Andhra Pradesh

East Godwari-II at Rajahmundry

CC/30/2013

GOLLAPALLI VENKATA RAMA PHANINDRA KUMAR - Complainant(s)

Versus

1.M/S SAI PRIYANKA HOUSING PROJECTS (P) LTD., AND ANOTHER - Opp.Party(s)

SRI. M.S. SUBBA RAO

28 Sep 2015

ORDER

                                                                                    Date of filing:   06.09.2013

                                                                                                Date of Order: 28.09.2015

 

BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI

DISTRICT AT RAJAHMUNDRY

 

          PRESENT:   Smt H.V. Ramana, B.Com., L.L.M.,   PRESIDENT(FAC)

                                Sri A. Madhusudana Rao, M.Com., B.L., MEMBER          

    

                            Monday, the 28^th day of September, 2015

C.C.No.30 /2013

Between:-

 

Gollapalli Venkata Rama Phanindra Kumar,

Rep. by its Power of Attorney,

Gollapalli Rohini Kameswara Kumar,

S/o. late Ramalinga Murthy, aged 65 years,

R/o. H.No.44, DBV Raja villas,

Diwanacheruvu – 533296, Rajahmundry Rural,

East Godavari District.                                                                  …        Complainant

 

                        And

 

1)  M/s. Sai Priyanka Housing Projects (P) Ltd.,

     Dr.No.28-09-68/4, Ganesh Chowk, Jampeta,

     Rajahmundry.

 

2)  Yerra Gurudev, S/o. Rama Murthy,

      R/o. D.No.74-08-12, Prakash Nagar,

      Rajahmundry.                                                                   …        Opposite parties

 

 

 

 

            This case coming on 21.09.2015 for final hearing before this Forum in the presence of Sri M. Siva Subba Rao, Advocate for the complainant and Sri P. Nanda Kishore, Advocate for the opposite parties, and having stood over till this date for consideration, this Forum has pronounced the following:  

O R D E R

[Per Smt.H.V. Ramana, President(FAC)] 

This is a complaint filed by the complainant U/Sec.12 of Consumer Protection Act 1986 to direct the opposite parties to pay Rs.11,500/- being the excess amount paid by complainant to them; pay Rs.1,20,000/- towards damages @ Rs.4,000/- from November, 2010 to May, 2013; pay Rs.1,09,156/- towards interest; pay Rs.1,551/- towards property tax paid by the complainant; pay Rs.5,00,000/- towards compensation for pain and agony suffered by the complainant and award costs.

2.         The case of the complainant is that he purchased an extent of 150 sq. yards in Plot No.28 in R.S.No.99, Venkatapuram village, Rajanagaram Mandal under Sale deed dt.25.1.2010 and entered into an agreement on 29.4.2010 with the opposite parties for construction of two bed room independent house. As per the agreement, the opposite parties shall complete construction of the building within six months from the date of agreement i.e. before November, 2010 and paid Rs.10,90,000/- towards consideration, but the opposite parties failed to render the service undertaken and failed to deliver the building. The complainant paid an amount of Rs.1,30,500/- as final payment and Rs.11,500/- towards additional expenses for modification of civil and electrical work.  Despite repeated requests and even after receiving the final payment, the opposite parties failed to even respond to such request. The complainant got issued notice on 27.5.2013 to the opposite parties. After receipt of the same, the opposite parties sent a belated reply dt.29.6.2013. The opposite parties failed to arrange electricity, water connection and used inferior quality of tiles for flooring.  The complainant also paid property tax of Rs.1,551/-.  Hence, the complaint. 

3.         The opposite parties filed its written objections and denied the allegations made by the complainant. It is submitted that the sale agreement cum GPA holders of Sri Apparao Vadayar, namely Bommana Raj Kumar and Yerra Gurudev sold the Plot No.28 in an extent of 150 sq. yards of site situated at Rajanagaram Gram Panchayat with approved layout plan P.R. No.47/85-86 to the complainant by way of Regd. Sale deed dt.25.1.2010 with document No.423/2010 of S.R.O. Rajanagaram.  Possession was handed over to the complainant immediately after the registration. The complainant and the 1^st opposite party entered into construction agreement of the property in Plot No.28 with terms. As per the terms of the agreement, the complainant is entitled to take possession of the said independent building only if he has duly observed and performed all the obligations and stipulations contained in the agreement and on payment of all the amount due and payable and occupy and use the same and shall pay the Municipal taxes and charges for electricity, water and other services in respect of the said house. Though the plastering and finishing and painting work was completed, the complainant intentionally not paid the relevant amount to the opposite parties even after several reminders and personal requests by them.  Moreover any expenses or deposits required by A.P.S.E.B towards electrification for getting electricity service connection to the said building must be paid by the complainant, but the opposite parties paid the said amount. The complainant sought extra construction and amenities apart from the Schedule –B annexed to the agreement, and same was completed by the opposite parties additionally spending Rs.25,000/-, but said amount was not paid by the complainant to the opposite parties.  The opposite parties completed the building and handed over the same to the complainant after the payment of final payment by the complainant to the opposite parties as stipulated in the agreement. The opposite parties acted in good faith, completed the building with standards and as per the agreed conditions and on the part of the opposite parties there was no deficiency of service at any point of time. In the event of any dispute between the parties, it was agreed that the same shall be referred to Arbitration, each party to nominate one Arbitrator and in the event of difference, the decision of umpire appointed by the Arbitrators is final and the proceedings shall be governed by Arbitration Act, 1940.  After repeated demands, the complainant paid Rs.1,30,000/- through State Bank of India, Diwanacheruvu Branch in the month of February, 2013. The complainant having violated the agreed terms and conditions for the Plot No.28, intentionally not made the payments periodically and defaulted resulting in loss and damage to the opposite parties. Because of the willful delayed payments made by the complainant, the opposite parties were forced to pay additional amount in view of hike in prices in the building material. The opposite parties sustained loss in the project due to delayed payments made by the owners of the building. The complainant is not entitled for any of the reliefs sought in the complaint.  Hence, there is no deficiency of service on the part of the opposite parties and the complaint is liable to be dismissed with costs.

4.         The proof affidavit filed on behalf of the complainant and Exs.A1 to A6 have been marked on behalf of him. The proof affidavit filed on behalf of the 2^nd opposite party and there is no documentary evidence adduced by them. Written arguments filed on behalf of the opposite parties.

5.         Heard both sides.

6.         Points raised for consideration are:

 

      1)   Whether there is any deficiency in service on the part of the opposite parties?

                  2)   Whether the complainant is entitled for the reliefs asked for?

                  3)   To what relief?

         

          Admitted facts in this case are that the complainant purchased a plot from the opposite parties and also entered into an agreement for construction of two bed roomed independent house.  For which, both parties signed on the agreement vide Ex.A2 in which the opposite parties gave certain specifications for the construction of the schedule property.  The complainant gave a power of attorney to his father for pursuing the matter vide Ex.A1. The complainant obtained loan from the State Bank of India, Rajanagarm for the construction of the independent house and the said loan amount was disbursed to the opposite parties in Ex.A2.  When the opposite parties failed to hand over the house as per the terms and conditions to the complainant, he got issued a legal notice to the 1^st opposite party vide Ex.A3 and the same was received by the 1^st opposite party vide Ex.A4 and the 1^st opposite party gave a reply by denying the allegations made by the complainant vide Ex.A5.  The complainant paid the house tax and the receipt is herewith filed vide Ex.A6. 

7.  POINT Nos.1 & 2:   The opposite parties promised the complainant to construct the building in all aspects within six months from the date of the agreement i.e. before November, 2010 and the complainant has to pay Rs.10,90,000/- as consideration for the services undertaken by the opposite party. The complainant contended that he borrowed Rs.13,10,000/- from State Bank of India, Diwanacheruvu and paid amount to the opposite parties and foregoing huge amount of interest on the loan till today, the opposite parties has not given the possession of the scheduled building.  He further contended that the opposite parties willfully failed and neglected in delivering the building and he also submitted that he paid an amount of Rs.1,30,500/- as final payment on 4.3.2013, even then the opposite parties have not completed the works of the building. 

            The opposite parties denied the allegations of the complainant and submitted that they have completed the work as per the agreement and handed over the property to the complainant long back and also submitted that there is no deficiency in service on his part and he is not liable to pay any amount to the complainant as prayed for in the complaint.

            The complainant filed a petition to appoint an advocate commissioner to this Forum to ascertain the works that have been done by the opposite parties. The Advocate commissioner visited the premises and filed the report before this Forum, in which she observed that there is no provision of submersible pump and floor tiles are inferior quality and are not laid uniformly and they are uneven.  She also mentioned that the walls are having cracks and the schedule property is using by somebody because there was a motorcycle was parked within the schedule property. There are several cracks and fissures on the plastering on the pillars and also there are cracks outside the building. There is no water supply in the building and no panchayat connection is provided and there is no pipe line for that purpose are laid. The master bed room finishing is not proper and the doors and windows are not properly fixed and they are not in good condition and they could not be closed fully.  There are several smears on the inside walls of the schedule property indicating that someone is using the property including parking of the vehicles.

            After perusing the material on record, it is observed that the complainant paid the entire amount to the opposite parties and the same is not denied by them and he never made any demand that the complainant is a defaulter and he also not filed any document that he asked the complainant to occupy the building as he has completed the building as per the agreement. Basing on the commissioners report and other material papers on hand shows that there is deficiency in service on the part of the opposite parties by not completing the works as per the agreement.   As per Ex.A2, it is observed that the bank disbursed the amounts in two installments i.e. Rs.8,70,000/- and Rs.1,30,500/- to the opposite parties.  The opposite parties also mentioned in their agreement that the complainant already paid Rs.2,70,000/- as advance on 29.4.2010.  As per the agreement, the opposite parties have to hand over the building to the complainant within six months i.e. before November, 2010 to the complainant.  But, the opposite parties have not handed over the building to the complainant as per the terms and conditions of the agreement.  Therefore, we opined that the complainant has incurred heavy loss by not occupying the building since November, 2010 till date.  This amounts to deficiency in service on the part of the opposite parties and they are supposed to complete the building as per the terms and conditions of the agreement and hand over the same to the complainant immediately.            

8.   POINT No.3:  In the result, the complaint is allowed in part and directing the opposite parties to hand over the building as per the agreement and also with electrical connection and Panchayat tap connection to the complainant. We further direct the opposite parties to pay Rs.1,00,000/- as damages to the complainant for non-delivering the scheduled property within the stipulated time.  We further direct the opposite parties to pay Rs.4,000/- towards costs of the complaint to the complainant.  Time for compliance is two months from the date of this order.  

Typed to dictation, corrected and pronounced by us in open Forum, on this the 28^th 

day of September, 2015.

    

                    Sd/-xx                                                                                           Sd/-xx

              MEMBER                                                                              PRESIDENT(FAC)

         

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

 

FOR COMPLAINANT: None.                                                                                                        FOR OPPOSITE PARTIES: None.

 

DOCUMENTS MARKED

 

FOR COMPLAINANT:

 

Ex.A1    dt/06.07.2013            Power of attorney executed by the complainant in favour of his

                                                father.

Ex.A2    dt/29.04.2010            Agreement for construction between the complainant and the

            opposite parties (Photostat copy).

Ex.A3    dt/27.05.2013            O/c of Notice issued by the complainant to the opposite parties.

Ex.A4    dt/                              Postal acknowledgement.

Ex.A5    dt/29.07.2013            Notice issued by the opposite parties.

Ex.A6    dt/06.07.2013            Property tax receipt.

 

 

FOR OPPOSITE PARTIES:-      - Nil -

 

 

 

                  Sd/-xx                                                                                          Sd/-xx

              MEMBER                                                                              PRESIDENT(FAC)