BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.1839/2007 against C.C.No.821/2007, District Forum-III, Hyderabad.
Between
N.Surender Rao S/o.N.Pithamber Rao,
Aged 40 years, Occ:Business,
R/o.Flat No.C-303, Sainar Cedars,
Sripuri Colony, West Marredpally,
Secunderabad. Appellant/
Opp.party No.1
And
1. Smt.T.Shardha W/o.T.Satyanarayana,
Aged about 40 years, Occ:Housewife,
R/o.H.No.13-1-17, Babu Camp, Bellampally,
Adilabad District. Respondent No.1/
Complainant.
2. Alladi Suryanarayana, S/o.A.Bala Veeraiah,
Aged 70 years, Occ:Retired Service,
R/o.H.No.12-10-125, Sithapalmandi,
Secunderabad. Respondent No.2/
Opp.party No.2
Counsel for the Appellant M/s.D.Sudharshan Rao
Counsel for the Respondents: Mr.E.S.Kumar-R1
QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT.
AND
SMT.M.SHREESHA, HON’BLE MEMBER
THURSDAY, THE TWENTY NINTH DAY OF SEPTEMBER,
TWO THOUSAND ELEVEN
(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member)
****
Aggrieved by the order in C.C.No.821/2007 on the file of District Forum-III, Hyderabad, the opposite party No.1 preferred this appeal.
The brief facts as set out in the complaint are that the complainant entered into an agreement of sale dated 14-8-2003 with opposite party No.1 for purchase of flat No.203 in second floor admeasuring 1045 sft. for a total sale consideration of Rs.10,10,116/- and paid an amount of Rs.5,00,000/- (by demand drafts bearing Nos.293505 to 293509 for Rs.2,00,000/- and Rs.3,00,000/- by cash). The complainant submitted that opposite party No.1 agreed to receive the balance sale consideration after completion of the flat and at the time of registration. Thereafter opposite party No.1 completed major portion of the construction leaving only minor amenities and the complainant requested opposite party No.1 to register the sale deed in her favour in the month of July, 2005 where upon opposite party No.1 demanded a further sum of Rs.1,00,000/- to complete all other amenities and accordingly she paid a further sum of Rs.1,00,000/-. In July, 2006 she demanded opposite party No.1 to register sale deed in her favour but opposite party No.1 cited some disputes between him and 2nd opposite party and executed a extension and modification agreement dated 20-7-2006 agreeing to handover the flat in all respects within a period of 90 days. It is the case of the complainant that opposite party No.1 has been delaying the registration of the flat on one pretext or the other with a view to make illegal gain due to escalation of value of the property. It is her case that the entire construction was made with the help of money obtained from various purchasers including the complainant and that there was clear deficiency in service on his part in not registering the flat in her name. Hence the complaint for a direction to the opposite parties 1 and 2 to execute registered sale deed in her favour in respect of flat No.203, 2nd floor in premises No.6-1-132/77/A together with undivided share of land situated at Zamisthanpur, Padmaraonagar, Secunderabad or in the alternative refund Rs.6,00,000/- received towards advance under agreement of sale dated 14-8-2003 with interest at 18%, together with compensation of Rs.2,00,000/- and costs.
Opposite party No.1 filed counter contending that the complaint is not maintainable before the Forum either on merits or on facts and since the complaint attracts the provisions of Specific Relief Act, the complainant has to approach the Civil Court. He however admitted that he and opposite party No. 2 having entered into development agreement dated 22-7-2001 to develop the property for construction of a residential complex and to share the constructed area in accordance with the terms and conditions mentioned therein. That by virtue of the terms and conditions, he had entered into agreement of sale with prospective purchasers including the complainant and received certain amounts in advance. He admitted that he received a sum of Rs.5,00,000/- from the complainant initially. However, he submitted that the second opposite party refused to co-operative to execute registered sale deeds in favour of prospective purchasers and therefore he filed O.P.No.1062/2003 before the Hon’ble Chief Judge, City Civil Court, Hyderabad U/s.9 of Arbitration and Reconciliation Act, 1996 against the second opposite party. An injunction order was passed on 05-9-2003 restraining the second opposite party from interfering with peaceful possession of the property and from alienating only disposal of Arbitration proceedings No.4/2003 pending before the Hon’ble High Court of A.P. Aggrieved by the order, first and second opposite parties filed separate C.M.A. 3787/2003 and 2203/2004 before the Hon’ble High Court of A.P. to pass orders in IA No.1776/2003 appointing an Advocate Commissioner to inspect the residential complex. Subsequently the High Court of Andhra Pradesh passed a common order permitting the first opposite party to proceed with the construction of the complex. However no direction was granted against the second opposite party for execution and registration of sale deeds in favour of the prospective purchasers in view of pendency of proceedings under the Arbitration Act. Further by order dated 13-8-2004, Justice Sri P.L.N.Sharma was appointed as sole Arbitrator and the proceedings are under process. Hence in the said circumstances, he was unable to complete his part of the sale agreement and register the flat in favour of the complainant.
Opposite party No.1 also admitted that he received a further sum of Rs.1,00,000/-assuming an early award of arbitration proceedings and assured to hand over the said flat within 90 days from the date of supplementary agreement. He submitted that there was no malafide intention and the complainant is fully aware of all facts and submitted that he was ready to execute the sale deed in favour of the complainant subject to the decision of the Arbitrator in the Arbitration proceedings and prayed for dismissal of the complaint.
Notice sent to the second opposite party returned with an endorsement ‘not claimed’ and therefore the second opposite party was set exparte on 16-10-2007.
Based on the evidence adduced i.e. Exs.A1 to A4 and the pleadings put forward, the District Forum allowed the complaint in part directing first opposite party to pay to the complainant an amount equivalent to three times the price already paid by the complainant (i.e. 6 lakhs x 3) equivalent to 18 lakhs as compensation towards delay in registration by opposite party No.1 together with costs of Rs.2,000/-. The case against opposite party No.2 was dismissed.
Aggrieved by the said order, opposite party No.1 preferred this appeal.
It is the complainant’s case that opposite party No.1 is the builder and opposite party No.2 is the land owner of the premises admeasuring 533.33 sq. yds. and opposite party No.2 entered into a development agreement, Ex.A1 with the builder agreeing for 50% of share of the constructed area. The municipal permission was also obtained for 1+3 floors and opposite party No.1 entered into an agreement of sale dated 14-8-2003 vide Ex.A2 with the complainant to sell flat No.203 in the second floor admeasuring 1045 sft. for a total sale consideration of Rs.10,10,116/-. Opposite party No.1 collected an amount of Rs.5,00,000/- by way of D.Ds. drawn on SBH dated 14-8-2003 and also cash and agreed to receive the balance sale consideration after completion of the flat. The complainant approached opposite party No.1 for registration of sale deed in her favour in the month of July, 2005 and paid additional amount of Rs.1,00,000/- vide Ex.A3. Thereafter opposite party No.2 entered into an modified agreement dated 20/7/2006, Ex.A4 agreeing to hand over the flat within 90 days. The learned counsel for the complainant submitted that inspite of several requests, the opposite parties did not choose to register the said flat. He further submitted that the present market value of the flat is between 20-25 lakhs and therefore the order of the District Forum granting Rs.18,00,000/- is justified.
The appeal, preferred by opposite party No.1 i.e., F.A.No.1839/2007, which was dismissed by this Commission for non prosecution vide order dated 15-6-2010 and the National Commission vide order in R.P.No.3077/2010 dated 24-5-2011 directed opposite party No.1 to deposit Rs.12,00,000/- and the complainant was permitted to withdraw that amount subject to furnishing adequate security and directed this Commission to dispose of the matter on merits.
The learned counsel for the appellant/opposite party No.1 submitted that because of the disputes between the land owner and the builder, they filed O.P.No.1062/2003 before the Chief Judge, City Civil Court, Hyderabad and sought for referring the dispute to an arbitrator. The chief Judge disposed of the said O.P. by its order dated05-9-2003 and restrained the appellant from proceeding with the construction of the premises in view of the pendency of A.A. 4/2003 before the Hon’ble High Court where an Arbitrator was appointed for settling the dispute. Aggrieved by the order of the Chief Judge, City Civil Court, Hyderabad in O.P.No.1062/2003, the appellant and respondent No.2 filed CMA No.s3787/2003 and CMA No.203/2004 before the Hon’ble High Court wherein an Advocate Commission was appointed in CMP No.24437 in C.M.A.No.3787/2003 to note down the physical features and the Commissioner reported that the appellant has completed the construction of the complex to an extent of 80%. Thereafter the Hon’ble High court disposed of both the C.M.As by a common order dated 23-2-2004 stating that the builder shall be free to proceed with the construction and the owner will have the right to visit the site and inspect the construction and will be allowed to take an expert. The appellant submits that inspite of his best efforts to complete the Arbitration proceedings, the matter was being postponed and in the mean time, the complainant approached the Consumer Forum.
The learned counsel for the appellant/opposite party No.1 contended that since the land owner was not co-operating and in pursuance of the arbitration proceedings, he undertook to refund the advance and earnest money paid by the complainant. He further contended that the relief claimed by the complainant before the District Forum was to execute registered sale deed in her favour for flat No.203 or in the alternate direct the opposite parties to refund Rs.6,00,000/- with interest at 18% p.a. from 14-8-2003 together with compensation and costs. Whereas the District Forum awarded three times the amount paid i.e. Rs.18,00,000/-.
We observe from the record that payment of Rs.6,00,000/- is not disputed neither the non execution of registered sale deed. The learned counsel for the complainant also filed Exs.A5 to A7 before this Commission to state that the flats have been sold for Rs.14,00,000/-. The appellant also filed written arguments stating that the present market value of the flat is Rs.40-45 lakhs and she is interested only in registration of the flat. But the prayer of the complainant to direct the opposite parties for execution of sale deed at this stage cannot be granted as the complainant did not prefer any appeal. Therefore the brief point that falls for consideration now is whether the complainant is entitled to three times the amount paid by her as directed by the District Forum?.
We rely on the decision of the apex court in BRIJ PAL SHARMA v. GHAZIABAD DEVELOPMENT AUTHORITY in III (2005) CPJ 43 (SC) opined that grant of interest @ 18% p.a. by way of damages and compensation is justified. Their lordship referring to an earlier decision in Ghaziabad Development Authority v. Balbir Singh reported in II (2004) CPJ 12 held by stating that “ in our view, irrespective of whether there was genuine reason to cancel or not, the monies must be returned with interest at the rate of 18%. We say so because it is clear that even if the body has not already floated another scheme on the same land it is clear that the body is going to derive great profit from the land and therefore compensating the allottee with interest @ 18% p.a. is just and fair”. Therefore, granting of interest @ 18% p.a. was upheld.
We may also mention herein that when the State Commission has reduced the interest from 18% to 12% the Supreme Court in HARYANA URBAN DEVELOPMENT AUTHORITY v. SAMA DEVI reported in I (2005) CPJ 11 (SC) set aside the finding and awarded interest @ 18% p.a. when consistently the Supreme Court has been awarding interest @ 18% p.a. in all the cases pertaining to real estates.
Keeping in view the aforementioned judgement, facts and circumstances of the case and prayer of the complainant in the main complaint, seeking for interest at 18% p.a., we are of the considered view that the complainant is entitled to refund of Rs.6,00,000/- and opposite party No.1 is directed to pay this amount with interest at 18% p.a. from 14-8-2003 till the date of realization while confirming the costs of Rs.2,000/- awarded by the District Forum.
In the result this appeal is allowed and the order of the District Forum is modified directing opposite party No.1 to pay Rs.6,00,000/- with interest at 18% p.a. from 14-8-2003 till the date of realization together with costs of Rs.2,000/-. Time for compliance four weeks. The amount of Rs.12,00,000/-deposited by the appellant as directed by the National Commission may be deducted from this amount.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.29-9-2011
