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

F.A.No.768/2010 AGAINST C.C.No.532/2009, DISTRICT FORUM-II, VISAKHAPATNAM.

Between:

M/S Castle Constructions.

Rep. by its Sole Proprietor

Srinivsa Sagiraju, S/o.late Venkata Subba Raju,

Hindu, aged 49 years,

R/O 31-15-116, (Upstairs)

of Singapore Plaza Shop,

Dabagardens,

Vishakapatnam.

Present Address:

Srinivasa Sagiraju,

S/O Late Venkata Subba Raju,

R/O 10-53-265/7, Nehru Nagar,

Vishakapatnam -530 002.              ……….Appellant/Opposite Party

AND

Smt.Bobbili Rama Krishna,

W/O Penta Vara Prasad Rao,

Hindu, aged 41 years,Teacher,

Residing at MIG-D/425,

Sagar Nagar,

Vishakapatnam – 43.               ………….Respondent/Complainant.

Counsel for the Appellant:   M/S G.Rama Gopal.

Counsel for the Respondent: M/S  Vijaya Sagi.

QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER,

AND

SRI R.LAKSHMI NARASIMHA RAO, HON’BLE MEMBER.

THURSDAY THE NINETH DAY OF DECEMBER

TWO THOUSAND TEN.

Oral Order (Per Sri Syed Abdullah, Hon’ble Member)

…..  

        The  Appellant is the un-successful opposite party in the C.C.No.32/09 where under an order was passed directing the to do the construction work of Flat No.13 of Mercury Castle in Survey No.42/5 of Chinagadili Village, within the limits of Municipal Corporation of Vishakapatnam.  In response and to deliver it to the complainant within a month from the date of the Order, that a further direction to [pay the costs of Rs.2,000/-.  Aggrieved by the said order this Appeal is preferred questioning the legality and appropriate of the Order.

          The facts of the case are that the agreement was executed by the opposite party bin favour of the complainant on 27.8.2002 agreeing to construct and deliver the Flat No.13 in Mercury Castle in Survey No.42/5 of Chnagadili Village, situated within the limits of Municipal Corporation and in consideration of it a sum of Rs.4,29,250/-was agreed to pay and that the construction is to be completed within 18 months which expires by 26..2.2004.  Having agreed the opposite party did not deliver the Flat in question.   The Act or Omission amounts to deficiency in service.  So a legal notice dated 12.4.2002 was send demanding the payment of Rs.10,000/- per month till the completion, but the opposite party failed to respond.  So the complainant was compelled to file C.D.No.682/04 before the District Forum, Vishakapatnam which was allowed directing the opposite party to pay a sum of Rs.2,000/-from month commencing from 26.2.2004.  Against the said order the opposite party preferred an appeal in FA 645/07 which was dismissed on 19.2.2008 pursuant there to complainant filed an E.A 103/07 for enforcement of the orde4rs.   The said execution is pending.   The present case is filed seeking direction to deliver the Flat No.13in Mercury Castle situated in Survey No.42/5 of Chinagadili Village and also to pay damages of Rs.1.00 lakh for causing delay.

          As the opposite party remained failed to contest an ex parte order was passed.

          During the hearing the complainant filed evidence affidavit as Ex.A1 to A.18 for consideration and on the basis of this evidence the District Forum passed the above said impugned orders/

          The Appellant in the appeal ground has raised the contentions that he was not served with the notice from the District Forum and that there is no intimation on the notice of the notice sent by the District Forum was refused.   The order passed is against the principles of natural justice.  Also raised contentions that when the complaint is barred and Order 3 Rule 2 of the C.P.C.  As the complainant had also filed earlier complainant in CD 532/09 in which had not sought for the relief for the delivery of the possession of the Flat in question after completion of the work..  Further the complainant is not entitled for the delivery of the Flat since the Appellant/Opposite party had failed Civil Suit in O.S 414/2002 against the complainant for recovery of the outstanding dues in which of the Flat that was constructed as per the agreement. In the absence of the full payment the complainant is not entitled to seek for the delivery of the Flat.  Apart from it the clause 9 of the construction of the Agreement dt.27..8.2002 is also clear that the complainant is not entitled for the delivery of the Flat entitling full payments are made.

          The point for consideration is whether the impugned order is sustainable in view of the contentions raised in the appeal grounds?:-

          It is not the case of the appellant that the postal address furnished of the complainant is not correct and that notice was sent to his address under law official acts are to be presumed to be correct address and the said notice is returned un-served it is to be presumed that addressee failed to receive it a registered notice sent by the registered post is a notice in “Rem’’ and a presumption is drawn under Sec.27 A of the general clause Act.  So the addressee who disputes that he had not received a registered notice sent to him he should examine the Post Master to rebut the presumption.  The contentions raised by the appellant that he was not served that any registered notice is not served and it pales into in-significant in view of the settled law.

          The next contentions is the complaint in C C 532/2010 is barred under Order 2 Rule of the C.P.C on the ground that the complainant failed to seek for the relief of the delivery of the Flat in question when he had earlier filed in C.D 682/04.

          Admittedly the earlier C.C was filed in CD 682/04 seeking for recovery of compensation at the rate of Rs.333.33 per day from 27.2.2004 till the delivery of the Flat in question as per the Clause 12 f the agreement shows that the complainant shall after expiry of 15 days from the opposite party i.e., Flat is ready for use and occupation and from that date on wards liable to pay him the taxes etc., The appellant/opposite party is under obligation to inform to the purchaser/complainant that the Flat was made ready for occupation.  Otherwise after the expiry of the due date for the delivery the purchaser/complainant is entitled to claim compensation or damaged on the routed basis.  This aspect was considered in the earlier C.C 582/04 and damages were awarded against the said order the Appellant preferred an appeal and the said appeal was dismissed confirming the order which was become final.  After the disposal of the said appeal the Appellant did not issue any notice informing that the Flat  in question was already built and ready for occupation and for the payment of outstanding balance. However it is evident from Ex.A.14 copy of the plaint in O.S 414/04 the Appellant filed a Suit for recovery of out standing said to be due from the respondent/Complainant insisted and filed written statement which is Ex.A.15.  On considering the same the Civil Court gave a judgment holding that the Respondent/Complainant had to pay the delivery consideration of Rs.3.00 lakhs to the opposite party out of which the complainant had paid only Rs.2,99,050/-, but not Rs.4,29,050/- and that the Appellant/opposite party is entitled for a sum of Rs.950/- with interest @ 24% per annum from the date of Suit till the date of realization.  Whatever it may be the result of the Suit, the Appellant in pursuance of the said judgment was under obligation to inform to the Respondent/Complainant to pay an amount of Rs.950/- due from him with interest there on so as to take delivery of the Flat in question. But the Appellant failed to take any such steps to show that the Respondent/Complainant was negligent in not taking delivery of it by paying the balance of the amounts due.  Ex.A.16 judgment was delivered on 9.2.2009.  While so the Respondent /Complainant filed C.C 532/2010 subsequently.  But the Appellant could have filed documents, but has not filed any documents to show that he has taken necessary steps informing the Respondent/Complainant to take delivery of the Flat in question after payment of the balance of amount.  As the matter of fact when the Respondent/Complainant filed the earlier C.C 682/2004 against the Appellant and cause of action for proceeding against cause of action has not commence since the Flat in question was not made ready for taking the possession.   The Appellant failed to sustain that as on the date of filing the complaint in C.D 682/04 the Flat in question was already constructed and is ready for taking the delivery of it due to non payment of the balance of the sale consideration it was delayed. When Ex.A.1 Agreement contemplates that the opposite party builder who has given intimation of the readiness of the construction of the Flat in any issuance of notice would amounts to negligent or deficiency in service.  Order 2 Rule 2 C.P.C will not bar any relief as sought in C.C 532/2010.  At the stage of filing of C.D 682/04 the relief to obtain delivery of the possession of the Flat is pre-matured since the consideration of the Flat is not completed.

          In view of the filing of the Ex.A.16 judgment considering the Respondent/Complainant to pay a sum of Rs.968/- with interest thereon the complainant is bound to pay a sum and as the Appellant/Opposite party to deliver the vacant position by providing all amenities as contemplated under sale agreement and terms of Agreement.  Undoubtedly Clause 9 f the Ex.A1 of the Sale Agreement entered into between the parties The Respondent/Complainant is entitled for the compensation after the payment of the outstanding dues, but unless the opposite party by furnishing the accounts the actual outstanding amounts the Purchaser/Complainant may not be able to actual possession or whether the Flat was completed or not by having all amenities.  Rule 2 of the Ex.A.1 where it has fixed obligation on the Builder/Opposite party to construct the Flat within 18 months. It is in and case of fail in compensation of it.  It is implied that the Purchaser complainant is entitled to recover the damages for the delayed period compensation and when other clause in the agreement provides that the Builder opposite party is entitled to claim for interest on the delayed payments on re-appraisal facts aspects and evidence on record we are of the considered opinion that the Appellant/Opposite Party failed to fulfil his obligation and take necessary steps in delivering the possession of the Flat in question.  The District Forum on consideration f the evidence on record has rightly come to the conclusion that the complainant is entitled for the relief and directe4d to complete construction work of the Flat and to deliver the same. However, in view of the Ex.A.16 judgment in which the respondent complainant is a party where under she was directed to pay Rs.968/- with interest the said sum is to be paid for taking delivery of the possession of it.

          In the result, the Appeal is disposed off by passing the following Order that the complainant shall pay a sum of Rs.968/- as ordered in Ex.A.16 judgment that the said amount is to be paid within 30 days or earlier and on such payment, the Appellant/Opposite Party shall deliver the vacant position of the Flat in question by obtaining necessary acknowledgement within 15 days. Each party do bear its own costs.

                                                                             MEMBER

                                                                             MEMBER