A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.

F.A. 1097/2009 against C.C. 849/2008, Dist. Forum-III, 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

Ms. S. Sirisha Jyothsna

D/o. S. Jeevaratnam

Ambika Nagar, Alcott Gardens

Rajahmundry, East Godavari Dist. *** Respondent/

Complainant.

Counsel for the Appellants: M/s. C. Srinivas.

Counsel for the Resp: M/s. V. Gourisankara Rao

F.A. 1101/2009 against C.C. 849/2008, Dist. Forum-III, Hyderabad.

Between:

Ms. S. Sirisha Jyothsna

D/o. S. Jeevaratnam

D.No. 2-50-2, Ambika Nagar,

Alcott Gardens, Rajahmundry,

East Godavari Dist. *** Appellant Complainant.

And

1. K. Premsagar Rao, S/o. Raghupathi Rao

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. *** Respondents/Ops

Counsel for the Appellant: M/s. V. Gourisankara Rao

Counsel for the Resps: M/s. C. Srinivas.

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) These are cross-appeals. F.A. 1097/2009 is preferred by the opposite parties while F.A. No. 1101/2009 is preferred by the complainant. Parties are described as arrayed in the complaint for felicity of expression and avoid confusion in describing the parties.

2) 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. 14. 2. 2000 for purchase of flat No. 546A 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. In fact she was informed by letter Dt. 30.11.2000 to take delivery of the flat after payment of balance sale consideration. On receipt of the letter she came to their office on 10.12.2000 and requested time for payment of balance sale consideration, as she was having financial problems. There upon they have extended 30 days time. However, she did not comply despite their notices dt. 12.1.2001 and 30.1.2001. The complainant had committed breach of terms of agreement. In fact they had leased out her flat to a third party on her representation dt. 24.1.2005. Therefore they 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 A4 marked while the respondents filed the affidavit evidence of Sri K. Prem Sagar, Managing Director of opposite party No. 2 and got Exs. B1 to B3 marked.

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 costs of Rs. 4,000/- within four weeks. While the complainant was directed to pay balance sale consideration of Rs. 80,000/- with interest @ 12% p.a., and bear registration and other expenses.

6) Aggrieved by the said decision, the opposite parties preferred F.A. 1097/2009 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 14.2.2000. She did not pay balance of sale consideration of Rs. 80,000/-. Despite their requests she did not pay balance and obtain sale deed. They have sold away the property to a third party and therefore prayed that the complaint be dismissed.

7) The complainant equally preferred F.A. 1101/2009 contending that the Dist. Forum ought not to have awarded interest on balance of sale consideration. She had sustained loss besides rents which the opposite parties had been enjoying all through. She requested modification of the order as stated above.

8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

9) 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. 14.2.2000 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.

10) 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 sale consideration. The opposite parties on the other hand allege that she herself came to the office requested for some more time for payment of balance consideration on the ground that she was in financial crisis. They extended the time; however, she did not pay. In fact she herself authorized the opposite parties to lease out the property, more so the complainant did not take steps for executing registered sale deed within the period of limitation.

11) 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. Though the opposite parties assert that they had given reply they did not choose to file the same.

12) The opposite parties filed Ex. B1 Dt. 12.1.2001 alleging that the flat was completed and she was directed to pay Rs. 80,000/- in order to enable them to complete the flat. The fact that Ex. B1 was served on the complainant was not proved by acknowledgement. The complainant denies the same. The opposite party being a private limited company naturally maintain record. There is no reason why they did not send Ex. B1 & B2 either by registered post or take acknowledgement from the complainant, as according to them she herself came to their office requested further time. They are self-serving documents. Obviously all this was introduced to get over adhering to the contract stated above The fact remains that the complainant had issued lawyer notice which was admittedly received by the opposite party informing that she was ready to pay balance of sale consideration, the opposite parties did not give any reply.

13) 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 issue 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.

14) 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 non-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 repudiate 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.

15) 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 their flat. In order to defeat just claim of the complainant all these contentions are taken.

16) A perusal of Ex. B1 to B3 would show that they were created in order to thwart the claim of the complainant. It is not known why they did not take the acknowledgement of the complainant. There is no reason why they did not send them by way of registered post .

17) In the counter they alleged that they had leased out the flat to a third party after the representation dt. 24.1.2005 of the complainant. They did not elaborate by stating to whom it was leased out and the rent that they were collecting from the tenants. When it came to the appeal for the first time they alleged in their grounds of appeal that it was sold to third party. They did not mention the particulars of sale transaction by mentioning the name of the purchaser, date of registration of the sale etc. Obviously to get over the execution of sale deed this plea has been introduced. All these are unethical claims. The opposite party being a private limited company are adopting an unfair trade practice. The contentions of the opposite parties do not worth consideration.

18) The Dist. Forum while granting order in favour of the complainant directed the complainant to pay balance of consideration of Rs. 80,000/- with interest @ 12% p.a., there is no reason why interest has been awarded when it was held that the opposite parties were guilty of latches. Therefore the direction to pay interest is set-aside.

19) The complainant could not lead any evidence as to the rents that are being paid in the locality in order to award rent. She did not mention the rate of rent even in the complaint. We are unable to grant this relief due to paucity of evidence. Rents cannot be granted on hypothecal basis.

20) Having considered the matter in detail, we are of the opinion that except the direction to the complainant to pay interest @ 12% p.a., on the balance of sale consideration of Rs. 80,000/-, rest of the order of the Dist. Forum is confirmed. In the light of pendency of appeal and stay, the complainant is directed to pay balance of sale consideration of Rs. 80,000/- within four weeks from the date of receipt of order, before the Dist. Forum. The opposite parties are directed to execute the registered sale deed on fulfilment of directions issued by the Dist. Forum. The opposite parties are directed to pay costs of Rs. 3,000/- in the appeal. Time for compliance four weeks.

1) _______________________________

PRESIDENT

2) ________________________________

MEMBER

Dt. 22. 06. 2010.

*pnr