BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD

C.C.NO.106 OF 2010

Between:

Chilukamari Chakrapani S/o Ch.Narsaiah
Aged about 42 years, Occ: Service

R/o Flat No.201, Vignaraj Enclare,
H.NO.12-5-65/5 Vijayapuri Colony,

Tarnaka, Secunderabad

                                                                                                                                                                                Complainant

        A N D

M/s Samskruthi Foundations
rep. by its Managing Partners
Sri Srinivas Kondai & Sri S.Ravinder Reddy
O/o H.No.12-5-55/1, Samskruthi Heaven
Vijayapuri, Tarnaka, Secunderabad-017

                                                                        Opposite party

Counsel for the Appellant                      Sri P.Pavan Kumar

Counsel for the Respondent                   M/s M.Vishwanath Reddy

          QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
               

                                                AND

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

MONDAY THE TWENTY SEVENTH DAY OF AUGUST

                                TWO THOUSAND TWELVE

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

                                        ***

1.             The complaint is filed seeking relief of completion of construction  of flat with all amenities, to deliver possession of the flat  and for payment of monthly rental as per agreement  and for payment of `10,00,000/- towards compensation.

2.             The averments of the complaint are that on his being informed by the partners of the opposite party firm that they acquired land admeasuring 2823 sq yards and obtained permission from the Municipality and HUDA for construction of residential apartments , had agreed  to purchase flat S-6 in second floor in Samskriti Prangan  admeasuring 1565 sft including common area together with undivided share of land admeasuring 49 sq. yards at Block No6, Babanagar colony, Nacharam, Uppal Mandal, Kapra Muncipality, Rangareddy district  for consideration of `31,00,000/-.The opposite party entered into agreement of sale with the complainant for sale of the flat  on 23.03.2009 on payment of an amount of `11,00,000/- towards advance sale consideration.

3.             The complainant availed loan of `20,00,000/- from the LIC Housing Finance Ltd (hereinafter referred to as LCIHFL) which  paid an  amount  of `18,00,000/- to the opposite party on 9.05.2009 towards balance sale consideration under the construction agreement. The opposite party executed sale deed  dated 8.06.2009 in favour of the complainant in respect of semi-finished flat and on the same day the opposite party promised to complete the construction with all amenities  by 30.06.2009 with a grace period of three months. Inspite of repeated demands from the complainant, the opposite party failed to complete the construction of the flat. The opposite party threatened the complainant and his wife not to request for completing the construction of the flat. The complainant lodged complaint on 20.02.2010 with the police, Lalaguda who had taken no action against the opposite party.

4.             The complainant addressed letter dated 14.10.2009 to the Manager, LICHFL not to release the balance sale consideration of `2,00,000/- till the possession of the flat is delivered to him  and on 21.10.2010 he addressed another letter to the LICHFL to stop payment of the amount till possession of the flat is handed over to him. The complainant issued reminder on 4.02.2010 to the LICHFL.  The LICHFL issued notice dated 9.04.2010 and 10.04.2010 informing him that the cheque issued by him was returned unpaid.  The LICHFL issued notice to the complainant requesting him to pay the EMIs and informed him that it is not concerned with the dispute between the opposite party and him.

5.             The LICHFL has the obligation to resolve the issue as it paid the amount to the opposite party on promise made by the opposite party that it would complete the construction of the flat within stipulated period. The LICHFL again presented the cheque which was bounced.  The bank charged Rs.100/- for dishonour of each cheque and `100/- for every stop payment instruction from the complainant. The complainant addressed letter dated 23.07.2010 to the LICHFL requesting it to consider holiday for payment of installments till possession of the flat is delivered by the opposite party.

6.             The complainant had sent letter dated 5.03.2010 requesting the opposite party to complete the construction and deliver possession of the flat to him. The opposite party replied claiming `6,00,000/- towards balance sale consideration and `5,00,000/- towards the amount due under promissory note. The opposite party informed the complainant in the first week of August,2010 that 90% of the construction work was completed and for completing the balance work the complainant was required to pay an amount of `3,00,000/- which the complainant refused to pay to the opposite party.

7.             The complainant got issued notice on 27.08.2010 calling upon the opposite party to complete the construction work and hand over the possession of the flat to him.  The opposite party in its reply demanded a sum of `11,00,000/- from the complainant. The complainant suffered financial loss and he has been paying rent for the rented house and interest to the LICHFL.

8.             The opposite party resisted the claim by filing counter and contending that the complainant paid an amount of `5,00,000/- as advance and not `11,00,000/- and promised to pay `6,00,000/- at the time of taking possession of the flat as also he arranged for balance consideration of `20,00,000/- from the LICHFL.  As per the understanding the opposite party accepted the amount of `5,00,000/- and the complainant taking advantage of the covenants of the agreement of sale claimed that he paid the amount of `11,00,000/-. The complainant has not produced receipts for the amount of `11,00,000/-. The complainant obtained promissory note for `5,00,000/- promising the opposite party that he would return it on delivery of the flat. The complainant is holding `11,00,000/- as security till delivery of possession of the flat.

9.             The complainant and his wife are litigants and the complainant filed complaint to avoid payment of `6,00,000/- to the opposite party. The complainant has to return the amount of `6,00,000/- and promissory note to enable the opposite party to complete the construction of the flat. Until the complainant has paid the balance sale consideration of `6,00,00/- and returned the promissory note, the opposite party is not able to deliver possession of the flat to him. Even after receiving reply from the opposite party to his notice, the complainant has not settled the matter and instead filed the complaint. It is contended that this Commission has no jurisdiction to entertain the complaint and the complaint is not filed within the period of limitation.

10.            The complainant has filed his affidavit and on behalf of the opposite party S.Ravinder Reddy filed his affidavit.  The documents filed have not been chosen to mark as exhibits.   

11.            The points for consideration are:

i)             Whether there was any deficiency in service on the part of the opposite party?

ii)           To what relief?

12.            POINT NO.1:  The opposite party entered into agreement of sale on 23.03.2009 with the complainant for sale  of the flat S-6 in second floor in Samskriti Prangan admeasuring 1565 sft including common area together with undivided share of land admeasuring 49 sq.yards at Block No6, Babanagar colony, Nacharam, Uppal Mandal, Kapra Muncipality, Rangareddy district  for consideration of `31,00,000/-.  The opposite party executed sale deed in favour of the complainant on 8.06.2009.

13.            Both the documents, i.e. the agreement of sale and the sale deed as well are not disputed. The amount mentioned in the agreement of sale is said to have been not paid by the complainant in view of understanding that the complainant can pay the sum of `5,00,000/- at the time delivery of possession of the flat. The complainant states that he paid the amount of `11,00,000/- mentioned in the agreement of sale. Apart from the dispute in regard to the amount mentioned in the agreement of sale, the opposite party contends that the complainant obtained promissory note for `5,00,000/- stating that he would hand over it at the time of taking possession of the flat.

14.            The complainant obtained a sum of `20,00,000/- from the LIC Housing Corporation Ltd subject to agreement that the LICHFL has lien on the flat under purchase. The opposite party executed document, “permission to mortgage’ in favour of the LICHFL that it would send the sale deed to the LICHFL. The LICHFL has paid an amount of `18,00,000/- to the opposite party. The complainant addressed letter dated 9.10.2009 informing the LICHFL that the opposite party has not completely carried out the work and it was requested to stop payment of balance sale consideration of `2,00,000/- to the opposite party till the complainant gives his consent for release of the amount. Thereafter, the complainant addressed two more letters requesting the LICHFL to take action against the opposite party for not carrying out the construction work of the flat.

15.            The complainant issued stop payment instructions to his banker not to honour the cheque issued by him to the LICHFL in discharge of the loan amount. The LICHFL through letter dated 11.05.2010 informed the complainant that the cheque issued by him was returned unpaid and requested him to pay the amount. The complainant in his reply dated 24.05.2010 referred to the notice sent by the LICHFL on various dates and expressed his readiness to pay the installments after possession of the flat is delivered to him. He reiterated his earlier made request to stop payment of the balance consideration till the opposite party has delivered possession of the flat to him.

16.            To the request of the complainant to extend holiday repayment of EMIs to his case, the LICHFL through letter dated 31-05-2010 informed him that it cannot interfere with the dispute between the opposite party and the builder. In regard to the progress of construction work the LICHFL stated as :

“ We are given to understand from our letter that Builder is not handing over the possession of flat to you.  It is very clear from the transaction that you have chosen the builder and purchased flat and subsequently applied with us for home loan.  After due diligence of papers given to us by you we have sanctioned loan of Rs.20 lacs against the purchase price of Rs.31 lacs as desired by you.  You have paid the margin money of Rs.11 lacs by cash to the builder.  It is also clear from the papers submitted to us duly signed by you that you are satisfied with the progress of work and requested us to release Rs.18 lacs.  Accordingly we have verified the progress and disbursed Rs.18 lacs as desired by you.  Subsequently you have approached us not to disburse further amount as you are not getting the possession from the builder due to some dispute best known to both of you.  We have marked in our file not to disburse further till you give the consent”.

17.            The opposite party informed the complainant in the second week of August,2010 that 90% of the construction work was completed and to complete the remaining work the complainant was required to pay an amount of `3,00,000/-. Thereafter, the complainant got issued notice in reply for which the opposite party claimed the amount of `11,00,000/- from the complainant. While the things stood so, the LICHFL filed case against the complainant claiming the balance EMIs and obtained order for possession as also put the flat for sale in auction on 24.08.2011 whereon the complainant paid an amount of `5,10,500/- to the LICHFL on 9.08.2011.

18.            As the LICHFL has not delivered possession of the flat to him, the complainant filed W.P.No. 27194 of 2011 before the Hon’ble High Court claiming  the action of the LICHFL in taking possession of the flat during pendency of complaint before this Commission is arbitrary and illegal. The opposite party said to have got impleaded in the writ petition.  The opposite party filed another writ petition in W.P.no. 22667 of 2011 challenging the action of the LICHFL  taking possession of the flat from it.  Subsequently, both writ petitions were dismissed as withdrawn.

19.            The LICHFL delivered possession of the flat to the complainant on 9.03.2012 in compliance of the order of the High Court. The opposite party executed document on 12.04.2012 that the work in the flat was completed and the complainant paid the entire amount due. The document read as under:

“This is to certify that Mr.Chilukamari Chakrapani, S/o Mr.Narsaiah has purchased a Flat bearing NO.S-6 admeasuring 1565 sft. Built up area, Second Floor, together with UD/S of land 49 Sq.Yds, at “SAMSKRUTHI PRANGAN” situated at Block No.6 Baba Nagar Colony, Nacharam, Uppal Mandal, Kapra Circle (GHMC), Ranga Reddy Dist., The work in the above flat has been completed in all respects and it is ready for occupancy and all the amount is paid by the occupant to the builder and there is no dues left for the same”.  

20.            Thus, the main relief for completion of construction and possession of the flat has been satisfied and the complainant does not survive for the purpose of the reliefs. The complainant has been residing in the flat. Yet the complainant claims completion of remaining work and issuance of allotment of parking letter and occupancy certificate from the GHMC without challenging the possession delivered of the flat and not raising objection to the document dated 12.04.2012 executed by the opposite party stating that it had no any right over the property which includes the common area and the undivided share. The ancillary reliefs are inherent part of the main relief which was granted by the High Court and at the time, the complainant has not raised objection as to the compliance of the order of the high court by the opposite party. The complainant has not raised any objection at the time of taking delivery of possession of the flat from the LICHFL as also when the opposite party handed over document certifying completion of entire work of the flat as also payment of total consideration by the complainant subsequent to the filing of the writ petition. In the circumstances, relief claimed is not left unsatisfied. As such the complaint is liable to be dismissed.

21.            In the result, the complaint is dismissed. The parties shall bear their own costs.

                                                                                MEMBER

                                                                                MEMBER

KMK*                                                                     Dt.27.08.2012

                                APPENDIX OF EVIDENCE

                                WITNESSES EXAMINED

For complainant                                                  For opposite party

NIL                                                                           NIL

                                EXHIBITS MARKED

                                          NIL

                                                                                MEMBER

                                                                                MEMBER