M/S. V.C.R. CONSTRUCTIONS PVT. LTD. REP. BY ITS MANAGING DIRECTOR, SRI. G. VENKATESHWAR RAO vs R. VIJAY KUMAR S/O. R. DILIP KUMAR

The complainant / respondent entered into an agreement dated 02.4.2012 with the appellant company for purchase of a flat admeasuring 1072 sq. ft. in a building bearing No.17-1-391/42, known as Snigdha Nivas at Saidabad, Hyderabad. The sale consideration as per the said agreement was agreed at Rs.16.00 lacs , out of which Rs.5,000/- was paid as advance and the balance amount was payable on or before 15.2.2012 or before registration of the sale deed. On the same day, the parties entered into another agreement whereby the appellant was to carry out the finishing work in the flat for consideration of Rs.7.00 lacs. The sale deed of the aforesaid flat was executed in favour of the complainant on 16.5.2012. The case of the complainant is that in fact, the agreement between the parties was entered into on 05.11.2011, though the formal agreement for sale came to be executed a little later, he had paid a sum of Rs.9.00 lacs to the appellant on 14.11.2011, followed by payment of Rs.95,000/- on 29.2.2012, and the total consideration agreed between the parties was Rs.28,18,000/-. This is also the case of the complainant / respondent that he had already paid a sum of Rs.30,05,000/- to the appellant towards the cost of the flat and registration charges, including a sum of Rs.14,04,000/- paid by his financer State Bank of Hyderabad directly to the appellant.

The case of the complainant / respondent is that the possession of the flat after completing all the works was required to be delivered to him on or before 15.5.2012 but, the appellant did not complete the work in all respects, besides executing defective work. The complainant / respondent therefore, approached the concerned State Commission by way of a consumer complaint, seeking possession of the aforesaid flat along with compensation etc.

The complaint was resisted by the appellant who alleged that the complainant had arranged the balance payment only on 16.5.2012 when the sale deed was registered in his favour. It was alleged in the reply that the agreed consideration for the flat was only Rs.16.00 lacs out of which Rs.5,000/- was paid on 01.4.2012, Rs.1.00 lacs on 02.4.2012, Rs. 91,000/- on 8.5.2012 and Rs, 14,04,000/- vide cheque dated 07.5.2012 , got encashed on 21.5.2012. It was also stated in the written version filed by the opposite party that the possession of the flat was delivered to the complainant on 21.5.2012, after encashment of the cheque of Rs.14,04,000/-.

The State Commission vide its order dated 25.10.2016, directed the appellant to pay a sum of Rs.27,500/- to the complainant towards rental value of the flat in question. The appellant was also directed to refund Rs.7.00 lacs towards value of the unfinished work, covered by the Agreement Exhibit A-2, compensation quantified at Rs.1.00 lacs and the cost of litigation quantified at Rs.10,000/- was also awarded to the complainant. The appellant was also directed to complete the unfinished work in terms of the Agreement Exhibit A-1 to the satisfaction of the complainant to the reasonable extent.

Admittedly, two agreements were executed between the parties on the same date, first being agreement Exhibit A-1 and the second being Agreement Exhibit A-2. As per Clause 7 of the agreement, Exhibit A-1, the appellant was required to pay an amount of Rs.2500/- per month to the complainant from 16.5.2012 in case he failed to deliver vacant possession of the flat on or before 15.5.2012. There is no documentary evidence of the possession of the flat having been delivered to the complainant on 21.5.2012 as is alleged in the written version filed by the appellant. Had the possession been given to the complainant on that date, the appellant, in the normal course of business, would have got the possession letter duly signed from him. The State Commission noted in this regard that as per the original Minutes of the Resolution dated 11.4.2013, passed by Snigdha Nivas Flat Owners Association (Exhibit A-12), the complainant had taken possession on 11.4.2013. Moreover, the complainant had earlier sent two legal notices one dated 06.2.2013 and the other dated 08.4.2013 to the appellant, seeking possession of the flat agreed to be sold to him. The appellant admittedly, did not respond to the said legal notices. Had it actually delivered possession to the complainant on 21.5.2012, as was claimed in the written version filed by it, the appellant on receipt of the said notices, would have controverted the same and would have claimed that the possession had already been delivered to the complainant on 21.5.2012. The failure of the appellant to controvert the aforesaid legal notices coupled with the Resolution dated 11.4.2013 (Exhibit A-12) and absence of any documentary proof of the possession having been delivered to the complainant on 21.5.2012, leaves no reasonable doubt that the complainant got possession of the flat only on 11.4.2013. Therefore, the direction for payment of Rs.27,500/- in terms of Clause-7 of the Agreement Exhibit A-1 was fully justified.

The appellant does not dispute the execution of the second agreement dated 02.4.2012 (exhibit A-12). As per the second agreement, the appellant was to provide marble flooring at the cost of Rs.3,50,000/-, black granite marble flooring at the cost of Rs.35,000/-, plastic emulsion on the internal walls at the cost of Rs.2,52,000/- and cupboard shelves at the cost of Rs.63,000/-. There is no evidence of the appellant having executed the aforesaid work in the flat agreed to be sold to the complainant. This is also not the case of the appellant that the amount of Rs.7.00 lacs was not paid to it. Therefore, the appellant M/s. V.C.R. Constructions Pvt. Ltd. is required to refund the amount of Rs.7.00 lacs which it has received from the complainant for executing the aforesaid work. The direction for refund of Rs.7.00 lacs by the same company to the complainant therefore, cannot be faulted with.

For the reasons stated hereinabove, I find no merit in the appeal and the same is dismissed with no order as to costs.