02).The complaint in CC 25 of 2016 is filed under section 17(1)(a)(i) of the Consumer Protection Act, 1986 by the Complainants complaining deficiency in service against the Opposite parties and claimed to handover the schedule flat forthwith on completion in all aspects in accordance with the specifications mentioned in the agreement of sale, to pay Rs.5,00,000/- as compensation for causing mental agony, suffering and escalation of construction cost; to pay compensation @ Rs.3/- per square feet per month w.e.f. 1.5.2010 till handing over of the flat; to pay legal charges of Rs.50,000/- and award any other reliefs. Having regard to the representation and assurances made by the Opposite parties, the Complainant agreed to purchase Flat No.335 in Station-6 on the 3rd floor, having a super built-up area of 1504 sqft. together with 32.49 square yards of undivided share of land and one car parking space in survey nos. 384 , 385 and 426/A situated at Tellapur village, Ramachandrapuram Mandal, Medak District for a total sale consideration of Rs.35,15,122/- in pursuance of Agreement of Sale dated 23.06.2008 and paid a sum of Rs.21,97,861/-and agreed to pay the balance amount of Rs.13,17,261/- at the time of handing over of the flat. In consideration of receipt of substantial amount, the Opposite parties executed the sale deed dated 23.06.2008 to handover the flat by 4.4.2010 including the grace period of six months, failing which they agreed to pay a sum of Rs.3/- per square feet of built up area 1.5.2010 till the flat is handed over Complainant noticed that the flat under sale has been completed in some aspects and have to complete in some other aspects. On requests of the Complainant to complete the same, the Opposite parties did not respond. As such, got issued a notice on 25.12.2015 but there has been no response. The Complainant paid the sale consideration amount by availing home loan of Rs.12,30,000/- from State Bank of India, Banjara hills branch, Hyderabad and paying the monthly instalments. Though Complainant performed his part of obligation, the Opposite parties failed to perform their part of obligation and thus committed deficiency in service and negligence. Hence, the complaint with the above reliefs, as stated, supra. 03. The complainant in CC 32 of 2016 filed against the opposite parties to handover the schedule flat forthwith on completion in all aspects in accordance with the specifications mentioned in the agreement of sale on receipt of balance sale consideration of Rs.5,99,625/-, to pay monthly rent of Rs.10/- per square feet of super built up area per month wef. 1.9.2012, to till hand over flat for the cause of delay in handover of flat by due date, to pay Rs.5,00,000/- as compensation for causing mental agony, suffering, to pay legal charges of Rs.50,000/- and award any other reliefs. Having regard to the representation and assurances made by the Opposite parties, the Complainant agreed to purchase Flat No.1632 in Station-6 on the 16TH floor, having a super built-up area of 1597 sqft. in the complex together with 34.34 square yards of undivided share of land and one car parking space in survey nos. 384 , 385 and 426/A situated at Tellapur village, Ramachandrapuram Mandal, Medak District for a total sale consideration of Rs.47,99,625/- in pursuance of Agreement of Sale dated 06.04.2011 and paid a sum of Rs.42,00,000/- and agreed to pay the balance amount of Rs.5,99,625/- at the time of handing over of the flat. In consideration of receipt of substantial amount, the Opposite parties executed the sale deed dated 06.04.2011 to handover the flat by 31.08.2012 including the grace period of nine months, failing which they agreed to pay a sum of Rs.3/- per square feet of built up area from 1.9.2012 till the flat is handed over . Complainant noticed that the flat under sale has been completed in some aspects and have to complete in some other aspects. On requests of the Complainant to complete the same, the Opposite parties did not respond. As such, got issued a notice on 06.01.2016 but there has been no response. Though Complainant performed his part of obligation, the Opposite parties failed to perform their part of obligation and thus committed deficiency in service and negligence. Hence, the complaint with the above reliefs, as stated, supra 4. The Opposite parties resisted the claim on the premise that the complainant filed the complaint to gain out of their breach of contract and the complaint is not maintainable in view of there being no consumer dispute and the arbitration clause mentioned in the agreement of sale providing for settlement of disputes by means of arbitration process. The complainant suppressed some facts and camouflaged some facts in order to make out a case. That the complaint is filed with all concocted allegations giving colour as if there is a consumer dispute. 5. The Opposite parties submitted that originally the land in Sy.No.384 was an agricultural land and they filed application for conversion of the same into non-agricultural land on 23.10.2006 and FTL clearance was granted on 30.12.2006. Permission was granted on 14.04.2007 for conversion of agricultural land into non-agricultural land and thereafter HUDA earmarked the land as agricultural zone and the Opposite parties have filed application for change of use of the land as commercial use zone. 6. It is averred by the Opposite parties that Municipal Administration and Urban Development (I) Department notified the land in Sy.No.384 as residential use zone. The project could not be commenced in view of proposed road under Master plan, until realignment of the proposed road without affecting the land in Sy.No.384 is made. Realignment of the proposed road was approved on 03.04.2008 and permission was accorded approving the building plan on 11.04.2008. Opposite parties have obtained NoC from the A.P. Fire Services Department on 15.12.2007 and subsequently it was reduced from 91.40 meters to 90.40 meters. After following due procedure and process, the Opposite parties obtained NOC from Airports Authority on 10.07.2009. 7. It is further averred that HUDA accorded technical approval on 14.10.2009 for ground + 20 floors and release of building permission upto 29 floors is awaited. In view of arbitration clause in the agreement the complaint is not maintainable before this Commission and the same has to be referred for arbitration as per the provisions of Arbitration and Conciliation Act, 1996. That they have taken necessary steps to complete the project. The project is a massive project and due to reasons beyond their control, the Opposite parties could not complete the project within the time frame and they informed the complainant that the project required sanction from statutory authorities and mentioned the same as ‘force majeure’ in the agreement of sale. It is also agreed to pay compensation at agreed rate to maintain goodwill and relationship with the customers. 8. It is stated that for the delay, the Opposite parties have agreed to pay Rs.3/- per sq.ft. in terms of clause VIII(g) of the Agreement for the delay caused in completing the project and they agreed to adjust the amount towards dues payable by the complainants. The Opposite parties are committed to complete the venture at the earliest, part of the towers/flats are already completed and delivered to the customers. The claim for handing over of the flat without paying the balance sale consideration is not justified under law. Therefore, the Complainants are not entitled for any relief and not entitled for any compensation. The Complainants cannot seek a direction for delivery of the flats in the above circumstances and further claiming compensation is also not justified under law. Hence prayed for dismissal of the complaints. 09 In CC 25 of 2016, on behalf of the Complainant, he himself filed his evidence affidavit and marked Exs.A1 to A-20 and on behalf of the Opposite parties, the Managing Director of the Opposite parties Company has filed the affidavit and no documents are filed. 10. . In CC 32 of 2016, on behalf of the Complainant, he himself filed his evidence affidavit and marked Exs.A1 to A-5 . 11. The counsel for the complainant and the Opposite parties have advanced their arguments reiterating the contents of the complaint. 12. The points for consideration are : i) Whether the complaint is maintainable in view of arbitration clause in the agreement of sale ? ii) Whether the issue involved in the case is not a ‘consumer dispute’? iii) Whether there is any deficiency in service on the part of the Opposite parties? iv) To what relief ? 13. POINT NO.1 : The Complainants entered into “Agreement of Sale” with the Opposite parties for purchase of flats in question and paid the amounts mentioned above and demanding to hand over the flats on completion in all respects as per the specifications mentioned in agreement of sale on payment of balance sale consideration. The agreement of sale provides reference to arbitration. The learned counsel for the opposite parties have contended that in view of the arbitration clause in the agreement, the Complainant cannot maintain the complaint before this Commission. Clause XVIII of the Agreement of sale provides for deciding the disputes arising under the agreement by arbitration proceeds reads as under: a) This agreement shall be construed according to the laws of India and the legal relations between the Parties hereto shall be binding accordingly. b) That all disputes/issues arising out of and/or concerning this transaction will be subject to the exclusive jurisdiction of the Courts at Ranga Reddy district, A.P. c) That all disputes or differences relating to or arising out of or in connection with this agreement shall be mutually discussed and settled between the parties. d) However, disputes or differences arising out of and or in connection with and or in relation to this transaction/agreement, which cannot be amicably settled, shall be finally decided and resolved by an Arbitrator appointed by Developer in accordance with the provisions of the Arbitration and Conciliation Act, 1996. Arbitration as aforesaid shall be a domestic arbitration under the applicable Laws. e) That the venue of arbitration shall be at Hyderabad and the language for the Arbitration proceedings shall be English. 14. In terms of the agreement of sale, the dispute has to be decided by means of arbitration. However, remedy provided under the provisions of Consumer Protection Act is an additional remedy and in the light of law laid in “National Seeds Corporation Ltd., Vs. M.Madhusudhan Reddy reported in (2012) 2 SCC 506 wherein the maintainability of the complaint before consumer forum prior to the complainants having exhausted the other remedy was considered as under: “The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.” Admittedly, in the present cases, the Opposite parties have executed sale deed in favour of the Complainant in respect of the subject flats and only handing over of the possession is remained. It is agreed by the Complainants to pay the balance sale consideration at the time of handing over of the possession. For the above reasons, the Point No.1 is answered in favour of the Complainants and against the Opposite parties. 15. During the course of arguments, counsel for Complainant reiterated the same facts as averred in the complaint besides stating that the Opposite parties ought to have acted in accordance with the provisions of the Andhra Pradesh (Promotion of Construction and Ownership) Act & Rules, 1987 while undertaking such agreements and hence pleading ‘force majeure’ does not arise. He referred to Section 72 of Indian Contract Act and Judgment of Hon’ble Apex Court in Brij Pal Sharma Vs. Ghaziabad Development Authority reported in III (2005) CPJ 43 (SC) and submitted that the Apex Court opined that grant of interest @ 18% p.a. by way of damages and compensation is justified. He further relied on decision in Ghaziabad Development Authority Vs.Balbir Singh reported in II (2004) CPJ 12 wherein it is stated “in our view, irrespective of whether there was genuine reason to cancel or not, the monies must be returned with interest @ 18%.” This Commission perused the said Judgments. In Ghaziabad Development Authority versus Balbir Singh, the Hon’ble Supreme Court further observed that the interest shall be payable from the dates of deposit of the amounts till the date of repayment. 16. On the other hand, the counsel for the Opposite parties in the arguments submitted that the Opposite party No.1 could not complete the project within the time frame as it could not get the required clearance from statutory bodies and they had taken shelter under clause No.XIV ‘force majeure’. The Complainants, therefore, seek possession of the completed apartment, rent incurred, compensation and costs. 17. POINTS No.2 & 3 : The Opposite parties 1 to 3 entered into Development Agreement with the land owners of the land admeasuring Ac.19.26 guntas in survey numbers 383, 385 and 426/A situated at Tellapur village of Ramachandrapuram mandal, Medak District and they agreed to deliver the residential flat to the Complainants in accordance with the terms and conditions agreed upon and consented thereof and as per specifications given thereto. 18. In pursuance of the development agreement, the opposite parties have obtained permission for construction of the residential building on the land and admittedly there has been abnormal delay in completion of the project in so far as this complaint is concerned. The opposite parties have attributed the delay to the authorities concerned in granting permission and NOC etc., as to the cause for delay in completion of the project. The opposite parties would contend that the cause for delay is beyond their control which is force majeure. The Opposite parties stated the reasons for the delay in completion of the construction of the residential complex as under: “The reasons, for delay is, project required clearance from statutory bodies which are necessary for execution of the project. The said fact was informed to the complainant and even mentioned in the agreement of sale under clause No.XIV and described as “force majure”. The above referred facts mentioned squarely fall under the said clause. Therefore, the present complaint is not maintainable before the Hon’ble Commission as there is no deficiency of service on the part of the opp.party in executing the project and if the complainant wants to cancel her booking she can do so in conformity with terms of agreement only.” 19. The Opposite parties agreed to complete construction of the flat and deliver its possession to the complainant with grace periods. Complainants paid the substantial amount for the flats with the hope that the Opposite parties would complete the construction and deliver the flat wherein he could reside with his satisfaction having been fulfilled and he could avoid payment of rent as well. However, the Opposite parties have not kept their promise and for the delayed period they expressed their readiness to pay the amount in terms of the agreement. 20. The opposite parties have promised to complete construction of the flat and hand over its possession to the complainant as per the terms of the agreement of sale and on their failure to perform their part of the contract the opposite parties have proposed to pay rents but failed to pay the same. However, there is no communication from the side of the opposite parties in this regard and the opposite parties have not filed a piece of paper to show their readiness to pay compensation or adjust the same towards the dues payable by the complainant. The difficulty that the complainant faced due to the delay caused in completing the construction of the flats on the part of the Opposite parties has grown many fold as the complainants have to pay EMIs irrespective of the completion of the flat and they have to reside in a house paying rent which according to them is Rs.10,000/- per month. It is natural for a person to suffer mental tension by being deprived of residing in the flat and on being obligated to pay EMIs to the bank. 21. By virtue of Clause-VIII (f) of the Agreement, the Opposite parties are liable to pay Rs.3/- per sft. Taking into consideration of the hardship the complainant had undergone and the amount of Rs.3/- per sft payable by the opposite parties, in CC 25 of 2016 this Commission is inclined to award a sum of Rs.10,000/- per month towards the rent from 01.05.2010 and a sum of Rs.50,000/- towards compensation. The Opposite parties are liable to pay the rent of Rs.10,000/- per month from 01.05.2010 till possession of the flat is delivered and Occupancy Certificate is handed over to him. As such, the complaint deserves to be allowed. 22. In CC 32 of 2016 this Commission is inclined to award a sum ofRs.10,000/- per month towards rent from 01.09.2012 and a sum of Rs.50,000/- towards compensation. The Opposite parties are liable to pay the rent of Rs.10,000/- per month from 01.09.2012 till possession of the flat is delivered and Occupancy Certificate is handed over to him. As such, the complaint deserves to be allowed. 23. In the result, the complaint in CC 25 of 2016 is allowed in part directing the Opposite parties 1 to 3 to complete the construction of the flat bearing No.335 station-6 on 3rd floor of the complex by name Space Station-1, situate at Tellapur village, Ramachandrapuram Mandal, Medak District and deliver its possession to the Complainant and handover copy of Occupancy Certificate to the complainant and pay an amount of Rs.10,000/- from 01.05.2010 towards rent to the complainant till possession of flat is delivered to the complainant. The Complainant shall pay the balance sale consideration of Rs.13,17,261/- to the Opposite parties. Further, the Opposite parties shall pay to the complainant a sum of Rs.50,000/- towards compensation and an amount of Rs.6,000/- towards costs. Time for compliance four weeks. 24. In the result, the complaint in CC 32 of 2016 is allowed in part directing the Opposite parties 1 to 3 to complete the construction of the flat bearing No.1632 station-6 on 16th 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 handover copy of Occupancy Certificate to the complainant and pay an amount of Rs.10,000/- from 01.09.2012 towards rent to the complainant till possession of flat is delivered to the complainant. The Complainant shall pay the balance sale consideration of Rs.5,99,625/- to the Opposite parties. Further, the Opposite parties shall pay to the complainant a sum of Rs.50,000/- towards compensation and an amount of Rs.6,000/- towards costs. Time for compliance four weeks. PRESIDENT MEMBER DATED : 06.09.2018 APPENDIX OF EVIDENCE C.C. NO. 25 OF 2016 FOR COMPLAINANTS Ex.A1 : copy of agreement of reservation of flat dt. 4.10.2006 Ex.A2: copy of agreement of sled t. 23.06.2008. Ex.A3: copy of letter dt 15.2.2009. Ex.A4: copy of letter dt 26.08.2008 Ex.A5: copy of receipt dt 01.03.2008 Ex.A6: copy of receipt dt 05.07.2008 Ex.A7: copy of receipt dt 10.06.2008 Ex.A8: copy of receipt dt 16.01.2007 Ex.A9: copy of receipt dt 15.12.2007 Ex.A10: copy of receipt dt 04.10.2006 Ex.A11: copy of receipt dt 09.10.2006 Ex.A12: copy of receipt dt 09.10.2006 Ex.A13: copy of receipt dt 23.08.2008 Ex.A14: copy of receipt dt 18.12.2006 Ex.A15: copy of tripartite agreement 2008 Ex.A16 : Latest offer documents made available to the public by the OP.1 Ex.A17: office copy of legal notice served on the Ops dt. 25.12.2015. Ex.A18: copies of postal receipts and return covers and acknowledgement cards Ex.A19: copy of letter of incorporation dt. 21.3.2006. Ex.A20 : From No. 32 dt. 21.3.2006. C.C. NO. 32 OF 2016 FOR COMPLAINANTS Ex.A1 : Copy of agreement of sled t. 6.4.2011 Ex.A2 : Latest offer documents made available to the public by the OP.1 Ex.A3 : office copy of legal notice served on the Ops dt. 6.1.2016 Ex.A4: copy of letter of incorporation dt. 21.3.2006 Ex.A5: Form no. 32 dt. 21.3.2006. PRESIDENT MEMBER DT : 06.09.2018 | 
