F.A.No.36/2008  against C.D.No.1462/2000,   Dist. Forum-II,Hyderabad .

Between:

M/s. Rindavani Flat  Owners Association,

Rep. by its Secretary A.Srinivas,

R/o.Flat No.303, Rindavani Apartments,

Malkpet, Hyderabad.                                      …Appellant/

                                                                    Complainant

         And

M/s.Siva Sai Builders & Developers Pvt. Ltd.,

Rep. by its M.D.Smt.B.H.Lakshmi ,

R/o.1-9-318/5, Vidyanagar,

Hyderabad-44.                                             … Respondent/

                                                                    Opp.party                              

Counsel for the Appellant           :     M/s. V.Gowrisankar Rao

Counsel for the Respondent       :      M/s. S.Agastya Sharma    

CORAM:HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,

AND

SMT. M.SHREESHA, HON’BLE MEMBER,

                   FRIDAY, THE TWENTIETH DAY OF AUGUST,                  

TWO THOUSAND TEN.

Oral Order :(Per  Smt. M.Shreesha, Hon’ble Member)

                                                ****

Aggrieved by the order in  C.D.No.1462/2000 on the file of District Forum-II, Hyderabad, the complainant preferred this appeal.  The said  C.D. was originally disposed of by the  District Forum on 26.8.2004  directing the complainant association to deposit an amount of Rs.2 lakhs with the opp.party and also directed opposite party to  complete the electricity connection and water connection and other minor pending  works within one month of the deposit amount and against  the said order ,    the complainant preferred appeal   before this Commission stating that the members who signed the order dated 26.8.2004  never heard the case and hence they do not form part of the quorum  in the said  order  and the said order is not sustainable.  This  Commission vide its order in F.A.No.997/04  set aside the order  of Dist. Forum dt.26.8.2004  and the matter was remanded to the Dist Forum with a  direction  to conduct denovo enquiry  and dispose of the complaint expeditiously.   Before the Dist Forum the matter underwent several adjournments but  the opposite party did not  advance   arguments.   The District Forum after hearing the arguments of the complainant   stated  that the earlier judgement dt.26.8.2004 holds good and there is no need to interfere with the earlier judgement   and confirmed the   same order.      

            The  brief facts as set out in the complaint are  that the opposite party is a builder and developer  engaged in construction activity and  offered  to sell residential units on various rates and terms and conditions  and the members of the complainant association being induced by the representations of the opp.party entered into separate construction agreements to purchase their respective residential units. As per the terms  and conditions of the construction agreements  the opp.party  has to complete the construction of the residential portion within 12 months  from the date of agreement  and as per Clause no.15 ‘C’ of the said construction agreements, the purchasers have to bear the cost of the external electrification such as meter boxes , fixing of meter, electricity transformer, laying of cables, security deposit etc.    by paying the  approximate cost of Rs.15,000/-  to the  opp.party  and the purchasers have to pay to the developer an approximate amount of Rs.10,000/- towards meeting the demands raised by  Hyderabad Metropolitan Water Works and Sewerage Board.  The flat owners of the complainant association   who are 12 in number paid their respective total considerations towards purchase of  their respective residential units, including additional amounts towards electricity, drinking water deposits and other items as stipulated under the  constructions agreements and they have taken possession of flats during December,1999   to February,2000  whereas the final payments were made on 11.9.1999 itself  and the hading over letters were given on 16.2.2000 after repeated persuasion.   The opp.party collected all the due amounts,  but it  did not complete the common works such as Southern side compound wall of the  residential complex,  the commissioning  of the  lift  and also  exteriors of the building on the backside have  not been  completed.   The opposite party has also kept pending some of the works in the individual flats.   The complainant issued legal notice to the opp.party to complete the pending works and after  receipt of the legal notice, the opp.party completed plumbing and electrical works and painting of exteriors of the back side of the building. They  sent a  reply notice  stating that the members of the complainant association are due  a sum of Rs.2 lakhs towards extra works.     The opposite party has collected more than Rs.31,500/- towards  electricity and water supply  and  is bound to provide lift and get it commissioned in proper way.      Alleging deficiency in service on behalf  of the opposite party, the complainant approached District Forum  seeking direction to the opposite party as prayed for in the complaint.  

        The opposite party filed counter  stating that  the flat owners have paid only the sale consideration and approximate amounts towards electricity and water connection  and the opp.party addressed letter dt.20.12.1999  to the flat owners   stating that they  have   to pay approximately Rs.2 lakhs  towards electricity and water charges  apart from the amounts they have already paid, but the flat owners failed to make any payment.  The opp.party submits that they have incurred expenditure  of Rs.40,000/- towards electricity consumption charges  consumed by the flat owners  on temporary electricity connection  from January,  2000 till the regular supply  was given.  The opp.party submits that there is fault on behalf of the  flat owners of complainant association as they   did not pay the amounts towards electricity, water connection and sewerage charges  because of which  the opp.party could not erect the lift   in the year 1998 itself.   The opp.party further submits that  they have commissioned the lift in October,2002   as per the directions of the Forum dt.1.4.2002.   and there is no deficiency in service on their behalf and seeks dismissal of the complaint with costs.  

        The District Forum based on the evidence adduced and pleadings put forward  stated that there is no need to interfere with the earlier judgement dt.26.8.2004  which reads as follows:

        “In the result, the complainant association is directed to deposit an amount of Rs.2,00,000/-  with the opp.party and thereafter within a month after the deposit of the said amount, the opposite party is directed to complete the electricity connection and water connection and other minor pending works.”

        The brief  point that falls for consideration is  whether the  complainant is liable to pay Rs.2 lakhs for the water  connection?

Aggrieved by this order the complainant preferred this appeal.

It is a case of the complainant that the members of the complainant association entered into separate construction agreements with the opp.party to purchase their respective residential units.  As per the terms of the said construction agreement (Ex.A29) the opp.party has to complete the construction within 12 months from the date of the agreement and as per clause 15’C’ the purchasers  have to bear the cost of the external  electrification such as meter boxes, fixing of the meter, electricity transformer, laying of cables, security deposit etc. by paying the said approximate cost of Rs.15,000/- to the developer.  Clause 15‘d’  of construction agreement  (Ex.A29) specifies that an approximate amount of Rs.10,000/- should be paid by the purchaser towards the demands raised by HMWSB. These two amounts have to be borne over and above the agreed sale consideration.   The members of the complainant association took possession of their flats between December, 1999 and February, 2000 on various dates.  It is a  complainant’s case that the opposite party did not complete several pending works as follows:

1.    Commissioning of the lift.

2.    Provision of starter to municipal water motor.

3.    Provision of windows  and electric wiring to office room and watchman room  

4.    Provision of door to the lift room on the terrace

5.    Allotment of car parking area.

6.    Provision of H.P.motor for pumping drinking water

7.    Provision of grill and internal pending works like electrical, carpentory and masonry.

8.    Handover all original documents like sanctioned plan, BRS sanctioned plan, development agreement, GPA, original link documents , documents pertaining to erection of transformer and water and sewerage to the complainant’s association.

9.    To complete all civil pending works vide their representation dt. 24.4.2000.

The complainant submits that inspite of reminders and also meeting on  30.4.2000 the opp.party did not complete these works and so they got issued legal notice on 3.7.2000 (Ex.A33) for which the opp.party issued reply dt.24.7.2000 (Ex.A34)  in which the opp.party contended that it has completed almost all the works such as construction of compound wall and starter for municipal water and when the balance amounts are received commissioning of lift will be  started.

        The complainant filed Exs.A1 to A50 in support of its  case  .

        It is a case of the opp.party that they have commissioned the lift in October,2002 as per directions of the Forum on 1.4.2002 and contended that   as per Ex.B33 dt.2.2.2000 issued by A.P.Transco an amount of Rs.2,80,000/- is to be paid towards electricity connection charges  and also an amount of 2,05,570/- (Ex.B34) is to be paid towards water and sewerage charges.  The learned counsel for the opposite party contended that all these amounts were paid towards electricity connection and water and sewerage under Ex.B1, B19, B24, B48 and B49. He contends that apart from these amounts he also paid an amount of Rs.38,195/- towards electricity consumption charges evidenced under Exs.B23, B25 and B55.

        The learned counsel for the appellant/complainant contended  that they have never asked for water connection  and hence  the  question of payment of Rs.2 lakhs for the water connection does not arise .

        A brief perusal of the record and main complaint copy shows that the complainant’s prayer does not include water connection.  We also perused Ex.A30 dt.24.4.2000 wherein the complainant pointed out various defects and Ex.A31 which are the minutes of the meeting held on 30/4/2000 in which the opp.party  has signed these minutes and had promised to complete the pending works with respect to plumbing, masonry, commissioning of lift, construction of compound wall, handing over of original documents and allotment of car parking. It is apparent on the face of record vide Ex.A30 and A31 that there has never been any demand for water connection on behalf of the complainant association or any counter demand on respondent/opp.party for payment of Rs.2 lakhs from the complainant association towards water connection. The Dist Forum relied on Ex.A21 which is the letter dt.20.12.99 in which an amount of Rs.2 lakhs  was demanded  towards water/electricity and sewerage connection charges. Firstly the minutes of the meeting Ex.A31 is dt.30.4.2000 which is subsequent  to Ex.A21 and secondly we also observe from Ex.A21 that this demand  has not been addressed to the flat owners association but an individual flat owner of flat no. 203 and also it has not been specifically made towards water connection alone.  Taking into consideration that there was never any prayer from the complainant towards water connection and keeping in view the afore mentioned facts and circumstances of the case we are of the considered view that the order of the District Forum with respect to payment of Rs.2 lakhs by the complainant is to be  set aside.  The learned counsel for the complainant  submitted that all the reliefs prayed for have been complied  with except for submission of documents for which the opposite party agreed vide Ex.A31 dt.30.4.2000. Keeping in view that the respondent/opp.party has agreed to handover the original documents as per Ex.A31 we direct the opp.party to handover these documents under acknowledgment to the complainant association within four weeks from the date of receipt of this order.   The member should not raise any contention with regard to the custody of the documents and equally the association should keep the documents without parting it to any of the parties   and should  keep the documents  in safe custody 

        In the result  this appeal is allowed in part  by setting aside  the order of the  District Forum with respect to   payment of Rs.2 lakhs to be made by the complainant   and we direct the respondent/opp.party to handover the documents as per Ex.A31 along with the afore mentioned directions  within four weeks from the date of receipt of this order together with costs of Rs.5000/-. Time for compliance four weeks.  

                                                        PRESIDENT

                                                        MEMBER

                                                        20.8.2010

PM*