Date of Filing: 29-09-2016
Date of Order: 29-05-2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER
Wednesday, the 29th day of May, 2019
C.C.No.452 /2016
Between
- Mr.Judish Raj,
S/o.K.Rajan, aged 44 years,
Occ: Health Care Consultant,
- Mrs. Sithara Judish Raj,
W/o.Judish Raj, aged 37 years, Occ: House Wife
Both are resident of Flat No.101,
Khandakuri Residency, Sunder Nagar
(Near E S I), Hyderabad – 500038 ……Complainants
And
M/s. Prajay Properties Pvt.Ltd., (PPPL),
Office at 8-2-293/82/A, Plot No.1091,
Road No.41, Near Peddamma Temple,
Jubilee Hills, Hyderabad – 500033,
Rep. by its Director Sri K.Vijay Sen Reddy,
S/o.Late D.S.P.Reddy, Aged 57 years,
Occ: Business ….Opposite Party
Counsel for the complainants : Mr.G.Prakash
Counsel for the opposite Party : Sri .K.P.Vijay Kumar Goud
.
O R D E R
(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint is preferred under Section 12 of C.P. Act of 1986 alleging that not completing a construction of the flat agreed to be purchased by the complainant and not delivering the vacant possession as per the terms of the agreement to sell amounts to deficiency of service and in consequence of it a direction to refund the amount of Rs.7,93,410 collected as part of sale consideration with interest there on at 18% P.A from the date of receiving of it to the date of payment, further direction to reimburse an amount of Rs.7,500/- as agreed under the agreement to sell from May 2015 to the date of payment or to the disposal of this complaint and compensation of Rs. 2,00,000/- for causing mental agony to the complainant and his family members on account of not completing the flat and to impose a penalty of Rs.10,000/- on opposite party for causing deficiency of service and to award cost of this complaint.
- Brief facts of the complaint are that opposite party is engaged in the business of developing land and construction of the residential complex. The complainant impressed by the advertisement made by the opposite party for the residential project known as Prajay Mega Polis at Hafeezpet Village in Serilingampally Mandal had shown his interest to purchase one flat. The complainant met the opposite party in the month of March, 2012 and negotiated to purchase unit No.101Tower No.11 in the 1st floor of the building named and styled as Prajay Megapolis with built up area admeasuring 1495Sft with undivided share of land in total admeasuring Ac.21-05 GTs forming part of survey No.78 of Hafeezpet Village for a total sale consideration of Rs.39,67,050/-. He paid an amount of Rs.1,00,000/- as an advance on 29-3-2012 and a receipt to that effect was issued by opposite party. Thereafter he also paid a sum of Rs.58,410/- by way of DD drawn on City Bank and a further sum of Rs.6,35,000/- by way of DD drawn on Andhra Bank and both are dated 30-04-2012 as part of sale consideration for the unit agreed to be sold by the opposite party. Opposite party issued two separate receipts for these DDs on 2-5-2012 and after the encashment of the DDs the opposite party executed an agreement of sale infavour of the complainant on 05-05-2012. As per the terms of the agreement the opposite party should complete the construction of the flat within a period of 36 months from the date of agreement with a grace period of six months. The time for completion of the construction can be extended further period with mutual consent between the parties. It is further stipulated in the agreement that if the possession is not completed within the stipulated time the opposite party shall pay Rs.7,500/- per month to the complainant till affecting delivery possession of the flat or the notice of possession given. As per the terms of the agreement dated 5-5-2012 the schedule for the payment of the sale consideration to the flat is as under:
Installment No. | Amount | Details |
(1) | 15% | of total cost after casting ground floor |
(ii) | 15% | of total cost after casting Sixth floor |
(iii) | 15% | of total cost after casting Tenth floor |
(iv) | 15% | of total cost after casting Top floor (along with car parking) |
(v) | 10% | of total cost completion of Brick work for the flat |
(vi) | 5% | of the total cost completion of flooring for the flat ((along with Amenities) |
Balance at the time of Handover (along with Corpus Fund)
Subsequent to the payment of amounts by way of two DDs mentioned above the complainants are regularly reminding and enquiring about the progress of the project and they were informed by the representatives of the opposite party that the work is in progress.
While the matter stood thus on 27-02-2014 the opposite party had sent a mail stating that it is withholding work of phase II of Prajay Megapolis on account of global recession and political situation in the State. After receipt of the said mail the complainants made enquiries and noticed that the work was not started on the land. In the above said email the opposite parties stated that in view of the stoppage of work temporarily the customers made choose the option either to shift to the available flats in Phase I of the project or to remain continue with the present booking with a mutual consent for the completion of the project work in Phase II the extending period by about 12 months over and above the agreed period. It is further stated that if the customers intend to shift to phase I project the price to be paid at current market rate with difference much to the customers. The complainant visited the office of the opposite party several times and also sent mails requesting to complete the work and handover the physical passion of the flat and they are ready to pay the balance sale consideration but the opposite party did not start the project work till date. At the same time the opposite party did not intend to return the amount collected as part of the sale consideration for the flat agreed to be sold to the customers who have booked the flat but insisted to choose either of the options mentioned in the mail.
The complainant had sent a letter to the opposite party on 30-8-2015 asking to reimburse the amount of Rs.7,500/- per month as agreed under the agreement for a delay period of handovering of the possession of flat. Opposite party having received the said notice neither gave a reply nor complied the request. Opposite party has received an amount of Rs.7,93,410//- from the complainant but did not start the project work and it amounts to violation of the terms and conditions of agreement to sell executed on 5-5-2012. The physical verification of the site by the complainants revealed that no structure was raised and it shows from the beginning the opposite party has no intention to start and to complete it but mischievously lured the complainant and collected the amount as part of sale consideration. But for the advertisement, promises and assurances of opposite party the complainants would not have started negotiations for the purchase of the flat in the starting of the work. Not complying the terms and conditions by the opposite party amounts to deficiency of service and unfair trade practice. It also reflects the mind of the opposite party to cheat the complainant and their family members. Hence the present complaint for the reliefs stated supra.
- Opposite party filed a detailed written version with denial of each and every sentence of the complaint. The contention raised are that complaint is barred by limitation and subject matter comes within the territorial jurisdiction of the Ranga Reddy District Forum and this Forum has no jurisdiction to entertain it. It is further stated that the opposite party is not a developer of the project and is only owner of the of the land and there is a development agreement with developer who is not made as a party to this complaint. Hence the complaint is bad for non-joinder of necessary party. The claim of the complainant’s that he was lured by the advertisement issued by opposite party for the project is false. The allegation of the complainant’s that he paid advance amount of Rs.1,00,000/- and subsequently two amounts separate D.Ds is false. Also the allegation of the complainant’s that as per the terms of the agreement in between the parties they are entitled for the reimbursement of Rs.7,500/- per month for not completing the project as agreed under the agreement is false. Also the allegation of the complainant’s that false promises were made with intention to cheat them is false.
The State of Andhra Pradesh was bifurcated into two States as Telangana and Andhra Pradesh due to that residential Real Estate market is witnessing consolidation of price appreciation and also an apprehension in some of the buyers to withstand the pressure of the market. Similarly complainant could not withstand the pressure of the market with the odds of bifurcation of Andhra Pradesh into two States i.e., Telangana and Andhra Pradesh. On account of this political development and bifurcation State into two States by an act of Parliament the business of Real Estate was hugely affected. Project is being constructed at Phase No.I in which possessions were also affected to some of the customers and they are residing in those flats. Even in odds period of political turbulence because of the political uncertainty that prevailed during the years 2012 to 2014 and even though the customers did not come forward to pay the payments as agreed the opposite party borrowed huge loans from different banks and financial institutions to complete the project as projected and continue the progress of the work. There is a massive rise in the tax and cost of the construction materials which made the life of the developer/builder a big distress.
Option provided to the customers including the complainant was not availed. Complainant did not opt for a unit in Phase I of the project which was completed and ready to occupy. Instead of availing either of the option offered the complainant preferred the present complaint. Hence the complainant is not entitled any of the reliefs and complaint is liable to be dismissed.
In the enquiry the first complainant has got filed his evidence affidavit reiterating the material facts narrated in the complaint and to support the same got exhibited Ten (10) documents. Similarly for the Opposite Party the evidence affidavit of its authorized signatory namely Sri D.Vijaysen Reddy is got filed and the substance of the same is in line with the defense set out in the written version filed for it. No document is exhibited by the opposite party for consideration. Both sides filed written arguments.
On a consideration of the material placed on record the following points have fallen for determination.
- Whether the complainant could substantiate the allegation of unfair trade practice and deficiency of service on the part of the opposite party ?
- Whether the complainant is bad for non-joinder of necessary parties ?
- Whether the complainant is entitled for the amounts claimed in various heads?
- To what relief?
Point No.1: Though the opposite party has filed a detailed written version running into six pages it has not set out a case of itself own except denying and about the complainant’s version. As culled out from the written version the opposite party intends to take a plea that complaint is for non joinder of parties and it is not in the business of construction of residential unit or developing the land for layout and it is only the owner of the land admeasuring about 21 Acres in the survey No.78 of Hafeezpet village. Since the complainant has not made developer as party to the proceedings, the complaint is not maintainable.
The next plea taken is on account of the Bifurcation of AP State by an act of Parliament and earlier to that due to political turbulence the Real estate business was in doldrums and some of the customers who booked the flat also could not withstand development it took place in the relevant period. Though the opposite party attempted to deny about the payment made by the complainant the documents exhibited by the complainant fortifies their version Ex.A1 are the two receipts dated 29-03-2012 and 2-5-2012 for payment of Rs.7,35,000/- issued by the opposite party. Ex.A2 is the Xerox copy of the DD delivered for a total sum of Rs.6,93,410/- and both these DDs are drawn in the name of opposite party. Ex.A5 is another receipt for the payment of Rs.58,410/- made to the opposite party and Ex.A6 is the agreement to sell in favour of the complainant and opposite party is a party to this document. Ex.A7 and A8 are the extracts of the mail communication between the parties. So these documents fortifies the complainants version of payment of Rupees more than Seven (7) lakhs as part of sale consideration for the flat agreed to be sold by the opposite party. The agreement of sale in Ex.A6 is a concluded contract between the parties and its terms and conditions s are binding on both of them. As rightly claimed by the complainant the stipulated time for completion of the project is 36 months from the date of agreement with a grace period of six (6) more months. Though there is a clause for further extension with mutual consent of the opposite party it is not the case of either of the parties to the complaint that they have consented for extension time for completion of project.
It is the specific case of the complainant that even as on the date of filing of this complaint the opposite party has not commenced even foundation work of the project known as Prajay Mega Polis. In fact the email under Ex.A7 got issued by the opposite party there is a specific admission that due to prevailing political situation coupled with slump due to global recession effecting Real estate market no buyer is coming forward to invest and because of that they have decided temporarily to withhold the construction work of Phase II. An option was given to the complainant and other members either to opt for the available flats in the project I which was completed then or to continue the same project by giving further extension of time. So it is evident that the opposite party has not taken up the construction of the work at all though it collected more than seven (7) lakhs from the complainants. In view of the concluded contract under Ex.A6 the opposite party cannot take shelter under the political turbulence or global recession etc. If an option was given to the complainant to take refund of the amount collected from him the opposite party could be to some extend justified but no option was given to the complainant. It is not out of place to say that the Bifurcation of the AP has not occurred all of a sudden this demand was there for about 10 years prior to the entering into agreement with the complainant. So the opposite party was aware likely situation in the event of the Bifurcation of A.P.State . The opposite party collected about 20% of total sale consideration but failed to commence the project work even after 3 years of entering into agreement with the complainant under Ex.A6 and it amounts to not only deficiency of service but also unfair trade practice. Accordingly point is answered in favour of the complainant.
Point No.2: As already said the opposite party is trying to take a plea that it is not a developer and developer under the Ex.A6 agreement is not made as a party. As could be seen from Ex.A6 agreement the opposite party itself described as company and Vendor and a company and another vendor known as M/s. Prajay Properties Pvt.Ltd company incorporated as a developer. A close reading of address of both the entities shows they are functioning from the same door number, address and both are represented by D.Vijay Sen Reddy as a Director of opposite party and Executive Director of M/s. Prajay Engineers Syndicate Ltd as developer. The opposite party has not placed on record the development agreement between itself and developer known as M/s. Prajay Engineers Syndicate Ltd. That apart the receipts under Ex.A1 and A5 were issued by the opposite party for amounts received from the complainant and similarly both the DDs delivered by the complainant were drawn in the name of the opposite party only.
In the light of it, it is not open for the opposite party to plead that the complaint is for non-joinder of developer as party to it. Hence the point is answered against the opposite party.
Point No.3: The prayer of the complainant is not only to refund the amount paid by them but also the amount as agreed under the agreement at Rs.7,500/- per month for the delayed period of completion of the construction of the flat. The question of the delivery possession will arise only after completion of the construction and payment of entire sale consideration as agreed in between the parties. Admittedly the complainant paid only 20% of sale consideration i.,e 7,93,410/- out of total sale consideration of Rs.39,67,050/-. If complainant’s have paid the entire amount they would have been entitled for reimbursement of Rs.7,500/- per month after expiry of 42 months from the date of Ex.A6 agreement of sale. Having paid only 20% of sale consideration complainant cannot claim for reimbursement of the amount of Rs.7,500/- per month for any period. Since there is no prayer for direction to opposite party to complete the construction and deliver its vacant possession only prayer is relating to refund of the amount and the compensation for causing mental agony and inconvenience can be granted. Accordingly point is answered.
Point No.4: In the result, the complaint is allowed in part directing the opposite party
- To refund to the complainants an amount of Rs.7,93,410/- with interest there on at 18% P.A from the date of receiving the said amount to the date of payment
- Further directed the opposite party to pay a sum of Rs.2,00,000/- as compensation for mental agony and financial loss and to pay a sum of Rs.20,000/- as costs of this complaint
Time for compliance : One month from the date of service of this order
Dictated to steno, transcribed and typed by her, pronounced by us on this the 29th day of May , 2019.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Exhibits filed on behalf of the Complainant:
Ex.A1 is copy of receipt for an amount of Rs.1,00,000/- dt.29-03-2012
Ex.A2 is copy of DD of Citi Bank for an amount of Rs.58,410 dt.30-04-2012
Ex.A3 is copy of DD of Andhra bank for an amount of Rs.6,35,000/- dt.30-04-2012
Ex.A4 is copy of receipt No.883 dt.02-05-2012
Ex.A5 is copy of receipt No.884 dt.02-05-2012
Ex.A6 is copy of agreement between complainants and opposite party dt.05-05-2012
Ex.A7 is mail communication
Ex.A8 is mail communication
Ex.A9 is copy of letter from complainant to opposite party dt.30-08-2015
Ex.A10 is copy of online postal track
Exhibits filed on behalf of the Opposite party : –Nil-
MEMBER PRESIDENT
