Oral Order: (R. Lakshminarsimha Rao, Member)
1. The complaint is filed seeking for refund of the amount of Rs.27.45 lakhs together with Rs.6,30,000/- towards financial loss, Rs.5 lakhs towards compensation and costs.
2. The averments of the complaint are that the complainant entered into agreement of sale with the opposite party on 12.05.2012 to purchase Flat bearing number E-101 for a consideration of Rs.61,00,000/-. The complainant paid the amount of Rs.27,45,000/-till 24.05.2012. On 12.08.2012 the complainant visited the spot and came to know that there was deviation from the flooring plan. The flat in the first floor does not have balcony of the size 6.0 x 12’.3', 7.0x 5 and 7.0 x 5.0 as mentioned as utility in First Floor as per brochure furnished to the complainant.
3. The complainant submitted that the net area of the Flat is lesser than 2000 sft which is mentioned in the Agreement of sale. The complainant on finding deviations contacted the employee of the opposite party, Sridhar who informed the complainant that he was also not aware of the fact and promised the complainant that he would pursue the opposite party to compensate the complainant for the loss or in the alternative to allot the complainant another Flat. The complainant addressed letters dated 13.08.2012, 6.09.2012, 16.09.2012 and 25.09.2012 and Emails dated 13.08.2012, 5.09.2012 and 13.09.2012. The complainant submitted that reduction of the Floor area of the Flat than what was represented to the complainant amounts to deficiency in service on the part of the opposite parties.4. The opposite parties no.1 and 2 resisted the claim contending that the relationship between the complainant and the opposite parties no.1 and 2 is if contractual obligation and the complainant cannot acquire right of action from his own wrong. The opposite parties contend that their AGM, Marketing explained the complainant the details of the project including the floor plan, area of flat, pricing etc.,. as per the terms of the booking letter the total area of the Flat is 2000 sft and the consideration of the Flat is @ Rs.2800/-inclusive of Rs.5,00,000/- towards the cost of providing amenities.
5. The opposite party submitted that they had given the complainant typical floor plan and informed to the complainant that for high rise constructions there will not be balconies as per GHMC norms and the total 2000 sft area of the flat includes common area. The complainant agreed to make the payment as per the progress of the construction and he paid a sum of Rs.27,45,000/- and thereafter stopped making payment as per progress of construction. The opposite parties issued letter on 15.9.2012 wherein it was mentioned that the progress of construction was at the stage of 9th slab and requested the complainant to make payment as per the schedule.
6. The opposite parties submitted that they are not aware that the complainant visited the construction site to see the progress of the construction. The brochure given to the complainant at the time of booking and at the time of signing agreement of sale contains typical floor plan to show the model of the flat. The agreement of sale dated 12.5.2012 contain recital that 2000 sft area of the flat E101 includes the common area. The net area of the flat will become lesser if the common area is deducted from the total area of the flat.
7. The opposite parties submitted that they had not concealed the fact of the flat without balcony from the complainant. On being satisfied with the specifications of the flat in the brochure, the complainant booked the flat. There is no cause of action to the complainant to file the complaint and there is no deficiency in service on the part of the opposite party. The opposite party submitted that the complainant is not entitled to any relief and prayed for dismissal of the complaint.
8. The complainant in support of his claim has filed his affidavit and the documents Exs.A1 to A13. On behalf of the opposite parties no.1 and 2, the opposite party no.2 filed his affidavit. The opposite parties have not chosen to file any documents.
9. The complainant and the counsel for the opposite parties have filed their written arguments.
10. The point for consideration is whether there is deficiency in service on the part of the opposite parties in not making refund of the amount to the complainant?
11. It is beyond any dispute that the opposite party company is engaged in the business of construction of flats and issued brochure containing material about the construction of flats under the name and style of Imperial Heights' at Hafeezpet Hyderabad. The complainant contacted the AGM Marketing of the opposite party no.1 company who explained him the details of the project including the floor plan, area of the flat, pricing etc. The complainant booked for the flat bearing E101 in Gardenia Block, Imperial Heights Hafeezpet, Hyderabad. The opposite parties issued booking letter on 2.2.2012 and paid an amount of Rs.50,000/- through cheque towards advance.
12. The complainant has stated that the representative of the opposite party issued the booking letter and in terms of the booking letter the opposite party agreed to sell total area of the flat, 2000 sft. The cost of the flat was calculated at Rs.2800/- per sq.feet and an amount of Rs.5 lakhs for amenities, a total amount of Rs.61 lakh was agreed to be paid by the complainant. The Director of the opposite party no.1 executed agreement of sale dated 12.5.2012 in favour of the complainant.
13. The complainant contends that the opposite parties had concealed the fact from him that the flat bearing No.E101 in the first floor of the building does not contain balcony and the total area of 2000 sft was reduced owing to not having the balconies. As such he stopped payment and requested the opposite parties to refund the amount paid by him. The opposite parties have submitted that they did not conceal the flat having no balcony and they had explained to the complainant about the same at the time of booking the flat.
14. The material condition as to the specifications of the flat mentioned in the agreement of sale provides for 2000 sft area of the flat including common area in the first floor along with amenities like two car parking slots. There is no mention of balcony or not providing the balcony to the flat no.101. However, the intention of the parties can be gathered from the correspondence made by the complainant is in the shape of letters and emails. The complainant addressed letter dated 13.08.2012 seeking for change of flat on the premise that he was given to understanding that balconies would be provided to the flat and on his instruction of the flat he was shocked to know that the flat under purchase was not provided with any balconies. In the letter the complainant expressed his intention at the time of booking the flat in the following words:
'This is regarding the flat no.101-E (Gardenia),Imperial Heights, Hafeezpet of which I am the Principal owner. I visited the site yesterday and was shocked to find that the provision of balconies in the falt has been scrapped. This is a complete change in the design of the Floor plan that was shown in the brochure given to us at the time of sale. Having so publicly displayed the floor plans/Layout Plans with balconies in your brochure and your website, I am only wondering how you can unilaterally change it after the sale of the units.'
15. There was no response from the opposite parties to the request made by the complainant as regards to his request for the opposite party to stick to the terms and conditions as to the specifications mentioned in the brochure. The complainant addressed another letter on 6.9.2012 wherein the complainant expressed his dissatisfaction of lack of response of the opposite parties to his request regarding the discrepancy in the floor plan and the actual structure under construction.
16. Thereafter the complainant has addressed two letters dated 18.9.2012 and 25.9.2013 requesting the opposite parties as to why they concealed from him the fact that the flat under purchase was not provided with balconies. The complainant has brought to the notice of the opposite parties that as a result of their not providing balconies to the flat bearing No.101, the area of 2000 sft became reduced. In his letter dated 25.09.2013, the complainant reiterated his request for allotting a different Flat or refund the amount paid by him. The first paragraph of the letter reads as under:
'Please refer to my earlier letter dated 13th August, 2012 and subsequently reminders dated 06th September, 2012 and 18th September, 2012, protesting the change in the floor plan of the unit 101E (Gardenia Block), Imperial Heights, Hafeezpet, Hyderabad. The fact that the 1st floor would not have balconies/modified balconies than what was mentioned in the floor plan concealed from me. Consequently the total area of my Flat # E-101 is less than what is mentioned (2000 sft) in the Agreement of Sale dated 14th May 2012. It is more than a moth now and since I did not hear from your end, allow me please to remind you again to take the initiative to address the issue with the urgency and the seriousness that it deserves. All I am asking you is to compensate me by either allotting me a different flat (in lieu of E-101) of my choice on the same tower of E Block or refund the amount paid by me along with the interest accrued (at the market rate)'.
17. For a long time since the date of the first letter dated 13.8.2012, there had been no response from the opposite parties to allot a different Flat or to refund the amount. Therefore, the complainant had addressed letters subsequently on 06.09.2012, 18.9.2012 and 25.9.2013. The opposite party responded on 27.09.2013 through Email informing the complainant that as of then no Flats were available admeasuring 2000 sft except the Flat bearing number 1410 in H-Block. The E-mail reads as under:
' With reference to your letter dated 25th Sep 2012 regarding the allotment of different flats ( in lieu of E-101) in E-block, presently no flats are available in E-block for any SFT except in the 1st floor.
We are having the flat available in H-block (Flat No.1410) which is of same 2000sft.
We request you kindly to have a look in that flat (H-1410) and get back to us, so that we can be able to complete the process at the earliest.
For further information on this, Mr.K.Sridhar (Marketing) will assist you'.
18. A cumulative reading of the letters of the complainant and the response of the opposite parties no.1 and 2 would draw the inference that the parties proceeded to deal with a Flat of 2000 sft which does include the area covered by the Balconies to the Flat bearing no.101 which is under Agreement of Sale and the Flat was not provided with any balconies. Therefore, this Commission is of the view that the opposite party represented to the complainant specifications different from the specifications of the Flat actually under construction which amounts to deficiency in service on the part of the opposite parties.
19. The learned counsel for the opposite parties has contended that the complainant committed default in making payment of the consideration as per the schedule; the complainant cannot contend that the opposite parties are at fault. The complainant has submitted that he stopped payment of the balance amount since the time he found there was discrepancy in specifications of the Flat with regard to the area and particularly the balconies of the Flat. The contention
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of the complainant is supported by the information spelt out in each and every letter that he addressed to the opposite parties. The opposite parties cannot fall back on schedule of payment in terms of the Agreement of Sale. 20. This Commission would agree with the contention of the complainant that he proceeded to purchase the Flat with its features as explained to him by the opposite parties and mentioned in the Brochure and Agreement of Sale. For the entire period from the time the complainant paid the amount of Rs.27,45,000/- till date, the amount has been lying with the opposite parties. The complainant might have suffered mental tension as the opposite parties misrepresented the specifications of the Flat and the Flat of his choice was not offered to him. For the reasons, this Commission is of the considered view that the complainant is entitled on all counts to refund of the amount of Rs.27,45,000/with interest @9% p.a from the date of filing of the complaint till payment as also costs of the Flat. 21. In the result, the complaint is allowed directing the opposite parties jointly and severally to pay a sum of Rs.27,45,000/- with interest @9% p.a from the date of agreement of sale till the date of payment along with costs of Rs.5,000/-. Time for compliance four weeks.