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Judgment
Heard Mr. Suyodhan Byrapaneni, Advocate, for the appellant, and Mr. Jai Thakur, Advocate and Mr. Anant Agarwal, Advocate for respondent-1.
Aforementioned appeal has been filed from the order of State Consumer Disputes Redressal Commission Andhra Pradesh, Hyderabad, dated 16.12.2013, passed in Consumer Complaint No. 16 of 2013, allowing the complaint and directing opposite parties-1 to 4 to execute sale deed, of the flat purchased by the complainant.
The office has reported that the appeal has been filed with delay of 298 days. The appellant has filed I.A. No.8612 of 2014, an application for condonation of delay. It has been stated that after order dated 16.12.2013, the appellant filed a review application before State Commission, which was dismissed as not maintainable by order dated 10.10.2014. The appellant received certified copy of the order dated 10.10.2014, on 21.10.2014. Thereafter, he contacted his counsel, who drafted the appeal and filed on 04.12.2014. Delay has occurred due to filing of review application. Cause shown is sufficient. Delay in filing the appeal is condoned.
Shahid Jamal Ansari (respondent-1) filed C.C. No. 16 of 2013 for directing the appellant and respondents-2 to 4, (the opposite parties) (i) to execute a registered sale deed of Flat No.408, (4th floor Block No.2, Pristine Place (Apartments) in Survey No.129, 176,177 situated at Gajularamaram, village, GHMC Qutubullapur Circle, Rangareddy District in favour of the complainant, (ii) to provide amenities as per the brochure and receive the balance amount of Rs.508375/- from the complainant, (iii) to pay compensation of Rs.300000/-, (iv) to pay cost of Rs.25000/- or/alternatively (i) to refund Rs.2587875/- along with interest @18% per annum from the date of payment till its realization, (ii) to pay an additional amount of Rs.500000/- for vacating the flat and returning its possession to opposite parties (iii) to pay Rs.300000/- as compensation for mental agony and hardship (iv) to pay Rs.120000/- as the expenses for shifting from the flat, (v) to pay litigation expenses of Rs.25000/- and (vi) any other relief which is deemed fit and proper, in the circumstances of the case.
The facts, as stated in the complaint and emerged from the documents attached with it, are that M/s. SBC Infra Projects India Pvt. Ltd. (respondent-2) (hereinafter referred to as the developer) was a company, incorporated under the Companies Act, 1956 and engaged in development and construction of group housing project. N. Ajay Babu (respondent-3) was its director. T. Murali Krishna Reddy (the appellant), K.R.K. Reddy (respondent-4) and two other persons were owners of the land, Survey No. 129, 176 & 177, village Gajularamaram, circle Quthbullapur, district Ranga Reddy. The owners of the land executed a registered Development Agreement cum General Power of Attorney dated 18.07.2008 in favour of the developer and its director, for construction of residential apartment over aforesaid land. As per agreement dated 18.07.2008, share in built up area of the owners and the developer were 21% and 79% respectively. The land owners and the developer entered into an supplementary agreement dated 24.07.2008, in which, layout plan was disclosed for construction of total 290 flats, consisting of cellar + stilt+ 5 upper floor. 56 flats fell in share of the owners of the land and 204 flats fell in the share of the developer. They launched the project of total 290 flats and 120 premium villas, in the name of “Pristine Place” and gave an attractive brochure of a gated community with the ventures like club house with mini theatre, swimming pool & children’s pool, snacks bar, restaurant, library & study lounge, water softening plant & water harvesting, sewage treatment plant, steam bath, yoga & mediation hall, solar fencing, Wi Fi area, intercom, landscaping, car parking etc. The complainant, allured with colourful brochure, booked a flat on 29.08.2008 and was allotted Flat No.408, (4th floor) Block No.2, Pristine Place (Apartments) in Survey No.129, 176,177 situated at Gajularamaram, village, GHMC Qutubullapur Circle, Rangareddy District, along with undivided share of 45.75 sq. yard land and one car parking space for total sale price of Rs.3248750/- lacs (inclusive all amenities and taxes) and the developers and the owners executed an agreement dated 29.08.2008, in favour of the complainant. Entire sale consideration was payable in 4 instalments. As per demand, the complainant paid Rs.2587875/- till 13.08.2009. The balance amount of Rs.508375/- was payable at the time of registration of the sale deed. The opposite parties also realised Rs.78000/- in February, 2010 for the charges of stamp and registration of sale deed. After construction, the developer gave possession of the flat No.408 to the complainant but in spite of several requests, sale deed was not executed in his favour. The officers of Greater Hyderabad Municipal Corporation were insisting to obtain sale deed in order to assess property tax. The complainant took the loan from State Bank of India for purchasing the flat and the bank officers were also insisting to obtain sale deed. The complainant gave a notice dated 11.07.2011 to the opposite parties, for execution of registered sale deed. In spite of service of the notice, the opposite parties did not respond. Pristine Place Resident Welfare Association has also filed a complainant due to negligent attitude of the opposite parties. On these allegations, the complaint was filed.
The appellant filed his separate written reply and contested the complaint. It has been stated by the appellant that as per Development Agreement cum General Power of Attorney dated 18.07.2008, the developer failed to obtain sanctioned layout plan, then opposite party-3 obtained sanctioned layout plan, in his name, incurring huge amount. Opposite Parties-1 and 2 failed to honour the terms of Development Agreement dated 18.07.2008 and did not construct the flats, falling in the share of the owners. Opposite party-3, therefore, lodged an FIR (registered as Crime No. 587 of 2012 under Section 429, 468, 471, 506 r/w 34 IPC) against opposite parties-1 and 2. Opposite party-3 also filed Arbitration Application No. 106 of 2012, before High Court for appointment of the Arbitrator, which was pending. Although under Supplementary Agreement dated 24.07.2008, Flat No.408, Block-2, fell in the share of opposite party-3 and the complainant entered into an agreement dated 13.08.2009 with him, agreeing to pay sale consideration to opposite party-3 but the complainant did not pay any sale consideration to him. Opposite party-3 signed the agreement dated 13.08.2008 although it was very well known to the complainant that sale consideration had to be paid to him. As the complainant did not pay any sale consideration to opposite party-3, as such, the complaint was not maintainable against him. The complaint has been filed in collusion of opposite parties-1 and 2 on various false allegations and is liable to be dismissed.
Opposite parties-1 and 2 filed their written reply, in which, they did not dispute the material facts and stated that as opposite party-3 had raised the dispute and not ready to execute the sale deed in favour of the complainant, as such, the sale deed could not be executed. As per agreement, they had raised construction and handed over possession of the flat allotted to the complainant. However, various constructions as mentioned in the brochure could not be completed due to the dispute raised by opposite party-3.
Before the State Commission, the complainant filed Affidavit of Evidence of Shahid Jamal Ansari and the various documents. Opposite party-3 did not adduce any evidence. State Commission, after hearing the parties, by its judgment dated 16.12.2013, held that filing of the FIR against the developer as well as the arbitration application according to the agreement do not bar filing of the present complaint. T. Murali Krishna Reddy, opposite party-3, in his own capacity and as a power of attorney holder of other co-owners namely, K.R.K. Reddy, Guntaka Venkata Rama Reddy and Dr. Kodanda Rami Reddy Tummuru had signed the Development Agreement-cum-General Power of Attorney dated 18.07.2008 and agreement to sell dated 29.08.2008, therefore, he is stopped from raising the argument that sale consideration was paid to the developer and not to him. Although, the flat in dispute was falling in his share under supplementary agreement dated 24.07.2008, allotment of flat, execution of agreement of sale dated 29.08.2008 and deposit of entire sale consideration of Rs.2587875/- with the developer has been proved by the complainant and has not been disputed by the developer as such the complainant was entitled for relief claimed in the complaint. On these findings, the complaint was allowed with cost of Rs.5000/- and the opposite parties were directed to execute the sale deed of the flat in dispute in favour of the complainant within four weeks. Hence this appeal has been filed.
We have considered the arguments of the counsel for the parties and examined the record. Supreme Court in Avitel Post Studioz Ltd. and Ors. Vs. HSBC PI Holdings (Mauritius) Ltd., (2021) 4 SCC 713, held that civil and criminal proceedings can go on simultaneously. In EMAAR MGF LAND LTD. Vs. Aftab Singh, (2019) 12 SCC 751, held that arbitration clause contained in the agreement does not bar the jurisdiction of the consumer forum to entertain the complaint. As such preliminary objections, relating to maintainability of the complaint have no force.
The counsel for the appellant submitted that agreement for sale dated 29.08.2008 was signed by the appellant for himself and as Power of Attorney of K.R.K. Reddy, Guntaka Venkata Rama Reddy and Dr. Kodanda Rami Reddy Tummuru. In this agreement payment of Rs.324875/-has been acknowledged. This agreement contained a clause as follows:-
“whereas the vendors are authorised to construct multi-stored building after obtaining necessary approvals from the concerned authorities, to sell the flats to the prospective purchases, to receive the sale consideration, to executive the sale deeds and do all acts and things as may be incidental or necessary for transfer of this property in favour of the prospective purchases.”
The complainant has filed copy of tripartite agreement dated 17.05.2009 which was signed by the appellant, the builder and the complainant for obtaining the loan from State Bank of India. Under this agreement also the bank was authorised to pay the amount to the developer and which has been paid by the bank to developer. Therefore, only on the ground that the appellant had not received the amount, he cannot deny to execute the sale deed in favour of the complainant inasmuch as he himself authorised to the developer to receive the sale consideration on his behalf.
ORDER
In view of aforesaid discussions, we do not find any merit in the appeal and the appeal is dismissed.