Andhra Pradesh

Nellore

CC/03/2014

VBAA Dimond Apartment Flat Owners Welfare Association Represented by its General Secretary Kanduluru Tejo kumar Reddy - Complainant(s)

Versus

1.M.S ABR Infra Projects Pvt Ltd.Represented by its Director - Opp.Party(s)

K.Raghunathareddy

29 Sep 2015

ORDER

                                                        Date of filing       :  31-12-2013

                                                         Date of disposal  :  29-09-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Tuesday, this the 29th day of SEPTEMBER, 2015.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                            

                                       C.C.No.3/2014

VBAA Dimond Apartment,

Welfare Assosiation,

5^th lane, Ramjinagar, Nellore-2

Represented by it’s General Secretary,

Kanduluru Tejo Kumar Reddy                                …           Complainant

 

                      Vs.                                                                           

                                                                           

1.M/s.ABR Infra Projects (Pvt) Ltd.,

   Office at P.V.R.Prestige,

   1^st Floor, 4^th lane, Ramjinagar,

   Near Children’s Park, Nellore-2,

   Represented by it’s Director,

   Perumareddy Vijayakumar Reddy.

 

2. Perumareddy Vijaya Kumar Reddy,

    S/o.Dasaradharami Reddy,

    D.No.16/3/926,

    Shiharinagar, Ramalingapuram Extention,

    Nellore-524 003.                                                 …        Opposite parties

 

    This matter coming on  14-09-2015  before us for final hearing in the presence of Sri  K.Raghunatha Reddy, Advocate for the complainant and  Sri M.Krishna Prasad, Advocate for the  opposite party No.1 and  Sri P.Nageswara Rao, Advocate for the opposite party No.2  and  having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

This consumer  case is filed by the complainant against the opposite parties 1 and 2 to direct them to provide facilities which are referred in the complaint with 6 persons capacity lift from the reputed company, sufficient capacity solar power generator from the reputed company and good quality bathroom plumbing and rectification of 5^th floor top roof slab leakage etc. or in alternate to pay Rs.8,00,000/- for estimated costs for providing the said facilities and to pay damages of Rs.1,50,000/- to the complainant towards compensation for causing harassment, mental agony and damage to the flats and to pay the costs of the complaint  of Rs.10,000/- and grant such other relief or reliefs as the Hon’ble Consumer Forum may deem  it fit in the said circumstances of the facts of the case in the interests of justice.

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I(a) It is the case of the complainant that the complainant is the registered flat owners association in which  all the flat owners of VBAA DIAMOND Apartment, joined together for the purpose to maintain their apartment complex and to solve their problems which are relating to their respective flats.  The above said association was registered under the Societies Registration Act under registration no.7/2013.  One Mr.Iska Brahmananda Reddy, S/o.Sundararami Reddy and his wife Mrs.Meera Devi, are the owners of the site an extent of 86 ankanams and 66 sq.feet comprised in Survey no.842 and 849 of Nellore Bit-II area, Audityanagar area of Nellore City, bearing ward no.27-1, near door no.1120 within the Nellore Municipal Corporation limits.  They had purchased the said extent under a registered sale deed dt.21-03-1988 under registered doc.nos.3429/1988 and 1855/1988, S.R.O., Nellore.   He, is being the absolute owner of the vacant site an extent of 86 ankanams 66 sq.feet, entered into development agreement cum general power of attorney with the builder M/s.ABRA INFRA PROJECTS (Pvt) Ltd., Nellore, represented by its director Perumareddy Vijayakumar Reddy and the said development agreement  cum G.P.A. was registered as document No.754/2009 dt.16-02-2009 at S.R.O. Nellore.

(b) It is also further submitted by the complainant that in para-4 of his complaint that as per the terms and conditions of the said development agreement cum G.P.A., the builder who are the opposite parties jointly and severally under took to construct multi-storied apartment complex in the above said site under the name and style of V.B.A.A. Diamond Apartment consisting of ground + 4 floors and each floor consisting of three flats.  Accordingly, the opposite parties had constructed apartment complex in the said site and sold the entire flats to all the members of complainant’s association under various registered sale deeds.

(c) It is also further submitted by the complainant that in para-5 of his complaint that its association had consisted of flat owners in the said V.B.A.A. Diamond apartment who purchased the flats under various registered sale deeds from the opposite parties.  At the time of entering into the agreements for construction of flats, the opposite parties had committed to provide all provisions and amenities to the flat owners for the purpose of their residence in the said apartment complex.  Those were all detailed in the construction agreement and also in the broacher which had given by the opposite parties.   As per the terms and conditions of the said construction agreement, the complainant had paid the entire amount whatever the members of the said apartment welfare association have agreed thereupon and the opposite party had also committed to complete and provide all amenities with them within the stipulated time.  But, the opposite parties did not yet complied his side terms and conditions and delivered possession of the said flats in an incomplete stage and made construction in a poor quality and left those flats to the purchasers.  The following are the poor quality and temporary works made by the opposite parties are mainly:-

  a) Four persons temporary lift;

  b) Installed second hand defective generator;

  c) made poor quality bathroom, plumbing works ; and

  d) made poor quality fifth floor roof slab and due to that heavy seepage from

      the roof and due to that all the walls are moisturizing

 

(d)   It is also further submitted by the complainant that in page-3 of his complaint that the opposite parties have to execute all the works as they had agreed and complete in construction of flats. They have to provide (six) 6 persons capacity reputed company lift in good condition for the said apartment complex. They have also to provide new reputed company solar power generator containing sufficient capacity and good quality bathroom plumbing by using good quality material for the said complex.  They have also to make alternative arrangement to stop the leakage from the 5^th room top roof and due to that the moisturizing of the said walls.   But, they did not comply the same and postponing to perform their part of contract in doing so on some pretext or the other, even inspite of repeated requests made by the complainant. The complainant had also issued a legal notice dt.15-06-2013.  The opposite parties had also sent a reply to the said legal notice dated 24-07-2013 with all false and invented allegations against the complainant.  The opposite parties had alleged that in the said reply notice that the Director and authorized person (OP2) Perumareddy Vijaya Kumara Reddy has no responsibility to do so the said work as he resigned from the said company.   The complainant’s association is consisting of all flat owners who are residing in the said apartment complex had been suffering without the above said provisions and amenities.  The opposite parties have to pay damages to the complainant’s association for causing loss and creating mental agony.  So, there is a deficiency in the service on the part of the opposite parties towards the complainant.   

(e) It is also further submitted by the complainant that in page-3 of his complaint that there are causes of action to file this complaint which are narrated therein.  Hence, the complaint.

II.  DEFENCE:

      The 2^nd opposite party was resisted the complaint by filing a written version/counter dt.20-06-2014 and additional counter dt.09-08-2014 denying the allegations of the complainant in the complaint.  Those allegations are false and the complaint is not maintainable either in law on facts. 

 

The contents of written version/counter of 2^nd opposite party :

(i) It is also submitted by the 2^nd opposite party that in para – 3 of his written version/counter that the complainant had no locus standi to file the present complaint against the opposite party No.2. The complainant is not the owner of the flat in VBAA Diamond Apartment situated at 5^th lane, Ramji Nagar, Nellore-2 and he did not purchased any flat from the 1^st opposite party.  So, the complainant has no capacity to file a complaint against the opposite parties.  He is not the consumer of 1^st opposite party.  In fact, one Kanduluru Praveena purchased a flat from the 1^st opposite party under an agreement for construction of flat and the said agreement was registered on 24-08-2009.  Now, the complainant is claiming that in this case he is the general secretary of VBAA Diamond Apartment flat owners welfare association, Nellore, has no legal validity.

(ii) It is also further submitted by the 2^nd opposite party that in para-4 of his written version/counter that he had resigned from the 1^st opposite party’s company on 20-12-2011 itself relieving from all liabilities and responsibilities. Since, 20-12-2011 the 2^nd opposite party is not a director of the 1^st opposite party.  Even now, the 1st opposite party company is doing its business and  while the 2^nd opposite party was not working as a director of the 1^st opposite party and the 2^nd opposite party had absolutely executed all the works as per the terms and conditions relating to VBAA Diamond Apartment complex, already.  Subsequently, the 1^st opposite party had appointed one Mr.T.Venkata Reddy as a director of VBAA Dimond Apartment in place of 2^nd opposite party after 20-12-2011.  The 1^st opposite party company gave cheque power to the newly appointed director namely Mr.T.Venkata Reddy by way of letter dt.         5-4-2011(Ex.B5). Therefore, after 20-12-2011, the 2^nd opposite party is not at all director of 1^st opposite party.  So, the 2^nd opposite party is not liable any acts of the 1^st opposite party’s company after appointing the said Mr.T.Venkata Reddy on 5-4-2011 as a new director of the 1^st opposite party.    

(iii)  It is also further submitted by the 2^nd opposite party in paras-5 and 6 of his written version/counter that the above said VBAA Diamond Apartment works were completed as per the above said agreement and the municipal authorities had also released mortgaged flats after due verification and inspection. The said flat owners of VBAA Diamond Apartment was also obtained handover letters and NOC from the 1^st opposite party and the same was also submitted to the  banks which extended financial assistance to the purchasers of flats in the said apartment.  The complainant had no authority got issued the said legal notice to the 2^nd opposite party on 15-06-2013 and there is a lapse of four (4) years, which is barred by Limitation.  The 2^nd opposite party gave a prompt reply to the said legal notice dtd.15-06-2015 and therein, the 2^nd opposite party had categorically denied the allegations which are made in the above said legal notice. Even though, complainant had knowingly fully well of the false facts and thereafter he had filed this false complaint as he was badly advised.    

 

Additional counter was also filed by the 2^nd opposite party on 09-08-2014 and its contents are namely:  -

(a)It is also further submitted by the 2^nd opposite party that in para-2 of his additional written version that the VBAA Diamond Apartment was consisting of ground + 4 floors and each floor consisting of 3 flats and further submitted that the complainant is not a party to the same and there is no privity of contract within the complainant and the parties of the development agreement cum G.P.A.  The G.P.A.holder under the development agreement cum G.P.A., is the first opposite party i.e., A.B.R. Infra Projects (P) Ltd., a regd. Company with a limited liability and one Mr.Puttam Brahmananda Reddy, S/o.Kanthareddy, is the managing director of the company and the 2^nd opposite party, is the only a director who had already resigned from the company.

(b)  It is also further submitted by the 2^nd opposite party that on 20-12-2011 (1^st opposite party) in the same para-2 of his written version/counter that on 20-12-2011, 2^nd opposite party had submitted his resignation from the directorship to the board of directors of M/s.A.B.R.Infra Projects (P) Ltd., and it was also accepted.  Even prior to that directors had a meeting on               10-08-2011 and resolved by its resolution that one Mr.Thaniparti Venkat Reddy, the director of company was authorized to carry on the business including sign in the sale deeds and building construction agreement and to do acts or things incidental or ancillary in that regard.  Even prior that the Board of Directors meeting which was held on 5-4-2011 the cheque power was given to the said Venkat Reddy by resolution dated 5-4-2011 itself.  The 2nd opposite party who was resigned from the director-ship of the company, is not at all a necessary or a proper party to the proceedings but acting hand is glow with Iska Brahmananda Reddy and Meera Devi got this case filed with a sole intension of troubling and harassing 2^nd opposite party only.  The above said Iska Brahmananda Reddy is the president of Society and the bye-laws of the Society are also not valid under law since who can be the members are not at all contained therein. 

( c )  It is also further submitted by the 2^nd opposite party that in the same  para-2 of his written version/counter that however the present person(Complainant) who is claiming to be the General Secretary, is not owning any apartment therein. So, he cannot be either a member of the association or an office bearer of the association and further as the bye-laws of the association, is silent about the person to file the proceedings in such case.  The present complaint filed by the General Secretary alone, is not in accordance with the provisions of Society’s Registration Act and thereby complaint itself is liable to be rejected for want of suing capacity of the person who filed it. 

(d) It is also further submitted by the 2^nd opposite party that in para-3 of his written version/counter that the some of the members of the said association had purchased the flats from the 1^st opposite party and the 2^nd opposite party did not even join in the said sale deeds.  The other allegations in para-5 of the complaint that at the time of entering into the agreements for construction of flats, the opposite parties committed to provide all provisions and amenities to the flat owners for the purpose of their residence in the said complex that those were detailed in the construction agreement and also in the broacher given by the opposite parties, is prevaricative and misquotation the document filed by the complainant relating to the Kanduluru Praveena the wife of the alleged  general secretary is clearly showing at page no.5 in AGREEMENT FOR  CONSTRIUCTION OF FLAT it was specifically provided that “The purchaser  shall make all his/their objections and/or point out defects, if any, in the construction work immediately after the completion of every stage of work including the final stage of working within 7 days receipt of the information reporting the stage of work, for enabling the builder for spot rectification of the work”.  It is clear no such action were never taken by the complainant or the owners of the flats. Relating to the broacher, it is clearly stated on the broacher itself that “note: this broacher is conceptual presentation of the project and not a legal offering. The promoters will reserve the rights to make changes in elevation, plans and specifications as deemed fit” thus no rights will accrue to the owners of the flats under the said broacher and all contra allegations are denied as false and invented and the complainant is put to the strict proof of the same.

(e) It is also further submitted by the 2^nd opposite party that in para-3 of his written version/counter that the flats already handed over after proper completion.  With regard to points (a) 4 persons temporary lift, the joint development agreement cum G.P.A  at para No.17 and the head specifications showing under the sub-head lift 4 passengers capacity will be provided.  The lift was purchased from Venus Elevator Solution (P) Ltd., and the letter which was issued by the 1^st opposite party company showing that one six (6) passengers Elevator had been installed serving G+5, S.S.Cabin and M.S.Manual Telescopic doors at Nellore and requested for the release of balance amount of Rs.20,000/- the original bills and the said letter is filed herewith along with details by the lift provider. Relating to (b), installed 2^nd hand defective generator, it is submitted that a 15KVADG set with acoustic enclosure incorporating engine Ashok Leyland make model: AL 485 G1 capable of developing 23.5 BHP @1500 RPM coupled with alternator 41 Volts, 50 HZ: with standard control pane, fuel tank, battery with leads complete with all accessories along with engine and alternator : manuals with necessary keys of acoustic and engine was purchased and delivery challan which bearing no.134 dated 14-03-2011 is also filed along with counter.  Relating to (c) made poor quality bathroom plumbing work: it is submitted that the builders agreement itself is providing under the head specifications and the sub-head 03 flooring , sanitary, painting and electrical works are to  be done by the purchaser at his own costs as such no claim can be made on that aspect and relating to (d) made poor quality 5^th floor roof slab and due to that heavy seepage from the roof and due to that all the walls are moisturizing, is nothing but an abstract allegation without furnishing a details as such is nothing but an invention by the alleged general secretary in collusion with alleged president who had taken 40 % of the construction including the car parking etc. only to trouble the 2^nd opposite party. 

(f) It is also further submitted by the 2^nd opposite party that in para-4 of his written version/counter that the 2^nd opposite party had no separate existence and is only one of the directors of M/s.A.B.R.Infra Projects (P) Ltd., having its office at Hyderabad not at Nellore.  The 1^st opposite party is a juristic person and continuing its business even now through one of its director Mr.T.Venkata Reddy but the 2^nd opposite party was intentionally made a party with a malafied intention of troubling and harassing him.  As said in the above said reply notice stated that 2^nd opposite party had resigned from the directorship on 20-12-2011 and he is nothing to do with the 1^st opposite party company.  Relating to the other allegations that they (the opposite parties 1 and 2) have to  provide new reputed company Solar Power Generator containing sufficient capacity for the said apartment complex, it is submitted that according to 2^nd opposite party that  the provision of Solar system not at all offered however at the time of finishing of works the purchasers requesting as additional work which was suggested to go to Aditya Solar Shop which was sponsored by NET CAP i.e., Hyderabad and approved by MNRE, New Delhi and Legend Solar Energy  System (P) Ltd., Bangalore (MNRE APPROVED) was provided and the quotation – pro-forma invoice and the bill passed by the Aditya Solar Shop which bearing No.15 dated 25-02-2010, is filed herewith and they may be read as part and parcel of the counter filed by the 2^nd opposite party. 

(g) It is also further submitted by the 2^nd opposite party that in page-5 of his written version/counter that in view of the existence of the company shown as 1^st opposite party from 2011 onwards being represented and authorized one Mr.T.Venkat Reddy, if really the owners of the flats are having any grievance shall approach the company only and not with 2^nd opposite party. The 2^nd opposite party had resigned a long ago prior to filing of the complaint itself and whereas the company is still continuing its business activity and it is incorrect, untenable and the 2^nd opposite party cannot be made liable with the costs.  There is no deficiency in service on the part of the 2^nd opposite party towards the complainant and when once the construction was completed as per the Builders agreement and handed-over the flats to the respective owners after getting the completion certificate and the duties and liabilities of the Builders Company seized to exist.  Even if this Consumer Forum comes to conclusion that there is a deficiency of service, it is only on the part of 1^st opposite party and the 2^nd opposite party cannot be made a party to the complaint before this Hon’ble Forum and it is only an abuse of process of law.  It is prayed that the Hon’ble Consumer Forum may please to dismiss the complaint with costs.

 

III.  The complainant had filed an affidavit on 08-08-2014 as PW1 and he had also filed an additional affidavit on 27-08-2015 and got the documents marked  as Exs.A1 to A9 and also filed the written arguments of the case on                14-09-2015; whereas the 2^nd opposite party got the documents marked as Exs.B1 to B6. 

 

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

(a)Is there any deficiency in service on the part of the opposite

    parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

          (c) To what relief?

 

V.  POINTS 1 AND 2:

     In view of these two points are inter-related and depends on each other, they have been taken up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint, affidavits and documents filed herein.  It is nothing but repetition of them.

The oral arguments of counsel for the complainant:-

        The learned counsel for the complainant Sri K.Raghunatha Reddy has vehemently argued that the complaint, affidavits of PW1, documents which are marked as Exs.A1 to A9 and the written arguments filed here, may be read as part and parcel of his oral arguments.  He has also further argued that as per the terms and conditions of the said construction agreement between the complainant and opposite parties 1 and 2, paid entire amount whatever the complainant’s association had agreed within the time as specified in it.  Further, the said learned counsel for the complainant, has urged that the opposite parties did not yet comply their side terms and conditions and tentatively delivered possession of the said flats in an incomplete stage, without fulfilling their terms and conditions and providing poor quality construction work and further poor qualities of amenities like lift, power generator, solar system and bathroom fittings etc., and handed over the flats to the owners at an incompleted state.  The following are the incomplete works have to be done by the opposite party:-

      (a) provision of 6 persons lift in the place of 4 persons temporary lift;  (b) installation of new Solar Power generator in the place of defective unit;    (c) rectification of bathroom plumbing work in the place of poor quality plumbing with duplicate material and also leakages from the walls etc.,

(d) rectification of seepage of 5^th floor slab and wetting of walls due to the said seepage.  He has further contended that the opposite parties have to executive all the works as agreed and to complete the construction of flats with good qualities. But they did not comply the same and they have been postponing to perform their part of contract in doing so the said works on some pretext or the other even inspite of repeated requests made by them and also issued of legal notice dated 15-06-2013 (Ex.A5). The 2^nd opposite party sent a reply dt.24-07-2013 (Ex.A6) with all false and invented allegations with a view to escape from his liabilities.  The complainant’s Association members, now, who are residing in their said apartment complex, have been suffering with the above said poor qualities of provisions and amenities and losing their mental peace. The opposite parties 1 and 2 have to pay damages to the complainant’s association members for causing loss and creating mental agony.

Description of documents which are marked Exs.A1 to A9:-

  The general secretary of the complainant’s association was examined as PW1.  Exchange of legal notices between the complainant and 2^nd opposite party are Exs.A5 and A6.  These two documents are prior to filing of the consumer case i.e., on 24-02-2014.  Exs.A7(25-08-2015), A8(25-08-2015) and A9(26-08-2015) are the documents relating to the year, 2015 are filed.  These are all filed by the complainant after filing of the complaint.   Finally, the said learned counsel for the complainant has prayed that the Hon’ble Consumer Forum may pleased to allow the complaint as prayed for.

 

     Sri M.Krishna Prasad, the learned counsel for the 1^st opposite party had filed a vakalath on 24-02-2014 but not filed his written version inspite of several adjournments granted by the Hon’ble Consumer Forum and also subsequently not contested the case on behalf of the 1^st opposite party for the reasons best known to him and continuously absent.  The 2^nd opposite party is alone contested the case.

 

 The oral arguments of counsel for the 2^nd opposite party:-

    On the other hand Sri P.Nageswara Rao, the learned counsel for the 2^nd opposite party has also vehemently argued that the written version/counter, additional counter and the documents which are marked as Exs.B1 to B6, may be read as part and parcel of his oral arguments.  He has also further argued that the complainant had no locus standi to file the present complaint and is not the owner of the flat of the said apartment and he did not purchased any flat from the 1^st opposite party.  He has also further contended that the 2^nd opposite party had resigned from managing directorship from the 1^st opposite party’s company on 20-12-2011(Exs.B6) itself relieving from all liabilities and responsibilities. It is the case of 2^nd opposite party that he is no more managing director of 1^st opposite party company since 20-12-2011.  As per Exs.B5, the 1^st opposite party had appointed a new director namely Mr.T.Venkata Reddy on 5-4-2011 and provided to him a cheque power and to look after the affairs of 1^st opposite party thereafter.  The contention of the said learned counsel for the 2^nd opposite party that the said flat owners of apartment  complex was also obtained handed over letters and NOC from the 1^st opposite party company and it was also submitted to them to the banks.  The said learned counsel for the complainant has stressed much about the description of the documents and the exchange of legal notices between the complainant and the 2^nd opposite party.

Description of the documents Exs.B1 to B6:-

    Ex.B1 is the broacher; Exs.B2(14-03-2011) and B3(22-02-2013)and Ex.B4(27-07-2011), Ex.B5 (5-4-2011) and Ex.B6(20-12-2011).  The dates of the documents are important and key to decide this consumer case. 

    The complainant was now had no authority to issue a legal notice dt.        15-06-2013 (Ex.A5) to the 2^nd opposite party and the contents of reply legal notice dt.24-07-2013 (Exs.A6) to complainant’s counsel may be read as part and parcel of his oral arguments of the said counsel of 2^nd opposite party.  It is the case of 2^nd opposite party that the contents of additional counter filed, explained in detail answering to the allegations of the complainant by way of producing the documents Exs.B2 to B4 and established the facts which are alleged and proved by the 2^nd opposite party. Exs.B5 and Ex.B6 are the vital documents relating to one from M/s.ABR Infra Projects (P) Ltd., and another one is that resignation from directorship by the 2^nd opposite party on 20-12-2011.  Finally, the learned counsel for the 2^nd opposite party has prayed that the Hon’ble Consumer Forum may please to dismiss the complaint with costs.   

Lapses on the part of the complainant in this consumer case:    

(a) The date, month and the year on which all the flat owners are when they have joined in the said apartment complex and the first time when they had noticed the defects in the apartment, is not mentioned in the complaint filed by the complainant.  When, it is issued fit for occupation certificate by the builder to the flat owners, is not mentioned in the complaint for the reasons best known to the complainant.  They are essential and necessary to decide the case but the company has not brought to our notice for the reasons best known to him. The complainant had deliberately abstains from adducing better evidence, which he is in a position to adduce.  So, an adverse inference can be drawn in the circumstances of the case.

(b) The importance of the documents relating to M/s.ABR Infra Projects (P) Ltd. are such as memorandum of association of the company, Minutes and the Register of Directors are not filed by the complainant before us for verification to know the details of the company and to decide this consumer case, for the reasons best known to him.  The main office is at Hyderabad.  We do not know how many directors and are there who are the directors of the said company.  According to the (Ex.B5) letter dated 5-4-2011 of the said company, one Mr.Thaniparthi Venkata Reddy is having power to issue cheques of the company, but he did not shown as one of the opposite parties in the complaint.  He is the proper and necessary party to speak the exact facts and circumstances of the case, but for the reasons best known to the complainant, the name of the T.Venkata Reddy is omitted.  There is no any such explanation for that from him.  It is a clear lapse on the part of the complainant.

( c ) The document (Ex.B6) shows that 2^nd opposite party had resigned from directorship from the said company on 20-12-2011. This fact is established by the 2^nd opposite party by producing documents evidence. The complainant had knowledge of the said fact by 24-07-2013. He had issued a legal notice dt.15-06-2013 to the 2^nd opposite party.  By that time, the 2^nd opposite party is not the director of the said company (Ex.A5).  The said new managing director Mr.T.Venkata Reddy, is not added as proper and necessary party in the complaint by the complainant for the reasons best known to him.  The said T.Venkata Reddy is the proper person to say clearly the affairs of the said company since 5-4-2011.  But, the complainant had omitted him in this legal proceedings for the reasons best known to him.  It is also one of the lapses on the part of the complainant. 

( d ) The documents which are marked on behalf of the 2^nd opposite party (Exs.B1 to B6) speaks about the whole facts which are relating to the said apartment complex. Even by knowing that why the complainant had issued a legal notice (Ex.A5) to the 2^nd opposite party as alleged managing director of the company and in fact 2^nd opposite party is no more managing director of the said company after resignation by way of letter dt.20-12-2011 (Ex.B6) addressed to the said company.  So, the complainant has sufficient knowledge of fact of resignation of the managing directorship of 2^nd opposite party but he had issued a legal notice dt.15-06-2013 (Ex.A5) to 2^nd opposite party.  It is clearly a lapse on the part of the complainant to add 1^st opposite party and 2^nd opposite party as a parties in the complaint and neglecting, omitting T.Venkata Reddy to add as a proper and necessary party to resolve the consumer dispute, for the reasons best known to him.  The said Mr.Venkata Reddy is the correct person to say that the existing affairs of the complaint that time (5-4-2011).

(e) The complainant did not file Register of Directors of the said company before us for our verification and a decision of the case.

(f) The complainant is ought to have added Mr.Venkata Reddy as an opposite party to this consumer case.

    The role of director according to Companies Act, 1956:

            A Corporation is an artificial being, invisible, intangible and existing only in contemplation of law.  It has neither a mind nor a body of its own.  The word ‘company’ has no strictly technical or legal meaning.  In terms of the Companies Act, 1956 a company means a company formed and registered under the Companies Act. Section 3 (i).

Position of director:-   In view of the necessity of directors, according to Section 252 of the said Act requires that every private company shall have at least two directors.  They are professional men hired by the company to direct its affairs.  A director is in fact a director or controller of the Company’s affairs.  The Board of directors are the brain and the only brain of the company, which is the body and the company can and does act only through them.

Resignation of a director:  According to Section 318 of the said Act, 1956, it indirectly recognizes resignation through its provisions.  If there is a provision in the Articles of Association, resignation will take effect in accordance with such provision. Notice may be written or oral.

Managing director:- A managing director as defined in the Act (Section2 (26), means a director who is entrusted with substantial powers of management which would not otherwise be exercisable by him.  He is an agent of the board of directors.

 

Forum’s Findings and observations

       Heard, the learned counsel for the both parties and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. Parties led their evidence by way of affidavits and produced their documentary evidence. The oral arguments of the learned counsel for the both parties are advanced before us. This consumer case is lingering on since more than one and half year for a decision for one reason or other as the case may be.  We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. One who seeks equity must come to the Forum/Court with clean hands.  The complainant against deficiency in service is one of the crucial aspects of C.P.Act, 1986.  The Consumer Forum is primarily would function on the principles of Natural Justice, equity and good conscious. To appreciate the controversy of this Consumer dispute between the parties, it would be appropriate if we narrate all the circumstances of the case both on question of fact as well as on question of law in detail. 

Reasons for this order:

    After scanning the entire material on the record, it is crystal clear that the complainant who is represented by the said flat owners, did not brought to our notice with clear facts and circumstances of the case and it is clearly evident that by perusing the documentary evidence of both the parties.  The 2^nd opposite party according to Ex.B6 (20-12-2011) had resigned in the year 2011 from directorship and prior to that the affairs of the said company, looking after by one Mr.T.Venkat Reddy (Ex.B5, dt.05-04-2011). It appears that the complainant has no knowledge of the said facts relating to the said company affairs.  Mr.T.Venkat Reddy is the proper and necessary person to add in this consumer case as additional opposite party for adjudication of the consumer dispute between the complainant and the opposite parties 1 and 2.  The complainant did not approach the Consumer Forum with clear facts for a decision of the case.  After taking possession of the respective flats by the members in the year 2010 or 2011 or so, as the case may be, are leisurely approaching the Consumer Forum by raising their voice about the defects in the said apartment complex in the year 2014.  It is not justified so after three years and that to already occupied flats by the complainant’s members association.  There is no justification to expect them for watch and supervision of the apartment complex day to day by the builder or director as the case may be, continuously.  We are satisfied with the arguments of the said learned counsel for the 2^nd opposite party.  The complainant has miserably failed in his attempt to bring the case with clear facts to our notice with documentary evidence.  There is no deficiency in service on the part of the 2^nd opposite party as he is resigned from the directorship in the year,2011 itself and we cannot made him liable for the defects cropped up in the said apartment complex.    Exs.A7, A8 and A9 are the documents relating to in-connection with apartment complex and it is an afterthought and now it cannot believed as the case may be.

 

   It is to be remembered that proceedings before the Consumer Fora are inquisitorial and not adversary.  The order is required to be passed in accordance with justice and equity on the basis of the evidence available on record.  The C.P.Act, 1986 is for the protection of the consumers and matters that are required to be decided by having rationale approach and not technical one.  This is made clear by the Hon’ble Supreme Court of India in the case of  India Photographic Company, Limited Vs.H.D.Shourie, 1996(6) S.C.C.428.  It is also clear from the decision of the Hon’ble National Commission reported in 2006(1) CPR 219 (NC) in the case of Deepak Jaiswal Vs. The Oriental Insurance Company. Justice delivery system by the Consumer Fora should be with utmost promptitude. There is a force in the arguments of the said learned counsel for the complainant. 

 

Relevant case-law:- 

      

       The decisions of Hon’ble Apex court and Hon’ble National Commission, New Delhi are, in this context, to remember at once appropriately and they are most useful to arrive at a decision of the case.

 

1. Complainant must prove his claim by reliable evidence – 2011 (3) CPR

449 (NC).

2. One  who makes an allegation is required to prove it beyond doubt –

2011 (2) CPR 46 (NC).

3. Complaint is based on deficiency in service  must establish the same by

leading cogent evidence  - 2011 (2) CPR 68 (NC).

4. In the case of consumer disputes redressal Forums, the judgments must

set out the points in dispute and a decision on those points supported   

by some reasons – 1995 (I) CPR 832 (NC).

5.  A quasi – judicial authority must record reasons in support of its

     conclusions  - 2011 CTJ (SC) (CP) 128.

6.  Each case has  to be judged on it’s own facts.  With regard to deficiency

     in service, the relevant aspect to be remembered that – To bring  home   

     an allegation of deficiency in service, the element of willful action  (or as

     the case may be, in action) needs to be established and the onus of proof

     of such action / inaction lies on the complainant -  2010 (2) CPR 89 (NC).

 

 

Appreciation of evidence:

 

       It is true that proper appreciation of evidence is a matter of experience, common sense and knowledge of human affairs.  For weighing evidence and drawing inferences from it, there can be no canon.  Each case presents its own peculiarities and common sense and shrewdness must be brought to bear upon the facts elicited in every case to arrive at a satisfaction as regards good faith, the court is empowered to make such enquiry as it deems it proper.  In the process of decision making, appreciation of evidence assumes utmost importance.  Appreciation of evidence involves appreciation of documentary as well as oral evidence adduced by either party.

 

       Realization of justice is the ultimate function of law.  Consumer Forums should be wary of passing cryptic orders in the adjudication of complaints 2007 CTJ AP P6(SC).  Law assists those who are vigilant.  Justice is rendered in accordance with law.  Rules of procedure are intended to be a handmaid to the administration of justice. These two points are held in favour of the 2^nd opposite party and against the complainant, accordingly.

 

POINT NO.3:   In the result, the complaint is dismissed without costs.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 29th day of September, 2015.    

 

 

               Sd/-                                                                           Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

 

APPENDIX OF EVIDENCE

 

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

08-08-2014    AND 27-08-2015

:

Kanduluru Tejokumar Reddy, S/o.Venkata Rami Reddy, Hindu, Property holder and the General Secretary to the complainant Association, aged about 42 years, having it’s office at Flat no:6, VBAA Dimond Apartment, 5th lane, Ramjinagar, Nellore-2.

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

08-01-2015

:

Perumareddy Vijaya Kumar Reddy, Son of Dasaradharami Reddy, Hindu, aged about 40 years, Sriharinargar, Ramalingapuram Extension, Nellore.

                                                                              

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	16-01-2013	:	Photostat copy of certificate of registration of complainant association.
Ex.A2	04-08-2009	:	Photostat copy of Registered sale deed executed by the opposite parties in favour of one Kanduluru Praveena, one of the Flat owner.
Ex.A3	24-08-2009	:	Photostat copy of the construction agreement executed by the opposite parties in favour of Kanduluru Praveena.
Ex.A4	-	:	PVR Prestige VBAA DIAMONDBrochure given by the opposite parties.
Ex.A5         Ex.A6   Ex.A7       Ex.A8         Ex.A9	15-06-2013         24-07-2013   25-08-2015       25-08-2015         26-08-2015	:         :   :       :         :	Copy of legal notice issued on behalf of the complainant to the opposite parties by way of registered post with ack.due along with registered postal receipt.   Served copy of the reply from the opposite parties.   Certificate issued by Apna Engineers, Nellore ascertaining the quality of structures of VBAA Diamond Apartments, Ramjinagar, Nellore.   Certificate and Repairs Estimation of list in VBAA Diamond Apartment, Ramjinagar, Nellore issued by MTB Lifts, Nellore.     Letter addressed by the Aditya Solar Shop, Nellore  to the VBAA DIAMOND APARTMENT  regarding the  Solar Water Heaters System1500 lts. In VBAA Diamond Apartments, Ramjinagar, Nellore.

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

 

Ex.B1	-	:	Broacher by PVR Prestige & VBAA Diamond.
Ex.B2         Ex.B3         Ex.B4         Ex.B5         x.B6	14-03-2011 19-02-2011       22-02-2010         27-07-2011         05-04-2011         20-12-2011	:         :         :         :         :	Delivery challan bearing No.134 to the 15 KVA DGSET issued by Lakshmi Engineering services along with the copy of the cheque purchase order and broacher.   Photostat copy of Quotation/pro-forma invoice by Aditya Solar shop along with receipt dtd.25-02-2010 and 25-09-2008 for Rs.1,74,000/- and Rs.47,875/- respectively.   Photostat copy of letter requesting release of balance amount towards erection and commission of lift by Venus elevator Solution Pvt. Ltd. along with a receipt bearing No.802, 703 and 705.   Copy of extract of minutes, the resolution passed in super session relating to cheque power etc. by ABR Infra Project Pvt.Ltd.     Copy of resignation to the Board of Directors by the opposite party No.2, P.Vijaya Kumar Reddy.                                                                  Id/-                        PRESIDENT(FAC)

                                                                                                 

 

Copies to:

 

1. Sri K.Raghunatha Reddy, Advocate, 15/790, James garden, Nellore-2.

 

2. Sri M.Krishna Prasad, Advocate, Santhi Nagar, Nellore – 524 003.

 

3. Sri P.Nageswara Rao, Advocate, Flat No.4, 1^st Floor C & B, Apartments,

        Dargamitta, Nellore- 524 003.

 

Date when order copies are issued: