1) This is an appeal filed under Section 27-A of the Consumer Protection Act, 1986 by the Respondents/Opposite parties aggrieved by the orders dated 10.07.2014 made in EA No.75/2013 in CC No.754/2011 by the District Consumer Forum-I, Hyderabad in directing them to pay the amount of Rs.6,16,200/- within a period of 30 days from the date of order.2) For the sake of convenience, the parties are referred to as arrayed in the execution application.
3) The facts in a nut-shell are that, the Respondent herein, who is Complainant in the forum below laid a complaint alleging non-compliance of terms of the Development Agreement and violation thereof. Considering the claim of the Complainant, the forum below passed orders on 28.08.2012 in C.C.No.754/2011 directing the Opposite parties to return the original sale deed pertaining to Complainant’s property; to pay Rs.10/- per sft., per month from 13.03.2011 (i.e., the expiry date of 36 months) till realization; to pay Rs.50,000/- towards compensation for mental agony and Rs.2,000/- towards costs of the complaint.4) Aggrieved by the said order
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s, the Opposite parties i.e., the Petitioners herein preferred an appeal being FA No.735/2012 before the then A.P. State Commission wherein vide common orders dated 22.07.2013, the Commission dismissed the appeal granting time of four weeks. As against the same, no revision is preferred, resulting which, the orders attained finality. Pending the appeal, the Opposite parties deposited an amount of Rs.2,57,500/- and the same was withdrawn by the Complainant before this Commission and further withdrew an amount of Rs.1,61,000/- from the forum below. On account of failure to pay the balance amount, the Respondent herein filed EA No.75/2013 which is under challenge in this appeal.
5) In the grounds of appeal, it is contended by the Appellants that it is not the case of the Respondent that the total plot area for which development was taken by the petitioners is 4611.88 square yards, for which built-up area would be 1,23,240 square feet out of which 50% being apportioned, the respondent will be entitled for a share of 2700 sft. only, and thus the respondent is entitled for compensation of Rs.6,60,200/- as against Rs.4,43,500/- paid by the Petitioners.
6) The Petitioners filed detailed counter-affidavit stating that as per the development agreement dated 14.03.2008 entered into by them with the Respondent, the proposed built-up area is 2700 square feet and the compensation amount as per the orders of forum below was quantified at Rs.4,43,500/- @ Rs.10/- per square feet. The respondent is trying to set-up a new case by filing calculation petition showing the proportionate built-up area on the basis of the total area as 4166.88 sq.yards which pertains to 17 plots including the plot of the respondent admeasuring 270.39 sq.yards. Though the plan was prepared, it was not submitted with the municipal authorities and the proposed plan is not acted upon, as such, there cannot be any assumption that the total built-up area will be 1,23,240 square feet.7) The award passed by the district forum was only to pay compensation @ Rs.10/- per square feet. The registered development agreement between the Petitioners and the respondent shows the proposed built-up area of 2700 square feet and the same should be taken as a benchmark and not other area on some assumptions as per the terms of the contract. Compensation cannot be awarded for the same on unascertained built-up area on the assumptions that such area was to be constructed as per the proposal to develop 17 plots jointly. When such proposal itself failed, it is understandable as to how the respondent could have claimed compensation on such failed proposal.
8) It further contended that in the orders of the forum below there is no adjudication with regard to the area and since the order is silent with regard to the actual built-up area, the forum below was bound to go by the area of 2700 square feet as mentioned in the registered development agreement. Hence, prayed to allow the appeal setting aside the orders of the forum below dated 10.07.2014 passed in EA No.75/2013 in CC No.754/2011.
9) The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? To what relief ?
10) In the present case, it is not in dispute that the Appellants herein failed to comply with the terms of the Agreement between the parties and also failed to deliver the possession of the flats as agreed therein. It is also not in dispute as regards the forfeiture of interest free deposit of Rs.5,00,000/- by the respondent. The only dispute is with regard to the computation of the amount payable by the Appellant to the Respondent towards their failure in completing of the project within the time stipulated. As regards the same, at clause No.9 of the Development Agreement-cum-General Power of Attorney, dated 14.03.2008, in crystal clear terms, it is provided as below:
'However, the grace period of 6 (six) months is allowed for completion of construction over and above said 30 (thirty) months. If there is any delay even after the expiry of stipulated period of grace, then the Developer of the second part shall forego the entire interest free refundable security deposit amount of Rs.5,00,000/- (Rupees five lakhs only) paid to the LANDOWNER, the Developer shall also be liable to pay an amount of Rs.10/- per sq.ft per month to the LANDOWNER of the FIRST PART in respect of such undelivered areas till its completion in all aspects and handing over of same to the LANDOWNER of the first part.'
From the above provision, it can be safely inferred that there is an obligation on the part of the Appellants herein (being Developers) to pay Rs.10/- per square feet to the Landowner (the Respondent herein) in respect of such undelivered areas till its completion in all aspects and handing over of same to the Landowner. It is an admitted fact that as the Appellants herein failed to construct the flats, the Respondent laid the complaint before forum below. As regards payment of amount @ Rs.10/- per square feet per month is concerned, it is to be calculated on the basis of the undelivered areas. Admittedly, no construction is made by the Appellant over the schedule property. In such a circumstance, it is to be seen what is the agreed area that is proposed to be constructed over the site. In the Annexure-1A appended to the said Development Agreement, the proposed construction area is mentioned as 2700 sq.ft. and the parties to the Agreement have subscribed their hands to the Agreement, are bound by it.
11) That being the case, in the execution application, the forum below in its orders dated 10.07.2014, which is under challenge in this appeal, at page No.5, has observed as below:
'…..On perusal of the Judgment, it is seen that this Forum has directed the opposite parties to pay compensation at the rate of Rs.10/- per sqf. Per month from 13.3.2011 till realization i.e., after expiry of date of 36 months, it goes to show that this forum has directed the Opposite party to pay the compensation for the entire plot area and not mentioned about constructed area in the order. As such, we are of the considered view that Opposite parties have to pay compensation taking into consideration the total area of the plot to the extent which they are entitled to.'
12) If this is taken into consideration, the admitted total plot area is 270.39 square yards and if the same is converted into square feet, it would come to 2433.51. The proposed construction consisted of 5 floors, as such, the construction area would be 12167.55 (2433.51 x 5) square feet. The developer share being 50% and the landowner’s share being 50%, it would come to 6083.775 each. No authority would permit the Builder/Developer to make construction of structure over the entire area of plot without set-backs and without following the rules and regulations in vogue. The respondent calculated the area on the basis of the plan stated to be approved on 11.09.2009, copy of which is filed along with this appeal. This is disputed by the Appellants alleging that it is not acted upon. Except making this statement, it is not explained by the Appellants as to what is the actual area to be constructed except stating that the proposed construction area agreed is 2700. It also failed to explain as to how it arrived at such a figure when admittedly the total plot area is 270.39 square yards.13) Under any stretch of imagination, the same cannot be accepted to be true and correct in view of the fact that no plan is appended to the said Development Agreement. Even if 50% of the total plot area is left for set backs and open space, the area would come to 1216.755 square feet and if the same is multiplied by 5 (five floors), it would come to 6083.775. Out of this, if 50% of the landowner’s share is divided, it would come to 3041.8875, whereas the proposed construction area is shown as 2700 square feet in the Development Agreement, which is not supported by any document. In the copy of plan approved on 11.09.2009, the total construction area is shown as 1,23,240 sqft and half of the same would come to 61620 sqft. In pursuance of the same, the share of the Respondent would come to 3612.72 sq.ft. Though the Appellants vehemently disputed this factum, they failed to file any document to show that the Respondent is entitled to 1350 sqft. Only, being half of 2700 square feet. Even if it is assumed to be true and correct, they failed to convince this Commission as to how the same would be correct.
14) This Commission does not find any error on the part of the Respondent in calculating the proposed area of construction as per the plan dated 11.09.2009. Except this plan, no other document is brought on record by the Appellants to disprove the contention of the Respondent. From the said plan, it is evident that it is prepared by M/s P.R. Associates for M/s Veenus Developers. As such, the Appellants cannot escape from their own acts and commissions. It is obligatory on the part of the Appellants to explain as to what would be the proposed construction area with a detailed plan with cogent evidence, which is short-coming in the present case. It is absurd on the part of the Appellants to state that the Respondent is entitled to 1350 square feet only. Even in normal circumstance, the person who is the landowner for a site of 270.39 square yards, would not, under any stretch of imagination would accept a peanut area of 1350 square feet, which is beyond imagination, unbelievable and unacceptable.15) In the circumstances stated supra, this Commission is of the view that the calculation made by the Respondent is true and correct and the same does not warrant any correction. Hence, the orders of the forum below do not warrant any interference.
16) In the result, the appeal fails and is accordingly dismissed. The Respondent/Complainant is at liberty to seek enforcement of the order and the Forum below is at liberty to proceed with the matter further in accordance with law. No costs.