AT HYDERABAD.

F.A. 50/2006 against C.D. 179/2001, Dist. Forum-III, Hyderabad

Between:

Kusumapriya Mansion Owners

Welfare Association

Rep. by its President & Secretary

1)  G. Koteswara Rao Sharma

President.

2)  K. S. Kulkarni, Secretary

H.No. 2-1-275 to 282

Nallakunta, Hyderabad.                              ***                         Appellant/

                                                                                                Complainant       

And

1. M/s. Shrinand Constructions

Rep. by its one of the partners

Smt. Jyashree Lathkar

W/o. A. K. Lathkar

H.No. 2-1-255/2,

Nallakunta, Hyderabad.                              ***                         Respondent/

                                                                                                O.P No. 1

2.  The Inspector of Drainage & Sewerage

Metro Water Works, Vidyanagar

Hyderabad.

3)  The General Manager

Hyderabad Metropolitan Water Supply  &

Sewerage Board, Khairatabad

Hyderabad.                                                          ***                         Respondents/

                                                                                                Ops 2 & 3.

Counsel for the Appellant:                          M/s. V. Gouri Sankara Rao

Counsel for the Resps:                               Mr. B. Balakrishna (R1)

QUORUM:

                          HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

&

                                            SMT. M. SHREESHA, MEMBER

TUESDAY, THE TWENTY  FOURTH DAY OF  FEBRUARY TWO THOUSAND NINE

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)       Appellant is unsuccessful complainant.

2)                The case of the complainant in brief is that  they formed into Kusmapriya Mansion Welfare Association.   R1 is the builder and the possession of the respective flats was handed over in the months of  February &  March, 2000.  It consists of 18 flats.  Earlier there was an old drainage and water connection to the house wherein  the present  apartments were constructed.   Though R1 had collected excess amount towards deposit of water,  transformer, drainage and sewerage connection with a promise to provide new connection, despite their persistent representations he did not provide water and drainage connection.  They issued legal notice on 22.12.2000.  They learnt that  R1 did not deposit the  amount  with  R2 for providing water and sewerage connection.  R1 used sub-standard material due to which there was leakage from the roof and walls.  The construction was faulty.  Faulty electrical meters were installed due to which  they were forced to pay more amounts.  Therefore, they prayed that R1 be directed to provide  one inch pipe water connection  and drainage connection by replacing old connection and cause necessary repairs to the roof and wall leakages.

3)                R1 the builder resisted the case.   She  alleged that complainant association played fraud  and got it registered with Registrar of Societies.   In fact  she was the owner of 10 flats in the complex, she sold  7  flats and retained 3 flats.   She had obtained sanction from the water board  in October, 1999  on payment of requisite fee.  The purchasers of the flats failed to pay proportionate charges  and therefore she was forced to file civil suit O.S. No 607/2002 etc.  on the file of 1^st Senior Civil Judge for recovery of amount.  She  deposited the entire amount of Rs. 2,05,570/- on  20.10.1999 with the authority concerned for obtaining water and sewerage connection.   When she  demanded contributions from the members  they did not pay any amount.   The purchasers  were satisfied with the existing water connection besides bore well  facility.  She  provided  6,000  litres   capacity   storage   sump    besides

10,000 litres capacity overhead tank.  The owners of flat Nos. 104,204, 202, 203, 302, 303, 101, 102, 103, 301, 304, 401, 404 and 501 had to contribute the amounts for which she  has filed O.S. Nos. 607/2002 etc.  besides other amounts payable under the sale deed.   Since the purchasers did not pay the contribution charges  and he having deposited the amount  with the authorities concerned,  there was no deficiency of service on  her  part.  The complaint was filed as a counterblast  to  the civil suit filed by her.   The complaint is barred by limitation and liable to be dismissed with exemplary costs.

4)                The complainant filed the affidavit evidence of  President of  welfare association and got Exs. A1 to A6 marked while the GPA holder of R1 filed his affidavit evidence and got Exs. B1 to B32 marked. 

5)                The Dist. Forum after considering the evidence placed on record opined that  R1 had filed civil suits for recovery of amount towards contribution charges etc. against the members of the complainant association.  He had deposited  the amount with Water & Sewerage Board for supply of water,  therefore it cannot be said that there is deficiency of service on its part.   At any rate since the civil suits are pending for the self same relief,  dismissed the complaint on the ground that the same cannot be determined in summary procedure.

6)                Aggrieved by the said decision,  the complainant preferred this appeal contending that the Dist. Forum did not appreciate the fact or law in correct perspective.   It ought to have seen that  R1 did not provide one inch pipe water connection by replacing old connection for all the 18 flat owners besides getting necessary repairs for arresting leakage to the roof and walls.  Pendency of the suits is irrelevant for determination of the present dispute on hand, and therefore prayed that the appeal be allowed, consequently the complaint.

7)                It is an undisputed fact that Smt. J. Kusuma Kumari, W/o. G. Koteswara Rao Sarma, President of the complainant association  was the original owner of the premises No. 2-1-275 to 282  admeasuring  610 sq.yds situated at Nallakunta, Hyderabad.  She entered into development agreement  Ex. A4 with R1 and two others on 12.3.1995 for construction of  17 flats wherein the owner got 45% share while the remaining belong to the builder (R1).   The complainant alleges that R1 did not provide water and sewerage connection  as agreed in the agreement.   The construction was also defective in the sense that they were leaky.   R1 contends that it had deposited the amount with water and sewerage board and there is no deficiency of service  on its part.  The complex was constructed in the year 1999 and   possession was also delivered. For the first time in 2001, the complainants were  raising that there were leakages etc.   Evidently R1 filed  O.S. No.1628/2001   for specific performance against the complainant to execute registered sale deed  in respect of undivided share of 197 sq.yds representing the flat Nos. 402, 403 and 502 for having purchased the property from the owner. The complainant  herein filed written statement.  R1 also filed O.S. No. 607/2002 against the very complainant for recovery of  Rs. 5,25,250/-  on the ground that she had to pay towards parking area, contribution charges,  lift, transformer, water & sewerage,  B.R. scheme and additional expenditure incurred for closing the well  etc.  

8)       R1 also filed O.S. No. 1259/2004 on the file of  IX Addl. Senior Civil Judge , City Civil Court, Hyderabad  for permanent  injunction restraining the complainant  and  others claiming parking area pertaining to flat Nos. 102, 103, 301, 304, 401, 404  on the ground that she did not pay the amount towards the said charges.  Among other things, the complainant while contesting  the suit contended that since R1 had violated the MCH  sanction plan  and  terms and conditions of  the agreement  she was forced to spend Rs.12 lakhs.  She resisted the suit for  specific performance on the ground that  R1 did not perform its  part of contract, and it was not  entitled  to  registration  of   the   undivided  share  of  the  land. 

All the three suits were disposed of  by a common judgement Dt. 4.4.2006.  The trial court decreed O.S. No. 607/2002  with a direction to  the complainant to pay Rs. 4,20,750/- with interest.  O.S. No. 1626/2001  was decreed  directing the complainant to execute a regular sale deed  in favour of R1 in respect of undivided share of land to an extent of 97 Sq.yds representing flat Nos. 402, 403 and 502 of Kusumapriya complex,  and O.S. No. 1259/2004  was allowed granting perpetual injunction  against complainant “over the parking area of flat Nos. 102, 103, 301, 304, 401 and  404 of  Kusuma Priya Mansion till the complainant pays an amount of Rs. 4,20,750/-“.  Obviously the complainant  had taken contrary pleas pertaining to these aspects.   The Dist. Forum opined that since the Civil Court had already seized over the matter pertaining to the very same reliefs where both parties  had adduced oral and documentary evidence, the very same dispute could not be resolved by way of  summary procedure in Consumer Forum. 

9)                Admittedly  R1 herein  had paid the  amount for obtaining water as well as sewerage connection. In fact, the complainants themselves did not pay their share of contribution for which a decree was already obtained.

10)     The National  Commission  in  Mughal Maskan Apartments Owners Association Vs. Mughal Constructions reported in 2005 (1) CPR 144 (NC)  opined that when the purchasers  had failed to pay the amount demanded by the municipality after the builder  had applied for connection and got it sanctioned, it could not be said that there was deficiency in service on the part of builder  on that count. 

11)              In regard to contention that due to improper construction there was dampness both in the walls as well as roof,  the commissioner in fact stated that  it was not a serious defect.   However, it is useful to note that  Smt. J. Kusuma Kumari in her affidavit filed in I.A. No. 1442/2000 in O.S. No. 5913 fo 2000  marked as Ex. B3 mentioned that “ Due to non-maintenance of quality in the construction, I was forced to rectify the same and for which I incurred further sum of Rs. 12 lakhs.”   She reiterated by stating that  “I am entitled to claim damages for not constructing the flats according to specifications and for constructing with poor quality material, I was forced to rectify all the defects of the developer, thereby I sustained a further expenditure of  Rs. 25 lakhs for which I am entitled to recover the same from the developer.”  She alleges that she had made these  constructions by spending the amount,  and now she could not have thrown the blame  against R1.   At any rate  no deficiency in service was made out against R1.  We agree with the finding of the Dist. Forum in this regard.

12)              There are no merits in the appeal.  In the result the appeal is dismissed.  However, in the circumstances of the case no costs.

PRESIDENT                                                LADY MEMBER                                         Dt. 24. 02. 2009.