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Judgment
Dr. Inder Jit Singh, Presiding Member
The present First Appeal (FA) has been filed by the Appellants against Respondent(s) as detailed above, under section 19 of Consumer Protection Act 1986, against the order dated 1.7.2019 of the State Consumer Disputes Redressal Commission, Telangana, Hyderabad (hereinafter referred to as the ‘State Commission’), in Consumer Complaint (CC) No.7 of 2018 inter alia praying for setting aside the impugned order dated 01.07.2019 of the State Commission.
The Appellants were the Opposite Parties (OPs) and the Respondent was Complainant in the said CC No.7 of 2018 before the State Commission. Notice was issued to the Respondent on 20.08.2019. Appellants have filed their Written Arguments/Synopsis on 21.02.2024. On account of absence despite service, Respondent was proceeded ex-parte vide order dated 29.12.2023.
Brief facts of the case, as emerged from the FA, Order of the State Commission and other case records are that: -
i. The complainant (Respondent herein) and her husbandhad purchased small unit admeasuring 550 square ft. in the project “Lake Ridge” in survey No.174, 175 & 178 at Nizampet Village and Gram Panchayat, Qutbullapur Mandal, Ranga Reddy District for a consideration of Rs.16,85,000/- from the OPs through a sale deed dated 11.7.2015 registered as document No.7278/2015.The complainant gave the said premises on monthly rent of Rs.13,500/- which formed her only source of income for support.
ii. Some of the residents of the complex made representation dated 2.4.2017 to the HMDA authorities to remove the illegal constructions in the cellar and on their failure, they filed WP No.26254/2017 before the High Court, which was disposed of on 7.8.2017 with a direction to the HMDC to act upon the representation within three weeks by giving due notice.
iii. One Swathi, her relative had purchased three unit spaces in the same apartments had lodged a criminal complaint with police, Bachupally, dated 23.09.2017. Hence, the complainant requested the OPs to refund her amount of Rs.16,85,000/- but they failed to accede to her request.
iv. According to MoU, the appellants were to pay for total Sq.ft. 550 @2727 equal to 14,99,850/- after deduction of Rs.450/- per sq.ft. then total amount comes as Rs.9,55,300/-. The Respondent did not agree and did not sign on the MoU. Hence, the complainant filed complaint before the State Commission.
Vide Order dated 1.7.2019 the State Commission has partly allowed the compliant reads as under :-
“19) In the result, the complaint is allowed in part directing the opposite parties to refund the amount of Rs.9,90,000/- within one month from the date of this order and further to pay Rs.50,000/- as compensation and cost of Rs.5,000/-.”
Appellants have challenged the Order dated 1.7.2019 of the State Commission mainly on following grounds:
(i) The State Commission committed a manifest error in not appreciating the actual factum of these and therefore allowed the Consumer complaint in part, which is not maintainable.
(ii) The State Commission failed to appreciate the fact that the respondent entered into a Rental Agreement with M/s ‘AAHARAM’ represented by Mr. Adusumilli Sarath Chandra on 06.04.2017 for a period of five years, accordingly, the respondent let-out the property purchased by her for Rs.13,500/- p.m. to a foodcourt which has been running its hotel business.
(iii) The respondent/complainant is not a “Consumer” under the purview of Section 2 (1) (d) of the Consumer Protection Act, 1986. Also, the complaint filed by the respondent is not maintainable under Section 2 (1) (o) of the Consumer Protection Act, 1986.
(iv) The State Commission ought to have appreciated the fact that the sale deed was executed on 11.6.2015 and the possession was handed over to the respondentand the said respondent let-out the subject property and entered into a rental agreement with M/s Aaharam to run hotel for business, deficiency of service did not arise.
(v) The State Commission should have appreciated the fact that apart from Appellant nos.2 & 3, there are other partners in the Appellant no.1 Firm and therefore, the said CC is bad for non-joinder of necessity party.
Heard counsel for the Petitioners. On account of absence despite notice, respondent was proceeded ex parte. Contentions/pleas of the Appellants, on various issues raised in the FA, based on their FA, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
1 It is contended by the Appellants that they constructed a residential cum commercial complex with 13 shops in the name of “Lake Ridge Apartment” of Nizampet Village, Bachupally Mandal, Telangana.The Complainant purchased an extent of 550 sq.feet build up area (including common area) alongwith undivided share of 18 sq.yd. located in the cellar floor of the constructed complex for a total sale consideration of Rs.9,90,000/-. The appellants executed sale deed on 11.06.2015 in favour of the respondent. The respondent entered into a rental agreement with M/s Aaharam” for a period of five years gave the above said property to monthly rent of Rs.13,500/-. The Appellants made an endeavour to resolve the issue with all 13 vendees of the subject property. However, all the vendees entered into MoU with the appellants, the respondent who has malafide intention did not enter into the MoU. The Appellant No.1 is a partnership firm represented by the Appellant No.2, when the notice of the appellant no.2 was returned unserved, the question of the ex-parte of the appellant no.1 did not arise.Moreover, Appellant no.3 did not receive any notice from the State Commission and came into the conclusion that “though notice on OP-3 is served, there is no representation”, it is not maintainable.It is also contended by the Appellants that the above stated Consumer Compliant is barred by limitation as the sale deed was executed in favour of the respondent on 11.06.2015 but the consumer complaint was filed on 8.1.2018 before the State Commission.The Hon’ble Supreme Court in the case of Laxmi Engineering VS.PSG Industrial Institute reported in (1995) 3 SCC 583 wherein held in para 11 that “As against this person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a “Consumer”.In this present case, the respondent let-out the property for rent. In view of this judgment, the respondent is not a “Consumer”.
2 On the other hand complainant contended before the State Commission that complainant and her husband leading retired life having worked in private service and with their small savings, in order to generate permanent source of livelihood in old-age, had purchased small unit admeasuring 550 sq.ft. in the project of the OP situated at Nizampet village and Gram Panchayat, Qutbullapur mandal, Ranga Reddy District for a consideration of Rs.16,85,000/- from the OPs through a sale deed dated 11.07.2015 registered as document No. 7278/2015 with undivided share of 18 sq.yds. of land.It was also contended that the complainant gave the said premises on monthly rent of Rs.13,500/- which formed her only source of income for support. In September 2015, due to heavy rains, the area surrounding the Lake Ridge near to Nizampet was flooded badly and water flown into the cellar and sub-cellar of the complex and inundated small units sold by the OPs including that of the Complainant making inaccessible for the occupants to reach, as a result of which, the tenants sustained heavy loss and had evacuated the area and since then, the premises is vacant, which affected the livelihood of the complainant.It was further contended by the complainant that some residents of the complex made representation to the HMDA authorities to remove the illegal constructions in the cellar and on their failure, filed Writ Petition before the Hon’ble High Court, which was disposed of on 07.08.2017 with a direction to the HMDA to act upon the representation within three weeks by giving due notice.It was only thereafter, it revealed to the complainant that space sold to her was illegal construction and she became victim of cheating and unfair trade practice at the hands of OPs who had sold by misrepresentation and deceit.Then, the complainant filed complaint with the police vide FIR No. 1276/2017 dated 23.09.2017. The complainant requested the OPs to refund her amount of Rs.16,85,000/- but they failed to accede to her request.Complainant relied upon the decision of the Hon’ble Supreme Court in the matter of Dipak Kumar Mukherjee versus Kolkata Municipal Corporation and others, reported in (2013) 5 Supreme Court Cases 336.
We have carefully gone through the orders of the State Commission, other relevant records and contentions of the Appellants herein before this Commission and also the contentions by the Complainant before the State Commission. The State Commission after due consideration of the facts of the case and appreciation of evidence before it, has concluded that as the complainant let-out the said mulgi to ‘Aaharam’ a food court which was running its hotel business in the mulgi which was completely inundated in the rainy water. Since the property was let-out, the complainant cannot claim any interest on the amount that she has paid to the OPs towards consideration. In this regard, extract of relevant paras of the State Commission’s order is reproduced below:-
“17…………..The fact remains that the complainant has let-out the said mulgi to the “Aaharam” a food court which was running its hotel business in the mulgi which was completely inundated in the rainy water that has completely engulfed the cellar portion of the huge premises that was constructed by the OPs. Since the property was let-out,I do not feel that the Complainant can claim any interest on the amount that she has paid to the Opposite Parties towards consideration. As a matter of fact, she made profits from out of the said purchase all along till the same was inundated. Therefore, I feel that the Complainant is entitled only to the consideration that she has paid under the sale deed dated 11.6.2015 registered as document No.7278/2015. In addition to the said amount, the Complainant is also entitled to a sum of Rs.50,000/- as compensation and costs of Rs.5,000/-. Needless to say that Complainant should give an undertaking to the civic authorities that she ceases to be the owner of the property and the authorities concerned are entitled to take appropriate action and the Complainant will have no rights, objection of whatsoever nature insofar as the said property is concerned.
18) The complainant will not be entitled for any other kind of compensation from any other authorities in the event of the said property is demolished in accordance with law.
We are in agreement with the observations and findings of the State Commission and find no reason to interfere with its findings. The OPs are liable for compensating the loss that has been sustained by the complainant having purchased the mulgi in a cellar which was inundated in heavy rains which not only caused loss to is occupants but creating a serious threat to the title of the purchasers and affected complainant’s livelihood, therefore, the complainant is liable to be indemnified by the OPs as they are assured in the registered sale deed dated 11.06.2015. After considering the entirety of the facts and circumstances of the case and available evidence, we find no illegality or material irregularity in the order of the State Commission, hence, the same is upheld. Accordingly, the First Appeal 1609 of 2019 is dismissed.
The pending IAs in the case, if any, also stand disposed off.