F.A.No. 987 OF 2006 AGAINST C.D.No.24 OF 2005
 DISTRICT FORUM RANGA REDDY

Between:

Teledevara Surya Prabhakara Rao
S/o T.Butchi Raju, aged about 56 years,
Occ: Software Consultant
R/o F-1 & F-2, 1^st Floor, Swathi Plaza
H.No.9-14, Plot No.109, Venkateswara Nagar
Malkajgiri Municipality, Ranga Reddy District

                                                                             Appellant/complainant

A N D

K.Subhash S/o late K.Venkata Narasaiah
aged about 39 years, R/o Plot No.11,
Madhusudan Nagar, Malkajgiri Station Road
Malkajgiri  Municipality, Ranga Reddy District

                                                          Respondent/opposite party                    

Counsel for the appellant               Sri C.S.N.Raju
Counsel for the respondent            Sri B.Venkata Rama Rao

          QUORUM:      SRI SYED ABDULLAH, PRESIDING MEMBER
                                                        &

                              SRI R.LAKSHMINARSIMHA RAO, MEMBER

                        FRIDAY THE TWELFTH DAY OF JUNE                         

                                         TWO THOUSAND NINE

          Oral Order ( As per Sri R.Lakshminarsimha Rao, Member)

***

          The appellant is the unsuccessful complainant and filed the appeal against the order of the District Forum, Ranga Reddy passed in C.D.No.24 of 2005, holding that the water facility to the flat could not be provided by the respondent due to pendency of civil suit and that the District Forum failed to consider that incomplete construction of sump  and also item Nos.12 to 16 mentioned in the complaint and that the complaint is barred by limitation.   Further, it was sought to consider that the District Forum failed to consider the payment of Rs.50,000/- by the appellant through cheque dated 2.8.2004 which was  realized  on 4.8.2004 which is in continuity of transaction between the appellant and the respondent whereof the complaint was filed within he period of limitation. 

          The facts as set out in the complaint are that the appellant purchased flat Nos.F-1 and F-2 in the first floor of Swathy Plaza at Venketeswara Nagar within the limits of Malkajigiri Municipality, from A.Komala through her GPA holder who is the respondent herein and builder and developer of the flats in the complex and executed registered sale deeds No.897 and 898 of 2003 dated 15.2.2003 in favour of the appellant.  On 14.2.2003 the appellant entered into an agreement for completion of balance works of the semi-finished unit.  The appellant paid the amount of Rs.5 lakhs on 7.12.2002 towards earnest money, Rs.50,000/- on 7.12.2002 towards car parking, Rs.6,25,000/- on 14.2.2002 towards balance sale consideration, Rs.4,40,000/- on 21.3.2003 towards charges for completion of balance work and Rs.50,000/- on 4.8.2004 towards electricity, transformer and water connection charges.  The respondent failed to complete the works as per the agreed terms and conditions and the quality of construction was below the standard and he failed to provide the following items:

i)                   Providing drinking water

ii)                 Completion of sump and fixing motor to pump water to overhead tank

iii)              Replacing the door leading to balcony in Flat No.2, 3 bedroom flat

iv)               Water stagnation in balconies

v)                 Setting right window iron grills and fixing screws where they don’t exist

vi)               Setting right the outlets (mori) in balconies

vii)            Providing glazing tiles on the walls above the wash basins

viii)          Providing grill to bathroom ventilation

ix)              Rectifying wall cracks in both the Flats

x)                 Rectifying shower taps in the bathrooms in both the flats

xi)              Providing transformer to the complex

xii)            Water stagnation in staircase

xiii)         Exhaust fan outlet cover in two bedroom flat (plastic cover to be fixed)

xiv)          Covering the patches on the walls in both the flats

xv)            Returning the amount paid for electricity connection (Rs.2,300)

xvi)          Replacing the mains switch which is defective.

The respondent contested the case.  It was contended that the appellant occupied the flat in the month of July 2003.  As per clause 20 and 21 of the Agreement dated 12.7.2003, the appellant was entitled to take possession of the flat only if he has duly performed his obligations and stipulations contains in the agreement.  As per clause 25 of the agreement once possession of the schedule unit is handed over to the appellant, it shall be deemed that the unit is completed in all respects and there are no pending works.  If any additions or alterations in or out relating the same are required to be carried out by the respondent at the cost of the owner in terms of clause 6 of the agreement.  The appellant got impleaded himself in the suit O.S.No.730 of 2003 on the file of Principal Jr. Civil Judge, East and North, Ranga Reddy District filed by the owner of the site of the building against the respondent and others.  The appellant had not pointed out the defects in his notice dated 20.1.2005 issued to the respondent.  The respondent completed the construction besides the extra work as requested by the complainant by the month of July 2003.  The Advocate Commissioner was appointed by the District Forum to inspect the building and file his report.

The appellant by virtue of the initial agreement dated 7.12.2002 and the subsequent documentation, agreed to pay Rs.15,87,000/- but he has paid only Rs.15,50,000/-.  The payment of the amount through cheque dated 2.8.2002 does not confirm part of the agreement dated 7.12.2002.  Hence, the complaint is barred by limitation.  As per the agreement, the appellant still has to pay a sum of Rs.37,000/- besides the extra cost of the construction for the works doen by the respondent at the request of the appellant amounting to Rs.5 lakhs.  In regard to the defects listed out at Sl.No.1 and 2 in the complaint, there was existing drinking water connection to the building in the name of the owner who disconnected the existing water connection and raised objection for getting a new connection by filing a civil case which is pending and the same is within the knowledge of the appellant.  Therefore the respondent was not able to provide drinking water connection to the building.  The transformer to the apartment will be sanctioned by the electricity authorities. 

The building consisting of six units is not an apartment and as such only the domestic service connection will be given which was already provided by the respondent.  The respondent had not collected an amount of Rs.2,300/- towards charges for obtaining electricity connection.  The respondent at his own cost and in view of the directions from the Hon’ble High Court in W.P.M.P.No.2005/03 in W.P.No.16148 of 2003, had obtained electricity connection to the building by paying an amount of Rs.4710/- towards release of connection and Rs.8000/- for providing L.T.Panel Board to the flats in the building.  The respondent has paid the electricity consumption charges pertaining to the appellant to the authorities concerned even after the possession of the flat were delivered to the appellant.  There was no deficiency in service on the part of the respondent. 

The points for consideration are:

1.    Whether the complaint is barred by limitation?

2.    To what relief?

The undisputed facts are that the appellant entered into an agreement on 14.2.2003 with the respondent for completion of the balance works of flats No.F-1 and F-2, first floor, Swathy Plaza, Venkateswara Nagar, Malkajigiri, Ranga Reddy District.  The appellant purchased the flats from the original owner of the land Smt A.Komala where on the apartment was constructed.  The appellant purchased the flats from Smt Komala through her GPA holder, the respondent who is the builder and developer.  The sale deeds bearing Nos.896 and 897 of 2003 dated 15.2.2003.  The appellant submits that he has paid the entire sale consideration of Rs.16,65,000/- and the respondent having received the amount failed to complete the works as per the agreed terms and conditions.  The respondent contends that the appellant entered into an agreement dated 7.12.2002 with the appellant in pursuance of which he had completed the construction of the flats as per the specifications annexed to the agreement and conveyed the title in favour of the appellant.  It is further contended that the appellant paid only Rs.15,50,000/- in stead of Rs.15,87,000/- and apart from the specifications, the respondent had done additional works such as luppum finishing to the walls in two halls, arches as per the design given by the appellant etc., at the cost of Rs.5 lakhs which the appellant had not paid in spite of demand made by the respondent.

The District forum dismissed the complaint hold that it was time barred.  The District Forum held as follows:

“As per the provisions of Sec.24(A) of C.P.Act the complaint has to be filed within two years from the last date of cause of action which has arise in this case.  The complainant took possession of the Flats on 14.2.2003 and the complaint was filed on 11.4.2005.  Which is clearly time barred i.e., after two years.  And the complainant did not choose to file any application U/s 24-A (2) for condonation of delay showing sufficient cause for not filing the complaint within two years period.  Hence, we have no hesitation to hold, that the complaint is time barred.”

The initial agreement between the parties was executed on 7.12.2002.  The respondent on 15.2.2002 executed two registered sale deeds in favour of the appellant.  The possession of the falt was delivered on 14.7.2003 by the respondent.  The District Forum erred in holding that the possession of the flat was delivered on 14.2.2003.  In this regard a perusal of the counter affidavit filed by the respondent would show that the flat was delivered in the month of July 2003.  In para 5 of the counter affidavit it stated “ the petitioner/complainant having taken possession of the schedule flat as back as in the month of July 2003 never raised any single complaint with regard to the deficiency of works……”  Further the District Forum has not considered the payment of amount through cheque dated 2.8.2004 which was realized on 4.8.2004.  All these aspects were not considered by the District Forum before coming to the conclusion that the complaint was not filed within the period of limitation.  In addition to these facts, the other facts such as carrying out the defects in item numbers by the respondent and the respondent obtaining electricity connection to the building was also not considered by the District Forum before giving a finding on the question of limitation.  The limitation is a mixed question of fact and law.  The District Forum has not considered all the relevant facts for coming to the conclusion that the complaint was barred by limitation.  Hence, we feel it a fit case to remand the matter to the District Forum for denova enquiry.

In the result,  this appeal is allowed setting aside the order of the District Forum and remitting complaint to the District forum for denova enquiry.  It is made very clear that we have not expressed any our opinion on the merits of the case. In view of the fact that this is a C.D. of 2005 the District Forum is directed to dispose of the matter on merits within three months.  Both parties are directed to appear before the District Forum on 25.6.2009 without insisting on fresh notice.  No costs.

                                                                                                                                                                                                 PRESIDING MEMBER

                                                                              MEMBER

                                                                          Dt.12.06.2009