BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD C.C.NO.97 OF 2011
Between:
Sunrise Park Owners Welfare Association
( Street No.3, Czech Colony, Hyderabad-018, rep. by its Secretary
Sri Complainant
1. M/s Sunrise Builders & Developers
Sunrise House, South Street, Czech Colony
Managing Partner Sri S/o Sri Hyderabad.
2. Sri Manish Opposite parties
Counsel for the complainant M/s Counsel for the opposite parties M/s
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
MONDAY THE TWENTY FIRST DAY OF JANUARY
TWO THOUSAND THIRTEEN
Oral Order (As per Sri
***
1. The complainant filed under Section 17 of the Consumer Protection Act, complaining deficiency in service against the opposite parties no.1 and 2 and seeking direction to the opposite parties to reimburse a sum of `13,13,546/- towards the amount incurred for carrying out the pending work or in the alternative to provide 1.Fire Safety Equipment to the Building,2.solar fencing and rainwater harvesting pits, 3. Electric cabling to each of the flats Rainwater drainage lines in the cellar and plastering of the duct, 9. To rectify the wall cracks developed in all the flats, 12. To carry out terrace water proofing works, 13. To clean and polish the corridors, to put To change cellar parking tiles, 19. To segregate various cables like power, TV, telephone and replacement of TV & Telephone cable to Sunrise Apartment, 21. To replace flush doors of flat no.403 with BT wood, or in the alternative to pay `81 To demark the car parking area as per GHMC approved plan, 24. `2 lakhs and 25. To pay costs of `25,000/-
2. The averments of the complaint are that the opposite party no.1 is a partnership firm consisting of 7 partners who are the owners of the building bearing door number 23/A, at 2300.50 The partnership deed of the opposite party no.1-firm was executed on 15.06.2006 with
3. Being induced by the representations made by the opposite party no.1 firm, the members of the complainant-association entered into individual agreements in pursuance of which sale deeds were executed and the opposite party no.1 firm handed over the flats commencing from the month of June,2010 till May, 2011. The complainant association was registered on 2.12.2010 under A.P. Societies Registration Act, 2001 with the main objective of maintaining the apartments looking after the welfare of its members.
4. The members of the complainant association brought to the notice of the opposite party no.1 firm of the common pending work and internal flat problems and on 16.08.2010 they submitted representation to the opposite party no.1 firm requesting them to provide 2” Municipal water connection, to install 80 KVA DG set, to replace bore well and sump motors, not to permit any flat to be used for commercial purpose, to provide office space to the complainant association, intercom facility, air conditioned gymnasium, jogging track and the copies of approved plan. The complainant addressed letter dated 26.09.2010 requesting the opposite party no.1 to attend the meeting to be held on 28.09.2010 for the purpose of discussing critical problems.
5. The complainant association held meeting on 31.10.2011, 21.05.2011 and on 27.05.2011 and the managing partner of the opposite party no.1 firm attended the meeting held on 31.10.2011 and he assured that the problems would be attended to. As most of the problems were not solved, the complainant association has submitted representation to the opposite party no.1 firm on 16.07.2011 demanding the first opposite party to take necessary action in regard to providing jogging track, equipment for air conditioned gymnasium. 2” another bore well remained not functional or pay an amount of `43,80,000/- and reimburse an amount of `12,18,546/-. The opposite parties have given reply on 5.08.2011 denying the contents of the representation of the complainant association.
6. The complainant association had undertaken reconstruction of the sump as both bore wells provided by the opposite parties got dried up and since not plastered. Solar fencing is necessary since three attempts of robbery had taken place. A room for security guard is necessary for him to sit, eat and change his dress.
7. The opposite party acknowledged that there was seepage from the terrace and failed to rectify the seepage. The opposite parties have not taken all the flat owners into confidence while allotting the car parking place and they allotted the car parking place without any order or sequence. The opposite parties 78 car parking lots against the 38 car parking slots in the approved plan. The opposite partied have failed to allot two wheeler parking area and visitors’ car parking area. Seepage is caused in three flats, Flat Nos. 108,208 and 405 due to the wall, paint and wooden furniture in the flats were got damaged. Ventilation of duct, lightening conductor to the building and earthling have to be provided and electrical cables from meter to the flats is to be replaced.
8. The HMWS & SB issued notice to the opposite parties on 31-01-2011 to pay an amount of `21,57,750/- for providing 50mm water supply connection and sewerage connection to the building and the opposite parties have paid a sum of `17,40,746/- to the HMWS & SB due to non-payment of the balance amount of `3,65,000/- by the opposite parties , the HMWS & SB has stopped releasing municipal water connection and drainage connection to the building. The complainant-association has paid the amount of `3`3,35,000/-. The complainant on passing on intimation to the opposite party has constructed another sump in the cellar by incurring an amount of `3`22,000/- towards generator flat from bed and exhaust fighting and `2`2,10,000/- for purchasing water from December,2010 till June,2011. The opposite parties are liable to reimburse `12
9. The opposite parties are bound by their representation in the brochure. The opposite parties cannot give up construction of jogging track for construction of stair case. The opposite parties have provided the Gym in the area meant for parking of two wheelers. The GHMC while granting approval specified the specifications and the amenities to be provided by the builder. Failure to provide the mandatory requirements amounts to deficiency in service and unfair trade practice. The complainant has obtained estimation from M/s Happy Homes Designers for carrying out the pending work for an amount of `1,38,46,000/- which included `5,00,000/- for cellar parking tiles, `17,00,000/- towards office room and `61,00,000/- towards visitors parking lots. The complainant association constructed the security room and got plastered the compound wall by spending `80,000/- and `15,000/- respectively. For the Flat No. 403 the opposite parties have to provide BT wood polishing.
10. The opposite parties have resisted the claim on the premise that the complaint is not maintainable and the relief sought for is beyond the scope of this Commission and that the complainant has exaggerated the claim. The complainant has no authority to file the complaint as it is beyond the scope of its object and activities. The representative of the complainant-association has no proper authority to file the complaint. The complainant has created documents for the purpose of filing the complaint. The complainant has suppressed facts and abused process of law. The averments of the complaint do not make out any cause of action. The complaint is an effort of two individuals to coerce the opposite parties to yield to their illegal demands.
11. The first opposite party is a registered partnership firm registered on 27.03.1993 and it had executed prestigious projects in the State of Andhra Pradesh some of which include Sunrise
12. The first opposite party issued Brochure with clearly stating that it is a conceptual presentation of the project and not a legal offering and the first opposite party can modify the project as warranted by the circumstances and in accordance with the sanction plan and that the purchaser has to bear the electricity transformer charges, Drainage charges etc., The first opposite party and the purchasers are bound by the terms of the Brochure. The specifications mentioned in the Brochure are promised to offer and not the items under the caption “Highlights of the project” as the highlights of the project are provided subject to the circumstances and the same can be modified or withdrawn in view of the reservation of the first opposite party. The flat owners of the complainant association cannot seek for any relief beyond the specifications mentioned in the Brochure.
13. The flat owners themselves approached the first opposite party and after verifying all documents such as sanction plan, they entered into agreement of sale and subsequently got executed the sale deeds. The flat owners of the complainant association and the first opposite party are bound by the terms and conditions of the agreements of sale and sale deeds. The Brochure, agreement of sale and sale deed are in conformity and they show that all the facilities mentioned in the Brochure were provided by the opposite parties. Though it is not provided in the specifications, the first opposite party planned to provide Jogging Track and collected special soil for the purpose. The members of the complainant association requested the first opposite party to do away the Jogging Track and provide stair case connecting the main road in the front and rear side of the complex.
14. Acceding to the request of the flat owners, the first opposite party constructed the stair case by incurring expenditure to the tune of `3,00,000/- which is three times more than the amount required for providing a Jogging Track. Without the stair case which was requested to be provided, the flat owners can use the cellar entrance provided as per the sanction plan to go to their respective flats. The space intended to be utilized for Jogging Track was utilized at the request of the flat owners to raise stair case in the front and back portion of the building. The first opposite party is still open to provide jogging track if the complainant association would insist on for the same by demolishing the stair case. It is left to the complainant association to choose whether its members are in need of stair case or jogging track.
15. After entering into agreement of sale with various flat owners and before executing the sale deeds, the first opposite party at their request made by the flat owners certain changes to the individual flats, common facilities and amenities as also it has provided additional facilities. Various flat owners are still due amounts to the opposite parties and the complaint is an attempt to avoid the payments to the first opposite party. Majority of the flat owners do not have any grievance against the opposite parties. The GHMC has granted sanction in accordance with the permit dated 31.01.2008 which provides for the height of the building to the extent of 14.95 meters and the first opposite party has constructed the building as per the sanction plan. The Building Byelaws and Fire Safety Act would not obligate the first opposite party is not obligated to provide sprinklers, fire safety equipment as demanded by the complainant association.
16. The first opposite party after execution of the project applied to the GHMC on 2.01.2010 for issuance of “No Objection Certificate” and the GHMC after being satisfied with the compliance of terms of the sanction plan and the statutory provisions , issued “Occupancy Certificate “ on 12.04.2010. The complainant cannot claim as against to the compliance of the statutory provisions. The claim of the complainant association that it had erected the tiles in the cellar and incurred expenditure is incorrect. Though it is not legally obligated to do, the first opposite party has erected the tiles in the cellar and ramp etc. and laid granite slabs in the corridors, common areas and the flat owners should have paid the amount incurred by the first opposite party.
17. Even assuming without admitting, the complainant association has no financial capacity in the first year of its incorporation does not have financial strength to take up the alleged work and the complainant association has no right or authority to execute any work without notice to the first opposite party, said to have been carried out. The opposite parties have not received any correspondence from the complainant except the letter dated 16.07.2011 for which reply was given.
18. The sump capacity for 40 Flats is maximum of 15
19. The first opposite party has constructed the compound wall and plastered it and at the request of the flat owners, the height of the compound wall was raised and the raised portion of the compound wall was not plastered. Construction of solar fencing was not promised nor the first opposite party assured for the same. The opposite parties are not liable to provide the solar fencing. Solar fencing is not mentioned in the specifications. Construction of room for security personnel is not part of agreement
20. The first opposite party has done water proofing and it is up to the complainant association to maintain the normal wear and tear whenever it is required. Car parking lots were allotted after conducting negotiations with the flat owners. Sanction plan mandates that the first opposite party should provide car parking in the cellar and the same has been complied by the first opposite party. The claim for `61 lakh would show the intention of the complainant association to enrich itself. The first opposite party has not promised to provide visitors’ car parking place. The first opposite part has provided two wheeler vehicles parking as promised in the agreement. Every inch of the land was utilized for the project as per the terms of the sanction plan and as per the requirement of the flat owners.
21. There cannot be any seepage from the top of the flats bearing Nos. 108 and 208. The flats had been occupied 1 ½ years ago and it is up to the flat owners to maintain and resolve minor problems, if any. The ducts are open to sky and are surrounded all through and they are not exposed and it is difficult now to plaster the ducts. There is no mention of lightening conductor in the contract or agreement. The opposite party no.1 had provided earthling to the entire building complex and it is common to all flats. The provision for earthling for individual flat owners is neither mentioned in the specifications not sanction plan issued by GHMC.
22. The first opposite party has provided electric cables as per the requirement and designs given by Electricity Department and they do not require any replacement. The office space for the complainant association is not mentioned in the sanction plan or building bye-laws. It is the look out of the complainant association to make some space within the building. The first opposite party has made all due payments and as per Clause 11 of the sale deed it is for the flat purchasers to pay the required amounts for electricity power lines, generator, drinking water connection, laying of sewerage connection etc.,
23. The first opposite party has applied for 1 ½” Municipal Water Connection and paid the requisite fee. After the first opposite party paid the amount, the members of the complainant association approached the opposite party no.1 and informed it that they would influence the official of the department concerned and get 2” pipe line for the same amount. The first opposite party has left the matter to the flat owners and due to their inept handling of the issue, Water and Sewerage Department has demanded the first opposite party to pay additional amount of `21,05,750/- as against the amount of `17,40,746/-. The complainant association cannot demand for the excess amount paid by it to the Water Board for getting the sanction of 2” water connection as against the 1 ½” water connections.
24. In the notice dated 16.07.2011 the complainant has that the first opposite party has promised to provide 2” pipe
25. The elevator with capacity of 6 passengers was provided by the first opposite The allegation that the elevator is of substandard quality is incorrect. Malfunctioning of the elevator may be due to various reasons such as mishandling by the flat owners and as the elevator is within the warranty period, the complainant can approach the manufacturer for rectifications of defects if any. Though it is not mentioned in the specifications, the first opposite party at its expenses provided a 25 KV DG set.
26. The individual flat owners after satisfying themselves with the construction of the building in accordance with the specifications and sanction
27. On behalf of the complainant association its Secretary,
28. The counsel for the complainant filed written arguments.
29. The points for consideration are:
i) Whether there is any deficiency in service on the part of the opposite parties?
ii) To what relief?
30. POINT NO.1: The first opposite party is a partnership firm and the owner of the land upon which the building “Sunrise Park” was constructed after obtaining permission from the Greater Municipal Corporation of Hyderabad on 4.-02-2008 and the members of the complainant association have entered into agreements on various dates and got executed sale deeds on different dates in respect of the respective flats. The complainant association was formed and registered under the A.P. Societies Registration Act on 2-12-2010.
31. Maintainability of the complaint is challenged on the premise that the complainant-association has no locus
32. The certificate of registration bearing document number 971 of 2010 would show that the complainant association is registered under the Andhra Pradesh Societies Act, 2001 on 2.12.2010. The complainant association has not filed its Byelaws despite the challenge as to the maintainability of the complaint on the aspect of the relief sought for beyond the scope of its objects. In the 3rd paragraph of the complaint, it is averred that the objective for formation of the complainant association is maintenance and welfare of the flat members.
33. The secretary of the complainant association in his affidavit which is replica of the complaint has stated that:
“The complainant association is registered on 2-12-2010 under A.P. Societies Registration Act, 2001 with Reg.No.971/2010 with the main objectives of maintaining “SUN RISE PARK’ apartment and for the welfare of their members”.
34. Thus, the objective of formation of the complainant association is for the maintenance of the building and welfare of its members. Admittedly, the complainant association has sought for relief in respect of internal issues relating to individual flats. In absence of any evidence to establish the main objective of the formation of the complainant –association can be that the complainant association would be the administrator of common services such as elevator, transformer, corridors, passages, drainage, water supply, maintenance of bore wells.
35. The secretary of the complainant association in his affidavit has stated that there are common pending work and internal flat problems. He has stated that:
“I further submit that there are several common pending works and internal flat problems to be rectified by the O.Ps”.
36. The complainant has not filed any authorization from the individual flat owners to seek We find acceptable force in the contention of the learned counsel for the opposite parties as the complaint is filed seeking several reliefs which included the rectification of defects in individual flats.
37. POINT NO.2: The complainant association has sought for reimbursement of a sum of `13,13,546/- said to have been incurred for carrying out some of the pending work and it has claimed an amount of `81,00,000/- or for rectifying the defects such as providing Fire Safety Equipment, Solar fencing, lightening arrestor, electrical cabling, jogging track etc.,. The opposite parties have denied their liability either to pay any amount or to carry out any of the work shown in the complaint. The complaint association has relied upon the specifications and amenities mentioned in the brochure and the approved plan whereas the opposite parties besides relying upon the documents filed by them, they have also relied upon the agreement of sale and the sale deed filed by the complainant association.
38. The opposite parties have contended that “Brochure” is conceptual presentation of the project and not a legal offering and the first opposite party can modify the project as warranted by the circumstances and in accordance with the sanction plan. The complainant has contended that the opposite parties are bound by the representation made in the “Brochure”. In the light of the statement of the first opposite party that the first opposite party and the purchasers are bound by the terms of the Brochure, there cannot be any dispute as to the terms of the Brochure.
39. The learned counsel for the opposite parties has distinguished the specifications mentioned in the Brochure from the items mentioned under the caption “Highlights of the Project”. He has contended that the specifications mentioned in the Brochure are mandatorily to be complied whereas the items mentioned under the caption, “Highlights of the Project” are optional and depend upon the circumstances. He has submitted that the Brochure is not legal offering and it is subject to modification as warranted by the circumstances.
40. The learned counsel for the complainant has submitted that the Brochure is part of the promise made by the opposite parties and he has relied upon the decision of the
“Therefore, it cannot be said that the contained in the contract would only prevail and not the terms of the brochure which is an alluring promise given by the builder. If the contention of the learned counsel for the DLF is accepted that the terms of the agreement would prevail and not what is stated in the brochure, then it would amount to misleading advertisement with false promise to lure the needy prospective buyers. This would also be unfair trade practice as provided under Section 2(1 Such brochure also gives undue advantage to the builder vis-à-vis other builders. Hence, the said contention cannot be accepted”.
41. The specifications mentioned in the Brochure are:
Specifications
STRUCTURE R. C. C. Framed structure
SUPER STRUCTURE
ALL DOORS Best Teak wood frame with Best Teak
wood shutters with polish.
WINDOWS Best Teak wood frames and Teak wood
shutters including polish with glass and safety grills with brass fittings.
FLOORING Marble slabs / vitrified ceramic flooring.
KITCHEN Cooking platform in Black Granite with steel
sink, 3 height ceramic / glazed tiles dado, with chimney.
TOILETS Glazed concept tiles dado
All toilets will have imported ceramic wash
Basin, EWC/IWC, wall mixer, shower point,
Geyser with
ELECTRIFICATION Concealed copper wiring in PVC Conduits
with modular switches. 1.5
bedroom, MCB & ELCB for each distribution
board.
PAINTING
ceiling, (except kitchen, toilet & balcony
with plastic
wall with acrylic emulsion. With Anti
fungal Water proof.
ELEVATION Good Elevation treatment in two side
with texture paints.
LIFT Six passengers lift with V3F technology
with generator back up.
GENERATOR D. G. Set Backup with Acoustic enclosure
& A. M. F. For common area and 2 points
in each flat.
WATER SUPPLY Bore-well & municipal water from
overhead tank.
TELECOM Telephone points in bedrooms, living &
intercom facility to all the units.
42. The “Highlights of the Project” mentioned in the “Brochure” are
High Lights of the Project:
v Air Condition Gym jogging Track
v Children Play area
v Intercom special Facility
v Generator Backup for lift, Common lights, Each flat consisting of fan and light
v All door and windows with B. T. Wood with polishing
v Imported ceramic / Jaguar fittings.
43. The opposite parties have contended that the purchaser has to bear the electricity transformer charges, Drainage charges etc., the first opposite party. The flat owners of the complainant association cannot seek for any relief beyond the specifications mentioned in the Brochure.
44. The learned counsel for the opposite parties has contended that the flat owners themselves approached the first opposite party and after verifying all documents such as sanction plan, they entered into agreement of sale and subsequently got executed the sale deeds. The flat owners of the complainant association and the first opposite party are bound by the terms and conditions of the agreements of sale and sale deeds. The Brochure, agreement of sale and sale deed are not in conformity and they show that all the facilities mentioned in the Brochure were provided by the opposite parties. Though it is not provided in the specifications, the first opposite party planned to provide Jogging Track and collected special soil for the purpose. The members of the complainant association requested the first opposite party to do away the Jogging Track and provide stair case connecting the main road in the front and rear side of the complex.
45. The amenities promised to be provided as mentioned in the Brochure are superseded by the amenities mentioned in the agreement of sale and those mentioned in the agreement of sale are being amended by those mentioned in the sale deed. At every stage commencing from the time the Brochure was issued till the sale deed was executed the terms of the contract had been kept changing by the understanding between the complainant and the members of the complainant association. The complainant association was not in existence when the terms of the contract were crystallized in phased manner from the time of release of the Brochure till the sale deeds were executed.
46. The secretary of the complainant association has stated that the members of the complainant association held meetings on 31.10.2010, 21.05.2011 and 27.05.2011 to discuss the problems they face and the managing partner of the opposite party no.1 firm participated in the meeting held on 31.10.2010 and assured them that the first opposite party would address to the problems.
47. There has been no correspondence between the parties except the letter dated 16.07.2011 which does not contain any recital as to the meetings stated to have been held on 31.10.2010, 21.05.2011 and 27.05.2011. The opposite parties have denied participation of the managing partner of the first opposite party firm. The complainant association has filed letters dated 16.08.2010 and 26.09.2010 said to have been sent to the first opposite party the receipt of which has been denied by the first opposite party. In these two letters there is no mention of the sump or any problem thereof.
48. The secretary of the complainant association has stated that the complainant association reconstructed the sump as both bore wells provided by the opposite parties were dried up the sump could not be filled up with
49. The complainant is not clear whether it has reconstructed the sump or constructed a new sump. There is no mention of reconstruction of sump or construction of new sump in the two letters dated 16.08.2010 and 26.09.2010 and for the first time we come across the problem related to the sump in letter dated 16.07.2011,i.e., after seven months of registration of the complainant association and it is stated at page 2 of the letter ;
“1) Re-construction of the sump: We had to undertake the reconstruction of the sump ourselves as both the Bore wells that were provided by you, were non-functional & dried up and the
50. The secretary of the complainant association has stated that the complainant association has reconstructed the sump and constructed a new sump as against what is stated in the letter dated 16.07.2011. He has stated
“The complainant association is vexed with the problem of severe water shortage for more than 4 months, had Moreover, part of the sump was jutting into the main road which was against the GHMC norms. The representative of the builders had come and initiated the work by breaking the coconut for new sump construction on So it was left for the complainant association to carry out the construction
51. The statement of the secretary of the complainant association when tested on the anvil of the letter dated 16.07.2011 addressed to the opposite parties by the complainant association would go to show that no new sump was constructed .The secretary of the complainant association has stated that:
“It is further submitted that it is meaningless on the part of the O.Ps to contend that they constructed the sump at higher level only with an intention to avoid rain water coming into the sump. The O.Ps ”.
52. Contrary to what is stated that the opposite parties have provided two bore wells which in fact is supported by the contents of the letter dated 16.07.2011 the relevant portion of which has been extracted herein above, the secretary of the complainant association has gone on stating that the opposite parties have provided one bore well and the same statement is repeated in the written arguments as also the complainant association has claimed a sum of `3,75,000/- under the estimate for providing alternate bore well.
53. The complainant has contended that the opposite parties have not taken up construction of the compound wall towards southern side of the Building and left it not plastered. The opposite parties have submitted that they had constructed the compound wall as per the specifications and the members of the complainant association had requested the first opposite party to raise the height of the compound wall on the southern side of the building. The learned counsel for the opposite parties has contended that raising of the height of the southern compound wall of the building is not a part of the contract and the complainant cannot seek as a right for plastering the raised portion of the compound wall.
54. It is not the case of the complainant that the opposite party no.1 has not constructed the compound wall at all. The second opposite party has stated
“Opposite party had constructed the compound wall and has also plastered the same. On the request of the Flat Owners height of the compound wall was increased that is where the plastering was not done. It is submitted that construction of solar fencing was never promised nor any assurance was given for the same. It is further submitted that nothing is mentioned about solar fencing in
55. The complainant has not denied that the southern side of the compound was raised in height and the raised portion of the compound wall was to be plastered which is beyond the scope of the contract and so is the solar fencing.
56. The room for security guard constructed by the opposite party no.1 was dismantled by the first opposite party on objection being raised by the members of the complainant association. The statement of the second opposite party that the room constructed for the security guard was dismantled on the objection of the flat owners is
“It is submitted that construction of room for security personnel was neither part of the agreement nor sanction plan. However, Opposite Party No.1 considering the situation of security personnel has constructed room with
57. The second opposite party has stated that though it is not provided in the specifications, the first opposite party planned to provide Jogging Track and collected special soil for the purpose. The members of the complainant association requested the first opposite party to do away the Jogging Track and provide stair case connecting the main road in the front and rear side of the complex. There is no denial of the fact. It is not denied that the first opposite party collected special soil for the purpose of providing Jogging Track and the members of the complainant association requested the first opposite party to do away the Jogging Track and provide stair case connecting the main road in the front and rear side of the complex and acceding to the request of the flat owners, the first opposite party constructed the stair case by incurring expenditure to the tune of `3,00,000/- which is three times more than the amount required for providing a Jogging Track.
58. The space intended to be utilized for Jogging Track was utilized at the request of the flat owners to raise stair case in the front and back portion of the building. Having raised objection as to construction of the room for security guard and making the room constructed for the security guard and to do away jogging the complainant is estopped from seeking room for security guard or for reimbursement of any amount said to have been spent for construction of the room for security guard and seek for another stair case. The complainant association cannot approbate and reprobate.
59. In regard to the water proofing of the Terrace and seepage, the complainant association has stated that the water seepage from the terrace was shown to the first opposite party and the opposite parties have agreed to rectify the defects and that there had been severe seepage occurred in three flats bearing nos.108
60. The opposite parties submitted that they had done the water proofing to the Terrace of the building and it is for the complainant association to maintain the normal tear and wear as and when required that there cannot be any seepage from the top of the flats bearing nos.108 and 208. The learned counsel for the opposite parties has contended that the flats had been occupied 1 ½ years ago and it is for the individual flat owners to resolve any minor problems and maintain their respective flats. The complainant has not examined nor did it file any expert to show that there has been seepage of water from the terrace of the building. What is stated in the affidavit of the secretary of the complainant-association is denied by the second opposite party by filing his affidavit. It is a case of oath against oath and the complainant association has not adduced any evidence to the effect that there has been seepage from the top of the building.
61. The complainant association has contended that at the time of allocating car parking space, the opposite parties have not taken into confidence all the flat owners and the flat owners have been keeping their cars as per their convenience. The second opposite party has stated that they have provided car parking slots to all the flat owners and every inch of the land was utilized as per the requirement of the flat owners. The learned counsel for the opposite parties has contended that none of the opposite parties have retained any land for parking or for any other purpose.
62. It is not the case of the complainant that the opposite parties have not allocated the car parking slot. The complainant association has not pointed out a single flat owner whom the car parking space is not allocated. It is not disputed that the opposite parties have not retained any land meant for the parking slots. As such the contention of the complainant that the car parking slots are not allotted to the flat owners is not sustainable.
63. The learned counsel for the complainant association has contended that the complainant association has paid the bill for the month of December,2010 an amount of `39,846/- and for release of water connection and drainage facility by HMWS &SB a sum of `3,65,000/-. The learned counsel for the opposite parties has submitted that the opposite parties have paid an amount of `17
64. The complainant association cannot claim for reimbursement of charges for electricity bill for the month of December, 2010 in the light of clause 4 of the sale deed which runs as under:
“The vendor/s
65. The sale deed was executed on 13.11.2009 and the purchaser who is the owner of the flat bearing number 106 in the building has signed the sale deed agreeing to abide by the terms and conditions incorporated therein. Few terms of the sale deed which estop the complainant association are extracted herein below:
“The Vendee/s have satisfied himself of the title of the property of the Vendor/s and shall not hereafter be entitled to raise any questions, disputes, claims or demands in respect of the same to claim any compensation or damages on account thereof. The Vendee/s have taken the physical possession of the said flat after getting satisfied about the construction of the complex, the quality of the material, design and confirm that the plans of the complex under references are satisfactory and according to the sanctioned plan of the Municipal Corporation of Hyderabad and in token of the Vendee/s having agreed to abide by the obligations set out hereunder, the Vendee/s is signing this deed.
The Vendee/s shall pay to the Society / Association his share of amount towards membership / subscription fee and such other charges for management, administration, maintenance of the common services and insurance
The Vendee/s further covenants with the Vendor/s and though them to the Vendee/s of the other flats / premises that he shall not demolish or caused to be demolished any portion or part of the said flat hereby conveyed to him or construct any others structures in the said building nor shall he at any time make or cause to be made any new construction or alternation of whatsoever nature in the schedule mentioned premises.”
66. The complainant association cannot seek for the relief and the like which would be contrary to the terms of the sale deed and any oral assertion against the contents of the document is prohibited. The terms of the contract reduced into writing and the sale deeds were registered in the office of the Sub-Registrar. The complainant association cannot seek for relief or make statement against the terms of the registered sale deed.
67. The learned counsel for the complainant association has contended that the opposite parties have not provided Fire Fighting Equipment to the building. The learned counsel for the opposite parties has submitted that there is no obligation on the part of the opposite parties to provide such equipment in absence of any contract thereto more so when statute does not require the opposite parties to provide the equipment. The learned counsel for the complainant referred to Rule 15 of the A.P. Apartments (Promotion of Construction & Ownership) Rules
68. Rule 15 of the .Apartments (Promotion of Construction & Ownership) Rules
Section 13 of AP FIRE SERVICE ACT, 1999 reads as under:-
1. Any person proposing to construct a building of more than 15 meters height for commercial/ business purpose, 18 meters and above height for residential purpose and buildings of public congregation like schools, cinema halls, function halls, religious places which are more than 500Sq.Meter in plot area or 6 meters and above in height shall apply to Director General or any member of the service duly authorized by him in this behalf, before submission of such building plans to the authority or officer competent to
69. The building in question as seen from the permit and sanction plan is 14.95
70. It is not denied that in accordance with the choice and priority indicated by the members of the complainant association, the opposite parties have carried out modification to the individual flats and they had provided amenities which are not mentioned in the Brochure, Agreement of sale or Sale deed. The additional work carried out by the opposite parties is mentioned in Annexure I of the affidavit of the second opposite party. The complainant has not disputed the additional work executed by the opposite parties. The opposite parties have stated that they had carried out the additional work at their cost. The additional works mentioned in the Annexure-I :
1) Artist work in elevation, sunrise designs and tree design at the entrance which is on the lift walls. It
2) Greenery around the total building at the expenditure of
3) First quality designer parking tiles laid in cellar, ramp instead of normal titles and flooring at an additional cost of Rs.34) Children play area was constructed with 5) Balcony grills was given in G1, G2, G4, G5, G7, 405 flats for security purpose.
6) Post boxes were given in cellar with SS boards and iron safety grills to power panel boards with additional cost of Rs.75
71. The opposite party no.2 has stated that the members of the flat have not paid the amounts for the additional work carried at their instance at their respective flats. The secretary of the complainant association has denied that the members of the complainant association were due any amount to the first opposite party. The second opposite party in the Annexure-II of his affidavit has stated the amount from the following members.
ANNEXURE II
Sl.No | Flat. No | Amount | Reason |
1 | 106 | 4.75 lakhs | False ceiling, shelf work and additional works. |
2 | 108 | 9.65 lakhs | Complete modification |
3 | 203 | 4.5 lakhs | False ceiling, shelf work and additional works. |
4 | 204 | 4.92 lakhs | Shelf work, Bathroom modifications and additional works. |
5 | 208 | 9 lakhs | Complete flat modifications, all doors changed and additional works. |
6 | 301 | 8.26 lakhs | False ceiling, Bathroom, |
7 | 304 | 7.14 lakhs | False ceiling, shelf work, bathroom modifications and additional works. |
8 | 307 | 4.15 lakhs | Granite in kitchen and additional works. |
9 | 408 | 5.54 lakhs | False ceiling, kitchen, granite, doors and additional works. |
72. The members have not filed affidavit denying the statement of the opposite parties that they have been due the amounts. The second opposite party had specifically stated that the members of the complainant association had not paid the amount due which is shown in the annexure II of his affidavit. The amounts mentioned in the annexure II have been extracted hereinabove. The amounts due from the members of the complainant association to the opposite parties cannot be made subject matter of the complaint. However, it can be a fact to have impact upon the claim of the complainant association as being defaulter, and having advised the opposite parties to carry out the modification in their respective flats against the terms of the agreement of sale as also the sale deed.
73. The complainant has obtained estimation from M/s Happy Homes Designers for carrying out the pending work for an amount of `1,38,46,000/- which included `5,00,000/- for cellar parking tiles, `17,00,000/- towards office room and `61,00,000/- towards visitors parking lots. The opposite parties would contend that the complainant has exaggerated the claim and suppressed the facts and abused the process of law.
74. The complainant claimed the value of the land as seen from the pleading and the estimation prepared by M/s Happy Homes Designers. In paragraph 14 of the affidavit of the secretary of the complainant association and in the complaint the amount as to the land value is claimed despite the fact that the land value cannot be claimed as the land is in possession of the complainant association and its members. The complainant has not approached this Commission with clean hands and without any bona fides.
75. The secretary of the complainant-association has stated in his affidavit as under:
“I further submit that on 24.07.2011, the complainant obtained an Estimation for Rs.1 In the said Estimation, an amount of rs.5,00,000/- was estimated for cellar parking tiles, Rs.17,00,000/- towards office room (including land) and Rs.61,00,000/- towards visitors parking (including land)”.
76. The person approaching the Forum or Court with unclean hands cannot be held entitled to any relief. He has to be fair and should not conceal any fact which lends support to his claim in any manner whatsoever affecting the rights of the opposite parties and he cannot be heard to say that the opposite party rendered deficient service on account of which he suffered inconvenience.
77. In “M/s United Phosphorus Ltd application filed without any justifiable cause is liable to be dismissed with costs. The complainant filed the complaint stating that the pesticide he purchased and sprayed on his cotton crop was defective and damaged the crop. The District Forum dismissed the complaint whereas the State Commission allowed the appeal and the National Commission dismissed the revision filed by the manufacturer and dealer of the pesticide holding that they have not been able to show any justifiable cause to file review and they have not made out any case to justify review. The National Commission dismissed the review awarding costs of Rs.5
78. The National Commission in its subsequent decision in “
79. In the result, the complaint is dismissed. The parties shall bear their own costs.
MEMBER
MEMBER
Dt.21.01.2013
KMK*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant for opposite parties
NIL EXHIBITS MARKED
For complainant
Ex. A1 Certification of Registration of the complainant.
Ex. A2 Brochure of Sunrise Park
Ex. A3 Joint Representation dated 16.08.2010
Ex. A4 Joint Representation dated 26.09.2010
Ex. A5 Representation dated 15.04.2011
Ex. A6 Representation dated 16.07.2011
Ex. A7 Letter of O.P.s date 26.07.2011
Ex. A8 Reply Legal Notice date 05.08.2011l
Ex.A9 Estimation issued by Happy Homes Designers date 24.07.2011
Ex.A10 Water Purchase Expenses Summary
Ex.A11 Cash Memo No.4461, date 05.03.2011 of
Ex.A12 Cash Memo No.4462, date 05.03.2011 of
Ex.A13 Cash Memo No.1344 date 09.03.2011 issued by Ex.A14 Cash Memo No.1346 dated 09.03.2011 issued by Ex.A15 Bill date 21.03.2011 issued by Bajaj Electronics
Ex.A16 Invoice No.14965 date 08.03.2011 of
Ex.A17 Invoice No.14968 date 08.03.2011 of
Ex.A18 Generator Expenses Ledger Account
Ex.A19 Generator piping expenses of K. SQUARE POWER TECHNOLOGIES.
Ex.A20 Tax Invoice No.735 date 29.06.2011 of Revolve Engineers
Ex.A21 Representation date 08.08.2011 of Smt. G. Indira Devi
Ex. A22 D. D. bearing No.969236 date 04.02.2011 for s. 3
Ex.A23 HMWSSB Intimation date 28.01.2011
Ex.A24 DD Bearing No. 688366, date 03.02.2011
Ex. A25 Certificate of Registration of O.P1
Ex.A26 Partnership Deed date 15.06.2006 of O. P. No 1
Ex.A27 Agreement of Sale dated 22.10.2009
Ex.A28 Sale Deed date 13.11.2009
Ex.A29 Photos
For opposite parties
Ex.B1 Letter issue the commission and special GHMC,
Ex.B2 Reply letter from GHMC of
Ex.B3 Letter of Hyderabad metropolitan water supply & sewerage Board, dated 10.07.2007
Ex.B4 Building permit order of date 31.01.2008
Ex.B5 Letter Central Power of Distribution company of A.P. date 10.12.2009
Ex.B6 Quotation for electrical work letter, date 29.10.2009
Ex.B7 Generator Receipts of Sri Lakshmi Agencies, dated 06.09.2010, 19.10.2010 and invoice Receipts.
Ex.B8 ALG Telecom Services Sales & Services of Telecom products Invoice date 25.03.2011
Ex.B9 Tax Invoice of Ex.B10 Electricity Bills of Bench
Ex.B11
Ex.B12
Ex.B13 MFR/FRP Roof Light sheets, dated 26.05.2010
Ex.B14 Nippon Projects Quotation date 01.09.2009
Ex.B15 Detailed
Ex.B16 Detailed
Ex.B17 Statement for service Line Charges and Development charges
Ex.B18 Xerox copy of Ex.B19 Estimate for extension of supply to 40 Nos. 3 phase each 5 KW Domestic load.
Ex.B20 Estimate for extension of supply to 40 Nos. 3 phase each 5 KW Domestic load.
Ex.B21 Report to
Ex.B22 Detailed Estimate for H. T. System
Ex.B23 Detailed Estimate for L. T. System
Ex.B24 Statement for service line charges and development charges
Ex.B25 APCPDCL Payment Receipt
Ex.B26 Letter from The Electrical Inspector, Mint compound, hyd.
Ex.B27 M. V. Load Details
Ex.B28 Invoice cum Ex.B29 Transformer Routine Test Certificate
Ex.B30 Deposit Contribution Works
Ex.B31 Report to Accompany the Estimate
Ex.B32 Detailed Estimate
Ex.B33 Letter from Superintending Engineer, Hyd.
Ex.B34 Quotation for Electrical Work
Ex.B35
Ex.B36 Sri Lakshmi Agencies invoice.
Ex.B37 Sri Lakshmi Agencies Receipt
Ex.B38 Sri Lakshmi Agencies Receipt
Ex.B39 ALG Telecom Services.
Ex.B40 Jai
Ex.B41 Jai
Ex.B42 Jai
Ex.B43 Jai
Ex.B44 Jai
Ex.B45 Jai
Ex.B46 Jai
Ex.B47 Jai
Ex.B48 Jai
Ex.B49 Jai
Ex.B50 Jai
Ex.B51 Jai
Ex.B52 Jai
Ex.B53 Jai
Ex.B54 Jai
Ex.B55 Jai
Ex.B56 APCPDCL Electricity Bill
Ex.B57 APCPDCL Electricity Bill
Ex.B58
Ex.B59
Ex.B60
Ex.B61
Ex.B62
Ex.B63
Ex.B64 Electricity bill with
Ex.B65 Electricity bill with
Ex.B66 Electricity bill with
Ex.B67 Electricity bill with
Ex.B68 Electricity bill with
Ex.B69 Electricity bill with
EX.B70 Electricity bill with
Ex.B71 Electricity bill with
Ex.B72 Electricity bill with
Ex.B73 Tax invoice
Ex.B74 Tax invoice
Ex.B75 Delivery Ex.B76 Tax invoice
Ex.B77 Tax invoice
Ex.B78 Tax invoice
Ex.B79 Tax invoice
Ex.B80 Tax invoice
Ex.B81 Tax invoice
Ex.B82 Tax invoice
Ex.B83 Tax invoice
Ex.B84 Tax invoice
Ex.B85 Tax invoice
Ex.B86 Tax invoice
Ex.B87 Tax invoice
Ex.B88 Tax invoice
Ex.B89 Tax invoice
Ex.B90 Tax invoice
Ex.B91 Tax invoice
Ex.B92 Tax invoice
Ex.B93 Tax invoice
Ex.B94 Sri
Ex.B95 Nippon projects
Ex.B96 Sunrise Builders & Developers
Ex.B97 Sunrise Builders & Developers letter
Ex.B98 No due certificate Sunrise Builders & Developers
Ex.B99 letter from Sunrise Builders & Developers
Ex.B100 letter from Sunrise Builders & Developers
Ex.B101 letter from Sunrise Builders & Developers
Ex.B102 letter from Sunrise Builders & Developers
Ex.B103 Acknowledgement of Registration of firm.
Ex.B104 Specifications
Ex.B105 Photo
Ex.B106 Photo
Ex.B107 Photo
Ex.B108 Photo
Ex.B109 Photo
Ex.B110 Photo
Ex.B111 Photo
MEMBER
MEMBER
