C.C.No.85 OF 2011

Between

C.Premsagar Chowdary S/o.late Challa Kondaiah

Aged 56 years, Occ:Govt.Servant,

R/o.Flat No.101, Sreelakshminilayam, No.1/3,

Gouthamnagar, Dilsukhnagar, Hyderabad.               ..Complainant

        And

1. Sri Sikhara Constructions having

    office at Flat No.102, Sphinix Apartments,

    Street No.1, Himayathnagar, Hyderabad.

    Being rep. by its Managing Partner,

    K.Vishnuvardhan Reddy,

    S/o.late K.Kista Reddy, aged 46 years

    Occ:Business, R/o.Flat No.301,

    Star Homes, Domalguda, Hyderabad.

2. K.Vishnu Vardhan Reddy S/o.late K.Kista Reddy

    Aged 46 years, Occ:Business, R/o.Flat No.301,

    Star Homes,Domalguda, Hyderabad.

3. R.Narasimha Reddy S/o.late R.Satyanarayana

    Reddy, aged 52 years, Occ:Business,

    R/o.102 Sphinx apartments, Streeet No.1,

    Himayathnagar, Hyderabad.

4. Jaligama Prakash S/o.Late J.Balaiah @ Balappa

    Aged 55 years, Occ:Business,

5. Jaligama Ramesh S/o.Late J.Balaiah @ Balappa

    Aged 50 years, Occ:Business,

6. Jaligama Suresh S/o.Late J.Balaiah @ Balappa

    Aged 47 years, Occ:Business,

7. Jaligama Ashok S/o.Late J.Balaiah @ Balappa

    Aged 42 years, Occ:Business,

Opposite parties 4 to 7 all are R/o.H.No.3-6-369/A/22,

 Street No.1, Himayatnagar, Hyderabad.                     Opp.parties 1 to 7

Counsel for the Complainant         :  M/s P.Rajasripathi Rao

Counsel for the Opposite parties   : Mr.S.Ramachandra Prasad-O.Ps.1  & 3

Notice of O.Ps. 1 & 2 returned as   

‘refused’

  Mr.Mohd.Abdul Samad-O.P.5

                                                  Mr.M.Durga Prasad 4,6 and 7

QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,

SMT.M.SHREESHA, HON’BLE MEMBER,

AND

SRI S.BHUJANGA RAO, HON’BLE MEMEBR.

FRIDAY, THE SEVENTH DAY OF SEPTEMBER,

TWO THOUSAND TWELVE

Order (Per Smt.M.Shreesha, Hon’ble Member)

***

        The brief facts as set out in the complaint are that the complainant entered into an agreement of sale  for purchase of flat No.501 in Vth floor admeasuring 947 sft. for a total sale consideration of Rs.33,00,000/- and paid an amount of Rs.25,00,000/-  in cash as on 06-10-2007 and opposite party No.2 having received the part sale consideration had issued valid receipt for the same.  Opposite parties 1,2 and 3 are the builders and opposite parties 4 to 7 are the land owners and a Development Agreement was executed between them on 29-8-2005 for construction of 20 flats.  The complainant submitted that as per the understanding interse between  opposite parties 2 and 3 opposite party No.2 executed unregistered agreement on 06-10-2007 and assured that they will handover the physical possesion of the scheduled flat within 24 months from the date of execution of agreeemnt of sale i.e. on or before 05-10-2009.  The complainant submitted that opposite parties 1 to 3 with a malafide intention to create damage and loss to him, stopped the construction and inspite of repeated requests there was no response from them and opposite party No.3 behaved highhandedly and challenged the complainant to approach any civil court of law.

        The complainant further submitted that being vexed with the attitude of opposite parties 1 to 3, the complainant got issued a legal notice dated 11-6-2011 calling upon the opposite parties to complete the construction work and opposite parties having received the legal notice failed to give any reply while notice to opposite party No.1 returned with a postal endorsement ‘ no such person’.   The complainant submitted that because of the interse disputes between opposite parties 1 to 3, the complainant cannot be put to loss and could not complete the project in the given time schedule  and there is no likelihood of settlement of disputes between opposite parties 2 and 3 and taking advantage of this, opposite parties 4 to 7, who are landlords are contemplating  cancelling, terminating  Development agreement and create a charge or third party encumbrance over the property and in such an event, the complainant will be put to irreparabale loss.  The complainant submitted that as per the agreement of sale dated 06-10-2007, the schedule flat has to be handed over on or before 05-10-2009 but looking at the present stage, it is impossible for opposite party No.1 to complete the construction and in turn opposite party No.3 is demanding excess sale consideration to commence the work in the schedule property which is illegal and arbitrary and amounts to unfair trade practice and deficiency in service.  The complainant further submitted that opposite parties 1 to 3 are trying to abandon the project leaving the complainant to his fate and hence opposite parties 4 to 7 are also proper and necessary parties and that this Commission passed orders in CC No.2 and 3/2010 directing opposite parties to perform their part of obligation as per agreement of sale and since the schedule property of the complainant and the consumer complaints mentioned above are in the same complex, the orders passed in the above C.Cs. may be considered for adjudication of this complaint.  Hence the complaint for a direction to the opposite parties jointly and severally

i)                           to hand over the scheudle flat to the complainant by completing the construction in all perspective in the premises bearing No.3-6-369/A/22, Street No.1, Himayatnagar, Hyderabad,

ii)                         to register the sale deed  in favour of the complainant,

iii)                      to pay a sum of Rs.28,00,000/- together with interest 2 24% p.a.

iv)                       to pay compensation of Rs.5,00,000/-

v)                         award costs of the litigation.

        Opposite party Nos. 1 and 3 filed counter resisting the complaint and submitted that as many as 6 complaints were filed complaining non registration of the flats.  He submitted that a bare reading of the complaints goes to show that the complaints were filed by the complainants with active connivance and collusion with opposite party No.2 who swallowed and swindled away the amount mentioned in para 2 of the complaint without paying a single pie to him.  Opposite party No.3 submitted that  para 2 of the complaint referred to various payments and booking of flats and this is not within his knowledge and they are no way concerned with those allegations.  He submitted that there is no privity of contract between these opposite parties and the complainant.  Opposite party no.3 submitted that the complainant without making proper verification and enquiries with the firm entered into agreement of sale dated 06-10-2007 with opposite party No.2 in respect of flat No.501 situated in the premises bearing No. No.3-6-369/A/22, Street No.1, Himayatnagar, Hyderabad and surprising to note that opposite party No.2 have already entered into an agreement of sale dated 19-10-2009 with one B.Suman in respect of the very same flat No.501 and got filed CC 35/2011 which is pending before this Commission and mischeviously executed agreement of sale with the present complainant and got filed the present vexatious and frivolous complaint with a view to gain unjust enrichment and cause wrongful loss to the firm.  Opposite party No.3 submitted that on coming to know about the mischief played by opposite party No.2 on the purchasers as well as the firm for forging the signature of his, in a similar situation lodged complaints in FIR Nos. 66 and 67 of 2011 was lodged against opposite party No.2 and the complainants there in CC No.80/09, C.C.Nos.2 and 3 of 2010 and C.C.Nos.108 and 118 of 2010 for forging the signature and thumb impression of opposite party No.2 is pending investigation on the file of Nampally P.S. Hyderabad.  Opposite party No.3 submitted that the receipts and sale agreements alleged to have taken place are totally false and denied and submitted that opposite party no.2 became so habituated to take monies from the purchasers without accounting for the same or paying respective share to him and utilizing the amounts for his selfish ends and personal gains.   Opposite party No.3 denied that the construction work is not yet completed and in fact the entire work is over except internal work and even as per recitals (clause h) of Partnership deed, any kind of agreement or receipt of money is valid and binding the partners to the deed only and if it is signed by both the partners of the firm and submitted that he did not receive even a single pie or entered into any agreement of sale in respect to the subject flat.  Opposite party No.3 submitted that there is no proof or evidence to show that he received money or  entered into agreement as alleged by the complainant and even if it is true, it does not bind him  and he is not responsible or answerable for those payments.  Opposite party No.3 submitted that the complainant in collusion with opposite party No.2 created fictitious receipts and filed the complaint to harass him taking undue advantage of the disputes between him and opposite party no.2. The complainant who is employed in Nampally Criminal Courts is making best use of his position and acting hand in glove with opposite party  No.2 and  threatening opposite party No.3 and trying to extract money by unlawful means.  He denied that he and opposite party No.2 agreed for completion of construction in all respects of the schedule flat on or before 05-10-2009.  Opposite party no.3 denied the execution of agreement and submitted that he had no knowledge about receiving the sale consideration and execution of receipts for and on behalf of the firm  and the legal notice was not received by him and submitted that the allegations in the complaint are absolutely false and incorrect and submitted that there is no deficiency in service and prayed for dismissal of the complaint with costs.

        Opposite party no.5 filed counter resisting the complaint and submitted that the complainant has supressed the material facts and filed the complaint with false and baseless allegations and submitted that there is no relation of consumer and the complaint is filed without jurisdiction.  Opposite party No.5 denied the allegtion that opposite parties 1 to 3 entered into an agreement of sale with the complainant with respect to flat No.501 and paid sale consideration of Rs.25,00,000/- in cash on 06-10-2007 and that opposite party No.2 agreed to deliver possession within 24 months.  Opposite party No.5 also denied for want of knowledge the allegation that the complainant got issued legal notice on 11-6-2011 to opposite parties 1 to 3 calling upon them to commence the construction work and also denied that opposite parties 4 to 7 are contemplating of cancelling, terminating the development agreement and creating chage or third party encumbrance over the property.  Opposite party No.5 also denied the allegation that as per agreement of sale dated 06-10-2007, the schedule flat has to be handed over to the complainant and that opposite party No.3 is demanding excess sale consideration and that opposite parties 1 to 3 are trying to abandon the project and that opposite parties 4 to 7 are proper and necessary parties.  Opposite party No.5 submitted that he entered into an orgal agreement on 01-4-2007 with opposite party No.3 who is representing opposite parties 1 and 2 for purchase of proposed flat No.501 on 5^th floor admeasuring 1040 sft. along with undivided share of land of 30.58 sq. yds. @ Rs.3850/- with all amenities incuidng car parking (additionally to pay a sum of Rs.3,00,000/- for car parking and other amenities) which is a part of the property bearing  No.3-6-369/A/22, Street No.1, Himayatnagar, Hyderabad.  Opposite party No.5 further submitted that opposite parties 1 to 3 who were in urgent need of money offered to sell the above flat to opposite party No.5 for a total sale consideration of Rs.43,04,000/- @ Rs.3,850/- per sft. including Rs.3,00,000/- for car parking and other amenities and paid Rs.1,00,000/- to opposite party No.3 as on the date of oral agreement of sale on 10-4-2007 towards part sale consideration and thereafter reduced into writing on 09-5-2007 and on which date he paid a further sum of Rs.8,00,000/- to opposite party No.3 and as per demand of opposite party No.3 he also paid a sum of Rs.1,00,000/- on 08-3-2010.  Opposite party No.5 submitted that he has been demanding opposite parties 2 and 3 to perform their part of contract by receiving the balance sale consideration and execute a registered sale deed in his favour and the complaint has been invented by forging and fabricating the alleged agreement of sale dated 06-10-2007 only with an intention to defeat the rightful claim of opposite party No.5 and submitted that he is reserving his right to take appropriate legal action against opposite parties 1 to 3  for specific performance of agreement of sale and prayed for dismissal of the complaint.

        The complainant filed his affidavit in lieu of evidence reiterating the facts stated in his complaint and submitted that in view of assertions made in the counter by opposite party No.3, there is no possibility of getting the flat registered in his name and therefore sought for alternate relief of refund of money together with interest, compensation and damages and relied on Exs.A1 to A5.   Opposite party No.3 filed his affidavit reiterating the facts stated in his written version and opposite party No.3 filed his affidavit reiterating the facts stated in his counter and relied on Exs.B1 and B3.  Opposite party No.5 filed affidavit evidence reiterating the facts stated in his written version and relied on Exs.B4 to B6.

        Opposite party No.5 filed written arguments.

        The brief point that falls for consideration is whether there is deficiency in service on behalf of the opposite parties and if the complainant is entitled for the reliefs sought for in the complaint?

        It is the complainant’s case that he entered into an agreement of sale with the opposite parties/builder for purchase of flat No.501 and has paid Rs.25,00,000/- out of the total sale consideration of Rs.33,00,000/-.  It is also the complainant’s case that opposite party no.1 is a registered partnership firm of which opposite parties 2 and 3 are partners and they entered into a development agreement with opposite parties 4 to 7 who are the land owners for construction of a residential complex consisting of 20 flats out of which opposite parties 1 to 3 are entitled to 50% of the built up area.  Ex.A1, the agreement of sale, shows that it was entered into between the complainant and opposite party no.2 on 06-10-2007 for flat No.501 for a total sale consideration of Rs.33,00,000/- out of which admittedly Rs.25,00,000/- was paid to opposite party no.2.  it is pertinent to note that the signature of opposite party no.3 is not reflected in this agreement of sale, Ex.A1.  Ex.A4 include the receipts for Rs.25,00,000/- paid by the complainant to opposite party no.2 evidencing that the entire payment of Rs.25,00,000/- was made to opposite party No.2 only.    It is the contention of the complainant that the construction has not been completed as per the specifications given as per the schedule in Ex.A1 and inspite of getting a legal notice issued under Ex.A2 dated 11-6-2011 to opposite parties 1 to 3, there was no progress.  Opposite party no.2 did not file his written version.  It is the contention of opposite party no.3 that there is no privity of contract between the complainant and opposite party no.3 because he has never signed the agreement and has never received any amounts on behalf of opposite party no.1 firm.   The learned counsel for opposite party No.3 stated  that C.C. 35/2011 also deals with the same flat No.501 in the same residential complex.  The complainant’s prayer to handover the flat and to execute the sale deed is being disallowed because the agreement of sale itself has not been signed by both the partners i.e. opposite parties 2 and 3 but signed by opposite party no.2 alone which is against the terms of the partnership deed evidenced under Ex.B1.  It is not in dispute that flat No.501 fell to the share of the builder i.e. opposite parties 1 to 3.  Opposite party No.3 contend that an FIR was also registered against opposite party No.2 as they have forged his signature on documents and filed Ex.B2  evidencing the same.  Opposite party no.5 in his written arguments stated that an agreement of sale was executed between opposite parties 1 to 3 and opposite party no.5 for the same flat No.501 for a total sale consideration of Rs.43,04,000/- and for which opposite party no.5 already paid Rs.8,00,000/-  (Ex.B4) and another Rs.2,00,000/- (Exs.B5 and B6) to opposite party No.3.  It is pertinent to note that opposite party no.5 did not prefer any complaint and has only stated so in his written version and therefore for recovery of any such money, he is at liberty to approach the appropriate forum.  Keeping in view the balance of equities and the documentary evidence on record, and the fact that there are two agreeemnts of sale for the same flat No.501, we are of the considered view that a sale deed cannot be executed based on an agreement of sale which was signed by opposite party no.2 alone against the terms of partnership deed and instead we are of the considered opinion that the complainant should not suffer for any disputes between opposite parties 2 and 3 and therefore, we direct opposite party No.2 to refund Rs.25,00,000/- received by him vide Ex.A1, together with interest at 12% p.a. from 06-10-2007 till the date of realization together with compensation of Rs.1,00,000/- and  costs of Rs.5,000/-.  This compensation of Rs.1,00,000/- is being awarded as opposite party no.2 had entered into an agreement of sale with the complainant against the terms of the partnership deed and also did not deliver possession within time as promised in Ex.A1. Case against opposite parties 1 and 3 to 7 is dismissed as there is no privity of contract between the complainant and opposite parties1 and 3 to 7.  To reiterate, as per the terms of the partnership deed, opposite party no.1 should be represented by both the partners which did not happen in the instant case and therefore opposite party no.2 alone is liable to refund the amounts.

        In the result this complaint is allowed in part directing opposite party  2 to refund an amount of Rs.25,00,000/- received by him vide Ex.A1, with interest at 12% p.a. from 06-10-2007 till the date of realization, together with compensation of Rs.1,00,000/- and costs of Rs.5,000/- within four weeks  from the date of receipt of this order.  Case against opposite parties 1 and  3 to 7 is dismissed without costs.

Sd/-PRESIDENT.

                                                                        Sd/-MEMBER.

                                                                        Sd/-MEMBER.

JM                                                                     Dt.07-9-2012

APPENDIX OF EVIDENCE

For the complainants:                                       For Opp.party:

Affidavit evidence of  complainant         Affidavit evidence of O.P.3 filed.

Filed.                                               Affidavit evidence of O.P.5 filed

Exhibits marked for the complainant

Ex.A-1-Agreement of sale dated 06-10-2007 executed in favour of

           Complainant by opposite parties

Ex.A2-Legal notice dated 11-6-2011 issued by the complainant to O.Ps.

Ex.A3-Postal acknowledgements

Ex.A4-Receipts for Rs.5,00,000/- and Rs.20,00,000/- respectively.

Ex.A5-Photo copy of incorporation certificate acknowledement of

         Registration of Firm  dated 06-5-2005.

Exhibits marked for the opposite parties

Ex.B1-Copy of Partnership Deed dated 14-3-2002.

Ex.B2-FIR No.66/2011 & 67/2011 dated 5-3-2011.

Ex.B3-Copy of complant in CC 35/2011.

Ex.B4-Agreement of sale dated 17-5-2007.

Ex.B5-Receipt for Rs.1,00,000/ dated 01-4-2007.

Ex.B6-Receipt for Rs.1,00,000/- dated 08-3-2010.

Sd/-PRESIDENT.

                                                                        Sd/-MEMBER.

                                                                        Sd/-MEMBER.

JM                                                                     Dt.07-9-2012.