BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
C.C.No.10 OF 2012
Between
Sri Ravi Sreenivasa Rao S/o.late
Sri R.Venkatappaiah, age 56 years,
Occ:Business, R/o.Plot No.71/1,
SBH Colony, Tirumalagiri, Secunderabad-500 015. ..Complainant
And
M/s VASUDEVA REALTORS Pvt. Ltd.,
A company registered under the Company’s Act, 1956
With its office at H.No.1-61/BV/10/1, Khajaguda,
Nanakramguda Road, Golconda Post,
Cyberabad-500 008, rep. by its Managing Director
Smt.Devabhaktuni Sunitha W/o.Mr.Devabaktuni Prasad. Opp.party
Counsel for the Complainant : M/s Rao & Associates
Counsel for the Opposite party : Mr.A.Sudhakar Rao.
QUORUM:SMT.M.SHREESHA, HON’BLE Incharge President.
AND
SRI S.BHUJANGA RAO, HON’BLE MEMEBR.
THURSDAY, THE SEVENTH DAY OF FEBRUARY,
TWO THOUSAND THIRTEEN.
Order (Per Smt.M.Shreesha, Hon’ble Member)
***
The brief facts as stated in the complaint are that the complainant agreed to purchase the villa in plot No.19 admeasuring 300 sq. yds. with a constructed built up plinth area of 3,685 sq. ft. in the gated housing colony of opposite party named as “LLAITHA BLOOMFIELDS” at Khajaguda Village, Nanakramguda Road, serilingampally Mandal, R.R.District for a total sale consideration of Rs.50,00,000/- and that an amount of Rs.7,05,000/- would be towards the cost of the land and Rs.42,85,000/- would be towards the cost of construction of house building. The complainant submitted that out of the total sale consideration, he should make an initial payment of Rs.15,00,000/- towards booking advance and further payment of Rs.21,00,000/- for execution of Agreement of sale-cum-construction. It was also agreed that out of Rs.36,00,000/- an amount of Rs.7,05,000/- would be appropriated towards land component and Rs.28,95,000/- would be utilized for cost of construction and on receipt of Rs.36,00,000/-, the opposite party shall execute a registered sale deed in favour of the complainant duly transferring and conveying absolute ownership in favour of the complainant and start construction.
The complainant submitted that he paid Rs.10,75,000/- to opposite party vide cheque No.549331 dated 02-5-2005, Rs.4,25,000/- vide cheque No.549334 dated 3-5-2005 making a total of Rs.15,00,000/-. The complainant submitted that having received Rs.15,00,000/-, the opposite party insisted the complainant to issue an undated cheque for Rs.22,00,000/- in its name towards security for the payment of Rs.21,00,000/- and Rs.1,00,000/- towards registration charges. The complainant submitted believing the opposite party, he passed an undated cheque for Rs.22,00,000/- drawn on ICICI Bank, Karkhana Branch. The complainant submitted that he also paid Rs.21,00,000/- to the opposite party vide cheque No.553178 dated 08-10-2005 and opposite party acknowledged receipt of Rs.36,00,000/- and thereafter an Agreement of sale-cum-construction dated 05-11-2005 was executed between the complainant and the opposite party. The complainant submitted that as per clause 7 of the agreement, Rs.36,00,000/- was acknowledged by the opposite party and as per clause 8 of the agreement, the balance of Rs.14,00,000/- consideration has to be paid in a phased manner as under:
a) A sum of Rs.4,00,000/- to be paid on or before completion of foundation work
b) A sum of Rs.4,00,000/- to be paid on or before completion of RCC superstructure
c) A sum of Rs.3,00,000/- to be paid on or before completion of plastering, flooring, fixing of door/window frames
d) A sum of Rs.2,00,000/- to be paid on or before completion of sanitary and electrical work fixing of doors/windows, shutters, amenities, utilities.
e) A sum of Rs.1,00,000/- to be paid on or before taking delivery of house.
The complainant submitted that as per clauses 10 and 11 of the agreement, if he defaults in payment of instalments, he should pay interest @ 15% p.a. on defaulted instalments and the opposite party should complete the construction of the house and deliver possession within 18 months from the date of execution of sale deed or from the date of sanction of housing permission, and in case, the opposite party fails to complete the construction as per specifications stipulated in the agreement, opposite party shall pay an amount of Rs.30,000/- per month till the completion of construction and delivery of possession. The complainant submitted that as per clause 16, he should pay service charges, electricity connection charges, water connection charges, sales tax/Vat and any other charges as and when the opposite party expressly inform the complainant and that the opposite party should also maintain all specifications annexed to the agreement.
The complainant submitted that the opposite party having received Rs.36,00,000/- failed to execute and register the sale deed in his favour and therefore the complainant got issued a letter dated 01-3-2008 requesting to register the sale deed. The complainant submitted that upon payment of Rs.99,750/- towards stamp duty and registration fees, opposite party executed and registered sale deed dated 01-9-2006 for plot No.19 duly transferring and conveying title and on questioning about sale consideration in the sale deed being mentioned as Rs.10,50,000/- as against Rs.7,05,000/-, opposite party told that it was wrongly mentioned as Rs.10,50,000/- and that the cost of construction of the building would be adjusted to Rs.39,50,000/- making total cost of the plot and building at Rs.50,00,000/-.
The complainant submitted that the opposite party delivered the physical possession of the plot to the complainant and agreed that the clauses and covenants in the agreement dated 05-11-2005 shall continue to be in force and also he agreed that the opposite party carry on the construction work in the plot. The complainant submitted that he learnt that the opposite party mortgaged the total land under project with UCO bank to a tune of Rs.7,50,00,000/- as on 05-10-2005 and has overdue payment on principal and interest from 2004 onwards and the complainant vide email dated 20-2-2007 requested the opposite party to provide the details of loan repaid and balance to be paid but there was no response. The complainant submitted that he received an email from the opposite party on 24-2-2007 requiring the complainant to pay the service tax and VAT and in case the complainant’s fails to pay such tax, interest @ 13% would be levied and also another email dated 10-3-2007 informing the details of service tax and VAT payable at Rs.2,16,434/- and also informed that the construction of the first slab being completed and second slab was in progress and demanded to pay Rs.8,00,000/- towards instalments along with Rs.2,16,434/- towards service tax and VAT and also electricity charges, water connection charges. Thereafter the opposite party vide letter dated 27-3-2007 informed that the construction of the 1st and 2nd slabs are completed and requested the complainant to pay Rs.8,00,000/- towards 1st and 2nd instalments and thereby the complainant paid Rs.8,00,000/- vide cheque No.527916 dated 30-4-2007 towards the instalments and Rs.2,16,434/- vide cheque No.527917 dt.30-4-2007 towards service tax and VAT and opposite party issued receipts dated 01-5-2007 acknowledging payment of Rs.8,00,000/- and Rs.2,16,434/-.
The complainant submitted that vide his email dated 30-4-2007 he requested the opposite party to return the cheque amounting to Rs.22,00,000/- which was in the custody of the opposite party. The complainant submitted that when he visited the site, he was suggested to complete the remaining unfinished works, at his choice, and he would be given deduction in the cost and therefore vide email dated 12-12-2007, the complainant informed that he intended to carry certain works and requested the opposite party to make necessary calculations and give invoice thereof. The complainant submitted that the opposite party issued an email dt.18-12-2007 providing measurements and total built up area and demanded further payment of Rs.62,000/- towards TOTO parry ware upgradation and solar water system while informing the drawings of club house and swimming pool were not received and the construction of pending works in the community would be completed by February, 2008. Thereafter vide email dated 31-12-2007, the opposite party once again demanded payment of Rs.62,000/- towards TOTO parry ware upgradation and solar water system. The complainant vide his email dated 02-1-2008 informed the opposite party that the construction in the bath room and installation of solar water heater systems would be done by him and thereafter received an email dated 01-3-2008 from Mr.Srinivasu Sajja, an employee of the opposite party requesting for payment of Rs.5,00,000/- purporting to be outstanding balance towards 3rd and 4th instalments and in reply the complainant issued two emails dated 04-1-2008 to Mr.Srinivasu Sajja and Managing Director of opposite party that out of Rs.14,00,000/- about Rs.10,17,000/- has already been paid till date and that an amount of Rs.3,83,000/- only was balance and payable to the opposite party and even otherwise the demand of Rs.5,00,000/- is contrary to the clauses 8(c) and 8(d) of the agreement.
The complainant further submitted that since the scope of the work also is altered, there would be difference of taxes and the opposite party should get back with the information for payment and vide email Mr.Venugopal, opposite party’s site engineer gave estimation of the material for completing the remaining works and the complainant purchased the said material and dumped the same in the site and moved his workers to the site and started internal works. The complainant vide his email dated 05-1-2008 requested the opposite party to deliver the house before February, 2008, that club house and swimming pool not being constructed, that inspite of several requests, receipt for Rs.2,16,434/- in respect of payment of service tax and VAT not being given to the complainant and the said amount be adjusted towards future instalments due and he also requested to provide details of all house owners to enable them form a welfare association. The complainant submitted that inspite of repeated requests, opposite party failed to return the undated cheque bearing No.513670 for Rs.22,00,000/- and therefore the complainant issued stop payment letter dated 07-1-2008 to the Manager, ICICI bank, Karkhana branch and also informed the said fact to the Manager of the opposite party. The complainant submitted that the opposite party having accepted to the complainant carrying the remaining works, it issued an email dated 07-1-2008 informing the standard deductions for the respective incomplete construction would be Rs.2,93,084/-. The complainant vide email dated 08-1-2008 again clarified that the balance unfinished works would be done by him and called upon the opposite party to know the final deduction and also by email dated 09-1-2008 further requested to provide the details of total deductions.
The complainant submitted that on 19-1-2008 he went to the site along with electrical contractor and was shocked to see that the house was locked and when he enquired from Mr.Venugopal of the opposite party, he was informed that at the instance of the opposite party, the house was locked. The complainant submitted that on 23-1-2008, the opposite party vide email asked the complainant whether he was going for company standard/upgrade/other vendor material and also requested the complainant to dump the material at the site on or before 30-1-2008 and the complainant vide email dated 23-1-2008 stated that he already informed that he would carry the balance incomplete works and requested the opposite party to give total deductions and vide email dated 04-1-2008, he also informed the opposite party that some of the material have been dumped in the site and his workers also moved and there were discussions and emails in respect of the same and now again asking whether the complainant is going for company standard/upgrade is nothing but a mischievous stand of the opposite party and the complainant vide email dated 23-1-2008 informed that the opposite party would be responsible for the security of the material already dumped in the site as the opposite party on its volition locked the house and the complainant is not in a position to dump balance material in the site.
The complainant submitted that vide email dated 24-1-2008, the complainant reiterated the minutes of the meeting on 23-1-2008 wherein the opposite party admitted that it availed loan of Rs.7,50,00,000/- from bank mortgaging the entire land under the project and a balance of Rs.2,00,00,000/- is payable to the bank and that the opposite party did not obtain any permission for construction of club house and swimming pool. Thereafter the complainant got issued two registered letters dated 28-1-2008 stating that the house was incomplete and that an amount of Rs.10,16,434/- was paid leaving a balance payment of Rs.3,83,566/- and the scope of standard deductions and cost of remaining works being estimated at Rs.3,29,084/- there shall be a balance payment of Rs.54,832/- payable to the complainant. The complainant submitted that invoking clause 11 of the agreement, he demanded the opposite party to pay Rs.30,000/- per month with effect from 01-2-2008 and called upon the opposite party to leave the premises to enable him to complete the remaining unfinished internal work from 04-2-2008. The complainant also got issued two separate letters dated 29-1-2008 calling upon the opposite party to return the undated cheque for Rs.22,00,000/- and also to provide the approved building drawing, work layouts, NOC or loan clearance letter from their banker etc., The complainant submitted that on 31-1-2008 he received a letter dated 28-1-2008 issued by the opposite party with all irrelevant contents and informed that the opposite party would proceed with the leftover works. Having received the said letter, the complainant issued a reply registered letter dt.02-2-2008 to the opposite party denying the allegations and called upon him to complete the pending works before 04-2-2008 to enable him to go for ‘Gruhapravesham”. The complainant submitted that instead of completing the balance works to enable him to reside therein, the opposite party issued a letter dated 6-2-2008 calling upon the complainant to pay Rs.44,18,940/- and the complainant submitted that he was astonished to see the break up for Rs.44,18,940/- as it was with a view to make wrongful gain for them and cause wrongful loss to the complainant and thereafter he gave sequence of mails and made personal visits to the office of the opposite party but it paid a deaf ear and the incomplete works were not completed.
The complainant submitted that the opposite party got issued a legal notice dated 29-6-2009 and in the said notice it was admitted that the total amount of Rs.46,16,434/- was paid by 30-4-2007 leaving a balance of Rs.3,83,566/- and stated that as the complainant expressed difficulty to pay consideration under the agreement, he borrowed a sum of Rs.22,00,000/- from opposite party and as against receipt of alleged loan amount, the complainant executed a promissory note and also issued a cheque for the amount of Rs.22,00,000/- and demanded payment of Rs.44,18,940/- along with interest @ 24% p.a. from 06-2-2008. The complainant submitted that having received the said notice, he issued a reply letter dated 28-7-2009 denying the fact that he borrowed loan of Rs.22,00,000/- from the opposite party nor issued the cheque or that he executed promissory note and explained the circumstances under which the cheque fell to the hands of the opposite party and finally called the opposite party to settle the matter failing which he will be constrained to take legal action.
The complainant further submitted that vide email dated 04-8-2009 the Lalitha Bloomfields Home Owners Association (‘LBHOA’ for short) also called upon the opposite party to complete 24 pending works and the opposite party vide its email dted 01-4-2010 while making aspersions against the complainant, admitted that there was delay and inconvenience with respect to water supply network and change in size and also completion of club house. The complainant got issued a email dt.22-11-2010 to the opposite party to complete the pending works, transfer of funds, accounts, management, possession in respect of the individual owners and also got issued another email dated 14-1-2011 calling upon the opposite party to let know the balance amounts to be paid to take over the house in as-is-where is condition after deducting the charges for works not carried out and inspite of receiving the said email, the opposite party is neither completing the works nor allowing the complainant to complete the works and every time the workers of the complainant are being threatened and driven away causing lot of mental agony. The complainant received a demand notice for payment of property tax in respect of plot No.19 from GHMC Serilingampally and the complainant paid the taxes for the year 2009 and also paid property tax to GHMC for 2010 and 2011 and also deposited with ‘LBHOA’ towards corpus fund and paid Rs.1,00,000/- towards upgradation and also paying monthly maintenance charges. The complainant submitted that he was called by the opposite party to meet Mr.Srinivas Bhudhena, and Mr.Srinivas, Advocate and subsequently Mr.Srinivas Reddy, Mr.Goud and Mr.Raghava reddy claimed to be politicians and finally in the last week of September, 2011, the complainant was called by one Mr.Kishan Naik, a common friend for discussions and it was agreed that corpus fund of Rs.1,00,000/- and upgrade fund of Rs.2,00,000/- be paid directly to the association by the complainant and sales tax and VAT shall be paid by the complainant directly to the concerned departments and balance works shall as ascertained and valued and the value of balance works shall be deducted from the total consideration, interest on the balance works @ 12% p.a. shall be paid from 01-4-2011, the date of handing over villa in the community by the opposite party. The complainant submitted though he was against payment of interest at the instance of Kishan Naik, he agreed for the above arrangement and in compliance whereof, he paid corpus fund of Rs.1,00,000/- and up gradation fund of Rs.1,00,000/- directly to the association and requested the opposite party to provide the estimation of the unfinished works and its value and to complete the construction as he wanted to live with his daughter and son before they left to abroad but the opposite party did not complete the construction. The complainant submitted that he also expressed his willingness to pay the balance mount of Rs.90,482/- and as per the agreement the total consideration was Rs.50,000/- and an amount of Rs.44,00,000/- was paid and a balance of Rs.6,00,000/- was to be paid, that apart he paid Rs.2,16,434/- towards sales tax and VAT which was not paid to the concerned departments and with held by the opposite party and therefore the complainant required the opposite party to adjust Rs.2,16,434/- out of Rs.6,00,000/- and thus a balance of Rs.3,83,566/- fell due and payable to the opposite party. The standard deductions estimated by the opposite party came to Rs.2,93,084/- and the balance payable by the complainant is Rs.90,482/- and the complainant requested the opposite party to accept the payable amount and requested to leave the construction site in as is where is condition to enable him to complete the balance works but the opposite party evaded the same. The complainant submitted that on 02-1-2012 some unknown person by name Mr.Satynarayana tried to enter the house on the pretext that he is the security person and the security people at the entrance gate of the community stopped him and informed the complainant and thereby the complainant went to the house and informed Mr.Satyanaryana to leave the house since he was trying to somehow trespass into the house and also lodged a police complaint with Raidurg Police station and the police intervened and thwarted the attempts of Mr.Satyanarayana. Thereafter again on 3-1-2012, the opposite party pasted their letter head stating that the house is under their supervision and the very action of the opposite party pasting the above suffice the illegal attempts to cause wrongful loss to the complainant and therefore he was constrained to approach this Commission. The complainant submitted that clause 11 of the agreement contemplates that the construction should be completed within 15 months with a grace period of 3 months i.e. in total 18 months from the date of execution of sale deed or sanction of permission and in pursuance of the said clause, 18 months expired on 01-2-2008 in pursuance of sale deed dt.01-9-2006 or 19-5-2008 from the date of sanction of building permission dt.19-12-2006 and therefore the complainant has to complete the construction latest by 19-5-2008 and inspite of the complainant requesting the opposite party to complete the construction, it failed to deliver the duly completed house within the stipulated time which amounts to deficiency in service. Hence the complaint for a direction to the opposite party to direct the opposite party to deliver the scheduled mentioned house in as-is-where-is condition to the complainant, to pay Rs.7,09,518/- towards costs of the completion of remaining works, to direct the opposite party to pay Rs.13,20,000/- towards monthly payment, to pay Rs.5,00,000/- to the complainant towards compensation for causing mental agony and deficiency in service and pay costs of Rs.20,000/- towards costs.
Written version of opposite party not filed inspite of granting time and further time was refused by order dated 25-4-2012.
Affidavit evidence of the complainant filed reiterating the facts stated in the complaint and relied on Exs.A1 to A53.
Opposite party filed affidavit evidence of its Managing Director resisting the complaint. She admitted that the opposite party is the owner of land admeasuring Ac.5.07 guntas in Sy.No.4 of Khajaguda village and that the complainant agreed to purchase plot No.19 admeasuring 300 sq. yds. With built up plinth area of 3,685 sq. ft. and the total consideration was Rs.50,00,000/-. Opposite party submitted that the complainant deliberately suppressed the fact that apart from the consideration amount, he has to pay the statutory and other charges levied by the Government and other incidental charges. Opposite party denied that upon receipt of Rs.36,00,000/-, it shall execute a registered sale deed in favour of the complainant duly transferring and conveying ownership of the land and in fact it has to execute a sale deed only after receiving the full and final payment including the statutory and other incidental charges and penal interest for delayed payments. Opposite party denied the contention that after receiving Rs.15,00,000/- it insisted the complainant to issue undated cheque in its name towards security for payment of Rs.21,00,000/- and Rs.1,00,000/- registration charges and believing the same the complainant issued undated cheque bearing No.513670 for Rs.22,00,000/- and submitted that it never received any undated cheque much less a cheque bearing No.513670 for Rs.22,00,000/- drawn on ICICI bank, Kharkhana branch towards security payment of Rs.21,00,000/-. Opposite party submitted that the complainant had to pay interest @ 15% p.a. on the amounts defaulted besides as per agreement of sale cum construction and also as per the understanding, if the complainant fails to pay the balance instalments, opposite party company is entitled to cancel the agreement. It submitted that the complainant is at fault by not paying the instalments and cannot invoke clause 11 of Agreement of sale cum construction dated 5-11-2005. Opposite party also denied that it delivered physical possession of the plot to the complainant and in fact the possession of the house including plot is not delivered till this date as the complainant committed default in payment of consideration amount and that out of the total 45 houses in the said gated community, the delivery of possession of the respective houses was made through valid documents to all other owners but not to the complainant and it had never issued ‘delivery of possession of villa’ to the complainant herein. Opposite party submitted that the complainant has nothing to do with the loan availed by the opposite party company with UCO bank and submitted that if the complainant fulfils his obligations under the agreement, it is ready to handover the house. Opposite party submitted that the complainant paid all statutory charges and admitted that the complainant requested vide email dated 12-12-2007 that he intended to carry certain works and requested it to make necessary calculations and give the invoice and the opposite party company executed the additional works as suggested by the complainant and the cost of additional works is arrived at Rs.8,36,343/- and the complainant was requested to pay the said amount immediately but he did not pay the said amount till date. Opposite party submitted that the complainant had to pay Rs.6,00,000/- out of the total consideration towards the construction cost which was also admitted by him in para 36 of the complaint and has also to pay Rs.8,36,343/- towards the change of internal designs.
Opposite party submitted that the complainant failed to pay the balance consideration amount of Rs.6,00,000/- and Rs.8,36,343/- towards the additional internal designs and the total amount to be received from him is Rs.14,36,343/- and the aforesaid amount is due by the complainant from 06-2-2008 and the opposite party informed the complainant to pay the said amount and take possession of the schedule property but the complainant did not come forward and as such he did not discharge his part of the agreement and thereby it was constrained to spend an amount of Rs.2,00,000/- towards maintenance and other charges and the total amount due by the complainant is Rs.16,36,343/- and the complainant needs to pay interest @ 15% per annum on the amount of default for the period of delay as per stipulation 10 of the agreement from 06-2-2008 and the complainant has to pay Rs.24,98,147/- including interest. Opposite party further submitted that the complainant and his henchmen who is associated with antisocial elements are trying to enter the scheduled property without paying the due amount and also tried to occupy the schedule property forcibly on 02-1-2012 illegally without paying the due amount and therefore it lodged a complaint to SHO, Rayadurg Police Station on 06-1-2012 and a case in Crime No.10/12 for an offence under Section 427 and 447 of IPC were registered.
Opposite party submitted that it already cancelled the agreement of sale cum construction dated 05-11-2005 and requested the complainant to co-operate for cancellation of registered sale deed relating to plot No.19 after taking the amounts paid by him minus cancellation charges and the complainant is not coming forward and thereby the opposite party was constrained to file a suit for cancellation of the sale deed and other relief’s. Opposite party submitted that the complainant is a chronic defaulter and failed to discharge his part of the contract under agreement of sale-cum-construction and hence the said agreement was cancelled and as such there is no privity of
contract between the complainant and the opposite party. Opposite party submitted that as per the covenants of agreement, it has got every right to cancel the agreement if the other party fails to fulfil its obligation and as the complainant did not fulfil the stipulations under the agreement, it has rightly cancelled the agreement and informed him to co-operate for cancellation of the sale deed dated 01-9-2006. Opposite party submitted that the complainant is not entitled to possess plot No.19 with triplex house unless he discharges his obligations under the agreement of sale and this Commission has no jurisdiction to entertain the complaint and only civil court has to adjudicate the lis and it is a contractual obligation between the parties and the party who pleads breach of contract by other person has to file a civil suit. Opposite party further submitted that the complainant is not a ‘consumer’ as defined in Section 2(e) of the Consumer Protection Act, 1986 and that there is no deficiency in service and prayed for dismissal of the complaint with costs and relied on Exs.B1 to B5.
The brief point that falls for consideration is whether there is any deficiency in service on behalf of the opposite party and if the complainant is entitled to the relief’s sought for in the complaint?
The facts not in dispute are that the complainant purchased a Villa in Plot No.19 admeasuring 300 sq. yds. with a built up area of 3685 sq. ft. for a total sale consideration of Rs.50,00,000/- out of which Rs.7,05,000/- was towards the plot cost and Rs.42,95,000/- is towards the cost of the building. It is the complainant’s case that he paid an amount of Rs.10,75,000/- evidenced under Ex.A2 dated 2-5-2005 and Rs.4,25,000/- evidenced under Ex.A3 dated 3-5-2005. The complainant also gave an undated cheque for Rs.22,00,000/- to the opposite party drawn on ICICI bank and thereafter also paid Rs.21,00,000/- vide cheque No.553178 dated 8-10-2005 to the opposite party. Having received Rs.36,00,000/- the opposite party executed an agreement of sale cum construction dated 5-11-2005 evidenced under Ex.A4 wherein it is stated that Rs.7,05,000/- is consideration towards the land and Rs.42,95,000/- is the consideration towards the building. The opposite party also acknowledged the receipt of Rs.36,00,000/- from the complainant and Ex.A4 states that a balance of Rs.14,00,000/- should be paid in stages to the opposite party and the opposite party shall handover possession of the same within 15 months with a grace period of 3 months from the date of registration of the plot evidenced under Para 11 of Ex.A4 agreement. This paragraph also specifies that the opposite party shall pay the complainant an amount of Rs.30,000/- per month for any delay. Thereafter Ex.A5 is the letter addressed by the complainant to the opposite party seeking registration of the plot in his name and thereafter the opposite party registered the land in favour of the complainant vide Ex.A6 dated 01-9-2006. The complainant thereafter learnt that the opposite party mortgaged the total land to UCO bank for an amount of Rs.7,50,00,000/- as on 05-10-2005 and has become overdue on the payments. The complainant sent an email vide Ex.A7 on 20-2-2007 requesting the opposite party to provide the details of the loan repaid. Exs.A8 and A9 are the emails sent by the opposite party to the complainant stating that the complainant should pay an amount of Rs.2,16,434/- towards service tax and VAT and Rs.8,00,000/- towards instalments apart from electricity and water connection charges. Exs.A11 and A12 are the receipts issued by the opposite party to the complainant on 01-5-2007 for Rs.8,00,000/- and Rs.2,16,434/- respectively. The complainant vide Ex.A13 dated 30-4-2007 wrote to the opposite party to return the cheque amounting to Rs.22,00,000/- which was in the custody of the opposite party. Thereafter the complainants visited the site and found many unfinished works and vide Ex.A14 i.e. on 12-12-2007 addressed an email to the opposite party that he intended to carry certain works and required the opposite party to make the necessary calculation and give an invoice for the same.
The opposite party issued a reply email evidenced under Ex.A15 on 18-12-2007 providing the measurements and total built up area and demanded a further sum of Rs.62,000/-. The complainant vide Ex.A17 dated 2-1-2008 informed the opposite party that he would instal the solar water heater system and thereafter the complainant received a reply from the opposite party on 01-3-2008 Ex.A18 asking him to pay an amount of Rs.5,00,000/- towards 3rd and 4th instalments for which the complainant replied in the same annexure that he already paid Rs.10,17,000/- out of Rs.14,00,000/- and therefore is due only Rs.3,83,000/-. The complainant submits that he started the internal works after giving an estimation to the opposite party’s Site Engineer, one Mr.Venugopal. The complainant also addressed an email dated 5-1-2008 with respect to delivery of the house, the completion of the swimming pool and club house, the receipt for Rs.2,16,434/-. The complainant vide Ex.A21 dated 7-1-2008 issued ‘stop payment request’ to the branch Manager, ICICI Bank and the opposite party vide Ex.A21A informed that the standard deductions for the incomplete items would be Rs.2,93,084/-. The complainant vide Exs.A25 and A26 informed the opposite party about the material in the site and the complainant also filed Ex.A27 letter to the opposite party listing out the deficiencies. The complainant thereafter got issues two legal notices dated 28-1-2008 Exs.A27 and A28 stating that the house was incomplete and only a balance of Rs.3,83,566/- is to be paid and after deducting the remaining works which is estimated at Rs.3,29,084/- only a balance of Rs.54,832/- is payable. The complainant invoked clause 11 of the agreement and demanded that the opposite party pay an amount of Rs.30,000/- per month with effect from 01-2-2008. The complainant issued Ex.A29 letter demanding the opposite party to return the cheque for Rs.22,00,000/-.
The complainant got issued two more registered notices Exs.A30 dt.29-1-2008 seeking approved building drawing and layout drawing, loan clearance letter from the bank and NOC from the bank and Ex.A31 is the reply from opposite party to the complainant dated 28-1-2008 that they received the letters from the complainant that he has not cleared the balance for pending works and his request for alterations to designs and specifications has effected the progress of the work and that they will proceed with the left over work as per agreement and complainant replied vide Ex.A32 dated 31-1-2008 and thereafter opposite party replied vide Ex.A33 dated 6-2-2008 and called upon the complainant to pay Rs.44,18,940/-. The opposite party got issued a legal notice vide Ex.A34 dated 29-6-2009 stating that the complainant had taken a loan and executed a promissory note and issued a cheque for Rs.22,00,000/- and therefore demanded Rs.44,19,940/- together with interest.
The complainant on receipt of this legal notice dated 29-6-2009 issued a reply vide Ex.A35 dated 28-7-2009 stating that he never borrowed any loan and that the undated cheque was in the hands of the opposite party before the execution of the sale deed and called upon the opposite party to complete the 24 pending works in the project vide Ex.A36 dated 4-8-2009. The complainant submitted that he paid the property tax to GHMC for the years 2010 and 2011 vide Exs.A40 and A43 and vide Ex.A44 and also paid Rs.1,00,000/ towards corpus fund and Rs.1,00,000/- to the Home Owner’s Association. The opposite party did not provide the estimation of the unfinished works despite several requests and the complainant even asked the opposite party to give him possession so that he would complete the remaining works and vexed with the attitude of the opposite party he was ready and willing to pay Rs.90,482/- towards the balance amount as the deductions estimated by the opposite party came to Rs.2,93,084.
While so, on 02-1-2012 an unknown person by name Satyanarayana tried to trespass into the complainant’s house and the complainant filed a police complaint vide Ex.A37. On 03-1-2012 opposite party vide Ex.A38 stated that the house is under their supervision and that trespassers would be prosecuted. It is the complainant’s case that the opposite party did not adhere to clause 11 of the agreement i.e. 18 months expires on 01-2-2008 from the date of sale deed dated 01-9-2006 and 18 months from the date of final sanction expires on 21-12-2007 and viewed from any angle, the opposite party did not complete the construction even by 19-5-2008 and therefore the complainant seeks direction for payment of Rs.13,20,000/- i.e. Rs.30,000/- per month from 19-5-2008 till the date of filing of the complaint and also compensation of Rs.5,00,000/- in addition to the costs for completion and seeks direction to the opposite party to deliver the house in as-is-where-is condition.
It is the contention of the opposite party that the complainant did not pay the statutory charges and other charges levied the Government and the complainant has to pay interest at 15% p.a. on the amounts of defaulted instalments. In para 9 of their affidavit, the opposite party admits that the complainant vide email dated 12-12-2007 requested that he intended to carry certain works and required the opposite party to make the necessary calculations and give the invoice for the same. It is the opposite party’s case that they executed the additional works as suggested by the complainant for Rs.8,36,343/- and the complainant has to pay a balance sale consideration of Rs.6,00,000/- in addition to Rs.8,36,343/- and also an amount of Rs.2,00,000/- towards maintenance and other charges. The opposite party also calculated interest at 15% on the due amount of Rs.14,36,343/- from 6-2-2008 and arrived at Rs.8,61,804/- and submit that the total dues by the complainant is Rs.24,98,147/- and when the complainant tried to trespass the property they filed a police complaint vide Ex.B5.
The opposite party submits in para 14 of their affidavit that they have cancelled the agreement of sale dated 5-11-2005 and sought for cooperation of the complainant for cancellation of the registered sale deed and also filed a suit for cancellation of the sale deed as the complainant is a chronic defaulter and did not adhere to the terms of the agreement and submit that this Commission does not have jurisdiction to entertain the complaint.
The opposite party relied on Exs.B1 to B5 which include the Agreement of sale, Sale deed etc., Ex.B3 is a letter addressed by the complainant to the opposite party on 25-8-2006 seeking certain changes to the house plan which is prior to the execution of the sale deed which was done on 01-9-2006. The opposite party also filed Ex.B4 an email dated 12-12-2007 given by the opposite party to the complainant asking to pay instalments immediately lest the construction would be stopped.
We observe from the record that the complainant has filed the agreement of sale Ex.A4 dated 5-11-2005 in which the opposite party acknowledged payment of Rs.36,00,000/- and the balance of Rs.14,00,000/- was to be paid in a phased manner. Thereafter the complainant also paid Rs.2,16,434/- towards service tax and VAT and Rs.8,00,000/- towards the first and second instalment on 01-5-2007 evidenced under Exs.A12 and A11 respectively. It is also not in dispute that the complainant requested the opposite party vide Ex.A14 dated 12-12-2007 that he would carry out the remaining unfinished works and requested the opposite party to prepare an invoice for the same. Thereafter there was correspondence between the complainant and the opposite party vide Exs.A15 to A36 with respect to payments demanded by the opposite party i.e. Rs.62,000/- towards upgradation (Ex.A16) Rs.2,93,000/- towards standard deductions (Ex.A21(a) and Rs.44,18,940/- (Ex.A33). We observe from the record that the complainant repeatedly requested the opposite party to return the undated cheque for Rs.22,00,000/- and also got issued a stop payment letter dated 7-1-2008 and vide Ex.A21 requested the bank to stop payment and gave instructions to the Branch Manager, ICICI Bank. It is pertinent to note that Ex.A29 dated 29-1-2008 is the notice got issued by the complainant to the opposite party in which he has specifically referred to the issuance of Rs.22,00,000/- and sought for return of the undated cheque. In their reply to the email (Ex.A28), dated 28-1-2008 the opposite party vide Ex.A31 on the same day i.e. 28-1-2008 replied with respect to alterations to the designs but was silent about the cheque for Rs.22,00,000/-. Thereafter on 06-2-2008 vide Ex.A33 the complainant received a letter from the opposite party demanding an amount of Rs.44,18,940/- and he also received a legal notice Ex.A34 dated 29-6-2009 stating that an amount of Rs.22,00,000/- was borrowed by him towards loan which was not repaid by the complainant and thereafter an amount of Rs.44,18,940/- was being demanded from the complainant. We observe from the record that the opposite party failed to establish that the complainant had taken this loan and did not file any documentary evidence, namely, a loan agreement or a promissory note or any affidavit in support of its case. For the first time after repeated letters and emails from the complainant, it had baldly stated in Ex.A34 on 29-1-2009 that the complainant has borrowed this amount of Rs.22,00,000/-. The complainant has vehemently denied that the cheque for Rs.22,00,000/- was against a loan and also denies that the loan amount attracted a interest of Rs.7,82,597/-. Therefore, we are of the considered view that the undated cheque bearing No.513670 for Rs.22,00,000/- given by the complainant to the opposite party cannot be taken towards loan amount and it is the liability of the opposite party to return the cheque which has been given by the complainant to the opposite party prior to execution of sale deed. It is also not in dispute that the opposite party did not complete the construction of the house and the complainant requested on 12-12-2007 that he himself would complete the construction. The contention of the opposite party that the complainant has to pay Rs.44,18,940/- is not substantiated by any documentary evidence and his demand for payment of the amount with 24% interest from 6-2-2008 is unsustainable. Clause 11 of the agreement states as follows:
The vendor shall complete the construction of the building and shall hand over possession of the same within 15 months (Fifteen months) with a grace period of 3 (three) months from the date of registration of plot and sanction of housing permission from HUDA/CDA subject to unforeseen contingencies such as natural calamities or statutory prohibitions etc. In case of failure the vendor shall pay the purchaser an amount of Rs.30,000/- per month for the period of delay.
Taking into consideration 18 months from the date of sanction of final layout i.e. 21-7-2006 and therefore invoking clause 11 of the agreement, the complainant is entitled for Rs.12,90,000/- i.e. Rs.30,000/- from 19-5-2008 till the date of filing of this complaint. The submission of the opposite party that a civil suit has been filed is not supported by filing a copy of the civil suit and has not even mentioned the number of the civil suit. The complainant submits vide his email dated 4-1-2008 that out of Rs.14,00,000/- he has paid an amount of Rs.10,50,000/- and since the scope of the work is altered there would be difference of taxes. When the opposite party addressed dated 4-1-2008 demanding Rs.5,00,000/- towards 3rd and 4th instalments, the complainant replied on 5-1-2008 and 7-1-2008 requesting the opposite party to adjust Rs.2,16,434/- paid by him with respect to service tax and VAT and also Rs.2,93,084/- which is the standard deduction for the respective items towards remaining works. It is the complainant’s case that even if the remaining works are estimated at Rs.8,00,000/- and if the balance sale consideration as per the agreement i.e. Rs.90,482/- is deducted, still the opposite party would be liable to pay Rs.7,09,518/-. Keeping in view the facts and circumstances of the case and the documents on record and also that the opposite party did not file any document to evidence that the agreement of sale is cancelled, we are of the opinion that there is deficiency in service on behalf of the opposite party in not handing over the house to the complainant and we therefore direct the opposite party to deliver the schedule mentioned house in as-is-where-is condition to the complainant and the opposite party shall pay an amount of Rs.12,90,000/- as per the terms of clause 11 of the agreement i.e. Rs.30,000/- per month from 19-5-2008 till the date of filing of the complaint i.e. 06-1-2012 i.e. 43 months. The complainant did not file any certificate by a technical/civil engineer quantifying the works valued at Rs.7,09,518/- which he prayed for and therefore to meet the ends of justice, we are constrained to award a reasonable amount of Rs.3,00,000/- towards incomplete works. Therefore, we award an amount of Rs.3,00,000/- towards costs of completion of the remaining works together with compensation of
Rs.50,000/- for the mental agony suffered by the complainant and costs of Rs.5,000/-.
In the result this complaint is allowed in part directing the opposite party to pay Rs.12,90,000/- as per the terms of clause 11 of the agreement i.e. Rs.30,000/- per month from 19-5-2008 till the date of filing of the complaint together with an amount of Rs.3,00,000/- towards costs of completion of the remaining works together with compensation of
Rs.50,000/- for the mental agony suffered by the complainant and costs of Rs.5,000/- within four weeks from the date of receipt of this order.
INCHARGE PRESIDENT.
MEMBER.
JM Dt.07-2-2013
APPENDIX OF EVIDENCE
For the complainant: For Opp.parties:
Affidavit evidence of complainant Affidavit evidence of Smt.Sunitha
Filed. Managing Director of O.P. filed
Exhibits marked on behalf of the complainant
Ex A-1 Broucher of the Opposite Party
Ex A-2 Receipt for Rs.10.75 lakhs, Dt. 02-05-2005
Ex A-3 Receipt for Rs.4.25 lakhs, Dt. 03-05-2005
Ex A-4 Agreement of Sale –cum- Construction by and between the
Complainant and the opposite party, Dt. 05-11-2005
Ex A-5 Email from complainant to Opposite party, Dt. 01-03-2006
Ex A-6 Sale Deed Executed by the opposite party in favour of the
complainant in respect of the land, Dt. 01-09-2006
Ex A-7 Email from complainant to Opposite party, Dt. 20-02-2007
Ex A-8 Email from Opposite party to the complainant demanding the
payment of service tax and VAT, Dt. 24-02-2007
Ex A-9 Email from the opposite party to complainant for payment of
service Tax and VAT, Dt. 10-03-2007
Ex A-10 Letter from Opposite Party demanding payment of the installments, Dt.27-03-2007
Ex A-11 Receipt issued by the opposite party to the complainant
acknowledging the receipt of Rs.8,00,000/-, Dt. 01-05-2007
Ex A-12 Receipt issued by the opposite party to the complainant
acknowledging the receipt of Rs.2,16,434/-, Dt. 01-05-2007
Ex A-13 Letter from complainant to the opposite party informing issuance of
the cheque towards installments, Tax and return cheque for
Rs.22,00,000/-, Dt. 30-04-2007
Ex A-14 Email from complainant to Opposite Party, Dt. 12-12-2007,
Ex A-15 Email from Opposite party to the Complainant demanding Rs.
62,000/- towards up gradation, Dt. 18-12-2007
Ex A-16 Email from Opposite party to the Complainant demanding Rs.
62,000/-, Dt. 31-12-2007
Ex A-17 Email from complainant to Opposite Party, Dt. 02-01-2008
Ex A-18 Email from Opposite Party demanding the payment
for the 3rd and 4th installments, Dt. 03-01-2008
Ex A-19 Email from complainant to Opposite party informing that the
workers of the complainant are moving to the site for carrying the
remaining incomplete works, Dt. 04-01-2008
Ex A-20 Email from complainant to Opposite party, Dt. 04-01-2008
Ex A-20/a Email from complainant to Opposite party, Dt. 05-01-2008
Ex A-21 Letter from complainant to the Branch Manager, ICICI Bank to
Stop payment of cheques dated 7-1-2008.
Ex. A-21/a Email from opposite party to the complainant informing the
Standard deductions at Rs.2,93,000/-, 07-01-2008
Ex A-22 Email from complainant to opposite party informing that the
bathroom fittings also would be done by him, 08-01-2008
Ex A-23 Email from complainant to the Opposite party, Dt. 09-01-2008
Ex A-24 Email from opposite party to the complainant informing that
Management is out of station, Dt.11-01-2008
Ex.A-25 Email from complainant to the Opposite party, 23-01-2008
Ex.A-26 Email from complainant to the opposite party dt. 24-01-2008
Ex.A-27 Registered letter to the opposite party from the complainant along
with 4 postal receipts, 28-01-2008
Ex.A.28 Registered letter to Mr. Devender Reddy of the opposite party from
the complainant along with a postal receipts, 28-01-2008
Ex.A.29 Registered letter to Mr. Devender Reddy of the opposite party from
the complainant, dt.29-01-2008
Ex.A.30 Registered letter to Mr. Devender Reddy of the opposite party from
the complainant dt. 29-01-2008
Ex.A.31 Letter from opposite party to the complainant dt. 28-01-2008
Ex.A.32 Registered letter to the opposite party from the complainant along
with a postal receipts, 02-02-2008
Ex.A.33 Letter from Opposite party to the complainant demanding Rs.44,18,940.00, Dt. 06-02-2008
Ex.A.34 Demand notice issued by Sri. A. Tulasi Raj Gokul on behalf of the opposite party to the complainant, 29-06-2009
Ex.A.35 Reply letter by the complainant to the opposite party along with
the postal receipt and acknowledgement, Dt. 28-07-2009
Ex.A.36 Email issued by the opposite party to the complainant, 04-08-2009
Ex.A.37 Police complaint. Dt. 02-01-2012
Ex.A.38 Letter Head of opposite party pasted on the wall,
Ex.A.39 Special notice by GHMC to the complainant demanding payment of property tax, Dt. 28-08-2009
Ex.A.40 Cash receipt in lieu of payment of property tax to the GHMC,22-09-
2009
Ex.A.41 Online receipt in lieu of payment of property tax to GHMC, 01-04-
2011
Ex.A.42 Encumbrance certificate (2 no’s), Dt. 22-03-2011
Ex.A.43 Provisional receipt for cheque issued by GHMC, Dt. 31-03-2011
Ex.A.44 Email from Rajendran of the society to the complainant,
Dt. 15-09-2011
Ex.A.45 Email from complainant to opposite party, Dt. 17-09-2011
Ex.A.46 Statement issued by the opposite party, Dt. 03-10-2011
Ex.A.47 Letter issued by the complainant to the opposite party, Dt. 03-10-
2011
Ex.A.48 Letter issued by the complainant to Mr. Rajendran of the society, Dt.03-10-2011
Ex.A.49 Receipts issued by the opposite party, Dt. 21-12-2011
Ex.A.50 Receipts issued by the opposite party, Dt. 03-01-2012
Ex.A.51 Email from opposite party to the complainant, Dt. 02-04-2012
Ex.A.52 Memorandum & Articles of Association of opposite party
Ex.A.53 Certificate of incorporation. Dt 24-04-2003
For the opposite parties :
Ex B-1 Agreement of sale – cum – construction, Dt. 05-11-2005
Ex B-2 Registered Sale Deed No. 17848/2006, dt. 01-09-2006
Ex B-3 Letter from Complainant to Opposite party, Dt. 25-08-2006
Ex B-4 Email from Opposite party to Complainant, Dt. 12-12-2007
Ex B-5 F.I.R. No. 10/2012, Dt. 06-01-2012
Incharge President
MEMBER.
JM Dt.07-2-2013.
