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M/s. New My Home Constructions, Nallakunta, Hyderabad & Others v/s B. Padmavathi & Others


Company & Directors' Information:- A U CONSTRUCTIONS (HYDERABAD) PRIVATE LIMITED [Strike Off] CIN = U45400TG2011PTC078043

    FA No. 9 of 2015 (Against CC No. 711 of 2012)

    Decided On, 03 December 2019

    At, Telangana State Consumer Disputes Redressal Commission Hyderabad

    By, THE HONOURABLE MR. JUSTICE M.S.K. JAISWAL
    By, PRESIDENT

    For the Appellants: V. Gouri Sankara Rao, Advocate. For the Respondents: R1, K.V. Mallikarjuna Rao, Advocate, R2, Notice returned unclaimed.



Judgment Text


Oral:

Opposite parties in CC No.711/2012 on the file of District Consumer Forum-111, Hyderabad preferred this appeal feeling aggrieved by the orders dated 12.12.2014 in partly allowing the complaint and directing the Opposite parties 1 to 3 jointly and severally to refund to the Complainant a sum of Rs. 2,00,00/- with interest 9% per annum from 21.10.2010 till realization; to pay Rs. 2,00,000/- towards compensation and Rs. 2,000/- towards costs and further directing them to complete the work of common amenities viz., installation of lift, transformer, flooring in the parking area, boundary walls, electrification of common lighting, municipal water connection and plumbing work from the overhead tank; to demarcate the parking area for subject flat No.402 and to furnish the Occupancy Certificate and No Objection Certificate from the competent authority in respect of subject flat No.402, granting time of (30) days. On failure to comply the same within stipulated time, the component of compensation amount also carries interest @ 9% per annum from 15.01.2015 till realization.

2. For the sake of convenience, the parties are referred to as arrayed in the complaint.

3. The case of the Complainant, in brief, is that Opposite party No.2 is cousin of Complainant. On behalf of Opposite parties, Opposite party No.2 approached the Complainant and offered to sell semi-finished flat No.402 on 4th floor in the premises bearing Municipal No.6-1-304/1 and 6-1-304/2/2 over Plot No.21 and 22 (part) situate at Venkatapuram Colony, Walker town, Secunderabad admeasuring 544 square yards, with undivided share of land measuring 25 square yards for a total sale consideration of Rs. 12,00,000/- and further sum of Rs. 5,00,000/- towards cost of furnishings and make the flat in habitable condition with car parking and all amenities and facilities as per the work order dated 21.10.2010 and further promised to complete the flat in all respects within a period of 4 months from the date of work order i.e., on or before 20.02.2011.

4. On 27.07.2010, the Complainant stated to have paid Rs. 25,000/- in cash and Rs. 1,75,000/- on 27.07.2010 through cheque and further sum of Rs. 10,00,000/- on 21.10.2010 through cheque having obtained the same through housing loan. After receipt of Rs. 12,00,000/- the Opposite parties executed sale deed dated 20.08.2010 registered as document No.1750/2010 in favour of Complainant and delivered the physical possession of the flat. The Complainant also entered into an agreement/work order with the Opposite parties on 21.10.2010. In fact, the flat was in semi-finished state and as per normal practice, four months period is sufficient to make the same habitable by fixing doors, windows, plumbing, electrification, wood work, painting, etc., But the Opposite parties attended partial work and failed to fix the main door and instead are using the flat as warehouse and workshop for carrying-out the work of other flats thereby causing damage to the flat.

5. Though the Complainant was ready to pay the balance amount, the Opposite parties failed to complete the flat in all respects, which necessitated him to pay the rent of Rs. 10,000/-. That apart, she could have got reduced the EMIs which is nothing but double jeopardy, which amounts to deficiency in service. Furthermore, the Opposite parties also failed to provide the amenities as promised compelling the complainant to stay outside paying rent. Hence, claiming reimbursement of rent of Rs. 2,20,000/- apart from other reliefs.

6. Opposite parties 1 and 2 filed their written version admitting the relationship with Complainant and selling the subject flat for a throw away price of Rs. 12,00,000/- than cost to cost basis as also receipt of said sum. They further admitted to have registered the sale deed in favour of the Complainant but denied delivering of physical possession. On account of severe labour problem and also on account of constant interference of the Complainant, the works could not be completed despite their best efforts. In order to buy peace, the Opposite party No.2 agreed to buy back the flat for Rs. 22,00,000/-, which the Complainant entered into an Agreement of Sale on 05.12.2012 receiving Rs. 20,00,000/- agreeing to clear the bank loan availed by her and further agreed to execute the sale deed after receiving balance consideration of Rs. 2,00,000/-.

7. As matter stood thus, they were shocked and surprised to receive the notices from forum below. The Complainant has got no right or authority to file the complaint in lieu of entering Agreement of sale dated 05.12.2012. To the notice dated 01.02.2013 got issued by them, the Complainant gave reply dated 07.02.2013 asking the Opposite parties to furnish the copy of Agreement of Sale. With an intention to avoid execution of sale deed, the present complaint is filed. Hence, the complaint is liable to be dismissed and accordingly prayed to dismiss the complaint with costs.

8. During the course of enquiry before the District Forum, in order to prove her case, the Complainant filed her affidavit evidence as PW1 and the documents Ex.A1 to A3 and on behalf of Opposite parties 1 and 2, one B.Praveen Kumar, their managing partner filed his affidavit evidence as RW1 and the documents Ex.B1 to B6. Opposite party No.3 himself filed his affidavit evidence as RW2.

9. The District Forum, after considering the material available on record, allowed the complaint, as stated supra, at paragraph No.1.

10. Aggrieved by the above said orders, the Appellants/Opposite parties 1 and 2 preferred the present appeal contending that the forum below failed to consider the fact that the Respondent/Complainant is not a consumer. It also failed to consider the documents brought on record in proper perspective. It further failed to consider the fact that the Respondent/Complainant never denied the documents exhibited by the appellants. It based its findings on surmises and conjunctures. It failed to consider the fact that civil suit is pending between the parties. Hence, prayed to set aside the orders impugned and consequently dismiss the complaint with costs through-out.

11. 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?

12. The learned counsel appearing for the Appellants is heard. Since there has been no representation, whatsoever, for the Respondent/Complainant, the material has been perused.

13. The facts as could be gathered from the material on record is that the 1st Respondent herein filed CC No.711/2012 against the Appellants and second respondent. When the 1st Appellant is the firm, the 2nd Appellant and the 2nd respondent are its partners. The Respondent/complainant is the cousin sister of Appellant/Opposite party No.2. The admitted fact is that on 20.08.2010, the Appellants/Opposite parties executed a sale deed for a semi-finished flat in favour of the Respondent/Complainant for a consideration of Rs. 12,00,000/- which is Ex.A1. On the same day, in between the Respondent/Complainant and the Appellants/Opposite parties a work order was entrusted for a consideration of Rs. 5,00,000/- and it is Ex.A2. Out of which, the Respondent/ Complainant paid a sum of Rs. 2,00,000/-. Subsequently, the Respondent/ Complainant wanted to withdraw from the transaction and accordingly she executed Ex.B1 Agreement of sale, dated 05.12.2011 in favour of the Appellant/Opposite party No.2 for selling the same property but for a total consideration of Rs. 22,00,000/- out of which the Complainant was paid Rs. 20,00,000/-. The said agreement of sale in between the Complainant herein and Opposite party No.2 is Ex.B1. The execution of the Agreement by the Complainant Ex.B1 has not been disputed.

14. On the other hand, the Appellant/Opposite party No.2 filed OS No.31/2013 on the file of XII-Additional Chief Judge, City Civil Court, Hyderabad for specific performance of Ex.B1 and by Judgment and Decree dated 02.02.2018, the civil court decreed the suit in favour of the Appellant/ Opposite party No.2 herein directing the Complainant herein to execute the sale deed in respect of the said same property subject to condition that the Opposite party No.2 herein should deposit Rs. 2,00,000/- in civil court after intimating to the Complainant. The said condition has been complied with and the proof thereof has been produced. What is manifest from the above is that though the Complainant has originally purchased the semi-finished flat from Appellants/Opposite parties, subsequently the transaction was not finalized and the very same property was agreed to be sold back to the Opposite parties by the Complainant for a consideration of Rs. 22,00,000/- even though the Respondent/Complainant has brought the said property at a cost of about Rs. 14,00,000/-.

15. The learned District Forum has disbelieved the case of the Opposite parties mainly on the ground that when the property itself was sold for about Rs. 17,00,000/- including the work order, there could not have been an Agreement of sale for the self-same property for a consideration of Rs. 22,00,000/- just within a period of about one year. This inference drawn by the learned District Forum cannot be sustained for the reason for the reasons best known to the parties, the said same property was agreed to be purchased by the Opposite parties from the Respondent/ Complainant for enhanced consideration. The submission of the learned counsel appearing for the Appellants/Opposite parties is

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that the said enhanced consideration was intended to cover the interest component and also the escalation in the cost of the immovable property during the period in between Ex.A1 and A2 on one hand and Ex.B1 on the other. 16. In view of the above, the Judgment of the District Forum cannot be sustained and the same needs to be interfered. It may be recalled that the District Forum has not directed for the refund of amount but only called upon the Appellants/Opposite parties to pay the compensation of Rs. 2,00,000/- and another sum of Rs. 2,00,000/- towards refund towards the work order as envisaged under Ex.A2. The same cannot be sustained in view of the developments that took place subsequently in between the Opposite parties and Complainant not only before the complaint was instituted but also filing of the civil suit which came to be decreed in favour of the Appellants/Opposite parties. In view of the above, the impugned order is liable to be set aside and the appeal is accordingly allowed. 17. In the result, the appeal is disposed of accordingly.
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