Aliens Developers (P) Ltd. And Ors. vs Prasanth Kumar Varanasi And Ors.

THIS appeal has been filed by the appellant against order dated 27 -06 -2014 passed by the learned State Commission in Complaint No. 202 of 2013 - Prasanth Kumar Varanasi & Anr. v. M/s. Aliens Developers (P) Ltd. & Ors., by which complaint was allowed.

BRIEF facts of the case are that the complainants/respondents entered into an agreement on 12.03.2010 with O.P. - Appellant for purchase of a flat No. 482, Station -13th on 4th floor of the complex Space Station - 1 in the super built up area of 1402 sq. feet with one covered car parking space besides undivided share of land of 30.14 sq. yards out of total land of 82976.89 sq. yards in survey Nos. 384, 385 and 426/A, situated at Tellapur Village, Ramachandrapuram Mandal, Medak district for a sale consideration of Rs. 36,96,958/ - and paid a sum of Rs. 32,82,792/ -. The opposite parties executed sale deed bearing No. 11309 of 2012 dated 3.8.2012 and construction agreement bearing No. 11309 of 2012 dated 3.8.2012 and the complainants had to pay balance sale consideration of Rs. 4,16,166/ - at the time of handing over possession of the same after completion of construction in all respects on or before 31.05.2012 including the grace period of six months, in default, the opposite parties have to pay Rs. 3/ - per sq. feet of built up area. The opposite parties without delivering possession of the flat to the complainants, have utilized it for their administrative purposes. Hence the complainant got issued notice to the opposite parties on 19.08.2013 and there was no response from them. Complainants have been paying rent @ Rs. 13,000/ - per month besides paying monthly home loan installments. Since the opposite parties are using the flat allotted to them for their administrative purposes, they are liable to pay rent @ Rs. 22,000/ - per month from 1.6.2012 till handing over possession. Alleging deficiency on the part of opposite parties, complainants filed complaint before State Commission. Opposite parties resisted complaint and submitted that as per Arbitration Clause complaint was not maintainable. It was further submitted that on account of Telangana agitation the real estate business faced lot of problems and due to delay in getting clearance from statutory bodies, project could not be completed within stipulated time and as per ''force majeure'' clause opposite parties are not liable. It was further submitted that as per default clause in the agreement opposite parties are liable to pay compensation. It was further submitted that Rs. 4,16,166/ - is still due from the complainants. Opposite parties denied that they are using flat for their administrative purpose and prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint and directed opposite parties to complete construction of flat and deliver its possession along with occupancy certificate to the complainant and further directed to pay Rs. 10,000/ - towards rent from 01 -12 -2012 till delivery of possession and further directed to pay Rs. 50,000/ - as compensation and Rs. 5,000/ - as cost. Complainants were directed to pay balance sale consideration of Rs. 4,16,166/ -, against which this appeal has been filed. Heard learned counsel for the parties finally at admission stage and perused the record.

LEARNED counsel for the appellant submitted that learned State Commission has committed error in granting rent @ Rs. 10,000/ - per month and compensation, hence appeal be allowed and impugned order be modified. On the other hand, learned counsel for the respondent submitted that order passed by learned State Commission is in accordance with the law, hence appeal be dismissed.

PERUSAL of record reveals that agreement of sale was executed between the parties on 12 -03 -2010 and as per clause VIII (a) possession of flat was to be given on or before December, 2011 with a grace period of six months otherwise compensation @ Rs. 3/ - per sq. ft. was payable by opposite party for delayed period of possession. From record it appears that sale deed was executed between the parties on 03 -08 -2012 and as per Clause II of the Sale Deed vacant possession of flat was handed over by opposite party to complainant meaning thereby there was delay of only one month in handing over possession of flat to the complainants. Schedule -B annexed with the Sale Deed reveals that semi -finished flat No. 482 was given by opposite party to the complainant. Perusal of record further reveals that by another construction agreement dated 03 -08 -2012 executed between the parties, opposite party undertook to do construction work in the flat for a consideration of Rs. 19,72,100/ -. It appears that opposite party has neither completed construction work nor handed over possession of flat to the complainant but this construction agreement does not contain any clause providing period for completing construction work and for payment of charges for any delay in handing over possession. In the absence of any condition for handing over possession of flat in specified time and in the absence of any clause imposing penalty for delay in delivery of possession as was so in Agreement of Sale dated 12 -03 -2010, complainants were not entitled to any amount as rent and learned State Commission has committed error in awarding Rs. 10,000/ - per month towards rent from 01 -12 -2012 till delivery of possession. Learned counsel for the respondent could not show any clause under which he was claiming rent from 01 -12 -2012 till delivery of possession and in such circumstances; complainants are not entitled to any rent.

MORE than three years have elapsed from the date of execution of construction agreement and still possession of duly completed flat has not been handed over by opposite party to the complainant. In such circumstances, order awarding compensation of Rs. 50,000/ - by State Commission cannot be interfered. Opposite party is to be directed to hand over possession of flat within a period of one month as more than three years have already elapsed.

CONSEQUENTLY , appeal filed by the appellants is partly allowed and order dated 27 -06 -2014 passed by the learned State Commission in Complaint No. 202/2013 - Prasanth Kumar Varanasi & Anr. v. M/s. Aliens Developers (P) Ltd. & Ors. is modified and opposite party is directed to hand over possession of Flat No. 482, completed in all respects along with occupancy certificate, within a period of one month from today and complainants are directed to pay balance amount of Rs. 4,16,166/ - to the opposite party within a period of one month and order directing to pay Rs. 10,000/ - towards rent is set aside and order allowing compensation of Rs. 50,000/ - and Rs. 5,000/ - as cost is affirmed. In case possession is not handed over within a period one month, opposite party will be liable to pay Rs. 20,000/ - per month as additional compensation to the complainant till delivery of possession. Parties to bear their costs.