BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 531/2008 against C.C. 574/2007, Dist. Forum-II, Hyderabad
Between:
M/s. Sumadhura Elegance ‘A’ Block
Welfare Association (Reg. No. 271/07)
Rep. by its Secretary T. Nagi Reddy
S/o. Mohan Reddy, Age: 39 years
R/o. Gaddiannaram, Hyderabad. *** Appellant/
Complainant
And
M/s. Sumadhura Constructions Pvt. Ltd.
Rep. by its Managing Director
G. Madhusudhan
S/o. Late Sathaiah, Age: 40 years
R/o. Flat No. 204, DVR Arcade
Street No. 10, Himayatnagar
Hyderabad. *** Respondent/
O.P.
Counsel for the Appellants: M/s. P. Ramachandran
Counsel for the Resp: M/s. V.G.S. Rao.
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
TUESDAY, THE THIRTIETY DAY OF NOVEMBER TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) Appellant association is unsuccessful complainant.
2) The case of the complainant in brief is that it is a welfare association pertaining to the flats in block-A. The association is known as “Samundhara Elegance ‘A’ Block Welfare Association. The respondent builder had constructed residential apartments and the members of the complainant association had occupied in 2005 after paying full consideration. Though it has obtained sanction plan for the purpose of constructing 40 residential houses it has constructed 55 units over the said property violating the sanction plan. The parking area has been reduced besides leading to other problems pertaining to other amenities. It has constructed a small sump to cater 40 units only. However, in view of subsequent increase in flats it was inadequate as such it has constructed on its own a sump by spending Rs. 50,000/-.
Similarly they spent Rs. 31,500/- towards 5 HP motor, Rs. 20,000/- towards letter boxes, Rs. 4,500/- towards electrical works and Rs. 2,000/- towards purchase of cover for bore well equipment. Though the respondent had agreed to reimburse it did not do so. The parking area and cellar portion is also reduced. None of the members of complainant association could park their vehicles. Equally it did not hand over the original documents along with MCH plans etc. The entire pipe line work to the common borewell is still pending. It has also agreed to provide a bath room on the terrace as well as a new generator. It has collected Rs. 6 lakhs to provide the above said facilities. It has returned the service tax which was collected after 15 months. They were entitled to interest on the said amount. For the notice issued the respondent gave a false reply. They filed the complaint to refund Rs. 1,07,000/- together with interest @ 18% p.a., Rs. 1,35,000/- towards interest collected on service tax, Rs. 50,000/- towards common bore well and generator, Rs. 1 lakhs towards damages and Rs. 50,000/- towards costs.
3) The respondent builder resisted the case. It alleged that they had constructed total 50 flats in two blocks A & B together. Each block consisting of stilt + five upper floors. Whereas Block ‘A’ consists of 25 flats and Block ‘B’ consists of 30 flats. Only after satisfying with the construction 55 flat owners entered into agreements, and got the sale deeds executed in their favour. It has constructed two sumps with capacity of 8300 litres and 5400 litres respectively to cater the needs of the flat owners of block ‘A’ only. Equally they have constructed two water tanks on the terrace with capacity of 21,900 litres for borewell and 11,200 litres for drinking water purpose in block ‘A’. As per NBC standards the requirement for 25 flats storage capacity is 16,250 litres including the sump and overhead tanks. In fact they have provided a total capacity of 46,800 litres which is three times the stipulated requirement. The complainant association never demanded
additional sump nor informed before construction. It is not liable to reimburse any amount much less Rs. 50,000/-. Though it has provided 1 HP motor to pump the water from the sump to the overhead tanker for block ‘A’ the association changed itself with 5 HP motor and asking for reimbursement of Rs. 31,500/- which it was not liable. Equally they have provided 25 independent letter boxes as per their request. They have provided cover to the borewell equipment. If it was damaged they themselves have to provide such cover as it comes under maintenance. It has constructed the community hall on the terrace at free of cost with required electrical fixtures, and they cannot claim Rs. 4,500/- in this regard. In their reply dt. 6.4.2007 they have asked the complainant to depute an authorised person to collect all original plans, other papers under proper acknowledgement with prior intimation. Though they expressed their readiness to handover the same, however no person was deputed. They have already completed the entire pipeline work to the common borewell. It has already informed that it has installed rain cover for flat NO. 105 & 205 cars. Subsequently the owner of flat No. 104 damaged the said rain cover and therefore it need not provide. One of the flat owners Mr. Prakash has verified and got the problem of generator rectified. It was informed to the complainant on 6.4.2007. There are minor problems which could be rectified by the complainant association. In fact it has collected service tax from 16 flat owners amounting to Rs. 3,87,570/- at the time of registration. Since this amount was not in full, they could not pay, and subsequently they had refunded under proper acknowledgement. The complainant association is not connected with block ‘B’. They have given letters stating that they are satisfied with the work by giving completion reports. The flat owners have no grievance against the builder. The complaint was barred by limitation. They are not entitled to any refund of amounts nor any of the reliefs prayed and therefore it prayed for dismissal of the complaint with costs.
4) The complainant in proof of its case filed the affidavit evidence of its secretary Sri T. Nagi Reddy and got Exs. A1 to A11 marked, while the respondent builder filed the affidavit evidence of one of its Director and filed Exs. B1 to B3.
5) The Dist. Forum after considering the evidence placed on record opined that the complainant could not prove that there were deviations nor that the respondent did not complete the various deficiencies pointed out and therefore it dismissed the complaint.
6) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that the respondent builder was having their money, which it ought to have been paid to MCH, but returned without paying interest. It has noticed that the car parking was not provided. The documents were not handed over. It ought to have constructed 30 flats however constructed more than that depriving car parking area and therefore it prayed that the complaint be allowed.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) At the outset it may be stated that the during the hearing of the appeal the respondent builder returned the original deeds which the Secretary of the complainant association had acknowledged vide memo dt. 28.10.2010. Therefore the relief that was sought for return of documents has become in- fructuous. The complainant association sought for various reliefs against the builder on the ground that he did not provide and that made them to spend various amounts as under :
| S.No. | Description | Rs. |
| 1 | Sump | 50,000/- |
| 2 | 5 HP motor for sump | 31,500/- |
| 3 | Letter boxes | 20,000/- |
| 4 | Electrical works | 4,500/- |
| 5 | Cover for bore well | 2,000/- |
| | Total | 1,08,000/- |
9) It is not in dispute that the owners of the various flats have occupied the flats in 2005. For the first time they complained by way of legal notice Ex. A10 on 2.5.2007 after more than one year pointing out those inadequacies for which the respondent gave reply under Ex. A11 dt. 14.6.2007 denying those deficiencies pointed out by them. In fact in the notice when the complainant sought for return of titile deeds etc., the respondent has requested the association to send an authorised representative to collect the documents. However nobody has come and collected the documents. The fact that the respondent did not provide adequate sump and therefore the complainant was forced to make construction and equally they provided 5 HP motor in the place of 1 HP motor fixed by the builder is not proved. For the affidavit of the respondent, the complainant did either deny various allegations made by it or file rejoinder to their affidavit stating that they were forced to spend the amounts for providing the above said amenities.
10) Admittedly the entire complex consists of 55 flats in two blocks ‘A & B’. Block A consist of 25 flats and block ‘B’ consists of 30 flats was not denied. There was a revised plan which the builder has filed along with documents furnished to the complainant which the complainant could not deny. Therefore the allegation that as against 40 units 55 units were constructed is not correct. The complainant could not substantiate that there was no adequate car parking area. In fact such a relief was not claimed in the complaint. Equally the fact that the it has constructed two sumps with capacity of 8300 litres and 5400 litres respectively to cater the needs of the flat owners of block ‘A’ was not denied. Equally they have constructed two water tanks on the terrace with the capacity of 21,900 litres for borewell and 11,200 litres for drinking water purpose in block ‘A’. The complainant could not establish by filing affidavit evidence of the flat owners to state that the water was inadequate. They have constructed it on their own. The respondent cannot be found fault with nor he could be directed to reimburse the amount. What all he promised he has provided.
11) Earlier 1 HP motor was provided to pump the water from sump to overhead tank. The complainant association themselves have changed 1 HP motor with 5 HP motor. They never issued any notice to the respondent builder before changing the motor. No documentary evidence was filed to prove that the builder has to provide and failing which it has to be reimbursed by it. Equally so with regard to letter boxes. Without issuing notice they cannot seek reimbursement of amounts. There was no meaning in doing this work without intimation, and claiming the amounts. We may state that the complainant did not even take out any Commissioner to see the deficiencies as was pointed out by them.
12) The other relief that was claimed was Rs. 1,35,000/- towards interest collected on service tax. It is not in dispute that all the flat owners did not pay the service tax. Only 16 flat owners have paid Rs. 3,87,570/- at the time of registration. Since the entire amount was not paid by all the flat owners, he has returned the amount under acknowledgement. They did not seek any interest for the said amount till issuance of notice on 2.5.2007. As rightly pointed out by the Dist. Forum there was no deficiency in service on the part of respondent builder. The complainant intends to collect the amounts for the constructions made by them unilaterally without even informing the respondent builder.
13) In the first place we may state that there was no proof that these constructions were made spending a particular amount. No notice was issued before construction. In fact the builder had adequately provided the amenities. There is no proof that they were inadequate which made them to construct those additional amenities. Exs. B2 & B3 letters given at the time of taking possession would demolish their own version of the case. They have categorically stated that:
“There are no pending works as per the specifications agreed between us. You have used all good quality of material. During the course of construction, I have inspected the construction work, and I am fully satisfied with the quality of work and material used. Here afterwards if any work is to be carried out, we shall do so with our own, with the help of other flat owners and we shall not make the builder responsible for any item of work. Herein afterwards I have no claim against the builder in respect of any item of work.”
They were in June, 2006. Having issued these letter the complainant association is estopped from claiming these amounts. It was nothing but a sort of pressurising the builder to reimburse the amount for the construction made by them without taking consent of the respondent. Though the link documents and other documents were not sought for in the complaint, the respondent has handed over to the complainant which they have acknowledged by way of a memo. Therefore, we are of the opinion that the complainant is not entitled to any of the amounts. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. We do not see any merits in the appeal.
14) In the result the appeal is dismissed. No costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 30. 11. 2010.
*pnr
“UP LOAD – O.K.”
