Andhra Pradesh
Visakhapatnam-II
CC/406/2010
Anakapalli Manmadha Rao - Complainant(s)
Versus
M/s Ashoka Constructions - Opp.Party(s)
A.Srinivasa Rao
12 Jun 2015
ORDER
Date of Registration of the Complaint:02-11.2010
Date of Order:12-06-2015
BEFORE THE DISTRICT CONSUMERS FORUM-II AT
VISAKHAPATNAM
P r e s e n t:
1. Sri H. Ananda Rao, M.A., L.L.B.,
President
2. Smt K. Saroja, M.A. B.L.,
Lady Member
3. Sri C.V. Rao, M.A., B.L.,
Male Member
Friday, the12th day of June 2015.
CONSUMER CASE No.406/2010
Between:-
Anakapalli Manmadha Rao, S/o A. Raja Rao,
Hindu, aged 27 years, residing at F-3, First Floor,
Mohan Residency, D. No. 9-9-47/6, Sivajipalem,
Visakhapatnam-530017.
….. Complainant
And:-
1.M/s. Ashoka Constructions, Rep. by its
Proprietor, Yerlanki Appa Rao, S/o Yendu,
Hindu, aged 46 years, resident at D. No. 9-6-46/A,
Flat No.T-1, Ashok Residency, Sivajipalem ,
Visakhapatnam-530017.
2.Yerlanki Appa Rao, S/o Yendu, Hindu, aged 46
years, resident at D. No. 9-6-46/A, Flat No. T-1,
Ashok Residency, Sivajipalem, Visakhapatnam-
530017.
3.The Manager, IDBI Bank, Siripuram Branch,
Visakhapatnam.
… Opposite Parties
This case coming on 08.06.2015 for final hearing before us in the presence of Sri Aspana Srinivasa Rao and Sri Thota Maheswara Rao, Advocates for the Complainant and Sri S. Arun Dev, Advocate for the Opposite Parties 1 and 2 and Sri S.S. Sharma, Advocate for the 3rd Opposite Party and having stood over till this date for consideration, this Forum made the following:
ORDER
(As per Sri. H. Ananda Rao, Honourable President, on behalf of the Bench)
1. This consumer complaint is filed by the Complainant against the Opposite Parties directing them 1) to carryout in providing Car Parking and Two wheeler parking, to provide Electrical Transfer as per the APEPDCL norms, to carry out residential unit F-3 with good quality materials as per the specifications, to provide good quality of Electrical cabling in the entire F-3 of our client as per the specifications, to carry out or to re-fix new cup boards as per the specifications, to issue building completion certificate to him, to demolish the entire construction made in 3rd Floor/Terrace which leads to over load the entire building, more particularly in ground floor, to complete internal and external works as per the specifications, to issue receipts/acknowledgement to him in respect of the payments made to provide sufficient ventilation and light as per the norms of GVMC and other local authorities, to provide sufficient over head water tank or alternatively to pay a sum of 8,00,000/- sufficient water head tank or alternatively to pay a sum of Rs.1,40,000/- to issue letter handing over of the F-3, to direct pay a sum of Rs.20,000/- towards compensation and to refund of Rs.30,000/- with interest towards actual amounts spend for purchasing tiles, Taps, Wash basin, western commode, safety grills and other plumbing materials etc. and to pay an amount of Rs.10,000/-.
2. The case of the Complainant in brief is that he entered into an agreement with the Opposite Parties for constructions of Flat No.3 in First Floor of Mohan Residency for a valid consideration of Rs.76,100/- on 16.09.2009 and further agreed to complete the construction by the end of March, 2010 and it has to be constructed in accordance with the specifications prescribed in the schedule “C” of the said construction agreement. The Complainant again entered in supplementary agreement dated 16.09.2009 with the 1st Opposite Party to provide extra amenities in F-3 of Mohan Residency with plinth area of 845 Sft. (including common areas and balconies) for a valid consideration of Rs.5,78,900/- (Rupees five lakhs, Seventy eight thousand and nine hundred only). The Opposite Parties 1 and 2 failed to handover the flat in a good living condition within time as agreed in the agreement but at last the 1st Opposite Party delivered the flat as he has intended to GRUHA PRAVESAM and the Opposite Parties 1 and 2 locked the doors of Flat-3 belongs to the Complainant with key on 08.04.2010 though he paid the entire contractual amounts as per the schedule. Then he revealed that he was going to lodge a report before the Police Station about the illegal, high handed and un- authorized acts of the Opposite Parties 1 and 2 at that moment, at the intervention of the mediators the Opposite Parties 1 and 2 handed over the key of Flat-3 to him, and thereby found that the quality of the construction work is inferior and substandard besides many other deficiencies.
3. It is further case of the Complainant that the Opposite Parties 1 and 2 had constructed the flat deviations in the constructions made in the Mohan Residency and violated the Municipal Corporation Approval Plan and as per the terms and conditions of the construction agreement all doors should be erect with teak wood but the Opposite Parties 1 and 2 utterly failed to do so, for which he made a representation to the 3rd Opposite Party. On 10.04.2010 he performed he GRUHA PRAVESAM of F-3, thereafter he has completed some of the unfinished interior works left more than then 50% with his own funds and he was incurred more than a sum of Rs.30,000/- as such the Opposite Parties liable to pay the same with interest. As per the construction agreement, the Opposite Parties 1 and 2 have to provide balconies to his flat-3, but he failed to provide and due to used poor quality of cement and iron; walls were cracked as per the terms and conditions of the construction agreements the Opposite Parties 1 and 2 has failed to provide the following amenities.
4. 1) To provide plastering with CM (1:4) 12 mm thick for internal walls and its approximate value of works/items Rs.52,150/-,2) to supply and fixing of CUNTRY Wood doors with shutters with frames finishing works etc. all the labour and material approximate value of Rs.65,000/-, 3) to provide and laying of Marble stone block flooring 10mm thick rubed and polished of approved quality as coarse aggregate and river sand as fine aggregate including cement slurry etc. all the labour and material approximate value of Rs.89,900/-, 4) Provision for ceramic tiles flooring and doodling with Glazed Tiles cement mortar (1:3) mix 20mm thick approved quality complete, all the labour and material approximate value of Rs.20,300/-, 5) to provide cupboard, wardrobes with RCC Planks and teak wood framed with veneer polished finish etc. all the labour and material approximate value of Rs.1,95,000/- 6) Provision for material works approximate value of Rs. 1,04,000/-, 7) To provide snowcem with two coats to external walls and putty with Emulsion painting washing for two coats to external, internal and ceiling surfaces etc. approximate value of Rs.67,050/-, 8) to supply and fixing of teak wood doors with shutters with frames finishing works etc. worth of Rs.52,000/-, 9) to provide 03 phase connection and concealed copper wiring with points (Fixtures) worth of Rs.35,000/-, 10) to provide safety Grills worth of Rs.65,000/-, 11) For repairing of electrical wiring and fixtures etc. worth of Rs. 45,000/- and 12) Unforeseen items of Rs.9,100/- which comes to approximately Rs.8,00,000/-. Further the Opposite Parties 1 and 2 to provide ample covered Car Parking and Two Wheeler parking, Electrical Transfer as per the APEPDCL norms and sufficient water head tank approximately valued a sum of Rs.1,50,000/-. The 3rd Opposite Party failed rendered is service in a good manner and it comes under the purview of deficiency of service on the part of the Opposite Parties 1 to 3 polluted together with intention defraud to him. Hence, this complaint.
5. The case of the Opposite Parties 1 and 2 admitting the agreement denying all the material averments of the Complainant, that the Complainant has not incurred any expenditure is apparent since the Complainant does not disclose or whisper about the works which these Opposite Parties have left half way and which the Complainant got done himself. The absence of the supporting documents or pleading with regard to work wise or item wise expenditure itself falsifies the claim of the Complainant. A bare perusal of the table indicates that the entire construction was not completed by the Opposite Parties 1and 2 and it is quite interesting as well as surprising that the Complainant had taken delivery of the same, all the facilities were not provided.
6. The Complainant has entered into the agreement with them after understanding the contents of the same and also by comparing the specifications in this agreement with the brochure released by them earlier. The Opposite Parties have strictly adhered to the Municipal Plan and they have completed the construction with standard quality material and which is evident that the Municipal Corporation Officials have not any notice to them for alleged deviation from the approved plan. The Complainant made a complaint to the Municipal Authorities and they visited the building and found that complaint made by the Complainant herein was false. The Complainant failed to make payments to a tune of about Rs.1,50,000/- to them as per the supplemental agreement and when he was demanded the same, the Complainant in order to avoid his liability started this litigation by getting issued a notice with false and untenable allegations. Inspite of the Complainant failed to pay the aforesaid amount the delivery of the flat was given to perform GRUHA PRAVESAM. There are no merits or bonafide and therefore, it is liable to be dismissed.
7. The case of the 3rd Opposite Party is that the GVMC one of the necessary party but they failed to show them as necessary party. On their part there are no latches and the allegations made by the Opposite Parties 1 and 2 only, as per the requests made by the Complainant though a letter asking the Bank to release the amount as and when the Builder asks and more over the present applicant is also present whenever the amount is released. For these reasons, this complaint is liable to be dismissed.
8. To prove the case on behalf of the Complainant, the Complainant filed his affidavit and got marked as Exs.A1 to A23. On the other hand, on behalf of the Opposite Parties, the Opposite Parties 2 and 3 filed their evidence affidavits and got marked as Ex.B1.
9. Ex.A1 is the photo copy of letter addressed by the Complainant to the 3rd Opposite Party dated 08.04.2010. Ex.A2 is the Representation made by the Complainant to the Commissioner, GVMC, Visakhapatnam. Ex.A3 is the office copy of letter addressed by the Complainant to the Commissioner, GVMC dated 09.08.2010. Ex.A4 is the office copy of the letter addressed by the Civil Supply Secretary to the Complainant dated 10.08.2010. Ex.A5 is the Office copy of Registered Lawyer’s Notice issued by the Complainant’s counsel to the 1st Opposite Party dated 16.08.2010. Ex.A6 is the Postal Acknowledgement from the 1st Opposite Party dated 17.08.2010. Ex.A7 is the original Registered Reply Lawyer’s Notice issued by the 1st and 2nd Opposite Parties counsels to the Complainant’s counsels dated 31.08.2010. Ex.A8 is the original Certification pertaining to Loan letter issued by the 3rd Opposite Party to the Complainant dated 16.09.2010. Ex.A9 is the original Detail Cum Abstract Estimation of value for additional works issued by the Licenced Engineer/Valuer Sri Ravi Kumar Enterprises. Ex.A10 is the original Bunch of Bills in No.12 (Twelve). Ex.A11 is the original Supplementary Agreement entered into between the 1st Opposite Party and Complainant dated 16.09.2009. Ex.A12 is the photo copy of GVMC total Door Numbers of record. Ex.A13 is the photo copy of letter from GVMC of the Commissioner to the Commissioner of Police, Visakhapatnam dated 25.04.2011. Ex.A14 is the photo copy of GVMC issued notices against deviations dated 21.10.2011. Ex.A15 is the photo copy of GVMC issued notices against deviations dated 07.12.2011. Ex.A16 is the photo copy of GVMC issued notices against the deviations dated 29.05.2012. Ex.A17 is the original Eenadu Paper cutting along with Negligence in fire safety from the GVMC dated 27.11.2012. Ex.A18 is the photo copies of Plan copy from the Manager of the IDBI Bank issued under the RTI Act dated 13.11.2010. Ex.A19 is the photo copy of Registered Sale Deed entered into between the 1st Opposite Party and in favour of Sri Draksharapu Giri Babu dated 01.02.2010. Ex.A20 is the photo copy of Registered Sale Deed entered into between the 1st Opposite Party and in favour of the R. Sravan Kumar dated 03.03.2010. Ex.A21is the photo copy of Sale Deed entered into between the 1st Opposite Party and in favour of the Dasari Srirama Murhty dated 27.07.2010. Ex.A22 is the photo copy of letter addressed by the Complainant to the Deputy Commissioner of Police, Visakhapatnam reply to RTI Application dated 23.06.2011. Ex.A23 is the photo copy of the letter along with FIR copy issued by the Inspector of Police, III Town PS. MVP Zone, Visakhapatnam City to the Complainant along with original Postal Receipts dated 15.08.2012.
10. Ex.B1 is the photo copy of the letter addressed by the Complainant to the Manager of the IDBI Bank, Visakhapatnam along with memo.
11. Both parties filed their respective written arguments.
12. Heard oral arguments from both sides.
13. I.A. 78/2014 This petition is filed by the Complainant/Petitioner to appoint Advocate Commissioner to localize the Flat i.e., F-3 in 1st floor D. No. 9-8-20/3, Sivajipalem, Visakhapatnam-17 with the help of Development Agreement dated 16.09.2009 and to note down the physical features.
14. The case of the Petitioner/Complainant is that he filed complaint against the Opposite Parties; claim to carry out the works incomplete in the flat handed over under the agreement dated 16.09.2009. As the Opposite Parties have failed to complete the works listed in the main complaint; appointment of Commissioner is necessary for local inspection.
15. The case of the Opposite Parties denying all the material averments of the Petitioner is that the flat was completed in all respects as such there is no necessity to localize the flat. The Complainant having satisfied with their performance of work had taken possession of the Flat and that since no case is made out by the Petitioner against them, the petition is liable to be dismissed
16. The case of the 3rd Opposite Party that this application filed is not permissible under law. The Complainant has to file this Complaint at the initial stage with all necessary document and evidence and he cannot seek Forum help to secure evidence which is bad under law. For these reasons, this petition filed by the Petitioner, deserves to be dismissed.
17. Now the point that arises for determination is:-
Whether there is any deficiency in service on the part of the Opposite Parties and the Complainant is entitled for the reliefs for?
18. This is a case of 2010. The Complainant filed main case directing the Opposite Parties to carry out some of the works left over by them and to provide Car Parking electrical transfer etc. At the initial stage the Petitioner has not come forward with similar application. This petition is filed at the fragment i.e., after filing evidence affidavit of both sides. There is no provision in the act to appoint Advocate Commissioner for local inspection. The Petitioner/Complainant has not filed evidence affidavit of other flat owners to show the deviating of the works done by the Opposite Parties. On a careful reading of the record, we are of the considered view that the Petition filed by the Petitioner is not only belated and it can be held that in order to gather evidence at a belated stage, he come forward with this application which is not permissible under law. For these reasons, the Petition filed by the Petitioner has deserves to be dismissed.
19. In the result, this petition is dismissed. No costs.
20. It is not in indispute that the Complainant is the absolute owner of Flat No.3 of Mohan Residency which is purchased under Registered Sale Deed on 16.09.2009 for consideration and the Opposite Parties 1 and 2 are carrying on business of construction of Apartments and Group Houses in and around at Visakhapatnam City under the name and style of M/s. Ashoka Constructions and they have constructed the flat No.3 in first floor of Mohan Residency, after obtaining approval from GVMC stilt plus ground plus two upper floors, and they have completed the construction. The Complainant initially paid Rs.76,000/- and thereafter at the time of execution of supplementary agreement he paid Rs.5,78,900/- and after completion of the construction the Flat No.3 was delivered to the Complainant and he performed the GRUHA PRAVESAM on 10.04.2010 vide Ex.A1.
21. Ex.A3 is the office copy of the letter addressed by the Complainant by the Complainant to the Commissioner, Greater Visakhapatnam Municipal Corporation informing the violations of master plan approved by them while constructing the building. Ex.A5 is a Registered Lawyer’s Notice sent by the Complainant to the 1st Opposite Party drawing their attention in respect of the deviations as per Clause-II, Clause-I and Clause-12 etc. and demanded him to provide Car Parking, Electrical Transfer and drawing the attention of poor quality of work etc. and a suitable reply was sent vide Ex.A7 informing the Complainant that the Opposite Parties are not liable to pay any amount and all other demands made in the notice were already complied etc.
22. In this back ground now it is to be seen what evidence is let in by the Complainant to prove his case. Vide Ex.A2 dated 09.04.2010 the Complainant made a representation before the Municipal Corporation Authorities in respect of deviations of the master plan. For the first time on 16.08.2010 vide Ex.A4 the Complainant got issued a Registered Lawyer’s Notice that the Opposite Parties have left some unfinished interior works and Car and Scooter Parking were not provided so also electrical transfer, poor quality of electrical cabling etc. and immediately a reply was sent vide Ex.A7. In order to show there are deviations of some works were left over, car parking not provide etc. except evidence affidavit of the Complainant, there are no the evidence affidavits of other flat owners or documentary evidence to substantiate his case. It appears all of the other flat owners have occupied the buildings in all the floors but the Complainant has not obtained any of their affidavits evidencing his contention, much less about the poor quality of the work, transfer, Car Parking and Scooter Parking etc. He has not filed at least expert evidence affidavit in this regard. In the absence such evidence basing on the sole and interested testimony of the Complainant himself it is very difficult to come to a conclusion that the case of the Complainant is true and correct. The Complainant at least ought to have obtained the affidavits of the concerned flat owners but he failed to do so. Having regard to all these facts and circumstances, in our considered view, it can be held that there is no deficiency of service on the part of the Opposite Parties as such the complaint filed by the Complainant is liable to be dismissed.
23. In the result, this Complaint is dismissed. No costs.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in the Open Forum, this the 12th day of June, 2015.
Sd/- Sd/- Sd/-
Male Member Lady Member President
APPENDIX OF EVIDENCE
For the Complainant:-
NO. | DATE | DESCRIPTIONOFTHEDOCUMENTS | REMARKS |
Ex.A01 | 08.04.2010 | Letter addressed by the Complainant to the 3rd OP | Photo copy |
Ex.A02 |
| Representation made by the Complainant to the Commissioner, GVMC, VSP. | Original |
Ex.A03 | 09.08.2010 | Office copy of letter addressed by the Complainant to the Commissioner, GVMC | Office copy |
Ex.A04 | 10.08.2010 | Letter addressed by the Civil Supply Secretary to the Complainant | Office copy |
Ex.A05 | 16.08.2010 | Registered Lawyer’s Notice issued by the Complainant’s counsel to the 1st OP | Office copy |
Ex.A06 | 17.08.2010 | Postal Acknowledgement from the 1st OP | Original |
Ex.A07 | 31.08.2010 | Registered Reply Lawyer’s Notice issued by the 1st and 2nd Ops counsels to the Complainant’s counsels. | Original |
Ex.A08 | 16.09.2010 | Certification Pertaining to Loan letter issued by the 3rd OP to the Complainant | Original |
Ex.A09 |
| Detail cum Abstract Estimation of value for additional works issued by the Licenced Engineer/Valuer Sri Ravi Kumar Enterprises. | Original |
Ex.A10 |
| Bunch of Bills in No.12 (Twelve) | Original |
Ex.A11 | 16.09.2009 | Supplementary Agreement entered into between the 1st OP and Complainant | Original |
Ex.A12 |
| GVMC total Door Numbers of record | Photo copy |
Ex.A13 | 25.04.2011 | Letter from GVMC of the Commissioner to the Commissioner of Police, VSP | Photo copy |
Ex.A14 | 21.10.2011 | GVMC issued notices against deviations | Photo copy |
Ex.A15 | 07.12.2011 | GVMC issued notices against deviations | Photo copy |
Ex.A16 | 29.05.2012 | GVMC issued notices against the deviations | Photo copy |
Ex.A17 | 27.11.2012 | Eenadu Paper cutting along with Negligence in fire safety from the GVMC | Original |
Ex.A18 | 13.11.2010 | Plan copy from the Manager of the IEBI Bank issued under the RTI Act | Photo copy |
Ex.A19 | 01.02.2010 | Registered Sale Deed entered into between the 1st OP and in favour of Sri Draksharapu Giri Babu | Photo copy |
Ex.A20 | 03.03.2010 | Registered Sale Deed entered into between the 1st OP and in favour of Sri R. Sravan Kumar | Photo copy |
Ex.A21 | 27.07.2010 | Sale Deed entered into between the 1st OP and in favour of the Dasari Srirama Muthry | Photo copy |
Ex.A22 | 23.06.2011 | Letter addressed by the Complainant to the Deputy Commissioner of Police, VSP reply to RTI Application | Photo copy |
Ex.A23 | 15.08.2012 | Letter along with FIR copy issued by the Inspector of Police, III Town PS, MVP Zone, VSP | Photo copy |
For the 3rd Opposite Party:-
NO. | DATE | DESCRIPTIONOFTHEDOCUMENTS | REMARKS |
Ex.B01 |
| Letter addressed by the Complainant to the Manager of the IDBI Bank, Visakhapatnam along with memo | Photo copy |
Sd/- Sd/- Sd/-
Male Member Lady Member President
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