State Consumer Disputes Redressal CommissionMr.Badugu Anand Babu vs 1.M/S. Aliens Developers P. Ltd., on 23 March, 2022BEFORE THE TELANGANA STATE CONsUMER DIsPUTES REDRESSAL\n                              COMMISSION:HYDERABAD\n\n\n                               (ADDITIONAL BENCH)\n\n                                  C.C.195/2018\n\nBetween:\n\nMr. Badugu Anand Babu,\nS/o.Mr.BVM Rao aged about 45 years,\nR/o.Flat No.502, 5th Floor, Block:Orion,\nAliens Elite, Survey Nos.1 & 2,\nPrasanth Nagar, Near Water Tank,\n                                                                         .. Complainant\nMiyapur, Hyderabad -500 049.\n\n And\n\n 1.M/s.Aliens Developers (P) Ltd.,\n Rep. by its Managing Director and\n Joint Managing Director,\n Mr.Hari Challa & Mr Venkat Prasanna Challa,\n O/o.Ms.Aliens Space Station, Tellapur,\n Ramachandrapuram Mandal, Medak Dist;Hyderabad -   PIN -   502 032.2. Ms. State Bank of India,\n Rep. by its Asst. General Manager,\n                                                                Opp.parties\n  RACPC, Nampally, Hyderabad 500 004\n\n                                              M/s.V.Appa Rao\n  Counsel for the Complainant\n                                              M/s.Raja Sripathi Rao-O.P.No.1\n  Counsel for the Opposite Party\n                                               Mr.A.V.S.Ramakrishna-O.P.No.2.CORAM:Hon'ble Sri V.V.Seshubabu, Member (J),\n                                  And\n                 Hon'ble Smt.R.S.Rajeshree, Member (NJ).WEDNESDAY, THE TWENTY\n                                     THIRD DAY OF                      MARCH,\n                       TWO THOUSAND TWENTY TWO.\n\n   OrderThe complaint is filedu/s.17(1){a)i) of theConsumer Protection Act,1.opposite                under:\n           & 2002 for directions to the                 party   as1986consideration received\n                         i.     To pay the amount of sale\n                                             with interest@ 20 % per annum from\n                               Rs.20,81,564 /-\n                                            dates of sale consideration received        by   it\n                               respective\n                                                                 in alternative,   to deliver\n                               till payment of the   same or\n\n                                                                                the          in\n                               the possession of the flat       by completing         sameall respects as per agreed specifications2.      to pay Rs.5 lakhs             as compensation        for causing\n\n                             mental agony, suffering and escalation of                    cost of\n\n                             construction;ii.     to pay fair rent @ Rs.10 per sq.ft of super built up\n                             area    per month       w.e.f. 1.1.2013         that in case flat\n\n                             handover; and\n                     iv.     to pay   Rs.50,000/-     as   legal expenses.2.   The brief averments of the complaint are that the opposite party no.1 is a\n private limited company doing business in the construction of flats etc. and\n it had undertaken a Development Agreement cum GPA with respective land\n owners for the development of land admeasuring 19.26 guntas                           to raise\n residential complexes         covered by Survey nos.384, 385 and 426/A                      at\n\n Tellapur Village    in Ramachandrapuram Mandal, Medak Dist.;                      that     the\n complainant entered into an Agreement of Sale dt.1.6.2009 with the opposite\n party no .1 to purchase a flat bearing no.854, Station -9 on 8th floor of the\n\n complex by name Ms.Aliens Space Station -1 with a super built up area of\n 1432 sq.ft.     with one covered car parking besides undivided share of land of\n 30.79 sq.yards     out of     the      land       as stated supra     in total for a sale\n consideration of Rs.43,63,127/-          The   complainant paid Rs.20,81,564/- by\n availing home loan from opposite party no.2               and agreed to pay the balance\n sale consideration as per the terms of the agreement of sale;                    that     the\n opposite party no.l       agreed to     complete the construction of the flat by\n31.12.2012 including the grace period, else agreed to pay compensation@\nRs.3/- per sq.ft. of super built up area per month w.e.f. 1.1.2013, however,\nfailed to do so, as such it amounts to deficiency in service.           The complainant\nmade several phone calls, but construction was not completed though\npromises were made from time to time.                      The construction      was      not\ncompleted even by June, 2018; that the opposite party no.2 in contrary                      to\nthe provisions ofA.P. Construction and Ownership of Apartments Act,1987released more than 20% of the sale consideration thereby opposite party no.1\ndiverted       the sale consideration for its commercial activities rather on\nconstruction of flat undersale.         The complainant got issued a legal notice\ndt. 23.8.2018 on the opposite parties to their available address             but there was\nno response from them.           Even though        the opposite party no.1       obtained\nBuilding Permission from the HUDA                  on 11.4.2008, not completed the\nconstruction on time.      The   opposite party\n                                            is also liable to pay compensation\nof Rs.5 lakhs for the mental agony, escalation of costs etc. and also liable to\n\npay Rs.10/- per square ft. of super built up area per month towards fair\nrent; hence, the complaint.33.    Opposite party no.1 filed written version and brief averments of the same\n relevant to the facts are that, there is no deficiency in service;             that the\n allegations made in the complaint are denied except those that are admitted;\n that the complainant has not approached the Commission with clean hands\n and never he asked for refund of money or for cancellation of the agreement,\n as such cannot claim deficiency in service.        The complaint is barred by time\n\n since the possession as stipulated under the Agreement comes to an end by\n 31.12.2012    as   per the terms of the   Agreement.      But, the complaint was not\n filed within 2 years from the said date; that there is a Clause in the Agreement\n to go for Arbitration in case of disputes, but it was not opted for; that the\n complainant not paid the entire instalments as stipulated under the Agreement\n for which the opposite party no.1 is entitled to cancel the allotment and forfeit\n earnest money.       The opposite party has      fought for conversion of land from\n\n agriculture to non agriculture and         after formation of HUDA has to obtain\n permission for agriculture zone to residential and commercial zone etc., and\n also with regard to the projects be in conformity             with the master plan, to\n obtain No Objection Certiicate from the Fire Services Department and               on\n several other aspects that as per Clause XIV, the opposite party cannot be\n found fault with for non completion of project on time "Force Majeure"; that as\n per Clause VIl(g) of the Agreement, the opposite party shall pay compensation\n charges at Rs.3/- per sq.ft. per month, in case of failure to deliver possession,\n as such the complainant cannot claim Rs.10/- per sq.ft.; that the complainant\n is not entitled to claim compensation of Rs.5 lakhs and Rs.50,000/- towards\n legal expenses; that as schedule flat is going to be completed in the year 2024,\n the opposite party is ready to refund the amount with interest, if complainant\nis interested. With these pleas the opposite party prayed for dismissal of the\ncomplaint with exemplary costs.4.    The brief averments of the written version of opposite party no.2 which are\nrelevant for the case are that the complaint is liable for dismissal as against\nopposite party no.2 with costs; that        the complainant, opposite party no.1 &\nOpp. party no.2 entered into tripartite agreement and strictly following the\nrules and regulations of the RBI and A.P. Construction and Ownership                of\nApartment Act,1987, amounts were released. If the complainant is entitled to\n\nany    relief, it is only against opposite party no.1.            Opposite party no.2\n\nsanctioned     housing loan of Rs.38,32,000/-           basing on arrangement letter\n\ndt.28.9.2009        and other loan documents.           Only   in order to avoid the\nrepayment of loan, opposite party no.2 is made as a party to the complaint.\nThere is no cause of action against the opposite party no.2 and the complaint is\n\nbarred by time.       The opposite party     reserves its right to approach Debts\n Recovery Tribunal                   against   the   complainant        for the recovery        of    dues.Opposite party no.2 prays for dismissal of the complaint.The complainant filed Evidence Afidavit and Exs.A1 to All are marked on5.\nhis behalf.         Mr.Hari Challa, Managing Director of opposite party no.1 filed\nevidence affidavit.      Exs.B1 to B18 marked on behalf of the opposite party no.1.Chief Manager of opposite party no.2 Bank filed Chief Evidence Affidavit.Written arguments of complainant and opposite party no.2 filed.Heard counsel on both sides.6.    Basing on the pleadings on both sides, the following are the points for\n\nconsideration:i.      Whether there is      deficiency in   service   on   the part of\n\n                                       the opposite parties ??i.      Whether the      complaint is   barred   by time     and also\n                                       not maintainable for the reason of not invoking\n\n                                       Arbitration Clause?ii.       Whether the      complainant is entitled for reliefs         as\n\n\n                                       claimed in the complaint?iv.       To what reliefs?\n\n\n                                                                             dt.1.6.2009.      The said\n 7.     Point No.1:                 Ex.A1 is the      Agreement of Sale\n                                                                                         its GPA          on\n Agreement     of Sale    was        executed   by opposite party no.1 through\n behalf of the original owners to sell the flat no.854 in                       8th floor with super\n\n                                                    with undivided share of 30.79        sq.yds.         with\n built up    area    of 1432        sq.ft. along\n                                                The total sale        consideration was fixed at\n one car parking space\n                                                                     paid   under   agreement       Ex.A1\n Rs.43,63,127/-        out of which        Rs.6,54,469/-       was\n\n                                                      to be                      paid   in accordanceitself and the balance amount of Rs. 37,08,658/- has\n                                    mentioned      as annexure      A to the   Agreement.       There is\n with the payment        plan\n no dispute regarding the payments of Rs.20,81,564/- out of Rs.43,63,127/\n                                              made     on   28.7.2009.      As the balance amount\n The last of such       payment         was\n\n                                                                                                           to\n has to be    paid depending             upon the     stages of construction, it is important\n note that no demand was ever made by the opposite party no.1 seeking\n\n                               amounts          and    no   piece   of paper is available to show\n payment of balance\n                                                      As the construction is mammoth           one       it is\n informing the stage of construction.by himself/herself      the stage of construction\n difficult for any purchaser to know\n                                        the same, it may                              it be there.\n and to make payment in accordance with\n                                                                                 as\n\n\n\n\n                                                                           issued   by complainant         to\n 8.      A   legal   notice under Ex.A7 dt.23.8.2018                 was\n\n                                                            no.2    informing that he       lost faith     on\n opposite party       no.l     and      opposite party\n opposite party       no.1     and also not interested to continue with the terms and5conditions of the contract and wish               to come out from the               contractual         obligation\nunder       Ex.A1, thereby demanded for refund of Rs.20,81,564/- with interest\n                                                                               @@\n20% from the date ofreceipt of the same or in alternative sought for delivery\nof the flat by completing the same in all aspects and also demanded\ncompensation of Rs.5 lakhs.Exs. A8 & All goes to show that notice was posted by courier. Itis\nalso    to be   observed that      opposite party                  1 obtained\n                                                             no.permission          from HUDA\non     11.4.2008 itself vide letter\n                                             no.621/P4/Plg/HMDA/HUDA/2008                                 which is\nmentioned in page            5 of Ex.A1. The\n                                                        opposite party also filed Exs.B1                   to   B18,\nout of       which       Exs.B1 to        B10         are    prior       to Ex.A1   which     are        necessary\npermissions obtained by               the    opposite party                no.1 to    proceed            with the\nconstruction.              Therefore, opposite party is not entitled to contend that to\nobtain those         permissions      lot of      time       was     consumed and for that                  reason\nconstruction could           not be    completed             as    scheduled.        Added to the same,\nopposite party        no.1      being fully engaged           in the construction side of                 activity,\nhas    know all these aspects and\n       torequirements of permissions before starting\nthe collection of amounts from the flat\n                                         owners. When the\n                                                           complainant agreed\nto sell a\n           particular flat in the 8th floor of a building, one has to\n                                                                                                          impute\nknowledge regarding all the implications and complications involved                                         in the\nproject. Ex.B16 to B18 which are letter of handing over of flats to some other\ncustomers with their feed back letters, photographs of various customers and\nstage of construction of some of the flats under construction are of no avail\nfor    opposite party     no.1 to invoke force\n                                                         majeure'          i.e. Clause no.XIV            of Ex.A1\nIn view of the       discussion made        so   far,   it is very clear that there is\n                                                                                               deficiency in\nservice       on   the   part    of the     opposite party               no.1. The             is answered\n                                                                                      point\naccordingly.9.         Point no.2 : As per Ex.A1, possession has to be delivered on or before\nwithin three years from the date of                   booking with a grace period              of 6 months.It is the       argument     of the   opposite party              no.1     counsel that       the    complaint\nshould have been filed within               two years          from the      expected date          of   delivery,\nmore so       when there     are no   chances of        delivering possession within\n                                                                       future                   near\nThe   complainant  relied upon a case law petition in Special Leave to Appeal\n(Civil) in C.c.No.8481/2012 by the NCDRC vide order dt.9.5.2012. When the\ncomplainant waited for years with fond hope of getting the flat, the complaint\ncannot be dismissed for non delivery of the plot                             as observed inMeerut\nDevelopment Authority vs. Mukesh Kumar Guptareported in IV (2012) Supreme\nCourt CPJ 12.As already stated supra              at         no point of time opposite party no.1\ninformed the stages of construction and never expressed his inability to deliver\nthe flat as stipulated in Ex.A1 and never offered to refund the money. Even6after receipt of the legal notice also        did not come            forward to refund the\n\namount with interest.       It shows that the cause of action is continuing.Therefore, the point is answered against the opposite party no. 1.Arbitration Clause          no.   XVIII   and it   was   not\n10        Admittedly,   there is   an\n\ninvoked by the complainant or to that                  matter by opposite party no. 1.           The\n\n                                                  law    reported    in   (2012) 2     ScC 506 in\ncomplainant counsel relied upon         a caseNational Seeds Corporation Ltd.         vs.   M.   Madhusudhan        Reddy       wherein it is\n\n categorically   observed that theConsumer Protection Actis in addition to and\n not in derogation of the provisions of any other law for the time being in force.\n In such circumstances, the complaint cannot be dismissed for not invoking the\n\n Arbitration Clause. So the point is answered against the opposite party no.1.of11.    Point nos. 3 & 4: In the case on hand, out of total consideration\n Rs.43,63,127/, the complainant paid only Rs.20,81,564/- and the balance\n remains Rs.22,81,563/-. In the case on hand , the complainant informed that\n  he is not at all interested in   the continuation of the contract and he wants\n  refund. Even though asked for delivery of possession by completing the same\n\n  in all respects, interested for refund of amount, because,                  the opposite party\n  no.1 failed to inform on what approximate date the possession will be given.\n  By taking into consideration, the present bank rates, the complainant is\n  entitled for the refund of Rs.20,81,564/- with 9.5% interest from 28.7.2009\n  till the date of payment,        Rs.50,000/            as compensation and Rs.10,000/-\n  towards legal expenses.     The complaint against opposite party no.2 is liable to\n  be dismissed.12.       In the result, complaint is          allowed in part         directing   the opposite\n   party no.l to refund to the complainant a sum of Rs.20,81,564/- with interest\n  @9.5% p.a. from 28.7.2009 till the date of payment. The opposite party no.1\n   is further directed to pay Rs.50,000/- towards compensation and Rs.10,000/-\n   towards legal expenses to the complainant.                The complaint against opposite\n   party no.2 is dismissed.