2.     Jonnavittula Rajasekhar,

        S/o.JV Sarma,

        R/o.Door No.94, 7^th Line,

        Chaitanya Nagar,

        AT Agraharam,

        Guntur                                    … Opposite parties (in both CCs)

      This complaint coming up before us for hearing on 20-04-12 in the presence of Sri.C.Venkata Ramaiah, advocate for  complainant and of Sri.K.V.G.M.Krishna Rao, advocate for opposite parties upon perusing the material on record, after hearing both sides and having stood over till this day for consideration, this Forum made the following: 

COMMON  ORDER

Per Sri M.V.L.Radha Krishna Murthy, Member:

CC 205/2010 is filed u/s 12 of Consumer Protection Act praying to (a).  To adjust the levels in corridors and polish the same estimated @Rs.30,000/- , (b).  For installation of 2^nd Lift with standard company material, estimated @Rs.6,00,000/-; (c).  To lay 2 more bore wells to augment the under ground water, estimated @Rs.1,00,000/-; (d), For installation of solar system of 4,000 lts capacity, estimated @Rs.4,40,000/-; (e). To complete the miscellaneous works left over by the opposite parties such as to lay tank cover, ladder, water tap -  walls  to plug the leakages, drainage leakages, to provide domes in between flats, estimated @Rs.3,00,000/- etc., (f). To grant interest @18% p.a. on the said reliefs from the date of complaint till the date of realization and (g).  Costs of the petition. 

CC 206/2010 is filed U/s 12 of Consumer Protection Act paying to (a).  to finish the incomplete works in each flat of the members of the complainant association  such as  flooring, wood work, cup boards, leveling and drainage leaks and water pipe leaks estimated @Rs.50,000/- per each flat which comes to Rs.8,50,000/- ; (b).  The amount collected towards BPS and service tax is Rs.41,000/- per each flat liable to be refunded which comes to Rs.6,97,000/- ; (c ) for Mental agony suffered by the members of the complainant association is put to Rs.20,000/- each, which comes to Rs.3,40,000/- ; (d). to grant interest@18% p.a. from the above reliefs from the date of complaint till realization and (e)  for costs of the complaint. 

2.      The averments of both complaints are one and the same and the same in brief are as follows :-

The complainant Association is formed with the flat owners of Krishna Residency which has to work for the welfare of its members.  The 1^st opposite party is the builder and the 2^nd opposite party is the developer for construction of multi storied building complex Kalyani’s Krishna Residency, an extent of 1793 square yards situated in Guntur Town.  The opposite parties entered into an agreement of sale/sale deeds with the members of the complainant individually under taking to commence and complete the construction with good quality of materials with skilled workers with specifications mentioned in Annexure-II of the agreement and made the members of the Complainant Association to believe their competency, ability, credibility and about its title and permissions.  The consideration was fixed towards undivided sites and semi finished flats, apart from collecting amounts for development works by 2^nd opposite party which has to be constructed as per the specifications in Annexure –II.  Members of the Complainant’s Association obtained sale deeds and the opposite parties have received the consideration in full from the respective members of complainant Association.  The list of present members of the complainant Association are as follows. 

1. Kaza Madhu Krishna S/o. Lakshmana Rao, FLAT No. 101.
2. Kizhakkadath Vijayam W/o. K.P.Nair, FLAT No. 102.
3. Dovari Koteswara Rao S/o. Mohan Rao; FLAT No. 103.
4. Makineni Sunil chowdary S/o. Ravindra Babu; FLAT No. 104
5. Chirivirala Veera Bhadra Rao S/o. Subba Rao; FLAT No. 106.
6. Kalluri Sundara Rama Murthy S/o. Venkata Rao.,FLAT No.108
7. Dendukuri Suresh S/o. Sambamurthy; FLAT No. 202
8. Chettupalli Satya Sarath S/o. Solman; FLAT No. 203
9. Tanneru Anuratha W/o. Srinivasa Rao; FLAT No. 204
10. Ragula Srinivasa Babu S/o. Venkateswarlu; FLAT No. 207
11. Hari Ramalingaiah S/o. Jagannadha Sastry; FLAT No. 208
12. Syed Nasear S/o. Bashu;FLAT No. 302
13. Savarala Ramesh S/o. Sayibabu ; Flat No. 303
14. Mangu Kiran Mohan S/o.Narayana Rao; FLAT No. 402
15. Talakola Chinnamma W/o. Poornaiah, FLAT No. 404
16. Dittakavi Laxminarasimhacharyulu S/o.Venkata Satyanarayana Acharyulu; FLAT No. 406
17. Amaresam Ravi Kumar S/o. Govindu, FLAT No. 503.

03.   As per the respective agreements entered into by the opposite parties with the members except Serial Nos. 4, 6 and 16 mentioned above of complainant Association, all the works have to be completed with in 15 months from the date of agreement with a grace period of 3 months.  In respect of members under S.Nos. 4 and 6 mentioned above all the works have to be completed within 8 months from the date of agreement with a grace period of 3 months.  In respect of 16^th member mentioned above all the works have to be completed with in 6 months from the date of agreement.  In case of failure to complete the works the opposite parties agreed to pay damages @Rs.2,000/- from the date of default till the date of actual delivery of the flat in respect of S.Nos. 4 & 6.  In respect of others flats they agreed to pay interest @24% p.a.  The opposite parties started executing the agreements first in favour of Makineni Sunil Chowdary S/o. Ravindra Babu.  Though enormous time was taken the opposite parties failed to complete the works and even in respect of the works completed they failed to use the standard materials and the works are very poor. 

04.  The following works were not carried out by the opposite parties:-

(a).   Keeping in view of the 40 flats and the complex, it requires atleast 3 bore wells for supply of ground water, else against which the opposite parties have provided only one bore well and the inmates are suffering a lot due to lack of water.  They fail to provide Municipal water connection thereby subjecting the members of the complainant Association and their family members to suffer from lack of drinking water.  The members of the complainant association are spending huge amounts for purchasing of drinking water.  They are also suffering to carry water cans to respective flats. 

(b).  As against 2 lifts, the opposite parties arranged only one lift of Kone company.  Though the opposite parties made provision for arranging 2^nd lift they have not provided the 2^nd lift so far.  This is causing immense hardship to the family members and visitors. 

(c)    The opposite parties collected extra charges from the members of complainant Association to provide solar water heaters to all the flats but they failed to provide the same.

(d).   Though the opposite parties collected charges for providing quality electrical fitting, they used poor quality of materials, thereby there are frequent short circuits and damages to the electrical implements of the members of the complainant Association. 

(e)    The opposite parties collected extra charges from the members of the complainant association for providing car parking, where as they have given markings in an irregular fashion, practically making it difficult to park the cars.  In most of the cases, the place left is very narrow and in some cases the place left for car parking is very wide.  The persons to whom the narrow parking place is marked are suffering.  If the adjacent car is parked in the narrow place, the other neighbor person cannot park his car. 

(f).    The opposite parties laid the flooring in erratic manner and even the rain water is unable to go down through the drainage pipes and the water is making its way into the flats.  They have not engaged the skilled workers for laying the flooring.  Even when there is small drizzling, water is being stagnated in the balconies as well as server room in each flat.  The maid servants are even unable to clean the utensils in the server room as the water is being stagnated there, which is causing inconvenience and mental agony.  Water collected in corridors of 1^st and 2^nd floors is unable to take its way into the drainage pipes as the pipes are fixed at a higher level.  Thereby the water is being stagnated in the corridors.  The finishing of stair case and corridors are not completed. 

(g).  Water tank is not plastered and there is no cover arranged to it.  No ladder is fixed to it.  They even fail to construct dome over the common areas i.e., over the gaps in between the flats.  Poor quality of painting works used for the gates and walls etc., and used poor quality of wood for door ways and windows.  The door ways are giving cracks.  The drainage system provided by them is the worst and the used water is not properly being discharged.  The opposite parties failed to complete the construction works within 15 months with a grace period of 90 days and there is abnormal delay in finishing the works.  Since auspicious days are limited the members of the complainant association were forced to join in the flats even though the opposite parties have not completed the works.  Since the house-warming ceremonies were completed by members of the association, in order to save the rentals out side, they continued to stay in the flats by facing all these odds.  Though the opposite parties promising to redress all the grievances of the members of the complainant Association, they are not paying much attention and giving evasive replies. 

(h).  The opposite parties collected Rs.20,000/- towards BPS and Rs.21,000/- towards service tax about one year back from each member of the complainant association under the threat of demolition. 

05.   The queries reveal that the opposite parties have not deposited the amount collected towards BPS and Service Tax.  Infact, no service tax need be paid.  The Municipal Authorities are refusing to give the water connection to the complex and they are refusing to asses the flats to tax.  Since the opposite parties have failed to complete the constructions as per the specifications, the members of the complainant association are put to untold misery and mental agony.  There is deficiency in the service of the opposite parties.  The action of opposite parties in collecting the amounts towards BPS, Service tax and for providing solar heater to all the flats and misappropriating the same attracts criminal liability.  Except the members 3,6 and 15 mentioned above, the rest of the members of the complainant Association got issued legal notice dated 20-11-2009 requiring the opposite parties to attend all the works within 15 days from the date of receipt of the notice failing which they wanted to claim damages @Rs. 50,000/- per each flat as well as recovery of amounts collected towards BPS, Service tax and charges collected for solar system.     The opposite parties received the notices and failed to give  any reply and on the other hand they started the following works as an eye wash.  The opposite parties brought the municipal water connection by paying necessary expenses.  They have also brought some parts of 2^nd lift and kept the material in the premises and dodged to purchase the remaining material and finish the work and bring the left to working condition.  The opposite parties purchased material of lift of cheap quality of ARROW – local company worth Rs.3,00,000/- as against the total cost of Rs.6,00,000/-.  Even if the lift is installed with this material it is certain that the lift will not work.  Hence the 2^nd lift has to be constructed with standard company materials.  The opposite parties have also completed the finishing of stair case work.  Except these works the opposite parties failed to under take the rest of the works. If the unfinished the works are undertaken the estimated costs would be Rs.50,000/- for each flat, apart from the other expenses for installation of 2^nd lift, and solar system etc. The opposite parties have to refund the amount collected towards BPS.

06.   The complaint in CC 205 of 2010 is filed for the relief of common works and the complaint in CC 206 of 2010 is filed for consolidated works/claims of the 17 individual members of the complainant association. 

07.    The 2^nd opposite party in both the complaints filed similar versions in both the complaints and the same were adopted by the 1^st opposite party.  The averments of the version filed by 2^nd opposite party in brief are as follows : 

        Most of the allegations made in the complaint are not true and complaints are not maintainable at law.  The averments of the complaints are specifically denied by the opposite parties para wise.  As per the specifications mentioned in the broacher this opposite party completed the work.  2^nd lift was also provided as per the broacher and both parties are agreed for the following charges and facilities should be born by the customers. 

1.  Registration charges,   2.  Electrical connection Charges,                  3.  Municipal water connection and solar water heater charges,

4.  If any government charges etc., and 5.  Car parking charges.  The opposite parties provided car parking with marking of their respective car parking places as per payment made by the customers.  The opposite parties provided plastered water tank with cover long back to the building and the complainant suppressed the said fact and made allegations.  The opposite parties have used Berger company paints to the entire building and also very strong teak wood for windows; doors etc., and also used all ISI Marked building materials as well as electrical materials and appointed skilled workers to do the works.  The opposite parties provided municipal tap water with their own money and also worked for assessment of municipal tax and the members of the complainant are paying their respective municipal tax.  The complainant kept quite for more than 3 years and now filed the complaints with all false allegations.  The opposite parties never collected extra amounts as alleged in the complaint.  The opposite parties never received any notices as alleged in the complaint.  The Annexure – II is not in between the opposite parties and the complainant and it is in between opposite parties and site owners.  Therefore the terms and conditions mentioned in the agreement between the site owners and the opposite parties are not binding on the complainants.  The complainant approached this Forum with unclean hands and there are no bonfires in this complaint.  Hence the complaint may be dismissed with costs.        

08.   Complainant and 2^nd opposite party in both the complaints have filed their respective affidavits in support of their case.

09.   On behalf of the complainant in In CC 205/2010 Ex.A-1 to A-27 are marked and Ex.B-1 to B-114 are marked on behalf of the opposite parties.

10.   A memo was filed on behalf of the complainant in C.C 206/2010 stating that the documentary evidence is common in both the matters and parties are the same, as such both matters can be clubbed and common order can be pronounced.  The said memo was allowed by this Forum.  Therefore this common order is passed in both the matters. 

11.   At the time of filling of the complaint in both the cases complainant filed IAs were appointment of the commissioner to note down the incomplete works and their value.  The said IAs 335/2011 in CC 205/2010 and IA 337/2011 in CC206/2010 commissioner was appointed by this Forum to note down the completed works and its value with the assistance of a technical person in Kalyani’s Krishna Residency, Guntur.  Accordingly the commissioner filed reports in both the IAs and the opposite parties have filed their respective objections for the report of the commissioner. 

12.   NOW THE POINTS THAT ARISE FOR  CONSIDERATION ARE

1. Whether the complaints as such are maintainable?
2. Whether there is any deficiency of service on the part of opposite parties as alleged by the complainant?
3. To what relief the complainant is entitled to?

13    The complainant filed memo in CC 206/2010 to the following effect :-

“Complainant humbly submits that this CC is connected with C.C.No.205/2010.  The documentary evidence is common in both the matters.  Parties are the same.  In both the matters, the commissioner visited the subject property and filed his reports with the assistance of Technical Surveyor, in both the matters.  As such both matters can be clubbed and common order can be pronounced.  Hence, the documents filed in this C.C. as well as the commissioner reports as part and parcel of C.C.No. 205/2010 on the file of this Hon’ble Forum and dispose of the matters by common order and for such other and further appropriate orders as are deemed fit and proper under the circumstances of the case. 

14.   The opposite parties through their Advocates endorsed no objection and the memo is allowed.  Hence, common order is pronounced. 

POINT NO.1:  The complainant in CC 205/2010 in page 8 of its complaint mentioned the following :

“The complaint is confined only for the reliefs of common works.  Separate complaint is filed for the consolidated works/claims of the 17 individual members of the Petitioner association”

The complainant in CC 206 of 2010 in page 8 of its complaint mentioned the following :

“The complaint is confined only for the consolidated works/claims of the 17 individual members of the Petitioner Association..  Separate complaint is filed for the reliefs of common works/claims. 

15.    At the out set it may be mentioned that the entire averments in both the complaints are one and the same except the reliefs sought for. In CC 205/2010 and CC 206/2010 the complainant valued the reliefs @Rs.14,70,000/- and Rs.18,87,000/- respectively nomenclating them  as common works and consolidated works. Prior to filing of complaints, the Complainant’s Association got issued a notice to opposite parties under Ex.A-1 dated 20-11-2009 with the allegations covering reliefs in both the complaints. The cause of action for the left over works mentioned in both the complaints is one and the same.  If the valuation in both complaints is added together it comes to Rs.33,57,000/-  exceeding the pecuniary Jurisdiction of this Forum and attracting the pecuniary jurisdiction of State Commission.  In order to avoid the pecuniary jurisdiction of the State Commission and to bring the matters within the pecuniary jurisdiction of this Forum, the complainant filed these two complaints on the same day, splitting the reliefs. This kind of splitting the reliefs on the same cause of action and on the same averments amounts to abuse of pecuniary jurisdiction of this Forum and has no justification.

16.   Under those circumstances returning the complaints for presentation before proper Forum in appropriate manner will met ends of justice.  Therefore both the complaints are accordingly returned.

17.   In view of the finding on point No. 1, the remaining points are not dealt with. 

18.   In the result, the complaints are returned for presentation before proper Forum in appropriate manner. 

Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the  27^th  day of ,April  2012.

Sd/-xxx                             Sd/-xxx                                     Sd/-xxx

MEMBER                           MEMBER                               PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:

                                                                                                Sd/-xxx

                                                                               PRESIDENT