Andhra Pradesh

Nellore

CC/80/2015

1.Vedam Sri Jayanthi W/o Late Venkata Krishna Moorthy - Complainant(s)

Versus

1.Siri Smaart Construction,Nellore. Rep by its Managing Partners. Chaluvadi Venkata Subbaiah Alias V - Opp.Party(s)

S.Sree Ramulu

10 Oct 2017

ORDER

                                                                      Date of Filing     :28-08-2015

                                                                  Date of Disposal:10-10-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Tuesday, this the 10^th day of   OCTOBER, 2017

 

          Present: Sri Sk.Mohd.Ismail, M.A., LL.B., President

                         Sri K. Umamaheswara Rao, M.A., B.L., Member

                         Sri M. Subbarayudu Naidu, B.Com., B.L., LL.M., Member

 

C.C.No.80/2015

1.	Vedam Sri Jayanthi, Hindu, Aged 45 years, W/o.Late Venkata Krishna Moorthy,
2.	Vedam Deepthi Sudha, Minor, Aged  14 years, D/o.Venkata Krishna Murthy (Late)
3.	Vedam Venkata Harsha Vardhan, Minor, Age 12 years, S/o.Late Venkata Krishna Murthy,   2nd and 3rd complainants are being minors, Represented by their natural mother / guardian:     Vedam Sri Jayanthi, R/o.D.No.24-1-1833, Brahmanandapuram, Dargamitta, Nellore City.                   ..… Complainants

 

                                                             Vs.

SIRI SMAART Construction, Represented by it’s Managing Partners, Nellore.
1.	Chaluvadi Venkata Subbaiah @ Vivekananda, Aged 47 years, S/o.Balaiah, Sarada Textiles, R/o.Barrecks, Peda Bazar, Nellore.
2.	Solleti Venkata Ramanaiah, S/o.Pedda Kondaiah, Aged 40 years, Door No.12-1-803, 2nd floor, Narayana Rao Pet, Santhapet, Nellore City.                      ..…Opposite parties

                                                             .

          This complaint coming on 27-09-2017  before us for hearing in the presence of Sri S. Sree Ramulu, advocate for the complainant and                                                     Sri Dasu Guru Kumar,   advocate for the opposite parties  and having stood over for consideration till this day and this Forum made the following:

 

ORDER

                       (ORDER BY  SRI  K. UMAMAHESWARA RAO, MEMBER)

 

This complaint is filed under Section-12 of Consumer Protection Act, 1986 prays the Hon’ble Forum to direct the opposite parties  1 and 2 to complete  the 5 flats in Jwala Enclave, Brahmanandapuram, Dargamitta, Nellore allotted to the complainants as agreed upon without further delay within the stipulated time as granted by this Hon’ble Forum, to pay compensation of Rs.10,00,000/- with interest 24% p.a., from the date of expiry of grace period  till realization towards damages  for non-completion of work  and also to pay Rs.50,000/-  towards compensation for loss of pain and mental agony along with costs.

 

2.    The brief averments of the complaint are as follows:

 The complainant submit that they are the absolute owners of property situated in ward No.24/1, Prasanthi Nagar area in an extent of 96  ankanams and they handed over the said site to the opposite parties, who are builders for construction of the same.  As per the joint development agreement cum General Power of Attorney, the complainant was allotted 5 flats.  Inspite of time  allotted is over the opposite parties have not completed the 5 flats of the complainant till today and  purposefully dragging the matter and so the complainant got issued notice dated 26-06-2015 demanding them to complete   the said work and handover the flats.  But, no reply.  Hence the acts of the opposite parties committed deficiency in service  in not handed overing the  flats.

 

3.  The  brief averments of the opposite parties are as follows: 

 The opposite party No.1  submit  that originally the complainants  are having only 48  ankanams of site, but not 96  ankanams of site as stated in the complaint.  One  Cavuturu Surveswara Rao, Son of Venkata Ranga Rao is having another 48 ankanams  of site adjacent to the complainants site.  The complainants and the  said Cavuturu Surveswara Rao are jointly approached the  opposite parties  for proposed construction of apartment  in their respective sites jointly the total extent is 96 ankanams situated at Brahmanandapuram, Dargamitta, Nellore.  After negotiations, the opposite parties have accepted for the said proposal.  The complainants, Cavuturu Surveswara Rao and opposite parties have reached an understanding to construct apartment under the name and style as “JWALA ENCLAVE”.  Thereafter all of them have entered into Joint Development Agreement cum General Power of Attorney and got it registered on 18-032013 under  Doc.No.2490/2013 of Jt.SRO, Nellore.

 

4.     Immediately after  entering into the  Joint Development Agreement cum General Power of Attorney, the opposite parties have started construction.  Sometime after  starting construction, the 1^st complainant giving  troubles to the opposite parties in constructing the apartment and with the interference of the elders,  she keep quite. The opposite parties submitted that as per the terms and conditions of the Joint Development Agreement cum General  Power of Attorney,  the  opposite parties  have  finished  the entire apartment construction work, common corridor work, electrical work, wood work, plumbing work, drainage work, painting work, generator work, parking places work, water tank work and lift work by                 16-12-2014 to the knowledge of one and all including the complainants.

 

5.       The opposite parties submitted that as per the terms and conditions of the Joint Development Agreement cum General Power of Attorney, the opposite parties  have delivered possession of completed full shape of  apartment and its locks of  Flat No.201 handed over to the 1^st complainant Vedam Sri Jayanthi, Flat Nos.202 and 401 to the 2^nd complainant Vedam Deepthi Sudha and Flat No’s G-1 and G-2 to the 3^rd complainant Vedam Venkata Harshavardhan (their share 5 flats in no.) and as well as other owners  respectively and out of 10 flats  of opposite parties 9 flats are sold away to third parties belongs to them.

 

6.    The opposite parties submits that after completing the  entire apartment  construction work  and after occupying the respective owners of the flats, the  Commissioner, Nellore Municipal Corporation had levied the property tax and issued demand notices to all the owners of 20 flats  in their respective names for second half year 2014-2015 II (starts from 1^st October 2014).  The following   Assessment numbers are allotted to apartment house flats for the complainants bearing number 1031093586 to flat No.201 in the name of 1^st complainant, 1031093587 to flat No.202 and 1031093594 to Flat No.401 in the name of 2^nd complainant and  1031093578 to flat No.G-1 and 1031093579 to  Flat No.G-2 in the name of 3^rd complainant.  Thereafter  the complainants have also paid  the above said property tax to the  Nellore Municipal Corporation standing in their names. 

 

7.       The opposite parties  further submitted that the electricity service connections are allotted to all the 20 flats  independently and allotted HSC No’s  to G1-is 3311206214854, G-2 is 3311206214855, 201 is 3311206214862, 202 is 3311206214863, 401 is 3311206214870 respectively to the complainants flats and they have been regularly paid the said electricity charges from the beginning.

 

8.        After taking delivery of possession and occupying their  respective apartment house flats belonged to the complainants  i.e., fat numbers G-1, G-2, 201, 202 and 401 (their share 5 in no.) from the opposite parties,  on 16-12-2014 the opposite parties have prepared “Possession & Handover letter” and requested the complainants to sign  on the said letters, but the complainants are postponed to sign on it with a malafide, dishonest intention and to wrongful gain.  The opposite parties have demanded the complainants several times to sign on the said “Possession & Hand over letter”.

 

9.      The opposite parties submitted that  in the month of December, 2014 itself, the officials of the Government of India, Customs Central Excise & Service Tax Department Office, Nellore has approached the complainants for rent purpose and the complainants agreed to let out flat No.G-1 to their office purpose.  Thereafter they are send proposals to their higher officials and as well as for rent fixation to the R & B department.  After obtaining permission from their officials, they are occupied the said flat No.G-1 and running their office in it and another portion of flat No.401 house let out  to one Bheemi Reddy family, who worked in Zilla Praja Parishad Office, Nellore.

 

10.     The opposite parties submitted that the 1^st complainant  had tried to sell their share of 5 flats  to third parties through the  real estate brokers.  The 1^st complainant sold  flat No.G-2 to one Vuppala Suresh, S/o.Vuppala Rathnam, who worked as Assistant Engineer in A.P.Transco Department on 06-04-2015 on behalf  of her ;minor son Vedam Venkata Harshavardhan and  1^st complainant had issued a receipt to him on Indian Non-Judicial Stamp Paper for worth of Rs.10-00 (agreement) for a valuable consideration ofRs.51,00,000/-  by taking an  advance  total amount on            06-04-2015 of Rs.4,00,000/-, on 01-06-2015 of Rs.4,00,000/-  and on 20-06-2015 of Rs.2,00,000./- in total a sum of Rs.10,00,000/- in three instalments from the said Vuppala Suresh and made part  payment endorsements to the said effect on the reverse of  the said  receipt on the respective dates by the 1^st complainant. 

11.     The opposite parties submitted that after handing over apartment flat No’s          G-1, G-2, 201, 202  and 401 by the complainants, the 1^st complainant started some alteration works inside their flats 201 and 202  as per Vasthu and Vuppala Suresh, who purchased the flat No.G-2 from the 1^st complainant had also started some alteration  work as his desire in his flat No.G-2.  The opposite parties have not concern to the said alteration works doing by them in their flat no’s  G-2, 201 and 202.

 

12.    Even after sold one  of their flat No.G-2 out of 5 flats to the said Vuppala Suresh, the 1^st complainant had fraudulently published an advertisement for sale of their 5 flats  instead of 4 flats on 26-06-2015 Sunday, 02-08-2015 Sunday,                       09-08-2015 Sunday and 22-11-2015  Sunday in “Eenadu Classifieds” as “Flat for sale” in telugu and as well as in English languages is s follows:

In English:- Best Price on Immedite Sale:  Newly Constucted 5 flats for sale, each 1480 sfs.  3 BHK @ 65  Lakhs Last 5 flats  out of 20 are available in  Prime Residential cum Commercial locality.  Jwala Enclave, Brahmanandapuram, Santhi Nagar, Nellore. Constructed by Siri Smart Construction Nellore.  Cash Parteis only.  NoNegotiable and No brokers. Please Cont:73869 72661 between 10 AM to 5 PM only.  Another cell number 94416 85441 is also given on 22-11-2015 Sunday advertisement.

 

In Telugu: “బ్రహ్మనందాపురం, శాంతినగర్ నందు  నూతనంగా నిర్మించిన  అపార్ట్ మెంట్ నందు 1480 చ11  అడుగులు 3 పడక గదులు కలిగిన 5  portions  అమ్మకానికి  కలవు.  1 portion 65 లక్షలు మాత్రమే .  వ్యాపార గృహవసతికి అనువైన స్థలం. ఫోన్ నెంబర్ 7386972661”

 

13.      The opposite parties have not completed  the construction of apartment house flats as stated in the complaint by the complaints, is it possible to her to let out flat no’s G-1 and 401 to the tenants for rent purpose?   And is it possible to her to sold flat No.G-2 to one Vuppala Suresh? .  One of tenant  Government of India Customs Central Excise & Service Tax Department Office  had been running their office in flat No.G-1 and another tenant Bheemi Reddy family has also residing with his family in flat No.401.  The tenants are also parked their vehicles in their respective parking  areas.

 

14.    The opposite parties submitted that there  is no deficiency of service on the part of  opposite parties and that there is no relationship in between the complainant and opposite parties as defined under the  provisions of Consumer Protection Act and the present complaint is not come under the purview  of the Consumer Protection Act.  Hence, the complaint is liable to be dismissed  with costs.

 

15.     On behalf of the complainant no evidence was  adduced  and no documents were marked.

 

16.     On behalf  of opposite party  No.1  R.W.1 was examined and Exs.B1 to B22 were marked.

 

17.      Written arguments on behalf of complainant not filed and written arguments of opposite parties filed.

 

 18.       Perused the written arguments filed on behalf of opposite parties.

 19.      Arguments heard on behalf of opposite parties heard.

 20.       Complainant was absent continuously and as there is no representation, it is treated that the complainant side of arguments heard.

 

 21.    Now the points for consideration are:

1. Whether the complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 against the opposite parties 1 and 2 is maintainable?
2. To what relief, the complainant is entitled?

 

22.     POINT No.1   As per the pleadings  and evidence  on record, we can understand that the complainant filed the complaint against the opposite parties 1 and 2 to complete the  5 flats  in Jwala Enclave, Nellore allotted to the complainant without any further delay within the stipulated time  as granted by this Forum and to pay  compensation of Rs.10,00,000/- with  interest at 24% p.a. from the date of expiry of grace period  for realization  for deficiency of service  for causing abnormal abnormal delay in completing work and Rs.50,000/- towards compensation for mental agony  along with costs.  But the complainant to prove the same he did not adduce any evidence.  So in the absence of the  same, we cannot  consider the complainant version.  The same   aspect was discussed by our Hon’ble National Commission in:

Rangannagiri  Yadavareddy Vs. Dr. Vijaya Kumari reported in 2001 (2) CPJ 391.

 

          Wherein   it is held s follows:  “Averments in  complaint by themselves cannot be accepted without evidence.”  

           By relying upon the above decision, the facts of the case  as the complainant failed to adduce  evidence in support of his version.  So the averments in complaint by themselves cannot be accepted without evidence.

               In view of the above decision and discussion made above, we are of the  opinion that the complainant failed to prove  his case  with  convincing  and as  there is no deficiency of service.  Accordingly, the complaint filed by the complainant against the opposite parties 1 and 2 is not maintainable and the same  has to be dismissed.  Hence, we answer  this point  against  the complainant. 

 

23.   POINT No.2  In view of our answering on point No.1 against  the  complainant and in favour of the opposite parties 1 and 2, the complaint filed by the complainant against  the opposite parties 1 and 2 is not maintainable and the  same has to be dismissed.

      In the result, the complaint is dismissed, but in the circumstances no costs.

 

Typed to my dictation by stenographer Smt.A.Jayalakshmi, corrected  and pronounced by us in the open Forum, this the 10th  day of OCTOBER, 2017.

 

         Sd/-                                              Sd/-                                             Id/-

      MEMBER                                MEMBER                                PRESIDENT

 

                                      APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

 

-NIL-

 

 

Witnesses Examined for the opposite parties

 

R.W.1	22-04-2016	Chaluvadi Venkata Subbaiah @ Vivekananda son of Balaiah, Hindu, aged 50 years, resident of Chinna Bazar, Nellore.

 

                           EXHIBITS MARKED FOR THE COMPLAINANT

 

-NIL-

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

 

Ex.B1	-	Demand notice  bearing No.33230 issued by the Commissioner, NMC in favour of the 3rd complainant to flat no.G-1 for the year 2014-2015.
Ex.B2	-	Demand notice bearing No.33231  issued by the Commissioner, NMC, infavour of the 3rd complainant to flat no.G-2 for the year 2014-2015 II.
Ex.B3	-	Demand notice bearing No.33238 issued by the Commissioner, NMC in favour of the 1st complainant to flat no.201 for the year 2014-2015 II.
Ex.B4	-	Demand notice bearing No.33239 issued by the Commissioner, NMC in favour of the 2nd complainant to flat no.202 for the year 2014-2015 II.
Ex.B5	-	Demand notice bearing No.33246 issued by the Commissioner, NMC in favour of the 2nd complainant to flat no.401 for the year 2014-2015II.
Ex.B6	16-12-2014	Copy of POSSESION & HAND OVER LETTER” to flat No.G-1.
Ex.B7	16-12-2014	Copy of POSSESION & HAND OVER LETTER” to flat No.G-2.
Ex.B8	16-12-2014	Copy of POSSESION & HAND OVER LETTER” to flat No.202.
Ex.B9	16-12-2014	Copy of POSSESION & HAND OVER LETTER” to flat No.201.
Ex.B10	16-12-2014	Copy of POSSESION & HAND OVER LETTER” to flat No.401.
Ex.B11	26-06-2015	“Eenadu” daily paper ads .
Ex.B12	02-08-2015	“Eenadu” daily paper ads.
Ex.B13	09-08-2015	“Eenadu” daily paper ads.
Ex.B14	22-11-2015	“Eenadu” daily paper ads.
Ex.B15	09-11-2015	Copy of  Property tax bill issued by the Commissioner, NMC, infavour of the 3rd complainant to flat no.G-1 for the year 2015-2016 II).
Ex.B16	09-11-2015	Copy of  Property tax bill issued by the Commissioner, NMC, infavour of the 1st complainant to flat no.G-2 for the year 2015-2016 II)
Ex.B17	09-11-2015	Copy of  Property tax bill issued by the Commissioner, NMC, infavour of the 2nd complainant to flat no.201 for the year 2015-2016 II)
Ex.B18	09-11-2015	Copy of  Property tax bill issued by the Commissioner, NMC, infavour of the 2nd complainant to flat no.202 for the year 2015-2016 II)
Ex.B19	09-11-2015	Copy of  Property tax bill issued by the Commissioner, NMC, infavour of the 2nd complainant to flat no.401 for the year 2015-2016 II)
Ex.B20	24-11-2015   31-12-2014	Photographs 19 nineteen in nos.
Ex.B21	31-12-2014 24-11-2015	The Sony DVD-R for photographs two in nos.
Ex.B22	06-04-2015	Copy of receipt (Agreement) issued by the 1st complainant in favour of Vuppala Suresh.

 

                                                                                                            Id/-

                                                                                                      PRESIDENT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Copies to:

 

1.	Sri S. Sree Ramulu, Advocate, Ground Floor, Room No.1, Dilshan Apartment, Main Road, Fathekhanpet, Nellore-524 003.
2.	Sri Dasu Guru Kumar, Advocate, Nellore.

 

Date when free copy was issued: