BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, INA AT NEW DELHI

FIRST APPEAL NO.______ OF 2023.

(Against the Order passed by the Hon’ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. xxx/2020)

IN THE MATTER OF:-

XXXXXXX.                                                         : APPELLANTS

VERSUS

XXXXXX                                                            : RESPONDENT

I N D E X

DELHI                                                                APPELLANTS

THROUGH

DATED

ADYANT LEGAL

(Law Firm)

ADVOCATES

Office address

Mob: xxxxxxxxx

BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, INA AT NEW DELHI

FIRST APPEAL NO.______ OF 2023.

(Against the Order passed by the Hon’ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. xx/2020)

INTHEMATTEROF:-

XXXXX                                                               : APPELLANTS

VERSUS

XXXXX                                                              : RESPONDENT

MEMO OF PARTIES

1. M/S. XXXXX

Through AR Mr. xxxxx

Address.

2. M/S. XXXXX

Address.                                                               : APPELLANTS

VERSUS

MS. XXXXX

D/o xxxx

R/o xxxxxx.                                                            : RESPONDENT

-------------------------------------------------------------------------------------

DELHI                                                                 APPELLANTS

THROUGH

DATED

ADYANT LEGAL (Law Firm)

ADVOCATES

Address

Mob: xxxxxxxxx

BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, INA AT NEW DELHI

FIRST APPEAL NO.______ OF 2023.

(Against the Order passed by the Hon’ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. xx/2020)

IN THE MATTER OF:-

XXXXXXX.                                                         : APPELLANTS

VERSUS

XXXXXX                                                            : RESPONDENT

APPLICATION BY AND ON BEHALF OF THE APPLICANT / APPELLANTS SEEKING FOR EXEMPTION FROM FILING THE CERTIFIED COPIES, FAIR AND TYPED COPIES OF DOCUMENTS WITH PRESCRIBED MARGIN OF THE ANNEXURES.

MOST RESPECTFULLY SHOWETH:-

1.                 That the Applicants/Appellants, above named has filed the Present First Appeal under the above case title, the contents of which are not being repeated herewith for the sake of brevity and which may be treated as an integral part of this application also.

2.                 That the Appellants have not been able to file the certified/original copies of the documents at this stage and is only filing true copies of the same. The appellants pray for being exempted from filing the above and undertakes to file the same within the time allowed by this Hon’ble Commission.

3.                 The appellants have also filed certain documents along with the present appeal that are not very clear and beg for liberty of this Hon’ble commission to file the better typed copies thereof at a later stage.

4.                 The appellants have also filed certain documents along with the appeal which do not have the required left margin as per guidelines of this Hon’ble Commission. Since due to paucity of time the appellant does not have any other option but to file the same as they are and by way of present application the appellants prays for exemption for filing the said documents at this stage.

5.                 The Applicants by way of present application prays that he may be exempted from filing the above and undertakes to file the same as and when directed by this Hon’ble Commission.

P R A Y E R:-

It is, therefore, humbly prayed that this Hon’ble Commission may kindly be pleased to exempt the applicants from filing the certified copies, fair & typed copes of the documents, and the true copies filed herewith may kindly be considered for the disposal of the appeal, in the interest of justice.

Pass such other order or orders as may be deemed fit in the circumstances may also be passed

It is prayed accordingly.

DELHI                                                                APPELLANTS

DATED                         THROUGH

 (Law Firm)

ADVOCATES

Office address

Mob: xxxxxxxxxx

BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, INA AT NEW DELHI

FIRST APPEAL NO.______ OF 2023.

(Against the Order passed by the Hon’ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. xx/2020)

IN THE MATTER OF:-

XXXXX                                                               : APPELLANTS

VERSUS

XXXXX                                                              : RESPONDENT

APPLICATION BY AND ON BEHALF OF THE APPLICANTS / APPELLANTS FOR STAY OF THE OPERATION OF IMPUGNED ORDER AND JUDGMENT DATED xx.xx.xxxx PASSED BY THE LD. TELANGANA STATE COMMISSION, HYDERABAD IN CONSUMER COMPLAINT NO. xx/2020 FILED BY THE RESPONDENT.

MOST RESPECTFULLY SHOWETH:-

1.                 That the Applicants/Appellants, above named has filed the Present First Appeal under the above case title, the contents of which are not being repeated herein for the sake of brevity and which may be treated as an integral part of this application also.

2.                 That the present Appeal as filed by the appellant before this Hon’ble Commission against the impugned order dated 11.09.2023 passed by Hon’ble Telangana State Consumer Disputes Redressal Commission, Hyderabad, in Consumer Case No. xx/2020 and seeking an order from this Hon’ble Commission to set aside the Order as passed by the Hon’ble Gujarat State Consumer Disputes Redressal Commission in Consumer Case No. xx/2020 in the matter titled as Mano Manthena Versus XXXXX & xxxxx , impugned order dated xxx of September, xxxx.

3.                 That the appellants have prima facie good case on merits. The balance of inconvenience heavily lies in their favour of the Appellants. The Appellants have very bright chances to succeed before this Hon’ble Commission. The appellants shall suffer irreparable loss and injury in case if the stay over the impugned order dated xx.xx.xxxx passed by the Ld. State Commission, Hyderabad in CC No.xx/2020 is not granted by this Hon’ble Commission, then the appellants will suffer irreparable loss which not subsequent order will be able to compensate and if the present application is allowed then no prejudice will be caused to the respondent.

4.                 That the present Application is moved bonafidely to meet the end of justice.

P R A Y E R:-

In view of the aforesaid facts that this Hon’ble Commission may kindly be pleased to allow the present application and stay the operation of the impugned order dated 11.09.2023 passed by Hon’ble Telangana State Consumer Disputes Redressal Commission, Hyderabad, in Consumer Case No. xx/2020 in the matter titled as Mano Manthena Versus XXXXX & Developers Pvt. Ltd. & Anr., in the interest of justice.

Pass such other order or orders as may be deemed fit in the circumstances may also be passed

It is prayed accordingly.

DELHI                                                                APPELLANTS

DATED                         THROUGH

ADYANT LEGAL (Law Firm)

ADVOCATES

Address.

Email: xxxxxxx

Mob: xxxxxx

BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, INA AT NEW DELHI

FIRST APPEAL NO.______ OF 2023.

(Against the Order passed by the Hon’ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. xx/2020)

INTHEMATTEROF:-

XXXXX                                                               : APPELLANTS

VERSUS

MS. XXXX                                                          : RESPONDENT

CERTIFICATE

Certified that I have filed certified / attested true copies of:

(i)               The orders passed by the State Commission, Hyderabad;

(ii)             All pleadings in the complaint and the evidence filed by both the parties, oral and documentary, as instructed to the Undersigned Law Firm by the Appellant.

DELHI                                                                APPELLANTS

DATED                         THROUGH

ADYANT LEGAL (Law Firm)

ADVOCATES

Address.

Email: xxxxxxx

Mob: xxxxxx

BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, INA AT NEW DELHI

FIRST APPEAL NO.______ OF 2023.

(Against the Order passed by the Hon’ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. xx/2020)

IN THE MATTER OF:-

1. M/S. XXXXX.,

Through AR xxxx

Address.

2. M/S. XXXXX.,

Through AR xxxx

Address.

                                                                             : APPELLANTS

VERSUS

MS. xxxxxx

Address.                                             : RESPONDENT

FIRST APPEAL UNDER SECTION 51 OF THE CONSUMER PROTECTION ACT, 2019 (AS AMENDED) FOR AN ON BEHALF OF THE APPELLANTS AS NAMED ABOVE INTER ALIA SEEKING NECESSARY ORDER FROM THIS HON’BLE COMMISSION TO QUASH THE ORDER AS PASSED BY THE HON’BLE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HYDERABAD IN THE MATTER TITLED AS “MANO MANTHENA VERSUS XXXXX& DEVELOPERS PVT. LTD. & ANR., IN CONSUMER CASE NO xx/2020.

TO,

THE HON’BLE THE PRESIDENT OF THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION AND HON’BLE JUDGES OF THE NATIONAL COMISSION AT NEW DELHI.

THE APPELLANTS ABOVE NAMED

HEREBY SUBMITS AS UNDER.

MOST RESPECTFULLY SHOWETH:-

1.                 That the Appellants by virtue of the Present First Appeal as filed before this Hon’ble Commission is seeking an order from this Hon’ble Commission to set aside the Order as passed by the Hon’ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in Consumer Case No. xx/2020 in the matter titled as Mano Manthena Versus XXXXX& Developers Pvt. Ltd. & Anr., (hereinafter referred to as an “Impugned Order”) dated 11^th of September, 2023, the Certified Copy of impugned order is read on 03.10.2023 which was delivered on 04.10.2023.

2.                 It is the case of the Respondent / Complainant that the Respondent is an IT Professional and purchased residential unit no.1300, Burlingame in the project floated by the appellants by entering into an agreement of sale dated xx.xx.xxxx, which was registered on xx.xx.xxxx for a consideration of Rs.xxxxxxx/- and it was paid in the time frame as prescribed by the Appellants; that the Appellants did not prepare the agreement in spite of receiving the earnest money and also the first installment, but finally prepared the same and got it executed on (Date) that on (Date) itself Respondent received an email informing that the unit is ready for registration; that when the Respondent was leaving for USA was assured by the Appellants that they would complete the unit in all respects and intimate about the same; that the Respondent got appointed GPA to complete the remaining process; that on xx.xx.xxxx Respondent received an email that the registration has been completed; that the Respondent paid the total consideration in the middle of June, 2018 itself and requested for the completion of early registration, but no interest was evinced by the appellants; that finally the registration was completed on (Date) due to fanatic efforts made by the Respondent as alleged.

3.                 It is further stated that vide letter dated (date) the appellants levied late payment charges to the tune of Rs.xx/- out of which Rs.xx/-  towards interest and Rs.xx/- towards administrative charges, though there was no fault on the part of the Respondent; that after prolonged struggle the appellants waived the late payment charges at the time of registration; that on xx.xx.xxxx when Respondent visited the unit found incomplete issues and they were communicated to the appellants seeking repairs, but every time for standard answer is that, the issues were fixed; that vexed with their attitude the Respondent even offered to get the issues done by herself for which they have to be reimbursed, but there was no answer for the same; that due to their acts the handing over the possession was delayed; that on xx.xx.xxxx legal notice was issued to the appellants demanding to pay the compensation for which a reply notice dated xx.xx.xxxx was received from the counsel of the appellants that he was waiting for instructions; that in those circumstances Respondent was forced to take possession of the unit on xx.xx.xxxx with many unaddressed issues; that on xx.xx.xxxx Respondent sent an email expressing her grievance, but there was no response for it; that in January, 2019 the Respondent got the issues fixed at her own cost of engaging the services of V design interiors as per the estimates provided by them; that the Respondent was made to suffer lot of mental agony in the hands of Appellants as alleged. Thereafter, the Complainant / Respondent filed the Complaint before the Ld. State Commission, Hyderabad stating the above mentioned facts and therefore complainant seeks relief in the form of direction to appellants to pay Rs.xxx/- towards costs incurred by the Complainant to fix the issues and to pay Rs.xxx XXXXXs for loss of rent for six months due to delay in delivery of possession and to pay interest @18% p.a. on the said amounts from the date of handover of the flat till the date of payment and to pay compensation of Rs.xx XXXXXs for the mental agony suffered by the Complainant and for cost of Rs xx XXXXXs.

4.                 That after receipt of the notice the Appellants filed their written reply to the complaint before the Ld. State Commission submitted that residential portfolio, the Lodha Group has presence across multiple price points with Unit values ranging from Rupees xxxx million to Rupees xxx million and through its commercial portfolio, it develops both office and retail projects as income generating assets on lease / sale model. As on December, 2020, the Lodha Group had 38 on­going projects, of which 36 projects are in India and two in London. These projects account for a developable area of xxx million square feet, of which xxxx million square feet represented projects is located in the Mumbai Metropolitan Region. As of September xxxxxx, it has xx planned projects in India with a developable area of xx million square feet, of which xx million square feet is located in the MMR. Given its large-scale operations and delivery of innumerable homes through a customer centric business model, the remarkable progress and excellent reputation of the Lodha Group is conspicuous and accordingly, the Complainant's attempt to paint an unscrupulous image of the Appellant is absolutely misplaced and unfounded. The Lodha Group is synonymous with developing iconic structures in Mumbai as well as bringing renowned global names such as Armani Casa, Trump, WOHA, Greg Norman, and Jade Jagger to India.

5.                 It is further submitted that Appellants denies each and every allegation, averment and/or contention raised by the Complainant in the proceedings which are contrary to and /or inconsistent with what is stated hereinafter. The complaint of the Complainant is misconceived and filed only with a mala fide intention to harass the Appellants and to extort money from it. It is submitted that the Complainant has purchased a residential unit No. (Address) by entering into an Agreement of Sale dated xx.xx.xxxx and the same was registered vide Registered Sale Deed dated xx.xx.xxxx.

6.                 It is further submitted that the Agreement to Sell was done in time when the Complainant had paid the requisite amounts to the Appellants. It is submitted that the Complainant herself in her email dated xx.xx.xxxx had explained about her late payment and reason thereof. The Appellants begs to produce the copies of the email dated xx.xx.xxxx at the time of Evidence. It is further submitted that the Appellants has sent a letter for overdue payment dated xx.xx.xxxx to the Complainant, showing a total of Rs. xxxx (Rupees xxxxxxx). It is further submitted that the Final Notice before Termination was also issued to the Complainant on xx.xx.xxxx. However, the Complainant has ignored to respond to the same. Subsequently, since the Complainant has failed to pay the outstanding dues to the Appellants, a Termination of Allotment dated xx.xx.xxxx for Unit No. xxxx was intimated to the Complainant. As on that date, the total consideration was Rs. xxxx and the amount received from the Complainant was Rs. xxxxx (Rupees xxxx). The amount forfeited was Rs.xxxx/- (Rupees xxxx) and the refund amount was Rs. xxxx (Rupees xxx).

7.                 It is further submitted that the Complainant did not pay the remainder of the total Sale consideration in the middle of June, xxxx when the Termination of Allotment was already issued on xx.xx.xxxx.

8.                 It is further submitted that all the issues were fixed during the handover of the possession. It is further submitted that at the time of offering possession there were a few snags like textured painting was unfinished in the corridor servant entrance area and main door polishing was not complete. But these were rectified during the handover of possession and even rectified picture were also shared with the Complainant.

9.                 It is submitted that upon receiving the requests for fixing the issues, the Appellants had fixed the issues and had accordingly informed the Complainant of the same. It is pertinent to mention that the Complainant has not made any complaints regarding the physical status of the allotted unit at the time of taking possession, which shows that there is was no delay or defect from the Appellants. It is thus submitted that the Complainant was able to utilize the unit or do as she deemed fit.

10.            It is further submitted that the invoice annexed by the Complainant look like the estimates and not an invoke and the Advocate of Complainant has commented in the invoice which is very rare as the invoice never contains the advocates comment. It is further submitted that invoice does not contain the stamp of the company which means that the invoice is not authentic but false and baseless piece of paper. Even otherwise all the snags were rectified before handover hence there is of question of payment. The Appellants hereby deny all liabilities arising from engaging any third-party contractors. It is submitted that the Appellants have always cooperated with the Complainant for any legitimate issues that arose in the unit.

11.            That the Complainant was filed the rejoinder to the Reply of the Appellants.

12.            Therefore all witnesses were examined through evidence by way of affidavit. On completion of pleadings and evidence. Thereafter, Counsels for both the Parties argued the matters and order has been reserved.

13.            That on xx.xx.xxxx the Ld. State Commission held that the complaint is partly allowed with joint and several liability against the Appellants no.1 and 2 with costs of Rs. xxxxx/- by directing them to pay Rs.xx XXXXXs with interest @12% p.a. from February, 20xx till the date of actual payment besides compensation of Rs.2 XXXXX. As a result of which the Impugned Order was then Passed, which is not, challenged before this Hon’ble Commission on the below mentioned Grounds.

GROUNDS:-

A.               BECAUSE, the Complainant evinced the interest for booking said Flat and by written Application form applied for the allotment of the said Flat. It is evident from the said Agreement to Sell (Agreement) that the Complainant is not consumer but a speculator who intended to make an investment by applying for allotment of the said Flat while already having, existing residence as mentioned in the Agreement. Further same address is provided by the Complainants at the time of execution and registration of said Agreement and same is incorporated in the said Agreement. Section 7 (1) of the Consumer Protection Act makes it abundantly clear that any person who buys a goods or avails the services from a service provider for commercial purpose is not entitled to invoke the jurisdiction of a consumer for the redressal of his grievance. The Hon'ble National Commission, in a recent case titled, Smt. Madhu Saigal and Anr Vs. M/s. Omaxe Buildhome Pvt Ltd, 2014 (3) CPR 265 (NC) has held that purchase of Apartments when consumer had booked more than one unit of residential premises, it amounts to booking of such premises for investment/commercial purpose and Complainant is not consumer and the Complaint is not maintainable.

In the said authority also observed another case - Chilkuri Adarsh Vs. ESS VEE Constructions, III (2012) CP J 315, wherein also it was held, as under:-

B) "Arguments of the learned Counsel have been considered. However, we are of the view that the complaint as presented cannot be maintained before a Consumer Fora, like ours, as the agreement was for the construction of two showrooms, which obviously relate to commercial purpose and the complainant, therefore, will not come within the definition of a 'consumer', as per Section 2(l)(d) of the Consumer Protection Act, 1986. This has been the consistent view of this Commission. It has held that even when a consumer has booked more jhan one unit of residential premises; it amounts to _ booking of such premises for investment/commercial purpose. This Commission in the case of Jagmohan Chabra and another Vs. DLF Universal Ltd., IV (2007) CPJ 199, in a somewhat similar case held that the complaint was not maintainable under the Consumer Protection Act, 1986. It had, therefore, disposed the complaint with liberty to the complainant to approach Civil Court. The said order has since been upheld by the Hon 'ble Supreme Court as Civil Appeal No. xxxx-xxxx of 2008, filed before the Supreme Court stands dismissed, vide Apex Court's order dated xx.xx.xxxx".

B.                BECAUSE, in the case in hand, though die Complainants are having their existing residence as mentioned in (in the said Agreement) booked the said Flat therefore, it is manifest that Complainant had availed the services of the Appellant purely for investment or commercial purpose and, therefore, Complainants do not fall within the definition of consumer.

C.               BECAUSE, the Complainant vide its email dated xx xxxx admitted that they wished to earned profit by renting the unit which makes it abundantly clear that Complainant purchased the said unit for commercial purpose only. It is submitted that Complainant is, therefore, not entitled to invoke the jurisdiction of Ld. Commission for the redressal of their grievance. The Appellant states that the Captioned Complaint is nothing but an attempt to misuse the process of Ld. Commission with the sole object to enrich themselves through illegal means. Thus the same is liable to be set aside.

D.               BECAUSE, the limitation for the cause of action of the Complainant is over and is delayed beyond 31 days as per their own admission without citing any proper reason. Therefore, the cause of action is barred by the law of limitation and thus it needs to be rejected at the threshold itself.

E.                BECAUSE, in and around early 2017, the Complainant approached the Respondent to purchase a flat no. xxxx in a building called Burlingame ("said Building") in the said Lodha Belleza Project, Hyderabad ("said Flat"). Accordingly, on xx  the parties executed the Agreement to sell ("Agreement").

F.                BECAUSE, The Complainant, vide possession letter dated xx October xxxx have taken possession of the said Flat from the Opposite Party. The Appellant categorically states and submits that, there is no fact which gives rise to a dispute and hence there exists no cause of action. It is pertinent to note that the Complainants after satisfying themselves have accepted the Fit out possession of the said Flat and accepted the keys of the said Flat and confirmed that they physically inspected the said Flat and found all amenities and areas, as per terms of the said Agreement and that the construction quality and workmanship is satisfactory and that they have no complaints/ grievance of any nature whatsoever in respect of the said Flat or under the said Agreement or otherwise.

G.               BECAUSE, that the Complainants after going through all the terms and conditions and after accepting the same and after satisfying themselves have signed and acknowledged the possession Letter dated xxxxx in respect of the said Flat. The Appellant States that in said letter dated xxxxx it is confirmed by the Complainants as follows:-

"We request you to inspect the unit before accepting its keys. In case of any defects/issues, we request you to immediately inform the Facility Management representative about the same. The defects, if any, shall be rectified, as per the Company's policies, within 30 days of receiving such information. You may thereafter collect the keys for your unit from the Facility Management representatives at the site Office. Upon collection of the keys as above, it will be deemed that you confirm and undertake that:

(i)               You have inspected the Unit;

(ii)             Your have found and satisfied yourself that all amenities, areas, construction quality and workmanship to your satisfaction and in accordance with the Agreement;

(iii)          You have no complaint or grievance or claims of any nature whatsoever against the Company in respect of the Unit or under the Agreement for sale or otherwise and the right to raise such grievances/claims shall be deemed to have been waived; "

H.               BECAUSE, since the Complainants have taken possession of the said Flat after satisfying themselves, without raising any objection, qualification or precondition or under protest, they are not entitled to any relief because the Complainants also have the benefit of appreciation in value in the said Flat as the current market value of the said Flats is higher than the price at which said Flat was booked by the Complainants.

I.                  BECAUSE, The Appellant states and requests the Ld. Hon'ble Commission to refer and rely upon the order dated 1^st July 2013 passed by Hon'ble State Commission in C.C. No. 13/235 filed by Maya M. Dharmadhikari versus Macrotech Constructions Pvt. Ltd. through its Director in which the Hon'ble State Commission was pleased to dispose off the said complaint without admitting it. The Appellant states in the said case the Complainant had similarly signed possession acknowledgment letter on (date) and thereafter perhaps maintained silence and until she had written on (date) to the Opponent for the first time raising concern about the delayed possession to which there was a reply from the Opponent dated (date). The Appellant States that in the said case, the Hon'ble State Commission have lightly concluded that the Complainant now wants to go beyond their possession acknowledgment letter dated (date). The Hon'ble State Commission has also rightly pointed out that if the Complainant wants to do it, it requires detailed inquiry and also recording lengthy evidence and such exercise, perhaps is not expected in a summary inquiry of consumer complaint.

J.                 BECAUSE, in one of the recent judgment dated 18^th September, 2014 in Consumer Complaint No. 61 of 2013 even the Hon'ble Andlira Pradesh State Commission came to the same conclusion that once the Complainant accepted possession without raising objection, he is not entitled for any reliefs in connection with allegation of compensation thereof. And in connection therewith the Hon'ble Andhra Pradesh State Commission observed "However, the complainant occupied the said flat in the month of September, 2012. Further, according to the Opposite Party a letter was executed on 8.3.2013 which was marked as Ex. B2 wherein it was categorically mentioned at. clause-III which reads as follows:

"You have no complaint or grievance or claims of any nature whatsoever against the company in respect of the unit or under the agreement for sale or otherwise and the right to raise such grievances/claims shall be deemed to have been waived." (Emphasis supplied)

This letter was addressed by the Appellant on (date) and it was executed and confirmed by the complainant by signing the said letter. In those circumstances, he has given up waived all these things. May be, it is a fact that the complainant lodged a complaint in December, xxxx but because of this letter marked as Ex. B2 is considered, everything has been waived. In our considered view, we cannot award any compensation as prayed for." The Appellant further submits that the said Order dated 18^th September, xxxx was challenged by the Complainant therein before the Hon'ble National Commission and filed First Appeal No. xxx of xxxx and the same was dismissed as withdrawn by the Appellant therein. In these circumstances, the Order dated xxxx passed in Consumer Complaint No. xx of 2013 becomes final.

K.               BECAUSE, in one of the recent Judgment dated 30^th March, 2015 passed by the Hon'ble Maharashtra State Commission in Consumer Complaint No. 157 of 2012 between Rajesh Baheti Vs. Lodha Developers Ltd, it was observed in the said identical matter wherein the Complaint had filed Complaint for seeking Compensation for delay in handing over possession of the Villa booked by him, whereas he had already taken possession of the said villa and also signed the letter including waiver clause. This Hon'ble State Commission observed in Point No. [5] As follows:-

“[5] .. Following question arise for consideration of the Complaint:-

"Whether the Complainant by signing the letter issued by the Opponent at the time of taking possession waived monetary claim to recover interest?" Our answer to the fact in issue is yes,.

Andhra Pradesh State Commission in Complaint No. 61 of 2013, Vinod Daralc Vs. M/s. Lodha Healthy Constructions and Developers Pvt. Ltd decided in similar situation interpreting the similar clause in the letter for possession issued by builder to be optional in the nature and if accepted mandatory in character.

Letter dated 09/11/2011 addressed to the Complainant by the Opponent served on the Complainant stipulates a covenant of waiver of claims. The Clause in the letter runs as follows:

i)       You have inspected the Unit;

ii)      Your have found and satisfied yourself that all amenities, areas, construction quality and workmanship to your satisfaction and in accordance with the Agreement;

iii)     You have no complaint or grievance or claims of any nature whatsoever against the Company in respect of the Unit or under the Agreement for sale or otherwise and the right to raise such grievances/claims shall be deemed to have been waived; "

L.                BECAUSE, the Hon'ble Maharashtra State Commission was pleased to dismiss the said Complaint No. 157 of 2012 observing that the Complainant failed to establish any deficiency in service being committed by the opponent.

M.             BECAUSE, the Complainants have taken quiet, peaceful and vacant possession of the said Flat and have also acknowledged that they have no claims, grievances or claims under the said Agreement. Thus, there is no fact which gives rise to a dispute of delayed possession after the accepting the possession of the said flat as rightly held by Hon'ble State Commission in aforementioned Smt. Maya Dharmadhilcari and Vinod Daralc's case and Rajesh Baheti's case. The Complainants have no cause of action exists in the present matter and the Complaint is hence not maintainable.

N.               BECAUSE, the Complainant’s allegations regarding delay in preparing the Agreement to Sell is false and baseless. It is submitted that the OC for the Complainant unit was obtained long back hence it's abundantly clear that the construction of the Unit completed long back. It is by them during the purchase of the unit. It is submitted that since the Complainant herself delayed in the payments required to be made to the Appellant, the Appellants were compelled to delay the process for preparing the Agreement to Sell. It is thus submitted that there was no delay on the part of the Appellants to get the Agreement to Sell and Sale Deed signed. As soon as the entire balance consideration for the Unit was paid, the Appellants have prepared the Agreement and got it executed. Accordingly, once the remaining balance consideration was paid, the Sale Deed was executed in July 2018. There was no delay whatsoever from the part of the Opposite Parties in this regard. The Appellant is in compliance with all the terms and conditions of the Sale Deed dated July 19, 2018, which was executed between the parties and there is no cause of action for filing the present Complaint on account of delay in executing the Agreement to Sell.

O.               BECAUSE, The Appellant states that they had issued time and again several demand letters calling upon Complainant to pay the payments as per the payment schedule of said Agreement. However the Complainant delayed in making payment on stipulated time. It is further submitted that despite of repeated reminder to make the payment Complainant ignored to make the time bound payment for he reasons best known to him, hence Appellant was constrained to issue final notice before terminator letter dated xxx. A copy of the Demand letter dated xxxx, Interest letter dated xxxx and Final notice before termination dated xx. However Appellant bring several other demand letters, interest letters and E-mails on record at the time of evidence.

P.                BECAUSE, it is firstly submitted that Complainant appears to have completely misunderstood and misconstrued the clear, unequivocal and unambiguous terms of the agreement to sell dated xxx executed by and between the parties. It is submitted that there has been no delay in handover of possession of the Unit (as such term is defined in the Agreement) to Complainant. The relevant clauses of the ATS are as follows:

Clause no. 1.19 — "Date of Offer of Possession" Shall mean the date of which the Company by written intimation makes the unit available to the purchaser along with the OC in respect of the unit.

Clause no. 10 — Possession

Clause no. 10.1 — Subject to the Purchaser not be in breach of any of terms thereof and the purchaser having paid all the dues and amounts thereunder including the total consideration, the Company shall endeavor to provide the unit to the purchaser on or before the estimated DOP.

Clause no. 10.2 — The Purchaser shall make full payment of all amounts payable under this Agreement within 15 (fifteen) days of the Company intimating him, in writing, that the Unit is ready for possession (Possession Demand Letter) and shall thereafter, take possession of the Unit. In the event the Purchaser fails and, or, neglects to take possession of the Unit within 2 (two) months from the date of the Possession Demand Letter, the Purchaser shall be liable to pay demur-rage charges to the Company at the rate of INR10/- per square foot of Net Area per month or part thereof from the expiry of the aforementioned 2 (two) month period till such time the Purchaser takes the possession of the Unit. The amounts payable by the Purchaser pursuant to this Clause 10.2 shall be in addition to the CAM Charges. Notwithstanding the aforesaid, it shall be deemed that the Purchaser has taken possession of the Unit on the expiry of the 2 months from the date of the Possession Demand Letter and the Purchaser shall alone be Responsible/liable in respect any loss or damage that may be caused to the Unit after this date.

A perusal of the aforementioned clauses evinces the fact that the date mentioned in the Annexure-6 was an 'endeavor' basis implying that it on a 'best-effort basis' and not binding. Therefore, the date mentioned in Annexure 6 was not a definitive date for handover of possession since it was qualified to be on an "endeavor" basis at several places in the ATS,

Q.               BECAUSE, the Clause 1.19 of the ATS shows that the date mentioned at Annexure-6 was estimated date, and further establishes that the date of offer of possession shall mean the date when the Appellant issues written Communication stating that the flat is ready for possession along with OC i.e. Possession Demand Letter.

R.               BECAUSE, the Clause 10.1 & 10.2 of the ATS establish that the date mentioned at Annexure -6 is estimated date. It is further submitted that the Complainant shall not be entitled for possession if the Complainant is in breach of any terms of the Agreement and until and unless Complainant, pays entire amount mentioned in the payment schedule of the Agreement.

S.                 BECAUSE, in the instant case the Complainant defaulted the terms of the Agreement and delayed in paying amount as per payment schedule. It is further submitted that despite continuous follow-ups and reminder Complainant failed to make the payment. The Appellant was constraint to issue final notice before termination letter.

T.                BECAUSE, it can be clearly inferred that as per the provisions of Clause 1.19, 10.1 read with Clause 10.2 of the Agreement, the date of offer of possession was the date when Appellant issue possession demand letter which was issued on xx and requested Complainant to make the payment on or before xxx. However Complainant failed to make the payment as per Possession Demand Letter. It is further submitted that Complainant made the payment after few months and accordingly the Possession was handed over on xxx within timelines. Hence it is abundantly clear that there was no delay in handing over the possession.

U.               BECAUSE, the allegation pertaining to the uncertified snags are false and baseless. It is further submitted Unit Complainant did not come forward to accept the possession as they appeared to be more interested in seeking -compensation from Appellant, on false and baseless ground. It is submitted that. Complainant inspected the Unit and highlighted few minor snag and refused to accept the possession on false and baseless grounds. It is further submitted that the snag highlighted by Complainant was duly rectified and pictures of the rectified snags were shared with the Complainant but to Appellants’ shock and surprise, instead of accepting the possession on the contrary. Complainant with malafide intentions raised an additional request due to which Appellant was utterly dismayed as Complainant, instead of accepting the possession raised issues on false and baseless ground, and kept, on demanding absurd, false and illegal compensation on the ground of alleged delayed possession. It is further submitted that Complainant later took the possessing of the rectified unit with her eyes wide open and signed the possession handover letter and waived its right to rise the objecting. It is further submitted that despite all the snags were rectified and possession letter was signed the Complainant has filed Complaint and demanded absurd, false and illegal interest / compensation on the ground of alleged delayed possession. It is abundantly clear that the sole intention of the Complainant was to unjustly enrich herself from such payment. It is further submitted that Complainant is trying to achieve by adopting this unlawful tactic and which presumably is for making unjustified financial gains, and could well be unrelated to the Agreement or the Unit. Hence the Complaint deserves to be dismissed.

V.               BECAUSE, In 1994 (I) CPR 182 — Director, Himachal Institute of Engineering & Technology Vs. Anil Kumar Gupta — it is held that "The Party to be awarded compensation has not only to show deficiency in service but also negligence of the other Party and without the finding of negligence, there cannot be any award."

W.             BECAUSE, the Complainant is misusing the provisions of consumer protection act in respect of matter especially when the complaint filed by the Complainant is devoid of any merits. Thus the Appellants submits before this Hon’ble Court to discourage such practice, especially in the present case, where the Complainant while accepting the possession have agreed that they have no complaint, grievance and claims of any nature whatsoever against the Appellant in respect of the said Flat or under the said Agreement or otherwise and the right to raise such grievances/claims shall be deemed to have been waived and despite that the Complainants are seeking compensation as more particularly mentioned in prayer clause of the Complaint. The Appellant states that the Complainant is claiming compensation which is absolutely unjustified. The Appellant States that the present case is the fit case wherein the Complainant is using Hon'ble Commission as a tool to extort money from the Appellant.

X.               BECAUSE, the Ld. State Commission has failed to appreciate the various judgments filed by the Appellants in supports of their submissions.

14.            That the Appellants are constrained to file this Present Appeal before this Hon’ble Commission and Appellant herein craves the liberty of this Court to add, alter, modify or amend the grounds during the pendency of this First Appeal, if necessary.

15.            That the Appellants are constrained to file the above First Appeal before this Hon’ble Commission as it has no other officious remedy and the matter is of grave and immense urgency and significance.

NON-FILING PARA

16.            The Appellants herein states that he has not filed a similar First Appeal or any other Petition before this Hon’ble Commission or any other Court/s involving the subject matter of this Appeal, which is pending or has been disposed of.

17.            This Hon'ble Court has the jurisdiction to entertain the present First Appeal.

18.            This First Appeal is made bona fide and in the interest of justice.

19.            That the annexure filed with the First Appeal are true copies of the respective originals and a separate certificate as per rules are also appended herein alongside the present Appeal.

PRAYER :-

In the facts and circumstances stated above, it is most humbly prayed that this Hon’ble Commission may be pleased to issue appropriate orders and directions as set out below-

A.   In the facts and circumstances of the case it is respectfully prayed that the Hon’ble Commission may kindly be pleased to call for the records of the Matter bearing Titled as “Mano Manthena Versus XXXXX& Developers Pvt. Ltd. & Anr.,” being Complaint Case No. 83 of 2020 adjudicated by the Hon'ble Telangana State Consumer Disputes Redressal Commission, Hyderabad; and

B.    Set Aside the impugned Order/Judgement dated 11.09.2023 as passed in the matter titled as “Mano Manthena Versus XXXXX& Developers Pvt. Ltd. & Anr.,” being Complaint Case No. 83 of 2020 adjudicated by the Hon'ble Telangana State Consumer Disputes Redressal Commission, Hyderabad;

C.    Pass Such other order or orders as may be deemed fit in the circumstances may also be passed

APPELLANTS

THROUGH

Filed by:

Place: New Delhi

Dated: …..10.2023

XXXX (Law Firm)

ADVOCATES

Address.

Email: xxxxxxx

Mob: xxxxxxxx

BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, INA AT NEW DELHI

FIRST APPEAL NO.______ OF 2023.

(Against the Order passed by the Hon’ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. xx/2020)

IN THE MATTER OF:-

XXXXXXX.                                                         : APPELLANTS

VERSUS

XXXXXX                                                            : RESPONDENT

AFFIDAVIT IN SUPPORT OF THE FIRST APPEAL

I, xxxx Aged About …. Years Authorized Representative of M/s. XXXXX& xxx., at (Address), do hereby solemnly affirm and declare as under:

1.                 I say that I am the AR of the Appellants in the above First Appeal and competent to swear this Affidavit.

2.                 I am extremely conversant with the facts of the case and have also examined all relevant documents and records in relation thereto.

3.                 I say that there is no false statement or concealment of any material fact, document or record and I have included information that is according to me, relevant for the present Appeal as the same are based on records.

4.                 I say that all the documents in my power, possession, control and custody, pertaining to the facts and circumstances of the proceedings initiated by me have been disclosed and copies thereof annexed with the First Appeal and the Interim Applications.

5.                 I state that the Annexures hereto are the true copies of the documents referred to and relied upon by me.

6.                 I say that I am aware that for any false statement or concealment, I shall be liable for action taken against me under the law for the time being in force.

DEPONENT

VERIFICATION:

Verified at Mumbai on this _____ of October, 2023 that the statements made and contained in my above affidavit are true and correct to my knowledge and nothing material is concealed therefrom.

DEPONENT

BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, INA AT NEW DELHI

FIRST APPEAL NO.______ OF 2023.

(Against the Order passed by the Hon’ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. xx/2020)

IN THE MATTER OF:-

XXXXXXX.                                                         : APPELLANTS

VERSUS

XXXXXX                                                            : RESPONDENT

AFFIDAVIT IN SUPPORT OF THE INTERIM APPLICATION

I, xxxx Aged About …. Years Authorized Representative of M/s. XXXXXx at (Address), do hereby solemnly affirm and declare as under:

1.     I say that I am the AR of the Appellants in the above First Appeal and competent to swear this Affidavit.

2.     I am extremely conversant with the facts of the case and have also examined all relevant documents and records in relation thereto.

3.     I say that there is no false statement or concealment of any material fact, document or record and I have included information that is according to me, relevant for the present Appeal as the same are based on records.

4.     I say that all the documents in my power, possession, control and custody, pertaining to the facts and circumstances of the proceedings initiated by me have been disclosed and copies thereof annexed with the First Appeal and the Interim Applications.

5.     I state that the Annexures hereto are the true copies of the documents referred to and relied upon by me.

6.     I say that I am aware that for any false statement or concealment, I shall be liable for action taken against me under the law for the time being in force.

DEPONENT

VERIFICATION:

Verified at Mumbai on this _____ of October, 2023 that the statements made and contained in my above affidavit are true and correct to my knowledge and nothing material is concealed therefrom.

DEPONENT

BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, INA AT NEW DELHI

FIRST APPEAL NO.______ OF 2023.

(Against the Order passed by the Hon’ble Telangana State Consumer Disputes Redressal Commission, Hyderabad in C.C. No. xx/2020)

INTHEMATTEROF:-

IN THE MATTER OF:-

XXXXXXX.                                                         : APPELLANTS

VERSUS

XXXXXX                                                            : RESPONDENT

AFFIDAVIT IN SUPPORT OF THE INTERIM APPLICATION

I, xxxx  Aged About …. Years Authorized Representative of M/s. XXXXX at (address), do hereby solemnly affirm and declare as under:

1.     I say that I am the AR of the Appellants in the above First Appeal and competent to swear this Affidavit.

2.     I am extremely conversant with the facts of the case and have also examined all relevant documents and records in relation thereto.

3.     I say that there is no false statement or concealment of any material fact, document or record and I have included information that is according to me, relevant for the present Appeal as the same are based on records.

4.     I say that all the documents in my power, possession, control and custody, pertaining to the facts and circumstances of the proceedings initiated by me have been disclosed and copies thereof annexed with the First Appeal and the Interim Applications.

5.     I state that the Annexures hereto are the true copies of the documents referred to and relied upon by me.

6.     I say that I am aware that for any false statement or concealment, I shall be liable for action taken against me under the law for the time being in force.

DEPONENT

VERIFICATION:

Verified at Mumbai on this _____ of October, 2023 that the statements made and contained in my above affidavit are true and correct to my knowledge and nothing material is concealed therefrom.

DEPONENT