BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD

C.C.NO.61 OF 2010

Between:

M/s Aravind Reddy S/o Umapathy Reddy

Aged 34 years, Occ: Service
rep. by GPAM  Umapathy Reddy S/o Chandra Reddy
R/o H.No.2-2-1137, Flat NO.201, Parimala Apartments
New Nallakunta, Hyderabad

                                                                        Complainant

        A N D

M/s N.R.Constructions,
rep. by its Managing Partner
Y.Nagesh Babu, S/o Seeta Rama Swamy
R/o Flat NO.502, MIG 515 to 517,
KPHB Colony, Kukatpally,
Hyderabad

                                                                        Opposite party

Counsel for the Complainant          Sri A.Balakishan Rao

Counsel for the opposite party       Sri C.Prabhakar Rao
    

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

                                                AND

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

MONDAY THE NINETH DAY OF JULY

                                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 no.301 as per the specifications or in the alternative for return of the sale consideration and for payment of Rs.15, 00,000/- towards damages and `30, 000/- per month towards future damages from the date of filing of the complaint till the date of delivery of possession of the flat and costs of the proceedings.

2.             The averments of the complaint are that the opposite party  entered into development agreement with the owners of the plot Nos.239, 219, 220 and 240 admeasuring 800 sq. yards situate at Bachipalli village of Quthbullapur Mandal, Ranga Reddy district. The opposite party obtained permission for construction of ground floor and three upper floors from the concerned authorities in the name of N.R. Residency. The opposite party entered into agreement of sale with the complainant for sale of the plot on payment of an amount of `5,00,000/- towards advance sale consideration. The complainant availed loan of `19,00,000/- from the ICICI Bank and paid the amount to the opposite party on 27.06.2008 towards balance sale consideration under the construction agreement.

3.             The opposite party executed sale deed  dated 4.07.2008 in favour of the complainant for consideration of Rs.9,00,000/- in respect of semi-finished flat and on the same day the opposite party entered into construction agreement with the complainant promising to complete the construction within 8 months therefrom. In spite of repeated demands from the complainant, the opposite party failed to complete the construction and the complainant got issued notice on 8.10.2009 calling upon the opposite party to complete the construction work and hand over the possession of the flat to him. The complainant suffered financial loss and he has been paying rent for the rented house and interest to the ICICI Bank.

4.             The opposite party resisted the claim by filing counter and contending that by virtue of execution of the sale deed the unsigned agreement of sale loses its evidentiary value and does not have the enforcement option. The draft sale deed is merged with the registered sale deed. Under the sale deed the complainant paid a sum of `9,72,500/- towards the sale consideration of the flat and on the same day,  agreement for construction was entered into between the complainant and the opposite party for construction of the RCC framed structure, vitrified tiles, plastering and electrical wiring for which the complainant paid an amount of `1,87,000/- to the opposite party. The opposite party agreed to complete the construction within a period of 8 months threrefrom.  On 27.06.2008 the complainant placed work order for carrying out certain works to make the flat habitable for residential use with all amenities and facilities mentioned in the work order.

5.             Of the 20 flats in the complex, only 8 flats were sold and 12 flats were left unsold because of recession in the real estate market. Though the remaining flats were unsold, the opposite party with great difficulty completed major portion of work by borrowing money from others. The bank from which the complainant availed loan would release the loan amount basing on the stage wise construction. The release of the loan amount would show the completion of the construction. At the request of the complainant, the bank released the loan amount to the opposite party and the complainant for the sake of convenience, requested the bank to release the loan amount in lump sum and the bank released the amount accordingly. The title of the property was transferred in favour of the complainant. The complainant had taken delivery of possession of the flat having satisfied with the work and paid a sum of Rs.1,87,000/0. The complainant is not entitled for any profits or rent. The balance work to be done in pursuance of the construction agreement will be completed by the opposite party at an early time. The complainant claimed exorbitant amount to invoke the jurisdiction of this Commission.

6.             The power of attorney holder of the complainant has filed his affidavit and the documents marked as ExA1 to A13.  On behalf of the opposite party neither affidavit nor documents have been filed.

7.             The points for consideration are:

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

ii)           To what relief?

8.             POINT NO.1:   The opposite party entered into Development Agreement with the land owners for construction of the building under the name and style of N.R.Residency with 20 apartments. The development agreement or its execution is not disputed. The complainant has entered into agreement dated 22.12.2007 to sell the semi-finished flat bearing number 301 in the building. The complainant has filed the copy of agreement of sale which is challenged by the opposite party not to be considered, for it is a typed copy and secondly, on execution of the sale deed on 4.07.2008 the agreement of sale loses its importance in all aspects and not fit enough for any consideration. In addition to the agreement of sale and sale deed another document was executed between the parties .i,e work order. The entire case of the complainant revolves and dependent on these three documents.

9.             The validity of the agreement of sale is questioned by the opposite party on the premise that the document filed is a typed copy and on execution of the sale deed it cannot be looked into. Before dealing with the aspect in regard to valid or invalid nature of the agreement of sale, it is essential to consider whether the opposite party denied its validity or execution of the documents as a whole. There is no averment in the written version or statement in the affidavit of the managing partner of the opposite party firm that the agreement of the sale was not executed. The averments of the written version would show that the opposite party executed the document on 22.12.2007 in favour of the complainant agreeing to sell the semi-finished flat no.301 in N.R.Residency.

10.            The validity of a document can be questioned on two counts, it does not meet the requirement of provisions of the Indian Evidence Act  and secondly, it falls short of mandatory stipulation under the provisions of the Stamps Act ,i.e.,  the document is insufficiently stamped. The validity of the document is not challenged as to its being insufficiently stamped.  The validity of the document is questioned as it is a copy and the original document is not filed by the complainant. The complaint has not stated any reason for not filing the original document. The sale deed being executed and the sale of the flat is no more disputed, we do not consider it any more essential to look into the recitals of the agreement of sale.

11.            The work order agreement was executed on 4.7.2008 providing for a period of 8 months for the opposite party to complete the construction work and hand over the flat to the complainant.  On failure of the opposite party, the complainant has got issued notice on 8.10.2009 claiming damage of `5 lakh and financial loss towards interest,  an amount of `5 lakhs and also a sum of `5 lakh towards the other loss totaling `15 lakh besides future damages of `30,000/- per month.

12.            The opposite party has contended that the possession of the flat No.301 was delivered to the complainant and the construction work was completed as per the work order.  The opposite party relies upon disbursement of the loan amount from the complainant banker to show that the construction was completed in accordance with the terms of the construction agreement.  The Structural Engineer, G.Mohan Reddy had submitted valuation  certificate assessing `46,43,000/- towards the expenses for completion of the construction work and providing amenities.  The Engineer had submitted the photographs with negatives along with valuation certificate.  The certificate of the engineer and the photographs coupled with the statement of the complainant would establish that construction work was not carried out which we have no hesitation to direct the opposite party to perform its part of contract.  The complaint as such deserves to be allowed and for the mental tension undergone by the complainant and the hardship he was subjected to, due to the failure of the opposite party in completing the construction work of the flat and its failure to perform its part of contract in terms of the construction agreement, we hold the complainant entitled to a sum of Rs.1,00,000/- on all counts. 

13.            In the result the complaint is allowed directing the opposite party to complete the construction work as per the terms of the construction agreement and handover the possession of Flat No.301 NR Residence Bachupally Village and Grampanchayat, Quthbullapur Manda, R.R.District within two months and pay an amount of `1,00,000/- towards compensation to the complainant.   The costs of the proceedings quantified at `5,000/-.

                                                                                MEMBER

                                                                                MEMBER

                                                                          Dt.09.07.2012

KMK*

  APPENDIX OF EVIDENCE

   Witnesses examined for

Complainants:                                                    Opposite Party :

None                                                                                 None

                                        DOCUMENTS MARKED

For the complainant

Ex. A1       Copy of the Agreement of Sale

Ex. A2       Copy of the Receipt issued by the Opposite party, dated 27.06.2008

Ex. A3       Copy of the Work Order, dated 27.06.2008

Ex. A4       Copy of Draft Sale Deed.

Ex. A5       Copy of Sale Deed, dated 04.07.2008

Ex. A6       Copy of Agreement of Construction to semi-finished flat, dated 04.07.2008

Ex. A7       Loan sanctioned Letter issued by the ICICI Bank,

                 dated 12.04.2010

Ex. A8       Statement of Account issued by the ICICI Bank, dated 25.01.2010

Ex.A9        Office copy of the Legal Notice along with Postal Receipt, dated 08.10.2009

Ex.10        Acknowledgement.

Ex.A11       Valuation Certificate

Ex.A12       Compact Disc

Ex.A13       Photographs

Opposite party

NIL

                                                                                MEMBER

                                                                                MEMBER