BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
C.C. No. 21/2009
Between:
1) Himanshu Bartwal,
S/o. Dhyanchand Barathwal
Age: 27 years, Business
R/o. Flat No. 101.
2) Smt. K. Phebi Sekhar
W/o. A. Suresh
Age: 35 years,
Engineering Assistant (AIR)
R/o. Flat No. 301
3) T.L. N. Swamy, S/o. T. Swaminath
Age: 35 years, Doctor
Flat No. 302,
All are R/o. D.No. 41/MIG-M8
MCH No. 10-3-811
Vijayanagar Colony,
Hyderabad-500 057. *** Complainants
And
M/s. Adhiti Constructions
Rep. by its Managing Director
G. Raghava Reddy,
S/o. G. Narayana Reddy
Age: 37 years, Business
H.No. 1-7-991/3, Ramnagar
Hyderabad-500 020.
Now at Flat No. 502
D.No. 41/MIG-M8
MCH No. 10-3-811,
Vijayanagar Colony,
Hyderabad-500 057. *** Opposite Party
Counsel for the Complainant: M/s. M. Hari Babu.
Counsel for the OP: Smt. K Swarna Seshu.
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
TUESDAY, THIS THE TENTH DAY OF AUGUST TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
***
1) This is a complaint filed u/s 17 of the Consumer Protection Act against the opposite party to complete the flats and common works or in the alternative pay Rs. 38,23,717/- with interest @ 24% p.a., together with compensation of Rs. 50,000/- to each of the complainants for pain and suffering and Rs. 1 lakh towards regularization fee and incidental charges.
2) The case of the complainants in brief is that they have purchased semi-finished flats from the opposite party under registered sale deeds dt. 7.3.2006 and 2.3.2006 having entered into earlier agreements of sale dt. 5.10.2005, 5.11.2005 and 25.1.2006. They have also entered into construction agreement. They handed over the rest of the flats except the fifth floor. They found that there were deviations from the approved plan of MCH and defects in construction. He did not get regularized when the scheme of regularization has been announced by the government. In order to avoid untoward consequences they paid the regularization amount and applied for it. They noted the following deviations/defects/unfinished works and the value in terms of money. They are :
Zenith lift installed instead of Otis/Johnson.
Generator for standby power with capacity to supply power for lift and common areas and two electrical lights and two fans in each unit has not been provided
Fire fighting equipment has not been provided.
Lifting of electrical meter board and fencing around the meter panel board has not been done.
Replacement of scrap, broken uneven flooring with white marble stone flooring on steps, corridors.
Plastering of patches of outside walls and patches at pipelines.
Finishing of balcony’s parapet wall surfaces. Plastering of patches and
Finishing of ducts in corridors.
Proper plastering of building surrounding area at ground level and
Water outlet connections.
Plastering of lift hole and under sliding rails.
Inferior car parking flooring to be replaced with good quality flooring.
Water trench to be provided at bottom edge of the sump at the entrance
to collect water into the pit.
Watchman room.
Shifting of main gate to open inside.
Un-even plastering of corridors
Combined drainage given for human waste outlet from bath and wash basin outlets instead of separate pipe lines.
Underground water storage tank has no inlet and outlet connection and tanks are not plastered properly.
3/4th inch municipal water line to be provided
Shade to be provided for the stairs to prevent water logging on the whole staircase.
Wall painting including corridors, ducts, lifts hole and compound wall.
Painting to metal frame of lift entrances.
Electrical transformer.
Transfer of ownership of the flats owners in the Electricity Department.
Which the complainant had valued at Rs. 37,23,717/-.
When the complainants’ request was not heeded they issued legal notice dt 4.9.2008 calling upon him to comply, however, but he did not comply, and on the other hand gave a false reply. Therefore they filed the complaint to rectify the defects/deficiencies pointed out and compensation and costs.
3) The opposite party resisted the case. While denying each and every allegation made in the complaint he alleged that the complaint is not maintainable, and it is barred by limitation. He entered into development agreement-cum-General Power of Attorney with Palanki Nageswara Reddy and 3 others to develop the house bearing No. 41/MIG (MCH No. 10-3-811) into a multi storied complex. After construction, the flats were handed over in December, 2006 about three years ago and they have been staying and enjoying the same without any complaint. At the instance of Nageswara Reddy, owner of the site, to avoid the amount due to him, the complainants issued notices to him to a wrong address though all of them are staying in the same complex including himself. He gave a suitable reply with correct facts. He completed the construction in accordance with specifications. There was no deviation whatsoever from the approved plan. Though the complainants along with one Ramakrishna have issued notices, realizing the mistake, Rama Krishna did not implead in this case. In fact Sri A. Suresh husband of the complainant who is an officer in GHMC initially got purchased the flat from him and after satisfying himself that the construction was as per approved plan and norms and obtained loan from the bank as a co-applicant and got the flat registered. He requested him to construct his flat according to his needs and made changes from the original plan. They cannot now allege that there was deviation. The allegation that they got the regularization by paying necessary fee is false, and he himself paid the amount and got the regularization. By virtue of terms of the agreement they ought to have availed arbitration clause.
At any rate, he installed the lift of Zenith company . As per the terms of the development agreement any standard company lift can be provided. They have been using the lift for the last 2-1/2 years. At no time a complaint was made. There was no specific mention that the lift should be of OTIS or Johnson company. He made the following constructions etc.
Installation of generator and providing fire fighting equipment is not mentioned in the agreement. During the progress of the work, the land lord had agreed to drop the generator and fire fighting equipment and therefore they were not provided. It is not concerned with the complainants.
The electrical panel board is fitted as per the required norms and specifications.
In regard to external walls, painting etc. there would be normal wear and tear and as they have occupied the houses in December, 2006.
The complainants got fitted their own grills for the balconies and in the process they have damaged the parapet wall surfaces for which he was not responsible.
Flooring of the parking area was done perfectly with quality flooring.
There is no necessity of water trench near the main gate as the rain water does not enter the main gate.
The main gate is fitted as per the requirement.
The plastering of corridors was done perfectly.
The drainage system was done as per the requirements and according to the plan.
Under ground water storage tanks were provided properly.
There was adequate municipal water pipeline provided by the municipality.
In fact enhancement of pipe size is applied and the same is in the process.
The required shade for the top floor stair case was provided as per norms.
Whenever paintings are required they were done.
There is no provision for providing transformer. Three phase meters were provided as per the agreement.
Car parking areas were earmarked for those persons who have paid the money. Sri Rama Krishna did not pay the amount towards car parking as such he was not provided. However, he has been using the car parking area without payment of any money. Similarly complainant No. 1 is keeping his car. He has been allowing all this on humanitarian grounds.
Transfer of names in the Electricity Department has to be made by the complainants for which he was not responsible.
The complainants filed this complaint obviously to create hardship to him. The complainants had to clear off some of the amounts along with complainant No. 1 who purchased flat No. 401 originally and on his request he was allotted flat No. 101 for which he agreed to pay Rs. 5 lakhs in addition to initial agreement but till date he did not pay. He handed over the flats believing their words with a fond hope that they would pay the amounts. Sri Nageswar Reddy, landlord has filed several cases against him at various courts and instigated the complainants to file the present complaint. The owner has filed Arbitration Application No. 72/2008 and the same was dismissed on 16.2.2009. Later O.S. No. 658/2009 restraining him from parking his car and I.A. was dismissed on 17.2.2009. Later this complaint was filed on 20.2.2009. The complainants never raised any objection though they participated in number of meetings. They are all invented for the purpose of this complaint. All the agreements stipulate that the complainants should raise any objection within 12 months from the date of delivery and they are estopped from filing the complaint now. There was no delay on his part in handing over the possession. In fact he waited when the complainants requested that they intend to get the interiors completed. They took three months for each flat to complete wood works as they have engaged the same carpenter. The minutes of the meeting held on 1.4.2008 would prove that there were no pending works. At no time objections were raised. The only objection that was raised was with regard to light in the lift. All of them are liable to pay Rs. 1,50,000/- each to him towards wood. They have filed the complaints in order to harass him and therefore prayed for dismissal of the complaint with costs.
4) The complainants in proof of their case filed the affidavit evidence of complainant No. 3 T.L.N. Swamy and got Exs. A1 to A11 marked. Refuting their evidence the opposite party filed his affidavit evidence and got Exs. B1 to B9 marked.
5) The points that arise for consideration are :
Whether there was any deviation or incomplete construction and consequent deficiencies as alleged by the complainants.
Whether the opposite party is entitled to any amount claimed by him?
Whether the complaint is maintainable by virtue of arbitration clause?
Whether the complaint is barred by limitation?
6) It is an admitted fact that Palanki Nageswar Reddy absolute owner of an independent house bearing No. 10-3-811 situated at Vijayanagar Colony, Hyderabad given to the opposite party who is engaged in housing construction activity for development of it into a multi-storeyed residential complex. Accordingly they entered into a development agreement through General Power of Attorney (GPA) on 1.6.2005 wherein they agreed that they were entitled to 50% of the built up area evidenced under Ex. A1. The complainants entered into agreements of sale Exs. A2 to A4 individually dt. 5.10.2005, 5.11.2005 and 26.1.2006 for a consideration of Rs. 25,33,275/-. They mentioned various terms in the development agreement Ex. A1, along with specifications mentioned in Schedule-C. Among other things generator, fire fighting equipment, lift were made a mention at items No. 13 to 15 of the said schedule. In the agreements of sale specifications were made a mention, however omitting generator, and fire fighting equipment.
7) Before considering the question as to the various deficiencies in construction we take up points 2 & 3 to resolve the maintainability of the complaint.
8) The opposite party contended that clause 16 of the development agreement stipulates that “In case of any dispute or difference arising out of or in pursuance of or in respect of the agreement the same shall be referred to an arbitrator in accordance with the terms of the agreement and the provisions of the Arbitration & Conciliation Act, 1996. In fact they have named Mr. M. V. Durga Prasad as sole arbitrator. The learned counsel for the opposite party contended that in the light of above clause the matter has to be referred to the arbitrator and that the complaint is not maintainable.
9) Learned counsel for the complainants contended by referring to a decision of Supreme Court in Secretary, Thirumurgan Co-operative Agricultural Credit Society Vs. M. Lalitha reported in I (2004) CPJ 1 (SC) that there was no bar for the complainants to file a complaint under the Consumer Protection Act despite a clause in the agreement to refer the dispute to an arbitrator.
10) The Hon’ble Supreme Court time and again up-held the jurisdiction of consumer fora to resolve the dispute despite a provision entitling the parties to refer the matter to arbitration. In the light of authoritative pronouncement of the Supreme Court when neither of the parties had invoked this clause the question of non-maintainability of complaint will not arise. Therefore this objection has no legs to stand.
11) The other contention that was raised is that by virtue of clause-6 of development agreement, after delivery of property if there appears any defects in the construction or other works under the development agreement within 12 months of the delivery, the same shall be notified through a competent architect mutually authorised by the owner and the developer and after such investigation the same shall be rectified by the developer at its cost without any delay. While the opposite party alleges that the possession was handed over in December, 2006, the complainants did not specifically mention any date to raise the dispute as to the various defects in construction. For the first time they alleged by way of registered legal notice under Ex. A10 dt. 4.9.2008 for which opposite party gave reply. The opposite party contends that several meetings were conducted in none of the meetings any objection was raised in regard to the deviations/defects or deficiencies in construction evidenced from minutes of meeting dt. 1.4.2008. (Ex. B4). The complainants allege that basically meetings are held in order to point out deficiencies in maintenance of the building. Therefore these objections will not find a place.
12) We may state that it is not as though the property was sold after finishing the entire complex. It was sold in semi-finished stage. Even the opposite party admits that he had waited till the complainants could complete interior works. It was an ongoing project where constructions here and there are being carried out despite the fact that possession was handed over to the complainants. More over only after they entered into the apartments these defects were surfaced. In such circumstances the cause of action should not be reckoned from the date of handing over of possession. It could be only from the date when these defects are surfaced or noticed, more so, in the light of averments made by them in notices as well as reply, wherein both sides have claimed, that disputes were raised in regard to this. It must be held that the complainants were pursuing but for one reason or the other they were not carried out. Even assuming that there were no defects, it cannot be reckoned from the date of possession of the property. In the light of the fact that the complaint was filed on 12.3.2009 the possession even according to the opposite party has been handed over in December, 2006 and by the time they were not settled, therefore it cannot be said that the complaint was barred by limitation.
13) Before going into the deviations/defects/deficiencies pointed out by the complainants, we may state that the complainants had filed I.A. No. 230/2010 for appointment of a qualified engineer to inspect and find out the defects or deficiencies pointed out by them.
14) Learned counsel for the respondent opposed the said application on the ground that this Commission was not clothed with the power to appoint a commissioner under the Consumer Protection Act and in support of his contention he relied a decision of High Court of A.P. reported in AIR 2005 A.P page 118 and also a decision of Calcutta High Court reported in AIR 1997 Calcutta-1.
15) We may state at this juncture that the complainants could have as well got the apartments inspected and verified through a qualified engineer or expert and filed his report along with his affidavit which would enable the opposite party either to admit or controvert the evidence by opposing the relevant evidence.
16) The proceedings under the Consumer Protection Act being summary in nature, the complainants ought to have resorted to the said procedure instead of seeking for appointment of a commissioner contrary to the decision in this regard.
17) When the complainants alleged various defects, deficiencies/deviations etc. in construction, equally the opposite party filed affidavit denying the same, it is oath against oath. There is no reason why the complainants did not file affidavit evidence of other flat owners in order to prove these defects or deficiencies pointed out by them in their complaint.
In the light of above, decisions, we are unable to appoint a commissioner, and consequently dismiss the petition.
18) At the time of hearing along with written arguments certain photographs were filed with a memo. From that we may not be able to resolve the so called deficiencies or defects pointed out by the complainants. While filing the complaint they should have filed expert report to point out defects and deficiencies left behind by the opposite party. Even the so called estimates filed by the complainants could have been pointed out by way of affidavit. Therefore the defects pointed out by the so called experts and the amounts computed by them towards said deficiencies cannot be taken Ipso facto proof of deficiencies and direct the opposite party to rectify the same or in the alternative pay compensation for that.
19) Coming to the deficiencies/objections pointed out:
1) Zenith lift installed instead of Otis/Johnson:
In Ex. A1 development agreement as well as agreement of sale Exs. A2 to A4, in regard to lift it was mentioned that “Lifts of Johnson/OTIS make or any other equivalent make.” Therefore the contention that lift should be of Johnson/OTIS make cannot be upheld. There is no proof that Zenith company lift that was installed was not of equivalent make. There is no proof that any complaint has been made for the last two and half years. It is evidently running well.
2) Generator for standby power:
Though in the development agreement between the builder and the owner under item No. 14 provides ‘Generator for standby power supply for one lift and common areas with two electrical light and two fans points in each unit, at the time when agreement of sale was executed under Exs. A2 to A4 in favour of complainants, this item was deleted from the schedule. When this item was deleted and the complainants a highly educated having been signatories of Exs. A2 to A4, cannot insist for installation of generator.
3) Fire fighting equipment: In Ex. A1 this was mentioned at item No. 15. However this was deleted in Exs. A2 to A4. Under the A.P. Apartments Act unless it is a multi-storeyed complex coming under Chapter-3 there was no need for installation of fire fighting equipment. When the complainants did not choose to insist for installation of fire fighting equipment in the agreements of sale entered into by them with the opposite party, we cannot insist the opposite party to install the fire fighting equipment.
In regard to remaining claims viz.,
Lifting of electrical meter board and fencing around the meter panel board; Replacement of scrap, broken uneven flooring with white marble stone flooring on steps, corridors; Plastering of patches of outside walls and patches at pipelines; Finishing of balcony’s parapet wall surfaces. Plastering of patches and finishing of ducts in corridors; proper plastering of building surrounding area at ground level and water outlet connections; Plastering of lift hole and under sliding rail; . inferior car parking flooring etc., there is no proof, as we have already pointed out that these constructions were defective in nature. When the opposite party both in reply to the legal notice as well as in counter affidavit evidence has categorically stated that all these were in perfect shape and there was no damage, and in fact they were provided as per specifications and norms, we cannot direct the opposite party to rectify them. Unless there is categorical evidence, we may not be able to direct the opposite to do it. In fact the opposite party is also one of the occupants of the apartments. He gave the following reply to each of the other objections.
When the complainants claimed 3/4th inch municipal water line to be obtained and installed: The opposite party mentioned at para 5 (xi) of counter affidavit stating “ The adequate municipal water pipeline is provided and enhancement of pipe size is applied and the same is in the process with the HMWS&SB. This fact was not denied by the complainants.
The complainants claimed refund of regularization fee paid by them for regularization of deviations amounting to Rs. 1 lakh. The opposite party asserted that he paid the amounts. No evidence is placed to controvert this fact. When there is no proof that they have paid the regularization charges the question of their entitlement will not arise, more so, when the opposite party asserts that he paid the amount.
The opposite party by referring to Ex. B3 minutes of meeting dt. 1.4.2008 contended that had there been such defects undoubtedly the complainants would have made a mention therein. Non-mentioning of the same would show that there were no defects. The complainants assert that those meetings only the maintenance problems were mentioned and not in regard to major deficiencies or defects pointed out by them in their complaint. In fact a perusal of the defects narrated above are of minor in nature. They are signatories to the minutes of the meeting dt. 1.4.2008.
In the light of above, we are unable to hold that the respondent was guilty of any deficiency in service and consequently cannot direct him to complete constructions or rectify the defects. Equally, we are unable to award any compensation in the alternative.
20) Evidently there are disputes between the parties. The opposite party alleged that there were disputes with the owner who in turn filed suits, arbitration proceedings before the High Court pertaining to the very same building. He also filed order of High Court in Arbitration Application No. 72/2008 filed against him for appointment of arbitrator to resolve the disputes raised herein which were equally raised by the owner. Whatever be the dispute, the fact remains that the complainants could not prove the deficiencies alleged by them in the complaint. We do not see any merits in the complaint.
21) In the result the complaint is dismissed. However, no costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
COMPLAINANTS: OPPOSITE PARTY
None None
Documents marked for complainants:
Ex A-1 Development agreement – General Power of Attorney Dated :01-06-2005
Ex A-2 Agreement of Sale Dated : 05-10-2005
Ex A-3 Agreement of Sale Dated :05-11-2005
Ex A -4 Agreement of Sale Dated :26-082006
Ex A-5 Sale Deed Dated 02-03-2006
Ex A-6 Sale Deed Dated 07-03-2006
Ex A-7 Engineers Estimates Dated :06-12-2007
Ex A-8 Regularization Application dated :07-02-2008
Ex A-9 Minutes of the Meeting Dated :01-04-2008
Ex A-10 Legal Notice dated :04-09-2008 and Postal Receipt
Ex A-11 Reply Notice Dated :17-09-2008
Documents marked for opposite parties:
Ex B-1 Original Bank Statement Dt:16-12-2009
Ex B-2 Sketch of Flat No.301, given by A. Suresh
Ex B-3 Extracts of Maintenance Book Page No. 3 to 11
Ex B-4 Minutes of Meeting dated : 01-04-2008
Ex B-5 Colour Photograph of Building taken 23-04-2008
Ex B-6 Reply notice dated :17-09-2008 by OP to the Counsel of complainants.
Ex B-7 Sketch showing the parking plan filed by OP in OS No. 658 / 2009
Ex B-8 Sketch showing the plan filed by owner in OS No.658 /2009
Ex B-9 Order dated :06-02-2008 in Arbitrator Application No. 72 /2008
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 10. 08. 2010.
*pnr
