BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD.
C.C.No.172 of 2014
Between:
1. T.D.Srinivasan,
S/o.T.J.Dattathrian, aged 35 years,
Occ: Software Engineer,
R/o.H.No.4-225, Geetha Nagar, Malkajgiri,
Hyderabad, presently residing at 854, Would Avenue,
Colonia, New Jersey, -07067, U.S.A.
Represented by his GPA Holder
T.R.Vikas, S/o.Rishikesh, aged 39 years,
Occ: Private Employee,
R/o.H.No.2-19-102, Kalyanpuri, Uppal, R.R.District.
2. T.D.Malathi, W/o.T.J.Dattathrian,
Aged 62 years, Occ: Housewife,
R/o.H.No.4-225, Geetha Nagar, Malkajgiri,
Hyderabad.
..… Complainants
And
1. Aliens Developers Pvt.Ltd., registered under Companies
Act, Having its registered office at Flat No.911,
Teja Block, My home Navadeepa Apartments, Madhapur,
Hyderabad – 500 081. Represented by its
Managing Director, Mr.Hari Challa,
Also at:
Aliens Space Station-1,
Sy.No.384, 385, 3rd Floor,
Tellapur, Gachibowli,
Ramchandrapuram,
Medak District – 502 032.
…..Opposite Party
Counsel for the Complainant : M/s.V.Appa Rao
Counsel for the Opposite Party : Mr.P.Rajasripathi Rao
HON’BLE SRI JUSTICE M.S.K.JAISWAL … PRESIDENT
&
SRI K.RAMESH … MEMBER-JUDICIAL
WEDNESDAY, THE 28TH DAY OF NOVEMBER,
TWO THOUSAND EIGHTEEN
Oral Order :
***
This is a complaint filed U/s.17(1)(a) of Consumer Protection Act, 1986 seeking a direction against the Opposite Party for payment of Rs.23,11,778/- along with interest @ 4% p.a. which comes to Rs.21,15,537/-, totally an amount of Rs.44,27,315/- along with subsequent interest till the payment of amount and also Rs.5,00,000/- towards mental agony and Rs.50,000/- towards the costs.
The facts of the case are that:
The Complainants entered into an agreement of sale with the Opposite Party on 30.08.2008 for purchasing a flat bearing No.522 on 5th Floor of Station No.4 situated at Tellapur Village for a total consideration of Rs.50,25,413/-. In pursuance of the agreement of sale, the Complainant paid altogether Rs.35,11,778/- and planned to take home loan and informed the same to the Opposite Party and arrange the house loan from State Bank of India, Masab Tank branch and the said bank released an amount of Rs.19,61,778/- in favour of the Opposite Party towards the sale consideration thus the Complainants have paid total amount of Rs.35,11,778/-. The Opposite Party has not started the construction work until 2013 though the flat has to be made ready within three years from the date of booking with a grace period of six months. Therefore the Complainants insisted the Opposite Party for cancellation of the agreement and refund the amount paid by them along with interest and the Opposite Party had agreed to refund the amount along with interest and confirmed the same through Gmail dated 28.12.2012 within a period of 60 days but paid only Rs.9,000/-. The two cheques issued by the Opposite Party have been dishonoured for want of sufficient funds. The Complainants reminded the Opposite Party for payment of the balance due amount but there is no response. As such the Complainant issued a legal notice dated 17.02.2014 and the Opposite Party received the notice but they have not given a reply. However, the Complainants received Rs.3,00,000/- and still there is a due of Rs.23,11,778/-. Thus the Opposite Party committed deficiency in service by not constructing the apartment within a period of time and resorted to unfair trade practice. Hence the complaint.
The Opposite Party filed written version and contended that the complaint is not maintainable as the dispute between the parties does not fall within the purview of Consumer Protection Act. The Opposite Parties committed to construct the apartment and applied for various permissions with the Government and due to delay in sanctioning the same, there was a delay in taking up the construction activity.
It is further contended that as per Clause-18 of the agreement both the parties shall resolve the dispute if any, by way of Arbitration as such no Court is having jurisdiction to adjudicate the dispute and the same shall be referred for arbitration only.
It is also contended that both the parties agree that if any delay in delivering the possession of the flat, the Opposite Party shall pay charges @ Rs.3/- per square feet per month and said amount would be adjusted towards the dues payable by the Complainant. The Opposite Party completed some flats and buyers are residing in the said flat, therefore the various allegations made by the Complainant are incorrect. The Complainant has not paid 75% of the total sale consideration and that the Complainant has not made the Bank as a party to the proceedings and that the Opposite Party did not receive the alleged notice and that there is no any breach of contract on the part of the Opposite Party and there is no any deficiency of service on the part of the Opposite Party and prayed to dismiss the complaint.
On behalf of the Complainant evidence affidavit of Sri T.R.Vikas is filed and Ex.A1 to A8 are marked. On behalf of the Opposite Party evidence affidavit of Sri Hari Challa is filed and Ex.B1 to B18 are marked.
Heard both sides.
The point for consideration:
Whether the complaint is maintainable in view of the clause 18 of the agreement?
Whether there is any deficiency in service on the part of the Opposite Party?
To what relief?
Point No.1:-
As evident from clause XIX of the agreement both the parties agreed to settle the dispute if any, by way of arbitration. But the point to be considered, whether this clause prevents the Complainants from pursuing the complaint under the provisions of the Consumer Protection Act. In this connection it is relevant to refer a judgment in the case of National Seeds Corporation Limited Vs. P.V.Krishna Reddy, reported in 2009 NCJ 260 (NC) wherein the lordships clearly held that the existence of arbitration clause in the agreement is no bar for adjudication of the complaint by the Consumer Fora. Thus the plea taken by the Opposite Party in this connection seems to be totally unsustainable and accordingly the point is answered.
Point No.2:-
The Complainants herein entered into an agreement of purchase of a flat for an amount of Rs.50,25,413/- in terms of the agreement of sale entered into between both the parties and out of the total sale consideration the Complainants have paid Rs.35,11,778/- to the Opposite Party. As evident from Ex.A3, the statement of bank account, the Opposite Party also send a Gmail acknowledging the payment of Rs.35,11,778/- thus there is no dispute about the payment of the part of the sale consideration by the Complainant to the Opposite Party.
As per the agreement of sale dated, 30.08.2008 the Opposite Party agreed to complete the construction of the flat within three years from the date of booking with a grace period of six months otherwise, failing which agreed to pay charges @ Rs.3/- per square feet, per month. Admittedly there is no evidence on the side of the Opposite Party to prove that they have started the construction activity to complete the flat within the stipulated period and they further contended that on account of some delay in sanctioning the permits etc., there is a delay, which cannot be said to be sufficient to hold that there is no deficiency on the part of the Opposite Party. The Complainants have entered into an agreement to purchase a flat for their accommodation but they failed to get the apartment within the stipulated time and thereby they are put to unbearable harassment for want of accommodation, having paid sufficient amount towards the sale consideration. Thus it can be held safely that there is deficiency in service on the part of the Opposite Party in completing the flat and delivering the possession thereof. During the course of arguments it is brought to the notice of the Commission that the Opposite Party paid Rs.16,00,000/- out of the total amount payable by it and the said fact has not been disputed by the counsel for the Complainant. Thus the Opposite Party is liable to pay balance amount of Rs.7,11,778/- and accordingly the point is answered.
Point No.3:
In the result the complaint is allowed in part and the Opposite Party is directed to pay Rs.7,11,778/- along with interest @ 9% p.a. from the date of respective payments till the date of realization and the Opposite Parties are further directed to pay a sum of Rs.5,000/- towards the costs of this litigation.
Dictated to steno, transcribed, corrected and typed on this the 28th day of November, 2018.
PRESIDENT MEMBER
Dt 28.11.2018
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainants: For Opposite Parties:
Evidence affidavit of T.Ramesh, Evidence Affidavit of
Complainant. A.P.Mahesh Cooperative
Urban Bank Ltd.,
Opp.Party
EXHIBITS MARKED
For Complainats:
Ex.A1 - Is the copy of Agreement of Sale dated 30.08.2008
Ex.A2 – Is the copy of General Power of Attorney
Ex.A3 – Is the Statement of Account from 22.01.2009 to 07.05.2014
Ex.A4 – Is the Statement showing EMIs paid by the Complainants
Ex.A5 – Is the copy of mail communication dated 28.12.2012
Ex.A6 – Is Legal notice dated 17.02.2014
Ex.A7 – Is the copy of Home loan sanction letter dated 20.01.2009
Ex.A8 – Is the Letter dated 31.08.2012
For Opposite Parties:
Ex.B1 – Is the Letter dated 31.12.2007
Ex.B2 – Is the copy of G.O.Ms.No.288 dated 03.04.2008
Ex.B3 – Is the report issued by Dist.Collector, Medak, Sanga Reddy dated
05.05.2007
Ex.B4 – is the copy of minutes of the meetings of multi-storied building
committee for Huda area held on 29.02.2008
Ex.B5 – Is the letter dated 31.03.2008
Ex.B6 – Is the letter dated 11.04.2008
Ex.B7 – Is the letter dated 11.04.2008
Ex.B8 - is the copy of minutes of the meetings of multi-storied building
committee for MSB in Huda area, held on 05.06.2008
Ex.B9 - Is the letter dated 14.10.2009
Ex.B10 - Is the letter dated 12.08.2008
Ex.B11 - Is the letter dated 24.11.2009
Ex.B12 - Is the letter dated 08.10.2010
Ex.B13 - Is the letter dated 28.03.2011
Ex.B14 – Id the copy of cash acknowledgement receipt
Ex.B15 – Is the copy of Indian Green Building Council (IGBC)
Ex.B16 – Is the copy of certificate of Cityscape Awards Real Estate Asia,2009
Ex.B17 – Is the letter dated 02.11.2015
Ex.B18 – Xerox copies of photographs of flats
PRESIDENT MEMBER
Dt.28.11.2018
