BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM ::
KADAPA Y.S.R DISTRICT
PRESENT SRI V.C. GUNNAIAH, B.Com., M.L., PRESIDENT
SMT. K. SIREESHA, B.L., LADY MEMBER
SRI M.V.R. SHARMA, MEMBER.
Wednesday, 15th April 2015
CONSUMER COMPLAINT No. 19/ 2014
Gajulapalli Jagan Mohan Reddy, aged 36 years,
S/o G. Nagi Reddy, Owner of Flat No. 302,
C.S. Reddy Residency, D.No. 20/914,
Co-operative Colony, Kadapa city,
YSR district – 516 001. ….. Complainant.
Vs.
1. Chinthala Sunil, S/o Late C. Subramanya Reddy, aged 56 years.
2. Gorla Ramanamma, W/o G. Chinthala Sunil, aged 55 years.
3. Chinthala Satya Mahesh Reddy, S/o C. Sunil, aged 23 years.
4. Chinthala Vishnu Vardhan Reddy, S/o C. Sunil, aged 25 years.
All are residing at C.S. Reddy residency, D.No. 20/914,
Co-Operative Colony, Kadapa city, YSR District. ….. Respondents.
This complaint coming on this day for final hearing on 7-4-2015 in the presence of Sri G. Trivikram Singh, Advocate for complainant and Sri S.S.D. Ramaswamy, Advocate for respondents and upon perusing the material papers on record, the Forum made the following:-
O R D E R
(Per Smt. K. Sireesha, Member),
1. Complaint filed under section 12 of the C.P. Act 1986.
2. The brief facts of the complaint are as follows:- The complainant purchased flat No. 302, 3rd floor in the residential apartments in C.S. Reddy Residency constructed and sold by the respondents situated in Cooperative colony, Kadapa under a registered sale deed dt. 9-4-2012 (document No. 2921/2012) for valid consideration and possession is also delivered to the complainant.
3. The R4 has executed the above said document in the representative capacity of GPA agent by virtue of registered GPA executed by respondents 1 to 3 in his favour, moreover the complainant understands that the respondents 1 to 3, who are land owners / principals, are no other than father, mother and younger brother of fourth respondent respectively and all of them belong to one family. Thus as the complainant who is working in Pune came to Kadapa on a personal visit came to know through their relatives that some flats are vacant in the said residential apartments complex built by them and are ready for occupation. Thus complainant visited the flat which was in incomplete (almost in the finished stage) stage and booked the flat immediately by paying the initial advance amount prior to registration and paid the balance sale consideration amount on the date of registration.
4. After occupation of the said flat the complainant and his aged parents realized that there were several unfinished works left undone by the respondents and which were orally promised to be completed by the respondents even after occupation and the complainant believed / trussed respondents words in being the builder and seller and in good faith, as he is pre-occupied with his busy work schedule he could not stay here for several days and left for Pune. Later the complainant’s parents who are residing in the said flat found out that there is a leakage of toilet water in one of the corners of the kitchen room dropping from the upper floors flats due to defective construction and quality. This is acknowledged by the respondents and such leakages are also found in the apartment that respondents currently are staying and also in other apartments. Further adding to the plight, the complainant and their aged parents noticed such leakages in more areas in the said apartment. The complainant and his parents observed below mentioned lacunas that : (a) There is no smooth flow of water from one of the wash basins due to incorrect leveling of the pipe into the sewage pipe due to defective construction quality, (b) The complainant is not allotted any car parking space for his vehicles to be kept as agreed by the respondents in the sale deed and (c) The respondents have not complied with the fire safety norms as per the notice that complainant received from the fire safety department stating that the building which has put the complainant and his aged parents into a completely frightening situation and jeopardy.
The above three defects and fire safety non – compliance are the major ones unfulfilled by the respondents as a builder in addition to several minor works, even though the complainant and his parents informed respondents orally several times and respondents promised that the lacunas will be rectified and continues to remain evasive and vague about the timelines. In spite of several reminders and having lost the hope, the complainant also caused a legal notice dt. 21-1-2013 to the respondents to rectify the defects and to complete the said repairs, allocate parking and comply with the fire safety requirements. Having received the said legal notice the respondents got issued a reply notice dt. 2-3-2013 with all false and untenable allegations.
5. Although the respondents has agreed to fix the said repairs, till today respondents have not done any work to carry out the repairs and respondents are negligent and not duty bound to satisfy the promises by respondents as a builder and seller at the time of registration of fa flat to the complainant. Even though respondents mentioned car parking space nominally in the schedule of registered document that will not even suffice even to lift and place a smallest car let alone the ability to park and take out the same. There are several miner works still kept pending and unfinished by respondent at the time of registration but the complainant is not insisting the respondents to complete all those things with generous heart and broad minded. Thus the complainant understands that with a pre-mediated plan only the respondents have mentioned in the sale deed as unfinished flat at the time of registration so as to evade the unfished works by them in future under the said pretext which tantamount to cheating and fraud. But, the respondents have orally promised and imbibed the complainant to accept the same as if it is for the sake of obtaining loan from the bank and falsely submitting that it is a common practice in this locality. There were several occasions that the R4 denied that he is a builder to implicitly indicate that he does not have any responsibility to fix the same and remains evasive about the allotment of the parking and fix the fire safety non-compliance and other apartment construction regulatory compliances in order to hand over the apartment to the buyers.
6. At this stage the complainant submits that within three months of occupation of his flat there started structural defects like leakage of toilet water in the kitchen and several other places in the apartment, no flow of water from the wash basin, refusal to allocate car parking, non – committal on fixing fire safety non-compliance. Thus as a builder of the apartment complex and the vendor of the flat, R4 and other respondents have got burden duty to look into the problems faced by the purchasers / customers of the flats and rectify the mistakes committed by them. The complainant submits that being the seller the respondents are liable to carry out the repairs works and complete the un-finished work which is detrimental to the complainant’s parents residing there and lead a normal and happy life. The fire department also got issued notices to all flat owners of the C.S. Reddy apartments to take fire safety measures. Being builder and developer all the respondents are liable for such safety measures and non-compliances. As stated supra the respondents have committed a deficiency in rendering service without completing the repairs and un-finished work. The negligent attitude of the respondents caused mental agony apart from physical strain to the complainant as well as his aged parents.
7. The complainant’s parents are suffering mentally and affecting their health due to contaminated water leakage in the kitchen top right corner. In case of failure to rectify the defects i.e. leakage of water at kitchen and un-finished work, the respondents are bound to compensate the complainant for rectifying the same with his own funds and as a builder liability. The complainant estimates the cost as Rs. 5,00,000/- or more to rectify the structural defects and to complete the unfinished work of the flat. There are no fire safety measures taken by the respondents while constructing the apartment and if any unforeseen accident occurs, loss of life, material and immaterial damages of any kind, respondent being the builder shall be directed to be wholly liable for such noncompliance of safety measures. It is totally a shocking surprise that respondents have given the possession of the said apartments without procuring necessary regulatory clearances. This is putting the complainant into the uncertainty about the legitimacy of ownership of the said apartment by the complainant purely on account of potential irregularities by the respondent. Unfortunately respondents remain evasive about such queries when enquired by the complainant. Hence, this compliant.
8. It is therefore, prayed that the Hon’ble forum may be pleased to pass an order in favour of complainant against the respondents as follows: (a) to direct the respondents to do repairs to the structural defects like leakage of toilet water in the kitchen and other areas in the apartment as well as water flow from one of the wash basins due to un level piping, allot a car parking space in line with the equal share of the apartment owners, in the cellar of the C.S. Residency. In case of failure to rectify the defects i.e leakage of water at kitchen and unfinished work to pay Rs. 5,00,000/- or more towards estimated cost to rectify the structural defects and to complete the unfinished work of the flat, (b) to direct the respondents to immediately secure compliance to the fire safety norms and other related apartment building construction and handing over compliance to the buyers, being the builder and developer of the said apartments, (c) To direct the respondents to pay the sum of Rs. 5,00,000/- for the mental agony of the complainant’s aged parents, his time to travel to Kadapa to make such requests to the respondents and (d) Grant such other reliefs as the Hon’ble forum may be deem fit and proper in the interest of justice.
9. Respondents 1 to 3 filed counter and the same was adopted by respondent No. 4.
10. The complaint filed by the complainant is bad, unjust, frivolous and not maintainable either in law or on facts of the case. The complainant is put to strict proof of all the allegations which are expressly admitted herein by these respondents.
11. At the outset these respondents deny each allegation levelled against them and put the complainant to strict proof of them. The present complaint is nothing but abuse of process of law and aimed to blackmail these respondents to active the illegal objectives of the complainant. The complainant has purchased flat No. 302 located in 3rd floor of residential complex i.e. C.S. Reddy Residency constructed by the respondents herein as land owners. It is further true that the R4 herein has executed a registered sale deed on 9-4-2012 in respect of flat No. 302 in favour of the complainant. It is further true that the R1 is the husband of R2 and R3 and R4 are their sons. The allegations that the complainant came to know through his relatives that some flats in the residential complex were vacant and were ready for occupation and that the complainant visited the flat which was incomplete stage etc., are all false, frivolous and pressed into service for the purpose of this unjust complaint. As a matter of fact that the complainant approached the R2 herein in the month of December 2011 expressing his desire to purchase the flat bearing No. 302 in 3rd floor by the date of approaching these respondents the entire construction of residential flats including flat No. 302 (interior portion) was completed except small exterior things. The complainant has physically verified the construction of flat and after satisfying himself agreed to purchase flat No. 302. The sale bargain for entire flat including car parking, wood work, grill work, painting, electrical appliances, bathroom fitting was struck at Rs. 38,00,000/-.
12. It is further submitted that the R4 and the complainant jointly executed an agreement of sale on 16-12-2011 by mentioning the entire sale consideration of flat at Rs. 38,00,000/- and the complainant has paid an amount of Rs. 9,50,000/- on the date of agreement of sale and further agreed to pay balance of sale consideration of Rs. 28,50,000/- on or before 15-3-2012. It is pertinent to mention here that the complainant has approached the R2 herein on 16-1-2012 and asked her that he would occupy the flat as the same was completed and vacant. R2 has agreed and allowed the complainant to occupy the flat even though the complainant has not paid full sale consideration to her. The complainant and his family members have occupied the flat No. 302 well in advance in the month of January 2012 without paying full sale consideration to these respondents. The respondents herein have allowed the complainant to occupy the flat graciously without giving any trouble to him and without collecting any rent from him.
13. The allegations that after occupation of flat the complainant and his aged parents realized that there were several unfinished works left by the respondents and which were orally promised to be completed by the respondents after occupation and the complainant believed the words of the respondents and in good faith left for Pune etc., are all false, baseless and coined for the purpose of the complaint. It is pertinent to mention here that the complainant has failed to pay balance of sale consideration of Rs. 28,50,000/- as agreed by him in the agreement of sale and took his own time to pay the same. The complainant herein has paid Rs. 18,00,000/- through his banker and remaining amount of Rs. 10,50,000/- by way of cash to these respondents on 9-4-2012 i.e. after 24 days from the date of expiry of due date. It is submitted that the complainant himself got prepared the sale deed. It is submitted that the R4 in his individual capacity and in the capacity of GPA holder of 1 to 3 respondents herein and the complainant jointly got executed registered sale deed on 9-4-2012. The allegations that the parents of the complainant found that there is leakage of toilet water in one of the corners of kitchen room dropping from the upper floors due to defective constructions and quality etc., are all false and denied as incorrect. The further allegations that there is no smooth flow of water from one of the wash basins due to incorrect levelling of the pipe into the sewage pipe due to defect constructions quality and that the complainant was not allotted any car parking space for his vehicles as agreed by these respondents in the sale deed etc, are all false, baseless and wanton concoctions. It is submitted that the R2 herein has already got rectified the leakage of water problem in the flat of the complainant long back when the same was intimated by the watchman of the complex.
14. It is further submitted that the complainant does not own any car at present and these respondents have provided car parking facility to the complainant in an extent of 105 Sp.feet. in the sale deed dt. 9-4-2012 the area of car parking was mentioned as 50 Sq.feet, but these respondents have provided car parking facility at 105 Sq.feet i.e. 15X7 feet. It is submitted that the area provided for car parking to the complainant is very spacious and the complainant falsely contending that these respondents have not provided any car parking facility. The flat number has been clearly mentioned in the car area allotted to the complainant. The allegations that these respondents have not complied with the fire safety norms as per the notice received by the complainant from the fire department etc., are all false. It is submitted that as per the relevant G.O. issued by the government in respect of constructions of residential complexes consisting of ground + 4 floors as on date of construction under taken by the respondents the provision of fire safety was not compulsory and hence, the respondents did not provide. Had the provision of fire safety was compulsory the electricity department would not have provided transformer. It is further submitted that the department of fire has issued notices to all the flat owners residing in Kadapa city in various residential complexes like the notice said to have been issued to the complainant. The respondents have not collected any additional amount from all the flat owners who have purchased flats from them for providing fire safety measures. The respondents have already constructed big sump in the ground floor for storing of water. If all the flat owners pay the required amount the respondents definitely would provide fire safety measures to the entire residential complex. The allegations mentioned in para 4 of the complaint that the respondents have agreed to get the repairs done, but till today they have not done any work and these respondents are negligent and not duty bound to satisfy the promises made by them etc., are all false and frivolous and baseless. It is submitted that the complainant is alone making wild allegations against these respondents and the remaining flat owners who have purchased flats never made any compalints and they are peacefully living in their respective flats. These respondents are also residing in the same residential complex and whenever any flat owner approaches them with any complaint they are solving them without any delay. These respondents have allotted car parking facility to all the flat owners in equal ratio in the total site available in the cellar portion. Several minor works still kept pending and unfished by the respondents and that pre-mediated plan etc., are all false and devoid of truth. By the date of execution of sale deed in favour of complainant the flat was completed and entire work was completed. No person would occupy the flat in an unfinished stage. The complainant himself mentioned in the sale deed about unfinished flat to avoid stamp duty. It is further submitted that these respondents have taken all precautionary measures to protect the interests of all the flat owners and the complainant alone is making wild allegations. These respondents have constructed the residential complex without any structural defects and the complainant with sinister design making unwarranted comments against the respondents.
15. The allegations that with pre-mediated plan only these respondents have mentioned in the sale deed as unfinished works by them in future under the said pretext which tantamount to cheating, fraud, etc., as alleged by the complainant are all false, frivolous and most uncharitable. The remaining allegations mentioned in para 4 of the complaint are all false, distortions of facts. The allegations in para 5 of the complainant are all false and baseless. The allegations in para 6 of the complainant that the parents of the complainant are suffering mentally and affecting their health due to contaminated water leaking in the kitchen top right corner, etc., are all false. It is submitted that these respondents have already got repaired the leakage of water in the kitchen room of the complainant and the complainant with diabolic design stated that they have failed to rectify the same. The estimate of cost of Rs. 5,00,000/- arrived by the complainant to rectify the alleged structural defects and to complete the unfinished work of the flat as claimed by the complainant is unsustainable and unlawful and these respondents are not liable to pay an amount of Rs. 5,00,000/- as they have not committed any deficiency of service. The claim of Rs. 5,00,000/- by the complainant towards mental agony is most uncharitable and unethical and these respondents are not liable to pay the said amount. The respondents have not committed any deficiency of service as alleged by the complainant and entire claim of complainant is unjust and illegal. The remaining allegations mentioned in the complainant are all false and devoid of truth. These respondents have already made it clear in the reply legal notice dt. 2-3-2013 that they have got rectified the alleged defects. It is not duty of the builder to rectify the small defects permanently and it is the lookout of the flat owner to get them rectified. It is further submitted that the complainant and his father are creating nuisance by quarreling with other flat owners unnecessarily. By no stretch of imagination the complainant is entitled to the reliefs sought for by him. The complaint is vexatious and it is liable to be dismissed in limini.
16. On the basis of the above pleadings the following points are settled for determination.
- Whether the complainant is eligible for compensation as prayed by him or not?
- Whether there is negligence or deficiency of service on the part of the Respondents or not?
- To what relief?
17. On behalf of complainant PW1 & 2 examined and Exs. A1 to A8 were marked. No documents are marked on behalf of the respondents.
18. Point Nos. 1 & 2. It is true from Ex. A1 that the complainant had purchased flat from the respondents on 9-4-2012, while entering into sale deed that the complainant being educated person he should be thorough of the facts which are going to be executed in the sale deed. The complainant should be thorough about the approval of the building plan and other approvals which are needed for the building. The complainant purchased the flat from the respondents by paying consideration so he should be very cautious about the needs and necessities of the flat before entering into sale deed. The complainant should go through all the documents pertaining to the constructions of the apartment. The Advocate Commissioner, who was examined as PW1 clearly mentioned in his report that there is no marking of bifurcating car parking, PW1 / the advocate commissioner stated in his cross examination that the defect of leakage is rectified and he did not observed any cracks in the walls and there is no damage in the building. In his cross examination the complainant clearly stated after satisfying himself, he purchased the flat and he had signed in Ex. A1 after going through documents. The complainant did not filed any document to show that he had paid amount for fire safety measures. The complainant questioned about the building approval of plan, which was approved by Kadapa Municipal Corporation. When the complainant challenging the building approval plan, which was approved by Kadapa Municipal Corporation, Kadapa, the complainant should add Municipal Corporation, Kadapa as necessary party. But he did not do so. The complainant filed Exs. A6 & A7 but he did not added Kadapa Municipal Corporation to the proceedings. The complainant himself admitted in his cross examination that he fully satisfied himself after that only he had entered into sale deed agreement to the said flat No. 302. The complainant failed to prove his case against the respondents. The documents filed by the complainant did not support his case. At the same time there is no deficiency of service or negligence on the part of the respondents 1 to 4. So he is not eligible for any compensation as prayed by him.
19. Point No. 3 In the result, the complaint is dismissed without costs.
Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, this the 15th April 2015.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses examined.
For Complainant :
PW1 T. Mohan Krishna, dt. 20-1-2015.
PW2 G. Jagan Mohan, dt. 11-2-2015.
For Respondents : NIL
Exhibits marked for Complainant : -
Ex. A1 P/c of sale deed dt. 9-4-2012 executed by the R4 in favour of the
complainant.
Ex. A2 Office copy of legal notice dt. 21-1-2013 issued by the complainant to
the respondents.
Ex. A3 Postal receipts four in number and acknowledgement cards two in
number.
Ex. A4 Reply notice dt. 2-3-2013 issued by the respondents.
Ex. A5 Notice issued by the fire safety department.
Ex. A6 P/c of unapproved building approval plan banded over by the
respondents to the complainant.
Ex. A7 P/c of the attested building approval plan obtained by the
complainant from Kadapa Municipal Corporation, Kadapa.
Ex. A8 Recent photographs showing parking place and commercial structures
build in parking place of C.S. Reddy Residency (14 in numbers).
Exhibits marked on behalf of the Respondents : - nil
MEMBER MEMBER PRESIDENT
Copy to :-
- Sri G. Trivikram Singh, Advocate for complainant
- Sri S.S.D. Ramaswamy, Advocate for respondents.
B.V.P.
