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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. 17 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.8613 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.
Sunil Kumar Gautam (respondent-1) filed C.C. No. 17 of 2013 for directing the appellant and respondents-2 to 4, (the opposite parties) (i) to execute a registered sale deed of Flat No.404, Block-5, Pristine Place Apartments, situated at Survey No. 129, 176 & 177, village Gajularamaram, GHMC Quthbullapur Circle, district Ranga Reddy in favour of the complainant, (ii) to provide amenities as per the brochure and receive pending balance amount, (iii) to pay compensation of Rs.300000/-, (iv) to pay cost of Rs.25000/- or/alternatively (i) to refund Rs.2168140/- along with interest @18% per annum from 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 a 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 13.02.2009 and was allotted Flat No.404, Block-5, Pristine Place Apartments, situated at Survey No. 129, 176 & 177, village Gajularamaram, GHMC Quthbullapur Circle, district Ranga Reddy, built up area 1203 sq.ft., along with undivided share of 36.09 sq. yard land and one car parking space for total sale price of Rs.2620850/- lacs (inclusive all amenities and taxes) and the developers executed an agreement dated 13.02.2009, in favour of the complainant. In the agreement they acknowledged payment of Rs.252140/-. As per demand total Rs.2168140/- was paid till 01.5.2010. The balance amount of Rs.200000/- had to be paid at the time of sale deed. After construction, the developer gave possession of the flat No.404 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 26.06.2011 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. The developer entered into an agreement dated 13.02.2009 with the complainant and sale consideration was not paid to him. Opposite party-3 did not sign the agreement dated 13.02.2009. 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 Sunil Kumar Gautam 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 supplementary agreement dated 24.07.2008, therefore, he is stopped from raising the argument that sale consideration was paid to the developer and not to him. Allotment of flat, execution of agreement of sale dated 13.02.2009 and deposit of entire sale consideration of Rs.2168140/- 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 13.02.2009 was not signed by the appellant. Therefore, the appellant cannot be directed to execute sale deed. But the appellant has not disputed execution of 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 (the appellant and his co-sharers) and the developer entered into 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. The developer is selling the flats of its share. The developer is not disputing allotment of the flat and receiving sale consideration from the complainant. For the inter-se dispute between the owner and the developer, third party cannot be allowed to suffer. In such circumstances, the order of State Commission directing the appellant to sign the sale deed cannot be set aside.
ORDER
In view of aforesaid discussions, we do not find any merit in the appeal and the appeal is dismissed.