Date of Filing: 09-02-2015
Date of Order: 18-3-2019
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
Monday, the 18th day of March, 2019
C.C.No.137 /2015
Between
Smt. Kumud Saxena,
W/o.Late Sri J.D.Saxena, age : 64 years,
Occ: Lecturer, R/o.Flat No.403, Shiva Sai Residency,
Near Janapriya Utopia, Hyderguda,
Attapur, Hyderabad -48. ……Complainant
And
- M/s. Prajay Properties Pvt.Ltd.,
Having its office at 8-2-293/82/A,
Plot No.1091, Road No.41, Near Peddamma temple,
Jubilee Hills, Hyderabad -33, rep. by its Director,
Mr.D.Vijay Sen Reddy, S/o.late Sri D.S.P.Reddy,
Age : 55 years, Business, R/o.1-1-380/11, Ashok Nagar,
Hyderabad. Pin No.500033,
- M/s. Prajay Engineers Syndicate Ltd.,
Having its office at 8-2-293/82/A,
Plot No.1091, Road No.41, Near Peddamma temple,
Jubilee Hills, Hyderabad -33, rep. by its Exe. Director,
Mr.D.Vijay Sen Reddy, S/o.late Sri D.S.P.Reddy,
Age : 55 years, Business, R/o.1-1-380/11, Ashok Nagar,
Hyderabad. Pin No.500033
- Mr. D.Vijay Sen Reddy, S/o.late Sri. D.S.P.Reddy,
Age : 55 years, Director, R/o.1-1-380/11, Ashok Nagar,
Hyderabad. Pin No.500033 ….Opposite Parties
Counsel for the complainant : M/s.A.S. Associates
Counsel for the opposite Parties : Sri Vijay kumar Goud KP
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 the opposite parties by suppressing the fact of mortgage of flat No.103 in Tower No.15 situate at second floor in the project under construction with GHMC offered to sell to the complainant and received a sum of Rs.5,11,500/- towards part of sale consideration and executed the agreement to sell for total sale consideration of Rs.25,57,500/- have indulged in unfair trade practice and deficiency of service and in consequence of it direction to the opposite parties to allot another flat of same area in the same premises for same cost or failure of it to refund Rs.5,11,400/- with interest at 24% and award a sum of Rs.2,00,000/- as compensation for causing mental agony and cost of this complaint at Rs.25,000/-.
- The complainant’s case in brief is that: The opposite parties are in the business of construction of residential and commercial apartment. They have started a project under the name and style of Prajay Megapolis and advertised the venture in the media. Complainant made a preliminary enquiry with the executives of opposite parties who have explained about the project and advised the complainant to invest in the project by purchasing a flat. Believing the same complainant agreed to purchase the flat No.103 situate in the second floor of Tower consisting of 15 floors. The area of the flat is 930 Sq.feet with undivided share and admeasuring 16.74Sq.yards of land. She paid a sum of Rs.10,000/- towards advance on 13-06-2012 under receipt No.292 and thereafter she paid Rs.90,000/- on 26-06-2012 and Rs.4,11,500/-on 23-07-2012 by way of cheque towards part of sale consideration. Opposite parties have executed an agreement to sell infavour of the complainant for the said flat on 20-10-2012 acknowledging the said payments with a schedule for payment of the balance amount at the different stages of construction.
Subsequent to execution of the agreement to sell complainant learnt that the flat offered to sell to her was mortgaged with GHMC and said fact was suppressed by the opposite parties and it amounts to false statement. Hence she got issued a legal notice on 13-11-2014 asking the opposite parties to allot another flat of the same area in the same premises for same price or else to refund the amount collected with interest at 24% P.a. Opposite parties having acknowledged the said notice on 14-11-2014 did not respond and it shows their intention to create problems to the complainant in the transaction and it amounts unfair trade practice and deficiency in service.
Complainant is a Senior Citizen and agreed to purchase the flat from the opposite parties with an intention to reside peacefully but because of misrepresentation by the opposite parties she lost her peace of mind and suffered mental agony. Hence the present complaint for the above stated reliefs.
- Opposite parties have filed a common written version admitting about the receipt of Rs.5,11,500/- from the complainant as part of sale consideration for flat No.103 and executing an agreement to sell but denied the allegation of misrepresentation unfair trade practice and deficiency in service on their part.
The stand of the opposite parties is the complainant at the time of paying the token advance has perused and verified all the title deeds, documents and relevant papers available with the opposite parties and satisfied herself about the title of the property agreed to purchase and then paid the token amount towards advance. She also has verified approval plan of the project and said plan depict earmarking of the flat agreed to be purchased as under mortgage with GHMC and knowing the said fact complainant agreed to purchase the same. Because of mortgage of the flat with GHMC she filed a special price of Rs.2750/- per Sft and she further agreed that she will go for a bank loan after completion of handing over of the flat subject to release by GHMC and agreed for the terms and conditions of the opposite parties and entered into the agreement to sell dated 20-10-2012. 80% of the construction work has been completed. The mortgage will be released by GHMC subject to obtaining occupancy certificate once the project completes in a span of 6 months. There was no suppression of fact of mortgage of the flat with GHMC by the opposite parties while accepting the part of sale consideration and executing the agreement to sell in her favour. To the legal notice of the complainant dt.13-11-2014 a suitable reply was issued. In fact the opposite parties have responded to the every query in time and in fact they have also made mails intimating progress of the work and the payments due from her even then she did not pay the amounts as scheduled under the agreement.
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 and the complainant could not withstand the market pressure with the odds bifurcation of Andhra Pradesh into two States and many customers have speculated during the period 2012 to 2014 and the complainant is one of the customer who have hugely affected the progress of the project by not paying the installments as agreed under the agreement. Because of political uncertainty during in the years 2012-2014 the opposite parties faced itself in the absence of customer coming forward to pay the payments as agreed and they borrowed huge loans from the different banks and financial institutions to complete the project as projected. Some of the customers like complainant made opposite parties to slow down the construction work by not paying the installments as agreed. The opposite parties gave option to the complainant and her daughter to settle any other flat having same area in the same premises at the present market price or to have any flat from the same project ready to occupy or from ongoing projects of the opposite parties in the city but they did not agree for the reasons best known to them. Complainant and her daughter having defaulted in making payments in the year 2012 itself got issued a legal notice on 13-11-2014 to create a cause of action in order to file the present complaint. Hence she is not entitled for any of the reliefs prayed for and complaint is liable to be dismissed.
In the enquiry stage the complainant has got filed her evidence affidavit reiterating the material allegations of the complaint and she also got exhibited 7 documents. Similarly for the Opposite Parties the evidence affidavit of opposite party No.3 is got filed and the substance of the same is in tune with the defense taken in the written version. Through him one (1) document is got exhibited to support the defense taken in the written version. Both sides have filed written arguments and made oral submissions.
On a consideration of material placed on record the following points have emerged for consideration .
- Whether the complainant was made aware of mortgage of flat which was offered to her for sale by the opposite parties and knowing the same she agreed to purchase ?
- Whether the opposite parties have indulged unfair trade practice and deficiency of service ?
- Whether the complainant is entitled for the reliefs prayed for ?
- To what relief?
Point No.1: Payment of Rs.10,000/- as token advance for the subject flat bearing No.103 at second floor of Tower No.15 being under construction of opposite parties and further payments on 26-06-2012 and 23-07-2012 and execution of an agreement to sell infavour of the complainant by the opposite parties are undisputed facts. The allegation of the complainant that only after executing of agreement to sell under Ex.A4 she could learnt that the subject flat is under mortgage with GHMC and same was not known to her earlier to agreement to sell in Ex.A4. Whereas the stand of opposite parties is that a the time of paying the token advance of Rs.10,000/- the complainant has perused and verified all the title deeds of documents and all the relevant papers and having satisfied with the title of property agreed to the purchase by paying of Rs.10,000/- as token advance. Had it been so there could be a recital in Ex.A4 agreement stating that the sale transaction is subject to redemption of the property from GHMC. The only document filed by the opposite parties is mail I.D information sent to the complainant asking her to pay a sum of Rs.7,91,000/- which was due by her as on 8-3-2014. The opposite parties are conveniently silent as to date on which the competent authority sanctioned the plan and the proceedings relating to mortgage of certain flats including the subject flat with GHMC and release of the same while issuing occupancy certificate. If the said record is filed before this Forum it would have revealed whether the complainant seen the sanctioned plan earmarking subject flat as under mortgage prior to the date of payment of Rs.10,000/- as token advance by her. In the absence of such record it is difficult to believe the stand of opposite parties that the complainant knowing fully well that the flat agreed to be purchased by her was in under mortgage with GHMC. Even in the schedule related to the payment of balance sale consideration there is no reference of mortgage as to whether irrespective of redemption of mortgage the complainant has agreed to pay the amounts. What prevented the opposite parties to state as on what date sanction of the plan for the construction of the flats was given and on what date proceedings relating to the mortgage of the flats were issued and what would be the likely date of releasing of the mortgage of flat by the GHMC is not explained. There is no scrap of paper on the record from the opposite parties to show that complainant having acquiesced with the fact mortgage of the subject flat with GHMC agreed to purchase the same. In the absence of it, it is difficult to believe the stand of the opposite parties. Hence point is answered infavour of the complainant.
Point No.2: The opposite parties in the written arguments have not sated as to whether by now the construction of the flats is completed and the subject flat has been released from mortgage by GHMC. Also they have not stated whether an intimation was given to the complainant informing the likely date for release of the flat from the mortgage. No prospective buyer of a flat will come forward to pay the sale consideration amounts knowing fully that the flat is in mortgage with a statutory authority. Hence the complainant is justified in not making the balance amount as scheduled in Ex.A4 agreement of sale and she cannot be branded as a defaulter in payment of amount. Non disclosure of the mortgage of the subject flat with a statutory authority to the prospective purchaser of the flat amounts to not only unfair trade practice but also deficiency of service on the part of the opposite parties. Accordingly point is answered in favour of the complainant.
Point No.3: The relief sought by the complainant is directing the opposite parties to allot different flat in the same complex of same size and same price. Even as on today the opposite parties have not stated that for non-payment of balance sale consideration by the complainant subject flat was sold to a 3rd party. Hence if the subject flat has been released from the mortgage by GHMC the complainant is entitled for the same flat and liable to pay the balance of sale consideration or if it is not released the opposite parties are liable to allocate another flat of same size for same price to the complainant and receive the balance sale consideration from the complainant and if no plot is available in the same complex they are liable to refund the amount collected from the complainant with interest @ 24% P.a from the date of receiving from the complainant to the date of payment. The opposite parties by not disclosing the fact of mortgage of subject flat with statutory authority while executing the agreement to sell have indulged in unfair trade practice and deficiency of service as such the complainant is entitled for compensation. Accordingly point is answered.
Point No.4: In the result, the complaint is allowed in part directing the opposite parties
- To register a sale deed infavour of subject flat if its construction is completed and redeemed from mortgage with GHMC and collect the balance sale consideration from the complainant. Charges for the registration shall be borne by the complainant. If the subject flat has not been released from mortgage with GHMC even as on today the opposite parties shall allot a similar size flat to the complainant in the same complex for the same price and if no such flat is available as on today they are directed to return the amount of Rs.5,11,500/- with interest @ 24% P.A from the date of receiving the said amount from the complainant to the date of payment
- The opposite parties further directed to pay a sum of Rs.1,00,000/- as compensation to the complainant and to pay a further sum of Rs.10,000/- towards cost of this complaint.
Time for compliance : 30 days from the date of service of this order
Dictated to steno, transcribed and typed by her, pronounced by us on this the 18th day of March , 2019
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Exs. filed on behalf of the Complainant:
Ex.A1 is receipt for part consideration amount dt.13-06-2012
Ex.A2 is receipt for part consideration amount dt.26-06-2012
Ex.A3 is receipt for part consideration amount dt.23-07-2012
Ex.A4 is agreement of sale entered for flat No.103 dt.20-10-2012
Ex.A5 is office copy of legal notice dt.13-11-2014
Ex.A6 is acknowledgements
Ex.A7 is brochure circulated by the opposite parties
Exs. filed on behalf of the Opposite parties
Ex.B1 is copy of Email sent to Smt.Kumud Saxena on 01/03/2014
MEMBER PRESIDENT
