K. Rama Devi vs Sardar Begum

-AGGRIEVED by the order in C.D. No. 708 of 2003 on the file of District Forum-II, Hyderabad, the complainant preferred this appeal under Section 15 of the Consumer Protection Act.

THE brief facts as set out in the complaint are that the complainant paid a sum of Rs. 3,00,000 to opposite party No. 4 which was acknowledged by opposite parties 1 to 4, entered into an agreement towards semi-finished Flat No. G-1 in the ground floor with built up area of 800 s.ft. including common areas along with the undivided share of land admeasuring 20 sq. yds for a total consideration of Rs. 10,02,000. Complainant submits that balance amount of Rs. 7,02,000 must be paid at the time of registration. On 13.6.2000 work order was executed between the complainant and opposite party No . 4 who is the developer and opposite party No. 5 sanctioned a loan of Rs. 6,90,000 for purchase of said flat. Opposite party No. 5 released Rs. 5,00,000/- on 18.6.2002 and Rs. 1,90,000/- on 5.7.2002 to opposite party No. 4. THE legal advisor of opposite party No. 5 opined that opposite parties 1 to 4 have clear title over the said property. Opposite parties 1 to 4 did not complete the flat in all respects but the complainant performed Gruhapravesham on 4.7.2002 since it was an auspicious day. On 30.12.2002 the officials of opposite party No. 6 demolished the Flat No. G-1 on the ground that opposite parties 1 to 4 constructed the flat without any approval. Complainant also issued legal notice demanding the opposite parties to refund Rs. 10,40,000/- together with compensation and costs. Opposite parties 1, 2, 3, and 6 were called absent and set ex parte.

Opposite party No. 4 filed counter and evidence affidavit admitting the Agreement of Sale dated 13.6.2002 entered into by the complainant with opposite parties 1 to 3 for the semi Flat No G-1 for a sale consideration of Rs. 10.20 lakh. Opposite party No. 4 also admitted that he entered into an agreement of construction with the complainant. It is alleged by opposite party No. 4 that the complainant who has got lot of belief in Vastu Shastra got the flat constructed by deviating the approved plan for which he cannot be held liable. Opposite party No. 4 is not aware of demolition of the flat. It is prayed to dismiss the complaint with exemplary costs.

OPPOSITE party No. 5 filed counter and evidence affidavit stating that the bank advanced the housing loan after satisfying with the title to the property and nothing to do with the demolition of flat by opposite party No. 6 and prayed to dismiss the complaint with exemplary costs. Based on the evidence, i.e., Exs. A1 to A15 and Exs. B1 to B9 and the pleadings put forward the Dist. Forum dismissed the complaint.

AGGRIEVED by the said order, the complainant preferred this appeal. Learned Counsel for the appellant/complainant submitted that the opposite party No. 4 who is the builder obtained sanction from Municipal Corporation of Hyderabad (OP 6) for the construction of ''Savera Residency'' apartments and that total consideration of Rs. 10,02,000/- is inclusive of Rs. 3,51,000/- towards cost of the semi-finished flat and Rs. 6,51,000/- is towards completion of pending works. The complainant also availed housing loan of Rs. 6,90,000/- from opposite party No. 5 on 5.6.2002. Opposite parties 1 to 4 have not yet completed the flat in all respects and that on 30.12.2002 the officials of opposite party No. 6 demolished the flat No. G-1 in the ground floor on the ground that there is no proper approval for the said flat. The learned Counsel for the appellant/complainant contended that the District Forum erred in dismissing the complaint. Learned Counsel for the respondent/opposite party No. 4 submitted that the complainant was very much aware that there was no approval and even before the flat was completed the MCH razed the flat. Therefore, there is no deficiency of service on their behalf.

WE have gone through the material on record.

OPPOSITE parties 1 to 3 are the landlords, opposite party No. 4 is the builder, opposite party No. 5 is the bank who has financed the loan and opposite party No. 6 Municipal Corporation of Hyderabad who is a formal party. It is not in dispute that the complainant paid total amount of Rs.10,02,000/- towards consideration for Flat No. G-1 in the ground floor and an agreement was entered into on 13.6.2002 and another work order was executed on the same day to complete the pending works within one week. Opposite party No. 5 bank sanctioned loan of Rs. 6,90,000/- and released on 5.6.2002. The sale deed was executed on 3.7.2002. The bank released the said loan of Rs. 6,90,000/- in two instalments of Rs. 5,00,000/- and Rs. 1,90,000/- on 18.6.2002 and 5.7.2002 respectively to opposite party No. 4.

Complainant submits that even though the flat was not completed in all respects he took possession of the flat on an auspicious day. The contention of opposite party No. 4 that the complainant requested for some changes and that he supervised the construction, is unsustainable. The fact remains that the MCH authorities razed the flat because there are no proper permissions. It is pertinent to note that Agreement of Sale was executed on 13.6.2002 and the sale deed was executed on 3.7.2002. Therefore, the contention of opposite party No. 4 that the complainant was supervising the construction from time-to-time and advising the builder to proceed by deviating from the approved plan is unsustainable.

EX. A1 is the Agreement of Sale wherein it is clearly stated that : "the Vendors have entered into a Development Agreement with the Developer and the Developer applied and obtained necessary permission from the Municipal authorities for construction of residential apartments vide permit No. 160/60, file No. 268/TP5/CCP/99 dated 22.11.2000 is in the process of the residential apartments in the name and style of ''Savera Residency''. "the Vendors/Developers have offered and agreed to sell the semi finished flat No. G-1 (in Ground Floor) with built up area of 800 sq. ft. (including common area) along with undivided share of land admeasuring 20 sq. yds. (out of 339 sq. yds.) House bearing Municipal No. 8-3-167/9 of ''Savera Residency'' situated at Erragadda, Hyderabad to the vendee for a sale consideration of Rs. 10,02,000/- which inclusive of Rs. 3,51,000/- at semi finished level and Rs. 6,51,000/- towards work order. And the vendee has agreed to purchase the same."

The above terms clearly state that the sale consideration is Rs. 10,02,000/- and it is the duty of the builder to obtain all necessary permissions prior to execution of sale deed. Having accepted the sale consideration of Rs. 10,02,000/- the builder cannot now turn around and take umbrage on the ground that the complainant made deviations in the plan to suit Vasthu, therefore, the MCH authorities, i.e., opposite No. 6 demolished the flat. There is deficiency of service on behalf of opposite party No. 4, i.e., builder in executing the sale deed with the complainant without proper permissions and for having constructed the Flat No. G-1 with deviations thereby, necessitating the demolition of the said flat.

KEEPING in view these facts and circumstances of the case, we are of the considered opinion that opposite party No. 4 builder is liable to refund Rs.10,02,000/- to the complainant with interest @ 9% p.a., from the date of execution of sale deed together with costs of Rs. 3,000/-. Time for compliance six weeks. In the result appeal is allowed and the order of the District Forum is set aside directing the opposite party No. 4, i.e., the builder to pay Rs. 10,02,000/- to the complainant with interest @ 9% p.a., from the date of execution of sale deed dated 3.7.2002 till realisation together with costs of Rs. 3,000/- within a period of six weeks from the date of receipt of this order. Appeal allowed.