BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
C.C.NO.38 OF 2013
Between:
M/s Odyssey Home Owners Association
rep. by its President Sri Nageswara Reddy
Mariyada S/o Sri M.Laxmi Reddy
Aged about 46 years, Occ: Corporate Employee
R/o Flat #502, Aditya Odyssey, Silpa Park
Plot #30, 31 & 32, Kondapur, Hyderabad-084
Complainant
- N D
- M/s Aditya Construction Company India (P) Ltd.,
rep. by its Chairman, Thota Chandra Sekhar Rao
Aditya Mansion, Plot No.A/29, Road No.5,
Jubilee Hills, Hyderabad-33 - M/s Aditya Construction Company India (P) Ltd.,
rep. by its Director Thota Satyanarayana
Aditya Mansion, Plot No.A/29, Road No.5,
Jubilee Hills, Hyderabad-33 - M/s Aditya Construction Company India (P) Ltd.,
rep. by its Director Pagadala Rajesh, Aditya Mansion
Plot No.A/29, Road No.5, Jubilee Hills, Hyderabad-33.
Opposite parties
Counsel for the complainant M/s K.Ramanjaneyulu
Counsel for the opposite parties M/s Legal Matrix
QUORUM:
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER
THURSDAY THE TWENTY FOURTH DAY OF JULY
TWO THOUSAND FOURTEEN
Oral Order (As per Sri Thota Ashok Kumar, Hon’ble Member)
***
1. The complaint C.C.No.38 of 2013 was filed by M/s Odyssey Home Owners Association represented by its President Nageswara Reddy Mariyada on behalf of its members against M/s. Aditya Construction Company India (P) Ltd., represented by its Chairman, Thota Chandra Sekhar Rao and two others.
2. The brief facts of the complaint are that the members of the complainant association agreed to purchase 25 residential flats in the opposite party’s venture and paid the entire amount even before completion of the construction on the assurance of the opposite party that they shall complete the construction as per specifications. According to the allegations in the complaint, the opposite parties failed to make construction within the time stipulated and there was a delay of 10 months in handing over the physical possession of the flats. Due to the delay in delivery of possession of flats the members of the complainant suffered monitory loss of Rs.20,000/- per month towards rent. At the time of purchase of flats by the members of the complainant association, the opposite parties promised to provide diesel generator set duly connecting the Flats of the members to utilize the power generated from the diesel generator set. Though the diesel generator set was fixed after repeated requests of the complainant association the same was not connected to the flats as promised. The complainants’ association incurred 1,20,565/- towards expenditure laying cables to the individual flats. Even though the opposite parties received huge amounts, they did not provide the amenities and has not completed the construction and the construction in time made was defective and they failed to provide the following:
- connecting centralized gas pipeline to each flat duly through testing and install the safety material as appropriate.
- Reimburse the diesel generator wiring expenses
- To provide parking space to Flat NO.205, 101, 105 and 202
- Arrest leakages in few flats, lift area, parking area, portico
- To provide municipal water connection
- To replace damaged club house tiles with water proofing.
- To rectify the water logging in water tank area
- Handover over the blue prints and drawings to the complainant association.
- To pay rent to all flat owners for the delay of 10 months in handing over the possession
- To set up rain harvesting water for the apartment
- To rectify the treadmill in Gym
- To transfer the electricity connections in the name of the members of the complainant.
3. Due to non-providing of the central gas pipe line there was a major accident in Flat no.504 and the owner of the flat incurred 50,000/- expenditure towards rectification of the damages. The opposite parties have informed the members of the complainant’s association that all the flats are constructed as per the plans approved by HUDA and no building regularization is required. The opposite party got the plans approved for single bedroom but constructed three bedrooms. When a member of the complainant approached the SBI for housing loan, the SBI rejected the loan to him on the said ground. The complainants’ association gave the following break up of damage to be borne by the opposite parties.
1. Amounts incurred towards DG set connections to flats Rs. 1,20,565/-
2. Amounts incurred for Flat No.504 (fire accident) Rs. 50,000/-
3. Amounts incurred for water proofing Rs. 20,000/-
4. Amounts incurred to erect portico(gym room) Rs. 16,000/-
5. Rent @ 20,000/- per month per flat Rs.50,00,000/-
(25 flats for 10 months)
6. Paid to Silpa Association for MCH common
Pipe lines Rs. 1,25,000/-
7. Compensation towards inconvenience caused Rs. 5,00,000/-
TOTAL Rs.58,31,565/-
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4. The complainant’s association gave a Lawyer notice dated 11.07.2012 to the opposite parties demanding to complete the works as admitted by the opposite parties and to address all the above issues of the complainant members. Though the opposite parties no.2 and 3 received the legal notice failed to comply with the said demands. Hence, alelging that there is deficiency of service on the part of the opposite parties, the present complaint was filed seeking a direction to the opposite parties to provide the amenities/facilities as per the specifications mentioned in the brochure of the opposite parties and to pay 68,31,565/- towards costs/damages.
5. The opposite parties resisted the case contending that there is no person by name T.Chandrasekhar who is acting as Chairman to Adigya ConstructionCompnay India Pvt Ltd. The opposite parties have has constructed some residential apartments under the name and style as Aditya’s Odyssey situated in Sy.No.58 at Silpa Park situated at Kondapur Village, Seilingampally Mandal. The members have purchased 25 residential flats in Aditya’s Odyssey from the opposite party in the year 2007. All the flats were registered in the year 2007 itself by the opposite parties to the members of the complainant and after registration the concerned flats were handed over to their owners by the builder and thereafter the said owners again handed over the flats to the opposite party no.1 for some interior works and the same were handed over to them in the month of May 2008. The opposite parties provided all the amenities as promised by them at the time of booking. The opposite parties have has installed a diesel generator and provided connections to entire common areas and two points for each flat. The demand of rent to be paid to the members of the complainant by the opposite parties is barred by limitation. After lapse of more than 3 years the members of the complainant made the said demand which was not mentioned anywhere in the documents and not agreed between the complainant and the opposite party. The opposite party provided tread mill in the gym, rain harvesting pit, terrace flooring to the best of its endeavours by deputing concerned workers. The accident in Flat no.504 occurred due to the negligence and carelessness of one of the residents and the same cannot be attributed to the opposite party. The project of the opposite party has been approved by number of nationalized as well as scheduled banks for issuing housing loans and majority of the flat owners have availed the housing loans in the said project. Even after three years of handing over the flats to the complainant flat owners association by the opposite party it is the duty and responsibility of the complainant to carry out maintenance of the project and it is not the duty or responsibility of the opposite parties. The complainant never informed anything to the opposite parties towards its decision that they are proceeding on their own for rectification/correction of works. The flats were handed over in the year 2007 to the members of the complainant and the relationship between the opposite party and the complainant is only the Vendor-Vendee relationship but not of a vendor and consumer. Therefore there is no deficiency of service on the part of the opposite party and thus prayed for dismissal of the complaint with costs.
6. The President of the complainant association filed his affidavit and the documents Exs.A1 to A21 were marked on its behalf. On behalf of the opposite parties, the Executive Director of the opposite party no.2 filed his affidavit and they did not choose to file any documents.
7. Heard both side counsel in detail and both parties have filed their respective written arguments.
The points for consideration are:
- Whether the complaint is barred by limitation?
- Whether there was deficiency in service on the part of the opposite parties?
- To what relief?
8. POINT NO.1: The case of the complainant is that the members of the complainants’ association purchased the flats in the opposite parties’ venture by paying the entire amount even before completion of the construction but the opposite parties completed the construction and handed over the physical possession of the flats with a delay of 10 months. Due to the delay in delivery of possession of flats the members of the complainant suffered monitory loss of 20,000/- per month towards rent. The complainant further alleged that though the diesel generator set was fixed the same was not connected to the flats as promised and due to that the complainants’ association was constrained to incur 1,20,565/- towards laying cables to the individual flats. It is further alleged that even though the opposite parties received huge amounts, they did not provide the amenities and has not completed the construction as per brochure.
9. On the other hand the opposite parties contended that that the complaint is not filed within the period of limitation. All the flats were registered in the year 2007 and flats were handed over to the owners and thereafter the said flats owners again handed over the flats to the opposite party no.1 for some interior works and the same were handed over back to them in the month of May 2008 and that after lapse of more than 3 years the members of the complainant made demand of rent to be paid to the members of the complainant which was not mentioned anywhere in the documents and the cause of action arose in 2008 and the complaint was filed in November 2012 and hence the complaint filed by the complainant is barred by limitation.
10. The complainants’ association contends that after handing over flats to the owners of the association the grievances were represented to the opposite parties by way of mails which are marked in Ex.A2. The mails dated 9.7.2008 and 11.7.2008 reveal that the complainants’ association represented to the opposite parties regarding non-compliance of alleged promises i.e., regarding gym equipment, lounge furniture, watchman change room, blue prints diesel generator, mail box, canopy, deviations and regulations, municipal water, terrace garden, lighting points, car parking maintenance, gym at ground floor and lounge for which the opposite parties sent email dated 12.7.2008 replying that they entrusted the work to Mr.Chandramohan Assistant Manager, Customer Relations of the opposite party and that it is understood that some works were not completed by then. It appears that the complainant again sent email dated 28.12.2008 stating that pending works were not completed for which the opposite parties sent reply dated 3.1.2009. Thereafter the opposite parties sent email dated 24.2.2009 with regard to providing gas connection. Subsequently, the complainant association did not agitate their grievances further. In such circumstances the limitation for agitating alleged grievances of the complainant starts from 24.2.2009 and therefore the complaint should have been filed by 24.02.2011 as per Sec.24(A) C.P. Act but it was not so filed. It appears that to bring the complaint within limitation email dated 13.06.2012 was sent to the opposite parties drawing their attention regarding the following grievances:
1. Installing the centralized gas pi9peline to each flat duly
testing and install he safety material
2. Reimburse the diesel generator wiring expenses that costed us to connect to all the flats (bills will be furnished)
3. Leakages in few flats, Lift area, parking area, portico (association engaged outside vendor to rectify few and bills will furnished for reimbursement
4. Club house tiles to be changed and water proofing to be done
5. Rectify the water logging in water tank area
6. Rent to be paid (as per the market value) to all flat owners
for the delays caused from you side
7. Municipal water connection duly consulting with concerned
authorities
8. Rain water harvesting to be done for the apartment
9. Thread mill in Gym is not working right from Day1, rectify
the same.
11. There is no reference about the amount claimed towards rent in the said email. There is no dependable evidence from the side of the complainant that the opposite parties assured to give such a rent in the event of delay in handing over the flats so also that there was a delay of 10 months in handing over possession of the flats and in such circumstances mere allegation in the complaint claiming rent @ Rs.20,000/- per flat per month totalling to Rs.50,00,000/- is not sufficient for the complainant to say that the flat owners are entitled to such a rent and that apart the claim is barred by time. In Ashok Kumar Sainia vs Delhi Development Authority in FA No. 183 OF 2007 dated 31.03.2013 the HOn’ble National Commission held that :
We have heard learned Counsels for both parties and have also carefully gone through the evidence on record. We note that it is a fact that although the cause of action arose in the year 1983 i.e. when the draw of lots for the Vasant Kunj area under the Self Financing Scheme took place, Appellant filed a complaint before the State Commission in the year 1998. Clearly this case is barred by limitation since as per Section 24A of the Consumer Protection Act, 1986 a complaint can only be filed within two years from the date when the cause of action arose. When we specifically asked the Counsel for the Appellant to explain this delay, including why an application seeking condonation of delay was not filed before the State Commission, he stated that since the Appellant had been corresponding with the Respondent throughout this period and in fact it was the Respondent who delayed in giving a reply to Appellant’s letter, there was no delay in filing the complaint. It was filed within months of the Respondent’s letter dated 24.07.1997 asking the Appellant to file an affidavit for refund of deposit. Prior to that Appellant was hopeful that he would be allotted a flat in South Delhi as requested for. We are unable to accept this contention since it is well established that exchange of letters between the parties does not extend limitation under the Consumer Protection Act, 1986. On the other hand, there are a number of judgments of this Commission as also of the Hon’ble Supreme Court of India, including the most recent in State Bank of India v. B.S. Agricultural Industries (I) [AIR 2009 SC 2210], that Section 24A of the Consumer Protection Act, 1986, which prescribes limitation period for admission of a complaint, is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action.
12. In view of the said decision the correspondence such as email 13.2.2012 and legal notice dated 11.07.2012 are not helpful for the complainant to say that the claim with regard to the said rent is within limitation. The complainant also exhibited two receipts dated 20.06.2011 to say that the association paid 15,000/- and 1000/- to somebody towards portico erection but to whom it is paid has not been mentioned so also the name of the receptionist. In such circumstances the said receipts are also no way helpful for the complainant to say that the complaint is within limitation with regard to other claims. Possibility of bringing such documents in to existence for the purpose of limitation cannot be overruled and hence no credence need to be given for such documents and the opposite parties clearly contended that the bills produced are not genuine and vague and that they were created for the purpose of the complaint to lay a false claim. The complainant also filed receipt dated 12.08.2012 for Rs.5,000/-, receipt dated 26.3.2012 for 15,000/- to say that it paid the said amount to oneY.Ramu for water proofing so also a receipt for 1,25,000/- dated 08.04.2012 and contended that the said amount was paid to Silpa Park Welfare Association forManjeera Water Pipe line purposes but all the said receipts were after the cut of date of limitation i.e., 24.02.2011 and as such the said documents also do not help the complainant to say that the claim is within limitation. That apart claim for repairs of leakages in bathroom etc., after using the flats for more considerable period also could not be appreciated. After installing the gas pipeline the responsibility will be on the respective flat owners to maintain the same and if any leakages occurred resulting in accident the liability cannot be fastened on the opposite parties in the said context. There is no dispute that gym and treadmill were provided and after using the equipment for considerable period naturally some repairs occurr and in such circumstances it is not desirable for the complainant to ask repairing charges etc., from the opposite parties as it is the duty of the complainant to maintain the gym equipment. The complainant agreed to bear the material cost for installation of diesel generator in the emails and therefore there is no justification on the part of the complainant in claiming the said amount also. Hence, the point no.1 is decided against the complainant holding that the complaint is barred by limitation.
13. POINTS NO.2 and 3: for the reasons given in point no.1, the points no.2 and 3 to be answered against the complaint.
14. In the result the complaint is dismissed without costs.
MEMBER
MEMBER
Dt.24.07.2014
కె.ఎం.కె.*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
NIL
EXHIBITS MARKED
For the complainants
Ex.A1 Original brochure of ‘Aditya Odyssey’
Ex.A2 Emails printouts detailing the communication done by complainant.
Ex.A3 Photocopies of Agreement of sale deeds in no. 2
Ex.A4 Flat handover letter – 2 nos.
Ex.A5 Receipt towards water proofing charges Rs. 15,000 & Rs. 5,000.
Ex.A6 Original bill of M/s Core Interior Designers’ for Rs. 50,000
Ex.A7 Silpa Park Association receipt for Rs. 1,25,000
Ex.A8 Receipt towards portico erection Rs. 15,000 & Rs. 1,000
Ex.A9 Bill from’ A-1, Electrical Works’ for Rs. 52,000 towards electrician charges
Ex.A10 Bill from M/s. ‘Laxmi Electricals ‘for Rs. 32,000
Ex.A11 Bill from M/s. ‘Laxmi Electricals ‘for Rs. 8,213
Ex.A12 Bill from M/s. ‘Laxmi Electricals ‘for Rs. 3,163
Ex.A13 Bill from M/s. ‘GVB Electro Sales’ for Rs. 25,189 towards changeovers and MCCB
Ex.A14 SBI Housing loan proposal – rejection document
Ex.A15 Office copy of legal notice dated 11.07.2012
Ex.A16 Original postal acknowledgement – 2nos.
Ex.A17 Bye-Laws of M/s. Odyssey Home Owners Association
Ex.A18 Registration certificate of ‘M/s. Odyssey Home Owners Association’.
Ex.A19 Resolution copy of ‘M/s. Odyssey Home Owners ‘ Association’
Ex.A20 Photos in 6 Nos.
Ex.A21 Opposite Party Company details obtained from Internet.
For opposite parties
NIL
MEMBER
MEMBER
