C.C.No.94/2013

1.

Balaji Builders and Developers,

Represented by it’s Managing Partner:K.Ashok Kumar,

2.

Kankanalapati Seetha, W/o.Ashok Kumar,

Both  presently residing at 26/2/506,

Venkatareddy Nagar, Nellore-4,

Native of Lingampadu Village,

D.V.SATRAM Mandal, Nellore District.                                                                                              

3.

Siddareddy Penchala Narayana Reddy,

S/o.Pulla Reddy, Hindu, R/o.Door No.25/10-78/B,

3^rd line S.R.Thota, Guntur-4.                                                                 ..…Opposite parties

1.

It is the case of the complainant that being a Secretary of M/s.Ashok Towers Fat Owners Association, which is a registered association  (Registered as Society No.107/2012) under Registration  of Societies Act XXXV of 2001)  representing  the said association has submitted that 1^st opposite party is the builder and 2^nd opposite party is the owner of the vacant site.  The 1^st opposite party is in the capacity of builder  constructed an apartment under the name and style of  Ashok Towers at Sullurpet, Nellore District in Sy.No.34-15A, 34-16A, 34-17A. The 3^rd opposite party, who is  a resident of Guntur is also the joint owner of the land alongwith 2^nd opposite party, where in the said apartment was constructed.  Before the selling the said flats in the apartment  as per the terms mentioned in the broacher had shown 5 floors, open terrace, and open cellar (Ground Level)   for car parking but the 1^st opposite party had shown  approved plan issued by Sullurpet Grama Panchayat for  4 floors only.  The builder  had made the members of the association to believe that he had obtained permission from concerned authorities at Hyderabad for                      5 floors.  But he had not  produced the approved copy of plan till today.

(b)

It is also further submitted by the complainant that in para 3, at page No.2 of his complaint that the 1^st opposite party had also promised that the terrace will be kept vacant except  installing water  tank and assured that the flat owners can use the terrace for conducting functions.  The 1^st opposite party had constructed 5 floors and also  constructed a large pent house in the 6^th  floor occupying most of the terrace and there is no space left for  conducting any functions by the flat owners.  He also failed to construct the compound  wall around the said apartment, an office room for association, a room for watchmen.  He also failed to transfer the electricity connections in the name of the purchasers of the flats whose list is given here under  and   he had also failed to provide car parking place.  He had further failed to demolish the store rooms constructed during the construction activities.  The  removal  of the said store rooms is very much required for parking and allotment of car parking place to the flat owners.  He had further failed to provide Building Completion Certificate to all the flat owners.  He had also failed to provide lightning protection for the building and also not provided fire installations / equipment / pipe lines etc.,

(c)

It is  also  further submitted by the complainant in para 4 of his complaint that during   the construction of septic tank near to the north-west Bore well some of the flat owners have objected that later stages it may got contaminated with bore-well and the 1^st opposite party had promised to construct the same through RCC wall with leak proof arrangements.  But he had constructed the same  with bad and unpure quality of septic tank with brick work only and resulting north-west bore well will got contaminated immediate after few months.  In view of the same the said bore well  was abandoned  and the said well is not useful for human use.

(d)

It is also further submitted by the complainant in para 5 of  his complaint that  the Complainant’s  Association had conducted meetings with the 1^st opposite party’s and in the meeting which was held on 03-04-2011.  The 1^st opposite party will complete the construction of compound wall by 05-05-2011.  In view of non-construction of compound wall, the animals are entering into the apartment and causing nuisance.  In the next further meeting held on 15-08-2012, the 1^st opposite party agreed to rectify all the above defects by 14-09-2012 but he failed to do so.  In view of his  negligence and failed to comply the conditions under the broacher furnished by him he has not complied the requirements  as demanded by the association.  Thus there is clear deficiency in service on the part of the                     1^st opposite party.

(e)

It is also further submitted by the complainant in para 6 of his complaint that he got issued a legal notice dated 22-02-2013 to opposite parties, calling upon them to comply the above said requirements.  But so far 1^st opposite party had not done.  It is also amounts to clear deficiency in service on the part of the 1^st opposite party.  It is prayed that the Hon’ble Forum may be pleased to allow the  complaint with costs as prayed for.  Hence, the complaint.

After several adjournments are granted to the 1^st opposite party to file written version by the Forum, at last on 22-01-2014, the 1^st opposite party had filed it’s counter / written version in the office but 2^nd opposite party had not preferred  to file counter / written version.  It is no doubt that the 1^st opposite party had filed its affidavit on 03-09-2014 and another additional chief-affidavit  on 15-04-2015, by resisting the complaint and denied the allegations of the complainant which are made in the complaint.  The 2^nd opposite party has adopted  the counter / written version of opposite party N.1 by filing a memo date 19-12-2014.  The 3^rd opposite party is absent continuously without any response.

(b)

Whileso,  it is  submitted  by the 1^st opposite party in para 5 of it’s written version at page No.2 that the slab on the 5^th floor was constructed on the requests of the occupiers to protect the slab from  atmosphere moisture, humidity as the area is nearer to seashore  and otherwise to slab on the 5^th floor would get damaged very quickly due to moisture.

(c)

It is also further stated by the 1^st opposite party in paras 6 to 9 of its written version that the compound wall construction is completed by the time of flat  construction, however some of the  flat owners who occupied the flats had colluded with the surrounding people and had displaced / removed some portion of the compound wall on the eastern side for their convenient egress & ingress to get  the easy reach of the maid  servants coming form surrounding area, it is submitted that, there is a civil litigation pending and also the matter was put forth before the town elders with regards  to high handed behavior of the neighbors  on removing of the wall.  It is also further submitted by the 1^st opposite party that the office room, and a watchman room were already constructed and handedover to the flat owners.  Subsequently, the office room and watch man  room are demolished by flat owners association, to shift them to some other place as per their desire / convenience.  It is also said that the car parking is also allotted as per the plan design in the ground floor.  The building completion certificate from concerned authority was provided to the flat owners.

(d)

It is also submitted by the 1^st opposite party in para 10 of  it’s written version that alleged bore-well on the north west was digged for the purpose of construct works of the flats.  So, the septic tank was constructed  near to that as per the vaasthu after the construction work is completed and therefore the alleged bore-well had been abandoned and awaiting for pulling of the pipes.  It is also  said that the bore-well  was constructed on the north-eastern side was the bore-well that provided as the main source for water consumption to the flat owners.

(e)

It is also further submitted by the 1^st opposite party in para 11 of it’s written version that it is false to state that the flat owners association had  conducted a meeting with the 1^st opposite party and it is in the meeting held on 03-04-2011 and it is further false to state that 1^st opposite party had agreed to complete the compound wall by 05-05-2012.  It is  true that the legal notice dated 22-02-2013 was received by the 1^st opposite party and a joint meeting with the flat owners was conducted and it was decided that all the flat owners will co-operate  to construct the compound wall which was removed by surrounding people with the collusion with some of the flat owners.

(f)

It is also further submitted by the 1^st opposite party in pars 13 to 16 of it’s  written version that it is false to state that there was negligence on it’s part and failed to comply to the conditions under  the broacher furnished by managing partner.  There is no merit in the averments   which are alleged by the complainant in his complaint.  There is no deficiency in service by the 1^st opposite party towards the complainant.  The 1^st  opposite party had  again submitted that in para 15 of it’s written version that he has also owns ten flats in the same apartment and by eliminating him forming complainant’s association that will clearly shows that it is with the ulterior  motive of the said association.  The complaint itself is frivolous   and it is filed at the instigation of people who had removed the compound wall construction.  It is also raised in the joint meeting with the complainant’s association by the 1^st opposite party.  In the  said circumstances, it is prayed  that the Hon’ble Forum may be pleased to dismiss the complaint with costs.

(g)

The complainant had filed his affidavit  on 31-07-2014 and the documents which are marked on his behalf as Exs.A1 to A10; whereas the 1^st opposite party had filed it’s affidavit through Secretary on 03-09-2014 and  also it’s affidavit through Secretary on   15-04-2015 and the documents which are  marked on it’s behalf as Exs.B1  and  B2.  Both the respective  counsel for the parties have filed their written arguments in support of their case.

(a)

Is there any deficiency in service on the part of the opposite parties towards the complainant?

(b)

Whether the complainant is entitled the reliefs as prayed for, if it is so,  to what extent?

(c)

To what relief?

(i).

The first and foremost contention of the said learned counsel for opposite party is that after payment of full consideration to the opposite parties by the so called flat owners are become to full-pledged owners as per their sale-deeds registered  and right and title of the property and possession of the flats as the case may be, including amenities as promised earlier.

(ii).

There is no any contract by a document that the demands of the complainant or the other flat owners have to be fulfilled after purchase etc.,  It is the duty of the venders to enquire and purchase of the flats.

(iii).

It is another contentions that the several flat owners have purchased the flats in pursuance of the contract of the opposite parties and have formed into association.  It is the association which came into existence  after the contract of sale  and the sale is completed.  In such an event, the owner or builder will not have any obligation.  The association is bound to get the arrangements made by conducting the meetings.  The builder will cease to act with regard to the flats etc., or as such.  The builder or opposite parties  are nothing to do with the demands of the association which is a new body to the builder and the builder is an outsider.  Each flat owner  should not have purchased the flats without fulfillment of these   demands if there exists such really, which have to be proved by adducing abundant evidence with cross  examination in pursuance of the Evidence Bye Laws of the association have been framed subsequent to the purchase after the flat owners  have become true owners for the benefit of the flat owners and the builder will not have any responsibility  to the association much less the reliefs in this Forum.

(iv)

In this case  the flat owners have purchased the flats  for consideration and thereafter they have come forward with this complaint by way of association.  They have been satisfied with the construction work, perused the plan  and received the same and purchased.  In the circumstances, it cannot be said that there is unfair trade practice and mislead the flat owners.  In this case sale is complete and the sale deeds have been executed and registered.  The plan is with the  association and purchased the flats after satisfied with the plan and other amenities.  It is highly impossible  that the opposite parties have constructed without approved plan.

(v)

In the bye laws,  the total members is not stated and Association Secretary cannot claim compensation for others without filing of affidavits of others.  The  bye laws is not contained provisions for filing a case in the Forum.  In the legal notice issued to the opposite parties, there are only four demands, but in the complaint there are ten demands.  As per the notice, by that time since 3  years in possession of the faults  and afterwards they came to know  about  the faults. Therefore  time has expired and the complaint is barred by  time.  The complainant has not chosen either  the Municipality or Panchayat to add as parties to the complaint, to know better the faults  on the part of the builder.

(vi)

It is only to make  wrongful gain that the complainant filed this case.  Independent consumer may be a consumer prior to purchase.  But not the association as per  the definitions of the Consumer Protection Act.  As per the bye laws of the Association as per Rule-19 of the by laws, the complainant is not empowered to file cases in the  Courts of Law or Forum or Tribunal.  As per the said Rule, the matters in between  the co-owners, flat owners will be settled, but not in between the association secretary  and the builder.  The bye laws are not framed as per rules.  The list of members are not shown.  Out of total 25 flats, only 14 flat owners formed into association.  The object of the  association is for service to the co-owners.  The builder is filing the plan sanctioned by the Government and the tax receipts issued by the Municipality. Hence, the Hon’ble Forum may be please to dismiss the complaint.

P.W.1  -

31-07-2014

Sri K. Siva Prasad, S/o.K.M.A. Prasad, Sullurpet (Chief Affidavit filed).

R.W.1  -

03-09-2014

Sri K. Ashok Kumar, S/o.Chenchurama Naidu,  Managing Partner, Balaji Builders & Developers,  Nellore District (Chief Affidavit filed)

R.W.2  -

15-04-2015

Sri K. Ashok Kumar, S/o.Chenchurama Naidu,  Managing Partner, Balaji Builders & Developers,  Nellore District (Addl.Chief Affidavit filed)

Ex.A1  -

-

Photocopy of Certificate of Registration of Societies Act XXXV of 2001 in Society No.107 of 2012 in favour of  complainant issued by  the Registrar, District Registation Office, Gudur.

Ex.A2  -

-

Photocopy of  Bye Laws of Ashok Towers Flat Owners Association.

Ex.A3  -

-

Photocopy of  Brochure given by opposite party No.1 in favour of Ashok Towers.

Ex.A4  -

03-04-2011

Photocopy of  Issues Discussions discussed by Ashok Towers owners.

Ex.A5  -

15-08-2012

Photocopy of  MOM held in between Balaji Builders and Owners of Ashok Towers.

Ex.A6  -

22-02-2013

Photocopy of  legal notice from complainant’s advocate              Sri Vemana Gopi addressed to the opposite parties.

Ex.A7  -

04-07-2013

Photocopy of  R.T.I. Act, 2005 information from Public Information Officer, Sullurpet to the K. Ramakrishna Rao and Provisional Order in U.C.No.17/2013, dated 05-07-2013 to the  opposite party No.2 given by Municipality of Sullurpet  Office.

Ex.A8  -

-

Six photos, One closed C.D. Mailer / Floppy Disk addressed from K. Ramakrishna Rao to the complainant’s advocate.

Ex.A9  -

09-07-2013

Andhra Prabha  Main Paper and District Edition.

Ex.A10  -

10-07-2013

Andhra Prabha  District Edition.

Ex.B1  -

-

Photocopies of seven receipts  Nos.762 on 07-11-2012, 763 on 07-11-2012, 3637 on 06-06-2013, 3643 on 06-06-2013,3638 on 06-06-2013, 1441 on 06-01-2014 and 1442 on 06-01-2014 issued by Municipal Administratio Department, Sullurpet Municipality, S.P.S.R.Nellore District.

Ex.B2  -

-

Plan  relating to Ashok Towers issued by Panchayat Secretary, Gram Panchayat,  Sullurpet.

1.

Sri V. Chandra Sekhar  Reddy, Advocate, D.No.23-2-11, 1^st Cross Road,  (C.A.M.Compound), Ramesh Reddy Nagar, S.P.S.R.Nellore-524 003.

2.

Sri V. Subrahmanyam and Sri V. Tulasi Jalandhar Reddy, Advocates, 20-2-756-3, Brahmin Street, Mulapet, Nellore.

3.

Sri Siddareddy Penchala Narayana Reddy, S/o.Pulla Reddy, R/o.Door No.25/10-78/B,

3^rd line S.R.Thota, Guntur-4.