A. P. STATE CONSUMER DISPUES REDRESSAL COMMISSION : AT HYDERABAD
C. D. 68/2007
Between :
Riviera Apartments Owners Association
Regd. No. 9832/2000, situated at
6-3-347/9, Dwarakapuri Colony,
Panjagutta, Hyderabad – 500 082
Represented by its President
Sri P M Nair, S/o Sri late Shre N. P. Pillai,
Aged 65 years, R/o Flat no. 302
Riviera apartments, 6-3-347/9,
Dwarakapuri Colony, Panjagutta,
Hyderabad – 500 082 … Complainant
And
1. M/s. Bhavanam Estates Private Limited
Having its office at Plot no. 15, Harita Apartments
Kanti Sikhara Buildings Road, Somajiguda,
Hyderabad – 500 482
Represented by its Managing Director
B. Govinda Reddy, S/o Sri B. Venkat Reddy
Aged 45 years, Occ : Business
R/o Flat no. 601 and 602
Riviera Apartments, Dwarakapuri Colony
Panjagutta, Hyderabad.
2. B. Govinda Reddy, S/o Sri B. Venkat Reddy
Aged 45 years, Occ : Business
R/o Flat no. 601 and 602
Riviera Apartments, Dwarakapuri Colony
Panjagutta, Hyderabad.
3. Smt. B. Sakeela Reddy
W/o B. Govinda Reddy.
Aged 42 years, Occ : Business
R/o Flat no. 601 and 602
Riviera Apartments, Dwarakapuri Colony
Panjagutta, Hyderabad – 500 082. … Opposite parties
Counsel for the Complainant : M/s. Prabhakar Sripada
Counsel for the Opposite parties : M/s. G. Rama Sarma.
Coram :
Sri Syed Abdullah … Hon’ble Member
And
Sri R. Lakshminarasimha Rao… Hon’ble Member
Monday, the Nineteenth day of July, Two Thousand Ten
Oral Order : ( As per Sri Syed Abdullah, Hon’ble Member )
*******
Alleging deficiency in service against the opposite parties 1 to 3, i.e. the builder-cum-the developers, this complaint is filed seeking directions to renovate the defects in the construction made in their flats, also to pay compensation of Rs.26,60,000/- to make good the deficiencies, so also, to pay costs of Rs.20,000/-.
Briefly stated the facts of the case are that all the 27 Flat owners have formed themselves as an Association in respect of flats of developed by M/s. Bhavanam Estates Private Limited ( OP 1). All the owners have undivided share of land of 50 sq. yds each. All the owners after forming as registered association, they elected the second opposite party as its President in the year 2000 who continued up to 2005. That on 19.02.2005, one P. M. Nair was elected as President of the association. In the meeting held on 30.12.002, the executive body had discussed about the inconvenience faced by them in respect of basic amenities such as drinking water connection, drainage facility, overhead water tank facility etc. The first opposite party had agreed to provide the main lift and also agreed to clear drainage facility by 31.03.2003. The second opposite party while he was the President of the Association had promised that he would get the erection of elevator but he failed to do so. The meeting held on 30.12.2002 was presided over by Mr. B. Govinda Reddy as Builder-cum-President of the Association and in the minutes it is noted that on making enquiries from the elevator companies and after going through the quotations for erection of a new elevator the quotation given by M/s. KONE Elevator Company was approved . As per the quotations, the total cost of new elevator comes to Rs.5,25,000/- which is to be necessarily collected from the builder. The first opposite party failed to install the lift as promised. So all the members of the association have taken steps to install OTIS Elevator by incurring expenditure for an amount of Rs.6,70,000/- and initially an advance amount of Rs.67,000/- was paid to the said company. A small elevator is erected in the complex which was installed by M/s. Ion Exchange ( India ) Limited and the said company which installed it has permitted the members to use it at Mercy. The said company informed the members of the association not to use the said elevator as it is not possible to extend facility since other tenants who are residing in four other flats situate on the fourth floor have to use the same. Till date, the first opposite party failed to provide drinking water facility . On enquiry from the Hyderabad Metropolitan Water Supply and Sewerage Board, it is informed that the cost of it will be at Rs.15 lakhs. The builder had constructed two over head tanks, one for storage of drinking water and another for bore well water. After a few years, the first opposite party without consulting the association had completely occupied one of the water tanks intended for drinking water and he extensively used it for his family and also made unauthorized construction for it and collected charges from the flat owners of 601, 602 and 700. At the time of construction the builder ( OP 1 ) had taken illegal connection of water and later when the Sewerage Board came to know of it had fined him to pay Rs. 3.50 lakhs penalty which he failed to pay so far. Further the first opposite party failed to provide separate control points and sanitary and drainage connections which he has to provide it whose cost approximately would be Rs. 5 lakhs. The toal cost of the amenities which are to be provided comes to Rs.26,70,000/-. The first opposite party is liable to make good all the above unfinished amenities. Even though the members of the Association which continuously persuading the opposite parties 1 and 2 but they failed to fulfill their obligations which amounts to deficiency in service.
The opposite parties 1 to 3 filed their common version denying the allegations. It is further stated that there is no relationship of contractual, jural or otherwise with the complainant and that the complainant has no locus standi to file the case. As per the development agreements entered into, the individuals units were sold away by executing a sale deed and also delivered possession way back in the year 2000 by obtaining their acknowledgements. Most of the purchasers after taking possession of the flats have in turn sold away their flats and went away. One of the purchasers M/s. Ion Exchange Limited had purchased some flats in the fourth floor but he owed payment of the balance of consideration and without payment of the same he tried to take forcible possession and at that stage the opposite parties have filed O.S. 39/2000 in the Civil Court for adjudication which is pending. The said company also filed CMA 1317/2000 on the file of the Hon’ble High Court and also filed a suit in OS.no. 173/2000 on the file of XII Addl. Chief Judge, City Civil Court, Hyderabad,. During the pendency of CMA 1317/2000 the opposite parties have registered four sale deeds on deposit of the balance of sale price. Some of the other persons tried to create some litigation by formation and registration of the association. The builder has no further role to play in its administration and maintenance of the entire premises since it was handed over. The second opposite party has acted as its President till 2004. Due to differences in between the family members of the second opposite party and other tenants some civil cases were filed which is in respect of recovery of maintenance charges. Suits OS 1722/2005 and OS No. 6968/2007 are still pending. Lift was also installed by the year 1999-2000 and the balance of the amount payable to the Elevator Company was paid by M/s. Ion Exchange ( India ) Limited which was deducted from out of the amount payable to the builder ( OP 2). The said lift is in operation till date.
The complainants’ Association filed evidence affidavit along with Ex. A-1 to A-7 in support of its case. The opposite parties filed evidence affidavit and also two documents which are marked as Ex. B-1 and B-2.
Points for adjudication are
(1) whether the opposite parties have committed deficiency in service in not providing the amenities as alleged ?
(2) whether the Complainants” Association is entitled for the reliefs claimed,; i.e., fixation of elevator, providing drinking water supply , overhead tank, drainage facility or alternatively for recovery of Rs.26,60,000/- towards cost of the above said deficiencies and costs of Rs.20,000/- ?
The allegations made against the first opposite party are that the builder had constructed multi-storied apartment from which he sold some flats to the members of the complainants’ association but the flats are not having basic amenities, such as, drinking water connection to various flats, over head water tank and that having agreed to provide main lift had failed to provide the same. The Managing Director of OP 1 company, by name, B. Govinda Reddy was elected as President of the Complainants’ association for a period of five years and as per the meeting held on 30.12.2002 which was presided by Mr. B. Govinda Reddy had agreed to install a new elevator worth Rs.5,25,000/- which amount he has agreed to collect from the first opposite party company. As the first opposite party did not install the lift as promised, the complainants’ association itself had taken steps to install OTIS elevator at an estimated cost of Rs.6,20,000/- for which an advance amount of Rs.67,000/- was paid. The elevator in the complex was installed by one of the owners of the apartments, M/s. Ion Exchange ( India ) Limited and the same being utilized by all others and that the said company had informed the other owners of the flats to make their own arrangements for erection of another lift. It is also the allegation that the drinking water supply connection is not given to the individual flats, as a result of which, all the flat owners are suffering from for the last several years and that the complainants’ association itself had contacted Hyderabad Metropolitan Water Supply and Sewerage Board for having a connection for which the Board informed that separate pipeline connection would cost Rs. 15 lakhs. It is also the allegation that the first opposite party built two separate over head tanks, one for drinking water and another for bore-well water, but, one of the water head tank which is intended for drinking water storage was completely occupied and being exclusively used by the first opposite party to provide water for his family members and two other flat owners, i.e., 601, 602 and 700. The builder had taken an illegal water connection at the time of construction of the multi-storied complex and on that the Board had imposed a penalty of Rs.3.50 lakhs and also the allegation that separate control points and sanitary and drainage connections were not provided to the flats and to have separate connections the cost would be at about Rs.5 lakhs. In total, the cost of the unfinished works would comes to Rs.26,70,000/- - which the opposite parties 1 to 3 are liable to pay .
Undisputedly, the owners after purchase of the individual flats, themselves have formed into an association on 28.11.2002 and thereafter the second opposite party who is the Managing Director of the first opposite party company was elected as the President of the Flat Owners Association for a period of five years. To substantiate the allegations, the complainant association has filed Ex. A-1 brochure issued by the builder at the time of sale of the flats. Ex. A-1 brochure does not contain any details. It does not contain any undertaking in respect of the amenities and requirements to be provided. Ex. A-1 has highlighted his construction activity or ventures taken up at different places and other facilities such as entertainment etc that are available in the complexes for the benefit of owners of the flats. Except that it does not contain any other details, it is not known why the owners of the complainants’ association has failed to file the construction agreements under which the first opposite party had agreed to provide basic amenities and other facilities under which an Agreement executed by the first opposite party agreeing to provide amenities which is a crucial document and for the reasons best known it is not filed. Unless the details are gone through, it cannot be said whether the first opposite party had agreed to install the second lift as alleged. Similarly, as to get the drinking water connection at his own cost, it is not known how the members of the complainants’ association right from 2000 onwards till the date of filing of the complaint on 23.11.2007 have not protested and have been using their flats without insisting first opposite party to make good the short coming. For the first time, after lapse of seven years, the complaint was filed against the first opposite party construction company and also the second opposite party Managing Director in his personal capacity. Similarly, against third opposite party who is the Director and wife of the second opposite party. For every multi-storied complex and flats the basic requirement is that the builder has to apply for sanction of plan and to obtain permission to provide sewerage facility and water connection by paying necessary charges as per the rules framed by the Sewerage Board. It is not known how the owners of the complainants’ association have occupied the flats and have been in use of it, all the while, without occupancy certificate and even without providing the drainage connection or drinking water facility. It is stated that a resolution was passed and in the meeting held on 30.12.2002 which was presided by the second opposite party he agreed to instal an elevator worth Rs.5,25,000/-. Even from the resolution as noted in para 7 (a) of the Constitution it does not convey any commitment that the first opposite party had agreed to instal the elevator meeting from his own expenditure. Unless there is a specific agreement under which the first opposite party had agreed to instal main lift or second lift he cannot be compelled on the oral assertions made in the complaint. It may that the complainants’ association had paid a sum of Rs.6,70,000/- to the OTIS Elevator for erection of lift in the apartments from which no inference can be drawn that the OP is under legal and contractual obligation to provide the same and the amount paid by the complainants’ association is to be refunded. Ex. A-2 is a blank application issued by the Hyderabad Metropolitan Water Supply and Sewerage Board for applying for water supply and sewerage connection to the multi-storied complex on payment of charges as fixed the Board. From Ex. A-2 it cannot be said that the opposite party has failed to obtain water connection or sanitary connection in respect of the flats. The other document is Ex. A-3 which is only a registration certificate issued to the association. Ex. A-4 is the copy of the resolution of the Executive Committee Meeting held n 10.12.2006, in which, though, a resolution was passed to initiate action against the opposite parties 1 to 3 by filing a complaint before the Consumer Disputes Redressal Commission as to the shortcomings that were made by the builder. Similarly Ex. A-5 is the another copy of the resolution of the meeting held on 18.12.2006 which shows that one person , by name, P. M. Nair was elected as President of the Association along with other executive body members. It is only an internal arrangement made by the complainants’ association for maintenance of the flats by the members and as well its up-keep and from which nothing can be inferred that there was breach of obligation on the part of the first opposite party and that he failed to provide the amenities referred to above. The first opposite party had filed the copy of the bye laws of the complainants’ association and also a copy of the resolution passed by the owners of the complainants’ association on25.02.2005 for management and maintenance of the flats that are owned by the members. No resolution is passed in any of the meetings that the first opposite party had committed any breach of contract in not providing the amenities as alleged to take action against both the builder/company and as well personally against he Managing Director and Director.
The burden of proof is always on the complainant to establish that the builder who had constructed the multi-storied complex or the flats had not fulfilled the contractual obligations and that there are short comings which are required to be done as per the directions of the Consumer Disputes Redressal Commission. A cursory look of the allegations of the complainants’ association itself shows that the allegations are bald and vague and those allegations are not substantiated by any tangible evidence to prove it. The documents that are being filed are in no way concerned with the allegations. It is not known why they have not filed any of the correspondence said to have been exchanged between the association and the first opposite party by pointing out the shortcomings calling upon him to fulfill it. The complainants’ association has not placed any relevant documentary evidence on record. Unless it is proved and established that as per the contractual obligations, the first opposite party failed to provide amenities referred to above and that the second opposite party while acting as President of the association failed to discharge his duties so as to make him individually liable along with his wife ( OP.3), they cannot be made liable. It is elementary that in order to succeed in the case filed by the complainants association it has to establish that the first opposite party had committed breach of the agreement and that by incurring an additional expenditure they made good those short comings or that necessary amount is required for getting them fulfilled. Though one may have sympathy towards the owners of the flats when they are not provided with amenities as per the contract but no order can be passed in favour of the owners in the absence of tangible and cogent evidence.
The complainants’ association is that there is continuous cause of action. It is true that in housing construction activities in case of short comings or failure on the part of the builder, the builder would be compelled to complete it provided there is an evidence. During the enquiry, the complainants’ association have not at all taken any steps to get an Advocate Commissioner appointed to know the prevailing conditions of the flats or shortcomings which were not provided with. Cause of action arose as long back as in the year 2000 when the flats were handed over and taken possession by the owners. There was no follow up action on the part of the complainants’ association to compel the first opposite party to provide the alleged short comings. The complaint is to be filed within a period of two years from the date of cause of action else the complaint will become stale and barred by limitation. The complainants’ association cannot take shelter that the cause of action continues especially when the complaint was not filed within the limitation. They have not applied for delay condonation. On a close scrutiny and appreciation of the evidence on record, we are of the considered opinion; that the complainants’ association has miserably failed to substantiate the allegations for entitlement of the reliefs claimed for .
In the result, the complaint is dismissed on the ground that the allegations are not established and that the complaint is also not maintainable as barred by limitation. In the circumstances of the case, each party to bear its own costs.
Sd/-MEMBER
Sd/-MEMBER
DATED : 19.07.2010.
Appendix of Evidence
Witnesses Examined
For Complainant : None
For Opposite parties : None
Documents Marked
For Complainant :
Ex. A-1 : - : A copy of broucher published and given
to the prospective buyers titled Rivera Apartments
Ex. A-2 : - : Application form showing the connection
charges to be paid for obtaining water supply
Ex.A-3 : - : copy of certificate of Registration
Ex. A-4 : 10.12.2006 : Copy of Resolution of Executive Committee Meeting
Ex. A-5 : 18.12.2006 : Copy of Resolution of Executive Committee Meeting
Ex. A-6 : - : copy of cheques issued to OTIS
Company
Ex. A-7 : 18.11.06 : Copy of receipt issued by OTIS
company dt.18.11.06 for Rs.67,000/-
Ex. A-8 : 18.11.06 : Copy of Receipt issued by OTIS
Company for Rs.5,42,700/-
For Opposite parties :
Ex. B-1 : - : Terms and conditions of the
Complainant Association
Ex. B-2 ;25.02.2005 ; Minutes of the Special General Body
Meeting of the Complainant’s Association
Sd/-MEMBER
Sd/- MEMBER
DATED : 19.07.2010.
