Andhra Pradesh

East Godwari-II at Rajahmundry

CC/44/2015

K.V.V.S. Sridhar Reddy - Complainant(s)

Versus

M/s. Vision Heights Pvt. Ltd - Opp.Party(s)

V. Chitti Babu

08 Aug 2016

ORDER

                                                                                                                     Date of filing:   30.07.2015

                                                                                                                     Date of Order: 08.08.2016

 

BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI

DISTRICT AT RAJAHMUNDRY

 

                                   PRESENT:   Smt H.V. Ramana, B.Com., L.L.M.,   PRESIDENT(FAC)

                      Sri A. Madhusudana Rao, M.Com., B.L., MEMBER          

    

                Monday, the 8^th day of August, 2016

C.C.No.44 /2015

Between:-

 

K.V.V.S. Sridhar Reddy, S/o. K.J.B.L. Rama Reddy,

D.No.06-06-01, T. Nagar, Rajahmundry.                                                               …        Complainant

 

                        And

 

1)  M/s. Vision Heights Pvt. Ltd., Rep. & Promoted by

      its Managing Director, Sri Laksmi Prabhakar. B,

      S/o. B. Nageswara Rao, R.D.No.2-334/27,

      Vision Space Plot No.27, Road No.3, Banjara Hills,

      Hyderabad, Telangana State.

 

2)  Pragnya River Bridge Developers Ltd.,

      Regd. Office # 305, 3^rd floor, Topaz Building,

     Amrutha Hills, Panjagutta, Hyderabad, Telangana State.                                …        Opposite parties

 

 

            This case coming on 21.07.2016 for final hearing before this Forum in the presence of Sri V. Chitti Babu, Advocate for the complainant and the 1^st opposite party having been set ex-parte and Sri P.V.S.K. Sobhanadri Sastry, Advocate for the 2^nd opposite party, and having stood over till this date for consideration, this Forum has pronounced the following:  

 

O R D E R

[Per Smt.H.V. Ramana, President(FAC)] 

This is a complaint filed by the complainant U/Sec.12 of Consumer Protection Act 1986 to direct the opposite parties 1 and 2 to fulfill agreement conditions and hand over the said flat after complete the apartment; to pay Rs.10,00,000/- towards mental agony caused to the complainant and award costs of Rs.6,00,000/- to the complainant as per agreement.

2.         The case of the complainant is as follows:-  It is submitted that the 1^st opposite party executed a registered sale deed bearing No.779/2011 dated 31.1.2011 in favour of the complainant for sale consideration of Rs.6,19,000/- towards purchase of the semi finished Flat No.103 in first floor in Plot No.164 with 1085 sq. feet building area including undivided and unspecified site are of 56.33 in total extent of 1126.6 sq. yards covered by R.S.No.520 situated at Veluguband village, Chakradwarabandam Grampanchayat, Rajanagaram Mandal, East Godavari. Previously Regd. Development agreement cum General power of attorney bearing No.1891/2008 dt.19.6.2009 between M/s. Srivant Properties Pvt. Ltd., & other with the 1^st opposite party. On 27.1.2011, the 1^st opposite party executed an Agreement of sale being authorized GPA holder Sri Satya Venkata Srinivasa Borusu referred to as Developer on the company in favour of the complainant.  As per the said agreement under clause 6, 1, 3, both opposite parties undertake to complainant that to complete construction of the building in accordance with the terms of the development agreement and hand over the possession of the schedule property by 18 months with a grace period of 3 months thereafter from the date of this agreement. As per agreement, the opposite parties have to hand over the possession on or before 27.10.2012 including of the grace period of three months. The complainant paid an amount of Rs.10,61,665/- and Rs.1,35,625/- i.e. total he paid Rs.15,86,780/-. Remaining amount of Rs.2,29,510/- has to be paid after completion of painting and before hand over the possession of the flat to the complainant. The opposite parties   1 and 2 neither hand over the possession nor finish the work as per the agreement. The complainant approached the opposite parties several times and requested to complete the work, but in vain. The complainant got issued a legal notice to the opposite parties. The opposite parties received the same and the 2^nd opposite party gave reply with false allegations. Non-delivery of the possession of the flat is nothing but deficiency of service. Hence, the complaint.

3.         The 2^nd opposite party filed its written version and denied the allegations made by the complainant and the complaint is not maintainable either under law or on facts. This opposite party submits that this Forum has no jurisdiction to entertain the dispute or alleged dispute between the parties as the matter is pertaining to removal property. In fact, the 2^nd opposite party has taken over the company and its development project relating to construction of apartments, villas and etc. in an extent of Ac.46-72 ½  cents in Velugubanda village, Rajanagaram. Despite several odds and trouble shots for several persons including the complainant herein, the 2^nd opposite party has completed construction of some apartment complexes and villas and delivered to the purchasers. However, the present complaint is filed only to how that there are lapses on the part of the opposite party when the complainant being a chronic litigant filed the present complaint. It is submitted that in pursuance of Agreement of Sale dated 27.1.2011 a Regd. Sale deed dated 31.1.2011 registered as Doc. No.779/2011 was registered and the complainant is liable to remit payments as contained in payment schedule as contained in page No.31 of Agreement of sale and purposefully the said Agreement of sale was not filed. Further, the complainant did not respond to demand notices dated 4.6.2014, 4.7.2014, 4.8.2014 and 5.9.2014 and on the other hand the complainant filed the false complaint knowing that this Forum has no jurisdiction to entertain the dispute between the parties. It is submitted that there is no truth in any of the allegations in the complaint and further already stated above that the civil court only got jurisdiction, if at all, the grievance of complainant is correct under this circumstances, the complaint is liable to be dismissed. The claim is barred by limitation and further, it is also submitted fact that there was scarcity of raw material and more particularly sand and despite all odds the opposite party is progressing towards completion of construction. There is no response to demand notice dated 7.11.2014.  Hence, there is no deficiency of service on this opposite party and the complaint is liable to be dismissed with costs.

4.         The proof affidavit filed by the complainant and Exs.A1 to A10 have been marked for the complainant. The proof affidavit filed by the 2^nd opposite party and Exs.B1 to B12 have been marked for the 2^nd opposite party.

5.         Heard both sides. The complainant and 2^nd opposite party filed written arguments.

6.         Points raised for consideration are:

 

1. Whether there is any deficiency in service on the part of the opposite parties?

            2. Whether the complainant is entitled for the reliefs asked for?

            3. To what relief?

 

7.  POINT Nos.1 & 2:   The admitted facts of the complaint are that the complainant purchased the scheduled property of semi finished Flat bearing No.103 in First floor in Plot No.164 with an area of 1085 sq. feet and undivided and unspecified site area of 56.33 sq. yards in total extent of 1126.6 sq. yards covered by R.S.No.520 situated at Velugubanda village, Chakradwarabandham Gram Panchayat, Rajanagaram Mandal, East Godavari District from the 1^st opposite party and executed a Regd. sale deed bearing No.779/2011 dt.31.1.12011 and paid an amount of Rs.6,19,000/- vide Ex.A1. He also received a copy of the Agreement-cum-General power of attorney bearing No.1891/2008 dated 19.6.2009 between M/s. Srivant Properties Private Limited and others with the 1^st opposite party. He further submitted that the 1^st opposite party executed an Agreement for Construction for semi finished flat dated 31.1.2011 vide Ex.A2, in which the opposite parties undertake to complete the construction of the building in accordance with the terms and conditions and handover the possession of the schedule property in 18 months with a grace period of 3 months. As per the terms and conditions of the agreement, Clause-6, 1, 3, both the opposite parties undertake to complete the construction of the apartment. In clause-6 he also mentioned that if there is any delay beyond the time stated in the agreement, the 1^st opposite party shall pay the complainant/purchaser an amount of Rs.2/- per square foot of the built up area of the residential unit mentioned in B-schedule every month of delay up to maximum period of six months. But, the opposite parties have not delivered the schedule property even after obtaining the grace period of 3 months i.e. on or before 27.10.2012. The complainant submitted that he paid the amounts as per the price structure given by the opposite party vide Ex.A4. The complainant paid booking advance of Rs.19,815/-, also paid 10% of booking amount within 30 days, an amount of Rs.1,81,629/- and he paid 15% at the time of construction of basement Rs.2,72,445/- and also paid Rs.74,111/- and Rs.3,06,380/- and Rs.4,00,000/- vide Ex.A3 (Bunch of receipts issued by the 1^st opposite party). The complainant further submitted that he paid a total amount of Rs.6,19,000/- + Rs.10,61,665/- + Rs.1,35,625/-. As per his version, he paid a total amount of Rs.15,86,780/- for construction of the flat. He also submitted that he has to pay the remaining balance of Rs.2,29,510/- to be payable only after completion of painting and before handing over of the flat. He also submitted that the opposite parties failed to handover the flat within stipulated time. The complainant filed the correspondence between him and the 1^st opposite party vide Ex.A9 and A10 and the opposite parties failed to hand over the flat even inspite of repeated demands and he got issued a legal notice through is advocate vide Ex.A5 and the opposite parties acknowledged the same vide Ex.A7 and gave a reply vide Ex.A8.

            The opposite parties also admitted that the complainant booked a flat and the same was registered and also paid the amount as per the agreement. The opposite parties submitted that they have given repeated demand notices for payment of balance due amount i.e. Rs.2,29,510/- vide Exs.B1, B2, B3, B4 and B5. They have also filed Agreement of sale vide Ex.B6 and also filed the Circular of resolution passed by the majority of Directors of the opposite parties vide Ex.B7. The 1^st opposite party filed the Development Agreement-cum- General Power of Attorney vide Ex.B8. The opposite parties submitted that the complainant has not come to the Forum with clean hands and suppressed the material facts. The opposite parties filed various court proceedings before this Forum vide Exs.B9, B10, B11 & B12.

            The opposite parties denying all the allegations made by the complainant and they are progressing towards completion of construction. They also submitted that there is no deficiency in service on their part and the complaint may be dismissed.

            After perusing the material on record, it is observed that the complainant purchased the Flat and the sale deed was executed by the 1^st opposite party on 31.1.2011.  It is also evident that the complainant paid Rs.6,19,000/- vide Ex.A1. The complainant booked the semi finished flat, the opposite parties in Plot No.164 and the Flat No.103 in the first floor. The complainant and the 1^st opposite party entered into an agreement of construction for semi finished flat on 31.1.2011. As per the terms and conditions of the agreement the complainant paid the amounts to the opposite parties under various dates vide Ex.A3. The complainant contended that the opposite parties promised to deliver the flat by 18 months with a grace period of 3 months i.e. from the date of agreement dated 27.1.2011. The opposite parties also accepted in Clause-6 of the Agreement that “the 1^st party commits breach of the covenants of this agreement, he shall be liable to refund the money paid towards installments @ 12% interest, all agreement of sale terms and conditions will apply and sale deed can be revoked in case of default by the 2^nd party (vendee/purchaser). In case of any delay in completion of said Villa within the stipulated period mentioned in this agreement, the Vendor/Developer/Builder is liable to pay the Vendee/purchaser/owner a sum of Rs.2/- (Rupees two only) per sq. feet towards liquidated damages, subject to Force Majeure Conditions.”    

            As per the terms and conditions, the opposite parties have to hand over the flat before 27.10.2012 including of grace period of 3 months, but they are not hand over the possession of the flat nor finished the work as per the agreement till date. They also not provided lift to the building and the opposite parties are authorized to complete the construction as per the agreement.  He also contended that without completing the work they demanded the remaining balance. The complainant further contended that he approached the opposite parties several times and finally he got issued the legal notice to pay Rs.6,00,000/- due to the complainant after deduction of the amount if any, still due and receivable by the complainant as per the agreement. The opposite parties replied the notice with false allegations and ignored the terms and conditions of the agreement and gave evasive replies.

            The complainant relied on the following citations:

 Puneet Malhotra Vs. Parsvnath Developers Ltd and in other complaints, “a common order is pronounced by the National Consumer Disputes Redressal Commission dated 29.1.2015.” The facts and circumstances of the above said citations are very much applicable to the facts of the present on hand.

            The opposite parties contended that there is no deficiency in service on their part and the 2^nd opposite party has taken over the company and its development project relating to construction of apartments and villas etc. in an extent of Ac.46.72 ½ cents in Velugubanda Village, Rajanagaram. He also contended that even inspite of several problems, he completed the construction of some apartment complexes and villas and delivered to the purchasers. They also contended that the present complaint is filed only to show that there are lapses on the part of the opposite parties. They further contended that the complainant did not respond to the demand notices vide Exs.B1, B2, B3, B4 & B5. On the other hand, he filed this false complaint knowing that this Forum has no jurisdiction to entertain the disputes between the parties. He further contended that there is scarcity of raw materials more particularly sand even then this opposite party progressing with the construction work to complete the apartments. The complainant has not even any reply for the demand notice dated 7.11.2014. He also submitted that there is a change of management, the 1^st opposite party is taken over by the 2^nd opposite party at this venture, the Managing Director of 1^st opposite party filed several cases against this opposite party and filed Exs.B9, B10, B11 & B12, these documents are no way concerned to the case of the complainant. The 2^nd opposite party further contended that there are no willful latches on their behalf and there is no deficiency in service on their part.         

            Under the facts and circumstances of the above said discussion, it is observed that the complainant purchased the flat from the 1^st opposite party and paid the amounts as per the terms and conditions. It is also observed that except one installment i.e. Rs.2,29,510/-, the complainant paid the entire amount to the 1^st opposite party. As per the agreement, the above said amount will be paid only at the time of taking the possession of the flat. It is further observed that the opposite parties without completing the works as per the agreement, issued demand notices for payment of balance amount by the complainant. As per the agreement, the opposite parties delivered the flat on or before 27.10.2012 including the grace period of 3 months, but as per the records, the opposite parties even till today they have not delivered the flat to the complainant and also not completed the works as per the terms and conditions. The opposite parties stated that he could not complete the works due to various problems such as non-availability of sand etc. For which, the complainant cannot be held responsible for any delay in overcoming such problems. The opposite parties have to complete the work as per the terms and conditions of the agreement and it is their duty to complete the construction work. The complainant submitted that as per the agreement, the opposite parties have to pay Rs.2/- per sq. feet of the built up area of the residential unit in the schedule-B for every month of delay up to a maximum period of 6 months, but as far as the present case on hand, there is an inordinate delay i.e. nearly 4 years in delivering the flat to the complainant by the opposite parties. Therefore, the opposite parties have to pay Rs.2/- per sq. feet of built up area of residential flat mentioned in the schedule-B as per terms and conditions of agreement from the date of the handing over the flat i.e. 27.10.2012 till date. The opposite parties failed to deliver the apartment to the complainant even inspite of repeated demands and also got issued a legal notice. This amounts to deficiency in service on the part of the opposite parties. As per the material on record it is noticed that the complainant made lot of correspondence and also approached the opposite parties. The complainant submitted that even inspite of receiving all the installments except the final installment and did not deliver the flat, but they gave evasive replies due to that the complainant contended that he had lot of mental agony.

            Basing on the above observations, we opined that there is a deficiency in service on the opposite parties in not completing the flat and they have to pay damages to the complainant to a tune of Rs.2,00,000/- and we also opined that the opposite parties is directed to complete the flat of the complainant as per the terms and conditions of the agreement vide Ex.A2 and also directed the complainant to pay the balance amount to the opposite parties on the date of delivery of the flat.     

               

8.   POINT No.3:  In the result, the complaint is allowed in part, directing the opposite parties to complete the Flat of the complainant as per the terms and conditions of the Agreement and the complainant is also directed to pay the balance amount of Rs.2,29,510/- to the opposite parties. We further direct the opposite parties to pay Rs.2/- as per Condition-6 of the Agreement from 27.10.2012 till date and also pay Rs.2,00,000/- towards damages for causing mental agony in non-delivery of the flat within the stipulated time to the complainant. We further direct the opposite parties to pay Rs.5,000/- towards costs of the complaint to the complainant. Time for compliance is two months from the date of this order.   

 

Typed to dictation, corrected and pronounced by us in open Forum, on this the 8^th day of August 2016.

    

                   Sd/-                                                                                               Sd/-

              MEMBER                                                                              PRESIDENT(FAC)

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

 

FOR COMPLAINANT: None.                                         FOR OPPOSITE PARTIES: None.

 

DOCUMENTS MARKED

 

FOR COMPLAINANT:

Ex.A1    Sale deed dt.31.1.2011 under document No.779/2011 (attested copy).

Ex.A2    Agreement of construction semi-finished flat dated 31.1.2011 (attested copy).

Ex.A3    Payment Receipts dated 31.1.2010, 16.7.2010, 26.8.2010, 15.10.2011

              and 1.11.2012 and cheque dt.31.1.2011 and cheque dt.30.7.2011.

Ex.A4    Payment schedule/price structure for apartments.

Ex.A5    Legal notice dated 8.10.2014 issued to the opposite parties.

Ex.A6    Returned cover from the 1^st opposite party.

Ex.A7    Acknowledgement from the 2^nd opposite party.

Ex.A8    Reply dated 18.10.2014 to legal notice dated 8.10.2014 from the 2^nd opposite party.

Ex.A9    The copy corresponding E-mail copies with the 1^st opposite party, number in two.

Ex.A10  Demand notice sent by the 1^st opposite party to the complainant.

 

FOR 2^nd OPPOSITE PARTY:-  

 

Ex.B1    Demand notice dated 7.11.2014 issued to the complainant.

Ex.B2    Demand notice dated 5.9.2014 issued to the complainant.

Ex.B3    Demand notice dated 4.8.2014 issued to the complainant.

Ex.B4    Demand notice dated 4.7.2014 issued to the complainant.

Ex.B5    Demand notice dated 4.6.2014 issued to the complainant.

Ex.B6    Copy of Agreement of Sale dated 27.1.2011.

Ex.B7    Board Resolution dated 24.8.2015.

Ex.B8    Attested copy of Joint Development Agreement dated 19.6.2009 registered as Doc.

              No.1891/2009 in the office of SRO at Rajanagaram.

Ex.B9    Attested copy of served copy of plaint in O.S.No.9/2012 on the file of Family cum

              IX Addl. District Judge at Rajahmundry between M/s. Vision Ventures & 2 others

              and M/s. Vision Heights & others including opposite party No.2.

Ex.B10  Attested copy of served copy of orders in I.A.No.655/2012 and in I.A.No.656/2012

              in O.S.No.161/2012 on the file of 2^nd Addl. Chief Judge, City Civil Courts,

              Hyderabad dated 25.6.2012 in between M/s. Vision Ventures & others and M/s.

              Vision Heights & others.

Ex.B11  Attested copy of served copy of the complaint copy served on 2^nd opposite party

              which is filed against the 2^nd opposite party and others in C.C.No.398/2013 on the

    file of Spl. Judge for economic offences at Hyderabad.

Ex.B12  Attested copy of served copy of the complaint copy served on the 2^nd opposite party

              which is filed against the 2^nd opposite party and others in O.S.No.78/2012 on the file

              of 2^nd Addl. Chief Judge city civil court at Hyderabad.

                     

                     Sd/-                                                                                                         Sd/-                                                          

                 MEMBER                                                                                       PRESIDENT(FAC)