A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 1617/2007 against C.C. 885/2006, Dist. Forum-I, Hyderabad.
Between:
1. K. Premsagar Rao,
S/o. Raghupathi Rao
Age: 58 years, H.No. 1-8-505,
Prakash Nagar
Begumpet, Hyderabad.
2. M/s. Sainath Estates Pvt. Ltd.
1-8-333 & 334, Near HUDA Office
Opp. Begumpet Police Lines
Secunderabad. *** Appellants/Ops
And
Smt. K. Bheatrice Kumari
W/o. N.S.J. Prakash Raju
Age: 45 years, Service
Flat No. E-1, SS Towers
Akkayapalem, Visakapatnam. *** Respondent/
Complainant.
Counsel for the Appellants: M/s. C. Srinivas.
Counsel for the Resp: M/s. V. Gourisankara Rao
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
TUESDAY, THIS THE TWENTY SECOND DAY OF JUNE TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) This is an appeal preferred by the opposite parties against the order of the Dist. Forum directing them to execute the registered sale deed and deliver vacant possession of the flat besides compensation and costs.
2) The case of the complainant in brief is that Opposite party No. 1 is the absolute owner of site situated in S. No. 1/4 at Hashmatpet of Balanagar Mandal in Ranga Reddy district. Opposite Party No. 2 is a construction company agreed to develop the site by constructing residential complex under the name and style of ‘Manasasarovar Heights’ under development agreement Dt. 23.7.1998. Both of them promised the complainant that they would obtain approval from the HUDA and concerned authorities and would deliver possession on or before 31.12.2000. On that she entered into an agreement of sale Dt. 28. 3. 2000 for purchase of flat No. 547A in sixth floor for a total consideration of Rs. 4,80,000/-. She had paid Rs. 4 lakhs. The balance of consideration was to be paid after providing amenities and furnishing occupancy certificate from the concerned authorities. The opposite parties though received major portion of sale consideration, were postponing delivery of possession on one pretext or the other. They never gave any notice informing the date of delivery. On that she had constrained to issue notice on 24.1.2005 for which no reply was given. Therefore she filed the complaint for delivery of possession of the flat besides interest @ 24% p.a., from 31.12.2000 on the amount of Rs. 4 lakhs together with compensation of Rs. 1 lakh and costs.
3) The opposite parties resisted the case. They alleged that the complaint was barred by limitation. The date of possession stipulated under the agreement was 31.12.2000 and the complaint was filed in the year 2005. No notice was issued on 24.1.2005. It was only fabricated for purpose of filing of the complaint. There was no deficiency in service on their part and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A3 marked while the respondents filed the affidavit evidence of Sri K. Prem Sagar, Managing Director of opposite party No. 2 and he did not choose to file any documents.
5) The Dist. Forum after considering the evidence placed on record and by virtue of clauses 3 & 7 of the agreement opined that the complainant had fulfilled her part of contract while the opposite parties did not adhere to the terms of the contract. They could have informed that the flat was ready as per the terms. Non-handing over of possession of flat amounts to deficiency in service and therefore directed the opposite parties to register the flat and deliver physical possession, besides rent @ Rs. 2,000/- per month from 1.1.2001 till the date of delivery of the vacant possession of flat together with compensation of Rs. 5,000/- and costs of Rs. 2,000/-. While the complainant was directed to pay balance sale consideration of Rs. 80,000/- and bear registration and other expenses within four weeks.
6) Aggrieved by the said decision, the opposite parties preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. It ought to have seen that the complaint was barred by limitation. She intends to enforce the agreement in 2005 which was executed on 28.3.2000. She did not pay balance of sale consideration of Rs. 80,000/-. There was no deficiency in service on their part and therefore prayed that the complaint be dismissed.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that opposite party No. 1 being owner entered into development agreement with Opposite Party No. 2 appellant for construction of flats wherein the complainant entered into an agreement Ex. A3 dt. 28.3.2000 for purchase of flat. As against sale consideration of Rs. 4,80,000/- the complainant had admittedly paid Rs. 4 lakhs on the very date of agreement. Clause 3 of the agreement stipulates that :
“3. The promoter hereby agrees to observe, perform and comply with all the terms, conditions, stipulations and restrictions, if any, which may have been imposed by the concerned local authority at the time of sanctioning the said plans or thereafter and shall before handing over possession of the premises of the flat purchaser, obtain from the concerned local authority competition as well as occupation certificates in respect of the premises.”
A reading of the above clause would undoubtedly indicate that the opposite parties had to obtain occupancy certificate from the concerned authority and inform the complainant about the completion of flat. Clauses 6 & 7 of the agreement read as follows :
“6. The promoter shall give possession of the premises to the flat purchaser on or before 31st day of December, 2000. If the promoter fails or neglects to give possession of the premises to the flat purchaser by the aforesaid date or before the date or dates which shall not exceed six months from the date stated supra, then the promoter shall forthwith refund to the flat purchaser the amounts already received by him in respect of the premises with simple interest at nine percent per annum from the date the promoter received the sum till the date the amounts and interest thereon is repaid. Till the entire amount and interest thereon is refunded by the promoter to the flat purchaser they shall subject to prior encumbrances if any, be a charge on the said land as well as the construction of building in which the premises are situated or were to be situated.
7. The flat purchaser shall take possession of he premises within 30 days of the promoter giving written notice to the flat purchaser intimating that the said premises are ready for the use and occupation as evidenced by a certificate given by the concerned authorities…”
The complainant asserts that the flat was neither completed nor given possession as stipulated. Admittedly the opposite parties had to issue notice requiring her to take possession of the flat if really it was ready which they did not comply.
9) The complainant alleges that she was demanding the opposite parties to complete construction and hand over the possession and that she was ready with the balance of sale consideration.
10) At the outset, we may state that execution of agreement is admitted, equally the terms and conditions mentioned therein. The record discloses that the complainant has issued notice Ex. A1 on 24.1.2005 alleging that she was ready with balance of sale consideration requesting them to execute registered sale deed and deliver possession. This was received by them under Ex. A2 acknowledgement. They did not give any reply. They did not inform that the agreement period was expired.
11) For the first time they alleged in the written version that it was barred by limitation. Undoubtedly the period of limitation commences from the date when they issued notice that the flat was ready since issuance of notice contemplating clear 30 days time was stipulated. The opposite parties never informed the completion of construction in order to direct the complainant to fulfil her part of terms of contract. They cannot turn round and say that the complainant was at fault.
12) In fact in a decision of the National Commission in Juliet V. Quadros Vs. Mrs. Malti Kumar reported in 2005 (2) CPR 1 (NC) it was held that delivery of possession of flat by the developer despite major portion of the price paid, the cause of action continues and complaint could not be said to be barred by limitation, since Section 24A of the Consumer Protection Act provided limitation of two years from the date of cause of action. It is settled proposition of law that the cause of action in regard to specific performance of immovable property would commence from the date when the opposite parties repudiated the contract. At no time the opposite parties had issued notice determining the agreement. For the first time they decline to execute the sale deed in the counter filed by them on the complaint filed by the complainant. Till then they did not issue any notice informing the complainant that they were ready and the flat was constructed asking her to take possession of the flat within 30 days as provided under clause 6 of the agreement.
13) The opposite parties by receiving major portion of the consideration cannot disown performing their part of the contract. What all the complainant had to pay is a miniscule consideration of Rs. 80,000/-. Till today, the opposite parties did not file occupancy certificate as required. It did not file any document in order to prove that they had taken the approval from the concerned authority on a particular date so that it could be said that the opposite parties were ready with the flat. In order to defeat just claim of the complainant all these contentions are taken. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. We do not see any merits in the appeal.
14) In the result the appeal is dismissed with costs computed at Rs. 3,000/- . In the light of pendency of appeal and stay, the complainant is directed to deposit balance of Rs. 80,000/- in the Dist. Forum within four weeks of receipt of this order. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 22/06/2010.
*pnr
