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Shahid Jamal Ansari & Others v/s M/s. SBC Infra Projects India Pvt. Ltd., (Developer) & Others

    C.C.Nos. 16 of 2013, 17 of 2013, 18 of 2013 & 19 of 2013

    Decided On, 16 December 2013

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad

    By, THE HONOURABLE MR. R. LAKSHMINARASIMHA RAO
    By, INCHARGE PRESIDENT
    By, THE HONOURABLE MR. THOTA ASHOK KUMAR
    By, MEMBER & THE HONOURABLE MR. S. BHUJANGA RAO
    By, MEMBER

    For the Appellants: M/s Jaweed Farooqui & Associates, Advocates. For the Respondents: M/s. SSR Murthy, M/s. Vijay Kumar, M/s. A. Raghavaih, Advocates.



Judgment Text

Oral Order: (R. Lakshminarasimha Rao, Incharge President)

1. All the complaints bear similar facts and as such they are being disposed of by a common order. C.C.No.19 of 2013 is taken as lead case.

2. The complaint is filed seeking direction to the opposite parties to register the flat No.106 in Block No.6, Pristine Place (Apartments) in Sy.No.129, 176 & 177, Gajularamaram Village, GHMC Qutubullahpur Circle in R.R. District, to provide amenities as mentioned in the brochure, to pay compensation of `3,00,000/- and costs of `25,000/-.

Or

Alternative to refund the amount of Rs.25,68,000/- with interest @ 18% per annum from 27.01.2010 together with Rs.8,45,000/- towards additional amount to vacate the flat, compensation, shifting charges and costs.

3. The averments of the complaint are that the opposite parties no.3 and 4 along with two other persons entered into development agreement cum GPA dated 18.7.2008 at SRO Qutubullahpur with the opposite parties no.1 and 2 in respect of land measuring Ac.4-19 guntas out of Ac.5-13 guntas in Sy.No.129, 176 and 177 situated at Gajularamaram Village, Qutubullahpur Mandal and Municipality in R.R.District for construction of residential apartments. As per the development agreement the owners are entitled for 21% of the share of the built up area and the remaining 79% share is allotted to the developer. Subsequently the land owners entered into supplementary agreement dated 24.7.2008 for construction of residential apartments consisting of cellar+stilt+5 upper floors for 290 dwelling units in 9 blocks. In total 56 flats fall to the share of owners and 204 flats fall to the share of developers/builders.

4. As per the contents of brochure the opposite party no.1 has to provide club house with mini theatre, swimming pool and children’s pool, snacks bar and restaurant, library and study lounge, water softening plant and water harvesting, sewage treatment plant, steam bath, yoga and meditation hall, solar fencing, Wi Fi area, intercom landscaping, car parking etc. The complainant entered into an agreement of sale on 1.8.2008 with the opposite parties no.1 to 3 in respect of Flat No.106, Block No.6 with built up area of 1152 sft including common areas with undivided share of land of 34.56 sq.yards. The consideration of the flat was Rs.25 lakhs including all amenities as stated in brochure. The complainant paid Rs.25,68,000/- till 27.1.2010. The flat was handed over to the complainant and the opposite parties failed to register the flat in his name. The opposite parties also failed to provide amenities as promised by them.

5. The complainant applied to APCPDCL for change of name and they refused to mutate his name on the premise that the electricity bill is in the name of the opposite party no.1. The GHMC Qutubullahpur circle has considered the registration of the flat for calculation of property tax. The complainant got issued notice dated 18.09.2011 to the opposite parties no.1 to 3. The complainant obtained loan from SBI Home Loans who have been insisting for the registration of the flat. The flat owners association i.e., Pristine Place Resident Welfare Association informed the Assistant GM SBI on 25.11.2011 and also a separate complaint dated 29.5.2012 was made about the negligent attitude of the builder/developer of the opposite parties no.1 and 2 in registering the flats.

6. The opposite parties have filed written version contending that the complainant is not consumer and the complaint is not maintainable in law and admitted that the opposite parties no.1 and 2 entered into Development Agreement –cum-G.P.A. with the opposite party no.3 and 4 for construction of multi-storied apartment building i.e., consisting of cellar, stilt, plus 5 upper floor for 290 dwelling units in 9 blocks over the land admeasuring Ac.4-19 guntas in Sy.No.1129, 176 and 177 situated at Gajularamaram Village, Qutbullapur Mandal, R.R.District and of execution of supplementary agreement. The opposite parties no.1 and 2 submitted that there are certain disputes between the opposite party no.3 and them and they filed cases against each other which are pending for adjudication.

7. The opposite parties submitted that as per the agreement they had cleared all items regarding construction of common area and detained the work on other amenities due to default committed by the purchasers of the Flats. The complainant with the knowledge of the facts agreed to purchase the Flat and he had taken possession of the Flat. The complainant has not paid complete sale consideration of the Flat and as such the opposite parties have not completed the process of registration of the Flat. The complainant has filed the complaint before this commission in order to avoid paying court fee.

9. The opposite party no.3 resisted the claim on the premise that he along whether others entered into development agreement followed by supplementary agreement with the opposite parties no.1 and 2 and that the complainant entered into agreement for purchase of the Flat bearing number 106 that fell to the share of the opposite party no.3 under the Development Agreement and the complainant has not paid the entire sale consideration of the Flat. The opposite party no.3 submitted that the opposite parties no.1 and 2 have not honoured the terms of development agreement and supplementary agreement and they have failed to complete the construction of the flats which fell to the share of the opposite party no.3.

10. The opposite party no.3 submitted that he filed criminal case against the opposite parties no.1 and 2 with the Police, Jeedimetla which is pending for investigation and the opposite party no.3 filed application for appointment of arbitrator to settle the disputes between them and the petition is pending for adjudication. The complainant has not paid the sale consideration to the opposite party no.3 as per the agreement and he grabbed possession of the Flat and the opposite party no.3 got issued notice dated 15.06.2012 demanding the complainant to vacate the Flat. The complainant has not vacated the Flat and suppressing the fact, he has filed the complaint.

11. The opposite party no.3 submitted that complainant paid sale consideration of the Flat to the opposite party no.1 and 2 and colluding with them, he occupied the Flat and the opposite party no.3 had not delivered possession of the Flat to the complainant.

12. The GPA holder of the complainant filed her affidavit and the documents, Exs.A1 to A8. On behalf of the opposite parties neither affidavit nor documents have been filed.

13. The counsel for the complainant has filed written arguments.

14. The point for consideration is whether the opposite parties are liable to register the sale deed in favour of the complainant and provide amenities to the flat of the complainant?

15. The GPA holder of the complainant who is the complainant’s wife has stated that her husband availing loan from SBI entered into Agreement of sale with t the opposite parties no.1 to 3 on 01.08.2008 for purchase of Flat bearing number 106 Block No.6 with built up area of 1152 sft including common areas with undivided share of land of 34.56 sq.yards for consideration of Rs.25,00,000/- and paid a sum of Rs.1,50,000/- through cheques as earnest money. The agreement of sale dated 01.08.2013 evidences payment of an amount of Rs.1,50,000/- to the opposite party no.1 to 3.

16. The complainant paid balance sale consideration of Rs.11,00,000/- under receipts issued by the opposite party no.1 and 2 and a sum Rs.13,68,000/- drawn in favour of the opposite parry no. 1. The opposite party no.3 contends that the complainant entered into agreement of sale with him and thereafter he paid the sale consideration of the Flat to the opposite party no.1 and 2 in violation of the terms and conditions of the Agreement of Sale.

17. The opposite party no.3 executed general power of attorney in favour of the opposite party no.2. The opposite party no.1 and 2 along with the opposite party no.3 executed agreement of sale in favour of the complainant. Thus the opposite party no.3 is estopped from contending that the complainant paid sale consideration of the flat to the opposite parties no.1 and 2 and not to him.

18. Admittedly, there are disputes between the opposite parties no.1 & 2 and the opposite party no.3 in regard to the terms of development agreement and supplementary agreement. The opposite parties no.1 and 2 filed criminal case against the opposite party no.3 as also there has been dispute between them in regard to the construction of the flats that fell to the share of the opposite party no.3. The complainant is not concerned with the dispute between the opposite parties no.1 and 2 and the opposite party no.3. The complainant has paid entire sale consideration of the flat to the opposite parties no.1 to 3.

19. The opposite partyno.3 has stated that he had not handed over the possession of the flat to the complainant and the complainant in collusion with the opposite parties no.1 and 2 forcibly had taken possession of the flat on 04.01.2011 and he got issued notice demanding the complainant to vacate the flat. The complainant has got mutated the electricity connection of the flat no.106 in his favour and APCPDCL issued bills in favour of the complainant. The opposite parties no.1 and 2 have not denied that the complainant has taken possession of the flat with their consent. In the circumstances it cannot be said that the complainant had forcibly taken possession of the flat from the opposite party no.3.

20. The complainant has got issued notice on 18.9.2011 that he paid a sum of Rs.25,68,000/- as part of total sale consideration by 27.1.2010 and the opposite parties failed to honour the terms of the agreement of sale which provides for the opposite party to refund the amount with interest @ 18% per annum in the event the opposite party failed to execute sale deed within reasonable time. The complainant has called on the opposite parties either to provide amenities and execute sale deed or refund the amount with interest @ 18% per annum. It appears there is no response to the notice of the complainant.

21. It is not disputed that the complainant has paid the entire sale consideration of the flat and on payment of the sale consideration. Therefore, the complainant is entitled to registration of sale deed in respect of the flat. The contention of the learned counsel for the opposite party that the complainant is not a consumer has no substance in view of settled position and decisions of the Hon’ble Supreme Court starting from Lucknow Development Authority Vs M.K.Gupta.

22. Pending of criminal case between the opposite parties or provision of arbitration for the disputes between the opposite parties no.1 and 2 and the opposite party no.3 cannot be considered as impediment for proceeding with present complaint. The learned counsel for the complainant has relied upon the following decisions:

1. Yashpal Marwaha v. Pushpa Builders Ltde., & Anr reported in II (2006) CPJ 259 (NC).

2. Shaukat Rai & Anr v. Falcon Developers Pune & Ors reported in II (2003) CPJ 58 (NC)

3. Ghaziabad Development Authority vs. Balbir Singh reported in (2004

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) 5 scc 65 4. Narain Das Budhi Raja v. Chandigarh Admn & Anr reported in I (2007) CPJ 382 (NC) 5. Matiur Rahaman v. Jahanara Begum reported in III (2008) CPJ 164 (NC) 6. Arvind v. Raghuvir reported in III (2013) CPJ 100 (Mah) 23. The opposite parties no.1 to 3 had received sale consideration for the flat. The complainant was inducted into possession of the flat and electricity service connection of the flat was mutated in favour of the complainant. Except execution of the sale deed all acts pertaining to the sale transaction of the flat have been completed. The complainant except stating that amenities as per the brochure have not been provided, he has not adduced any evidence or say what the amenities are left to be provided. In the circumstances, the only relief the complainant is held entitled to is the execution of the sale deed in respect of the flat purchased by him from the opposite parties. For the very same reasons the other complaints deserve to be allowed. 24. In the result the complaints are allowed directing the opposite parties no.1 to 4 to execute sale deeds in respect of respective flats purchased by the complainants and pay a sum of Rs.5,000/- towards costs. Time for compliance four weeks.
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