Date of filing:3.5.2013
Date of Disposal:18.6.2014
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II::
VIJAYAWADA, KRISHNA DISTRICT.
Present: SRI A. M. L. NARASIMHA RAO, B.SC., B. L., PRESIDENT
SMT N. TRIPURA SUNDARI, B. COM., B. L., MEMBER
WEDNESDAY, THE 18th DAY OF JUNE, 2014.
C.C.No.82 OF 2013.
Between :
1. Bommuluri Anjani Kumar, S/o Subrahmanya Sambasiva Rao, Hindu, 32 years,
Properties, R/o Flat No.GF-1, Madhu Residency, D.No.21-10-78, 1st Lane,
Srinagar, Satyanarayanapuram, Vijayawada – 11, Krishna District presently
residing at Hyderabad.
2. Bommuluri Karthikeya Vara Prasad, S/o Subrahmanya Sambasiva Rao, Hindu,
30 years, Properties, R/o Flat No.GF-1, Madhu Residency, D.No.21-10-78, 1st
Lane, Srinagar, Satyanarayanapuram, Vijayawada – 11, Krishna District, presently
residing at Mumbai.
(1 and 2 being represented by their G.P.A. Bommuluri Parvathi)
….. Complainants.
And
1. M/s Sravani Constructions, Rep., by its Managing Partner Kolluru Jayasri,
Poranki Village, Penamaluru Mandal, Krishna Distinct.
2. Kolluru Jayasri, W/o Phani Kumar, Hindu, 38 years, R/o Door No.9-177, Padmavathi Gardens, poranki Village, Penamaluru Mandal, Krishna District. …..Opposite Parties.
This complaint is coming before us for final hearing on 3.6.2014 in the presence of Sri K.Sundara Ramaiah, Counsel for complainant and Sri G.V.N.N.S.N.Murthy, counsel for opposite parties and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble Member Smt N. Tripura Sundari)
This complaint is filed under Section 12 of the Consumer Protection Act, 1986.
The averments of the complaint are in brief:
1. The complainants are the absolute owners of the property of the plot No.68 in an extent of 256.11 sq.yards in survey No.87/2 situated at Kesarapalli Village, Gannavaram Mandal, Krishna District which is described in the scheduled annexed hereto and which is herein after referred as scheduled property, having purchased the same on 15.4.2010 from 1. Gudapati Banoji Rao, 2 Gudapati Punna Rao sons of late Mohana Bhaskara Rao, being represented by their agreement of sale cum General Power of Attorney agent Inampudi Venkateswara Rao, S/o Satayanaryana, R/o Poranki Villge, Penamaluru Mandal under registered sale deed at Gannavaram Sub-Registery, since the date of purchase the complainants are in joint possession and enjoyment of the Plot No.68 i.e., schedule property herein with absolute rights. One Sri Sesha Sai Township Private Limited, Vijayawada rep., by its Managing Director Kolluru Phani Kumar approached the complainants and agreed to raise structures in the scheduled property. The complainants being attracted by the representations of the said Kolluru Phani Kumar, the complainants and Sri Sesha Sai Townships Private Limited, Vijayawada entered into an agreement on 8.4.2010 for construction of ground floor building within the plinth area of 1050/- sq. feet and first floor within the plinth area of 1050 sq.feet in the said plot of Sai Srinivasa Gardens as per the payment schedule. If the complainant failed to pay the amounts as mentioned in the payment schedule they have to pay interest at the rate of 24% per annum on the pending amounts to the opposite parties. The opposite parties have to complete the entire construction work in the schedule property and deliver the same within the period of 18 months from the date of agreement. The complainants are sanctioned housing loan of Rs.33.70 lakhs on 15.4.2010 for construction of house in the schedule property under the tie up agreement made by the bank with the opposite parties. While the construction process was going on in the schedule property the said Kolluru Phani Kumar who is M.D. of the said Sri Sesha Sai Township Private Limited approached the complainant and requested the complainants to cancel the said agreement dated 8.4.2010 and to enter into fresh building construction agreement with Sravani Constructions, being represented by its Managing Partner Kolluru Jaya Sri, W/o Phani Kumar. That the above said building construction agreement dated 8.4.2010 was cancelled and the complainants enter into fresh building construction with Sravani Constructions, for the same amount on 20.9.2011. Even after that also the opposite parties did not complete the construction work as per the terms and conditions of the building construction agreement. As per the terms and conditions of the said agreement the opposite parties shall complete the construction within six months from the date of agreement. As per the scheme and terms and conditions of the bank the construction work of the house should have been completed within 18 months after first disbursal of the loan. But the opposite parties failed to perform their part of contract in completing the construction work as agreed by them. The opposite parties did not fulfill their part of contract and they have been dragging on the same by not completing the work and postponing the same from time to time. Even though the complainant paid amount as agreed. The bank authorities also issued a legal notice dated 16.4.2013 stating that their disbursement of the loan amount and the funds released by the bank is not commence rate with the actual process of the project and that if the project could not completed immediately the bank reserves it right to call the loan in total. As such the letter also clearly discloses the deficiency of service rendered by the opposite parties. The complainants suffered lot of mental agony and inconvenience. Hence the complainants are constrained to file this complaint against the opposite parties praying the Forum to direct the opposite parties to pay an amount of Rs.3,00,000/- towards compensation for mental agony and Rs.2,00,000/- towards damages and Rs.5,000/- towards costs.
2. The version of the opposite parties is in brief:
The opposite parties denied all the allegations of the complaint and submitted that the complainants without paying the amounts to the work completed by the opposite parties and entered into the subject property and conducted Gruha Pravesam function also and have been residing in the house. In fact that there is some minor works is completed by the opposite parties to a tune of Rs.50,000/- and odd. But the complainants have to pay more than Rs.4,00,000/- to the opposite parties as per the agreed terms and conditions of the agreement dated 20.9.2011. Even though the complainant received the loan amount from the bank they did not choose to pay the balance amount to the opposite parties even to the work completed by them. The complainant from the beginning of the agreement dated 20.9.2011 not co-operating in payment of amounts to the work completed by the opposite parties. At any point of time either this opposite party or other opposite party never Skulk away beyond the terms and conditions the of the agreement dated 20.9.2011 and always ready to perform their part of contract on receipt of the balance amount payable by the complainants immediately as specified in the statement of account submitted by the complainants along with complaint. There is no deficiency of service on the part of the opposite parties towards the complainant. Hence the opposite parties prayed to dismiss the complaint with costs.
3. On behalf of the complainant she gave her affidavit and got marked Ex.A.1 to Ex.A.10 and on behalf of the opposite parties Smt K.Jayasri Managing Partner of the 1st opposite party gave her affidavit and got marked Ex.B.1 and Ex.B.2.
4. Heard and perused.
5. Now the points that arise for consideration in this complaint are:
1. Whether there is any deficiency in service on the part of the opposite
parties towards the complainants in not completing the construction work
of the building of the complainant even though they paid agreed amount.
2. If so are the complainants entitled for any relief?
3. To what relief the complainants are entitled?
POINTS 1 AND 2:-
6. On perusing the material on hand the complainants are the absolute owners of the plot No.68 in an extent of 256.11 sq.yards in survey No.87/2 situated at Kesarapalli Village, Gannavaram Mandalam, Krishna District which was purchased from 1. Gudapati Banoji Rao, 2 Gudapati Punna Rao who are holders of agreement of sale cum General Power of Attorney from Inampudi Venkateswara Rao and was registered on 15.4.2010 under Ex.A.1 registered sale deed. The complainants and one Sri Sesha Sai Township Private Limited, Vijayawada, representing by its Managing Director Kolluru Phani Kumar entered into an agreement under Ex.A.2 dated 8.4.2010 for construction of ground floor and first floor within the plinth area of 1050sq.feet in each for an amount of Rs.25,20,000/- in the said plot as per the payment schedule. It was stated in the said agreement that if the complainants failed to pay the amount as mentioned in the payment schedule they have to pay interest at the rate of 24% per annum on the pending amounts to the opposite parties. The opposite parties have to complete the entire construction work and deliver the same within a period of 18 months from the date of agreement. It was mentioned in the agreement that 1. At the time starting building workRs.3,00,000/- (2) upto plinth work Rs.3,54,000/- (3) 1st floor concrete work Rs.3,54,000/-(4) 2nd floor concrete work Rs.3,,54,000/- (5) 1st floor walls construction Rs.3,04,000/- (6) 2nd floor wall construction Rs.3,50,000/- (7) 1st and 2nd floors wood work and flooring work Rs.3,50,000/- (8) after electrical work and cement cup boards work Rs.1,00,000/- and after finishing the building work and at the time of hand over the building Rs.44,000/-. The complainants are sanctioned housing loan of Rs.33.70 lakhs on 15.4.2010. The statement of State Bank of India, Gannavaram Branch shows the same. According to complainants while the construction work is going on in the schedule property, the Sri Sesha Sai Township M.D. Kolluru Phani Kumar requested the complainants to cancel agreement dated 8.4.2010 and to enter into fresh building construction agreement with Sravani constructions, represented by its Managing Partner Kolluru Jaya Sri who is the wife of said Phani Kumar. The agreement dated 8.4.2010 was cancelled under Ex.A.3 and the complainants entered into fresh agreement Ex.A.4 dated 20.9.2011 with the opposite parties. The opposite parties did not complete the construction work of the building of the complainants. As per terms of agreement under Ex.A.4 the opposite parties have to complete the construction work within six months from the date of agreement, but they are postponing to complete the work. The complainants paid amount under Ex.A.7 upto Rs.36.85,772/- till 21.12.2012. The opposite parties have to complete some other items as agreed and the complainants have to pay Rs.4,31,628/- to the opposite parties. As per terms and conditions of the bank, the construction work of the house should have been completed within 18 months after first disbursal of the loan. As the opposite parties did not complete the construction work, the bank issued a legal notice Ex.A.8 dated 16.4.2013 stating that the disbursals were made, the relative bills and receipts were not produced to the bank so far and advised the complainants to get the construction work completed with their own funds as the funds released by the bank is not commensurate with the actual progress of project. If the project could not be completed immediately, the bank reserves it right to call back the loan in total. Ex.A.10 photos show the incomplete work of the building. The State Bank of India account shows the amounts paid by the complainants to the bank and the amounts paid to the opposite parties through the bank. It does not show that the opposite parties received full amount through bank. The complainants prayed the Forum to appoint an advocate commissioner to note down the physical features of the building and the Forum appointed the advocate commissioner to inspect the schedule building and to observe all the features pointed out by both parties and to take photographs wherever need and to file detailed report correlating the photographs to the places of inspection. The advocate commissioner executed the warrant on 5.3.2014 and submitted some photographs with his observation report on 20.3.2014 that 1. On 5.3.2014 at 3.40 p.m. to 4.05.p.m. the photographs taken by him show that (1) the incomplete front elevation, (2) the tiles not laid down and the flooring work is incomplete, (3) the front compound wall is not constructed, (4) the worker doing masonry work, (5) incomplete electrification work in the ground floor, current mater is not installed on the wooden board, (6) the windows are without doors, (7) incomplete kitchen platform along with no water taps in the sink, electrical wires are hanging, incomplete switch boards, (8) wash room in the master bed room of the ground floor incomplete work (no tap, no tiles, no basins etc), (9) wash room in the master bed room of the ground floor is no water supply, (10) incomplete cup board and electric work in the main hall of the ground floor, (11) the electrical service wire roll on the first floor, (12) incomplete drainage work, (13) incomplete wash area of the first floor (no water pipe lines, tiles, flooring etc., (14) wash room without commode, (15) incomplete wash room attached to the master bed room of the first floor, (16) incomplete steps work, (17) incomplete terrace, (18) incomplete drainage work and incomplete compound wall (19) no window doors, no tiles in the hall of the first floor, (20) no parapet wall to the steps, (21) incomplete road side front portion of the building and (22) incomplete total elevation of the building. He had inspected the schedule property and opinioned that it is presently not suitable for residential purpose as it is not having common minimum amenities like bore which is essential for water supply, incomplete plumbing work, no electrical supply. Apart from this in wash rooms and also in the kitchen platform no tiles work is done. Windows in the ground floor and first floor are not fitted with doors, incomplete switch boards and electrical wiring work. We noticed the said contents in the photos and came to understand that the building work is not completed by the opposite parties and the complainants are not residing there.
7. The version of the opposite parties that the complainants without paying the amounts to the work completed, they entered in the subject property and conducted gruhapravesam function and have been residing in the said house is not believable. It may be true that the complainants conducted gruhapravesam function. But the photos Ex.B.1 and pending work, estimation Ex.B.2 filed by the opposite parties clearly disclose that the work is not completed by the opposite parties. The opposite parties say that the complainant have to pay more than Rs.4,00,000/- to them and they are ready to perform their part of contract on receipt of the balance amount. The complainants and the opposite parties entered into 2nd contract on 20.9.2011 to construct the building and to release the amounts by the complainants in parts upto work completed. It is the duty of the opposite parties to complete the agreed work first and then they have to receive the balance amount completely after completion of the work. The opposite parties remained the work pending incompletely from 2011 to till now. So the complainants had to suffer a lot and they have to reside in rented house as the opposite parties did not complete the construction work of their building. Therefore we hold that there is deficiency in service on the part of the opposite parties towards the complainants and the opposite parties are liable to pay compensation for the same and the complainants are entitled to get relief from the opposite parties.
POINT No.3:-
8. In the result, the complaint is allowed in part and the opposite parties are directed to complete the work of the building to the satisfaction of the complainants and hand over the same within three months; to pay Rs.2,00,000/- (Two lakh rupees only) as compensation for causing inconvenience for five years to the complainants and to pay Rs.2,000/- (Two thousand rupees only) as costs to the complainant. The complainants are also directed to deposit the balance amount of Rs.4,31,628/- to be paid to the opposite parties in the Forum as per their statement of account within three months to get the work completed by the opposite parties. Time for compliance three months. If the complainants failed to deposit the amount within due date, the opposite parties will be absolved of the liability only to the extent of completing the work of the building. His liability to pay compensation and costs shall remain in force.
Dictated to the Stenographer K.Sivaram Prasad, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 18th day of June, 2014.
PRESIDENT MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the complainant: For the opposite parties:-
P.W.1 B.Anjani Kumar, D.W.1 K.Jayasri,
Complainant (By affidavit) Managing Partner of the 1st opposite party
(by affidavit)
DOCUMENTS MARKED
On behalf of the Complainant:
Ex.A.1 15.04.2010 Sale deed.
Ex.A.2 08.04.2010 Photocopy of Construction Agreement.
Ex.A.3 19.09.2011 Photocopy of Cancellation of construction agreement.
Ex.A.4 20.09.2011 Notarized copy of Construction agreement.
Ex.A.5 08.09.2011 Photocopy of Partnership deed.
Ex.A.6 22.09.2011 Photocopy of Acknowledgement of Registration of Firm.
Ex.A.7 . . Copy of payment particulars.
Ex.A.8 16.04.2013 Copy of letter from State Bank of India, Gannavaram,
Krishna District to the 2nd complainant.
Ex.A.9 20.04.2013 General Power of Attorney.
Ex.A.10 27.04.2013 Six photographs.
For the opposite parties:-
Ex.B.1 . . Estimation issued by Jai Durga Planners & Consultants, Vijayawada.
Ex.B.2 . . 13 photographs.
PRESIDENT
