Order Complaint No. 652 Of 2022

BEFORE TELANGANA STATE REAL ESTATE REGULATORY AUTHORITY
[Under the Real Estate (Regulation and Development) Act, 2016]
COMPLAINT NO.652 OF 2022
09th January, 2024
Corum:

Dr. N. Satyanarayana, IAS (Retd.), Hon’ble Chairperson
Sri Laxmi Narayana Jannu, Hon’ble Member
Sri K. Srinivasa Rao, Hon’ble Member

Sri Pabba Prakash & Anor

…Complainant

Versus
M/s Aparna Sheltors Private Ltd.
…Respondent
The present matter filed by the Complainant herein came up for hearing
on 27.10.2023, 02.01.2023 and 21.12.2023 before this Authority in the
presence of Complainant Advocate Drupad Sangwan and Respondent
Advocate Syed Adil Ahmed Quadri and upon hearing the arguments of the
party, this Authority passes the following ORDER:
2.

The present Complaint has been filed under Section 31 of the Real

Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the
“RE(R&D) Act”) read with Rule 34(1) of the Telangana Real Estate (Regulation
and Development) Rules, 2017 (hereinafter referred to as the “Rules”) seeking
directions from this Authority to take action against the Respondent.
A. Facts of the Case as Stated in the Complaint Filed by the
Complainant:
3.

In the year 2011-12, the Respondent initiated the development of their

project named "Aparna Kanopy Tulips," constructed and marketed by M/s
Aparna Sheltors Private Ltd.
4.

The

complainants

were

induced

by

false

advertisements

and

misrepresented by the officials of the Respondent to book a residential
apartment in the Respondent's project. They paid Rs. 5,29,120 for this
purpose.
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5.

Subsequently, the complainants were allotted Unit No. 409, Block-L,

Floor 4th, measuring 1260 square feet super area situated at Aparna Kanopy
Tulips. The complainant entered into an Agreement of Sale/Apartment
Buyer’s agreement on 22.03.2016 with the Respondent for the said unit. The
total sale consideration, including the basic sale price, power backup charges,
and Maintenance Deposit, was Rs. 30,20,600. An amount of Rs. 5,29,120 has
already been paid against the allotment.
6.

As per Clause 6 of the Apartment Buyer’s Agreement dated 22.03.2016,

the Respondent was liable to deliver possession of the apartment by
22.03.2019, considering it a reasonable time for construction, as no definite
time period was specified in the Agreement.
7.

The complainants agreed to pay the remaining amount in line with the

development of the project. They initiated their own project under the name
"APARNA KANOPY TULIPS," constructed and marketed by M/s APARNA
SHELTERS PRIVATE LIMITED at the above-mentioned address.
8.

The Respondent not only failed to deliver the apartment within the

stipulated time but also acted in a manner of abusing their dominant position
against the interest of the clients.
9.

The act of delay in handing over possession and not adhering to the

clauses of the Apartment Buyers Agreement, whereby the Respondent was
required to construct and handover possession to the complainants, is a
direct violation of the buyer agreement. This shows a mala fide intent and bad
faith on the part of the Respondent. It also amounts to misrepresentation and
gross deficiency of service as per settled legal principles.
10.

Since 22.03.2016, the Respondent has been evading any concrete

commitment for fixing a particular date of handing over possession and has
not conveyed the status of development of the project to Complainants.
Complainants have been in constant touch with the Respondent, seeking
clarification on the construction status and have been regularly visiting the
construction site of the tower, only to realize that the construction has been
unreasonably delayed.
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11.

Complainants were vigilant about their investment in the Respondent's

project and repeatedly sought clarifications by visiting the construction site.
12.

The Complainant never defaulted in any payment request raised by the

Respondent, as no demand is pending as of the date.
13.

After waiting for more than 3 years beyond the deemed date of

possession, the complainants sent a legal notice dated 06.07.2022 to the
Respondent, requesting delivery of possession and payment of delayed
interest amount along with other compensation for damages suffered.
14.

In a democratic society, the Respondent cannot be allowed to act

despotically and arbitrarily or fraudulently adopt unfair practices simply
because they have a monopoly and an upper hand to harass the
Complainants. The actions of the Respondent are tantamount to unfair trade
practices and a violation of the RERA Act. The Respondent failed to deliver
possession within the agreed terms and schedule, resulting in a deficiency of
service on their part. The Complainant further submits that the Respondent is
guilty of gross deficiency in service, for which it is liable to compensate the
Complainant.
15.

Respondent is liable to pay monthly interest to the complainant due to

delayed possession after 22.03.2019, at the rate prescribed under the rules
laid down by the RERA Act.
16.

From the above facts and circumstances, it is crystal clear that the

action of the Respondent in not delivering the possession of the apartment by
22.03.2019

clearly

amounts

to

a

deficiency

in

services.

Therefore,

Complainants are entitled to interest at 9.75% per annum on a total amount
of Rs. 5,29,120/- till the delivery of possession.
17.

The Respondent not only failed to deliver the possession of the said unit

within the stipulated time but also acted in a manner of abusing their
dominant position against the interest of the complainant.
18.

That the Complainant has been suffering physically and mentally

besides facing financial hardships since 22.03.2019 due to the non-delivery of
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possession of the said unit. This has caused undue hardship and mental
agony to the Complainants, as they are now required to make alternate
residential

arrangements

due

to

the

fault

of

the

Respondent.

The

complainants reserve their right to agitate the issue of compensation due to
be paid to the complainants by the Respondent before the appropriate forum.
B. RELIEF(S) SOUGHT:
19.

In view of the facts mentioned above, the Complainant prays for the

following relief:
i.

If the registration has been granted to the Respondent for the abovementioned project under RERA Act read with relevant Rules, it is
prayed that the same may be revoked under Section 7 of the RERA Act,
2016, for violating the provisions of the RERA Act, 2016.

ii.

In the exercise of powers under section 35 of RERA Act, 2016, direct the
Respondent to place on record all statutory approvals and sanctions of
the project.

iii.

In the exercise of powers under Section 35 of RERA Act, 2016, and Rule
21 of HRE (R&D), Rules, 2017, provide complete details of EDC/IDC
and statutory dues paid to the Competent Authority and any pending
demand if any.

iv.

Direct the Respondent to deliver legal possession of the said apartment
as soon as possible, as the deemed date of possession has already
elapsed.

v.

Provide the Complainants interest on the deposited amount for the
delay in completion of the project and from 22.03.2019 till actual
delivery of possession by paying interest on the total amount of Rs.
5,29,120/- at the rate of 9.75 % per annum in accordance with the
RERA Act, 2016.

vi.

Pay the complainants a sum of Rs. 1,10,000/- as compensation for
litigation expenses.

vii.

Grant the complainants any other relief that this Hon'ble Authority
deems fit and proper in the interest of justice and equity.

C. INTERIM RELIEF:
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20.

Pending the final decision of the complaint, the complainant seeks the

issuance of the following interim orders:
i.

Restrict the respondent from creating any third-party rights on the unit
booked by the complainant by way of sale or lease or mortgage.
Maintain the same in the name of the complainant until the pendency
of the present proceedings.

ii.

Direct the Respondent to pay interest for the delayed period accrued till
date and interest calculated as per the calculation sheet during the
pendency of this complaint. Further initiate any necessary process for
timely delivery of possession.

D. REPLY FILED BY THE RESPONDENT
21.

M/s. Aparna Shelters Private Limited (now merged with M/s. Aparna

Constructions and Estates Pvt Ltd) had obtained permission for the
construction of group housing apartments containing stilt + 5 Upper Floors
(Blocks A to L) in Sy Nos.446(P), 447(P), 450, 451(P) of Gundlapochampally
Village, Medchal Mandal, Ranga Reddy District (Presently Medchal-Malkajgiri
District) vide Sanction Letter No.4968/P4/Plg/H/2009 dated 21.8.2010
issued by the Hyderabad Metropolitan Development Authority released
through the Gram Panchayath, Gundlapochampalli vide No. GPG/018/2010
dated 13.9.2010.
22.

They have completed the construction work as per the sanction plan

and obtained the Occupancy Certificate dated 12.3.2012 vide reference 4th
cited in respect of Blocks I to L. Your notice is with regard to block -L. The
complainant booked Apartment No. 409, 4th Floor, L Block for which the
Occupancy

Certificate

was

issued

on

12.3.2012.

Thus,

permissions,

construction, and occupancy certificate - all were completed before the
commencement of the Real Estate (Regulation and Development) Act, 2016,
and hence the Act has no application at all, and the complaint is incompetent
and not maintainable.
23.

As the project was completed much prior to the commencement of Real

Estate (Regulation and Development) Act 2016 and Telangana Real Estate
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(Regulation and Development) Rules 2017, there is no jurisdiction to entertain
the complaint under Rule 34(1) & (2) of TS RERA Rules 2017.
24.

Further submit that the complainant

have failed to pay the balance

sale consideration of Rs.27,61,480/- (Rupees Twenty-Seven Lakhs Sixty-One
Thousand Four Hundred and Eighty only) in respect of Apartment No.409,
4th Floor, Block -L of the Project Aparna Kanopy Tulips in Survey Nos.446(P),
447 (P), 450(P), and 451(P), of Gundlapochampalli Village. Hence, they have
cancelled the booking and returned an amount of Rs.1,98,480/- (Rupees One
Lakh Ninety-Eight Thousand Four Hundred and Eighty Only) after deducting
the cancellation charges @10% of the unit value vide Cheque bearing No.
373296 dated 14.10.2016 drawn on ICICI Bank, Begumpet Branch,
Hyderabad. The cheque along with the cancellation letter was sent to the
purchasers on 10.11.2016 through registered post. After the cancellation of
the booking, the apartment was sold to third parties under a registered sale
deed. Therefore, any claim in this regard is hopelessly barred by limitation.
24.

Hence, request the Hon'ble Authority to reject the complaint as this

Hon'ble Authority has no jurisdiction to entertain the complaint.
E. REJOINDER AFFIDAVIT ON BEHALF OF THE COMPLAINANTS
25.

At the outset, deny each and every allegation, contention, and

insinuation contained in the Reply, which is contrary to and/or inconsistent
with what has been set out herein below and in the Petition. In any event,
nothing contained in the Reply, which is not specifically admitted herein, may
be deemed to have been admitted.
26.

It is submitted that the complainants entered into an Agreement of

Sale/Apartment Buyer's Agreement on 22.03.2016 with the Respondent for
the allotment of one apartment i.e., unit No.409 Block-L, Floor-4th measuring
1260 square feet super area situated at APARNA KANOPY TULIPS. The total
sale consideration, including Basic Sale Price Power Backup Charges, and
Maintenance Deposit, was Rs.3020600/- (Rupees Thirty Lakhs twenty
thousand six hundred only). The complainants have already paid an amount
of Rs. 5,29,120/- against the allotment of the said Apartment.
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27.

It is submitted further that as per clause 6 of the terms and conditions

of the Apartment Buyer's Agreement dated 22.03.2016, Respondent was liable
to deliver the possession of the apartment in question by 22.03.2019 as being
the reasonable time of construction of the apartment since no definite time
period for construction is specified in the Agreement of Sale/apartment
Buyer's.
28.

Thus, it is denied that the present application before this Hon'ble RERA

ban is incompetent and not maintainable.
29.

The statements made in the reply are false and denied, as the

respondents have never obtained the sanction plan nor was the occupancy
certificate obtained, and the same is not produced before this Hon'ble RERA.
Therefore, the Respondent is put to strict proof of the same.
30.

It is denied that the project was completed much prior to the

commencement of the Real Estate (Regulation and Development) Act of 2016
and Telangana Real Estate (Regulation and Development) Rules 2017.
31.

It is denied that the Hon'ble RERA has no jurisdiction to entertain the

present complaint, as the Apartment Buyer's Agreement was entered into on
agree
32.

It is denied that the complainants have failed to pay the balance sale

consideration of Rs. 27,61,480/- (Rupees Twenty-Seven Lakhs Sixty-One
Thousand Four Hundred and Eighty Only) in respect of the apartment. It is
submitted that the Complainant had never defaulted in any payment request
raised by the respondent and had shown an active approach regarding the
said booking, and this very fact is further corroborated by the fact that no
demand is pending as of the date as raised by the respondent from the
complainants.
33.

It is denied that the complainants received any demand for the payment

of the balance sale consideration of Rs. 27, 61,480/-. It is also denied that the
complainants have received be it either the cancellation letter or the cheque
dated 14.10.2016. It is submitted that the respondent has never replied to the

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queries of the complainants nor provided any insights about the projection
completion.
34.

It is denied that this present complaint is barred by limitation. Thus, it

is submitted that the allegations made by the Respondent in their reply
affidavit are false and denied thereof.
F. Hearing conducted:
35.

On the 27th of October 2023, a hearing was convened, during which

both the complainant and respondent were present. The complainant
reiterated the contentions raised in the original complaint. When queried
regarding the status of the project, the complainant expressed unawareness.
Consequently,

the

Authority

directed

the

complainant

to

provide

a

comprehensive status report on the project during the next scheduled
hearing. However, the Respondent sought additional time to file a detail reply.
As a result, the matter was adjourned to the subsequent hearing date.
36.

On the 2nd of November 2023, both parties were in attendance, and the

Respondent requested an early adjournment, leading to the rescheduling of
the matter to the 21st of December 2023.
37.

During the hearing on the specified date, the 21st of December 2023,

no representative appeared on behalf of the complainant. However, the
Respondent submitted that the present matter is not maintainable, asserting
that the Authority lacks jurisdiction to adjudicate the issue, as the Occupancy
Certificate (OC) had already been issued in the year 2012.
E. Observation/Direction by the Authority:
38.

In the prevailing circumstances, it is imperative to emphasize that the

Respondent associated with the aforementioned project has duly procured the
Occupancy Certificate bearing reference number GPG/28/2012, dated
12.03.2012, from the Grampanchayad Gundlapochampally, situated in the
Medchal Mandal, Ranga Reddy District. The Authority has taken cognizance
of the fact that the complainant has acquired the unit located in Block L of
the

aforesaid

project,

expressly

encompassed

by

the

aforementioned
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Occupancy Certificate. Given that the Occupancy Certificate was issued in the
year 2012, it is pertinent to note that Section 3(2)(b) of the RE(R&D) Act
provides that no registration of the real estate project shall be required where
the promoter has received the completion certificate for a real estate project
prior to the commencement of this Act. As the subject property has already
been issued an occupancy certificate in the year 2012, i.e., antecedent to the
enactment of the RE(R&D) Act 2016, the same does not fall within the
jurisdiction of this Authority.
39.

Furthermore, the recent judgment of the High Court of Karnataka in the

case of M/S. Provident Housing Limited v. Karnataka Real Estate
Regulatory Authority & ANR. (Writ Petition No. 18448 of 2021) clearly
articulates that in instances where the project had commenced and the
occupancy certificate was issued before the enactment of the Act, such
complaints are deemed not maintainable before the Authority.
40.

The Order is in favour of the Respondent concerning the maintainability

of the complaint itself before this Authority; hence, no further issues raised by
the complainant are under consideration. The aforementioned matter is
hereby concluded, and the complainant is directed to pursue the relief(s)
prayed for before this Authority through the appropriate forum.
41.

If aggrieved by this Order, the parties may approach the TS Real Estate

Appellate Tribunal (vide G.O.Ms.No.8, Dt.11-01-2018, the Telangana State
Value Added Tax Appellate Tribunal has been designated as TS Real Estate
Appellate Tribunal to manage the affairs under the Act till the regular
Tribunal is established) within 60 days from the date of receipt of this Order.

Sd/Sri. K. Srinivas Rao,
Hon’ble Member
TS RERA

Sd/Sri. Laxmi NaryanaJannu,
Hon’ble Member
TS RERA

Sd/-

Dr. N. Satyanarayana, IAS (Retd.),
Hon’ble Chairperson
TS RERA

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