Oral Order: (T. Ashok Kumar, Member)
1. This is a complaint filed by the complainant praying to direct the opposite party No. 1 to refund margin money of Rs.15,06,075/- along with interest at the rate of 9% P.A. from the respective dates of payments, to refund Home loan amount of Rs.57,36,358/- along with interest @ 11% p.a. from respective dates of payments, together with penal interest if any and also topay compensation of Rs.One lakh for causing hardship etc and Rs.25,000/- towards costs.
2. The brief facts of the complaint are that on 20.11.2007 the complainant intended to purchase an Flat bearing No. 1802 in 18th floor in Tower no. 14 LH admeasuring 1900 sft along with two car parking slots and undivided share of land, 266.51 sft for a total sale consideration of Rs.1,00,40,000/- inclusive of water, generator, electricity, piped gas, club house membership etc. from the Op.1 œLanco Hills Technology Park Private Limited and an agreement of sale dated 20.11.2007 was executed in favour of the complainant by OP.1. On 14.06.2008 itself OP 1 executed another agreement of sale -1 land in favour of the complainant for the sale of undivided share of land of 266.51 sft for consideration of Rs. 1,32,550/- which was paid by the complainant and the same was acknowledged and recited in the agreement. OP.1 also executed another agreement of sale II (built up area) in favour of the complainant for sale of the said flat 802 and acknowledged payment receipt of Rs.1,73,525/- in the said agreement out of total consideration of Rs.87,07,850/-. On 12.5.2008, OP. 1 requested the complainant to opt for an alternative flat and accordingly the complainant submitted a representation dt. 12.5.2008 to the first opposite party requesting for the allotment of another apartment number 1703 in Tower No.LH instead of the original apartment aforesaid. Then OP 1 accepted for allotting such an alternative flat and confirmed that it received Rs.15,06,075/ being 15% of the total cost. On 24.7.2008, OP. 1 executed new agreement of sale in respect of flat no. 1703 , 17th floor in Tower No. LH admeasuring 1904 sft along with undivided share of land of 267.04 sft for total sale consideration of Rs.1,00,03,360/- inclusive of amenities such as water electricity, generator , gas pipe line, parking slots, club membership etc. the complainant paid Rs.15,06,075/- which was acknowledged by OP. 1 and mentioned in the agreement of sale. First OP executed agreement of sale I land on the same day ie 24.7.2008 for sale of the said undivided share of land of 267.04 sft for Rs.13,32,500/- which was paid by the complainant and acknowledged and recited in the agreement. Another agreement of sale “ II built up area was also executed by OP. 1 acknowledging receipt of net consideration of Rs.86,68,160/- after deducting Rs.13,35,200/- towards the consideration of agreement of sale I out of the total consideration of Rs.1,00,03,360/- and OP. 1 acknowledged receipt of Rs.1,70,875/- already paid by the complainant. as per clause 5 (1) (III) of the agreement of sale dt. 24.7.2008 OP. 1 has to complete the construction and hand over possession of the flat by 31.10.2009 with a grace period of three months which comes to 31.10.2010. The complainant approached OP. 2 Indian bank, Kukatpally branch for availing home loan for the purpose of purchasing the said flat and on 16.2.2008 the said loan of Rs.86,60,000/- was sanctioned to the complainant. It was repayable in 156 EMIs of Rs.96,735/- each after a holiday period of 24 months. A tripartite agreement dt. 24.7.2008 was executed between the complainant and OP. 2 bank with OP. 1 builder. On different dates the complainant paid Rs.15,06,075/- to OP. 1 and OP. 2, in total, released Rs.57,36,360/- to OP.1 on different dates on behalf of the complainant. Thus altogether OP.1 released Rs.72,42,432/- towards sale consideration by 25.2.2009 and towards repayment of the home loan by 27.6.2012 the complainant paid Rs.14,82,567/- to the second opp. Party bank. Even though OP 1 must complete the construction and hand over possession of the land by 31.1.2010 it was not so done and the construction of the flat was stopped for the last two years and it is not fit for human inhabitation. Most of the common amenities are pending despite many requests and correspondence by father cum GPA of the complainant to refund the margin money paid by the complainant and also the loan amount released OP bank along with interest there was no response. The said acts of OP amounts to deficiency in service and hence the complaint for the above reliefs.
3. OPs filed their written version opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts are as under :
It is stated that the complainant is not a consumer . They have admitted the purchase of the Flat bearing No. 1802 in 18th floor in Tower no. 14 LH admeasuring 1900 sft along with two car parking slots and undivided share of land, 266.51 sft for a total sale consideration of Rs.1,00,40,000/- inclusive of water, generator, electricity, piped gas, club house membership etc. from the Op.1 œLanco Hills Technology Park Private Limited and an agreement of sale dated 20.11.2007 was executed in favour of the complainant by OP.1. so also payment of Rs.15,06,075/- acknowledged in the agreement of sale dt. 14.6.2007 so also agreement of sale regarding undivided share of land admeasuring 266.61 sft for a consideration of Rs.13,32,550/- but OP did not receive the said amount. OP. 1 received in total a sum of Rs.72,42,433/- which includes a sum of Rs.57,36,350/- from the second opposite party. Since the complainant approached OP. 1 on 12.5.2008 and submitted a representation Op.1 allotted flat 1703 in Tower No. 10 LH in place of original flat no. 1802 in Tower No. 14 LH and received a sum of Rs.15,06,075/- agreement of sale in respect of flat 1703 dated 24.7.2008 in 17th floor in Tower 10 LH admeasuring plinth area of 1904 sft admeasuring 267.04 sft of undivided share of land for a total consideration of Rs.1,00,04,360/- and the said amount of Rs.15,06,075/- was paid by the complainant at the time of entering into first agreement referred to above and the complainant also entered into another agreement of sale I in respect of the land on the same dated on 24.7.2008 in respect of undivided share of land admeasuring 266.04 sft for Rs.13,35,200/- but the said consideration amount was not paid by the complainant. the complainant also entered into another agreement of sale II for built up area but other allegations are incorrect. As per clause 1 ( III) of agreement of sale dt. 24.7.2008 OP 1 has to complete the construction and hand over the possession of flat by 31.10.2010 with a grace period of three months but on account of unforeseen litigation amount to force majeure OP.1 could not complete construction within time and it is known to all the general public through press all the time so also to the complainant. The agreements executed between the parties envisaged extension of time in the event of force majeure and therefore complaint cannot make OP. 1 liable for the delay. It is true that complainant approached OP. 2 bank for housing loan and Rs.86,60,000/- was granted to him payable in 156 EMIs and a tripartite agreement was also executed between the complainants and Ops 1 and 2. The complainant paid Rs. 2,50,000/- vide receipt dt. 13.7.2007 towards booking amount and other amounts specified in the complaint. GPA holder/father of the complainant did not approach OP. 1 and ask for refund of the amount. They are all created. This commission has no jurisdiction to entertain the complaint as the claim is Rs.1,05,24,049/- and the complainant cannot restrict his claim at Rs.99 lakhs according to the whims and fancies and on the said ground the complaint is liable to be dismissed at the exemplary costs. OP 1 spent considerable amount defending the litigation initiated against it with view to make the project viable but for the reasons beyond the control the work could not be completed in time. The OP. 1 did not render any deficient service and thus prayed to dismiss the complaint and refund would arise only after sale of the said flat to a third party but not out of the project fund.
4. OP. 2 did not file any written version despite communication of notice by postal department.
5. Complainant and OP.1 filed evidence affidavit reiterating their respective pleadings and Ex. A-1 to A-18 were marked on behalf of the complainant and no documents were marked for the OP.1. since OP. 2 did not choose to contest the matter, no such affidavits and documents were filed on its behalf.
6. Heard both side counsel with reference to their respective contentions in detail and counsel for the complainant submitted written arguments.
7. Now the point for consideration are
(i) whether the consumer complaint is maintainable ?
(ii) whether the complainant can restrict the claim at Rs.99 lakhs.
(ii) whether the opposite party No. 1 rendered deficient service and if so the complainant is entitled for the reliefs as prayed for ?
8. Point No. (i) :.As per the decision of the Honble Supreme Court in Fakir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. reported in 2008 (4) CPR 449 (SC) and the decision reported in C.D.J 2012 S.C 370 between M/S Narne Construction (P) Ltd., Vs Union of India and others and so also, the decision between Lucknow Development Authority Vs M. K. Guptha reported in (1994) I SCC 243 the housing activity comes under the definition œservice? and Consumer Fora can entertain the complaint and thus Jurisdiction point agitated by the opposite party is not helpful to him. , In several decisions of Honble Supreme Court of India and National Commission it was held that the development of the flat for the purpose of selling it as flats and house sites and to construct the residential flats after duly adding the value by way of providing infrastructure obtaining lay outs and other permission from the local Government etc constitute by itself a kind of service and that in view of the matter, when the person purchases the plots or flats from the developer , he/she as the case may be is not only purchases the same, but also the services associated with it. In view of the said definition, the complainant undoubtedly is entitled to file the instant consumer complaint and therefore the Consumer Commission has jurisdiction to entertain the complaint.
9. In similar matters filed against OPs before this Commission a plea was taken that in view of arbitration clause in the agreement of sale, the Consumer complaint is not maintainable. Of course, in this case, it was not so taken specifically but still in a decision between National Seeds Corporation Limited Vs. M. Madhusudhan Reddy reported (2012) 2 SCC 506, the Honble Supreme Court of India held :
œ The remedy of arbitration is not only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in th first instance before he competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force œ
In view of the said decision, once the party opts for remedy of arbitration it may be possible to say that subsequently Consumer Complaint is not maintainable but in this case none of the parties opted for remedy of arbitration so as to say that subsequently this complaint under C. P. Act cannot be filed and thus by virtue of Section 3 of C P Act being additional remedy provided to the complainant she can file the consumer complaint before this Commission and thus the said objection of the opposite party no. 1 does not hold any water.
10. POINT NO. (II) : As seen from the contents of the complaint, in para 15 the break up figures of the claim are mentioned as under
| (a) | refund of margin money | Rs.15,06,075/- |
| (b) | Interest at 9% on the said Rs.15,06,975/- | Rs.06,90,591.00 |
| (c) | Refund of bank loan | Rs.57,36,350.00 |
| (d) | interest at 11% on Rs.57,36,350/- Aforesaid | Rs.24,66,025.00 |
| (e) | compensation for hardships | Rs. 1,00,000.00 |
| (f) | costs | Rs.25,000.00 |
| Totaling to | Rs.1,05,24,049.00 |
11. POINT NO.3 :
There is no dispute that OP. 1 floated a venture in the name and style of Lanco Hills and that having attracted with brochure, amenities offered and other publicity made by OP.1. Initially the complainant negotiated for purchasing flat bearing No. 1802 in 18th floor in Tower NO. 14 LH admeasuring 1900 sft along with two car parking slots, ;undivided share of land 266.51 sft for a total sale consideration of Rs.1,40,500/- inclusive of water, electricity, generator, piped gas club house membership etc. according to the complainant, he paid Rs.15,06,075.00 to the OP.1 and it was acknowledged vide Ex. ¦ agreement of sale itself. The OP admits execution of agreement of sale referred to in the complaint and another agreement of sale I land in favour of the complainant in respect of the said flat and undivided share of land for a consideration of Rs.13,32,550/- and Rs.1,73,525/- out of total sale consideration of Rs.87,07,850/- but contends that in total he received only Rs.72,42,433/- which includes a sum of Rs.57,36,350/- from the second opposite party bank. His plea against the contents of the documents could not be appreciated. The complainant contend basing on the documents marked by him in Ex. A series that he paid Rs.2,60,000/- vide receipt No. LHPT/1243 dt. 13.7.2007 towards booking amount, Rs.12,34,059/- vide receipt dt. 27.09.2007, Rs.22,016/- on 11.06.2007, and thus in all he paid Rs.15,06,075/- to the first opposite party directly and that on 28.11.2008 OP. 2 paid Rs.19,95,101/-, Rs.10,00,336/- on 5.10.2008, Rs.10,00336/- on 31.12.2008, Rs.10,00,336/-on 20.01.2009, Rs.7,40,249/- on 22.5.2009 by OP.2 bank to Op.1 on behalf of the complainant, home loan sanctioned to the complainant by Op. 2 and thus in all OP. 1 builder received Rs.72,42,432/- towards sale consideration from the complainant by 25.02.2009. The complainant also paid Rs.14,82,567/- to the OP 2 bank towards repayment of home loan in respect of subject flat and the said payments are borne by record submitted by the complainant. OP. 1 did not impeach credit of the said evidence of the complainant by any convincing means to say that he received less amounts than those referred to above.
12. There is no dispute from the side of OP.1 also that since the Op.1 did not complete the construction of the flat and hand over the same to the complainant within the stipulated time. An arrangement was arrived at by complainant and OP.1 for giving an alternative flat and in such circumstances on the representation of the complainant , OP.1 allotted another apartment No. 1703 in Tower No. 10 LH instead of original apartment No. 1802 of Tower No. 14 LH and accordingly on 17.01.2008 OP. 1 allotted the alternative flat aforesaid and necessary documents such as agreement of sale I and II for the said alternative flat and undivided share of land, measuring 267.04 was duly entered into between the complainant and OP. 1 which are also marked in this case. Similarly there is no dispute that the complainant approached OP 2 bank for availing Home loan and that on 16.2.2008, a loan facility of Rs.86,60,000/- was sanctioned in favour of the complainant by Op.2 repayable in 156 EMIs at the rate of Rs.96,735/- per month after holiday period of 24 months and on 24.7.2008 a tripartite agreement was executed between the complainant, second op Bank with Op 1 builder . As per agreement of sale dt. 17.5.2008, OP must complete and hand over possession of the flat by 31.10.2010 but did not so complete and hand over. Several amenities were pending in the venture. The complainants contends that in first week June, 2011 Mr. Bimnal K payyan issued sms to him to come over to them for refund of amount due to non-completion and handing over possession of the flat as per the time schedule and that accordingly the complainant along with bank authorities went to OP.1 and claimed refund of the amount but more time was sought and therefore on 13.6.2011 the complainant sent a letter demanding Op. 1 to refund the margined money paid by him so also loan amount released by OP.2 along with interest at the rate of 18% pa. But there was no response and that Op.1 did not pay the amount. He also contended that In the similar manner on 20.11.2007 himself and branch manager of second opposite party approached the Senior General Manager, Sales and marketing of OP1 and complained regarding non completion of flat, registration of the same and handing over of possession of the same, but there was no response but ultimately after exchange of legal notices he filed the complaint for refund of the money with interest. Op.1 contended that on account of unforeseen litigation, which amounts to force majeure it could not complete the construction in time and the same was notified through press from time to time and it is known to one and all including the complainant and therefore in such circumstances the complainant cannot make OP 1 liable for the delay and that having invested in to amount in project by OP 1 it is beyond its capacity to refund the amount but the said aspect could not be appreciated in favor of OP.1 . Before floating the venture, it was the duty of O.1 to obtain all necessary permissions and see that it is free of litigation and then only float the venture but it did not do so and certainly the lapses ;on the part of Op 1 amount to deficiency in service and unfair trade practice. Even though OP 1 specifically pleaded that the reasons for not completing the work were notified through press but it did not mark any documents on its behalf in the said context. OP. 1 did not place any documents on record showing the nature of the alleged legal complications said to have been initiated by the Ops and that it spent considerable amount in defending the litigation with a view to make the project liable and sincerely proceeding with the balance work and as such the contention of OP 1 in the said context also could not be appreciated in its favour so also the plea of force majeure. When OP 1 did not keep up its promise in completing the construction and handing over the flat in time certainly the complainant is entitled to terminate the agreement for such a breach and therefore if there are any terms in favour of the Op.1 to the effect that the complainant has no right to cancel or terminate the agreement are not at all helpful for it. So also, any clause for forfeiture of certain amount. When Op. 1 sent sms to the complaint to come for take refund of money it has to be inferred that OP.1 also agreed for termination of the contract and since the Op 1 did not complete the construction as already described supra certainly the complainant has right to put an end to the contract. In such circumstances, we are satisfied to hold that complainant is entitled for refund of money so paid by him to Op.1, ie, Rs.15,06,075 with interest @ 9% pa which is reasonable from the dates of respective payments till realization and also OP. 1 has to repay Home loan amount of Rs.57,36,358/- along with interest @ 11% pa from the respective dates of payment along with penal interest if any to the second OP bank. There is no evidence on record to say that Op.1 got profits from the venture and when the amount is ordered to be refunded with interest we see no reason to award any compensation to the complainant. Since the complainant restricted his claim to Rs.99,99, 000/- out of Rs.1,05,24,049/- the difference amount has to be deducted from the amount to be paid to the complainant by OP.1. thus point No. 3 is answered accordingly in favour of the complainant.
13. In the result, the complaint is partly allowed directing the first opposite party to pay an amount of Rs. Rs.15,06,075/- with interest @ 9% pa from the dates of respective payments till date of realization and also to repay Home loan amount of Rs.57,36,358/- received by it from OP. 2 bank on behalf of the complainant along with interest @ 11% pa from the respective dates of payment and penal interest if any to the second OP bank till date of payment. However, since the complainant restricted his claim to Rs.99,99,000/- out of Rs.1,05,24,049/- calculated in the complaint which includes cost of the complaint, and the interests aforesaid till the date of complaint, the difference amount which comes to Rs.5,25,049/- has to be deducted from the amount to be paid to the complainant by OP.1. Time for compliance four weeks from the date of receipt of the order.