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K. Venkat Ratnam vs. S.V.Nageshwara Rao, dated 2012-10-04

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
 
 
REVISION PETITION NO.2041 OF 2012
(Against the order dated 25.01.2012 in First Appeal No.128 of 2010 of the State Commission, Andhra Pradesh)
 
 
1.    K. Venkat Ratnam
S/o Late Rangavadhanulu,
R/o. H. No.17, Vengalrao Nagar,
Hyderabad- 500 030
 
2.    K. Ramesh Kumar,
       S/o. late K. Narasaiah,
       R/o. H.No.1-1-750/8, Gandhi Nagar,
       Hyderabad- 500080                                                                                                                                   ……….Petitioner
 
Versus
 
S.V.Nageshwara Rao,
S/o Sheshagiri Rao,
R/o. Flat No.28,
Ashatalakshme Heavans Vasavi Colony,
R.K.Puram, Hyderabad                                                                                                                                      .........Respondent                                            
 
 
BEFORE
HON’BLE MR. JUSTICE  J. M. MALIK,
                              PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
 
 
For the Petitioner         :   Ms. Radha Rao, Advocate
 
PRONOUNCED ON: 04.10.2012.
 
 
ORDER
 
 
 
PER MR.VINAY KUMAR, MEMBER
          This revision petition has been filed by the Builders and Developers, who were opposite parties before the District Forum Rangareddy District, in CC No.158 of 2008.  The District Forum had allowed the complaint against the petitioners and ordered refund of the amount paid by the Complainant with 12% interest and Rs.40,000/- compensation.  Their appeal was partly allowed by the Andhra Pradesh State Consumer Disputes Redressal Commission, which confirmed the order of the District Forum, only disallowing the compensation of Rs.40,000/-,  which was ordered by the District Forum.
 
 
 
2.      The case of the Complainant was that he had agreed to purchase a flat in Hyderabad from the revision petitioners under an agreement of sale of 14.11.2007.  Rs.600116/- was paid by the Complainant against the total agreed consideration of Rs.3050000/-.  Allegedly, the OPs had committed serious deviations in this construction from the approved plan.  The Complainant therefore, asked them either to adhere to the agreement or to refund the money paid.  In response to this, the OPs issued a legal notice to the Complainant on 25.3.2008.  As per the joint written response of the OPs before the District Forum, construction of the flat was completed in December, 2007.  Except for flat no.203, allotted to the Complainant, all other flats were occupied by their owner purchasers.
 
 
 
3.      Per contra, the case of the OPs was that under the agreement of 14.11.2007, the Complainant was required to pay the balance of the price of Rs.30.5 lakhs within 30 days.  The Complainant paid only Rs.6 lakhs and raised issues about constructions without paying any further amounts.  The OPs even arranged a housing loan of Rs.18 lakhs from ICICI Bank in December, 2007, but the Complainant did not draw the amount.  Therefore, the legal notice of 4.3.2008 was issued by the OPs. 
 
 
 
4.      The District Forum, as already noted, ordered refund with interest and compensation.  While doing so the District Forum has observed:-
 
“From the date of execution of agreement of sale i.e. 14-11-2007 till issuance of legal notice dt. 04-03-2008 to the complainant by the opposite parties, the opposite parties kept silent for a period of four months and issued legal notice dt. 04-03-2008.  Further the opposite parties admitted in its counter that they have taken steps to regularize the construction of G+3 instead of G+2 and was paid necessary amounts to entire building to the State Government as per guidelines in this regard in the month of June, 2008 and regularization order is in the process.  The Ex.B1 proves the same.  After sanction of approval plan from GHMC for G+2 the opposite parties constructed G+3 in stead of G+2 and committed serious and glaring deviations and departures from the approval plan in constructing the allotted flat to the complainant amounts to deficiency in service on their part and the opposite parties are liable to refund Rs.6,00116/- which was advance of the said flat with interest and compensation to the complainant.”
 
 
 
5.      In the appeal filed by the OPs, the State Commission has awarded them limited relief inasmuch as direction to pay compensation of Rs.40,000/- (in addition to refund of the amount with interest) has been dropped.  However, on the merits the State Commission has made the following observations:-  
 
“We observe from the record that there is no fault on behalf of the complainant in losing confidence in venture, as admittedly there was no sanctioned plan as evidenced under Ex.A6 as on the date of agreement of sale.  It is not as if the appellants/opp. Parties adhered to all the terms and conditions and it is the complainant who has deviated from the terms of the contract and therefore we do not see any grounds for the appellants to rely on Clause 4 and refund the amount less cancellation charges.  The opposite party also has not chosen to cancel the agreement as per Clause 4 and now rely on it for deducting 5% cancellation charges.  We are of the considered view that the entire amount shall be refunded taking into consideration that the opp.parties have taken sanction plan for G+2 floors and later constructed G+3 floors committing serious deviations.”
 
 
 
6.      We have considered the records submitted before us by the revision petitioners and have also heard Mrs. Radha Rao, Advocate on their behalf.  The revision petition has been filed with a delay of 10 days, which considering the explanation offered by the petitioners, has been condoned.  During the course of arguments learned counsel emphasised that the legal notice of 4.3.2008 was issued by the revision petitioners strictly in terms of the agreement of 14.11.2007 and therefore there was no deficiency of service on the part of the petitioners. The counsel however, had nothing to contribute on the fact of deviations in constructions and subsequent steps taken for their regularization, as brought out from the evidence before the District Forum as well as the State Commission. 
 
 
 
7.      Interestingly, the revision petition itself supports the observations of the fora below on the question of deviations in the constructions.  Ground (D) in the revision petition states as follows:- 
 
“For that the petitioners have taken steps to regularize the construction ie., Individual building converted into Apartments” and necessary amount was paid to the corporation as per the guidelines in the month of June, 2008 itself.  The respondent is aware of this fact.”
 
 
 
8.      From this it is clear that action for regularization of deviations in constructions was subsequent in point of time to the signing of the agreement with the Complainant on 14.11.2007 and even to the legal notice issued to him on 4.3.2008 by the revision petitioners.  The written response of the OPs before the District Forum carries the date of 3.12.2008. Even on this date, all that the OPs could say on the issue of violation of approved construction plan was:-
 
“The further allegations that the opposite parties have constructed G+3 instead of G+2 in flagrant transgression of the approved plan is not correct.  The Opposite parties have taken steps to regularize the same and necessary amount was paid to the entire building to the State Government as per guidelines in this regard in the month of June, 2008 and regularization order is in the process.”  
 
 
 
9.      We also note that the revision petition does not point out any grounds for invoking the jurisdiction of this Commission under Section 21 (b) of the Consumer Protection Act, 1986.  In our view, the impugned order does not suffer from any jurisdictional error, illegality or material irregularity which could justify our intervention in exercise of the revisional jurisdiction.   The revision petition is therefore dismissed for want of merit and the order of the AP State Consumer Disputes Redressal Commission, in FA 128/2010 is confirmed.  No order as to costs.
 
.………………Sd/-…………
(J. M. MALIK, J.)
PRESIDING MEMBER
 
……………Sd/-…………….
(VINAY KUMAR)
                                                                                            MEMBER
S./-
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

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