1.      Heard Mr. Rahul Jajoo, Advocate, for the appellant and Ms. Anubha Aggarwa, Advocate, for the respondent. 

2.      M/s. Aditya Construction Company India Private Limited (the builder) has filed above appeal from the order of Telangana State Consumer Disputes Redressal Commission, Hyderabad dated 24.06.2022, passed in CC/143/2017, directing the appellant to register conveyance deed of Flat No.605 in the project “Aditya’s Imperial Height Richmond” and handover possession of it to the respondent within 60 days, pay pre-EMI from March, 2016 till the date of handing over possession, pay Rs.100000/- as the compensation for mental agony and harassment and Rs.20000/- as litigation costs.

3.      The office has reported that the appeal has been filed with delay of 115 days. The appellant has filed IA/11417/2022 for condoning delay in filing the appeal. In the IA, the appellant has stated that free certified copy of the order dated 24.06.2022 was delivered on 08.07.2022. The appellant shared the documents of the complaint to its counsel at Delhi for filing the appeal, who drafted the appeal and called the appellant for signing the papers, which was signed on 31.10.2022 and the appeal was filed 30.11.2022. The respondent has filed his counter affidavit in above application. Although delay has not been properly explained but it appears that the advocate took unreasonable time in drafting and filing the appeal. Delay in filing the appeal is condoned in the interest of justice. IA/11417/2022 is allowed.

4.      Rahul Pandit (the respondent) filed CC/143/2017, for directing the appellant to (i) handover possession and register the conveyance deed of Flat No.605 in the project “Aditya’s Imperial Height Richmond” in his favour and provide occupancy certificate; (ii) pay pre-EMI of Rs.33128/- per month from 01.02.2016 till the date of handing over possession; (iii) Rs.500000/- as compensation for mental agony and harassment; (iv) pay Rs.50000/- as litigation costs; and (v) any other relief which is deemed fit and proper in the facts of the case.

5.      The complainant stated that M/s. Aditya Construction Company India Private Limited (the OP) was a company, registered under the Companies Act, 1956 and Mr. Thota Satyanarayana was its Managing Director. The OPs were engaged in the business of development and construction of group housing project The OPs launched a group housing project in the name of “Aditya’s Imperial Height Richmond”, over Survey Nos.83, 84, 85, 86 & 87, situated at village Hafeezpet, Mandal Serillingampally, district Ranga Reddy, GHMC, in the year, 2011 and made wide publicity of its amenities and facilities. Believing upon the representations of the OPs, the complainant booked Flat No.605 and deposited Rs.100000/- on 06.12.2011. The OPs executed an agreement for sale dated 28.02.2012 of Flat No.605 admeasuring 1800 sq.ft. with two car parking for a consideration of Rs.5450000/- in favour of complainant. The complainant opted for “Down Payment Plan” under which Rs.817500/- had to be paid as booking advance, Rs.4360000/- by way loan and Rs.272500/- at the time of offer of possession. The OPs had to pay pre-EMI till the date of offer of possession. The complainant completed payment of Rs.817500/- and applied for home loan of Rs.4360000/- and ICICI Bank sanctioned loan, for which, a tripartite agreement dated 28.02.2012 was executed. The OPs demanded Rs.576713/-, vide email dated 22.11.2014. As the OPs had not offered possession, the complainant told to get this money from ICICI Bank as per tripartite agreement. The OPs stopped payment of pre-EMI from February, 2016. The complainant visited the site and found that the construction was incomplete. The complainant gave emails dated 16.09.2016 and 22.09.2016 to the OPs to complete the construction and handover possession. The OPs vide letter dated 14.11.2016 raised a demand of Rs.1826215/-. The complainant gave a legal notice dated 26.06.2017 to the OPs, to complete the construction and handover possession of the flat and pay pre-EMI from February, 2016. In spite of service of the notice, the OPs did not reply. Then the complaint was filed on 18.07.2017.       

6.      The appellant filed its written reply, in which, booking of the flat, allotment of the flat, execution of agreement for sale, tripartite agreement and deposits made by the complainant, have not been disputed. The OPs stated that the complainant paid Rs.100000/- on 04.12.2011, Rs.617000/- on 13.01.2012 and Rs.100000/- on 01.02.2012. Thus there was delay of 40 days and 59 days respectively in deposit of the booking amount. Out of total consideration of Rs.5450000/-, the complainant had deposited Rs.4600287/- (including the payment made by ICICI Bank) and total Rs.849713/- was balance. As per payment plan, Rs.272500/- was payable on offer of possession as such Rs.577213/- was still payable. The OPs vide email dated 22.11.2014 demanded Rs.576713/- but the complainant did not make payment. ICICI Bank also did not make payment in the garb that balance amount was payable on offer of possession. The construction was completed but due to withholding payment, finishing work could not be completed. The OPs again, vide email dated 23.01.2015, informed that as per agreement 95% consideration was payable before offer of possession and requested to make payment of balance amount except 5%. The OPs gave reminders dated 26.06.2015, 14.07.2015, 22.08.2015, 27.08.2015, 26.09.2015. The OPs, vide letter dated 09.02.2016, offered possession to the complainant and stopped payment of pre-EMI from February, 2016. The OPs, vide email dated 29.08.2016, again gave reminder to complete formality of possession and take possession. The OPs vide letter dated 14.11.2016 raised a demand of Rs.1826215/- (i.e. balance amount and interest as per agreement). In stead making payment and taking possession, the complaint was filed on false allegations. As the complainant is defaulter, the complaint is liable to be dismissed.

7.      State Commission, after hearing the parties, vide impugned judgment held that as per clause-4 of the agreement for sale and clause 4 of tripartite agreement, the OPs were required to intimate ICICI Bank about the stages of construction and realize the instalment i.e. 80% of the consideration. The OPs stopped payment of pre-EMI from February, 2016 even without completing the construction. Till today, the OPs have not registered conveyance deed and handed over possession and committed deficiency in service. On these findings, the complaint was allowed. Hence this appeal has been filed.

8.      We have considered the arguments of the parties and examined the record. Clauses-3 & 4 of the agreement for sale and clause-4 and clauses-(a) & (b) as relied by State Commission are, quoted below:-

“3.         That the party of the second part herein has agreed to pay the sale consideration of Rs.5450000/- (Rupees Four Lakhs and Fifty Thousand only) to the party of the first part as per the schedule below.

Schedulel of Payment under Pre EMI Scheme:

4.          If the purchaser opts for Pre EMI payment scheme (15% at the time of booking, 80% Home loan and 5% at the time of possession.) the purchaser should be eligible to get home loan to the extent of 80% of flat cost. The purchaser shall submit all the required documents within 10 days of issuance of Confirmation letter to the bank approved by the Party of the First Part for processing the home loan. The purchaser shall sign on any/all of the documents that are required for sanction and disbursement of Home loan in favour of the Party of the First Part to the extent of 80% of flat cost, Balance 5% of flat cost shall be paid by the purchaser prior to registration and handing over the possession of the flat for interior works. The processing fee towards sanction of the home loan shall be borne by the purchaser.”

“4.         The ICICI Bank Ltd. shall pay the loan as per the payment schedule stipulated in agreement of sale dated 28/2/2012 executed between the builder and the borrower or as per the demand raised by the builder and conditions agreed between the parties in this agreement.”

“a)         The ICICI Bank Ltd shall pay the entire loan amount towards sale consideration of the property, upon a demand being raised by the Builder as per the payment schedule in Agreement of sale dated (28/2/1 executed between the builder and the borrower or as per the demand raised by builder.

b)          It is agreed between the parties that ICICI Bank Ltd should make the disbursement directly to the Builder and such disbursement shall be considered as disbursement made to the Borrower.”

9.      The complainant agreed to pay consideration of Rs.5450000/- as per Clause-3 of the agreement for sale dated 28.02.2012 and opted for pre-EMI scheme. It was primary liability of the complainant to make payment of full consideration as per scheme. The appellant has stated that the complainant paid Rs.100000/- on 04.12.2011, Rs.617000/- on 13.01.2012 and Rs.100000/- on 01.02.2012. Thus there was delay of 40 days and 59 days respectively in deposit of the booking amount. Out of total consideration of Rs.5450000/-, the complainant had deposited Rs.4600287/- (including the payment made by ICICI Bank) and total Rs.849713/- was balance. As per payment plan, Rs.272500/- was payable on offer of possession as such Rs.577213/- was still payable. The OPs vide email dated 22.11.2014 demanded Rs.576713/- but the complainant did not make payment. ICICI Bank also did not make payment of the garb that balance amount was payable on offer of possession. The construction was completed but due to withholding payment, finishing work could not be completed.

10.    As per clause-1 of the allotment letter dated 06.12.2011, booking has to be confirmed after receiving 15% of the consideration. As such, delay in 15% initial payment does not attract any interest. However, the complainant does not dispute that total Rs.4600287/- (including the payment made by ICICI Bank) was deposited by him. Therefore Rs.849713/- was balance. As per payment plan, Rs.272500/- was payable on offer of possession and Rs.577213/- was still payable. The OPs vide email dated 22.11.2014 demanded Rs.576713/- but the complainant did not make payment. ICICI Bank also did not make payment of the garb that balance amount was payable on offer of possession. As per clause-3 of the agreement for sale, it was primary liability of the complainant to make payment of full consideration as per scheme. State Commission, by misinterpreting clause-4 and other clauses of the agreement for sale and tripartite agreement has held that the OPs were required to intimate ICICI Bank about the stages of construction and realize the instalment i.e. 80% of the consideration. If the bank withheld some amount and did not make payment, then, it is for the complainant to make payment of that amount.

11.    As the complainant was defaulter in fulfilling its obligation of payment of 95% consideration, in spite of the demand and reminders made by the appellant, then it cannot allege deficiency in service on the part of the appellant. The appellant, vide letter dated 09.02.2016, offered possession to the complainant and stopped payment of pre-EMI from February, 2016.  There is no illegality on the part of the appellant. The complainant is liable to make payment of balance amount as per agreement. State Commission has committed gross illegality in directing the appellant to execute/register the conveyance deed and handover possession without making balance payment. The order of State Commission is illegal and is liable to be set aside.         

ORDER

In view of aforesaid discussions, the appeal is allowed. The order of Telangana State Consumer Disputes Redressal Commission, Hyderabad dated 24.06.2022 passed in CC/143/2017 is set aside. The appellant is directed to issue fresh demand of balance amount as per agreement within one month from the date of this judgment. The appellant shall charge interest @9% per annum on balance amount from 01.02.2016 till the issue of the demand. After receiving the demand, the respondent shall deposit balance amount within a period of one month and complete formalities of execution of conveyance deed. On making payment of balance amount and completing other formalities, the appellant will execute conveyance deed and handover possession with copy of occupation certificate, if not handed over earlier, without any further delay.