Andhra Pradesh

Chittoor-II at triputi

CC/1/2017

C.Munikrishna Reddy, S/o Muni Redy - Complainant(s)

Versus

M/S Abhi Constructions, Represented by its Land owner/Developer/Vendor, Nellore Silpa, W/o N.Balaji - Opp.Party(s)

M. Subrahmanyam

22 Nov 2017

ORDER

Filing Date: 30.12.2016

Order Date:22.11.2017

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

WEDNESDAY THE TWENTY SECOND DAY OF NOVEMBER, TWO THOUSAND AND SEVENTEEN

 

 

 

C.C.No.01/2017

 

 

Between

 

 

C.Munikrishna Reddy,

S/o. Muni Reddy,

D.No.18-2-69/F, Ashok Nagar,

Tirupati Urban,

Chittoor District.                                                                              … Complainant.

 

And

 

 

1.         M/s. ABHI CONSTRUCTIONS,

            Office at D.No.142, Upadyaya Nagar,

            Akkaramplli,

            Tirupati – 517 501,

            Chittoor District.

 

            Rep. by its Land Owner / Developer / Vendor,

            Smt. Nellore Silpa,

            W/o. N.Balaji Abhinav,

            Residing at # 609, Marlborough Way NE,

            Calgary,

            Alberta,

            T2A 6A5,

            Canada.

 

2.         Adam Ramalinga Reddy,

            S/o. Chenchu Reddy,

            GPA Holder of O.P.1.,

            D.No.6-132/A, Akkrampalli,

            Tirupati Rural Mandal,

            Chittoor District.

 

3.         N.Raghurami Reddy,

            S/o. late. Kodandarami Reddy,

            Power of Attorney Holder of O.P.1.,

            Resident of 16-3-124,  2nd Street,

            Ramalingapuram,

            Near Chaitanya College,

            Nellore.

 

            Now residing at:

            D.No.142, Upadyayanagar,

            Akkarampalli,

            Tirupati.

 

 

4.         Mr. Nellore Balaji Abhinav,

            S/o. Nellore Raghurami Reddy,

            Joint Bank Account Holder,

            # 609, Marlborough Way NE,

            Calgary,

            Alberta,

            T2A 6A5,

            Canada.                                                                                  …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 03.11.17 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.M.Subramanyam, counsel for complainant, and Sri. N.Ravi Kumar, counsel for opposite parties 2 and 3, and opposite parties 1 and 4 remained exparte, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section –12 of C.P.Act 1986, by the complainant  against the opposite parties 1 to 4 for the following reliefs 1) to direct the opposite parties to pay an amount of Rs.5,00,000/- to complete the pending works for the apartment including flat No.202 of the complainant, 2) to pay Rs.8,15,000/- with interest at 24% p.a. from the date of complaint, being excess amount received from the complainant, to replace the substandard works with good quality material such as granite stones for flooring in all rooms, for wall putty for inside walls and roof and painting sanitary fittings with good quality material as per the brochure, supplementary agreement and oral agreement and for digging rain water harvesting pits, 3) to provide high speed lift as per the specification in the brochure, d) Name board for apartment with good quality painting or electronic frame work, e) to pay Rs.5,00,000/- for causing deficiency of service, mental agony and monetary loss of rent, f) to award Rs.5,000/- towards costs of the complaint and pass such other and further reliefs as the Forum deems fit and proper in the circumstance of the case.   

2. The brief averments of the complaint are:-  That all the opposite parties  are close relatives and partners in the ABHI CONSTRUCTIONS and constructing an apartment in the name and style of “Sri Krishna Residency” in Sy.No.11/2B/2A2 in Upadyayanagar, Akkarampalli village, Tirupati Municipal Corporation area, Tirupati urban, Chittoor District.

3. The office of the opposite party No.2 is situated at D.No.142, Upadyayanagar, Akkarampalli village, Tirupati, represented by its land owner / developer / vendor, Smt.N.Silpa, W/o. N.Balaji Abhinav (O.P.4), permanent resident of 16-3-124, 2nd street, Ramalingapuram, near Chaithanya College, Nellore, now residing at # 609, Marlborough Way NE, Calgary, Alberta, T2A 6A5, Canada. Opposite party No.2 Adam Ramlinga Reddy is the General Power of Attorney Holder of opposite party No.1. Opposite party No.3 is the power of attorney holder and issued receipts for the amounts received from the complainant. Opposite party No.4, having joint account with his wife Smt. Silpa in State Bank of Hyderabad, through which the cheque bearing No.209430 dt:23.12.2015 for Rs.3,00,000/- was realized on 28.12.2015, the joint account number is 00000062305263816.

4.  That the complainant having attracted by the brochure published by the opposite parties, purchased a flat No.202 (2nd floor) in Sri Krishna Residency admeasuring 1153 sq.ft. with 1/60th unspecified and undivided share of 40.14 sq.yards land in A-schedule property for a valid consideration of Rs.16,15,000/- under registered sale deed No.3503/2015 on 27.07.2015 (Ex.A5). The complainant has paid entire sale consideration of Rs.16,50,000/- as follows – Rs.15,15,000/- by way of cheque bearing No.179917 dt:27.07.2015 and Rs.1,00,000/- by way of cash (recitals of Ex.A5). The complainant further contending that prior to Ex.A5 transaction, he entered into a supplementary agreement (Ex.A2) on 29.06.2015 with opposite party No.1 for a sum of Rs.11,85,000/- in respect of extra amenities and paid Rs.5,00,000/- under Ex.A2 and agreed to pay the balance amount of Rs.6,85,000/-, as shown in page.4 of Ex.A2. As per the conditions of Ex.A2, the construction work of the flat shall be completed before 01.12.2015 or within the extended period agreed by both the parties with all the specifications mentioned in the brochure (Ex.A1) and as per the terms of Ex.A2. The opposite parties promised to provide the specifications referred to in pages.3 and 4 of the complaint. That the opposite party No.2 subsequently proposed, encouraged and demanded the complainant to pay an additional amount of Rs.8,15,000/- to provide additional amenities and to use the best standard quality material than the specified material in the brochure for the construction of his flat No.202. On believing the words of opposite party No.2, the complainant has paid a sum of Rs.36,15,000/- vide a) Rs.5,00,000/- at the time of entering supplementary agreement on 29.06.2015, b) Rs.10,00,000/- part payment made and obtained receipt on 11.07.2015, c) Rs.1,00,000/- at the time of registration under Ex.A5 on 27.07.2015, d) Rs.15,15,000/- paid by way of cheque No.179917 dt:27.07.2015, e) Rs.2,00,000/- paid in cash and obtained receipt on 23.07.2015,         f) Rs.3,00,000/- paid through cheque bearing No.209430 and obtained receipt dt:28.12.2015. Thus the complainant has paid in total a sum of Rs.36,15,000/- as against the total consideration of the flat of Rs.28,00,000/- i.e. paid a sum of Rs.8,15,000/- in excess.

5.  Opposite party No.2, having received a sum of Rs.36,15,000/- as against Rs.28,00,000/- provided sub standard material instead of best quality material such as laying granite stones for flooring, best quality teak wood for all doors and windows, best quality wall putty inside and outside for walls and roof and painting for entire flat with attractive colours. The opposite party No.2 has demanded further payment of Rs.3,85,000/- claiming that it is the amount due from the complainant. He also filed a civil suit No.68/2016 for recovery of the said amount. The opposite party No.2 also gave notice demanding payment of Rs.3,85,000/-, which is said, to be paid (due) to opposite party No.2 out of the bank loan sanctioned to complainant. The said suit is pending on the file of the Additional Senior Civil Judge Court, Tirupati. The complainant also got issued notice to opposite party No.2 dt:21.09.2016 demanding refund of Rs.8,15,000/- paid to opposite party No.2 in excess. The opposite parties though received notices, they neither gave reply nor refunded the excess payment of Rs.8,15,000/-, thereby committed deficiency in service. Hence the complaint.

6.  Opposite parties 1 and 4, remained exparte.

7.  Opposite party No.3, filed the written version and the same is adopted by opposite party No.2. The opposite parties 2 and 3 denied parawise allegations in the complaint and further contended that the supplementary agreement dt:29.06.2015 is true and correct. That opposite party No.1 sold flat No.202 to the complainant for a valid consideration of Rs.34,00,000/-  but not for Rs.28,00,000/- as alleged by the complainant. The original agreement of sale entered between the complainant and opposite party No.1 dt:12.07.2015 is filed herewith (Ex.B1). In order to accommodate complainant for availing loan, opposite party No.1 used to issue receipts and signed papers, on faith and confidence. The receipts filed by the complainant are issued by opposite party No.1, on the basis of which SBH LMC branch sanctioned loan of Rs.22,00,000/- directly payable to the builder, out of the sanctioned amount they paid Rs.15,15,000/- on 27.07.2015 and Rs.3,00,000/- on 28.12.2015, totally a sum of Rs.18,15,000/-, and remaining balance of Rs.3,85,000/- has to be paid by the complainant to opposite party No.1 through bank. With a malafide intention to avoid the payment of Rs.3,85,000/-, the complainant has filed the present complaint with false allegations. The receipts filed by the complainant also discloses that the total cost of the flat No.202 is Rs.34,00,000/-. One Siva Sankaraiah filed C.C.No.63/2016 in which cost of the flat No.204 is shown as Rs.32,45,000/-. That the opposite parties have completed the pending works within the stipulated time in the supplementary agreement, as well quality works. The TUDA authorities inspected the building and issued occupancy certificate. The complaint allegations are false and baseless, complainant is not entitled for the reliefs sought for. There is no deficiency in service on the part of the opposite parties and prays the Forum to dismiss the complaint with exemplary costs.

8.  The complainant has filed his evidence affidavit as P.W.1 and got marked Exs.A1 to A10. Whereas R.W.1 filed his evidence affidavit and got marked Exs.B1 to B3. Both the partite have filed their respective written arguments, which are part and parcel of the record.

9.  Now the points for consideration are:-

i).  Whether there is deficiency in service on the part of the opposite parties?

ii). Whether this case is sub-judice in view of pending of civil suit No. 68/2016

      on the file of Additional Senior Civil Judge Court, Tirupati?

iii) Whether the complainant is entitled for the reliefs sought for?

iv)  To what relief?   

10. Point No.(i):-  To answer this point, burden lies on the complainant. Though the complainant in his complaint alleged that he purchased flat No.202 in Sri Krishna Residency, constructed by the opposite parties for a valid consideration of Rs.16,15,000/- on 27.07.2015, and prior to it he entered into a supplementary agreement dt:29.06.2015 with opposite party No.1 for Rs.11,85,000/- in addition to the cost of the semi finished flat and paid a total sum of Rs.36,00,000/- as against Rs.28,00,000/- i.e. in excess of Rs.8,15,000/- and claiming the refund of alleged excess amount of Rs.8,15,000/- from the opposite parties, and further alleged that opposite party No.2 has provided sub-standard material such as tiles instead of granite stone for flooring in all the rooms and other wood instead of teak wood for doors and windows and also sub-standard paints for doors and windows etc. He has not filed any proof that the opposite party No.2 has laid tiles instead of granite stone by taking photographs of the flooring and filed in the Forum. Apart from it, when both the parties are agreed the existence of supplementary agreement under Ex.A2, they have not clarified when there is no agreement either prior to Ex.A2 or on the same day of Ex.A2, how supplementary agreement came into existence? Unless there is agreement of sale etc. was there, question of executing supplementary agreement between the parties does not arise. The word supplementary agreement itself denotes that it is a supplement to the earlier agreement or another agreement. The complainant did not refer anywhere in his complaint, evidence affidavit or in his written arguments about the agreement of sale. Opposite party No.2 contended that there was an agreement of sale between the complainant and opposite party No.1 under Ex.B1. That the complainant had suppressed the said agreement and only referring sale deed under Ex.A5 dt:27.07.2015 and supplementary agreement dt:29.06.2015. Infact there was sale agreement dt:12.07.2015 entered into by opposite party No.1 and the complainant herein, according to which the complainant has purchased the flat i.e. semi finished flat No.202 in Sri Krishna Residency for Rs.34,00,000/-, for which opposite party No.2 received Rs.18,15,000/- out of the loan sanctioned by the bank in a sum of Rs.22,00,000/- i.e. directly payable to the builder. So, the remaining balance amount of Rs.3,85,000/- has to be paid by the complainant to the builder / opposite party No.2. When opposite party No.2 requested the complainant to pay the balance amount of Rs.3,85,000/- instead of making such payment, he has approached the Forum with false allegations in the complaint, only with a malafide intention to avoid the payment. In that regard, opposite party No.2 has filed a civil suit No.68/2016 against the complainant for recovery of Rs.3,85,000/- along with interest at 24% p.a. and the same is pending on the file of Additional Senior Civil Judge Court, Tirupati. The learned counsel for the opposite party while advancing arguments contended that opposite party No.2 has completed the construction as agreed in the supplementary agreement within time and obtained the occupancy certificate from TUDA and handed-over the same to the complainant and the complainant is residing in flat No.202, but suppressing all these facts, he filed the complaint subsequent to filing of the civil suit.

11.  On the other hand, the complainant is contending that he has paid a sum of Rs.36,15,000/- towards cost of the flat as well as for extra amenities. At the first instance, he purchased the flat under registered sale deed Ex.A5 for Rs.16,15,000/- from opposite party No.1, by the time of purchase, the flat is semi finished one, prior to registered sale deed under Ex.A5, he entered into a supplementary agreement with opposite party No.1 on 29.06.2015 for Rs.11,85,000/-. Thus, it comes to a total of Rs.28,00,000/-. He did not speak about Ex.B1 Agreement of Sale under which he signed as purchaser of semi finished flat No.202 in Sri Krishna Residency Apartment for Rs.34,00,000/-. If it is true when the complainant purchased the flat for Rs.28,00,000/- including the cost of extra amenities, how he could pay Rs.8,15,000/- more. So, it is apparent that he has suppressed the existence of agreement of sale under Ex.B1, and further the complainant is claiming refund of Rs.8,15,000/- said to have been paid in excess. Thus, both the complainant claim and claim of the opposite party No.2, is in respect of a particular sum.

12.  The reliefs sought for by the complainant are “to direct the opposite parties to pay an amount of Rs.5,00,000/- to complete the pending works for the apartment including flat No.202 of the complainant. In this regard, we have to state that complainant has to confine to his flat instead of entire apartment. Another relief is to pay Rs.8,15,000/- together with interest at 24% p.a. being the excess amount received from the complainant, to replace sub standard works with good quality material such as granite stone flooring in all rooms, for wall putty for inside walls and roof with quality painting, sanitary fittings with good quality material as per the brochure and supplementary agreement and for digging rain water harvesting pits”, in order to substantiate this relief, complainant failed to file any document to show that opposite party No.2 has completed the construction with sub-standard material for flooring as well as paintings, sanitary fittings etc. except his oral allegations. Unless it is proved that opposite party No.2 has used sub-standard material for completing the semi finished flat, this relief cannot be ordered. Opposite party No.2 has filed another document occupancy certificate issued by TUDA in which it was certified that the building has been inspected and is declared fit for occupation. The certificate was given on 10.06.2016, building permit / proceedings were issued in No.B.A:229/G2/2013 dt:09.06.2013, building commencement notice submitted by the applicant dt:09.06.2013, building completion notice submitted by the applicant dt:28.12.2015, file No.R.O.C.No:95/G2/2014. So, this occupancy certificate is not disputed by the complainant. When the occupancy certificate itself shows that the building work was completed by 28.12.2015, question of deficiency in service does not arise in construction of the building. As agreed in the supplementary agreement, the construction should be completed by 01.12.2015 or the date extended as agreed upon by both the parties, however, within 27 days after the agreed date (01.12.2015), the construction work was completed and occupancy certificate was obtained. The learned counsel for opposite party No.2 while advancing arguments contended that the delay of 6 months was with TUDA for inspecting the building and giving certificate in time, for which opposite party No.2 cannot be blamed, this argument appears to be proper and reasonable.

13.  Therefore, in view of the above facts and circumstances, we are of the opinion that there is no deficiency in service on the part of the opposite parties in completing the semi finished flat No.202 in Sri Krishna Residency Apartment. Accordingly this point is answered.

14.  Point No.(ii):-  with regard to sub-judice, we have to state that when the  question involved in this complaint is pending before the Civil Court, certainly it amounts to sub-judice. The opposite parties filed a civil suit before the Additional Senior Civil Judge’s Court, Tirupati on 24.01.2016 as per Ex.B3. Whereas this complaint is filed before this Forum on 30.12.2016 i.e. about one year after the civil suit filed by the opposite parties. The opposite parties claiming Rs.3,85,000/- said to have been due from the complainant, they are also claiming interest over the said amount of Rs.3,85,000/-. In this complaint, the complainant also claiming refund of Rs.8,15,000/- alleging that he has paid in excess of total cost of the flat. So far as receipts passed on by opposite party No.1, the learned counsel for opposite party No.2 contended that opposite party No.1 passed on receipts as requested by the complainant, so as to enable him to get the loan from the bank SBH LMC branch. This version cannot be accepted, once receipt is passed on, it is evident that particular amount in the said receipt has been received by the opposite parties from the complainant. Ex.A3 is the copy of receipt dt:11.07.2015 for Rs.10,00,000/-, it was signed by N.Raghurami Reddy (O.P.3) on behalf of Abhi Constructions as power of attorney holder. Ex.A4 is another receipt dt:23.07.2015 issued by opposite party No.3 on behalf of Abhi Constructions for Rs.2,00,000/-. Ex.A6 is bank statement issued by SBH, which shows that a cheque was deposited on 30.07.2015 for flat No.202 in a sum of Rs.15,15,000/-, Ex.A7 is another receipt dt:28.12.2015 issued by opposite party No.3 on behalf of Abhi Constructions under which a sum of Rs.3,00,000/- is received. Ex.A8 is the bank statement from SBH under which a sum of Rs.2,00,000/- has been debited or withdrawn by cheque bearing No.498328, which comes to a total sum of Rs.32,15,000/-. In the complaint at page.5, it is mentioned that complainant has paid a sum of Rs.36,15,000/-. However, the dispute with regard to the amount received by the opposite parties and paid by the complainant is pending before the civil court. Therefore, when the matter is pending before the competent civil court, certainly case is sub-judice. Where the subject matter of the complaint was sub-judice before the competent civil court, a concurrent adjudication in respect of the same will not be conducted, keeping in view of the necessity for avoidance of conflicting decisions and multiplicity of proceedings. Under those circumstances, this Forum cannot entertain the complaint. Accordingly this point is answered.

15. Point No.(iii):-  since the complainant failed to prove that there is deficiency in service on the part of the opposite parties to the effect that opposite party No.2 completed construction of the flat No.202 with sub standard material as against the material that was agreed to be used as per the brochure and supplementary agreement under Ex.A2, and that there was dispute in respect of amount said to have been paid by the complainant, due by the complainant and received by the opposite parties, to be received by the opposite parties, and as the matter is pending before the civil court, this Forum cannot decide the complaint, as it amounts to sub-judice and in order to avoid conflicting decisions and multiplicity of proceedings. Therefore, the complainant is not entitled for the reliefs sought for. Accordingly this point is answered. 

16. Point No.(iv):-  in view of our holding on points 1 to 3, we are of the opinion that the complainant is failed to establish that there is deficiency in service on the part of the opposite parties and that he is entitled to the claim of refund of Rs.8,15,000/- as the matter pertaining to the amount is in dispute and is pending before the competent civil court, and as the matter is sub-judice, the complainant is not entitled for the reliefs sought for and complaint therefore is liable to dismissed.

In the result, complaint is dismissed as sub-judice. No costs.                                                                                                                                                                                                                                                                                                                                                                                                                                             

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 22nd day of November, 2017.

 

       Sd/-                                                                                                                      Sd/-                                            

Lady Member                                                                                                      President

 

 

APPENDIX OF EVIDENCE

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: C. Muni Krishna Reddy (Affidavit filed).

 

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: Adam  Ramalinga Reddy ( Chief Affidavit filed).

 

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits

(Ex.A)

Description of Documents

  1.  

Original copy of Brochure issued by the opposite parties filed by the complainant.

  1.  

Attested copy of Supplementary Agreement filed by the complainant. Dt: 29.06.2015.

  1.  

Original copy of receipt filed by the complainant. Dt: 11.07.2015.

  1.  

Original copy of receipt filed by the complainant. Dt: 23.07.2015.

  1.  

Certified attested copy of Sale Deed filed by the complainant. Dt: 27.07.2015.

  1.  

Net downloaded photo copy of Bank Statement of SBH Branch at Mangalam filed by the complainant. Dt: 30.07.2015.

  1.  

Original copy of receipt filed by the complainant. Dt: 28.12.2015.

  1.  

Net downloaded photo copy of Bank Statement of SBH Branch Mangalam filed by the complainant. Dt: 28.12.2015.

  1.  

Office copy of the Legal Notice issued to OP2 filed by the complainant. Dt: 21.09.2016.

  1.  

Postal Acknowledgement along with receipt filed by the complainant. Dt: 21.09.2016.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits

(Ex.B)

Description of Documents

  1.  

Original copy of Sale Agreement executed by Nellore Silpa in favour of the C. Muni Krishna Reddy filed by the opposite parties 2 and 3. Dt: 12.07.2015.

  1.  

Photo copy of Occupancy Certificate issued by TUDA in favour of the opposite party filed by the Opposite Party No.2 and 3. Date of Issue : 14.06.2016.

  1.  

Office copy of the plaint filed by the O.P. in O.S.No.68 of 2016 on the file of Additional Senior Civil Judge, Tirupati against this complainant filed by the  O. P’s No.2 and 3.

 

 

 

                                                                                                                                     Sd/-  

                                                                                                                      President

    

      // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

               

 

Copies to:-     1.  The complainant.

                        2.  The opposite parties.

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