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Sri Willy Kan v/s Sikhara Constructions & Others

    C.C.No.102 of 2012

    Decided On, 08 April 2013

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad

    By, THE HONOURABLE MR. R. LAKSHMINARASIMHA RAO
    By, MEMBER & THE HONOURABLE MR. THOTA ASHOK KUMAR
    By, MEMBER

    For the Complainants: M/s. P. Raja Sripathi Rao, Advocate. For the Opposite Parties: M/s. J. Srinivas Reddy, M/s. S. Ramachandra Prasad, M/s. K. Venkateswarlu, Advocates.



Judgment Text

Oral Order: (R. Lakshminarasimha Rao, Member)

1. The complaint is filed seeking relief for delivery of possession of the flat bearing number 502 and for completion of construction of the flat and for providing amenities to the flat as also for execution of sale deed or in the alternative for refund of the amount of Rs.45,00,000/- with interest @24% p.a. and for payment of Rs.25,00,000/- towards compensation and Rs.20,000/- costs.

2. The averments of the complaint are that the first opposite party through the second and third opposite parties entered into ‘Development Agreement cum General Power of Attorney with the opposite parties no.4 to 7 who are the owners of the site admeasuring 773 sq.yards with building bearing door no.3-6-369 situated at Himayatnagar locality of Hyderabad city, on 29.08.2005 whereunder it was agreed that the opposite parties no.1 to 3 would construct a residential complex consisting of 20 flats of which the opposite parties no.4 to 7 are entitled to 50% of the total built up area and the opposite parties no.1 to 3 are entitled to balance 50% built up area.

3. The complainants entered into agreement of sale on 18.11.2008 for purchase of 502 admeasuring 1610 sft including car parking area along with undivided area admeasuring 532 for sale consideration of Rs.65,00,,000/- The complainant paid an amount of Rs.22.00,000/- on 18.11.2008 and a sum of Rs.20,00,000/- on 24.11.2008 to the second opposite party. The complainant entered into agreement of sale on 16.10.2009 and paid an amount of Rs.8,00,000/- on 16.10.2009 towards part payment of sale consideration. The opposite parties no.1 to 3 executed supplementary agreement on 26.03.2009 and received an amount of Rs.6,00,000/- .

4. It was agreed that the complainant would pay the balance sale consideration in phased manner and the opposite parties no.1 to 3 would complete the construction and handover possession of the flat on or before 25.01.2011. Thereafter the complainant paid a sum of Rs.7,00,000/- on various dates to the opposite parties no.1 to 3. After a year of entering into agreement , the opposite parties no.1 to 3 have not completed the project to the requisite stage and pressurized the complainant to pay the balance sale consideration of Rs.20,00,000/-which the complainant refused as there was no progress in the project. The complainant came to know that there are interse dispute between the opposite parties no.2 and 3 and some of the purchasers filed complaint before this Commission in C.C.No. 2 of 2010, 35 of 2011 and 85 of 2011. The complainant got issued notice on 5.08.2012 to complete construction of the flat and hand it over to him or refund the amount received from him along with interest and compensation. There was no response to the notice. Hence, the complaint.

5. The opposite parties no.1 and 3 filed written version contending that the first opposite party almost completed construction of the project was including providing of the amenities. The complainant entered into agreement to purchase flat no.502 and refused to pay the balance sale consideration. C.C.No. 2 of 2012 is partly allowed and C.C.No. 35 of 2011 and 85 of 2011 are dismissed against the opposite parties no. 1 and 3 and was allowed partly against the opposite party no.2. The complaints are not relevant for the present complaint. The complainant has not expressed his readiness to pay balance sale consideration inspite of reminders by the opposite parties no.1 and 3. The notice sent by the complainant was not received by the opposite parties no.1 and 3. There is no oral understanding between the complainant and the opposite parties no.2 and 3 that at the time of registration of sale deed the presence of opposite party no.2 is essential.

6. The opposite party no.2 filed written version resisting the claim and stated that initially the complainant entered into an agreement for purchase of flat No.502 for consideration of Rs.65,00,,000/- and paid 45 lakhs towards part of sale consideration of the flat. The complainant paid an amount of Rs.20,00,000/- to the 3rd opposite party and Rs.8,00,000/-to the second opposite party. The complainant entered into supplementary agreement exclusively with the 3rd opposite party and paid an amount of Rs.8,00,000/- under supplementary agreement to the 3rd opposite party. The 3rd opposite party is accountable for the obligation under the supplementary agreement. It was agreed that the balance sale consideration was to be paid in accordance with the progress of the work. The facts of C.C.No. 2 of 2010, 35 of 2011 and 85 of 2011 and the facts of the present complaint are different. The order passed in those cases have no applicability to the present case. 90% of construction work of the building is completed. The complaint is not filed within the period of limitation.

7. The opposite parties no.4 to 7 resisted the claim on the premise that they are not party to the agreement of sale entered into between the complainant and the opposite parties no.1 to 3 and they have no knowledge of payment made by the complainant to the opposite parties no.1 to 3. It is stated that the opposite parties no.4 to 7 are land owners and entered into development agreement with the opposite parties no.1 to 3 for development of their land and construction of building therein and they gave GPA to the opposite party no.1 and they had no concern with the share of the builder, i.e., the opposite parties no.1 to 3. It is stated that the C.C.no. 2 of 2010 and C.C.No.3 of 2010 were dismissed by this Commission against the opposite parties no. 4to 7.

8. The complainant filed his affidavit and the documents, ExA1 to A19 and on the side of the opposite parties no.1 and 2, K.Vishnu Vardhan Reddy, the Managing Partner filed his affidavit and no documents have been marked.

9. The points for considerations are:

1) Whether there is deficiency in service on the part of the opposite parties?

ii) To what relief?

10. POINT NO.1: There is no dispute of the fact that the opposite parties no.1 to 3 entered into development agreement with the opposite parties no.4 to 7 for development of the land and construction of a residential complex consisting of 20 flats and the opposite parties no.4 to 7 are entitled to 50% of the total built up area while the opposite parties no.4 to 7 are entitled to the balance 50% built up area. On 18.11.2008 and 16.10.2009 the complainant entered into agreement of sale with the opposite parties no.1 to 3 for purchase of Flat No. 502 admeasuring 1610 sft for consideration of 65,00,,000/-. As per clause 4 of the agreement of sale the opposite parties no.1 to 3 have to complete construction work of the flat and hand over it to the complainant within 24 months from the date of agreement of sale.

11. The complainant paid the amount of Rs.45,00,000/- on various dates till 9.,12.2011. As per clause 2 of the agreement of sale, the complainant has to pay balance sale consideration as per the progress of the flat as well as building.

12. The complainant entered into agreement of sale dated 16.10.2009 with the 1st opposite party represented by the 2nd and 3rd opposite parties and as per clause 4 of the agreement, the opposite parties no.1 t o3 agreed to complete construction of the building within 24 months from the date of the agreement. The complainant entered into supplementary agreement on 25.03.2010 with the 1st opposite party represented by the 3rd opposite party in pursuance of agreement dated 16.10.2009 and the complainant agreed to pay balance sale consideration in phased manner and the opposite parties no.1 and 3 agreed to complete the construction and hand over the flat by 25.01..2011. Subsequent to the date of supplementary agreement , the complainant paid a sum of Rs.10,00,000/- on various dates from 22.05.2010 till 9.12.2011 to third opposite party. Thus, the balance payable by the complainant is Rs.20,00,000/-. The complainant got issued notice through his advocate on 4.08.2012 to the opposite parties no.1 to 3 that he paid an amount of Rs.45,00,000/- and they neglected to complete the construction of the flat.

13. The learned counsel for the opposite parties no.1 and 2 has filed memo stating that the opposite party no.2 expressed his readiness to complete construction of the flat and hand over it to the complainant subject to payment of balance sale consideration to him by the complainant. The memo recorded on 2.4.2013.

14. The complainant has expressed his readiness to pay the balance amount subject to completion of construction work of flat no.502 which is under sale and in the memo dated 2.4.2013 the opposite parties no.1 and 2 had referred to the complaints C.C.No.2 of 2010, 3 of 2010 and 80 of 2009 wherein orders are said to have been passed by this Commission and in compliance of the order of this Commission the second opposite party representing the first opposite party completed the construction of the flat and handed them to the respective purchasers.

15. In C.C.No.3 of 2010 and 85 of 2011 this Commission had directed the opposite party no.2 herein to refund the amount in lieu of his inability to complete the construction of the flat and also in the light of receipt of amount exclusively by him. However, in the case on hand the opposite parties no.2 and 3 had received different amounts out of the total sale consideration of Rs.65 lakhs on different dates from the complainant. The opposite party no.2 has not only expressed his readiness to complete construction of the flat no.502, he had also stated that he is ready to execute sale deed in favour of the complainant pertaining to th

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e flat in question. In the circumstances, we deem it proper to direct the complainant to pay balance sale consideration of Rs.20 lakhs to the opposite party no.2 and the opposite party no.2 should complete the construction of the flat and hand over it to the complainant as also the opposite parties no.2 and 3 representing the opposite party no.1 shall execute registered sale deed in favour of the complainant in respect of flat no.502. 16. In the result the complaint is allowed directing the opposite party no.2 to complete construction of flat no.502 and hand over possession of the flat to the complainant within one month from the date of receipt of balance sale consideration of Rs.20 lakhs from the complainant. The opposite parties no.2 and 3 representing the opposite party no.1 shall execute registered sale deed in favour of the complainant within one week from the date of delivery possession of the flat no.502 to the complainant. The complaint against the opposite parties no.4 to 7 is dismissed without costs. The costs of the proceedings quantified at Rs.5,000/-.
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