Andhra Pradesh
Visakhapatnam-II
CC/226/2010
Chalasani Venkata Ranga Rao - Complainant(s)
Versus
M/s Ratnam Builders - Opp.Party(s)
A.V.C.N. Nageswara Rao
04 Jun 2015
ORDER
Date of Registration of the Complaint:16-06.2010
Date of Order:04-06-2015
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
Thursday, the 4th day of June 2015.
CONSUMER CASE No.226/2010
Between:-
1.Chalasani Venkata Ranga Rao,
S/o Chalasani Rama Rao, (Late),
Hindu, aged about 78 years, resident of
D. No. 49-19-14, Lalitha Nagar,
Visakhapatnam (died).
2.Chalasani Siva Ramakrishna, S/o late
Ranga Rao, Hindu, aged about 62 years,
resident of D. No. 49-19-14, Lalitha Nagar,
Visakhapatnam.
(The 2nd Complainant is added as per the orders in IA 6/2015,
dated 12.01.2015).
….. Complainants
And:-
M/s. Ratnam Builders, rep. by its Proprietor,
Doddi Venkata Ramana, S/o Late Venkataswami,
Hindu, aged about 61 years, residing at Door
No. 49-2-58/A, Rama Krishna Nagar,
Visakhapatnam-16.
… Opposite Party
This case coming on 29.05.2015 for final hearing before us in the presence of Sri Sri A.V.C.N. Nageswara Rao, Advocate for the Complainant and Sri S. Narayana, Advocate for the 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 Complainanst against the Opposite Party directing him to pay an amount of 24,000/- towards delay in delivery of the flat, Rs.92,000/- for the lesser area of 46 Sft., Rs.2,00,000/- causing inconvenience due to unauthorized construction in the ground floor, Rs.1,16,000/- towards compensation, to handover building approved plan proceedings of the Municipal Corporation, handing over latter, affidavit on oath, to construct the 3rd gate on Southern side boundary wall, to clear the parking area in the ground floor with costs.
2. The case of the Complainants in brief is that the 1st Complainant is the father of the 2nd Complainant and died on 30.07.2013. The 1st Complainant during the life time executed a gift settlement deed in favour of the 2nd Complainant. As a result, he became absolute owner of the property and when his father in possession and enjoyment of RCC house bearing No.49-19-14 to an extent of 294 Sq. yards in T.D. No.84 and Ward No.30 of Plot No.59 in Survey No.25/P of Resapuvanipalem Village, Lalitha Nagar, within the limits of Visakhapatnam Municipal Corporation. The Opposite Party approached his father, styling himself as a builder and duped with the promises, and he agreed for construct a group house G + 2 Floor and entered into registered a Development Agreement with General Power of Attorney on 02.02.2007 and the Opposite Party agreed to provide 1100 Sft. built up area including common areas. But the Opposite Party has delivered only 1054 Sft. built up area, as such the Opposite Party is liable to pay the different amount of Rs.92,000/-. Further the Opposite Party failed to provide a 3rd gate in the Southern side boundary wall as per the plan and got a construction of an extent 200 Sft. made in the ground floor thereby causing the obstruction to the car parking and he had given a complaint to the Municipal Corporation on 01.06.2010, that on account of construction he is suffering a lot of mental agony and claiming a sum of Rs.1,60,000/- and further the Opposite Party agreed to construct the building within one year from the date of agreement but he failed to do so. Therefore, he is entitled an amount of Rs.3,000/- per month for a total amount of Rs.24,000/-. Inspite of many requests made by the 1st Complainant to the Opposite Party and the Opposite Party failed to comply with them. Hence, this Complaint.
3. The case of the Opposite Party denying the each and every allegations made by the Complainant is in possession and enjoyment of the property that the Opposite Party approached the Complainant and duped the Complainant with promises, that the Complainant agreed to construct ground + 2 floors with a built up area of 5962 Sft. The Complainant agreed to hand over the property to the Opposite Party for development and the Opposite Party agreed to construct ground + 2 floors, that a Development Agreement had been entered into between the Complainant and the Opposite Party with GPA registered on 2.2.2007. Wherein he had specified to provide 1100 Sft. of built up area including common areas in the ground floor of the Complainant and in fact he has delivered a built up area an extent of 1127 Sft. including common areas, in excesses of 27 Sft. which costs of Rs.54,000/- that he also provided extra amenities cupboards besides change of the interior walls etc. in that regard the Complainant a sum of Rs.25,975/- besides maintenance charges @ Rs.400/- per month and the complainant is liable to pay a sum of Rs.84,775/-.
4. That besides the above said amount of the Complainant has to pay a sum of Rs.2,15,214/- and further sum of Rs.6,800/- towards maintenance charges and when they demanded several times and when an ultimatum is given to the Complainant with a malafide intention to avoid those payments, they created the story with false averments. The plan was purchased in the name of the Complainant himself as such, there was no suppression are denied of the plan and the duplicate copy is very much available with the Complainant and that he never agreed to gate on the Southern side of the compound wall. The Complainant has not approached this Forum with clean hands. For these reasons, the complaint is liable to be dismissed.
5. To prove the case on behalf of the Complainant, the 2nd Complainant filed his affidavit and got marked as Exs.A1 to A8. On the other hand, on behalf of the Opposite Party, his filed his evidence affidavit. No documents were marked for the Opposite Party.
6. Ex.A1 is the photo copy of Development Agreement with Power of Attorney along with Plan between the 1st Complainant and the Opposite Party dated 02.02.2007. Ex.A2 is the Handing Over the flat of the 1st Complainant dated 11.12.2008. Ex.A3 is the office copy of Registered Lawyer’s Notice issued by the Complainant to the Opposite Party dated 01.05.2010. Ex.A4 is the office copy of Reply Notice issued by the Opposite Party’s counsel to the Complainant dated 12.05.2010. Ex.A5 is the office copy of Complaint (against illegal construction in the cellar) issued by the Complainant to the Commissioner, Greater Municipal Corporation dated 01.06.2010. Ex.A6 is the Acknowledgement from GVMC dated 02.06.2015. Ex.A7 is the Acknowledgement from the Opposite Party dated 02.06.2010. Ex.A8 is the photo copy of Approved Plan issued by the Commissioner, Municipal Corporation, Visakhapatnam.
7. Both parties filed their respective written arguments.
8. Heard oral arguments from both sides.
9. Now the point that arises for determination is:-
Whether there is any deficiency in service on the part of the Opposite Party and the Complainant is entitled for the reliefs for?
10. It is an admitted fact that the Opposite Party and the Complainant entered into a Development Agreement with General Power of Attorney, which was registered on 02.02.2007 with the terms and conditions. According to Clause 6 (six) of Development Agreement, the developer shall complete the construction and handover the flat to the owner within 12 months from the date of handling over the possession of the above said site to the developer or from the date of approval of building plan by Municipal Corporation, Visakhapatnam whichever is later. If the developer failed to hand over the said flats to the owner within the stipulated time, he shall have to give Rs.3,000/- per month to the owner up to the date of handing over. Ex.A8 is building approval plan and discloses it was approved on 11.04.2007. Ex.A2 is the handing over the flat taken over by the Opposite Party which categorically goes to show that the flat total area of 1120/7 feet handover to the Complainant by the Opposite Party, on 11.12.2008. Thus this clear, that the Opposite Party delivered the flat to the Complainant after the stipulated time and the Opposite Party failed to deliver the flat within 12 months from the date of handing over of the possession; as per Clause-6 (six) of the Development Agreement. Therefore, the Opposite Party is liable to pay an amount of Rs.3,000/- per month to the Complainant up to the date of handing over which comes to nearly 8 months. For all these reasons, we held that the Opposite Party is liable to pay an amount of Rs.3,000/- to the Complainant @ Rs.3,000/- per month which comes to Rs.24,000/-.
11. The contention of the Complainant is that according to the plan supplied the Opposite Party agreed to provide 1100 Sft. built up area to the Complainant including common areas, but the Opposite Party delivered only 1054 Sft. built up area as such, the Opposite Party is liable to pay the difference amount of Rs.92,000/-. Ex.A2 issued by the 1st Complainant clearly and categorically goes to show with a residential flat in ground floor complete in all steps in D. No. 49-19-14 at Lalitha Nagar, Visakhapatnam with common areas i.e., total area of 1127 Sq. feet is handed over to him by the Opposite Party on 11.12.2008. This document filed by the Complainant himself clinches that though the Opposite Party agreed to provide 1100 Sft. built up area he gave 1127 built up area including common areas. Therefore, we are of the considered view, that the contention of the Complainant that the Opposite Party is liable to pay the difference amount of Rs.92,000/- does not hold any water. If really the plan was delivered only to an extent of 1054 Sft. as against the agreed 1100 Sft. the Complaint would have got mentioned the same in the notice got issued by him through his counsel on 01.05.2010 vide Ex.A3 or would have at least demanded or issued a separate notice earlier in point of time without waiting or keeping quiet for nearly about 2 years, that to till the Opposite Party had categorically replied about the non-payment of the difference amount to him.
12. The next contention of the Complainant is that the Opposite Party made un-authorized construction in the ground floor which resulted causing inconvenience to him. It is evident as seen from the record, as per development agreement the construction is G+2 floors with a built up areas of 5962 feet. Therefore, many residents might have been occupied their respective portions by this time. Admittedly the Complainant has not obtained the affidavit of the concerned flat owners to state that the Opposite Party unauthorized constructed the ground floor. Further, he has not filed any photographs to show what are the constructions made by the Opposite Party. Absolutely no evidence is let in by the Complainant, in this regard. When it is available, we do not understand why the Complainant failed to substantiate his contention by placing relevant evidence. In the absence of it basing on the evidence affidavit of the Complainant, in the circumstances of the case, it can be held that no unauthorized construction was made by the Opposite Party. Therefore, causing inconvenience, if any, does not arise at all as rightly contended by the learned counsel for the Opposite Party.
13. The next contention of the Complainant is that the Opposite Party has to construction of the 3rd gate on the Southern side compound wall handed to clear parking area in the ground floor. It is the case of the Opposite Party that he never agreed to provide any gate on the Southern side of the compound wall. Therefore, it is for the Complainant to establish the same. The development agreement do not discloses anywhere that the Opposite Party has to provide any gate construction of the 3rd gate on the Southern side of the compound wall and that there is no agreement whatsoever, that the Opposite Party has to clear the parking area in the ground floor. Accordingly, this contention is answered.
14. The next contention of the Complainant is that the Opposite Party has to handover the building approved plan, proceedings of the Municipal Corporation, handing over letter and affidavit of both etc. The record shows that the plan was approved in the name of the Complainant himself by the Greater Visakha Municipal Corporation and that there was no suppression on denied of the plan of the Complainant and in fact a duplicate copy of the plan is very much of the Complainant himself and Ex.A2 clearly shows that the Complainant himself gave handing over the letter of the Opposite Party. For these reasons, the contention of the Complainant does not cold any water.
15. In the light of my discussion, the Complainant is entitled for an amount of Rs.24,000/- towards delay in deliver of the flat only with interest from the date of Ex.A3 i.e., from 01.05.2010 till the date of realization.
16. Now the question that comes up for consideration, at this stages of our discussion what is the rate of interest for which the Complainant is entitled. The rate of interest claimed by the Complainant is 9% p.a. This rate of interest claimed by the Complainant appears to be excessive, of course, it is a fact that the transaction covered by Ex.A1 is in commercial in nature, but that does not and cannot mean to say that the Complainant is a licenced to claim interest @ 9% p.a. on Ex.A1. But at the same time, it is an imperative on our part to award a reasonable interest. Having regard to all these facts and circumstances, we sincerely feel having considered the case on hand awarding of interest @ 9% p.a. on Ex.A1 would better serve the ends of justice. Consequently, we proposed to fix at rate in question @ 9% p.a. on Ex.A1 in question. Accordingly interest is ordered.
17. Whether the Complainant is entitled for compensation of Rs.,1,60,000/- is to be considered. It appears as seen from the evidence of PW-1 that the Complainant was compelled to approach the Opposite Party and therefore experienced a lot of physical strain besides mental agony and financial loss. It is un-dispute fact that the Opposite Party did not refund the amount subscribed by the Complainant. Naturally that made have put the Complainant to suffer some mental agony besides physical stress and strain. In this view of the matter, we sincerely feel that it is a fit case to award compensation. But that does not and cannot mean to say that the Complainant claim for compensation is acceptable. Having regard to all these facts and circumstances, we are of the considered opinion, award of compensation of 10,000/- would serve the ends of justice. We therefore, proposed to award compensation of Rs.10,000 /-, in the circumstances of the case on hand. Accordingly this point is answered.
18. Before parting our discussion, it is incumbent and imperative on our part to consider the costs of litigation. The Complainant ought not have to approach this Forum had his claim for refund of the sum of Rs.24,000/- or reliefs sought for have been honored by the Opposite Parties within a reasonable time and in view of the matter, the Complainant’s claim for claims for cost deserves to be allowed. In our considered and unanimous opinion awarding a sum of Rs. 5,000/- as costs would appropriate and reasonable. Accordingly costs are awarded.
19. In the result, the Complaint is allowed in part directing the Opposite Part to pay an amount of Rs.24,000/- (Rupees Twenty four thousand only) with interest @ 9% p.a. from 01.05.2010 i.e., from the date of Ex.A3 notice till the date of realization, Rs.10,000/- (Rupees Ten thousand only) towards compensation and Rs.5,000/- (Rupees five thousand only) towards costs and the rest of the reliefs claimed are hereby dismissed. Time for compliance, one month.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in the Open Forum, this the 4th day of June, 2015.
Sd/- Sd/- Sd/-
Male Member Lady Member President
APPENDIX OF EVIDENCE
For the Complainant:-
NO. | DATE | DESCRIPTIONOFTHEDOCUMENTS | REMARKS |
Ex.A01 | 02.02.2007 | Development Agreement with Power of Attorney with Plan between the 1st Complainant and OP | Photo copy |
Ex.A02 | 11.12.2008 | Handing over the flat of the 1st Complainant | Original |
Ex.A03 | 01.05.2010 | Registered Lawyer’s Notice issued by the Complainant to the Opposite Party | Office copy |
Ex.A04 | 12.05.2010 | Reply Notice issued by the Op’s counsel to the Complainant | Office copy |
Ex.A05 | 01.06.2010 | Complaint (against illegal construction in the cellar) issued by the Complainant o the Commission, GVMC | Photo copy |
Ex.A06 | 02.06.2015 | Acknowledgement from GVMC | Original |
Ex.A07 | 02.06.2010 | Acknowledgment from OP | Original |
Ex.A08 | 11.04.2007 | Approved Plan issued by the Commissioner, Municipal Corporation, VSP. | Photo copy |
For the Opposite Party:-
-Nil- Sd/- Sd/- Sd/-
Male Member Lady Member President
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