BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD.
C.C.No.57/2011
Between:
M/s. Gayatri Residency Flat Owners Welfare Association,
Rep. by its President Sri A.Pramood Kumar Reddy,
S/o.Narasa Reddy , aged about 40 years,
Occ:Govt. Employee,
R/o.Flat No.202, Gayatri Apartments,
H.No. 8-7-133/7, Ghori Nagar,
Old Bowenpally,
Secunderabad-11. …. Complainant
And
1.Smt. P.Rukmini ,W/o.P.Kondal Reddy,
Aged about 39 years, Occ:Housewife,
R/o.Flat No.301, Balaji Residency,
Rajareddy Colony, Old Bowenpally,
Secunderabad.
2. B.Padmaja, W/o.B.Srinivasa Reddy,
Aged about 34 years, Occ:housewife,
R/o. Plot No.3, Srilakshminagar,
Bowenpally, Secunderabad.
3. Smt. G.Sridevi, W/o.Sri S.Lingareddy,
Aged about 36 years, Occ:Service,
R/o.Flat No.302, Balaji Enclave,
Raja Rajeshwari Colony, Behind MMR Gardens,
Old Bowenpally, Secunderabad.
4. Smt. B.Swathi, W/o.B.Mahender Reddy,
Aged about 31 years, Occ: Housewife,
R/o.Plot No.3, Srilakshminagar,
Bowenpally, Secunderabad.
5. M/s. Balaji Construction,
Rep. by its Managing Partners,
i. B.Srinivasa Reddy, S/o.B.Manikya Reddy,
ii. K.Krishna Reddy,S/o.Narayana Reddy,
R/o.Plot.No.3, Laxminagar Colony, Bowenpally,
Secunderabad. .. Opp.parties
Counsel for the complainant : M/s.A.M.Rao
Counsel for the opp.parties : M/s. N.Manohar-R1 to R4
M/s.B.M.Krishna Reddy –R5
QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
MONDAY, THE EIGHTH DAY OF OCTOBER,
TWO THOUSAND TWELVE.
Oral Order : (Per Sri S.Bhujanga Rao, Hon’ble Member).
***
This is a Consumer Complaint filed by the complainant M/s.Gayatri Residency Flat Owners Welfare Association u/s.17(a)(1) of the Consumer Protection Act seeking to direct the opposite parties to pay a sum of Rs.47,00,000/- towards damages and for mental agony sustained by the complainant and her family members and to pay costs of the complaint.
The case of the complainant as set out in the complaint is that the complainant Society comprises of 13 flat owners. All the members of the Society have purchased flats from the opposite parties. Each of the members of the Society, in their individual capacity, purchased a flat form the opposite parties. At the time of registration of sale, the opposite parties have assured the members that the following facilities to be provided and promised accordingly :
1. Separate 12VA Transformer of GE or Aistom Make.
2. John or Oitos make 6 passengers Lift.
3. Standard Electricity fittings inside and out side the flats and in common areas of the apartments.
4. Green wood made 25 KV generator.
5. Complete colouring and elevation to the apartment.
6. Good plumbing work and fitting to provide water and drinking water supply into the flats.
7. Drinking water connection to the apartment from the GHMC.
8. Full protection from the outsiders and security arrangements to the apartment.
9. The opposite parties are not yet handedover the title deeds pertaining to the land inspite of selling away all the flats to the members of the complainant association.
But the opposite parties have failed to provide all the above facilities to the flat owners, as assured in the agreement of sale.
When the purchasers questioned the opposite parties, at the time of registration, about the inadequate facilities and non performance of the obligation under the agreement of sale, the opposite parties have assured that they would provide all the facilities within short period. Believing the words of the opposite parties, the purchasers have paid the entire balance of consideration and got the flats registered. However, even after considerable time, opposite parties have not fulfilled the commitments made at the time of registration. In the mean while, the flat owners have started realizing that the construction was severely defective. There were several water seepages inside the flats and apartment and severe electrical fluctuations in the flats due to lack of transformer. Several T.Vs got damaged due to the electrical fluctuation in the Electric supply. Rain water harvesting pit collapsed, water started accumulating in the stilt area meant for parking , walls of the outer side of the apartment started getting wet and water started dripping from the walls and stilt area. Hence the complaint.
Resisting the compliant, the opposite parties 1 to 4 filed their counter/written version denying the material allegations made in the complaint and contended that the present consumer case was filed in gross abuse of process of law and that the complainant is not a consumer falling within the meaning of Section 2(d) of the Act and there is no deficiency to come under the purview of the definition under Section 2(f) or (g) of the Act and that the present Consumer dispute as raised by the complainant is absolutely motivated and not maintainable. The opposite parties submit that they never promised or undertaken for provision of a separate transformer of 12 VA of GE or Aistom make, John or Oitos make 6 passengers lift, Green Wood made 25 KV Generator, drinking water connection to apartment from GHMC, full protection form the outsiders and security arrangement. The opp.parties, however, completed the construction to the satisfaction of the purchasers by providing standard electricity fittings, inside and outside the flats and also in common areas, besides completing the colouring and elevation to the complex and also finished the plumbing works and plumbing fittings and the provision for drinking water supply to all the individual flats. The opposite parties 1 to 4 even provided a lift which was suppressed by the complainant. That the opp.parties 1 to 4 have already provided the lift and completed the constructions in all the individual flats and after thoroughly being satisfied with the standard of construction made by the opp.parties 1 to 4, the purchasers occupied the flats, without any grievance during 2007/2008 and subsequently entertained an idea to harass the opp.parties, through the present complaint, which is purely an after thought and as a speculative litigation, after 3 years from the date of handing over possession of the individual flats. U/s.24(a) of the Consumer Protection Act, 1986 time for raising any consumer dispute under Section 2(e) of the Act is 2 years from the date of cause of action and in the instant case, the cause of action was falsely referred by the complainant as 28.2.2010, while the respective flats were delivered to the most of the purchasers during 2007 and 2008 . On this count also the present complaint is absolutely barred by limitation and is not maintainable.
Infact, the Electricity Department made inspection and sanctioned the meters to individual flats and never instructed for a spate transformer and at no point of time, the complainant or its members lodged any complaint about fluctuation with the Electricity Departments. There is absolutely no proof for the allegations fabricated by the complainant and there is also no basis for the claim of the complainant to direct the opposite parties to pay an amount of Rs.47 lakhs towards damages or mental agony.
The opp.parties further contended that some of the members of the complainant did not make the total payments towards purchase of the flats/ works executed by the opp.parties 1 to 4 and when a demand was raised with them, they manipulatively filed this complaint to silence the opp.parties 1 to 4 reserving their right to take steps to recover the amounts. The opp.parties further contended that the 5th opposite party has nothing to do with the constructions made by the opposite parties 1 to 4 and opp.parties 1 to 4 failed to understand as to why the 5th opposite party was dragged into this frivolous litigation being a stranger to the transaction between opp.parties 1 to 4 and the complaint on this count also should be dismissed for misjoinder. The opposite parties prayed for dismissal of the complaint with exemplary costs.
Resisting the complaint, opposite party no.5 filed a separate version contending that the present consumer case was filed in gross abuse of process of law and that the complainant is not a consumer falling within the meaning of Section 2(d) of the Act and there is no deficiency to come under the purview of the definition under Section 2(f) or (g) of the Act and that the present Consumer dispute as raised by the complainant is absolutely motivated and not maintainable.
Opposite party no.5 further contended that they never executed any registered sale deed in favour of the complainant and as such, the question of providing such facilities does not arise as alleged in the complaint and that this opp.party has nothing to do with the said transaction and on this specific count only the complaint filed by the complainant is liable to be dismissed in limini. The opposite party further submits that they have never executed any registered sale deed nor received any consideration and hence the question of handing over the title deeds does not arise. The complainant without any application of mind and without any proper verification filed the present complaint. The complainant has no cause of action against this opp.party, who was unnecessarily dragged to the Forum and thereby being harassed for no fault attributable to them. The opposite party prayed for dismissal of the complaint with exemplary costs in the interest of justice.
During the course of enquiry, in order to prove their case, the President of the complainant association filed her evidence affidavit and got marked Exs.A1 to A9 . As against this evidence, on behalf of opp.parties, opposite party no.1 filed her evidence affidavit, but no documents are marked.
We heard the counsel for both the parties and perused the entire material on record.
Now the points that arise for consideration are:
` 1. Whether there is any deficiency in service on the part of the opposite parties ? If so, what is the amount that can be awarded to the complainant towards damages?
2. Whether the complaint is barred by limitation?
3. To what relief?
Point no.1: It is an admitted fact that opposite parties 1 to 4 sold 13 flats to various purchasers under various registered sale deeds. The complainant has not filed list of its members or the bye laws governing the Association. The complainant ought to have filed either list of members of the Association or the bye laws, especially when the opposite parties are contending that they are not aware whether all the purchasers are being the members of the complainant association.
Ex.A2 is the copy of the agreement of sale executed in the month of February,2008 (since date is left blank) by the opposite parties 1 to 4 in favour of one Mrs. B.Jyothsna, W/o.George Reddy in respect of semi finished flat no.201 on 2nd floor of Gayathri Residency . It is recited in Ex.A2 that opposite parties 1 to 4 agreed to sell the flat for sale consideration of Rs.33,17,000/- including car parking, lift, generator, shelves and transformer. The corresponding subsequently executed sale deed is not filed, but the complainant filed Ex.A1 copy of the Sale Deed Dt.4.7.2007 executed by opposite parties 1 to 4 in favour of Sri Pramood Kumar Reddy in respect of Flat No.202 of the Gayatri Residency . InEx.A1 there is no mention about lift, generator and transformer, except car parking. In view of the inconsistency between Exs.A1 and A2, regarding above said amenities, the complainant ought to have filed the agreements of sale and sale deeds of all 13 flat purchasers, to decide whether the opposite parties 1 to 4 agreed to provide the above said amenities.
Infact, there is no dispute about providing car parking area. In Ex.A4 legal notice, the complainant admitted about providing of lift but contended that the lift provided is of inferior quality. There is no evidence to prove that the lift provided is of inferior quality. The contention of the opposite parties 1 to 4 is that they never promised or undertaken to provide separate transformer of 12KVA of GE or Alstom make, John or Oitos make 6 passengers lift, Greenwood made 25 KV generator, drinking water connection to apartment form GHMC, full protection from the outsiders and security arrangement. They have also contended that they never assured the members of the complainant, at the time of registration of the sale deeds or prior to that, to provide facilities alleged under para 3(ii) of the complaint and the allegations are fabricated by the complainant. The complainant has not substantiated the allegations made in para 3(ii) of the complaint by placing any material documents.,
The specific case of the opposite parties 1 to 4 is that they have already provided lift and completed all the constructions in all the individual flats and after thoroughly satisfied with the standard of construction made by the opposite parties 1 to 4, the purchasers occupied the flats, without any grievance during 2007/2008. The complainant has not placed any cogent evidence disproving the above case of the opposite parties . In addition to that, the recitals of Ex.A1 sale deed prove the above case of opposite parties 1 to 4.
The case of the complainant, as per para 3(iv) of the complaint is that when the purchasers questioned the opp.parties at the time of registration about the inadequate facilities and non performance of the obligation under the Agreement of Sale, the opposite parties have assured that they would provide all the facilities with in short period, believing the words of the opposite parties, the purchasers have paid the entire balance of consideration and got the flats registered. The complainant did not place any evidence on record to prove the said case. The complainant has also failed to prove their case as set out in para 3(v) of the complaint by filing any report of the competent person having inspected such seepage or a letter demanding opposite parties, for a joint inspection. The allegations of the complainant as regard to damage to the electric appliances on account of electric fluctuations is also not substantiated by producing any documentary evidence.
In view of the above discussed facts and circumstance of the case, there is no basis for the claim of the complainant to direct the opposite parties to pay an amount of Rs.47 lakhs towards damages or mental agony.
Further, opposite party no.5 has nothing to do with the constructions made by opposite parties 1 to 4 and sale of flats made by them. Opposite party no.5 never executed any document in favour of the members of the complainant association nor received any consideration from them. The complainant has not placed any evidence on record against opposite party no.5. Therefore the complaint is bad for the misjoinder of party
Having regard to the above facts and circumstances, we are of the firm view that the complainant failed to establish that they are consumers within the meaning of the Consumer Protection Act and that there is any deficiency in service on the part of the opposite parties. Hence this point is answered accordingly.
In view of the provisions of Sec.24(a) of the Consumer Protection Act,1986, the complaint is to be filed within two years form the date of cause of action. In this case the cause of action does not arise on 28.2.2010 as stated by the complainant in the complaint but it arose in the year, 2007 and 2008, when the possession of the flats were delivered to the members of the complainant association. The present complaint is filed on 4.3.2011, beyond two years period of limitation prescribed by Sec. 24(a) of the C.P.Act. Hence the complaint is barred by limitation.
In view of our findings on points 1 and 2, the complaint is liable to be dismissed with costs to opposite parties.
In the result, the complaint is dismissed with costs of Rs.5000/- to the opposite parties.
PRESIDENT
MEMBER
PM* Dt. 8.10.2012
APPENDIX OF EVIDENCE
Witnesses examined
For the complainant : Nil For the opp.parties : Nil
Evidence affidavit of complainant filed
Evidence of OP 1 to 4 filed.
Exhibits marked on behalf of the complainant:
Ex A-1 Sale Deed dated 4-7-2007 of both parties
Ex A-2 Agreement of Sale dated 21.11.2006 and Agreement of Sale
dated 1.2. 2008
Ex A-3 Copy of the Municipal Sanction Plan. Dated 5.7.2005
Ex A-4 Copy of the legal notice dated : 18.7.2010 from complt to O.Ps.1 to 4.
Ex A-5 copies of Acknowledgements (three)
Ex A-6 Property Tax Bill dt. 22.6.2009 & Property Tax Demand for 2009-2010
Ex A-7 Copy of Registration Certificate dated 19.4.2010
Ex A-8 Letter of Authorization dated : 24.3.2011
Ex A-9 Original Estimate dated : 28.6.2011.
Exhibits marked on behalf for the opposite parties : nil
PRESIDENT
MEMBER
Pm* Dt. 8.10.2012
