BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.

F.A. 916/2006 against C.C  44/2005, Dist. Forum, Ranga Reddy    

Between:

1. M/s. Sai Constructions 

Plot No. 53 & 54, SSV Residency

Shot No. C-01, Cellar

L.B. Nagar Colony

Neredmet, Secunderabad-36

Rep. by its Managing Partner

G. Venkatesh Yadav

2. G. Venkatesh Yadav

S/o. G. Venkaiah, Age: 34 years,

Construction Business

H.No. 27-64/5/1

Devi Nagar, R.R. Dist.

3. Kamalla Mallesh

S/o. Beeraiah,  Age: 33 years,

Construction Business

H.No. 30-1481, Vinayak Nagar

Malkajgiri Municipality

R.R.District, Hyderabad.                             ***                         Appellants/

                                                                                                Opposite Parties            

And

Ram Gopal Janaki

S/o. Janaki Govindu Gopal

Age: 34 years,

Rep. by his GPA

Smt. Sita Devi Janaki

W/o. Govind Gopal Janaki

R/o. 12-7-112/7/3,

Kesavanagar Colony

Secunderabad.                                           ***                         Respondent/

                                                                                                Complainant

Counsel for the Appellant:                          Mr. V. Gourisankara Rao

Counsel for the Resps:                               M/s. . I. S. Sheshavataram.

QUORUM:

                          HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

&

                                            SMT. M. SHREESHA, MEMBER

WEDNESDAY, THIS THE TWENTY EIGTH  DAY OF  JANUARY TWO THOUSAND NINE

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

          Aggrieved by the  order of the Dist. Forum in directing the appellants,  the builders and others to deliver Flat No. 301  besides  payment of Rs. 66,000/- and  rent with interest @ 9% together with compensation of Rs. 5,000/- and costs this appeal is filed.   

          The case of the complainant in brief is that  he purchased  a  flat No. 301 in  Sri Sai Venkateswara Residency  from the appellants under registered sale deed Ex. A1 Dt. 2.3.2002  on payment of sale consideration of Rs. 3,30,000/-. Since it was in a semi finished condition, the appellants had promised that the apartment would be handed over within two months, and as such he paid Rs. 66,000/- towards balance of work to be completed by 5. 2. 2004 as demanded by them.   The appellants did not complete the work, however, promised to deliver the possession by giving an undertaking  on 5.2.2004.  When it was not adhered to he gave a  legal notice on  12.10.2004,   for which they did not give any reply.  On that he filed the complaint.

          The appellants  did not contest despite notice being served on them.  

The complainant  filed his affidavit evidence  and got Exs. A1 to A10 marked. 

The Dist. Forum after considering the evidence placed on record opined that the complainant was entitled to  possession of flat as per sale deed Ex. A1 Dt. 2.3.2002 besides an amount of  Rs. 66,000/-  with interest @ 9% p.a., from 2.5.2002 and  rent @ Rs. 1,000/- p.m. from 2.5.2002 to 27.4.2005  and @ Rs. 1,500/- p.m. from 28.4.2005 till the date of realization together with compensation of Rs. 5,000/- and costs of Rs. 5,000/-.

Aggrieved by the said decision,  the builders preferred this appeal contending that it   did not collect excess amount of Rs. 66,000/- as opined by the Dist. Forum.   It  did not collect  Rs. 66,000/- in excess nor liable to pay rent and prayed that the appeal be allowed.  

          It is an undisputed fact that the appellant had executed  Ex. A1 registered sale deed on 2 3. 2002  for sale of Flat No. 301 for a total consideration of  Rs. 3,30,000/- .   In the sale deed,  the property was in a semi-finished condition was made a mention.  On the very same day they entered into  a construction agreement evidenced under Ex. A2.   On the very same day the builder issued a receipt having received cheque for Rs.3,30,000/- on  Sri Satya Sai Co-operative Urban Bank Ltd., Secunderabad.  In the very undertaking  Ex. A3  Dt. 5.2.2004  the builder had undertaken to complete the works  within one month and  hand over the possession to the vendee.   When the possession was not delivered, he issued  Ex. A4 legal notice Dt. 12.10.2004  directing the builders to handover the possession together with damages.   Despite notice the appellants did not give any reply nor handed over the possession.   On that the complainant filed the complaint.   The appellants did not choose to contest despite service of notice and thereupon the Dist. Forum passed the impugned order.   The appellants did not mention as to why they did not choose to contest the matter.  However, it admitted that it had completed the construction in all respects and ready for occupation.  It denied having received any excess amount.  

          Evidently, the amount covered under the sale deed was received as long back as on  5.2.2004.  In view of the fact that the builder  had received the entire amount the builder ought to have delivered possession of the property immediately.   There is no reason why  the possession was not delivered despite the fact that it was ready for occupation.   The learned counsel for the appellant  represented that possession was delivered to the complainant on 20.9.1996, which fact was not disputed. 

The relief  of payment of rent was granted on the ground that the possession was not handed over and   had the possession been  handed over  the complainant could have been  able to let  it out and thereby earn some rent.   The Dist. Forum directed the appellant to pay the rent from 2.5..2002 forgetting the fact that the complainant himself paid the balance of sale consideration  on 5.2.2004 evidenced under  Ex. A3.   Since the very complainant did not pay the entire sale consideration he could not ask either for possession of flat  or for rent to be paid from  2.5.2002.   If any rent that could be awarded, it could only from 5.2.2004 till the date of  possession i.e., 20.9.2006.  The very complainant claimed an amount of Rs. 1,000/- per month towards rent.   There is no evidence to show that rents were hiked in the year 2005 and therefore rent could be awarded @ Rs. 1,500/- per month .   Considering the circumstances, we direct the appellant to pay  @ Rs. 1,000/- p.m. from 5.2.2004 to 20.9.2006 together with compensation of Rs. 5,000/-  and Rs. 5,000/- towards costs as awarded by the Dist. Forum.  The complainant himself issued Ex. A3 mentioning that there were no dues and therefore the order of the Dist. Forum directing the appellant to pay  Rs. 66,000/- cannot be sustained.  The said  finding  has to be set-aside. 

          In the result  the appeal is allowed in part setting aside the order of the Dist. Forum directing the appellant to pay Rs. 66,000/-   The order of the Dist. Forum  is modified as far as direction of possession is concerned since the possession was already delivered on 20.9.2006.   The order of the Dist. Forum in regard to payment of rent is also modified,  instead,  the appellant is directed to pay Rs. 1,000/- p.m. from 5.2.2004 to 20.9.2006.   Rest of the order of the Dist. Forum pertaining to compensation and costs awarded at Rs. 5,000/- each is confirmed.   Appellant is directed to pay costs of Rs. 2,000/- in the appeal.  Time for compliance four weeks.

          .

                   PRESIDENT                                               LADY MEMBER

                                                Dt. 28. 01. 2009.