C.C. 17 of 2011

Between:

 1)  N. V. G. Krishna Kumar

S/o. N. L. Narsimha Rao

2)  Smt. N. Sandhya Kumari

W/o. NVG Krishna Kumar

Both R/o. Pruthvi Apartments

Block  No. 2, Flat No. C1

12-5-49/1, Vijayapuri

Tarnaka, Secunderabad.                             ***                           Complainants

                                                                   And

M/s. Ascent Infratech  Properties India (P) Ltd.,

Rep. by its Managing Director

SNV Siva Kumar Raju,

S/o.  Late Rama Krishnam Raju

O/o. # 207, Rama Krishna Nivas,

Plot Nos. 23, 24, 27 & 28

Sai Kunj Layout, Bachupally,

Ranga Reddy Dist.                                      ***                           Opposite Parties  

Counsel for the Complainant:                    M/s. B.N. Swamiji

Counsel for the Respondents:                              Ex-parte.  

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

                                             SRI R. L. NARASIMHA RAO, MEMBER

&

                                            SRI T. ASHOK KUMAR, MEMBER

THURSDAY, THE SECOND DAY OF SEPTEMBER TWO THOUSAND ELVEN

ORAL ORDER:  (Per Hon’ble Sri Justice D. Appa Rao, President)

***

1)                This is a complaint filed u/s 17(a)(1) of the Consumer Protection Act for the following reliefs:

                                     I.      To direct the opposite party to complete the pending works  in all aspects and hand over the flat No. 204, admeasuring 1630 sft in Viswanadha Residency, Bachupalli, Ranga Reddy Dist.

                                   II.      To pay interest  @ 36% p.a., on an amount of Rs. 34.50 lakhs from 10.62008  till date.

                                III.      To pay Rs. 5 lakhs towards mental agony and trauma suffered by the complainants.

                                IV.      To pay  Rs. 5,000/- towards costs.

2)                The  case of the complainants in brief is that   he purchased a flat No.  204 admeasuring  1630 sft  from the opposite builder/developer  for a consideration of Rs.  35 lakhs  though the actual cost was Rs. 38,50,000/-  including registration  charges.    He had paid an amount of Rs. 34,50,000/-  on various dates in all 90% of the cost.    However, the opposite party had agreed to complete the construction within 10 months from the date of agreement  viz., by  15.9.2008.   Despite the above payment the opposite party did not complete the structures viz.,   staircase, railing inside and outside,  electrical fittings, plumbing fittings, wall paintings, floor polishing nor provided car parking area, water and sewerage arrangements etc.   It  had agreed to pay Rs.  8,000/- per month  from 15.9.2008 to 14.6.2010 which comes to Rs. 1,68,000/- towards rent and future rent  till handing over of possession.    The banker forced him to pay  the loan amount and closed the account on 12.1.2009.    He had to pay  Rs. 4 lakhs towards balance.   Though it executed registered sale deed  it did not hand over possession.   While so on   24.5.2010 the opposite party issued legal notice for which he gave reply demanding interest  @ 36% p.a.,  on Rs. 34,50,000/- from 10.6.2008 which would come to Rs. 24.84 lakhs.    The opposite party had to pay Rs. 1.68 lakhs  rent + interest  Rs. 24.84 lakhs  in all Rs. 26.52 lakhs.   After deducting  a sum of Rs. 4 lakhs payable by him  the opposite party  has  to pay Rs. 22.52 lakhs.     Therefore while directing the opposite party to complete the pending works  sought for recovery of Rs. 34.50 lakhs with interest @ 36% p.a.,  besides  Rs. 5 lakhs towards compensation for mental agony and  Rs. 5,000/- towards costs.

 3)                Despite several notices  and even to the last known address  notices were returned with endorsement ‘left’.  Since it is  the last known address   the  notice deemed to be sufficiently served as provided u/s 28A (4) of he Consumer Protection Act.     It reads as follows:

28A.     Service of notice, etc. - (1) All notices required by this Act to be served shall be served in the manner hereinafter mentioned in sub-section (2).

(2)  The service of notices may be made by delivering or transmitting a copy thereof by registered post acknowledgment due addressed to opposite party against whom complaint is made or to the complainant by speed post or by such courier service as are approved by the District Forum, the State Commission or the National Commission, as the case may be, or by any other means of transmission of documents (including  FAX message).

(3)  When an acknowledgment or any other receipt purporting to be signed
by the opposite party or his agent or by the complainant is received by the District Forum, the State Commission or the National Commission, as the case may be, or postal article containing the notice is received back by such District Forum, State Commission or the National Commission, with an endorsement purporting to have been made by a postal employee or by any person authorized by the courier service to the effect that the opposite party or his agent or complainant had refused to take delivery of the postal article containing the notice or had refused to accept the notice by any other means specified in sub- section (2) when tendered or transmitted to him, the District Forum or the State Commission or the National Commission, as the case may be, shall declare that the notice had been duly served on the opposite party or to the complainant :

Provided that where the notice was properly addressed, pre-paid and duly sent by registered post acknowledgment due, a declaration referred to in this sub-section shall be made notwithstanding the fact that the acknowledgment has been lost or mislaid, or for any other reason, has not been received by the District Forum, the State Commission or the National Commission, as the case may be, within thirty days from the date of issue of notice.

(4)  All notices required to be served on an opposite party or to complainant shall be deemed to be sufficiently served, if addressed in the case of the opposite party to the place where business or profession is carried and in case of complainant, the place where such person actually and voluntarily resides.

4)                The complainants in proof of  their case filed their affidavit evidence and got Exs. A1 to A19 marked.

5)                The points that arise for consideration are :

i)        Whether the complainants are entitled to any amount? 

ii)       Whether the opposite party is liable  to finish the pending works?

iii)      If  so  to what relief?

6)                 It is an undisputed fact that the complainant has purchased flat  No. 204 admeasuring 1630 sft  in Viswanadha Residency, Bachupalli in Ranga  Reddy  for a sum of Rs. 35 lakhs   vide  agreement of sale  Ex. A7  however an amount of Rs.  9,11,500/- was mentioned in the registered sale deed dt. 15.11.2007  Ex. A10.    It is also not in dispute that at the  earliest the opposite party issued  legal notice on  24.5.2010 vide Ex. A14  demanding balance of Rs. 4 lakhs. 

7)                From the pleadings as well as affidavit evidence it is beyond  doubt that  the opposite party executed  registered  sale deed for the flat as long back as on 15.11.2007.  It is also not in dispute that the possession  was also delivered.  Now the complainant  alleges that some of the constructions  were not completed.  To prove the said fact he filed some photographs.  It is not known why the complainant  all through  not demanded for completion of those structures while the possession was delivered to him way back on 15.11.2007.  Evidently,  the sale deed for a lesser amount was taken, obviously  to evade lawful stamp duty and registration charges to the Government.    The complainant equally  for the reasons  not known did not take out either a Commissioner or an Engineer to certify that  structures were not completed.    In fact  pending works were valued  in the agreement of construction dt. 15.11.2007 at Rs. 1,89,500/-.    What  all it was mentioned was “ the developer agreed to  complete the following works as mutually agreed over the said property as follows :

Structure:                                 RCC framed structure

Walls mortar                             Table moulded red bricks in cement

Super Structure:                       Plastering on both  inside and outside

Main doors & Windows:             Frames with MS safety grills

The above work has been estimated to a tune of Rs. 1,89,500/-  and the pending work will be completed within a period of 10 months  from this date of agreement.  The amount of Rs. 1,89,500/-  will be paid by the purchaser to the developer.”

8)                The complainant was unable to show the stipulation where the opposite party  has agreed to pay the rent.    There is no stipulation if the works are not completed within a period of  10 months  the opposite party would pay rent or any amount as contended by the complainant.  If really that were to be so,   he could have filed the affidavit evidence of remaining flat owners.  Except his self-serving testimony  it is neither evidenced by  the documents nor from construction agreement. Obviously as the opposite party demanded balance sale consideration  the complainant has come up with this complaint  to complete some of the structures, however, claimed the amount towards  rent and interest @ 36% p.a.,  computing  more than what he had to pay towards balance of sale consideration.  He himself admits that he lost his job, and therefore was unable to pay.  It is clear that the  opposite party in order to claim  remaining balance threatened  it would  take action for recovery of amount.   The disbursement letter issued by the complainant addressed to the bank to release an amount of Rs. 4 lakhs was  not honoured.     Therefore the opposite party cautioned the complainant that it would take action u/s  420 of IPC.  On that the complainant claimed these amounts.  It is not known how he could get   interest @ 36% p.a.,  that too on the amount,  which the opposite party had agreed to pay towards rents,  the stipulation of which does not find in the agreement.     What all the complainant is entitled to is for  a direction to complete the unfinished works provided pays  Rs. 4 lakhs towards balance of sale consideration.   In regard to other claims the complainant could not substantiate, therefore, we are unable to grant the same.

9)                In the result  the complaint is allowed in part with costs computed at  Rs. 5,000/-  directing the opposite party  developer  to complete the  unfinished works within two months  on  receipt of Rs. 4 lakhs payable  by the complainant.  

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

3)      ________________________________

 MEMBER          

APPENDIX OF EVIDENCE

Witnesses examined for Complainants:                None

Witness examined for opposite party:                  None

Documents marked for complainants:

Ex A-1             Receipt for an amount of Rs.2,00,000/- issued by opposite party dt :                                         24.10.2007

Ex A-2             Receipt for an amount of Rs.2,00,000/- issued by opposite party dt :                                         24.10.2007

Ex A-3             Receipt for an amount of Rs.2,00,000/- issued by opposite party dt :                                         24.10.2007

Ex A-4             Receipt for an amount of Rs.2,30,000/- issued by opposite party dt :                                         24.10.2007

Ex A-5             Receipt for an amount of Rs.2,70,000/- issued by opposite party dt :                                         24.10.2007

ExA-6              Receipt for an amount of Rs.1,50,000/- issued by opposite party                                                           dt : 24.10.2007

Ex A-7             Copy of Agreement of Sale dt : 25.8.2007

Ex A-8             Part Disbursement Letter issued Axis Bank dt : 1.11.2007

Ex A-9             Statement of Account dt : 10.6.2008

Ex A-10           Copy of Registered Sale Deed bearing Document No. 1554 /2007

                        dt :15.11.2007

Ex A-11           Copy of Registered Agreement of Construction for Semi Finished Flat                                       bearing Document No. 1554/2007 dt : 15.11.2007

Ex A-12           Letter for Closure of Loan account issued by Axis Bank dt : 12.1.2009

Ex A-13           Certificate of Closure of Loan of complainant No.1 dt : 12.1.2009

Ex A-14           Legal notice issued by counsel for opposite party dt : 24.5.2010

Ex A-15           o/c of Reply notice dt : 2.6.2010

Ex A-16           Returned postal acknowledgement duly signed by counsel for opposite                                      party dt : 8.6.2010.

Ex A-17           Returned postal Cover from opposite party dt : 8.6.2010

Ex A-18           Photographs (13 nos) and CD dt : 31.5.2010.

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

3)      ________________________________

 MEMBER          

                                                                                      02/09/2011

*pnr

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