OF 2008 AGAINST C.C.NO.27 OF 2007 DISTRICT CONSUMER FORUM RANGA REDDY

Between

Sri Harbhajan Singh
S/o late Santokh Singh,
aed about 71 years, Indian
Occ: Business R/o H.No.9-2-184
Rezimental Bazar, Secunderabad

                                                                Appellant/complainant

        A N D

M/s Sri Gayatri Constructions
Rep. by its Managing Partners

1.     Sri P.Srinivas S/o late P.G.Rajulu
        C/o S.Suresh Damodar H.No.35-13,
        G.K.Colony, Sainikpuri, Secunderabad

2.     Sri S.Suresh Damodar S/o Sri D.B.Sontake
        H.No.39-13, G.K.Colony Sainikpuri
        Secunderabad

                                                                Respondent/opposite parties

Counsel for the Appellant             Sri V.Gourisankara Rao

Counsel for the Respondent          Sri Srinivas Karra

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

 SRI SYED ABDULLAH, HON’BLE MEMBER

      &

                            SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER

                               THURSDAY THE SEVENTH DAY OF OCTOBER

                                            TWO THOUSAND TEN

Oral Order ( As per R.Lakshminarsimha Rao, Member)
           ***

1.     The complainant is the appellant. 

2.     The factual matrix of the case as set out in the complaint is that the opposite party entered into development agreement with Smt A.Prabhavathi, A.S.Venkateswar, A.S.Venkatavardhini, S.Venkatrao and A.S.Venkatanayaki who are the owners of the residential H.No.35-41 in plot no.51 situated at Saptagiri Colony Ramakrishnapuram, Malkajigiri, R.R.District.  The complainant entered into construction agreement with the opposite party for construction of flat no.201 in the second floor with plinth area of 810 sq.ft along with undivided share of land admeasuring 30 sq.yads for total consideration of `4,60,000/- and an amount of `25,000/- towards car parking area in the multistoried building complex, Gayatri Nirvan Residency consisting of a ground floor and two upper floors.  The opposite party represented that municipality granted approval vide permit no.G2/486/2001, B.A.No.452/2001 dated 26.12.2001. The GPA holders of the land owners, P.Srinivas and S.Suresh Damodhar who are also the managing partners of the opposite party firm executed sale deed in favour of the complainant conveying 35 sq.yards of undivided share of land.

3.     The complainant paid the entire sale consideration including the cost of the car parking area.  As per clause no.2 of the agreement the opposite party has to handover possession of the plot within 8 months therefrom. The opposite party handed over possession of the flat four months beyond the stipulated period and failed to provide car parking space.  The complainant had let out the flat on lease.  The complainant’s tenant has been facing problem as no car parking space was provided by the opposite party.  The complainant has incurred loss of rent for car parking area `400/- per month from the date of delivery of possession of the flat. The opposite party used substandard material for construction of the flat.  The plastering of the walls is defective.  The complainant brought the defects to the notice of the opposite party and as there was no response from the opposite party, the complainant got rectified the defects in order to prevent further damage to the roof and walls of the flat whereby he had incurred an amount of `4000/-.  The complainant got issued notice dated 15.12.2005.  After the notice was issued, some of the tiles in the bedroom were found coming out causing difficulty to the complainant to clean the room and make use of it.  The window shutters were found to be not properly functioning because of poor quality of wood and beading. 

4.     The opposite party resisted the claim contending that the complaint is not maintainable on the question of fact and on the question of law as well.  The complaint is not filed within the period of limitation.  The complainant has suppressed the material facts and filed the complaint without producing any documentary evidence.  In terms of the agreement of sale, the complainant has to pay `4,99,000/- (`4,60,000/- towards sale consideration of the flat + `25,000/- for car parking area and `14,000/- for furnishing of electrical connection to the flat).  The complainant gave up his claim for car parking area and paid `4,70,000/- only.  Due to various reasons beyond the control of the opposite party the flat could not be handed over within a period of 12 months from the date of agreement.  The complainant along with other flat owners has taken possession of the property without any protest at the end of 12 months from the date of agreement.  The period of  twelve months from the date of agreement expired on 27.11.2002.  The complainant ought to have filed complaint within the period of two years from 27.11.2002.  The complainant filed the complaint beyond the period of three years.  Hence, the complaint is barred by limitation. 

5.     The complainant has not substantiated his claim for Rs.400/- per month towards rent for car parking area.  The opposite party had used standard material in construction of the flats.  No complaints have been received from any flat owners questioning the standard of material used in construction of flats.  The complainant had not spent any amount for repair of the flat.  Allotment of car parking area was not done due to withdrawal of the complainant from the contract.  The available car parking area in the complex was allotted to the interested occupants.  As per the terms of the agreement for construction, the complainant has to pay the amount promptly.  The complainant has paid the amount of `15,000/- seven months after taking possession of the flat i.e., on 9.6.2003.  The complainant made most of the payments after taking possession of the flat and at no point of time he has demanded for allotment of car parking slot.  The complainant has to pay `20,000/- towards damages as per clause 5 of the agreement of sale and he has to pay interest at the rate of 24% per annum for the delayed payment as per clause no.4 of the agreement.  As per the clause no.6 of the agreement any dispute between the complainant and the opposite party has to be referred for arbitration.  Hence, prayed for dismissal of the complaint.

6.     The complainant has filed his affidavit and the documents Exs.A1 to A6.  The opposite party n o.2 has filed his affidavit, but no documents.

7.     The District forum has dismissed the complaint opining that the complainant had abandoned his right to claim car parking area.  The complainant if really interested in claiming car parking area, was held not to have waited for a period of three years. 

8.     The points for consideration are:

1)                Whether the complainant is entitled to allotment of car parking space and rectification of defects in the flat allotted to him?

2)                Whether there was any deficient service rendered by the opposite party to the complainant?

3)                To what relief?

9.     POINT NO.1      The complainant entered into agreement for construction of flat no.201 in the building complex “Gayatri Nirvan Residency”.  The copy of agreement for construction dated 28.11.2001 evidences the fact of the prescribed time of 8 months therefrom for the opposite party to complete the construction and hand over possession of the flat to the complainant subject to “unforeseen contingencies such as shortage of cement, iron etc., or due any restriction imposed by the government or other authorities or natural calamity” in which case the complainant is precluded from claiming any interest, loss or damages.  Clause nos.5 and 6 of the agreement deal with the responsibility of the complainant and the opposite parties respectively.  In case the complainant makes delayed payments beyond period of 60 days from the due date, he has agreed to pay a sum of `20,000/- towads damages along with actual due amount and interest accrued thereon to the opposite parties.  The opposite parties are obligated to return the proportionate amount after deducting the cost of construction of the flat to the complainant. 

10.    The parties throw blame on each other, the complainant stating that the opposite party collected an amount of `4,70,000/- as against the agreed sale consideration of `4,60,000/- whereas it was contended on behalf of the opposite parties that the complainant has paid an amount of `4,60,000/- as against the agreed consideration of `4,99,000/-.  Thus there has been dispute in regard to the quantum of amount payable by the complainant to the opposite party in terms of the agreement for construction.  Therefore, it is essential to consider the clause no.3 which reads as follows:

“the flat purchaser shall pay to the developers for the service charges and towards the construction cost of the said flat and the proportionate cost of the common areas in the building complex, a sum of Rs.4,60,000/- (rupees four lakhs sixty thousand only) of which a sum of Rs.20,000/- at the time of agreement and the balance of Rs.4,40,000/- payable in instalments before completion of the construction and before delivery of possession as per the progress of the work in the following manner as follows:

1)                 Rs.2 lakhs (Rupees two lakhs only) at the time of registration

2)                 Rs.1,00,000/- (Rupees one lakh only) II floor room

3)                 Rs.1,00,000/- (Rupees one lakh only) after bricks work

4)                 Rs.25,000/- (Rupees twenty five thousand only) at the time of flooring

5)                 Rs.15,000/- ( Rupees fifteen thousand only) at the time of hand over of the flat.

11.    The entire consideration of the flat  as seen from clause 3 of the Agreement is `4,60,000/- which however attract interest @ 24% per annum in case of any delay on the part of the complainant in payment of the amounts as per schedule of payment mentioned in clause 3 of the agreement.  The opposite party claimed that the complainant had not made the payments in terms of the schedule of payment and it had allowed the complainant to pay the amount even after taking possession of the flat.  Ex.A3 is the schedule of payment of the amount made by the complainant on various dates which evidences payment of `26,000/- on 28.11.2001, `50,000/- on 20.1.2002, `48,000/- on 15.2.2002, `10,000/- on 16.2.2003, `15,000/- on 1.6.2003 etc. Thus, Ex.3 clarifies that the complainant had not paid the amount as per the schedule in clause 3 of the agreement for construction.  In such event the opposite party can invoke the application of clause 4 of the construction agreement. 

12.    The opposite party has stated that as good will gesture it had permitted the complainant to make payment of the consideration of the flat against the spirit of clause 3 of the construction agreement.  The opposite party has admitted receipt of total consideration of `4,70,000/- from the complainant.  The total consideration of the flat is `4,60,000/- @ `520/- per sq.feet the opposite party claims `25,000/- towards car parking charges and `14,000/- towards expenses for electricity connection, apart from the consideration of `4,60,000/-.  The complainant claims the total cost of the flat `4,60,000/- is inclusive of cost o the car parking area of `25,000/- and electrical connection charges `14,000/-. 

13.    In the construction agreement, 1^st para deals with the description of the flat under sale and its consideration estimated at `4,60,000/- @ `520/- per sq. feet.  Immediately, after the sale consideration, certain other amounts, such as `25,000/- for car parking charges and `14,000/- for electricity connection charges have been mentioned in the first para of the agreement.  The complainant’s contention is that the amount of `4,60,000/- is inclusive of cost of car parking area of `25,000/- and the electricity connection charges of `14,000/-.  The complainant submits that the total plinth area of the flat including the common area is 810 sft.  The total cost of the flat would be `4,21,200/- and if the amount of `25,000/- towards the cost of car parking area and `14,000/- towards electricity connection charges are included, the total amount would be `4,62,200/-. 

14.    If the first paragraph of the construction agreement is read in conjunction with third para, it becomes clear that the total amount of the flat inclusive of cost of car parking area and the electricity connection charges would be  the amount of `4,60,000/-. The calculation of the amount made by the opposite party as `4,60,000/- towards the consideration of the flat and `14,000/- towards the electricity connection charges is `4,74,000/- of which it had waived `4,000/- and accepted the payment of `4,70,000/- is not correct nor is it acceptable.  The total sale consideration of `4,60,000/- includes in its fold the car parking charges as the car parking area is a common area and covered within the ambit of area of 810 sft that was sold by the opposite party to the complainant. 

15.    Section 3(d) of A.P.Apartments (Promotion of Construction and ownership) Act, 1987  has elaborately dealt with the aspect of common areas in a building and among those mentioned thereunder, sub-clause (vii) which is an inclusive clause enlarges the scope of common area and it reads as under:

“All other parts of the property necessary or convenient to its existence, maintenance and safety or normally in common use”

16.    the car parking area being a common area and usually in common use was sold by the opposite party by including it within the plinth of area of 810 sft mentioned in the construction agreement.  Hence, we hold the complainant entitled to the car parking area.  The complainant has not established the facts of usage of sub-standard material in the construction of the flat and damage due to defective plastering as also loss of `400/- per month towards the rent of the car parking area.  There has been no evidence adduced in this regard by the complainant except what was mentioned in the notice dated 15.12.2005.  The opposite party by desisting from allotting and handing over possession of the car parking area to the complainant has certainly caused inconvenience to the complainant.  Hence, the complainant is held entitled to an amount of `5,000/- towards compensation.

17.    In the result the appeal is allowed.  The order dated 29.4.2008 of the District Forum is set aside.  The opposite party directed to allot car parking space to the complainant and pay `5,000/- towards compensation.  The costs of the proceedings quantified at `2,000/-.  Time for compliance four weeks. 

                                                                                PRESIDENT

                                                                                  MEMBER

                                                                                  MEMBER
                                                                              Dt.07.10.2010

KMK*