Before the District CONSUMERS Forum:Kurnool
Present: Sri K.V.H. Prasad, B.A., LL.B., President
And
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B.Com., LL.B., Member
Tuesday the 17th day of August, 2004
C.D.No.194/2003
Dr.S.Madhusudhana Varma,
Secretary,
Chandra Apartments Owners Association,
H.No.46-1-A7,
Sapthagiri Nagar,
Kurnool District. . . . Complainant represented by his counsel
Sri.M.Lakshmi Narayana, Advocate.
-Vs-
M/s RR Constructions,
Represented by Managing Partners,
1. P.Mahendra Kumar,
S/o P.Muthuswamy Naidu,
Flat No.105,
Chandra Apartments,
Sapthagiri Nagar,
Kurnool-518 002.
2. T.Surya Chandra Reddy,
S/o T.Pulla Reddy,
Flat No.G2,Sapthagiri Nagar,
Kurnool. . . . Opposite parties 1&2 represented by their
Counsel Sri.M.Sivaji Rao, Avocate
ORDER
1. This consumer dispute case of the complainant –secretary of Chandra Apartments owners association is field under section 11 and 12 of the Consumer Protection Act seeking a direction on the opposite parties to complete the pending works as per the resolution, to remove nuisance caused with vacant flat, to rectify the leakages in the roof of the apartment to pay Rs.10,000/- towards mental agony and such other reliefs with the exigencies of the case demand.
2. The brief facts of the complainant’s case are that the opposite partes under the name and style M/S.R.R.Constuctions, Kurnool floated Chandra Apartments in Saptagiri Nagar on Sy.No.960/C1A of Kallur Village following in 48th ward of Kurnool, Muncipal Corporation and agreed to handover the position of the said apartments to the complainant along with all agreed amenities and formation of the association of the flat owners with in 60 years of delivery of flats and transfer the maintenance of said flats to said association and consequently the complainant assosication was delivered position of the said apartment by its builder (opposite party) and since then the complainant association flat owners were residing in their respective apartment. At the time of said delivery of position the opposite party promised on 04-11-2001 in the meeting attended by the flat owners and theirselves to take up the pedding minor works i.e terrace finishing, colouring of apartments, providing sufficient parking for two wheelers for all the flats, providing iron mesh for electric meter in the ground floor, from 15-12-2001 onwards signing a resolution accordingly, but did not kept the said promise and incomplete flat left over the said apartment being utilized at a dustbin is causing nuisance and hardship to the complainant. Due to deficient construction there is leekage in apartments hence for compliance of the promised minor works a legal notice was caused on the opposite parties on 23-10-2003 and it was not responded by the opposite party and the said conduct is amounting to deficiency of service warranting its redressal and consumer protection act by necessary direction to the opposite parties.
3. In pursuance of the receipt of the notice of this forum as to these case of the complainant, the opposite parties contested the case by filing the written version denying any liability and seeking dismissal of the complaint with exemplary costs.
4. The written version of the opposite parties besides questing justness and maintainability of the complainant’s case both in law and facts and requiring the sticks proof of complainant averments allege first questioning the louse stand of the compliant to file the case, for want of resolution authorizing him, secondly the noncompliance of the terms and condition of bye-loss and holding any election of the office bearers and holding executive committee and auditing the accounts, thirdly non-joiner of other partners of the opposite parties firm, fourthly as barred by limitation as delivery of flats occurred in March,2001, Fifthly as neither there were any pending minor works at the time of delivery of flats nor any promises to complete them as alleged, sixthly the delivery of constructed flats with all amenities as agreed in sale deed, seventhly the minor repairs if any were subsequent to delivery of flats due to its poor maintains by flat owners, eighthly the meeting dt 04/11/2001 is un-law full for noncompliance of the proper procedure for election of office bearers, ninthly passing of any resolution on 04/11/ 2001 and their signing it in acknowledgement of same and such resolution if any a got up one for the purpose of this case, tenthly helpless state of affairs as to the vacant flat due to pendency of a suit among apartment in a Civil Court and subsequently and its non sequent and its non responsibility for the negligent acts of the occupants of said building, eleventhly denying of any deficiency or defect in construction and non handing over of the maintenance of the said building as complainant is collecting Rs.250/- for month from the flat owners for maintenance, and tenthly the case of the complainant is on account of rivalary with the opposite party in opposing the election of complainant and is continuing in office and demanding for fresh election to the association.
5. In substantiation of the contentions, while the complainantl’s side as remain up the documentary record in Ex.A1 to A7 besides to its sworn affidavit and the sworn affidavit of third party P.Raghunatha Reddy in reiteration of complaint averments, the opposite parties side has placed reliance and documents record in Ex.B1 to B4 besides to its sworn affidavits in re-iteration of its defene.
6. Hence the point for consideration is whether the complainant has made out any alleged deficiency of services on the part of opposite parties so as to make them liable for the reliefs sought by the complainant?
7. The opposite parties allege non compliance of terms and conditions of bye-laws in holding the election of the office bearers and the election of complainant. The scope of the proceedings before this Forum being to decide the alleged deficiency in services and of the relief the aggrieved is entitled to and not for determining and declaring the validity or otherwiseness of the election of the office bearers of the complainant the said aspect remains highly irrelevant for consideration in this case especially when the attested copy of certificate of registration of society dt08.01.2002 is certifying the association of Chandra Apartment owners and the notice dt 03.03.2003 requesting the flat owners to pay corpus fund on or before 10th March 2003 and the collection of maintainance charge at Rs.250/- from each flat for the month November 2001 by Treasurer of the said association as has issued a legal notice dt 23.10.2003 to the opposite parties which was not responded either by way of questioning the complainant’s statements to demand on behalf of said association.
8. while the complainant’s side allege that there was an agreement from the opposite party for completing the pending minor works at the time of delivery of position of flats to its owners, and the opposite parties denies the same alleging the completion of construction and providing of amenities, as per the terms and conditions of construction agreement and nothing was pending in the form of any minor works. The complainant alleges that the builder (Opposite party) have promised to take up pending works like terrace finishing coloring apartment, providing sufficient parking place for two wheelers of all flat owners and Iron mess for electric meters in ground floor from 15 December 2001 on wards and signed in minutes book accordingly attended the meeting and the said was passed in the from of resolution by all flat owners associated members and builder on 04.11.2001. The attested the copy resolution dated 04.11.2011 of the flat owners of Chandra apartments resolution alleges the presence of 9 members including the complainant and opposite parties and serial numbers 3 and 6 and its unanimous resolution to from the association and get its registered under the name as Chandra apartments owners association under society Registration Act 21 of 1860 and the promise of the builder to take up pending works i.e. terrace fencing colouring the apartment providing sufficient parking facility for two wheelers of all flats, iron mush for electric meters in the ground floor of Chandra Apartments from 15 December 2001 on wards. It also contains details of the elected office bearers and other executive committee members and the signature of both the complainant and opposite party in acknowledgment of said fact. The said fact was alleged in the notice dated 23.10.2003 of the complainant to the opposite party which was n;ot responded either way by the opposite parties. If there is any untruth in said circumstance of resolution dt 04.11.2001 the opposite parties would have availed the said receipt of the notice as earliest possibilities to deny the same. Hence in the absence of any such deligent conduct on the part of opposite party, the 11 hour denial of said circumstances in the written version pleadings as is not above the possibility of an after though, not remaining with bonafidies for its acceptance.
9. The opposite parties allege that it had done all that which is required to said flat owners would not have taken delivery of them and reside therein. If there is any truth in said averments in all its bonafidies the opposite parties would have taken the chance of replying the notice dt 23.10.2003 which such averments and hence the said 11 hour excuse appears to be an excuse for excuse sake without any merit and force therein. Further if it had really complies with all that it is to furnished to the flats as agreed in the said construction agreement of said flat owner the opposite parties would have taken an inspection of the said apartments by any commission to substantiate its contentions and to unfurl the untruth in the contentions of the complainant. But as the opposite parties has not taken any such efforts there appears any material in the said contentions to believe it.
10. The complaint averments takes refer4ence to the details of the pending works to be completed by the opposite parties in reference to the resolution dt 04.11.2001 and resolution made there under. The opposite parties say that it has furnished all amenities which were agreed as per the terms of construction agreement. If ther5e is any proof in the said contentions of opposite party there appears no reason as to why its subscribed its signature in the resolution dt 04.11.2001 evidencing not only the said resolution for attending the minor works but also the election of office bearers and other executive members of said association. Further the perusal of the construction agreement dt18th January 2000 entered with opposite party by the complainant more deals with the rights of builder to have access to said property in execution of construction works and the mode of payments to made to the builder and the liability of the maintenance of said apartments by its purchasers after forming association of said apartments owner rather than the other facilities and amenities the opposite party is to provide to the said apartments. When such is the thing and the opposite party has done all it required under said construction agreement, there will be no necessity for its presence and signing of the supra stated resolution dated 04.11.2001, which shall be possible only when there is pending of some minor works and when there is an understanding between the flat owners and the builder for providing those amenities which are not taken reference in the construction agreement and which are essential for convenient and beneficiary use of said flats by its owners. As the said possibility being not routed out by the defaultive conduct of opposite party in not raising to the occasion with any of his present averments at the earliest possibility afforded to him in responding to the notice of the complainant.
11. Hence the sate of above circumstance as the opposite parties are at deficiency of services in providing the amenities agreed in the resolution dt 04.11.2001 the complainant is remaining entitled for reimbursement of the alleged deficiency, which the opposite parties to provide to said apartments.
12. The opposite parties allege that the complaint is barred by limitation as its cause of action was taken to 04.11.2001 and the case is filed on 25.11.2003, though it was said to have been verified and signed by the comlplainant on 13.11.2003 itself. As the conduct of the opposite party and their mind at the matters did not come to light till the non response of it to the notice dt 23.10.2003 and the said conduct amounts to denial the subsequent cause of action for the complainant is commencing from 23.01.2003. When such is so the filing of the case on 25.11.2003 verifying its contentions on 13.11.2003 is not remaining as an action resorted after the expiry of the limitation.
13. Another contention of the opposite parties is that there is no resolution of the said Chandra Apartment Owners Association authorizing the complainant to file this case for the other members of the Association also. There appears no much merit and force in the said contentions of the opposite parties side, even though there is no such resolution authorizing him and any seeking of the permission of the Forum by the complainant under Section 12 of the consumers protection Act, as from the cause title of the complaint and the complaint averments and of any recital that it was filed in representative capacity and o;;n the other hand what appears from complaint is that this complaint was filed by the complainant on his own name and identity as the secretary of Chandra Apartments Owners Association with his individual residential address which implies in all probability the filing of the case in his individuality. Hence in the circumstances the case of the complainant as appearing individual and not requiring any such authorization of the
Association and the permission of the Forum, the scope of the complainant case limits to the individual deficiencies the complainant suffered at the opposite parties deficient conduct and hence not extends to any other Members of the said Association.
14. The opposite parties side contents that the case of the complainant is bad for the non joinder of the other partners of the opposite parties Firm. As the agreement of the construction was signed by the opposite parties only as it Managing partner there appears no such necessity to add the other partners of the said Firm if nay especially when no such partnership deed is filed as to the existence of other members in the said Firm of the opposite parties. Therefore the said contention of the non-joinder of other partners of the opposite parties Firm appears to be a plea sake without any much merit and force their.
15. Therefore, in the result of the above discussion as the complainant alone is remaining entitled in the circumstances of the case to the reliefs sought from the opposite parties, the complaint is allowed according directing the opposite parties jointly and severally to finish the pending minor works relating to complainants apartment promised in the resolution dated 04.11.2001 and re-iterated in the legal noticed dt.23.10.2003 within a month of the receipt of this order and to pay Rs.10,000/- as compensation to the complainant for the mental agony suffered and Rs.1,000/- as costs of this litigation for driving the complainant to the Forum for the redressal of his grievances arising out of the deficiency of the service of the opposite parties as builder to the complainant Flat owner.
Dictated to the Stenographer, typed to the dictation corrected by us, pronounced in the open Court, this the 17th day of August, 2004.
Sd/- Sd/- Sd/-
MEMBER PRESIDENT MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant:- Nill For the opposite parties:- Nil
List of Exhibits marked for the complainant:-
Ex.A1 Attested copy of agreement for construction executed between Dr.S.Madhusudhana Varma and RR constructions dated 18.01.2000.
Ex.A2 Attested copy of sale deed executed by RR constructions in favour of Dr.S.Madhusudhana Varma dated 19.01.2000.
Ex.A3 Attested copy of certificate issued by Certificate of Registration of Societies in favour Chandra Apartments.
Ex.A4 Attested copy of resolution.
Ex.A5 Office copy of legal notice dated 23.01.2003 issued by complainant counsel.
Ex.A6 Two postal receipts.
Ex.A7 Two postal acknowledgements.
List of Exhibits marked for the opposite parties:- Nil
Sd/- Sd/- Sd/-
MEMBER PRESIDENT MEMBER
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
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Complainant and Opposite parties :
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