Before the State Consumer Disputes Redressal Commission
(constituted under Consumer Protection Act, 1986)
of Telangana, Eruvaka Building, Khairathabad at Hyderabad
CC NO.14 OF 2018
Between:
1) Mullapudi Harikrishna S/o Madshusudhana Rao,
Aged 45 years, R/o Villa No.143, 3rd Floor,
HMT Satavahana Nagar, Kukatpally,
Hyderabad – 500 072.
2) Mullapudi Uma Devi W/o Mullapudi Harikrishna,
Aged 41 years, R/o Villa No.143, 3rd Floor,
HMT Satavahana Nagar, Kukatpally,
Hyderabad – 500 072.
…Complainants
And
M/s Aditya Construction Company India (P) Ltd.,
A Company registered under Indian Companies Act,
Having its office at Aditya Mansion,
Plot No.29/A, Road No.5, Jubilee Hills,
Hyderabad – 500 033, rep. by its Managing Director.
…Opposite parties
Counsel for the Complainants : Sri M.Sudheer Kumar
Counsel for the Opposite party : M/s Kochar & Co.,
CORAM :
Hon’ble Sri Justice MSK Jaiswal … President
and
Smt Meena Ramanathan … Member
Wednesday, the Twelfth day of
February Two thousand Twenty
Oral Order :
***
This is a complaint filed by the Complainants under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 praying to direct the Opposite party to execute and register the sale deed in favour of Complainants in respect of Flat No.306, Magnolia (G-Block) on 3rd floor in “Aditya’s Imperial Heights”, Hafeezpet, Hyderabad for Rs.59,90,000/- after declaring that the cancellation of flat booking by the Opposite party through letter dated 09.12.2017 as illegal and nonest; to pay a sum of Rs.7,41,500/- towards rent till December 2017 and @ Rs.20,000/- from January 2017 till handing over of flat; to pay Rs.10,00,000/- towards damages suffered by Claimants by way of rental and towards repayment of home loan; to pay Rs.6,00,000/- towards mental agony sustained or in the alternate, to refund the entire amount of Rs.52,11,500/- paid by the Claimants on different date till September 2013 with interest @ 24% per annum from the date of respective payment till actual payment and to award costs of the complaint.
2) The case of the Complainants, in brief, is that Opposite parties 2 and 3 as Directors of Opposite party No.1 floated a venture for construction of multistoried residential flats under name and style “Aditya’s Imperial Heights” over the land measuring 10 acres 10 guntas situated in Sy.Nos.83, 84, 85, 86 & 87, situated at Hafeezpet village, Serilingampally mandal, Ranga Reddy district having acquired the same vide Development Agreement-cum-General Power of Attorney dated 23.12.2009 and explaining the salient features, amenities, facilities being provided in the above venture, attracted the Complainants to purchase flat. Accordingly, Complainants opted to purchase the flat No.306, Magnolia (G-block) on 3rd floor of Aditya’s Imperial Heights, Hafeezpet, Hyderabad with 2000 sft for a consideration of Rs.59,90,000/- as against which, the Complainant paid Rs.56,90,500/- on different dates.
3) It was agreed by the Opposite party to pay the rent @ Rs.10/- per sft from the date of confirmation advance till completion of flat. The Opposite party agreed to complete the flat and handover the same on or before 12.04.2015 but failed to comply with the same instead extending the time for completion on one pretext or other. When the Complainants physically verified the flat on 05.11.2017, they found the entire project not in a viable condition. There are several works pending to be attended and the amenities are yet to be provided. For the delay in construction and completion of flat, the Opposite party failed to pay the rent as agreed. That apart, the Opposite party is demanding the amounts exorbitantly on the premise of GST and other taxes.
4) On failure to complete the project by Opposite party, the Complainants are forced to stay in a rented house paying huge rent of Rs.20,000/- which is being enhanced from time to time and now paying Rs.28,000/-. Vexed with the dubious tactics employed by Opposite party, Complainant got issued notice on 06.11.2017, to which, the Opposite party cancelled the booking of flat with a mala fide intention and oblique motive. Hence, complaining deficiency in service and unfair trade practice on the part of Opposite party, filed the present complaint with the reliefs, as stated supra, at paragraph-1.
5) Opposite party filed written version contending that taking advantage of their own wrongs, Complainants filed the present complaint. They admitted booking of flat in question by Complainants for the sale consideration of Rs.59,90,000/- and entering into Agreement of Sale and Tripartite Agreement. As a matter of fact, rent will be paid subject to strict adherence to the payment schedule as envisaged in clause-8 of the Agreement. The Complainants failed to make payments within the time specified which resulted in delay. Hence, there is no deficiency in service or negligence on their part. Accordingly, prayed to dismiss the complaint with costs.
6) In order to substantiate their rival contentions, the Complainants filed the affidavit evidence of Mullapudi Harikrishna as PW1 and the documents Ex.A1 to A22 while the Opposite party got filed the affidavit evidence of Thota Satyanarayana, its Executive Director as RW1.
7) The point for consideration is as to whether there is any deficiency in service on the part of the Opposite party and if so, whether the Complainants are entitled for the reliefs as prayed for? If so, to what relief.
8) The admitted fact is that the Complainants have agreed to purchase Flat bearing No.306, Magnolia admeasuring 2000 sft in the apartment known as “Aditya’s Imperial Heights”, Magnolia block. The total cost of the flat was determined at Rs.59,90,000/-.
9) Ex.A1 is the document that was executed in between the parties at the inception of the transaction, it is dated 18.07.2011. Ex.A1 acknowledges the payment of Rs.50,000/- by the Complainants to the Opposite party through two cheques. The said letter further lays down the terms and conditions. So far as the present case is concerned, the relevant clause is conditions No.4, 5, 6, and 7 in Ex.A1. For the sake of clarity, the said four conditions are extracted as reads as under.
“4. The rent will be calculated from the day of booking confirmation amount 10% is paid by the customer. The rent will be credited to the customer account upon payment of first instalment of 15% (i.e., commencement of foundation work) and subsequently rent will be credited to the customers account t on 10th of every month subject to making of payment by the customer strictly as per the payment schedule enclosed.
5. The company will pay the rent to the customer @ Rs.10/- Sq.ft from the date of payment of confirmation advance till the completion of the flat construction.
6. The rent will be calculated and will be credited to the customers account every month and the sale consideration will be reduced to that extent every month.
7. In case the customer makes the full payment either through home loan or self funding the rent amount will be paid directly to the customer on 10th of every month.”
10) The next aspect to be mentioned is that the Opposite party called upon the Complainants to pay a sum of Rs.8,98,500/- before commencement of foundation work, which, according to the Opposite party takes care of 15% of the cost of the property. This amount was admittedly paid by the Complainants to the Opposite party as is evident from Ex.A2.
11) Ex.A2, A4, A8 and A14 are the letters addressed by Opposite party on different dates, wherein, it acknowledged the sum of Rs.5,99,000/- towards booking advance being 10% of sale consideration, Rs.8,98,500/- towards 15% of sale consideration and Rs.5,99,000/- towards 10% of sale consideration on laying of 2nd slab as on 12.06.2012; Rs.5,99,000/- on laying 4th slab and Rs.2,52,000/- on laying 7th slab as on 08.12.2012; Rs.3,52,000/- on laying 10th slab as on 08.12.2012; and Rs.5,99,000/- on laying 12th slab and Rs.5,99,000/- on laying 14th slab as on 01.05.2014.
12) Ex.A14 also makes note of the further payment made by the Complainants to the Opposite party and in all, it acknowledges that by the said date viz., 01.05.2014, the Complainant paid 85% and above the cost of the flat to the Opposite party, this was the letter issued by the Opposite parties.
13) The next document that needs to be referred to is the agreement of sale dated 13.10.2012 marked as Ex.A6. The controversial clause in the said agreement is clause-6 and 7. Clause-6 and 7 of Ex.A2 reads as under:
“6. The rent will be calculated and will be credited to the customer flat account every month and adjusted to the sale consideration. This amount will be reduced from the final two instalments of sale consideration of the customer.
7. In case the customers makes the full payment either through home loan or self funding the rent amount will be paid directly to the customers on 10th of every month.”
14) The controversy though appears to be exhaustive but as a matter of fact, it lies in a narrow compass and that as to how the rent that is agreed to be paid by the Opposite party to the Complainants were to be adjusted.
15) According to the Complainants, the Opposite party agreed to adjust the rent every month right from the date of inception and get credit the rental component to the loan account of the Complainants but whereas according to the Opposite party, even though the Complainants were entitled to the said rent as claimed, but the said amounts will be adjusted/reduced only from the final two instalments of sale consideration of the customer.
16) The Complainants submit that even though the agreement of sale contains the above clause which has been extracted, they had been resisting about it from the beginning on the ground that, that was not the actual agreement between the parties and as a matter of fact what was agreed was that every month the rent component will be credited to the account the moment they complete the payment of 15% of the consideration which admittedly has been paid by them by 12.06.2012 itself. However, the Opposite party though gave credit to the rental component every month, but in the final analysis what the Opposite party has done is that they are demanding to pay the rental component to be adjusted from the final instalments only and till the rent component was not paid to the Complainants but was adjusted, the Opposite party is demanding interest on the said amount which in fact, the Opposite party is not entitled to.
17) In other words, the controversy is as to whether the Opposite party can firstly permit the Complainants to deduct the rent component every month and to pay instalments as agreed and subsequently turn down and say that though the Opposite party is liable to pay the rent component every month but the same has to be adjusted only in the last two instalments of the sale consideration.
18) As the matter now stands, it is not disputed that the Complainants have paid 95% of the sale consideration, the flat is also ready for delivery of possession and that the Complainants are ready and are prepared to pay the said balance sale consideration and can get property registered in their favour. However, the Opposite party would have it that the Complainants are liable to interest on delayed payments since they failed to pay within time specified in terms of the original agreement in between the parties.
19) Except denying the version of the Complainants, nothing is placed on record by the Opposite party. Even it is not made known to Complainants when the flat was made ready for occupation. It has been the contention of the Complainants that they are ready to pay the balance sale consideration no sooner the flat is made ready for occupation after due calculation of rents receivable. Except contending that Complainants are not eligible for rental benefits as they defaulted in paying instalments as per payment schedule, no piece of paper is filed by Opposite party in support of its contention.
20) Clause-4 of Ex.A1 and Ex.A6 contemplates that the rent will be calculated from the day of booking confirmation amount 10% is paid by the customer. It further contemplates that the rent will be credited to the customer account upon payment of first instalment of 15% (i.e., commencement of foundation work) and subsequently rent will be credited to the customers account on 10th of every month. In the instant case, the booking advance of 10% amounting to Rs.5,99,000/- and the 15% of the foundation stage amount of Rs.8,98,500/- was paid by the Complainants within time as is evident from Ex.A2 letter of Opposite party.
21) Having received and having not disputed the same, the Opposite party cannot turn round and contend that the amount is not paid as per the schedule mentioned in the agreement. We have carefully perused the payment schedule appended to Ex.A1 and A6. Nowhere, in the written version or in the affidavit evidence, the Opposite party furnished the dates of commencement of foundation work or at least the stages of completion of the apartment “Imperial Heights” G-block Magnolia so as to accept the same to be true. Nothing prevented the Opposite party from filing the documents showing the dates of completion of construction work stage-wise. Even to the queries of Complainants as to the completion of flat and handover the possession, adjustment of rents, there is no whisper from the side of Opposite party. The burden lies on the Opposite party to show that it had completed the construction as per the terms of agreement and made ready the flat for occupation of Complainants, which it failed to.
22) For the aforesaid reasons, we answer the point framed for consideration in favour of the Complainants and against the Opposite party. Accordingly, the Opposite party is liable to pay the rent @ Rs.10/- per sft from 10.10.2011 onwards (the date of payment of 15% of construction cost) for the flat in question apart from handing over the possession of the flat duly registered in favour of the Complainants.
23) In the result, the complaint is allowed in part directing the Opposite party to deliver/handover the physical possession of the subject flat bearing No.306-G in 3rd floor of Magnolia Block-G comprising of 2000 square feet and to register/convey the same in favour of the Complainants subject to receipt of balance sale consideration and further the Opposite party is directed to pay the rent @ Rs.10/- per sft from 10.10.2011 onwards till date of handing over the possession and costs of Rs.5,000/-. In view of grant of rent, the claim for other reliefs is dismissed. Time for compliance : two months.
PRESIDENT MEMBER
Dated 12.02.2020
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainants : For Opposite parties :
Affidavit evidence of Mullapudi Affidavit evidence of Thota
Harikrishna, Complainant Satyanarayana, Director
No.1 as PW1. of OP No.1 as RW1.
EXHIBITS MARKED
For Complainants :
Ex.A1 is the photostat copy of offer letter dated 18.07.2011 issued by OP No.1 containing the terms and conditions acknowledging the amount of Rs.50,000/-.
Ex.A2 is photostat copy of letter dated 12.06.2012 addressed by Opposite party to the Complainant as regards project progress and payment status report, along with photographs.
Ex.A3 is the photostat copy of e-mail addressed by Complainant to the officials of Opposite party, dated 29.06.2012.
Ex.A4 is photostat copy of letter dated 18.08.2012 addressed by Opposite party to the Complainant as regards project progress and payment status report, along with photographs.
Ex.A5 is photostat copy of e-mail, dated 16.09.2012 addressed by the Complainant to the officials of Opposite party.
Ex.A6 is the photostat copy of Agreement of Sale, dated 13.10.2012 executed by Opposite party No.1 in favour of the Complainants, in respect of Flat No.306 admeasuring 2000 sft.
Ex.A7 is the photostat copy of Tripartite Agreement, dated 22.11.2012 executed in between the Complainants, Opposite party No.1 and State Bank of India.
Ex.A8 is photostat copy of letter dated 08.12.2012 addressed by Opposite party to the Complainants as regards project progress and payment status report, along with photographs.
Ex.A9 is the photostat copy of e-mail correspondence, dated 05.12.2013 in between the Complainant and Opposite party.
Ex.A10 is the photostat copy of e-mail correspondence, dated 01.11.2013 in between the Complainant and Opposite party.
Ex.A11 is the photostat copy of e-mail correspondence, dated 05.12.2013 in between the Complainant and Opposite party.
Ex.A12 is the photostat copy of e-mail correspondence, dated 08.03.2014 in between the Complainant and Opposite party.
Ex.A13 is the photostat copy of e-mail correspondence, dated 06.04.2016 in between the Complainant and Opposite party.
Ex.A14 is photostat copy of letter dated 01.05.2014 addressed by Opposite party to the Complainant as regards project progress and payment status report, along with photographs.
Ex.A15 is photostat copy of letter dated 16.03.2016 addressed by Opposite party to the Complainants as regards progress intimation and milestone demand.
Ex.A16 is the photostat copy of e-mail correspondence, dated 02.11.2016 in between the Complainant and Opposite party.
Ex.A17 is photostat copy of reminder notice for payment and interest due letter dated 27.10.2017 addressed by Opposite party to the Complainant.
Ex.A18 is the photostat copy of e-mail correspondence, dated 03.11.2017 in between the Complainant and Opposite party.
Ex.A19 is the photostat copy of e-mail correspondence, dated 13.11.2017 in between the Complainant and Opposite party.
Ex.A20 is photostat copy of notice dated 06.11.2017 got issued by the Complainants to the Opposite party through the office of Sri M.Sudheer Kumar, Advocate.
Ex.A21 is the photostat copy of letter dated 09.12.2017 addressed by the Opposite party to the Complainant regarding cancellation of the flat booking in respect of IHG-Magnolia Flat No.306.
Ex.A22 is the copy of sanction letter dated 31.10.2012, addressed by State Bank of India, Serilingampally, Hyderabad to the Complainant intimating the sanction of home loan in a sum of Rs.30,00,000/-.
For Opposite party :
-NIL-
PRESIDENT MEMBER
Dated 12.02.2020
