This is a complaint filed by the Complainant under section 17(1)(a)(i) of the Consumer Protection Act, 1986 praying to direct the Opposite parties to handover and register the flat bearing No.l207-G in 12th floor of Magnolia Block comprising of 1490 square feet of super built-up area besides two car parking with undivided share of land measuring 44.97 square yards out of total land measuring Ac. 10-10 guntas in survey Nos.83,84,85,86 and 87 situated at Hafeezpet village, Serilingampally mandal, Ranga Reddy district; to pay monthly rent of Rs. 14,900/- from 18.09.2013 till the date of possession of the flat; to pay compensation of Rs. 3,00,000/- and Rs. 50,000/- towards costs of the complaint.
2. The case of the Complainant, in brief, is that Opposite party No.2 being Developer of Opposite party No.1 made believe the complainant as to the construction undertaken by them in the venture "Aditya's Imperial Heights" Magnolia Block-G over the land measuring 10 acres 10 guntas situated in Sy.Nos.83, 84, 85, 86 & 87, situated at Hafcezpet village, Serilingampally mandal, Ranga Reddy district having obtained necessary permissions from GHMC by virtue of Development Agreement-cum-General Power of Attorney dated 23.12.2009 registered as document No.7007 of 209099 and explaining the salient features, amenities, facilities being provided in the above venture, attracted the Complainant to purchase flat No. 1207. Accordingly, Complainant opted to purchase the flat No.l207-G in Magnolia block in 12th floor in Aditya's Imperial Heights, Hafeezpet, Hyderabad with 1490 sft for a consideration of Rs. 45,60,250/- and paid Rs. 14,91,763/- as initial payment and subsequently paid further sums on various dates amounting to Rs. 43,32,231/-.
3. It was agreed by the Opposite parties to pay the rent @ Rs. 10/- per sft per month 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. 45,69,250/- and entering into agreement of sale on 22.03.2012. The Complainant failed to make payments within the time specified which resulted in delay. The Opposite party sent e-mail dated 12.09.2017 informing the Complainant to pay the outstanding dues immediately as the flat is ready for occupation, which the Complainant failed to and got issued a notice dated 30.09.2017. This Commission has no jurisdiction to entertain the present complaint. 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 Complainant filed her affidavit evidence as PW1 and the documents Ex.Al to A8 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 Complainant is entitled for the reliefs as prayed for? If so, to what relief.
7. The admitted fact is that the Complainant has agreed to purchase Flat bearing No.l207-G Magnolia block admeasuring 1490 sft in the apartment known as "Aditya's Imperial Heights,. The total cost of the flat was determined at Rs. 45,60,250/-.
8. Ex.A1 is the letter of booking, dated 20.06.2011, which acknowledges the receipt of Rs. 2,56,000/- on 18.06.2011 and Rs. 2,00,000/- on 18.06.2011. The said letter lays down the terms and conditions. Ex.A2 is the Agreement of Sale, dated 22.03.2012 which shows receipt of Rs.l4,91,763/-from the Complainant. Under Ex.A3, the Complainant further paid the amount of Rs. 3,81,525/-. As per statement filed by the Complainant, it shows that the Complainant made payments as per demands made by Opposite party No.1, however, with a negligible delay.
So far as the present case is concerned, the relevant clause is condition No.4, 5, 6, and 7 in Ex.A2. For the sake of clarity, the said four conditions are extracted which 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 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 statement appended to Ex.A2 goes to show that the Complainant paid the amounts as per the schedule but with negligible delay. Till commencement of brick and plastering i.e., as on 08.10.2013, the Complainant stated to have paid Rs. 39,29,913/- as against the amount of Rs. 43,32,237/- due by then which is not disputed by the Opposite parties. Except making an assertion in their written version that the Complainant failed to make payments within time schedule, nothing is brought on record by the Opposite parties to vouchsafe their contention. The say of the Complainant is that she is due only a sum of Rs. 2,28,013/- towards balance sale consideration, which is denied by the Opposite parties.
10. A perusal of Ex.A4, particularly, e-mail correspondence dated 27.05.2017 between the parties goes to show that the Opposite parties agreed to send the details of payments to be made in a separate mail. Again, by e-mail dated 26.09.2017, the Complainant informed the Opposite parties that she had paid 95% of total sale consideration for the flat No. 1207 in G-block with last payment made in October 2013 leaving the balance of Rs. 2,28,013/- being 5% of the amount. In the same letter, she demanded to pay the rental amount of Rs. 7,00,000/- as on that date seeking as to when they would handover the flat. To which, the Opposite parties responded seeking the Complainant to pay the amount of Rs. 16,09,999/-. The demand does not contain the detailed calculations. However, in the notice dated 30.09.2017, in clear terms, Complainant dismissed the claim of Opposite parties stating it to be illegal and contrary to contractual obligations. That apart, there is no reply from the side of Opposite parties as to the completion of flat and handing over the keys thereof. As a result of which, the Complainant got issued notice dated 30.09.2017 and thereafter filed the present complaint.
11. Except denying the version of the Complainant, 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 Complainant that she is ready to pay the balance sale consideration of Rs. 2,28,013/- no sooner the flat is made ready for occupation. Except contending that Complainant is not eligible for rental benefits as she defaulted in paying instalments as per payment schedule, no piece of paper is filed in support of their contention. As per clause-19 of Agreement of sale Ex.A2 dated 22.03.2012, 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 21.09.2014. 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.
12. Clause-4 of Ex.Al 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. 4,56,025/- was paid by the Complainant in the form of two cheques bearing No.020392, dated 18.06.2011 for Rs. 2,56,000/- drawn on ICICI Bank and another cheque bearing No.564022, dated 18.06.2011 drawn on HDFC Bank, as is evident from Ex.Al. Further, the 15% of the foundation stage amount was paid by the Complainant on 15.10.2011 as against 05.10.2011 by way of two cheques for Rs. 3,50,000/- and Rs. 3,34,038/- (amounting to Rs. 6,84,038/-) as against Rs. 6,84,038/-.
13. Having received the same 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. I have carefully perused the payment schedule appended to Ex.Al as also incorporated in the Agreement of sale Ex.A2. 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" G-block Magnolia 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 Complainant as to the completion of flat and handover the same for her occupation, there is no whisper from the side of Opposite parties. The burden lies on the Opposite parties to show that they
Please Login To View The Full Judgment!
have completed the construction as per the terms of agreement and made ready the flat for occupation of Complainant, which they failed to. 14. For the aforesaid reasons, I answer the point framed for consideration in favour of the Complainant and against the Opposite parties. Accordingly, the Opposite parties are liable to pay the rent@ Rs. 10/- per sft from October 2013 onwards for the flat in question apart from handing over the possession of the flat duly registered in favour of the Complainant. 15. In the result, the complaint is allowed in part directing the Opposite parties 1 and 2 jointly and severally to deliver/handover the physical possession of the subject flat bearing No. 1207 in 12th floor of Magnolia Block-G comprising of 1490 square feet and to register/convey the same in favour of the Complainant subject to receipt of balance sale consideration of Rs. 2,28,013/- and further the Opposite parties are directed to pay the rent @ Rs. 10/- per sft from October 2013 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.