Andhra Pradesh

Visakhapatnam-II

CC/466/2011

Tummalapalli Subhadradevi - Complainant(s)

Versus

Bhagavatula Sankara Rao - Opp.Party(s)

YRS Prakasharao

10 Jun 2015

ORDER

                  Reg. of the Complaint:28-11-2012                                                                                                                                      Date of Order:10-06-2015

BEFORE THE DISTRICT CONSUMERS FORUM-II

AT VISAKHAPATNAM

                   Present:

1.Sri H.ANANDHA RAO, M.A., L.L.B.,

       President

2.Sri C.V.RAO, M.A., B.L.,

                                             Male Member

3.Smt.K.SAROJA, M.A., B.L.,

       Lady Member

                                            

 

WEDNESDAY, THE 10^TH DAY OF JUNE, 2015

CONSUMER CASE NO.466/2011

 

BETWEEN:

Tummalapalli Subhadradevi, W/o late Chalapathi Rao,

Hindu, aged 76 years, R/at D.No.53-22-27,

Chaitanya Nagar, Maddilapalem, Visakhapatnam.

…Complainant

AND:

1. Bhagavatula Sankara Rao S/o late Parvateesam,

Hindu, aged 35 years, Partners M/s Shivam Constructions,

R/a H.No.53-23-32/39, Chaitanyanagar,

Maddilapalem, Visakhapatnam.

2. Sri Vanam Durgu Naidu S/o V.Simhachalam,

Hindu, aged 49 years, r/o H.No.53-23-32/39,

Chaitanyanagar, Maddilapalem, Visakhapatnam.

…Opposite Parties

This case coming on 29-05-2015 for final hearing before us in the presence of SMT.Y.R.S.PRAKASA RAO, Advocate for the Complainant, and of                                     SRI K.V.RAMA MURTHY, Advocate for the Opposite Parties, and having stood over till this date for consideration, this Forum made the following.

 

ORDER

 (As per the Honourable President on behalf of the Bench)                                                                              

 

1. The Complainant filed the present complaint against the OPs, directing the OPs to pay an amount of Rs.6,00,000/- towards cost of unfinished works, demurrage charges for not completing within the stipulated time, low quality works, medical expenses, for mental torture etc., and issue possession certificate,  providing of Electrical Meters, permanent Water solution, Lift and Main Gate, provide Ram Mandir and also window grills with costs.
2. The case of the complainant in brief is that the OPs are the partners of M/s Shivam Constructions and he is the absolute owner of the RCC constructed house in  Ground Floor and AC Sheet Roof in first floor in the above site measuring 238sq.yds situated at Flat No.A/6 covered by Zyroyithai Patta 142 of Resapuvanipalem Village within the Visakhapatnam Municipal Corporation Limits having purchased the same under a registered sale deed dated 03-04-1971 of S.No.56/3 Chaitanyanagar and the OPs approached him to give the property for development of G+2. Accordingly development agreement was executed on 01-02-2007 and later it was proposed to develop in the form of G+3 ultimately, he executed an agreement to sell with GPA in favour of OPs as per agreement dated 6-10-2009 for an extent of 119sq.yds and in turn OP executed the construction agreement for Flat No.3 in Ground Floor admeasuring 977sft, for flat no.3 admeasuring 977sft in 2^nd floor and Flat No.2 measuring 850sft   in 2^nd Floor as per agreement dated 01-02-2007 and OPs obtained plan proceedings  for construction of the apartment and thereby, the OPs cheated him. The OP and himself had entered into indemnity bond on      06-10-2009 where OP agreed to complete flats with good quality standards and they will hand over to him within 2 months in the presence of Mr.J.Kishore Kumar but the OPs failed to hand over the same and also they completed flats with very poor quality standard and further the OPs failed to provide common amenities like sufficient water facilities permanent power, main gate with rods, lift facility etc., with all these terms, he was allowed to occupy Flat no.GF3 in the ground floor, SF2 and SF3 in 2^nd floor from 31-12-2009 but still he is facing minor problems due to negligence of the OPs attitude further car parking is not allotted.
3. The OPs also agree to issue certificate from the licensed engineer measuring the total square feet area of flat etc.,  but he  failed to do so. But as per the indemnity bond, OP agreed to reconstruct Sri Ram Mandir 31.12.2009, but they did not do so. Inspite of demands made on number of times for which also there is no response. Hence, this complaint.
4. The 1^st OP filed counter adopted by 2^nd OP, denying the material averments of the complaint, admitted that it is the partnership firm due to the acquaintance, the complainant’s son has made a proposal with them that he is having landed property and that the house is in dilapidated condition and not in a position to get repairs they agreed to develop the land by constructing of residential group house in G+3 floors with additional facilities of car parking, lift, power, Municipal bulk water constructed by demolishing existing dilapidated house. As per document dated 01-02-2007, the complainant has agreed to transfer the respective share of property in their favour by executing GPA after obtaining approval plan and permission  from GVMC but she has not executed the same on one pretext or the other upto 06-10-2009 by saying her family disputes as a result they sustained heavy loss.  That the complainants elder son has addressed a letter to them and informed that he fixed the date of Gruhapravesam on 1-5-2009 and advised them to deliver the flats ad they completed the construction of flat no.3 in ground floor and delivered it to the complainant instead of she has violated the terms of GPA and then the matter placed before elders for settlement and extended for a peirod of 5 months and later as per the advice of the further elders, the complainant and her sons forced to execute indemnity bond for the balance words on deposit of post dated cheque of Rs.3,00,000/- as security deposit with the said letter on condition that the balance work of construction should be completed by them accordingly they complied the agreed terms. It can be seen from the indemnity bond that instead of balance work worth of Rs.3,00,000/- to be completed by them the complainant wantonly claimed that they incomplete the works worth of Rs.6,00,000/- and alleging that they are entitled for demurrage charges. The allegation that without prior intimation, the construction of G+ 2 has wantonly changed to G+ 3 are utterly false. They submitted that after entering into development agreement, the son of the complainant left to Bubhaneswar and then informed the same through Fax No.06742720904. During the period of August, 2007, the Government of A.P laid certain permissions for G+3 and G+2 constructions in the mean while the plan approval was not sanctioned by GVMC and demolished the cellars and the officials of the GVMC had instructed them to stall the constructions until further directions which was intimated to the complainant. During the digging of foundations rock sheet was fallen in the fits as a result, they sustained huge expenditure and the said fact was also communicated to the complainant. Though initially, they have entered into the Development Agreement with the Complainant’s land of 238sq.yds along with adjacent land owners and applied for plan approval and thereafter they have obtained plan for G+ 3 constructions for which the complainant is entitled to approach 30ft road and more extra facilities including 3 car parkings with constructed area in ground floor 977sft, IInd Floor  977 sft + 850sft totaling 2804sft  and further the complainant has got extra 86sft of built up area in the construction of G+ 3 floors for which a revised agreement dated 4-10-2008 was entered into between them and as per its terms, the complainant has to compensate Rs.1,50,000/- for extra built up area till this date which has not paid in spite of repeated demands.
5. Regarding the construction of Rama Temple in the premises, the occupants of the apartment have insisted not to make construction in the premises as per established Vasthu and even today they are constrained to construct a temple in the premises of the apartment under the protest from the occupants of this apartment. Even today, they stick on to construct the Mandir if the complaint obtained permission from other flat owners, they agreed to construct Ram Mandir.
6. That regarding the 42sq.ft of P.Sanjeeva Rao, the GPA Holder of R.Nageswara Rao  filed a suit in O.S.106/08 and got INJUCNTION ORDERS and after negotiations it was settled as per the indemnity bond dated 6-10-2009 of the pipeline fittings were fixed in the complex with ISI standards and the elder person satisfied with their work then only he returned the cheque taken as security deposit.
7. In case of minor pending works has to be completed they are ready to complete the same but the complainant wantonly destroy the structure like PVC Doors, flooring etc., for which they are not responsible.
8. The entire electrical material used in the building belongs to ISI standard  material after the erection the electrical transformer the earth wire was short circuited  and immediately it was informed to the Assistant Engineer APEPDCL., therefore, the complaint has no right to point out regarding the quality of the building and constructed  the mentioned structural engineer Mr. K.Ramaraju had surveyed the stability of the building   and issued certificate on 01-03-2010 as a 3^rd party certification and eminent structural engineer MG Ravi Kanth also certified the building structure and issued a certificate.
9. As per document dated 01-02-2007 that if the construction is not completed within the period of 18 months 18% of the compensation is entitled by the complainant is only an allegation. They applied for new plan approval on 5-11-2007 and waited nearly one month and GVMC requested for removing of the stons from thesite and subsequent thereto  the work was finished by 6-4-2008 in the meanwhile, GVMC Technical committee approved the plan due to the intervention of the elders, execution of indemnity bond, filing of OS 106/08 and due to new revised plan … at aon 28-06-2008, the plan was approved by the authorities on 22-12-2008 from that date on wards, within the 7 months of span i..e, by 01-05-2009 they have completed the total structure inside wall pipelines and plastering and on that day, they handed over the flat no.3 in the ground floor of the complainant and they performed Gruhapravesam on the same day and the remaining flats were completed on 1-3-2010 and handed over to the complainant. Thus, according to the terms of the agreement only, they have completed the building in 16 months from the approval of the revised plan.

11.     The allegations that they have not provided even minimum amenities like water, power, main gate, lift etc., is incorrect. All facilities were provided and the complainant is not the sole purchaser of the entire apartment flats. They have not deviated the approved plan and the entire parking was divided into 12 parking areas each contains 80sft and 3 car parking areas were registered in the name of the complainant by way of construction agreement. For these reasons, the complaint filed by the complainant is liable to be dismissed. 

12.     To prove the case on behalf of the complainant, Exhibits A1 to A11 are suomoto marked. On behalf of the OPs, they filed their Evidence affidavit and got marked Exhibits B1 to B19.

13.     Exhibit A1 is the  Development Agreement, dated 01-02-2007, Exhibit A2 is the Development Agreement, dated 07-05-2008, Exhibit A3 is the Revised Agreement, dated 04-10-2008, Exhibit A4 is the GPA with sale agreement, dated 06-10-2009, Exhibit A5 is the Construction Agreement, dated 06-10-2009, Exhibit A6 is the Construction Agreement dated 06-10-2009, Exhibit A7 is the Construction agreement, dated 06-10-2009, Exhibit A8 is the  indemnity bond, dated 06-10-2009, Exhibit A9 is the Registered Lawyer notice, dated 12-08-2011, Exhibit A10 is the Postal Receipts, Exhibit A11 is the Acknowledgement of OP2.

14.     Exhibit B1 is the Unregistered Development Agreement, dated 1-2-2007, Exhibit B2 is the Unregistered Development Agreement, dated 07-05-2008, Exhibit B3 is the Revised Agreement dated 04-10-2008, Exhibit B4 is the Indemnity Bond, dated 06-10-2009, Exhibit B5 is the Approve building plan, dated 29-01-2007, Exhibit B6 is the Cash Receipt, dated 18-11-2008, Exhibit B7 is the letter addressed by the 1^st OP to the complainant, dated 10-06-2009, Exhibit B8 is the Letter addressed to 1^st P by Sri B.N.Prasad.  dated 12-03-2009, Exhibit B9 is the Cheque of Rs.3,00,000/-, Exhibit B10 is the News Clipping of Eeenadu News Paper, dated 15-09-2007, Exhibit B11 is the letter addressed by the 1^st OP to Sri B.N.Prasad, dated 26-11-2007, Exhibit B12 is the Notice and summons of Pr.Junior Civil Judge Court, Visakhapatnam, Exhibit b13 is the Letter of settlement, dated 03-06-2008, Exhibit B14 is the Letter of complaint of construction, Exhibit b15 is the structural stability certificate, Exhibit B16 is the Photographs in 3 nos. Exhibit B17 is the receipt of Rs.2,25,000/- issued by P.Venakta Rao, dated 10-06-2008, Exhibit B18 Construction agreements in 3 nos. dated 06-10-2009. Exhibit B19 is the Photograph 21 nos. showing the completion of apartment.

15.     OPs filed their written arguments.

16.     Heard oral arguments of OPs.

17.     Now the point for determination to be determined in this case is;

Whether there is any deficiency of service on the part of the OPs and the Complainant is entitled to any reliefs asked for?

18.     To prove the case of the complainant inspite of filing Exhibit A1 to A11, he has not filed his evidence affidavit, for the reasons best known to him in spite of sufficient opportunities are given. However in order to come to a just conclusion to decide the case on merits, it is relevant for us to discuss the documents relied upon by the complainant. Exhibits A1 & A2 are the Development Agreements dated 01-02-2007 and 07-05-2008, Exhibit A3 is the Revised Agreement dated 04-10-2008, Exhibit A4 is the agreement to sell with GPA dated 06-10-2009, Exhibit A5 and A6 is the construction agreement between the builder and the owner dated 06-10-2009, Exhibit A7 is the Construction agreement dated 06-10-2009, Exhibit A8 is the indemnity bond dated 06-10-2009, Exhibit A9 is the  Registered Lawyer’s notice. It appears as seen from the counter averments and the affidavit filed by the OP, they have not disputed  any of the Exhibit A1 to A8, therefore, much discussion not necessary in respect of these documents.

19.     The 1^st contention of the complainant is that as per Exhibit A1 Development Agreement, the OP has to complete the construction of the building within 18 months from 01-02-2007 but he failed, therefore, she is entitled for demurrages, loss etc., As seen from the record, it is evident in the starting of the project, 1^st OP has taken only Subhadra Devi’s land with the mutual concern, the rest of sites 50sq.yds from Ramu and 100sq.yds from Uma Sundari has taken for convenient of both complainant and the OP. Apart from this Pothina Sanjeeva Rao filed a suit against OP and got injunction to stop the work. After settlement she has agreed to construct the entire building including 42 sq.yds of GPA of Pandia Appa Rao and therefore, it can be held this is one of the reason for delay of the construction. The record further shows again fresh permission and plan approvals have to be obtained in view of changing pattern of the Government in respect of the constructions rules. The record also shows at that time, in the foundation stage in the site in south side, there is a single sheet hard stone was hurdle for 8 column pits and the OP used  Hydraulic compressor to remove the hard stone which took only about 5 months time on this work.                                                                    

20.     The affidavit averments of OP further go to show that they applied for new plan on 5-11-2007 and waited for nearly one month and after removing stones from the site, the work contract was given to P.Venkata Rao, Stone Works Contractor which is evident as seen from Exhibit B15. The affidavit averments also shows the GVMC, committee approved the plan and sent it to Assistant City Planner and the OP agreed and constructed the column upto slab level vide Exhibit B14, Exhibit B11 clearly go to show MOU was executed in between the complainant, first OP and another site owner Smt.Uma Sundari. After considering of both, the GVMC Authorities issued Revised Plan for total extent of 420 sq.yds which is applied on 28-06-2008 and the plan was approved by the authorities on 22-10-2008 and thereafter within 7 months, the 1^st OP completed the total construction inside walls, pipelines, plastering and the remaining flats were completed on 1-3-2010 and handed over to the complainant. On a careful consideration of evidence affidavit of OP coupled with the aforesaid documents, it can be held that within 16 months, the 1^st OP has completed the entire building work from the date of plan approval of revised plan. On scrutiny of all these facts and circumstances, it can be held that the OP has constructed the building within the time agreed.

21.     The evidence of OP goes to show that the entire Electrical Material used in the building belongs to ISI Standard Material, Eminent Structural Engineer K.Kama Raju, has certified the stability of the building and issued both the Structural Stability Certificate Exhibit B15 and Completion Certificate vide Exhibit B14. Further as a 3^rd party certification, an Eminent Structural Engineer MG Ravi Kanth also certified the building structure and issued a certificate vide Exhibit B13. His evidence affidavit also goes to show that the OPs has digged 3 borewells with 6.5 dia and also obtained 2 inch bulk water connection from GVMC and they have also erected 3 separate Electrical Meters,  HT line was also erected and after getting 3 phase connection, the Lift was also installed and presently, it is in working condition vide Exhibit B17 and the entire parking was divided into 12 parking areas, each contains 80sft vide Exhibit B16. Thus, on a careful perusal reading of the evidence of the OP coupled with documents relied  upon by them, it is held that there are no latches on the part of the OP. On the other hand, to prove the latches pointed out by the complainant  he has not come forward with either his oral evidence or by way of expert evidence. For all these reasons, the complaint is liable to be dismissed.

22.     In the result, this complaint is dismissed. No costs.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the 10^th day of June, 2015.                                   

Sd/-                                             Sd/-                                         Sd/-    

LADY MEMBER                            MALE MEMBER                        PRESIDENT       

APPENDIX OF EVIDENCE

  For the Complainant:-

Exhibits	Date	Description	Remarks
A1	01-02-2007	Development agreement	Photocopy
A2	07-05-2008	Development agreement	Photocopy
A3	04-10-2008	Revised agreement	Photocopy
A4	06-10-2009	GPA with sale agreement	Photocopy
A5	06-10-2009	Construction agreement	Photocopy
A6	06-10-2009	Construction agreement	Photocopy
A7	06-10-2009	Construction agreement	Photocopy
A8	06-10-2009	Indemnity Bond	Photocopy
A9	12-08-2011	Legal notice	Office copy
A10	12-08-2011	Posta Receipts	Originals
A11	16-08-2011	Acknowledgements of OP2	Originals

For the Opposite Parties:-                                                             

Exhibits	Date	Description	Remarks
B1	01-02-2007	Unregistered Development Agreement	Photocopy
B2	07-05-2008	Unregistered Development Agreement	Photocopy
B3	04-10-2008	Revised Agreement	Photocopy
B4	06-10-2009	Indemnity Bond	Photocopy
B5	29-01-2007	Approved Builidng Plan vide B.A.No.10244/2007	Photocopy
B6	18-11-2008	Cash receipts	Original
B7	10-06-2009	Letter addressed by the 1st OP	Office copy
B8	12-03-2009	Letter addressed to 1st OP	Original
B9		Cheque of Rs.3,00,000/- drawn in favour of the complainant	Photocopy
B10	15-09-2007	News clipping of Eeanadu	Photostat copy
B11	26-11-2007	Letter addressed by the 1st OP	Office copy
B12		Suit Notice and summons of the Pr.Civil Judge Court, Visakhapatnam	Served coy
B13	03-06-2008	Letter of settlement	Original
B14		Letter of Completion of Construction	Office copy
B15		Structural Stability Certificate	Office copy
B16		3 Nos. Photographs	Original
B17	10-06-2008	Receipt	Original
B18	06-10-2009	Construction agreement in 3 Nos.	Photocopy
B19		Photographs-21 nos.	Original

Sd/-                                             Sd/-                                         Sd/-    

LADY MEMBER                            MALE MEMBER                        PRESIDENT