BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD

FA NO. 487 OF 2014 AGAINST CC NO.196 OF 2012

ON THE FILE OF DISTRICT FORUM,  RANGAREDDY

Between:

1)       K.Balajirao S/o Chandraiah,

Aged about 39 years, Occ: Software Engineer,

R/o 15-11-19/2/3/B, Saleemnagar Colony,

Malakpet, Hyderabad, presently residing

at H.No.189/29, Boyscnberry Drive

Apartment, 301, Contharsburg, Maryland-20879,

USA.  Rep. by his S.P.A. Mr.K.Bhavya Teja.

2)       K.Bhavya Teja S/o Venugopal,

          Aged about 29 years, Occ: Business,

          R/o 7-3/A, Bharathnagar,

          Uppal, Hyderabad, Ranga Reddy district.

… Appellants/Opposite parties

And

Shashi Kumar S/o Keshav Ram,

Aged about 41 years, Occ: Govt. Employee,

R/o 1-5-68/5, Phanigiri Colony,

Chaitanyapuri, Dilsukhnagar,

Hyderabad – 60. R.R. District.

… Respondent/Complainant

Counsel for the Appellants                  :         M/s P.L.N.Simham & Associates

Counsel for the Respondent       :         Sri P.Raja Sripathi Rao

Coram                  :

Hon’ble Sri Justice B.N.Rao Nalla   …      President

Friday, the Eleventh day of March

Two thousand Sixteen

Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)

***

1)       This is an appeal preferred by the Opposite party against the orders of the District Forum, Rangareddy dated 13.08.2013 made in C.C.No.196 of 2012 directing them to complete the pending works in the complainant’s flat as per the agreement and to handover the possession within 2 months from the date of this order.  The Opposite parties are also directed to provide and allot car parking to the Complainant in the complex, and further directed to pay monthly rental value of Rs.4,500/- from 10.03.2012 till possession of the flat is handed over with costs of Rs.5,000/-.

2)       For the sake of convenience, the parties are referred to as arrayed in the complaint.

3)       The case of the complainant, in brief, is that the Opposite parties 1 and 2 entered into an Agreement of sale with the Complainant to sell the flat bearing No.103 (Old), new No.102-B of Teja Enclave, 1^st Floor, admeasuring 500 sft. Including common area with undivided share of 25 square yards, constructed on Plot No.15 in Sy.No.95/5, situated at New Maruthinagar, Kothapet village, Uppal Mandal, Ranga Reddy district, for a total sale consideration of Rs.9,00,000/- and reduced the same into writing on 08.10.2011 by receiving advance sale consideration of Rs.3,00,00/- and agreed to execute sale deed in favour of the Complainant within a period of 4 months therefrom by receiving the balance sale consideration of Rs.6,00,000/-. 

4)       That, as per terms of the agreement, the Opposite party No.1 executed a sale deed vide Doc.No.902/2012, dated 17.01.2012 in favour of Complainant by receiving the balance sale consideration of Rs.6,00,000/- in “semi-finished” condition not habitable to live.  Opposite party No.1 went abroad executing a Special Power of Attorney in favour of the Opposite party No.2 on the same day i.e., on 17.01.2012 for compliance of terms of sale, but the Special Power of Attorney was not registered, instead it was duly stamped on 28.01.2012 in File No.412/Vol/2012 of District Registrar, Ranga Reddy (East) district. 

5)       As the flat was not habitable on account of incomplete works, the Complainant made several requests and demands for completion but the Opposite party No.2 dodged the matter on one pretext or other and on 03.03.2012, he executed an Undertaking-cum-affidavit in favour Complainant admitting non-delivery of possession due to some constructional problem and further promised to pay the monthly rent of Rs.4,500/- till handing over of the possession of flat, as per the terms of agreement of sale dated 08.10.2011 with car parking, within a period of 7 days.

6)       As the Opposite party No.2 failed to comply with the Undertaking, the Complainant got issued notice on 26.09.2012 calling upon to pay rents in pursuance of the Undertaking-cum-Affidavit and to complete the left-over works, on receipt of the same, the Opposite party No.2 stated to have approached Complainant and requested not to initiate legal proceedings promising to complete the remaining works and would handover the flat, but in vain, which necessitated the Complainant to file the complaint.  Hence, prayed to direct the Opposite parties to complete the semi-finished flat and handover possession of the same with car parking within the period as prescribed by the Forum along with rent of Rs.4,500/- from the date of Undertaking i.e., 03.03.2012.

7)       The Opposite party No.2 resisted the claim contending that the complaint is not maintainable either in law or on facts and liable to be dismissed in limine with exemplary costs as Complainant approached with unclean hands and hence not entitled for equitable relief.  He admitted execution of Agreement of sale agreeing to sell the subject flat for a total consideration of Rs.9,00,000/- and receiving of Rs.3,00,000/- towards advance and also admitted execution of sale deed dated 17.01.2012 bearing document No.902/2012 and receipt of balance sale consideration of Rs.6,00,000/-.  But denied execution of Undertaking-cum-affidavit dated 03.03.2012 and also the payment of rents @ Rs.4,500/- per month.  He also denied to have received the legal notice dated 26.09.2012 and also approaching the Complainant with a request not to initiate any legal proceedings.

8)       He further contended that Complainant never suffered any mental agony and there arose no cause of action.  Hence prayed to dismiss the complaint with exemplary costs. 

9)       During the course of enquiry before the District Forum, in order to prove his case, the Complainant filed his evidence affidavit and got marked Exs.A1 to A5 and also filed written arguments and on behalf of Opposite parties, no evidence was let-in in the form of affidavit nor filed any written arguments. 

10)     The District Forum after considering the material available on record, allowed the complaint bearing C.C.No.196/2012 by orders dated 13.08.2013 and ordered as stated in paragraph no.l supra.      

11)     Aggrieved by the said orders, the Appellants/Opposite parties preferred this appeal contending that the Forum below failed to consider whether the complaint is maintainable or not; failed to examine whether the documents filed are genuine or not; failed to see that the Complainant did not pay any amount towards car parking; that the forum below failed to see when the Complainant did not pay the total amount including car parking, he is not entitled for rental value and that there is no deficiency in service on their part.  Hence, prayed to allow the appeal setting aside the orders of forum below.

12)     The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner?  To what relief ?

13)     During the course of arguments, while reiterating the grounds raised in the appeal, the learned counsel for the Appellants further submitted that first appellant is the land owner and second appellant is the Special Power of Attorney holder, for execution of sale deed in respect of schedule property bearing Flat No.102-B admeasuring 500 sft. Including common areas with undivided share of land of 25 sq.yards, situated at New Maruthi Nagar, Chaitanyapuri, Kothapet village.  The 2^nd Appellant executed sale deed in favour of the Respondent on 17.01.2012 vide document No.902/2012, registered on 28.01.2012.  The matter was settled between the parties amicably and physical possession of the flat was already handed over to the Respondent along with key and during the pendency of proceedings before District Forum, the said keys were returned to the counsel for the Appellants, which does not find place in the impugned order and the said fact vitiates the impugned order. 

14)     On the other hand, the learned counsel for Respondent would contend that both sides are bound by their pleadings and that some of the pleas raised by the counsel for the Appellants do not find place in the pleadings initially when the matter was proceeded with before the District Forum.  Delivery of physical possession of the flat is no where stated in the pleadings either before the Forum below or before this Commission and hence, Appellants cannot be permitted to travel outside their pleadings.  They cannot be permitted to raise new pleas which are not relevant to decide the appeal.  The Appellants cannot be permitted to seek relief as per the terms of Ex.A1 and A2.  On their failure to comply with the terms of Ex.A1 and A2, Ex.A4 was executed which was authenticated by Notary.  He denied amicable settlement between the parties. 

15)     Admittedly, there is no denial from either of the parties that the entire sale consideration is received as also execution of the sale deed dated 17.01.2012 registered as document No.902/2012 on 28.01.2012 in pursuance of Agreement of sale dated 08.10.2011. 

16)     A perusal of Ex.A1 Agreement of sale dated 08.10.2011, stated to have been executed by the 2^nd Appellant as Development Agreement-cum-G.P.A. holder of 1^st appellant goes to show that he agreed to sell the semi-finished flat in question for the total sale consideration of Rs.9,00,000/- and acknowledged the receipt of Rs.3,00,000/-.  On the last page of the said agreement of sale (i.e., 4^th page) at schedule of the property, it is written in handwriting as “along with car parking”, which does not find place at the description of the property made at 2^nd page of the same document.  Ex.A2 is the subsequent deed executed by the 2^nd Appellant holding Special Power of Attorney on behalf of the 1^st appellant, on 17.01.2012 presented to the Registering Authority on 28.01.2012 and registered as document No.902/2012.  Surprisingly, in the said document too, there is no mention of car parking either in the body of the document or in the schedule of the subject property sold.

17)     On perusal of Ex.A3, which is stated to be the Special Power of Attorney executed by the 1^st appellant in favour of 2^nd appellant, it is crystal clear that there is no mention of “along with car parking” anywhere in the document.  Even if the legal notice which is marked as Ex.A5 is perused, it also disproves the contention of the Respondent that the subject flat was sold along with car parking.  Admittedly, Ex.A2 and Ex.A5 are subsequent documents after giving effect to Ex.A1 document.  If really there had been an agreement to sell the subject flat along with car parking, really there would have been a mention in the sale deed as well as in the legal notice marked as Ex.A2 and A5.  It is to be stated here that admittedly, the 1^st Appellant gave the Special Power of Attorney to sell the subject property to the Respondent herein, where too, there is no mention of “along with car parking”.  Without passing on the right, title and interest in respect to car parking, the 2^nd Appellant is not entitled to make any agreement to that effect, even if any agreement is made to that effect, it will become void ab initio.  From the perusal of documents, it appears that the words “along with car parking” were conveniently inserted to make unlawful gain. 

18)     As rightly contended by the Appellants in their grounds of appeal, the Forum below failed to consider the documents properly and thereby committed error in giving credence to Ex.A4 document executed without passing on right, title and interest by the 1^st appellant in favour of 2^nd appellant for such an act or deed.  Except this aspect, the forum below has rightly considered the other aspects in right perspective and came to a right conclusion. 

19)     In the above facts and circumstances, this Commission is inclined to set aside the order to the extent of directing the appellants to provide and allot car parking to the Respondent and confirms the order in all other respects.  Accordingly, the appeal is allowed in part modifying the order of the Forum below to that extent. The point is answered accordingly.

20)     In the result, the appeal is allowed in part modifying the order dated 13.08.2013 passed in C.C.No.196/2012 by the District Consumer Forum, Rangareddy to the extent of directing the Appellants/Opposite parties to provide and allot car parking in respect of the subject property and confirming the order in all other respects.  The parties to bear their own costs.  Time for compliance four weeks.

PRESIDENT

Dt. 11.03.2016