Andhra Pradesh

Chittoor-II at triputi

CC/17/2014

Ponnapudi Venkataramanaiah S/o. P. Krishnaiah - Complainant(s)

Versus

Smt. K.Sandhya Rani W/o. K.Nagarjuna - Opp.Party(s)

S.M.Jhan

13 Apr 2015

ORDER

Filing Date:26.03.2014

Order Date: 13.04.2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

TIRUPATI

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

MONDAY THE THIRTEENTH DAY OF APRIL, TWO THOUSAND AND FIFTEEN

 

C.C.No.17/2014

 

Between

 

Ponnapudi Venkataramanaiah,

S/o. P.Krishnaiah,

O/o. 6-1-76/A, 2^nd Floor,

Thyagaraja Nagar,

Beside Thyagaraja Mandapam,

Tirupati.                                                                                             … Complainant

 

 

And

 

1.         Smt. K.Sandhya Rani,

            W/o. K.Nagarjuna,

            Hindu, aged about 49 years.

 

2.         Sri.K.Nagarjuna,

            H/o. K.Sandhya Rani,

            Hindu, aged about 53 years.

 

Both residing at:

 

D.No.1-5-599/F2, Balaji Colony,

Tirupati.                                                                                             …  Opposite parties.

 

 

            This complaint coming on before us for final hearing on 31.03.15 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.S.M.Jhan, counsel for the complainant, and Sri.C.Vijaya Kumar, counsel for the opposite parties, and  having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

 

            This complaint is filed under Section-12 of C.P.Act 1986, by the complainant against the opposite parties 1 and 2 for the following reliefs 1) to direct the opposite parties to complete the construction work in flat No.S-2 in 2^nd floor of Sai Nilayam and to deliver the possession of the same in accordance with the specifications of the agreement dt:06.08.2011; 2) to direct the opposite parties to execute a regular sale deed in respect of the said flat in favour of the complainant and 3) to direct the opposite parties to pay Rs.2,00,000/- towards mental agony and Rs.2,00,000/- towards damages caused to the complainant.

2.  The brief averments in the complaint are:- That the complainant is a private employee and resident of Tirupati. Opposite party No.1 is the wife of opposite party No.2. They are developers having business in construction of residential flats in and out of Tirupati.

3.  That both opposite parties 1 and 2 have approached the complainant for the sale of undivided 1/8^th land and construction of residential flat on 06.08.2011 and the  terms and conditions were reduced into writing in respect of flat S-2 in 2^nd floor under the name and style of “Sai Nilayam” measuring 1100 sq.ft, which is described under C-Schedule at the stage of unfinished condition. The complainant agreed to purchase the said flat for Rs.18,70,000/- and he entered into an agreement on the even date i.e. 06.08.2011 and made initial payment of Rs.4,00,000/- as an advance at the time of agreement itself. The opposite parties agreed to complete the construction of the flat as per the specifications in the agreement and to execute registered sale deed in favour of the complainant and deliver possession of the constructed flat on or before 31.12.2011. In order to complete the construction speedily as required by the opposite parties, complainant has paid total sum of Rs.16,50,000/- on various dates and obtained endorsements on the backside of the agreement duly signed by the              1^st opposite party. Inspite of receiving almost all the sale consideration i.e. Rs.16,50,000/- out of Rs.18,70,000/-, construction was not completed by the opposite parties, sale deed was also not executed in favour of the complainant and till today possession was not delivered inspite of repeated demands. On 20.02.2014, complainant got issued a notice demanding the opposite parties to complete the construction work and to handover the possession of the flat. The opposite parties, having received the said notice, did not give reply and so far neither construction work is completed nor sale deed executed nor possession of the flat is delivered. Hence the complaint.

4.  The opposite party No.2 filed his written version on 01.08.2014 and the same is adopted by opposite party No.1. In the written version, the opposite parties have admitted the execution of agreement and terms and conditions therein but contended that the complainant has paid only Rs.15,50,000/- out of Rs.18,70,000/- but not Rs.16,50,000/- as alleged. That the opposite parties have completed 90% of work, that the complainant is yet to pay Rs.3,50,000/- to opposite parties. The complainant never come forward to pay the balance amount. That the complainant committed breach of terms of agreement. There is no deficiency in service on the part of the opposite parties. The delay was due to non-payment of balance amount and prays the Forum to dismiss the complaint with costs.

5.  Complainant and opposite parties have filed their respective chief affidavits and written arguments and got marked Exs.A1 to A8 for the complainant and reported no documents for the opposite parties. Heard the counsel for both parties.

6.  Now the points for consideration are:-   

(i).  Whether there is deficiency in service on the part of the opposite parties?

(ii).  Whether the complainant is entitled to the reliefs sought for?

(iii).  To what relief?

7.  Point No.(i):-  in order to answer this point, we have to state that the specific allegation is that the complainant and opposite parties 1 and 2 have entered into an agreement on 06.08.2011 under Ex.A1 in respect of flat No.S-2, 2^nd floor in ‘Sai Nilayam’ shown in C-Schedule. According to the agreement, the rate of the flat is Rs.18,70,000/-. The opposite parties 1 and 2 have agreed to complete the construction of residential house in the said flat and register the same in the name of the complainant and deliver possession of the house to the complainant on or before 31.12.2011 but till today construction is not completed, flat is not registered in the name of the complainant and possession also not delivered as agreed in the agreement. Thus the opposite parties have intentionally violated the terms and conditions set out in the agreement Ex.A1 dt:06.08.2011.

8.  In Ex.A1 there were no conditions regarding payment of consideration of the flat. Whether the consideration is to be paid in installments or in lumpsum, if it is in installments when it is to be paid or whether the amounts should be paid on par with the work done. The conditions that were set out in the agreement are that the complainant has to purchase the flat for Rs.18,70,000/- and the opposite parties have to complete the construction of the residential house, register the same at any stage irrespective of completion of work and deliver fully constructed building to the complainant on or before 31.12.2011. Even there are no terms and conditions with regard to mode of payment of the consideration, the complainant has paid a sum of Rs.4,00,000/- on the date of agreement itself, as mentioned in the agreement and also as agreed by the opposite parties, subsequently the complainant has paid Rs.1,00,000/- on 15.08.2011; Rs.1,00,000/- on 03.09.2011 by cash; Rs.1,00,000/- on 03.09.2011 through cheque bearing No.552469; Rs.1,00,000/- on 25.09.2011; Rs.1,00,000/- on 12.10.2011 (Rs.28,000/- by way of cash and Rs.72,000/- by way of cheque bearing No.561160); Rs.1,00,000/- on 27.10.2011 through online transfer; Rs.1,00,000/- on 14.11.2011 through online transfer; Rs.4,65,000/- on 10.03.2012 vide cheque bearing No.412230 drawn on Andhra Bank and Rs.35,000/- on 10.03.2012 by cash totaling Rs.5,00,000/-, and another sum of Rs.50,000/- on 15.09.2012. Thus the amount so paid by the complainant is Rs.16,50,000/-. The opposite party No.2 disputing the amount of Rs.1,00,000/- paid by cash by the complainant on 03.09.2011 but admitting that he has paid a sum of Rs.1,00,000/- on 03.09.2011 through cheque bearing No.552469 only and that was received by opposite party No.1. Admittedly, so far as the payment of Rs.1,00,000/- by cash on 03.09.2011 was received by opposite party No.1 and she gave endorsement to that effect on the back side of Ex.A1. Thus it is clear that the complainant has paid a total sum of Rs.16,50,000/- but not Rs.15,50,000/-. However, there were no such  conditions for payment of consideration in Ex.A1, which implies that the opposite parties have to complete the construction of the house in flat No.S-2, 2^nd floor of     ‘Sai Nilayam’ which was described in C-Schedule and deliver the possession of the same on or before 31.12.2011 on receipt of total consideration of Rs.18,70,000/- from the complainant.

9.  Admittedly, as on the date of agreement, the building was semi constructed according to complainant, still the same position is existing, no progress in the construction of the building as per Ex.A8 that is photographs of the building (which were not in dispute), shows the semi construction even till today. The opposite parties though agreed to complete the construction of the house, execute the registered sale deed irrespective of progress of construction of the flat and deliver fully constructed building to the complainant on or before 31.12.2011. By 14.11.2011 itself the complainant has paid a total sum of Rs.11,00,000/- to enable the opposite parties to expedite the construction of the building, inspite of it no progress is there in the construction of the house.

10.  The C.P.Act, enables the consumer to claim and empowers the Commission / Forum to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him, where an allotment is made, price is received but possession is not given within the period set out, the Commission or the Forum then need to determine the loss. Loss could be determined on the basis of loss of rent, which could have been earned if possession was given and the premises let out or if the consumer had to stay in rented premises, then on the basis of rent actually paid by him. Along with compensating the loss, the Commission / Forum may also compensate for harassment / injury both mentally and physically. In a decision reported in IV (2014) CPJ 589 (NC) – Emmar MGF Land Pvt. Ltd. & Anr. Vs. Krishan Chander Chandna  their Lordships of National Commission held – Sections 2(1)(g), 2(1)(r), 21(a)(ii), housing allotment of plot, entire consideration deposited, agreement executed, non-delivery of possession amounts to deficiency in service and unfair trade practice, appellants being the builders are enjoying possession of flat as well as entire amount of consideration, whereas respondent is running from pillar to post to get his hard earned money back, appellants should have given firm date of handing over of possession at time of taking money or booking flat itself, unfair trade practice established and appeal filed by the builders was dismissed. In another decision reported in IV (2014) CPJ P.4 (NC) – Sovanic Developers and Infrastructure Ltd. Vs. Sujit Kumar Dhar – Their Lordships held when a builder entered into an agreement, it is the bounded duty to strictly comply with the terms and conditions of the agreement and is expected to execute registered sale deed and deliver possession of flat on agreed dates, on failure to do so, parties are entitled to enforce terms and conditions of the agreement, Revision Petition dismissed.

11.  Therefore, the attitude of the opposite parties is nothing but harassing the complainant without completing the construction of the house since last 3 years          8 months, though agreed to complete the construction and deliver possession of the building within 4 months from the date of Ex.A1, inspite of receiving Rs.16,50,000/- out of Rs.18,70,000/- of consideration of the flat. In this regard, it can be said that harassment of common man by public authorities is socially abhorring and legally impermissible, it may harm the complainant personally but the injury to the society is far more grieves. The award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil, it may result in improving the work culture and help in changing the outlook

12.  Section-2(1)(g) of C.P.Act – “deficiency means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.

            Construction of a house or flat is for the benefit to a person for whom it is constructed, he may do it himself or hire services of a builder or contractor. The later being for consideration his services as defined in the Act, similarly when a statutory authority developer develops land or allots a site or constructs a house for the benefit of common man, it is as much service as by a builder or a contractor, the one is contractual service and the other is statutory service, if the service is defective or it is not what was represented, then it would be unfair trade practice as defined in the Act. Any defect in construction activity could be denial of comfort and service to a consumer. When possession of property is not delivered within the stipulated period, the delay so caused is denial of service, other disputes or claims are not in respect of movable property as argued but deficiency in rendering of service of particular standard, quality or grade such defects or omissions are defined under Sub Clause-2 of Clause-(r) of Section-(2) as unfair trade practice. If a builder of a house uses sub-standard material in construction of a building or makes false or misleading representation about the condition of the house, then it is denial of the facility or benefit of which the consumer is entitled to claim value under the Act. When the contractor or builder undertook to erect the house or flat, then it is inherent that he should perform his obligation as agreed to. The opposite parties being the developers or contractors agreed to construct the house, agreed to execute the registered sale deed in favour of the complainant and also agreed to deliver possession of the fully constructed house / building to the complainant on or before 31.12.2011, but so far construction of the house is not completed, no registered sale deed executed in favour of the complainant and possession of the house was also not delivered, which amounts not only unfair trade practice on the part of the opposite parties but also deficiency in service. Thus by virtue of the pleadings in the complaint, chief affidavit of the complainant, written version of the opposite parties and also evidence affidavit and written arguments on behalf of both parties and exhibits Exs.A1 to A8 clearly establishes that there is deficiency in service on the part of the opposite parties. Accordingly, this point is answered.

            13.  Point No.(ii):-  to answer this point, it is pertinent to mention that the      2^nd page of the agreement para.2 shows now the said construction of schedule mentioned flat is in semi finished and where as the vendee has offered to purchase a semi finished position flat bearing No.S2, which is situated in second floor in the said building in the name and style of “SAI NILAYAM” and where as the vendor / developer have agreed to sell the vendee a semi finished flat together with undivided proportionate share in the land now covered by the premises bearing Survey No.201/2 of Avilala Panchayat, Sai Nagar Village, Tirupati Rural, and it is also agreed to complete the construction and also the possession of the house on or before 31.12.2011. If any modifications are there, such modifications should be carried by the opposite parties without changing the columns and dimensions of the structure. The second party i.e. complainant shall pay the proportionate share of transformer, installation charges, water charges, electricity charges, electricity meter deposit, property taxes, penalties, levies, duties, payable to Urban Development Authorities, lift, pump, generators and other common expenses, maintenance expenses, chowkidar expenses, cleaning of drainages, maintenance, insurance and fixed common charges decided by the association to be formed and constituted as provided infra from the date of possession of the flat. Since possession is not delivered so far compliance of condition No.12 of the agreement by the complainant does not arise. Admittedly the semi finished building is still in existence and the construction work is not completed. The opposite parties simply mentioned in their written version, chief affidavit and written arguments that 90% of the work is completed but the opposite parties did not mention the work done so far and what is the stage of the work actually to be carried out etc. It is apparent and admitted that neither work is completed nor the registered sale deed is executed in favour of the complainant nor the possession is delivered to the complainant so far.

            14.  The learned counsel for the complainant relied on a decision of the Hon’ble State Commission in C.C.No.275/2013 between Sunil Laxman Patil and Another Vs. M/s. Aliens Developers (P) Ltd. in which facts are that the complainant entered into an agreement of sale on 10.03.2010 for purchase of flat No.1772,   Station-12  on 17^th floor of the complex, by name Space Station.1 in the super built up area of 1874 sq.ft. with one covered car parking space besides undivided share of land of 40.29 sq.yards out of total land of 82976.89 sq.yards in survey nos.384, 385 and 426/A situated at Tellapur village, Ramachandrapuram mandal, Medak district for a sale consideration of Rs.30,32,245/- at the time of handing over possession of the same after completion of construction in all respects on or before 31.08.2012 as per Clause VIII of agreement of sale dated 10.03.2011. As the construction of the flat was not in progress, the complainant got issued notice to the opposite parties on 09.10.2013 and there was no response for the notice from them. The opposite parties offered the flat for Rs.73,33,065/-, the opposite parties vide MOU dated 14.05.2011 promised to pay the home loan pre EMI installments + interest charged therein as charged by the home loan banker under the scheme of Pre EMI scheme and paid it till December 2012 and discontinued with effect from 01.01.2013 and failed to hand over the flat. There is deficiency in service on the part of the opposite parties in not handing over possession within the stipulated date as per the agreement and in that context they were subjected to mental agony and suffering. Hence, the complaint. The opposite parties by filing written version contended that as the project is massive one due to the global recession and Telangana agitation, they faced several problems and also due to delay in getting clearance from statutory bodies, the opposite parties could not complete construction of the flat within the stipulated time which was informed to the complainant and also mentioned in the agreement of sale under clause No.xiv and described as force majeure. Since there is an arbitration clause no.18 in the sale agreement, the dispute has to be referred for arbitration and the Courts have no jurisdiction to adjudicate the dispute. It is admitted that under clause VIII of the agreement the flat will be delivered by 31.08.2012 and the complainant is still due. As per the agreement, except compensation for the delay in handing over possession of the flat, the complainant is not entitled for any other amount as prayed for. On considering the facts and circumstances of the case, their Lordships allowed the complaint directing the opposite parties to complete the construction of the flat bearing No.1772, Station-12 on 17^th floor of the complex by name Space Station.1 situated at Tellapur village, Ramachandrapuram mandal, Medak district and deliver its possession to the complainant and hand over copy of occupancy certificate to the complainant and further directed that the complainant shall pay the balance consideration of Rs.30,32,245/- to the opposite parties. Further, the opposite parties shall pay to the complainant an amount @ Rs.3/- per sft. As per Clause VIII (for) of the agreement from 01.12.2012 till handing over possession of flat towards compensation and an amount of Rs.5,000/- towards costs. In the case on hand also opposite parties have not complied with the terms and conditions of the agreement though the complainant paid Rs.16,50,000/- out of Rs.18,70,000/-. There is negligence and deficiency in service on the part of the opposite parties. The facts of the above decision are applicable to the case on hand. Under the above circumstances, we are of the opinion that the complainant is entitled to the reliefs sought for. Accordingly this point is answered.

            15.  Point No.(iii):-  In view of our discussions on points 1 and 2, we are of the opinion that the opposite parties have violated the terms and conditions of the agreement Ex.A1, failed to either complete the construction of the building or execute the registered sale deed in favour of the complainant or deliver possession of the building within stipulated time or even till today. Therefore, there is negligence and deficiency in service on the part of the opposite parties. Complainant under the above circumstances is entitled to the reliefs sought for and the complaint is to be allowed accordingly.

            In the result, the complaint is allowed. The opposite parties 1 and 2 are hereby directed to complete the construction work, execute registered sale deed forthwith in the name of the complainant and deliver possession of the fully constructed house as per the terms of the agreement within 30 days from the date of this order. The complainant shall pay the balance of sale consideration of Rs.2,20,000/- (Rupees two lakhs twenty thousand only) on the date of handing over the possession of the house. The opposite parties also further directed to pay compensation of Rs.1,00,000/- (Rupees one lakh only) towards mental agony caused to the complainant due to non-deliver of possession of the house for the last more than three and half years and also pay Rs.5,000/- (Rupees five thousand only) towards costs of the litigation. If the opposite parties failed to comply with the award / order within the stipulated time of 30 days from the date of this order, the compensation amount of Rs.1,00,000/- shall carry interest at 9% p.a. from the date of this order, till realization.                             

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 13^th day of April, 2015.   

 

       Sd/-                                                                                                                      Sd/-                                                      

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

PW-1:  Ponnapudi Venkataramanaiah (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

Exhibits (Ex-A)	Description of Documents
	A Photo copy of Agreement for sale of un-divided share of land and construction of Residential Flat. Dt: 06.08.2011.
	A Photo copy of ICICI Bank cheque transactions bearing No. 552469 for Rs.1, 00,000/-. Dt: 03.09.2011. Customer Id: 517747229.
	A Photo copy of ICICI Cheque transaction bearing No. 561160 for Rs.72, 000/-. Dt: 12.10.2011. Customer Id: 517747817.
	A Photo copy of Online transaction of the payment for Rs.1, 00,000/- each.  Dt: 27.10.2011 and 14.11.2011. Customer Id: 517747229.
	A Photo copy of Andhra Bank Cheque transaction for Rs.4, 65,000/-. Dt: 10.03.2012.
	Office copy of the Legal Notice with postal receipt. Dt: 20.02.2014.
	Postal Acknowledgement. Dt: 24.02.2014.
	Photos showing the Semi- Financial construction of the flat S-2 in the 2nd floor along with C.D. Dt: 20.02.2014.

                                                                                                                                                                                                                                                                                    Sd/-

                                                                                                                President

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

         Dist. Consumer Forum-II, Tirupati.

 

 

Copies to:-     1. The Complainant.

                        2. The opposite parties.