Andhra Pradesh
Visakhapatnam-II
CC/104/2006
Munikoti Appalaswamy - Complainant(s)
Versus
Balabommala Naga Venkateswara Rao - Opp.Party(s)
K. Someswar Kumar
12 Jan 2015
ORDER
Date of Registration of the Complaint:24-01.2006
Date of Order:13-01-2015
BEFORE THE DISTRICT CONSUMERS FORUM-II AT
VISAKHAPATNAM
P r e s e n t:
1. Sri H. Ananda Rao, M.A., L.L.B.,
President
2. Smt K. Saroja, M.A. B.L.,
Lady Member
3. Sri C.V. Rao, M.A., B.L.,
Male Member
Wednesday, the 13th day of January 2015.
CONSUMER CASE No.104/2006
Between:-
Munikoti Appalaswamy,
S/o Late M. Suryanarayana, Hindu,
aged 72 years, Occ: Retired Accounts
Officer, S.C. Railway, R/o D.No.45-44-9,
Akkayyapalem, Visakhapatnam-16.
….. Complainant
And:-
Balabommala Naga Venkateswara Rao,
S/o late Janaki Rao, Hindu, aged 41 years,
Occ: Business, R/o D. No. 49-26-53, G-3,
Raseeda Residency, Madhuranagar,
Visakhapatnam-16.
… Opposite Party
This case coming on 30.12.2014 for final hearing before us in the presence of Sri Kaspa Krishana Mohan, Advocate for the Complainant and Sri C.R. Vasantha Kumar, Advocate for the Opposite Party and having stood over till this date for consideration, this Forum made the following:
ORDER
(As per Sri. H. Ananda Rao, Honourable President, on behalf of the Bench)
1. This consumer complaint is filed by the Complainant against the Opposite Party directing him to pay a sum of Rs.17,50,000/- (Rupees Seventeen lakhs and fifty thousand only) being the value of the undelivered 2 constructed flats i.e., S1 and F3 in Sai Nagalakshmi Residency, Akkayapalem, Visakhapatnam, to pay a sum of Rs.1,50,000/- (Rupees One lakh and fifty thousand only) being the cost of repairs effected by him to the Flat bearing No.G2, F4 and S3 in Sai Nagalakshmi Residency, to pay a sum of Rs.1,00,000/- (Rupees One laks only) towards compensation and costs too.
2. The case of the Complainant in brief is that the Opposite Party is the absolute owner of a vacant site measuring 364.40 Sq. yard bearing Survey No.48/2 and 48/3 covered by Patta No. 1086 situated at Akkayyapalem Village in Visakhapatnam District which was approached under a Registered Sale Deed dated 25.07.2000 and the Opposite Party is a builder besides a developer and the said site was given for development by virtue of development agreement dated 05.06.2002 for constructing 5 flats 2 bed rooms with a plinth of 825 Sq. feet of each including common areas. Wherein the Opposite Party agreed to give 2 flats while keeping the other 3 flats with him, accordingly the plans were submitted which was approached by the Municipal Corporation on 27.03.2003 as per the terms of the agreement the Opposite Party had to construct the flats by 27.09.2004 and deliver the same to him. However, the Opposite Party constructed and delivered contrary to specification as agreed upon which amounts to deficiency in service, as a result, he sustained monetary loss of Rs.17,50,000/- for not delivering 2 constructed flats as agreed upon therefore , he filed the Complaint for payment of Rs.17,50,000/- together with costs on repairs of Rs.1,50,000/- being effected by him to his alleged flats and compensation of Rs.1,00,000/-and costs.
3. The Opposite Party resisted the case of the Complainant that his case as orally agreed to deliver a site of 364.40 Sq. yards with the specified dimensions of 41 feet running from East to West and 83 feet running from North to South but he gave a site of 13.59 Sq. yards out of that site of 364.40 Sq. yards to the Municipal Corporation of Visakhapatnam as a result of it, the proposed site was reduced and in addition to that the Complainant delivered a site of only 316 Sq. yards. Further the Complainant has suppressed some material facts relating to aspect of submission of a plan by the Complainant to the Municipal Corporation of Visakhapatnam on 13.12.2001 which caused loss. The plan that was approved by the Municipal Corporation was much earlier to the agreement that was executed.
4. It is also the case of the Opposite Party that there was no written agreement between him and the Complainant therefore, the alleged agreement claimed by the Complainant is nothing but a rank forged document as such, it does not bind him and he has completed the construction work by April, 2004 and delivered all the flats to the respective owners including deliver of the 5 proposed flats to the Complainant and they were assessed to Municipal Taxes and they all obtained Electricity Service Connections of the buildings and they were constructed by using quality material that took place under the supervision and regular visits of the Complainant and therefore question of repair does not arise. For these reasons, the Complaint is liable to be dismissed.
5. To prove their respective cases, the Complainant, filed his evidence affidavit besides another 3rd party affidavit of one S.V. Ramana and got marked Exs.A1 to A10. On the other hand, on behalf of the Opposite Party, he himself filed his evidence affidavit and got marked Exs.B1to B10.
6. Ex.A1 is the photo copy of Sale Deed Document between the Complainant & Ijju Sadananda Rao dated 25.07.2000. Ex.A2 is the photo copy of Development Agreement between the Complainant and the Opposite Party dated 05.06.2002. Ex.A3 is the office copy of Registered Notice issued by the Complainant’s counsel to the Opposite Party dated 28.03.2005. Ex.A4 is the Office copy of Registered Lawyer’s Notice issued by the Opposite Party’s counsel to the Complainant’s counsel dated11.04.2005. Ex.A5 is the photo copy of Sale Deed Document between the Complainant and Sahukari Venkata Ramana dated 26.02.2003. Ex.A6 is the photo copy of Sale Deed Document between Complainant and Sri Nakka Vijaya Kumar dated 26.02.2003. Ex.A7 is the photo copy of Sale Deed Document between Complainant and Sri Sivvam Surya Rao. Ex.A8 is the photo copy of Surveyor Approval Plan issued by the Executive Engineer, Municipal Corporation, Visakhapatnam dated 17.02.2003. Ex.A9 is the Surveyor Approval Plan issued by the Executive Engineer, Municipal Corporation, Visakhapatnam. Ex.A10 is the photo copy of Eenadu City Edition.
7. Ex.B1 is the Building Approval Plan issued by the Executive Officer, Municipal Corporation, Visakhapatnam dated 27.03.2013. Ex.B2 is the Building Approval Plan issued by the Municipal Corporation, Visakhapatnam dated 17.02.2003. Ex.B3 is the Endorsement bearing No.12495/01/ACP issued by the Town Planning Section, Municipal Commissioner, Visakhapatnam in favour the Complainant dated 17.02.2003. Ex.B4 is the Instruction letter given by the Complainant dated 23.05.2003. Ex.B5 is the Receipt dated 22.04.2003. Ex.B6 is the Letter endorsement bearing No.12495/01/C4-ACP issued by the Town Planning section, Municipal Corporation, Visakhapatnam in favour of the Complainant dated 10.01.2002. Ex.B7 is the letter issued by the Town Planning Section, Municipal Corporation, Visakhapatnam to the Complainant dated 23.03.2003. Ex.B8 is the Property Tax Assessment Notice sent by the Municipal Corporation, Visakhapatnam dated 09.01.2003. Ex.B9 is the photo copy of Registration Extract Sale Deed between the Complainant and Sri Sahukari Venkata Ramana dated 26.02.2008. Ex.B10 is the photo copy of Registration Extract Sale Deed executed between Complainant and Sri Sivvam Surya Rao dated 30.08.2003.
8. Both parties filed their respective written arguments.
9. Heard oral arguments from both sides.
10. Now the point that arises for determination is:-
Whether there is any deficiency in service on the part of the Opposite Party and the Complainant is entitled for the reliefs sought with interest, compensation damages and costs.
11. The Complainant asserting his right in the property through Ex.A1 Sale Deed and the same was delivered to the Opposite Party for development and the terms of the development were also reducing into writing which is evidenced by the recitals in Ex.A2. Thus, the cause of the Complainant against the Opposite Party vide terms of the development agreement dated 5.6.2002 which is the basis for the claim of the Complainant to seek compensation etc. The Opposite Party contending that short fall of the land etc. in reply to the claim of the Complainant. There is no proof let in by the Opposite Party in this regard. It is also the contention of the Opposite Party that the development agreement dated 5.6.2002 is a forged and fabricated document as such, it does not binding him. Perusal of Ex.A2 agreement, it is very clear that both parties signed as owner and builder in the presence of the witness on 5.6.2002. To show that it is a forged one no evidence whatsoever, let in by the Opposite Party. Therefore, it can be held that the Opposite Party failed to substantiate his plea that Ex.A2 is not binding on him.
12. It is the case of the Complainant as per the terms of the development agreement, the builder has to provide 5 residential units to him but only provided 3 flats to him i.e., G2, F4 and S3 instead of 5 flats as agreed upon and failed to deliver the flats bearing No.F3 and S1 vide Ex.A2 development agreement. According to the Opposite Party, the Complainant has sold away the flats allotted to him, i.e., S1 and F3 to 3rd parties and received amounts and now after lapse of two years he is making false claim for the two flats which is not at all tenable and therefore he is not liable to deliver the said flats as alleged by the Complainant or any amount much less, the amount of Rs.17,50,000/-. It is also his case that immediately after handing over of the flats the Complainant got all the five flats assessed in his own name and afterwards he sold two of them to third parties. if that be so, it is for the Opposite Party to prove what are the flats among the 5 flats the Opposite Party sold away. If really the Opposite Party sold away them the relevant record i.e., the copy of the sale deeds will be available but unfortunately, the Opposite Party did not obtain and file them. Further if really those flats are sold away they may be assessed to Property Tax and Electricity Consumption Charges but he did not choose to obtain and file them. In the absence of any positive proof let in by the Opposite Party, we are of the considered view, that it cannot be said that the Opposite Party was allotted two more flats i.e., F3 and S1 besides 3 other flats and they were sold away by the Complainant herein. It is also the case of the Opposite Party that he never promised to give 5 flats to the Complainant. As seen from para-11 at page No.6 of his counter but Ex.A2, development agreement is otherwise. As seen from the counter, it is not the case of the Opposite Party that 5 residential units were handed over to the Complainant as per the terms of the development agreement dated 5.6.2002 and as such, we are of the considered view that there is a clear deficiency of service on the part of the Opposite Party and as such the Complainant is entitled for compensation for the deficiency of service on the part of the Opposite Party.
13. As per terms and conditions of the Ex.A2 development agreement which is the basis for the claim of the Complainant to seek compensation on account of failure on the part of the Opposite Party in running his services towards the Complainant. The Opposite Party has now been contending that short fall of land etc. in reply to the claim of the Complainant which cannot be basis for foundation of his claim by way of counter. The Complainant has established his case that he is a consumer and his property is given to the Opposite Party for development and in lieu of delivering his property, the Opposite Party promised to deliver the 5 constructed flats but contrary to the terms of the agreement, the Opposite Party failed to render his services towards the Complainant by delivering flats has promised which fact is established through documents filed by the Complainant in support his contention coupled with evidence and therefore, the Complainant is entitled to claim refund of the amount towards the cost of undelivered flats and compensation for deficiency of service on the part of the Opposite Party.
14. The Complainant seeking monetary value of the 2 flats. Now it is to be seen the evidence let in by the Complainant in respect of the prevailing market value of the site in that area at the time of filing of the Complainant.
According to the Complainant the market value of the site in that area construction was Rs.1,000/- per Sq. feet and thereby he sustained the monetary loss Rs.17,50,000/- for two flats but admittedly no proof whatsoever, is filed by the Complainant. He did not summon the relevant authorities who will furnish the market value per Sq. feet of construction at the relevant point of time. According to the Opposite Party the then prevailing construction cost per square feet is Rs.330/-. It is the duty and responsibility of the Complainant to let in positive evidence to prove at the relevant point time of construction the rate per Sq. feet is Rs.1,000/- but he failed to adduce any evidence. In view of the contentions of both sides, we have to made some guess work, in order to come to a conclusion for assessing the then prevailing construction cost per Sq. feet. Having regard to the facts and circumstances of the case and on perusal of the documents filed by either side much less registered documents, we are of the considered view, that there is every likely hood costs of the construction per Sq. feet at the relevant point of time may be not less than Rs.700/- per Sq. feet therefore, the same has to be taken into consideration, in order to assess the construction cost of the flats in question. As seen from pleadings, it is an evident that each flat with a plinth area of 825 Sq. feet is 2 bed roomed flats including common area. If that be so the total amounts comes to 825x Sq. feet 70 as Rs.5,77,500/-. The flats that are to be delivered by the Opposite Party to the Complainant are S1 and F3 i.e., two flats which comes to Rs.5,77,500+Rs.5,77,500/- =Rs.11,55,000/-. Thus the Opposite Party is liable to pay an amount of Rs.11,55,000/- towards the cost of the 2 flats to the Complainant.
15. It is further case of the Complainant that being cost of repairs incurred by him to the flats delivered by the Opposite Party, he sought for Rs.1,50,000/-. To prove the same, no evidence whatsoever, let in by the Complainant. On the other hand, the evidence let in by the Opposite Party much less Ex.B4 dated 23.5.2003 and 22.4.2003 letters addressed by the Complainant to the Opposite Party shows clearly and categorically that the construction of the building took place under the supervision and the regular visits of the Complainant, therefore, the question of using substandard material for making construction does not arise, as rightly contended by the learned counsel for the Opposite Party. For these reasons, we are of the considered view that the Complainant is not entitled for any amount as sought for towards repairs for the 3 delivered flats to him.
16. Now the question that comes up for consideration, at this stage of our discussion what is the rate of interest for which the Complainant is entitled. It is a fact that the transaction covered by Ex.A1 is in commercial in nature, but that does not and cannot mean to say that the Complainant is a licenced to claim interest as he wishes on Ex.A1. But at the same time, it is imperative on our part to award a reasonable interest. Having regard to all these facts and circumstances, we sincerely feel having considered the case on hand awarding of interest @ 9% p.a. would better serve the ends of justice. Consequently, we proposed to fix at rate in question @ 9% p.a. on Ex.A1 in question. Accordingly interest is ordered.
17. Whether the Complainant is entitled for compensation of Rs.1,00,000/- is to be considered. It appears as seen from the evidence of Complainant side that the Complainant was compelled to approach the Opposite Party and therefore experienced a lot of physical strain besides mental agony and financial loss. It is un-dispute fact that the Opposite Party did not handover two flats as agreed under development agreement to the Complainant. Naturally that made have put the Complainant to suffer some mental agony besides physical stress and strain. In this view of the matter, we sincerely feel that it is a fit case to award compensation. Having regard to all these facts and circumstances, we are of the considered opinion, award of compensation of Rs.1,00,000/- would serve the ends of justice. We therefore, proposed to award compensation of Rs.1,00,000/-, in the circumstances of the case on hand. Accordingly this point is answered.
18. Before parting our discussion, it is incumbent and imperative on our part to consider the costs of litigation. The Complainant ought not have to approach this Forum had his claim for refund of the sum of Rs.11,50,000/- or reliefs sought for have been honored by the Opposite Party within a reasonable time and in view of the matter, the Complainant’s claim for costs deserves to be allowed. In our considered and unanimous opinion awarding a sum of Rs.5,000/- as costs would appropriate and reasonable. Accordingly costs are awarded.
19. In the result, Complaint is allowed, in part directing the Opposite Parties: a) to pay an amount of Rs.11,55,000/- (Rupees Eleven lakhs and fifty five thousand only) with interest @ 9% p.a. from 28.03.2005 i.e., from the date of issuance of notice till the date of realization, Rs.1,00,000/- (Rupees One lakh only) towards compensation and costs of Rs.5,000/- (Rupees five thousand only) to the Complainant. Time for compliance, one month.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in the Open Forum, this the 13th day of January, 2015.
Sd/- Sd/- Sd/-
Male Member Lady Member President
APPENDIX OF EVIDENCE
For the Complainant:-
NO. | DATE | DESCRIPTIONOFTHEDOCUMENTS | REMARKS |
Ex.A1 | 25.07.2000 | Sale Deed Document between Complainant & Ijju Sadananda Rao | Photo copy |
Ex.A2 | 05.06.2002 | Development Agreement copy between Complainant & OP | Photo copy |
Ex.A3 | 28.03.205 | Legal Notice issued by the Complainant’s counsel to OP | Office copy |
Ex.A4 | 11.04.2005 | Reply Regd. Lawyers Notice issued by the Op’s counsel to Complainant | Office copy |
Ex.A5 | 26.02.2003 | Sale Deed Document between Complainant and OP | Photo copy |
Ex.A6 | 26.02.2003 | Sale Deed Document between Complainant and OP | Photo copy |
Ex.A7 | 30.08.2003 | Sale Deed Document between Complainant and OP | Photo copy |
Ex.A8 | 17.02.2003 | Surveyor Approval Plan | Photo copy |
Ex.A9 |
| Surveyor Approval Plan | Original |
Ex.A10 |
| Eenadu City Edition | Photo copy |
For the Opposite Party:-
NO. | DATE | DESCRIPTIONOFTHEDOCUMENTS | REMARKS |
Ex.B01 | 27.03.2013 | Building Plan | Original |
Ex.B02 |
| Building Plan | Original |
Ex.B03 | 17.02.2003 | Letter of Endorsement bearing No.12495/01/ ACP of Municipal Commissioner | Original |
Ex.B04 | 23.05.2003 | Instruction letter given by the Complainant. | Original |
Ex.B05 | 22.04.2003 | Receipt | Original |
Ex.B06 | 10.01.2002 | Letter of Endorsement bearing No.12495/01/C4-ACP of Municipal Corporation, VSP | Original |
Ex.B07 | 27.03.2003 | Letter addressed by Town Planning of Municipal Corporation, VSP | Original |
Ex.B08 | 09.01.2003 | Assessment Notice sent by Municipal Corporation | Original |
Ex.B09 | 26.02.2008 | Registration Extract of Sale Deed executed between the Complainant and OP | Photo copy |
Ex.B10 | 30.08.2003 | Registration Extract of Sale Deed executed between Complainant and OP | Photo copy |
Sd/- Sd/- Sd/-
Male Member Lady Member President
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