Oral Order :
This is a complaint filed by the Complainants under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 praying to direct the Opposite parties to register the flat immediately and give possession of the flat in living condition with all facilities as agreed vide agreement; to pay monthly rental accrual of Rs.19,000/- per month as per agreement from 01.08.2013 till the date of possession of the flat amounting to Rs.11,51,400/- (as on 30.04.2017) including simple interest @ 24% per annum till date of realization; to pay interest on the principal component of Rs.51,75,917/- from April 2015 till the date of possession and registration as compensation for delay in handing over of flat i.e., 24 months along with interest @ 24% per annum till the date of realization; to pay the damages of Rs.2,50,000/- and Rs.2,50,000/- for the mental agony and also to pay interest @ 24% on the monies collected prior to agreement, together with costs of Rs.30,000/-.
2) The case of the Complainants, in brief, is that Opposite parties 2 and 3 as Directors of Opposite party No.1 floated a venture for construction of multistoried residential flats under name and style “Aditya’s Imperial Heights” over the land measuring 10 acres 10 guntas situated in Sy.Nos.83, 84, 85, 86 & 87, situated at Hafeezpet village, Serilingampally mandal, Ranga Reddy district having acquired the same vide Development Agreement-cum-General Power of Attorney dated 23.12.2009 and explaining the salient features, amenities, facilities being provided in the above venture, attracted the Complainants to purchase flat. Accordingly, Complainants opted to purchase the flat No.603-E Gardenia (E-block) 6th floor in Aditya’s Imperial Heights, Hafeezpet, Hyderabad with 1900 sft for a consideration of Rs.59,15,000/- and paid Rs.50,000/- as advance on 14.08.2011 and subsequently paid further sums on various dates amounting to Rs.51,75,917/-.
3) It was agreed by the Opposite parties to pay the rent @ Rs.10/- per sft from the date of confirmation advance till completion of flat. Though there was delay in construction and completion of flat, the Opposite parties failed to pay the rent. Even there was no whisper from the side of Opposite parties as to the period of completion since the agreed period was over. Hence, the complaint with the reliefs, as stated supra, at paragraph-1.
4) Opposite parties filed written version contending that there is no privity of contract between Opposite party No.2 and the Complainants. Taking advantage of their own wrongs, Complainants filed the present complaint. They admitted booking of flat in question by Complainants for the sale consideration of Rs.59,15,000/- and entering into agreement of sale and Tripartite Agreement dated 13.10.2012. The Complainants failed to make payments within the time specified which resulted in delay. Hence, there is no deficiency in service or negligence on their part. Accordingly, prayed to dismiss the complaint with costs.
5) In order to substantiate their rival contentions, the Complainants filed the affidavit evidence of Ravi Rathi as PW1 and the documents Ex.A1 to A14 while the Opposite parties got filed the affidavit evidence of Thota Satyanarayana, their Executive Director as RW1.
6) The point for consideration is as to whether there is any deficiency in service on the part of the Opposite parties and if so, whether the Complainants are entitled for the reliefs as prayed for? If so, to what relief.
7) The admitted fact is that the Complainants have agreed to purchase Flat bearing No.E-603 Gardenia admeasuring 1900 sft in the apartment known as “Aditya’s Imperial Heights, Gardenia block. The total cost of the flat was determined at Rs.59,15,000/-.
8) Ex.A1 is the document that was executed in between the parties at the inception of the transaction, it is dated 16.08.2011. Ex.A1 acknowledges the payment of Rs.50,000/- by the Complainant to the Opposite party No.1 vide cheque No.481129 dated 14.08.2011. The said letter further lays down the terms and conditions. So far as the present case is concerned, the relevant clause is conditions No.4, 5, 6, and 7 in Ex.A1. For the sake of clarity, the said four conditions are extracted as reads as under.
“4. The rent will be calculated from the day of booking confirmation amount 10% is paid by the customer. The rent will be credited to the customer account upon payment of first instalment of 15% (i.e., commencement of foundation work) and subsequently rent will be credited to the customers account t on 10th of every month subject to making of payment by the customer strictly as per the payment schedule enclosed.
5. The company will pay the rent to the customer @ Rs.10/- Sq.ft from the date of payment of confirmation advance till the completion of the flat construction.
6. The rent will be calculated and will be credited to the customers account every month and the sale consideration will be reduced to that extent every month.
7. In case the customer makes the full payment either through home loan or self funding the rent amount will be paid directly to the customer on 10th of every month.”
9) The next aspect to be mentioned is that the Opposite parties called upon the Complainants to pay a sum of Rs.8,87,250/- before 10.11.2011, which, according to the Opposite parties takes care of 15% of the cost of the property. This amount was admittedly paid by the Complainants to the Opposite parties.
10) Ex.A4 is the consolidated receipts issued by the Opposite parties on 20.10.2012 wherein they acknowledged that by 07.11.2011, the amounts that were paid by the Complainants are (1) Rs.50,000/- on 14.08.2011 through cheque No.481129; (2) Rs.4,50,000/- on 20.08.2011 through cheque No.481130; (3) Rs.91,500/- on 20.08.2011 through cheque No.004104 and (4) Rs.8,87,250/- on 07.11.2011 through cheque No.004112.
11) Ex.A4 also makes note of the further payment made by the Complainants to the Opposite parties and in all, it acknowledges that by the said date viz., 20.10.2012, the Complainants paid 55% of the cost of the flat to the Opposite parties, this was the receipt issued by the Opposite parties.
12) The next document that needs to be referred to is the Agreement of sale dated 13.10.2012 marked as Ex.A2. The controversial clause in the said agreement is clause-6 and 7, which reads as under:
“6. The rent will be calculated and will be credited to the customer flat account every month and adjusted to the sale consideration. This amount will be reduced from the final two instalments of sale consideration of the customer.
7. In case the customers makes the full payment either through home loan or self funding the rent amount will be paid directly to the customers on 10th of every month.”
13) The controversy though appears to be exhaustive but as a matter of fact, it lies in a narrow compass and that as to how the rent that is agreed to be paid by the Opposite parties to the Complainants was to be adjusted.
14) According to the Complainants, the Opposite parties agreed to adjust the rent every month right from the date of inception and get credit the rental component to the loan account of the Complainants but whereas according to the Opposite parties, even though the Complainants were entitled to the said rent as claimed, but the said amounts will be adjusted/reduced only from the final two instalments of sale consideration of the customer.
15) The Complainants submit that even though the Agreement of sale contains the above clause which has been extracted, they had been resisting about it from the beginning on the ground that, that was not the actual agreement between the parties and as a matter of fact what was agreed was that every month the rent component will be credited to the account the moment they complete the payment of 15% of the consideration which admittedly has been paid by them by 10.11.2011 itself. However, the Opposite parties though gave credit to the rental component every month, but in the final analysis what the Opposite party has done is that they are demanding to pay the rental component to be adjusted from the final instalments only and till the rent component was not paid to the Complainants but was adjusted, the Opposite party is demanding interest on the said amount which in fact, the Opposite party is not entitled to.
16) In other words, the controversy is as to whether the Opposite party can firstly permit the Complainants to deduct the rent component every month and to pay instalments as agreed and subsequently turn down and say that though the Opposite parties are liable to pay the rent component every month but the same has to be adjusted only in the last two instalments of the sale consideration.
17) As the matter now stands, it is not disputed that the Complainants have paid 95% of the sale consideration, the flat is also ready for delivery of possession and that the Complainants are ready and are prepared to pay the balance sale consideration and can get property registered in their favour. However, the Opposite parties would have it that the Complainants being educated are aware of the terms and conditions of Agreement and have paid the amounts as per their will and wish. They further contend that any breach or violation if not objected for one reason or other, it will not become valid. Other than the above, there do not seems to be any major controversy in between the parties so as to adjudicate the lis.
18) Except denying the version of the Complainants, nothing is placed on record by the Opposite parties. Even it is not made known whether the flat is ready for occupation. It has been the contention of the Complainants that they are ready to pay the balance sale consideration no sooner the flat is made ready for occupation. Except contending that Complainants are not eligible for rental benefits as they defaulted in paying instalments as per payment schedule, no piece of paper is filed by Opposite parties in support of their contention. As per clause-19 of Agreement of sale Ex.A2 dated 13.10.2012, the Opposite parties agreed to complete the construction of flat within 24 months with a grace period of six months from the date of execution of the agreement, which expired by 13.04.2015. As per clause-5 of the very same agreement, the Opposite party No.1 agreed to pay the rent @ Rs.10/- per square feet from the date of payment of confirmation advance till the completion of the flat construction.
19) Clause-4 of Ex.A1 and Ex.A2 contemplates that the rent will be calculated from the day of booking confirmation amount 10% is paid by the customer. It further contemplates that the rent will be credited to the customer account upon payment of first instalment of 15% (i.e., commencement of foundation work) and subsequently rent will be credited to the customers account on 10th of every month. In the instant case, the booking advance of 10% amounting to Rs.5,91,500/- was paid by the Complainants in the form of three cheques bearing No.481129, dated 14.08.2011 for Rs.50,000/- drawn on Axis Bank; cheque No.481130 dated 20.08.2011 for Rs.4,50,000/- drawn on Axis Bank and another cheque bearing No.004104, dated 20.08.2011 drawn on IDBI Bank, as is evident from Ex.A4. Further, the 15% of the foundation stage amount of Rs.8,87,250/- was paid by the Complainants on 07.11.2011 by way of cheque bearing No.004112 of IDBI bank.
20) Having received and having not disputed the same, the Opposite parties cannot turn round and contend that the amount is not paid as per the schedule mentioned in the agreement. We have carefully perused the payment schedule appended to Ex.A1. Nowhere, in the written version or in the affidavit evidence, the Opposite parties furnished the dates of commencement of foundation work or at least the stages of completion of the apartment “Imperial Heights” E-block Gardenia so as to accept the same to be true. Nothing prevented the Opposite parties from filing the documents showing the dates of completion of construction work stage-wise. Even to the queries of Comp
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lainants as to the completion of flat and handover the same for their occupation, there is no whisper from the side of Opposite parties. The burden lies on the Opposite parties to show that they have completed the construction as per the terms of agreement and made ready the flat for occupation of Complainants, which they failed to. 21) For the aforesaid reasons, we answer the point framed for consideration in favour of the Complainants and against the Opposite parties. Accordingly, the Opposite parties are liable to pay the rent @ Rs.10/- per sft from 07.11.2011 onwards (the date of payment of 15% of construction cost) for the flat in question apart from handing over the possession of the flat duly registered in favour of the Complainants. 22) In the result, the complaint is allowed in part directing the Opposite parties jointly and severally to deliver/handover the physical possession of the subject flat bearing No.603-E in 6th floor of Gardenia Block-E comprising of 1900 square feet and to register/convey the same in favour of the Complainants subject to receipt of balance sale consideration and further the Opposite parties are directed to pay the rent @ Rs.10/- per sft from 07.11.2011 onwards till date of handing over the possession and costs of Rs.5,000/-. In view of grant of rent, the claim for other reliefs is dismissed.