of Rs.12,50,000/-. They denied filing of cases before any court and also denied the alleged Memorandum of Understanding dated 05-12-2005 as the same was not filed before this Commission and they contended that the development agreement is of the year 2001 and the complaint is barred by limitation.
Opposite parties further submitted that the complainant has not refunded the refundable security deposit obtained by the complainant at the time of giving the property on development and the story of waiver of security deposit is concocted by the complainant to evade repayment to opposite parties and submitted that they never agreed for such waiver and the complainant is liable to repay the security deposit amount of Rs.12,50,000/-. They submitted in view of the complainant not paying the security deposit and delaying the same, they are entitled to pay interest at 24% p.a. They submitted that they delivered the vacant possession of ground floor portion complete in all aspects to the complainant in the second week of April, 2004 and thereafter only the complainant executed sale deeds in favour of the nominees of the opposite parties and the draft of the sale deeds was also prepared by the complainant. Hence they prayed for a direction to the complainant to refund the security deposit amount of Rs.12,50,000/- with interest at 24% p.a. from May, 2004 till the date of payment.
The complainant filed his affidavit reiterating the facts stated in the complaint whereas complainant No.3 filed his additional affidavit stating that the contents narrated in evidence affidavits of third parties i.e R.W.2 to R.W.9 are incorrect, false and concocted and stated that they are third parties to the complainant and as such their evidence cannot be given credence. He submitted that his father and opposite parties entered into development agreement on 02-2-2001 and as per clause 2 of the said agreement, opposite parties have agreed to construct and deliver 50% of the constructed area proportionately on each floor and as such the share of the constructed area is guided by clause 2 of the development agreement in terms of area and not value of the property. He further submitted that as per clause 14 of the Development agreement, the property to be developed was approximately valued at Rs.1.00 crore as on the date of agreement and submitted that they got 40% out of Rs.1.00 crore by sale of partial share in the year 2006. He submitted that considering the value of the land as on the date of agreement and returns from the developed property in the year 2006, that too when the value of real estates were on peak they were not given their due share. He submitted that his father was not allowed to go through the sale deeds executed in favour of R.W.2 and R.W.9 and submitted the said sale deeds specifically disclose that every pie of sale consideration has been paid to the opposite parties and gave the following particulars of areas extracted from the sale deeds:
S.No. Witness Date of sale deed Area of flat/share in land
1. R.W.2 28-1-2005 (F.No.101) 1148 sq.ft./40 sq. yds.
2. R.W.3 06-12-2004 (F.NO.102) 1100 sq.ft./40 sq. yds.
3. R.W.4 17-4-2004(F.No.201) 1148 sq.ft./40 sq. yds.
4. R.W.5 28-1-2005 (F.No.202) 1100 sq.ft./40 sq. yds.
5. R.W.6 28-1-2005(F.No.301) 1148 sq.ft./40 sq. yds.
6. R.W.7 23-4-2004 (F.No.302) 1100 sq.ft./40 sq. yds.
7. R.W.8 18-8-2004(F.No.401) 1148 sq.ft./40 sq. yds.
8. R.W.9 28-1-2005 (F.No.402) 1100 sq.ft./40 sq. yds.
9. Sale by complainant No.1 under 4 sale
Deeds dt.31-1-2006.
(First upper floor above stilt) 2080 sq. ft./104 sq.yds.
Total constructed area/land 11072 sq.ft./424 sq. yds.
S.No. Area of construction Land
1. Total area/land 11072 sq. ft. 550 sq. yds.
2. 50% area 5536 sq. ft.
Less: area allotted to complainant 2080 sq.ft.
3. Less:land allotted to purchasers: 424 sq. yds.
Remaining area of construction/land 3456 sq. ft. 126 sq. yds
to be allotted to complainants.
He submitted by taking the above facts, it can be safely concluded that the opposite parties have not complied with the terms of agreement resulting into deficiency of service and as such the opposite parties are liable to make good the loss suffered by the complainant. He denied the allegations about the sale of all portions by land owner/builder and attempts by the complainant to encroach and grab the portion of parking area are false and concocted in active connivance with the opposite parties with a view to cause loss to the complainants. He lastly submitted that the third party in the affidavits have no right or business to comment on the rights of the complainants and their unwanted assertions show that they are baised and filed the affidavits to cause loss to the complainant and prayed not to take into account their affidavits as they are not supported by piece of evidence and prayed to allow the complaint.
Ex.A1 is the Photostat copy of the Agreement of development between the complainant and opposite parties dated 02-3-2001. Ex.A2 to A9 are the copies of the sale deeds in favour in respect of flat No.s 101, 102, 201, 202, 301, 302, 401 and 402 respectively. Ex.A10 is Memorandum of understanding dated 05-12-2005. Ex.A11 is the copy of legal notice dated 14-6-2007. Ex.A12 to 15 are the copies of postal receipts. Ex.A16 is receipt under UCP. Ex.A17 and 18 are the postal acknowledgements. Ex.A19 is the complaint copy (unnumbered) dated 30-5-2007 given by Smt.Shobalatha against opposite party No.2 in XIV Addl.Chief Metropolitan Magistrate Court, Nampally. Ex.A20 is the copy of FIR dated 06-6-2007.
Opposite party No.2 filed his affidavit reiterating the contents stated in the counter and also relied on Exs.B1 to B14.
Affidavits of third parties i.e. R.Ws. 2 to 9 filed.
Exs.B1 to B8 are certified copies of sale deeds with respect to flat Nos.201, 302, 401, 102, 202, 101, 301, 402. Ex.B9 to B12 are certified copies of sale deeds of first upper floor (Parking) above stilt. Ex.B13 is copy of municipal permit and sanction plan for construction dated 09-10-2002. Ex.B14 is Market value certificate for the year 2001 dated 17-1-2008.
It is the case of the complainants that complainant No.1 entered into a development agreement Ex.A1 dated 2-3-2001 with opposite parties 2 and 3 and as per clause 2 of the said agreement, the opposite parties have to construct and deliver 50% of the total constructed area proportionately on each floor as per the municipal permit. Further as per clause 10 the parking area in the stilt floor should also be divided in the same ratio as 50%. As per clause 14 it was agreed that an advocate office admeasuring 1500 sq. ft. exclusively for the owners would be built and that this property would be approximately at Rs.1 crore as on the date of the agreement. The learned counsel for the complainants submitted that as per clause 18, opposite parties should obtain permission from MCH within 60 days from the date of delivery of the possession and the opposite parties shall complete the construction of the complex within a period of 18 months from the date of obtaining permission and as per clause 19 if the opposite parties fail to comply with clause 18, they have to pay damages at Rs.50,000/- per month for a period of 12 months. The learned counsel for the complainants further contended that the opposite parties should bear the stamp duty and registration charges for the development agreement as per clause 25 and the construction should be as per the schedule as per clause 30 of Ex.A1.
The learned counsel for the complainants further contended that the opposite parties made construction in deviation of the sanctioned plan, did not obtained permission within 60 days from 26-4-2001, did not deliver possession by the end of January, 2003, did not deliver 50% of the constructed area in each floor and also in the car parking area, yet in good faith the complainant co-operated with the opposite parties to sell all 8 flats in first, second third and fourth floors totally admeasuring 8,992 sq. ft. and executed and registered the sale deeds in respect of the said 8 flats. Exs.A2 to A9 are the copies of the sale deeds entered into by the land owner and the builder in which the entire sale consideration was paid to M/s.Poonam Constructions i.e. opposite party No.1. It is the further case of the complainants that the opposite parties have inducted their nominees into possession by receiving the consideration amount even though they did not deliver 50% constructed area. With the hope that opposite parties would make further construction on the 5th floor and deliver the same to the complainant, the complainants received the ground floor portion to an extent of 2000 sq. ft. out of the total constructed area of 10992 sq. ft. in the ground floor. The complainant claims Rs.69.92.000 for a deficit of 3,496 sq. ft. at the rate of Rs.2000/- per sft. and also seeks demarcation of parking area of 50% and damages of Rs.50,000/- per month together with loss of rent at Rs.20,000/- per month for 28 months and got issued a legal notice to that effect, Ex.A11. Ex.A12 to A15 are the postal receipts. Ex.A19 is the copy of the complaint filed by a third party against opposite party No.2 before the XIV Addl. Chief Metropolitan Magistrate. Ex.A20 is the FIR filed by the same complainant (as in Ex.A19) with the police.
The evidence affidavits R.W.2 to R.W.9 are all third party affidavits stating that he is an owner of a flat in the said complex, the complainants herein have no manner of right, title or interest in the complex nor any claim against the builder or the flat owners in the said apartment.
The learned counsel for the opposite parties 1 to 3 contended that the complainants are not consumers. We rely on the decision of the Apex court in Fakir chand Gulati V. Uppal Agencies Pvt. Ltd., reported in III (2008) CPJ 48 (SC) in which the apex court also relied upon Sujit Kumar Banerjee v. Rameswaran in Civil Appeal No.7577/2005 and held that when there is an agreement for construction of a residential building and delivery of agreed percentage of the constructed area to the land owners, the complainants are consumers and falls within the definition of ‘consumer’ of the Consumer Protection Act, 1986.
The learned counsel for the opposite parties admitted that as per clause 2 of the development agreement, Ex.A1, dated 2-3-2001, the opposite parties had agreed to construct and deliver 50% of the total constructed area proportionately on each floor and also the car parking area. He contended that as per the municipal sanctioned plan, the parties are entitled to construct a lesser area and the complainants were entitled only to a lesser extent with only 9 tenements and 9 parking places. They further contended that the complainant insisted for allotting the entire ground floor which was not possible and with respect to advocate’s office, there was no permission for construction of the same and therefore the proposal was mutually discarded. The opposite parties 1 to 3 have also admitted to clause 18, 19, 25 and 30 of Ex.A1 but contended that though the tenant was vacated on 26-4-2001, possession of the property was delivered to the opposite parties in the month of April, 2002 only and it took them 5 months time to obtain permission and sanction from the MCH and the sanction was issued only on 09-10-2002. The time of 18 months begins from 09-10-2002 and the opposite parties have complied with the construction and delivered the complainants’ share by the end of January, 2003.
Are the complainants entitled to the damages of Rs.50,000/- per month?
It is the case of the complainants that the construction was completed as per the terms of the development agreement and therefore they are entitled to damages of Rs.50,000/- per month. The relevant clauses of the development agreement (A1) are clauses 18 and 19 which read as follows:
18. The Developers shall complete the construction of the complex within a period of 18 months from the date of obtaining permission from MCH and shall deliver the 50% of the constructed area to the owner (as per schedule “B”) with the said stipulated time. Further, the Developer shall obtain the permission from MCH within 60 days from the date of delivery of the vacant position of the “A” schedule property by the owner.
19. If the Developer fails to construct the complex and deliver the 50% of the constructed area to the owner within the said stipulated time, the owner shall be entitled for Rs.50,000/- (Rupees fifty thousand only) per month from the Developer towards the compensation and damages for a period of 12 months only immediately commencing from the end of the said stipulated time.
We find force in the contention of the opposite parties that when sanction was issued only on 09-10-2002, the complainants cannot ask for damages of Rs.50,000/- per month when the construction was completed within 18 months from 09-10-2002, i.e. the date on which municipal sanction was accorded. As per clause 18 the opposite parties should hand over the completed construction within 18 months from this day i.e. 9-10-2002 and it was handed over to the complainants well within the stipulated time. Therefore, we are of the considered view that the opposite parties have handed over the completed construction to the complainants well within the stipulated time. For these reasons, the prayer of the complainants with respect to prayer of Rs.50,000/- per month and loss of rent is disallowed.
Are the complainants entitled for 50% of the area in the other floors?
It is the complainants’ case that as per clause 2 and 10 of Ex.A1, development agreement, and they are entitled to 50% of the constructed area. It is the opposite parties case that the complainants were handed over the entire ground floor portion of 2000 sq. ft. in April, 2004 itself and the complainants in their written arguments in para 9 have admitted that they received the ground floor portion of 2000 sft. and sold the entire portion to a prospective buyer in December, 2005. It is the further case of the complainants that out of the total constructed area of 11072 sq. ft. the complainants got only 2000 sq. ft. in the ground floor and 50% of that is 5536 sq. ft. whereas the complainants were allotted 2080 sq. ft. and therefore the remaining area of construction of 3456 sq. ft. should be handed over to the complainants. It is the opposite parties case that vide Exs.B1 sale deed and subsequent sale deeds executed by the complainants herein, it is clearly stated as follows at internal page 4 of Ex.B1 sale deed dated 17-4-2004.
‘whereas, as per the terms and covenants of the development agreement, it is agreed that the vendors/owner shall take the entire ground floor portion and all the remaining 4 floors shall be sold by the developer. As such the semi finished flat No.201 on the second floor has come to the share of the developer herein.
We observe from the record that the land owner and the builder had executed all the sale deeds in respect of the top floors in favour of the prospective purchasers as per Exs.A2 to A9.
Keeping in view the aforementioned terms of Ex.B1 sale deed, we find force in the contention of the opposite parties that the complainant No.1 registered the sale deeds in favour of the opposite party nominees, and now the complainants statement that they had not been delivered 50% area, having admittedly opted for the ground floor portion, is unjustified.
However, it is the further case of the complainants as per para 7of their written arguments that they were made to sign the sale deeds even without going through the contents (Exs.B2 to B9). It is their case that it was only later that they noticed that the opposite parties mentioned in the sale deeds that the consideration is received by the complainant. The learned counsel for the complainants vehemently denied that any sale consideration was received by them and that these sale deeds have been signed without noticing that aspect. With respect to this contention of the complainants, we are of the considered view that this Commission cannot go into the aspect of whether the complainants have received the amounts in each sale deed requires elaborate evidence since each money transaction has to be gone into with respect to each sale deed and involves complicated issues for which the complainants are directed to approach civil court. Moreover, as the complainants contend that they had executed the sale deeds without knowing the implications, then this Commission cannot adjudicate such matters as it deals with summary disposal only. We rely on the judgement of the apex court in Oriental Insurance Company Ltd. Vs. Muni Mahesh Patel reported in (2006) 7 Supreme Court Cases page 655 wherein it was held :
“Proceedings before the commission are essentially summary in nature and issues which involve disputed factual questions should not be adjudicated by the Commission. The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done. It was further required to examine whether in view of the disputed facts it should exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of law and not the commission.”
Is the opposite party entitled for refund of the security deposit and are the complainants entitled for the terrace rights?
We observe from the record that the complainants are relying on a Memorandum of Understanding i.e. Ex.A10, which the opposite parties denied and stated that it is an fabricated one. As per this Memorandum of Understanding on which the complainants is relying upon the opposite parties need not construct the advocate’s office admeasuring 1500 sq.ft. against which the first complainant shall not refund the deposit taken from opposite party No.2. It is clear form the MOU that it has been counter signed by opposite party No.2 and we do not see any reason to disbelieve the version of the complainants that when he himself has stated that in lieu of the advocate’s office, the refund of the security deposit is waived of. We also conclude that the opposite parties are not entitled for refund of the security deposit as they have counter signed Ex.A10 stating that in lieu of the Advocate’s office, the security deposit is waived of.
However, with respect to terrace rights, we are of the considered view that any direction stating that it is exclusively vested with the owner/complainants cannot be given by this Commission in view of the fact that terrace area is a part of common area as construed under Section 3 of THE ANDHRA PRADESH APARTMENTS (PROMOTION OF CONSTRUCTION AND OWNERSHIP ACT, 1987. Section 3(d)(ii) of the above Act reads as follows:
(ii) foundation, column, girders, beams, supporters, main walls, roofs, including terraces, halls, corridors, stairs, stairways, fire-escaptes and entrances and exits of the building:
Any such terms which are detrimental to the rights of the flat owners cannot be determined by an M.O.U, between the land owner and the builder for which the flat owner is not a party. Hence we observe that terrace rights cannot be decided by this Forum in a summary way, but needs to be adjudicated elaborately in detail before the civil court.
In the result this complaint this complaint is disposed of with the aforementioned directions i.e. the complainant is not liable to return the security deposit (Ex.A10, MOU). The complainants are not entitled for the damages of Rs.50,000/- per month as claimed by them as discussed supra and the complainants should approach the civil courts with respect to payments alleged to have been received by them as per the sale deeds filed herein and denied by the complainants. To reiterate, as the payments of each sale deed and each transaction has to be gone into and this involves voluminous evidence, we are of the considered view that for adjudication of this aspect, the complainants should approach the civil court. In the instant case, we are of the view that detailed evidence needs to be recorded and cross-examination is needed and only by way of affidavit evidence, details of payments made cannot be established. With respect to the 100 sq. yds. of land which the complainants allege that the opposite parties left untouched and which the opposite parties left for road widening and also the aspect of terrace rights can also be raised before the civil court. No costs. The complainants are entitled to seek exclusion of time spent before Fora under Section 14, Limitation Act.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.12-10-2010
//APPENDIX OF EVIDENCE//
For complainants For Opp.parties
Affidavit of 1st complainant. Affidavits of 2nd opp.party filed.
Addl. Affidavit of complainant No.3 filed. Affidavits of third parties i.e.
R.Ws. 2 to 9 filed.
Witnesses examined
For complainants For Opp.party
NIL NIL
Exhibits marked on behalf of complainants:
Ex.A1-Photostat copy of the Agreement of development between the
complainant and opposite parties dated 02-3-2001.
Ex.A2 to A9-Copies of the sale deeds in favour in respect of flat No.s 101,
102, 201, 202, 301, 302, 401 and 402 respectively.
Ex.A10-Memorandum of understanding dated 05-12-2005.
Ex.A11-Copy of legal notice dated 14-6-2007.
Ex.A12 to 15-Copies of postal receipts.
Ex.A1Receipt under UCP.
Ex.A17 and 18-Postal acknowledgements.
Ex.A19-Complaint copy (unnumbered) dated 30-5-2007 given by
Smt.Shobalatha against opposite party No.2 in XIV Addl.Chief
Metropolitan Magistrate Court, Nampally.
Ex.A20-Copy of FIR dated 06-6-2007.
Exhibits marked on behalf of opp.parties:
Exs.B1 to B8-Certified copies of sale deeds with respect to flat Nos.201,
302, 401, 102, 202, 101, 301, 402.
Ex.B9 to B12-Certified copies of sale deeds of first upper floor (Parking)
above stilt.
Ex.B13-Copy of municipal permit and sanction plan for construction dated
09-10-2002.
Ex.B14 is Market value certificate for the year 2001 dated 17-1-2008.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.12-10-2010
