Oral Order: (T. Ashok Kumar, Member)
1. This is a complaint filed by the complainant against Opposite parties 1 to 3 to direct the said Ops jointly and severally to get occupancy certificate pertaining to subject Flat from GHMC and hand over the same to the complainant or to pay Rs.37,20,000/- which is at stake and uncertain because of non-regularization of the flat/apartment under BPS, Rs.10 lakhs compensation for mental agony on account of deficiency in service rendered by the opposite parties, so also, to pay costs of the complaint or any other order which is deemed fit in the circumstances of the case.
2. The brief facts of the complaint are as under :
The first and second opposite parties are the wife and husband respectively and third opposite party is their relative and business associate in their real estate business. On seeing the classified advertisement published in daily newspaper for sale of flats in newly constructed apartment the complainant along with his father approached the opposite parties on 2nd April, 2012 at the residence of Ops 1 and 2 in the presence of Op. 3 and entered into an agreement of sale for purchase of Flat no. 101, measuring plinth area of 1380 sft including common area and parking place with all other amenities for a total agreed consideration of Rs.37 lakhs and paid Rs.3 lakhs as initial advance consideration. For the convenience and benefit of the Ops and the complainant the entire transaction of sale was divided into two parts, one is agreement of sale and another is work order. The said agreement of sale was executed by Ops 1 and 2 for Rs.21,02,000/- and the work order was executed by all the three opposite parties for the value of Rs.15,98,000/- making total agreed sale consideration of Rs.37 lakhs. Thereafter the complainant along with his mother had applied for the housing loan with LIC Housing Finance Limited and a sum of Rs.30 lakhs loan was granted on interest payable at the rate of 10.7% per annum vide loan sanction letter dt. 23.4.2012. Ops 1and 2 have executed a regular sale deed on 28.4.2012 in favour of the complainant at the sub Registrars office Kukatpally vide document No. 2783/2012 for the said flat by receiving the remaining total balance sale consideration of Rs.4 lakhs excluding some of the payments from the banker LIC HFL which were paid to the Ops at later dates through A/c Bankers cheque from the complainant in the presence of Op.3. The complainant had incurred the expenditure of more than Rs. 2 lakhs for execution of regular sale deed towards registration fee, stamp duty VAT, documentation charges, loan processing fee etc. The complainant also spent Rs.3 lakhs on wood work undertaken in the flat and thus altogether the complainant had invested Rs.42 lakhs on the said flat. Believing the oral statements of the Ops and trusted on the furnished related documents in the said agreement of sale and as well as regular sale deed Ops have clearly stated that the entire apartment building was regularized under the BPS ( Building Penalization scheme ) vide proceedings No. BPS 28778/CIR No. 14/WZ/08, dt. 31.12.2010. When the complainant had received house property tax assessment special demand notice from the office of GHMC, Kukatpally it was found that there is neither BPS regularization for the building nor the Ops have constructed the apartment as per the norms and regularization of GHMC. Immediately, the complainant applied under Right to Information Act, seeking authenticated information about the BPS status of the building from GHMC on 21.11.2012 and in response to it he received a letter Roc. No. RTI/1624/TP/457/2012, dated 07.12.2012 from the GHMC wherein it is mentioned that alleged BPS proceedings was not issued from the office. Thus, it is clear that the subject apartment was constructed unauthorizedly cheating the complainant and it amounts to unfair trade practice and deficiency in service. On account of the said deficiency in service the complainant and his family members are suffering from mental agony, because of great fear and apprehension of threat of demolition of the construction from GHMC. As for GO MS. No.901, MA dated 31.12.2007,the annexure II, table “C and D issued by the GHMC in January, 2008 , OPs might have paid a sum of Rs.1,98,720/- basic penalization charges @ Rs.90/-per sft, for 1380 sft = Rs.1,34,200/- plus 60% of basic penalization charges for land value of rs.74,520/-, other relevant fee to GHMC under the scheme for the flat of 1380 sft for regularization instead of Ops provided a fake and fabricated proceedings and subjected the complainant and his family members under false impression. On account of the said acts of the Ops, the entire funds spent on the flat by the complainant became stake as the title of the flat became defective. After issuing legal notice dt.20.12.2012 and receiving unrelated reply dt. 27.12.2012 the complainant filed the present complaint for the reliefs described supra.
3. Opposite parties 1 to 3 filed counter denying the allegations made in the complaint and disputing the claim however admitted sale agreement, work order and regular sale deed referred to in the complainant and disputed the total sale consideration. The gist of the written version is as under :-
The opposite parties never classified advertisement published in newspaper for sale of flats constructed in flat no. 4 in survey no. 129 at Nandamuri nagar, Hayathnagar, Hyderabad. The complainant along with his father who is an advocate approached the Ops to purchase the flat no. 101 and the said father of the complainant verified all the documents and satisfied himself to purchase the flat and the sale consideration is fixed at Rs.34 lakhs but not Rs.37 lakhs as alleged. The entire transaction of sale was divided into two parts one is agreement of sale and another is work order and the sale consideration along with the construction cost is fixed at Rs. 34 lakhs. The complainant had applied for housing loan with LIC Housing finance Limited and Rs.30 lakhs loan was sanctioned. The agreement of sale was executed by Ops 1 and 2 for R$s.21,02,00/- and the work order was executed for Rs.15, 98,000/-. In order to get excess loan at the request of the complainant the Ops executed agreement of sale and work order for more than the sale consideration. Ops did not receive remaining sale consideration of Rs. 4 lakhs and the complainant concocted the said story to cover the balance amount excess to; the original sale consideration of Rs. 34 lakhs. The complainant did not incur any expenditure as alleged and the Ops are in no way concerned with the documentation charges and loan processing fee and other departmental activities in the said flat. With regard to building regularization vide proceedings No. BPS/28778/CIR-14/VVZ/08 dt. 31.12.2010 the vendors of the Ops entrusted the work to get regularization of the plan from the GHMC to the mediator and father of the complainant who is an advocate thoroughly verified the said plan along with the title documents and having satisfied with the same approached the LIC Finance for sanction of housing loan. The Ops never cheated the complainant and the regularized plan was obtained by the vendors of the Ops and the same was furnished to the complainant and it was verified by the complainant and his father and satisfied with the title documents and thereafter agreed to purchase the flat. The allegation that the complainant in all incurred expenditure of Rs. 42 lakhs in purchasing the said flat and the said amount is at stake on account of non-regularization of the building is incorrect. As on the date of counter the planned cost is only Rs.30,000/- per sq. yard and the calculation given by the complainant is false. On receipt of notice dt. 20.12.2012 Ops gave suitable reply and after receipt of the reply the father of the complainant approached the Ops and asked for settlement by demanding substantial amount to stop the further litigation. The Ops purchased the property in the month of June, 2011 to develop the unfinished building as the vendors revealed and shown the sanctioned plan issued by the concerned authorities and during course of construction the prospective purchasers approached the site and after verification of the documents purchased their respective flats. There is no deficiency in service on the part of Ops as alleged and thus prayed to dismiss the complaint.
4. Both sides filed affidavit evidence reiterating their respective contentions aforesaid and Ex. A1 to A-18 were on behalf of the complainant and no documents are marked on behalf of the Ops.
5. Heard both side counsel and they also submitted written arguments.
6. Now the points for consideration are
(i) Whether the Ops rendered deficient service as alleged?
(ii) Whether the complainant is entitled for the reliefs as prayed for ?
7. Point No. 1 and 2 :
There is no dispute that the complainant entered into Ex. A-2 agreement of sale for Rs.21,02,000/- with Ops 1 and 2 on 02.04.2012 to purchase Flat no. 101 admeasuring plinth area of 1380 sft including common area and parking with all other amenities, in plot No. 4, Venkatadri Nivas, Nandamuri Nagar, Hydernagar, Hyderabad and that Ex. A-3 work order for Rs.15,98,000/- was executed by Ops 1 to 3.
8. Even though execution of the documents were admitted by the Ops they say that in order to get excess loan at the request of the complainant they executed agreement of sale and work order for more than sale consideration but the same could not be appreciated for any dependable circumstances and evidence on record as the said contention is against the contents of the said document. Thus, the case of the complainant that he paid Rs. 3 lakhs as initial advancement and Rs. 4 lakhs balance consideration apart from loan amount of Rs.30 lakhs sanctioned by LIC housing finance Limited totaling to Rs.37 lakhs is believed as true for the purpose of this case and the contention of the Ops that only they received Rs. 34 lakhs could not be appreciated. There is no dispute that after receiving sale consideration, Ops 1 and 2 have executed Ex. A-7 registered sale deed on 24.08.2012 in respect of the subject flat in favour of the complainant. The complainant also contended that he had incurred the expenditure of more than Rs. 2 lakhs for execution of regular sale deed towards registration fee stamp duty, VAT, documentation charges and loan processing fee etc. but whatever amount spent by the complainant legally for execution and registration of the sale deed can be taken into account in the said context. The complainant contended that he spent Rs. 3 lakhs for wood work done in the subject flat but there is no dependable evidence in the said context however the fact remains that he spent some amount for getting done the wood work in the subject apartment. It is recited in, , in Ex. A-2 agreement of sale so also Ex. A7 sale deed that the entire apartment building was regularized under the BPS ( Building Penalization Scheme) vide proceedings No. BPS/28778/CIR No. 14/BVZ/08 dt. 31.12.2010 ( Ex. A-1 ). It is the case of the complainant that when he had received house property tax assessment special demand notice Ex. A-9 from the office of GHMC Kukatpally it was found that there is neither BPS Regularization for the building nor the Ops have constructed the apartment as per the norms and regularization of GHMC and that penalty was imposed for it. Immediately an application under Right to information Act was filed about the status of BPS of the subject apartment and plot on 21.11.2012 vide Ex. A-10 and the GHMC issued Ex. A11 letter in Roc. No. RTI/1624/TP/457/2012, dated 07.12.2012 wherein it is stated that alleged BPS proceedings was not issued from the office and certainly in view of the said letter the contention of the complainant that no such proceedings referred to in the agreement of sale and sale deed were in fact issued from the office of GHMC is believed as true and thus the complainant was subjected to hardship and also to fear and apprehension of threat of likely facing of the demolition of the construction from GHMC officials because it is in common knowledge that such things are being happened in the limits of GHMC. PW.2 , K. Kavitha, also supported the case of the complainant about likely apprehension of demolition in addition to imposing penal charges. Merely because Ops paid Rs.1,98,720/- towards basic penalization charges in terms of G O Ms. No. 901, MA dt. 31.12.2007, the annexure II table C and D, issued by the GHMC in January, 2008. It does not mean that the BPS proceedings were issued in favour of the Ops regularizing the construction. The Ops were expected to undertake the construction in accordance with the existing rules and regulations of GHMC or otherwise to see that the unauthorized construction if any is regularized under BPS scheme before the building was sold to the complainant but it did not do so on the other hand they mentioned in the sale deed that the apartment building was regularized under the BPS as per the proceedings referred to in the agreement of sale and sale deed and certainly it amounts to unfair trade practice apart from deficient service. In such circumstances, the contention of the Ops that the father of the complainant who is an advocate thoroughly verified the plan along with title documents and having satisfied with the same it was agreed by the complainant for the purchase of the flat and that LIC Housing Finance Limited also sanctioned loan is of no use. It appears that bonafidely the complainant, his father and the LIC Housing Finance Limited trusted the Ops in the said context it is more so when daringly they mentioned about such BPS regularization in the agreement of sale and sale deed. The Ops did not place any scrap of paper on record that the building construction was regularized under Building Penalization Scheme and in the circumstances of the case, their contention that their vendors obtained regularized plan and that the work to get regularization of the plan from GHMC was entrusted to the mediator also could not be appreciated in their favour and it appears that they designed such a plea to avoid their liability. It is much more so when Ex. A17 certificate of market value and Ex. A18 copy of registered sale deed reveal that at the time of transaction the property was vacant land and there was no structure existing as on the date. After exchange of legal notices and reply alleging that the Ops did not comply with the demand of the complainant e filed the complaint. In Ex. A-14 reply notice dt. 27.12.2012 addressed to the complainants lawyer, the Ops contended that if the complainant is not satisfied with the flat they are ready to get back the same only by paying sale consideration of Rs.34 lakhs as the complainant is enjoying the said flat since one year. For the reasons described supra, it is believed that the complainant paid in all Rs.37 lakhs to the Ops towards sale consideration of the flat and When according to the complainant without following the norms such a construction was made it is not known whether GHMC regularizes the construction of the apartment in which the subject flat is located or not. Therefore, it is difficult for the Ops to get occupancy certificate from GHMC and hand over the same to the complainant. Hence, in the circumstances of the case and larger interest of justice it would be just and reasonable to direct the Ops to repay Rs.37 lakhs with a reasonable interest @ 10.70% , being charged by the LIC housing Finance Ltd from the complainant described in Ex. A4 sanction letter, from the dates of respective payments till realization together with a sum of Rs.1,50,000/- spent towards stamp duty, registration charges and other incidental charges by the complainant for registration of the sale deed and also a sum of Rs.1,50,000/- towards wood work got down by him in the subject flat and the complainant has to re-convey the title of the subject flat in favour of the Ops. As the complainant has been enjoying the subject flat till now with all amenities he is not entitled for any compensation in the said context. Thus Points 1 and 2 are answered accordingly mostly in favour of the complainant and partly in favour of the Ops.
9. In the result, the complaint is partly allowed directing the opposite parties 1 to 3 to refund an amount of Rs.37 lakhs received by them towards sale consideration of the subject flat to the complainant together with interest @ 10.70% P.A.. from the dates of respective payments till realization by the Ops together with a sum of Rs.1,50,000/- spent towards stamp duty, registration charges and other incidental charges by the complainant for registration of the sale deed and also a sum of Rs.1,50,000/- towards wood work got done by him in the subject flat and the complainant has to re-convey the title of the subject flat duly in favour of the Ops by executing necessary registered document by getting released the subject Flat from the LIC Housing Finance Limited, so also, costs of Rs.10,000/-. Ops have to deposit the amount to be paid to the complainant described supra in this Commission and on such deposit the complainant has to execute conveyance deed as ordered in favour of the Ops and then withdraw the amount so deposited. Time for compliance four weeks from the date of receipt of this order. Alternatively, it is further ordered that if complainant wants to get the said construction regularized under relevant scheme there is no need to follow the above order by both of them and the Ops have to reimburse necessary charges legally to be paid by the complainant to the concerned and cooperate him by subscribing their signatures on necessary applications etc.