BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
C.C.No.43 of 2008
Between:
1. Sri M.V.Ranga Rao, S/o.Sri M.Satyanarayana,
Aged about 56 years, Occupation:Business
2. Sri M.Satish Kumar, S/o.M.V.Ranga Rao,
Aged about 30 years, Occupation:Service,
Both resident of Flat No.501, Subhodaya
Apartments, LIC Colony, Mehdipatnam,
Hyderabad. ..Complainants
And
Smt.Meena Lahoti
W/o. Sri Om.Prakash Lahoti
Aged about 35 years, Occupation: Business,
Resident of Flat No.306, Lasya Block,
Pujita Apts., Sundar Nagar,
Hyderabad. ..Opposite party.
Counsel for the Complainants: M/s.M.V.R.Suresh
Counsel for the Opposite party: Mr.V.Venkat Kumar.
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
AND
SMT.M.SHREESHA, MEMBER
.
TUESDAY, THE THIRTY FIRST DAY OF AUGUST,
TWO THOUSAND TEN
(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member)
***
The brief facts as stated in the complaint are that the complainants entered into MOU and agreements dated 15-6-2007 and 02-8-2007 for purchase of a flat bearing No.302 in third floor admeasuring 1590 sft. plinth area including common area and one car parking in the stilt floor along with 57 sq. yds. of undivided share of land out of total area of 1088.88 sq. yds. in the complex known as Ushodaya Residency bearing H.No.2-22/1/19 and 2-22/1/20 in plot Nos.23 and 24 in S.Nos. 104 and 114 at Eenadu Colony, Kukatpally, R.R.District for a total sale consideration of Rs.37,57,000/- (at Rs.2300/- per sft. and Rs.1,00,000/- for car parking). The opposite party demanded an amount of Rs.844/- per sft. at the time of entering agreement of sale as advance. It is further submitted that as per clause 3 of MOU, the advance for the flat has to be paid at Rs.13,41,960/- (Rs.844 x1590) but as per the understanding between the parties, they agreed for Rs.12,07,000/- in which Rs.11,07,000/- by way of cash and Rs.1,00,000/- by way of cheque. It is the case of the complainant that the opposite party after accepting the above amounts has insisted the complainants herein to mention an amount of Rs.3,50,000/- as advance and the balance sale consideration as Rs.25,50,000/ in the agreement of sale dated 02-8-2007. Accordingly the sale consideration for the schedule property was shown as Rs.29,00,000/- and advance amount was mentioned as Rs.3,50,000 (instead of Rs.12,07,000/-). The balance amount was agreed and accepted by the opposite party to be paid by the complainant as follows:
a) Rs.11,00,000/- at the time of registration of semi finished property
b) Rs.12,00,000/- immediately after completing the construction of walls.
c) Rs.2,50,000/- immediately after completing the flooring work in the flat as per the specifications and satisfaction of the complainant
The complainants submitted that these amounts were mentioned as per the demand of the opposite party in order to save her tax benefits. Having no other alternative, the complainant accepted the same. The complainants further submitted that the contents in the MOU and the agreement of sale may be treated as part of this complaint. The complainants submitted that opposite party assured that she would render prompt services to the complainant and made them to believe that she entered into development agreement-cum-general power of attorney with builder M/s.Ashwini Abodes vide GPA No.6360 of 2004 dated 19-10-2004 and overall took the responsibility for construction by rendering the services to the complainant herein. The complainants submitted that based on the above agreement of sale dated 2-8-2007, they applied for housing loan to a Nationalized bank and after securitization and verification of the documents, the bankers sanctioned the housing loan to the complainant. They approached the opposite party and informed that they are ready for registration thereby expressing their willingness for semi finished flat and requested the opposite party to execute registered sale deed in their favour. But the opposite party to their utter disguise started blackmailing, delay tactics were implements stating that there was hike in the prices of the flat and went on postponing to register the flat on one pretext or the other. On pressurizing, the opposite party assured that she would execute the same in the month of January, 2008 and accordingly bankers cheque was prepared for Rs.11,00,000/- from the sanctioned loan for the registration of semi finished property as per the terms but the opposite party did not oblige and went on postponing the execution of the sale deed. The complainants submitted that during the second week of February, 2008, the opposite party issued a vague false notice to the complainants deliberately mentioning the date as 9-2-2007 for flat No.305 which was not concerned to the complainants property in which opposite party retrieves from obligation to the offer under agreement of sale and declared that the agreement of sale is cancelled for all purposes. The complainants herein have issued a reply notice on 18/2/2008 narrating the above facts and requested the opposite party to register the flat in their name by receiving the balance consideration. But the opposite party failed to perform her part of obligation under the above agreement which amounts to deficiency in service and unfair trade practice. Hence the complaint for a direction to the opposite party to register sale deed in their favour an pay damages of Rs.5,00,000/- for the mental agony suffered together with costs.
The opposite party filed counter affidavit admitting that they have entered into agreement with the complainants and that the said agreement is contractual in nature and hence needs no reply. She denied the averments made in para 2 in total to the interpretation of payment clauses except to the facts of amounts received in actual as stated in the Agreement executed between the complainants and the opposite party. She submitted that the onus of taking services from the Builder i.e. M/s.Ashwani Abodes by the opposite party is a known fact to the petitioners which was accepted by all other flat owners itself evidences that the expectation of the complainants to the terminology of services under the Consumer Act need to be explained by the complainants to what sense the Good Services mean. Opposite party further submitted that she issued a notice to the complainants and also replied by the complainants. She submitted that the reply of the complainant itself evidences that the complainants are not satisfied with the quality of construction. The complainants have raised the issue of quality of construction which is excessive to the standards and designed by the authorities and therefore the opposite party submitted that the quality is not to the wimps and fancies of one’s own satisfaction. Thus the services which the complainants except about the quality are only imaginary and that taking as a reason, gaining time for fulfillment of the agreement terms and conditions is an act of breach to the contractual obligation, in contrary to the complainants claiming themselves as consumer and trying to sheath their abilities for payment under the shadow of service deficiency is a gross mis-utilization of the Act and prayed for dismissal of the complaint.
In support of their case, the complainants filed the affidavit of first complainant and reiterated the facts stated in the complaint and relied on Exs.A1 to A8.
The opposite party also filed her affidavit evidence reiterating the facts stated in her counter affidavit and relied on Exs.B1 to B3.
Ex.A1 is the copy of agreement of sale executed between the opposite party and complainants dated 2-8-2007. Ex.A2 is the Memorandum of Understanding executed between the opposite party and complainants dated 15-6-2007. Ex.A3 is the legal notice issued by the opposite party to the first complainant dated 9-2-2007. Ex.A4 is the legal notice issued by the complainant to the opposite party counsel dated 18-2-2008. Ex.A5 is the copy of postal acknowledgement. Ex.A6 is the copy of the cheque dated 2-1-2008 for Rs.11 lakhs. Ex.A7 is the arrangement letter-Housing finance dated 19-2-2007 issued by State Bank of Hyderabad to the complainants. Ex.A8 is copy of General Power of attorney dated 25-6-2008.
Ex.B1 is copy of Development agreement-cum-General Power of attorney executed by Smt.Meena Lahoti in favour of M/s.Ashwani Abodes dated 19-10-2004. Ex.B2 is legal notice dated 9-2-2008 issued by the opposite party to Mr.M.V.Ranga Rao. Ex.B3 is postal receipt.
Both sides filed written arguments.
It is the case of the complainants that the complainants and the opposite party have entered into an MOU (Ex.A2) and a sale agreement (Ex.A1) dated 15-6-2007 and 2-8-2007 respectively for purchase of flat No.302 admeasuring 1590 sft. including common area and one car parking in the stilt floor along with undivided share of 57 sq. yds. in the apartment complex known as Ushodaya residency for a total sale consideration of Rs.37,57,000/-. It is the complainants case as per clause 3 of the MOU (Ex.A2) the advance for the flat to be paid was Rs.12,07,000/- out of which 11, 07,000/- was paid by cash and Rs.1,00,000/- by cheque. It was only on the demand of the opposite party that the complainants mentioned an amount of Rs.3,50,000/- as advance to the vendor and Rs.25,50,000/- towards balance sale consideration in the agreement dated 2-8-2007 and hence the advance amount was mentioned as Rs.3,50,000/- instead of Rs.12,07,000/-.
The opposite party filed written arguments in which the opposite party never denied entering into the Memorandum of Understanding (Ex.A2) but only states that this transaction is a purely a commercial one and does not construe deficiency of service and therefore the complaint is not a consumer. She states in para 4 of the written arguments that the cancellation of the agreement vide Ex.B2 notice is in force though disputed through their reply dated 18-2-2008 is nothing but a malafide intention while the MOU is in force. This evidences that the opposite party is not denying the MOU entered into between the complainants and the opposite party but is only raising the contention that the complainants are not consumer. We rely on the decision of the Apex court in FAKIR CHAND GULATI v. UPPAL AGENCIES PVT. LTD., reported in III (2008) CPJ 48 (SC) in which it was held that
‘dispute between a complainant with the land and the builder is a consumer dispute and even between the land owner and the builder is a consumer dispute’.
Now we address ourselves to the prayer of the complainants seeking registration of flat No.302. Ex.A2, Memorandum of Understanding which states as follows:
I) It is agreed that the purchaser shall pay an advance consideration @ Rs.844/- per sq. ft. on or before 31st July, 2007 which is essence of this agreement.
II) It is agreed that the purchaser shall pay a further part of consideration @ Rs.1,304/- per sq. ft. on or before 31st August 2007 or immediately after completion of brick work in all five slabs of the residential complex.
III) It is agreed by the Purchaser to pay the balance consideration i.e. @ Rs.152/- per sq. ft. vide the undated cheque which is indemnify to be honoured against the laying the flooring in all nine flats and same shall be mentioned in the registered document.
And in Ex.A1, sale agreement, the advance is written as Rs.3,50,000/- and the balance sale consideration as Rs.25,50,000/- and para 3 reads as follows:
3. The VENDEES shall be liable to pay the balance sale consideration of Rs.25,50,000/- (Rupees Twenty five Lakhs and Fifty Thousand only) in the following manner:
a) The VENDEES shall pay Rs.11,00,000/- (Rupees Eleven lakhs only) to the
VENDOR at the time of registration of the semi-finished property.
b) The VENDEES shall pay Rs.12,00,000/- (Rupees Twelve lakhs only) to the
VENDOR, immediately after completing the walls construction of the flat.
c) The balance amount of Rs.2,50,000/- (Rupees Two lakhs and Fifty
thousand only) shall be paid by the VENDEES to the VENDOR
immediately after flooring in the respective flat completed.
In Ex.A3, legal notice dated 9-2-2007 got issued by the opposite party to the complainants state that the opposite party wants to retrieve herself from the agreement of sale and herself declares that the agreement of sale is cancelled for all purposes. Ex.A4 is the reply given by the complainant dated 18-2-2008 in which the complainants clearly stated that he paid Rs.12,07,000/- as advance and the balance sale consideration of Rs.25,50,000/- would be paid in the three stages as mentioned in Ex.A1, sale agreement. We observe from this Ex.A4 that the complainants have not given any details with respect to the payment of Rs.11,07,000/- in cash i.e. the date of payment or any receipt to that effect. There is no clarity in the pleading or any documentary evidence with respect to the payment of this Rs.11,07,000/- in support of the contention of the complainants that it was paid towards advance. Therefore the balance amount of sale consideration to be paid for registration cannot be calculated in the absence of any evidence of the quantum of amount paid towards advance. It is pertinent to note that the MOU which is Ex.A2 and the agreement of sale Ex.A1 are contradicting each other with respect to not only the amounts paid but also the amounts to be paid i.e. an amount of Rs.844/- per sq. ft. is to be paid towards advance and for 1590 sq. ft. this amounts to 13,41,960/- whereas it is the contention of the complainants that the opposite party agreed for payment of Rs.12,07,000/- to be paid towards advance instead of Rs.13,41.960/-. This is neither reflected in the MOU nor in any documentary evidence. A token advance of Rs.5,00,000/- paid towards 9 flats is what is reflected in the MOU which does not tally with the complainants’ share and moreover the complainants did not file any statement of accounts to prove his case. They did not establish the facts, by way of any evidence, mentioned in the complaint. Equally the opposite party also did not file any statement to establish the dates of payments and other details made by the complainants, though they do not deny the existence of MOU.
For the aforementioned reasons, we are of the considered view invocation of the jurisdiction of Consumer Commission will not do justice and we rely on the judgement of the apex court in Oriental Insurance Company Ltd. Vs. Muni Mahesh Patel reported in (2006) 7 Supreme Court Cases page 655 wherein it was held :
“Proceedings before the commission are essentially summary in nature and issues which involve disputed factual questions should not be adjudicated by the Commission. The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done. It was further required to examine whether in view of the disputed facts it should exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of law and not the commission.”
The complainant is entitled to seek exclusion of time spent before Fora under Section 14, Limitation Act.
In the instant case, we are of the view that detailed evidence needs to be recorded and cross-examination is needed and only by way of affidavit evidence, details of payments made cannot be established. Therefore this Complaint is dismissed with a direction to approach civil court, if so advised, they are entitled to seek exclusion of time spent before Fora under Section 14, Limitation Act. There shall be no order as to costs.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.31-8-2010
//APPENDIX OF EVIDENCE//
For complainants For Opp.party
Affidavit of 1st complainant Affidavit of opposite party
filed. filed.
Witnesses examined
For complainant For Opp.party
NIL NIL
Exhibits marked on behalf of complainants:
Ex.A1-Copy of agreement of sale executed between the opposite party and
complainants dated 2-8-2007.
Ex.A2-Memorandum of Understanding executed between the opposite party
and complainants dated 15-6-2007.
Ex.A3-Legal notice issued by the opposite party to the first complainant
dated 9-2-2007.
Ex.A4-Legal notice issued by the complainant to the opposite party counsel
dated 18-2-2008.
Ex.A5-Copy of postal acknowledgement.
Ex.A6-Copy of the cheque dated 2-1-2008 for Rs.11 lakhs.
Ex.A7-Arrangement letter-Housing finance dated 19-2-2007 issued by
State Bank of Hyderabad to the complainants.
Ex.A8-Copy of General Power of attorney dated 25-6-2008.
Exhibits marked on behalf of opp.party :
Ex.B1-Copy of Development agreement-cum-General Power of attorney
executed by Smt.Meena Lahoti in favour of M/s.Ashwani Abodes dated
19-10-2004.
Ex.B2-Legal notice dated 9-2-2008 issued by the opposite party to
Mr.M.V.Ranga Rao.
Ex.B3 is postal receipt.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.31-8-2010
