BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.

FA.No.1515/2007 AGAINST C.C.No.153/2005  DISTRICT FORUM-I, VISAKHAPATNAM.

Between:

Dr.Pratty Gopala Rao,S/o.late Krishna
Murthy, aged 56 years, R/o.MCL Central
Hospital, PB. No.5, Brajrajnagar768 216.                                                                            Appellant/
                                                                    Complainant

                   And

1. M/s.Bhavani Agencies rep. by its Managing Partner
    Pasupathi Manjunath S/o.PRK Chetty,
    Age 49 years, Flat No.10, Hill View Apartments,
    Seethammadhara, North Extension,
    Visakhapatnam-13.

2. Pasupathi Manjunath S/o.PRK Chetty
    Managing Partner of M/s.Bhavani Agencies
    Age 49 years, Flat No.10, Hill View Apartments,
    Seethammadhara North Extension,
    Visakhapatnam-13.

3. M.V.S.N.Rama Rao, S/o.Venkatachalam,
    Partner of M/s.Bhavani Agencies,
    Age 49 years, D.No.15-18-17,
    Beach Road, Visakhapatnam-2.                                                                                        Respondents/
                                                                                                                                                Opp.parties.

Counsel for the Appellant: Mr.N.V.Anantha Krishna.

Counsel for the Respondents: Dr.P.B.Vijay Kumar.

QUORUM:   THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
AND
SMT.M.SHREESHA,  MEMBER
.
WEDNESDAY, THE NINETEENTH DAY OF MAY
TWO THOUSAND TEN

(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member)
***
      
        Aggrieved by the order in C.C.No.153/2005 on the file of District Forum-I, Visakhapatnam, the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant purchased a flat bearing No.7 measuring 1235 s.ft. plinth area in Garuda Enclave by virtue of registered sale deed dated 21-4-2003 from the opposite parties and one Garuda Nageswara Rao who was the owner of the land.  The complainant submitted that he paid Rs.5,43,180/- towards sale consideration corresponding to 60 sq. yds of joint undivided share and 80% of construction value of the said flat in the third floor.  An agreement was arrived at on 21-4-2003 between the complainant and opposite parties in respect of the remaining 20% construction and as per the said agreement, the complainant has to pay Rs.88,920/- for the remaining work.  Accordingly the said amount was paid to the opposite parties but the opposite parties demanded Rs.1,00,000/- towards marble flooring, wooden cupboard, putti and emulsion painting to all internal and external walls.  The complainant submitted that he entered into another agreement dated 18-7-2003 and 3rd opposite party and subsequently paid Rs.1,40,000/- and the work was not completed  and on the other hand, the opposite parties pressurized the complainant for payment.  It is the case of the complainant submitted that he had paid Rs.8,72,100/- and the opposite parties failed to provide lift, marble flooring, cupboards, emulsion paint, colour sanitary, plumbing, window grills of his choice and fixed 4 ½ bore well to the apartment instead of 6 ½.  The reduction of size is contrary to the agreement dated 21-4-2003 and similarly they laid tiled flooring of cheaper quality instead of marble flooring and the walls of the flat developed cracks due to use of inferior quality of cement and iron.  Car parking place was not provided inspite of payment for the same.  The complainant further submitted    that the opposite    parties agreed to   deliver the flat within 8 months from the date of    
agreement i.e. 21-4-2003 and they failed to do so and as such they are liable to pay interest at 18% p.a. and the value of unfinished works from 21-12-2003.  The complainant submitted that he was put of loss of Rs.5,000/- per month due to delay in completion and kept the flat under lock and key and also failed to pay the electricity consumption charges.  Hence the complainant approached the District Forum  for a direction to the opposite parties to grant Rs.15,00,000/- towards compensation with interest thereon @ 24% p.a. from the date of complaint till realization, to grant costs and to direct the opposite parties to handover the complaint schedule property as per the agreement dated 21-4-2003 and as per the enhanced agreement dated 18-7-2003 with car parking slot in the cellar, to restore III phase power supply meter and to incorporate the reliefs © and (d) in the amended complaint.
Third opposite party filed counter prior to amendment of the complaint which was adopted by opposite parties 1 and 2 and after amendment, additional counter was filed by opposite party No.3 which was adopted by opposite parties 1 and 2.  They contended that Garuda Nageswara Rao is land owner of site measuring 538.30 sq. yds and an agreement dated 3-12-2001 was entered into between the said Nageswara Rao and 1st opposite party firm for development.  It was agreed to give 40% of built up plinth area to owner in the form of two flats in the first floor, two flats in the second floor and four car parking places.  The remaining 60% of built up area was agreed to be retained by the opposite parties and they paid interest free refundable security deposit of Rs.2,00,000/- to the land owner to be refunded at the time of handing over 4 flats to him and it was also agreed that the land owner shall convey the flats retained by the opposite parties to the prospective purchasers without demanding any consideration.
The opposite parties submitted that the complainant was the brother in law of the land owner and prevailed upon them  to sell flat No.7 at 3rd floor at Rs.720/- sft. on 22-10-2002 for 1345 sq. ft. which comes to Rs.9,68,400/- and agreed to by the complainant.  Accordingly ‘agreed cost and payment schedule of the flat’ was prepared in writing and the same was acknowledged on 21-4-2003 and the price of Rs.9,68,400/- does not include the cost of car parking space and proportionate transformer and electricity service connection.  Subject to the above, the complainant obtained registered sale deed and unregistered construction agreement on 21-4-2003 by paying Rs.75,000/- in cash, Rs.3,00,000/- by demand draft, Rs.10,000/- by cheque dated 21-4-2003, Rs.1,20,000/- by cheque dated 31-7-2003 and another cheque dated 30-8-2003 for Rs.1,23,180/- and agreed to pay the balance.   They submitted that they executed ‘enhancement agreement for construction of flat” dated 18-7-2003 on request made by the complainant to facilitate him to secure a loan from the Bank and pay the balance amount to them.  The said agreement was executed for that limited purpose as is evident from ‘Mortgage confirmation letter’ dated 8-2-2005 filed by the complainant.  They further submitted that the complainant himself opted for “Fossil” ceramic floor tiles earlier but in the agreement dated 18-7-2003 mentioned marble flooring and the agreement  dt.18-7-2003 was never intended to be acted upon in respect of other items also.  They further alleged that the land owner created several hurdles and in spite of that they completed construction of 10 flats much ahead of schedule time and executed sale deeds in respect of 4 out of 6 flats during January/March, 2004.  They submitted that the land owner failed to perform his part and got issued a legal notice through his sons stating that they have share in the land and would file partition suit and also failed to refund the security deposit of Rs.2,00,000/- and obstructed in obtaining three phase electricity service and ultimately got this complaint filed by the complainant though the complainant had no grievance.
The opposite parties further submitted that the actual plinth area including common area is 1363 sq. ft. and the agreed consideration was Rs.720 per sq. ft. and the  understanding between the complainant and them is that only after full construction of entire flat, possession of the flat will be delivered to the complainant after full payment.  They submitted that the sale deed and construction agreement were never intended to be strictly acted but the same were executed for Government values at the instance of the complainant.  They denied the allegations that they realized Rs.88,290/- and demanded Rs.1,00,000/- and contended that the complainant paid Rs.8,72,100/- to them and it was only a part payment.
The opposite parties contended that lift was commissioned and put into operation during September, 2004 soon after 3 phase power was supplied and they submitted that they procured colour sanitary taps and plumbing material long ago and did not fix to avoid misuse.  The window grills were fixed long ago as per the choice of the complainant.  There was no agreement to provide marble flooring but ceramic tiles as per complainant’s choice was fixed and regarding cracks, it was contended that they used super quality material and one or two ‘air cracks’ are inevitable.  They contended that the complainant has not paid Rs.25,000/- towards his share of transformer connection and also did not pay for car parking.
After amendment of the complainant, additional counter was filed and the opposite parties contended that there was no privity of contract for the same and the consideration is Rs.9,68,400/- is excluding car parking space, transformer, and electricity service charges and the complainant also never paid for them.  The actual when ‘agreed cost and payment schedule’ was reduced to writing was tentatively estimated at 1345 sft. but after construction it was nearly of 1363 sft.  They further contended that they secured separate transformer and separate electricity service connection  along with separate meter for the building and the complainant has to pay the remaining share and take over the custody of the flat and also pay the electricity bills and submitted that there is no deficiency and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A20 and B1 to B14 and the pleadings put forward, the District Forum dismissed the complaint.
Aggrieved by the said order, the complainant preferred this appeal.
It is the case of the complainant that he purchased flat No.7 measuring 1235 sq. ft. in Garuda enclave by registered sale deed dated 21-4-2003 and paid Rs.5,43,180/- towards sale consideration of 60 sq. yds. of joint and undivided share of land and 80% of the construction value of flat No.7.  Ex.A4 evidences the agreement for construction of the flat dated 21-4-2003, as per which the complainant has to pay Rs.88,920/- for the remaining 20% work.  The complainant submits that the opposite parties further demanded Rs.1,00,000/- towards marble flooring wooden cupboards and painting.  It is his contention that Ex.A5 dated 18-7-2003 should be considered and the complainant subsequently paid Rs.1,40,000/- and in all he paid Rs.8,72,100/-.  But the opposite parties failed to provide lift, marble flooring, cupboards, emulsion paints, colour sanitary, plumbing, window grills and fix 4 ½ borewell instead of 6 ½.  The quality of the flooring is sub standard and the walls developed cracks and he further contended that car parking place was also not provided.
The learned counsel for the appellant/complainant argued that the District Forum relied on Ex.B3 instead of relying on Ex.A5 which is the supplement agreement and it has to be relied upon.  He also stated that Ex.A4 provides for payment of interest at 18% p.a. for liquidated damages for the delay in handing over the flat.  Ex.B3 is not in conformity with the provisions of Stamp Act and therefore contended that it cannot be relied upon.  With respect to this contention, we observe from the record that Ex.B3 has been signed by the complainant.  It is not the case of the appellant/complainant that the signature is not his or that he has not signed that document.  It is his only his case that it is not in conformity with the provisions of Stamps Act and that Ex.A5, has been executed as an supplementary agreement and should be relied upon.  A perusal of Ex.A5 the enhanced agreement for construction of flat dated 18-7-2003 shows the following:
The complainant herein requested the opposite party to provide additional amenities of marble flooring, wooden cupboards and putty and emulsion paint for internal and external walls and a sum of Rs.1,00,000/- was agreed to be paid to the opposite party.
The contention of the opposite parties is that this enhancement agreement is only for the purpose of raising additional loan by the complainant cannot be construed without any substantial basis.
The Advocate Commissioner in his report in IA No.145/2005 stated that the flooring was made with ceramic tiles and not marble flooring.  The Advocate Commissioner also stated that  the opposite parties were ready to fix the sanitary fixing of the colour approved by the complainant, therefore it can be observed that the demand with respect to sanitary fittings has been met with.  With respect to cracks, the Advocate Commissioner stated that there were four cracks on the wall and 5 slight cracks in the bed rooms and four cracks in the dining room and two in the guest room and that these cracks were ½  mm thick.  This Advocate Commissioner report is dated 25-7-2005 and we are of the considered opinion that when there is no evidence that the quality of brick and cement is of sub standard quality, the minimal cracks which the Advocate Commissioner cannot be stated to be of any deficiency of service on behalf of the opposite parties since it is a new building and seasonal changes do occur and the Advocate Commissioner himself stated that the cracks were few and were ½  mm thick.  However, he also observed that the existing cracks were not covered with putty or  emulsion paint for which the complainant has paid as per Ex.A5, Supplement agreement.  Therefore, with respect to providing of putty and emulsion paint, opposite parties are liable.
With respect to lift, the Advocate commissioner observed that the lift has been installed and it is functioning and therefore this prayer of the complainant that the lift has not been installed cannot be allowed.  Now we address ourselves to the specification of the suction pipe fitted to the submersible pump.  The Advocate Commissioner observed 7 ½ inches iron casing bore wherein 5 ½ PVC casing is fitted in which 1 ½ inch suction pipe is fitted to the submersible pump.  Hence no further direction need be given.  The Advocate Commissioner also stated that there was no car parking provided to the complainant.  It is the complainant’s case that he has paid an amount of Rs.20,000/- towards car parking in pursuance of clause 14 of schedule C of construction agreement.  We observe from the record, Ex.A5, supplementary agreement and Ex.A3 that the opposite party was silent with respect to common areas. It is the contention of the opposite parties that they can allot car parking in the cellar only against mutually agreed terms.  But as per the law of flats, apartments and buildings i.e. the A.P.Apartments Promotion of Construction and Ownership Act, 1987, Section 9 relating to common areas and facilities states that ‘each apartment owner shall be entitled to the percentage of undivided interest in the common areas as expressed in the declaration .  Such percentage shall be computed by taking as basic the value of the apartment in relation to the value of the property and such percentage shall also reflect the limited common areas and facilities.  In Section 14 explaining the contents of declaration, it is stated that the description of common areas and facilities should be given.  Section 3 (d) of the Act describes the common areas and facilities as follows:
Section 3(d)(iii) Basements, cellars, yards, gardens, PARKING AREAS, children play ground and storage spaces.  Under Rule 3(4) (iii) and (iv) the promoter shall disclose in every advertisement made by him the nature, extent and description of the common areas and facilities and those of the limited common areas and facilities.
The builder herein has not disclosed either in the sale deed or in Ex.A5, the supplementary agreement, admittedly entered into by him, the definition of common areas and facilities and to exactly what the complainant is entitled to.  Since car parking is included in the common areas, the contention of the opposite parties that there should be a ‘mutually agreed basis’ for them to provide the car parking to the complainant is unsustainable.
          Now we address ourselves to the aspect whether Ex.B3 can be relied upon.   We observe from Ex.B3 that it was signed by the complainant and his signature is not disputed.  The cash payment of Rs.75,000/- made by the complainant is also reflected here.  In this Ex.B3, the area of the flat as agreed is 1345 sft. and the rate Rs.720 per sft. arriving at a total of Rs.9,68,400/- and the complainant himself has admittedly signed this Ex.B3 merely saying that it was not on a stamp paper and hence cannot be relied upon, is unsustainable.  A perusal of Ex.B3 also shows a payment of Rs.7,48,180/- was made by the complainant by September, 2003 while he himself states that he is liable to pay only Rs.7,32,100/-.  Even after that the complainant has paid further amounts in instalments amounts to Rs.8,72,100/-.  Therefore the contention of the complainant that Ex.B3 is fabricated cannot be sustained.  The learned counsel for the appellant/complainant fairly conceded that the signature is that of the complainant and that he is ready and willing to pay the balance amount i.e. Rs.9,68,400 less Rs.8,72,100/- i.e.Rs.96,300/- to the opposite party.
        Now we address ourselves to the compensation to be awarded for the incomplete works prayed for by the complainant.  Ex.A5, states that an amount of Rs.1,00,000/- is paid by the complainant to the opposite parties towards marble flooring, wooden cupboards and putty and emulsion painting which has been not provided as per the Commissioner’s report.  We are of the considered view  that the complainant is entitled for this Rs.1,00,000/- since those works remained incomplete.  The opposite parties/builder is also directed to provide bore well and suction pipe as per the specifications agreed to in the agreement.  We are of the considered view as per Section 2 of the A.P.Apartments Promotion of Construction and Ownership Act, 1987, common areas includes car parking which remain unspecified in the sale deed, which the builder ought to have specified as per the rules.  Hence the complainant is entitled to car parking which is to be provided by the builder within four weeks from the date of receipt of this order.  With respect to electricity transformer there is no clause in the agreement which specifically provides for the same.  However, the prayer of the complainant with respect to payment of his electricity bills cannot be allowed since he himself has to pay Rs.96,300/- as per Ex.B3.  To reiterate, in spite of the fact that the complainant paid more than  90% of the amount, the opposite parties did not adhere to Ex.A5 and also did not specify to him about the common areas and facilities which include car parking as per A.P.Apartments Promotion of Construction and Ownership Act, 1987.
        In the result this appeal is allowed in part and the order of the District Forum is set aside directing the complainant to pay Rs.96,300/- which is the balance amount to be paid by him as per Ex.B3, and the opposite parties/builder to pay him a compensation of Rs.1,00,000/- for the facilities not provided by him  as per Ex.A5. The amount to be paid by the complainant can be deducted from this amount.  The opposite parties are also directed to provide car parking to the complainant and pay compensation of Rs.75,000/- for the inconvenience and mental agony suffered by the complainant due to the delay in handing over possession together with costs of Rs.5,000/-.  These directions are to be complied with by the opposite parties within four weeks from the date of receipt of this order.

                                                                      

Sd/-        PRESIDENT.

                                                                                                Sd/-MEMBER.
JM                                                                                                     Dt.19-05-2010
L.R. copy marked/not to be marked