F.A.No.242/2008  against C.C.No.107/2006,   Dist. Forum-I, Hyderabad

Between:

1.Venkateshwara Sarma,

   S/o.Punnaiah Sastry ,

   Aged : 65 years, Occ:Retd. Employee,

   R/o. Flat  No.G-1

2.Smt. Praveena,

   D/o.Ramaswamy,

   Aged:35 years, occ:Employee,

   R/o.Flat No. G-2

3. Smt. Jaitunnisa,

    W/o.Mirza Yousuf Baig,

    Aged: 55 years, Occ: Housewife,

    R/o. H.No. Flat No.101

4. Ch.V.Shivasankaram,

    S/o.Ch.V.Sastry,

    Aged : 35 years,

    Occ: Employee,

    R/o.Flat No.102

5. G.S.S.A.Rama Rao,

    S/o.G.S.R.Murthy,

    Aged: 50 years, occ:Retd.

    Employee, R/o. Flat No.201.

6. Suman Pillai,

    W/o.NRK. Pillai,

    Aged 27 years,

    R/o. Flat No.202

(All are residents of  H.No.11-2-127,

Surya Residency ,  Mylargadda,

Seethaphalmandi , Secunderabad.                         … Appellants/

                                                                          Complainants

           And

1.M/s. Surya Estates,

   A construction Firm,

   Rep. by K.Surya Prakash,

   H.No.12-7-233, Mettuguda,

   Secunderabad.

2. K.Surya Prakash,

    S/o.Kishanlal,

    Managing Director, M/s. Surya Estates,

    Aged : 53 years. Occ: Business,

    R/o.H.No. 12-7-233, Mettuguda,

    Secunderabad.                                                … Respondents /

                                                                           Opp.parties  

Counsel for the Appellants         :    M/s.Y.V.S.S.Siva Sarma

Counsel for the Respondent       :    M/s. M.V.KINI  & Co.     

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

AND

SMT. M.SHREESHA, HON’BLE MEMBER

                   FRIDAY, THE THIRTIETH DAY OF JULY,

TWO THOUSAND TEN.

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

                                                ****

     Aggrieved by the order in C.C.No.107/2006 on the file of District Forum-I, Hyderabad, the complainants preferred this appeal.

         The brief facts as set out in the complaint are  that the complainants are the owners of flats in  Surya Residency Apartment, Mylargadda, Secunderabad  and the said apartment was constructed by opposite party no.2 who is the Managing Director  of the Construction firm  M/s.Surya Estates  i.e. opposite party no.1.   Opposite party no.2 entered into  Agreements for the sale of flats with the complainants in the month of July,2002  and handed over the flats under the registered sale deeds in the year  2003 with some unfinished works and promised to complete the unfinished works within one or two months. The complainant made  personal visits to the office of opposite party  and requested to complete the works which were left unfinished but  there is  no response from the opposite party.  The following are the  unfinished works and defects which were not rectified by the opp.parties:

1.    Flooring  of stilt area (Parking area) at ground  floor is not  properly  done which is left unfinished, the cellar floor unfinished without plastering.     

2.    Electrical works i.e. earthing  is not properly done.

3.    Electrical wiring in ground floor  and also other floors are not properly done.

4.    Electrical meter/meter boards are fixed to old boards which are not replaced with new ones.

5.    Watchman room and his accommodation is not provided

6.    Manholes are not properly covered with iron safes.

7.    Leakages from ceiling at IInd floor and other floors are not rectified which causes dampness to the rooms.

8.    Safety guards or safety measures are not taken to cover electric meters.

9.    Ladder is not provided for the overhead tank.

10.Roof over the staircase to stop the flowing of rain water is not provided.

11.Name Boards of flat owners and the name boards of the  Apartment is not provided.

12.Parking areas are not marked and parking space was not provided to the flat owners who purchased car parking though the amount of car parking was collected by the builder/opposite party no.2 from the flat owners .

13.Existing  borewell work i.e. to dig more depth  in getting ground water which was left to the fate of the  complainants  and the same was not done by the opposite parties inspite of several repeated requests, neither the new bore well is provided   nor the old motors are replaced with new motors.

The complainants submit that  opposite party no.2  did not take any permission from Water Works Sewerage Department for regularizing the water connection to the said apartment  and due to threats  of immediate disconnection of water supply from the Water Works Department   the complainants were forced to pay Rs.1,70,000/- for regularizing the water connection.   The Complainants submit   that though  the possession of the flats was delivered  to them in the year 2003, opposite parties executed a separate document for re-allotment of car parking space to the fifth   complainant  on 28.3.2005  leaving the rest of the work unfinished from that date onwards. The complainants got issued a legal notice  dt.23.11.2005  for which the opposite party issued a reply denying all the averments.  Alleging deficiency in service the complainants approached District Forum to direct the opposite  parties for the following works to be done:

a.       to  direct the opposite parties rectify the defects in the construction of flats owned by the   complainants and order to complete the unfinished works within a stipulated time.

b.       to direct the opposite party no.2 to pay compensation of Rs.1 lakh for mental agony, damages and hardship suffered by the complainants.

c.        to award costs in favour of the complainants.

d.       to direct the opp.party no.2 duly take steps   for  regularization  of water connection for the flats owned by the complainants with Water Works Department.

Opposite parties filed counter denying most of the allegations made  in the complaint.    The opposite parties submit  that  as per the agreement, the  complainants  have to pay the amounts for providing electrical meters  and  since the complainants have not paid the amounts,  the opposite party with his own amounts provided the available electrical meters  and also stated that there is no agreement to provide safeguards to cover the electrical boards.  Opposite parties submit that  they have  allotted the parking areas to those who have purchased and paid the amounts. Opposite parties  further submit that at the time of handing over the possession there was sufficient water in the bore well  and the availability of  groundwater depends upon rains and many other factors which are not in  their control.   The opp.parties submit  that the complaint filed by the complainants is barred by limitation as the  complainants entered into agreement with the opposite parties in the year 2002 and sale deeds were executed in February,2003  and the limitation for filing the complaint ends by February, 2005. Opposite parties  also stated that as per the agreement purchasers of flats  have to pay the amounts payable to Water Works Department  and the sale consideration received does not include the amounts payable to Water Works Department  and since the purchasers of flats have not paid the amounts , the opp.parties  could not pay the amounts to Water Works Department. The opposite parties submit that there is no deficiency in service on their behalf and seek dismissal of the complaint with exemplary costs.

The District Forum  based on the evidence  adduced  i.e. exs.A1 to A18 and pleadings put forward dismissed the complaint  without costs.

Both sides filed their written arguments. 

As seen from the record,  the District Forum has dismissed this complaint on the ground that it is barred by limitation.  It is the case of the appellants/complainants  that the opposite party constructed the said flats in the year 2003 and executed the sale deeds in favour of the complainants.  It is the case of the complainants that inspite of several requests the respondents/opp.parties  did not complete the  unfinished works and removal of  the defects and they took possession of the flats in August 2004 and found leakages and cracks in the interior walls and also in the ceiling  in their bed room and kitchen rooms  because  of which  their cupboards, fans attached to the ceiling  are completely damaged. It is also the case of the complainants that the respondent builder in his specifications  which is mentioned  as schedule ‘C’ attached  to the sale deeds promised to provide adequate water supply from the municipality  and though he collected the amounts/deposits for the regularization of water connection he did not take any steps to regularize the same.   The Hyderabad Metropolitan Water Supply and Sewerage Board   issued a letter to the appellants/complainants on 2.11.05  demanding  that their water connection should be regularized and the appellants  to pay Rs.1,60,000/-  to the Department.  It is the further case of the complainants that the respondent builder entered  into an agreement with appellant/complainant no.4  and appellant/complainant  no.5  on 23.7.2004  and 28.3.2005  respectively for the sale of car parking  which reveals that the appellants are in touch with the respondents and there is continuous cause of action.  The flats  were handed over to them in semi finished stage and the builder had not given sufficient  space  towards the car parking of four cars inspite of taking the amount for car parking. Addressing all their grievances the appellants got issued a legal notice dt.23.11.2005   for which the respondent gave  a reply on 14.12.2005.  It is the case of the respondents/opp.parties   that the  opposite party no.2  entered  into agreement of sale with the flat owners in the months of July,2002 and registered sale deeds  in the  February,2003   and entered into an agreement for the sale of parking space  with the 5^th complainant on 28.3.2005. The learned counsel for the respondents/opp.parties contends that the complaint was filed on  6.1.2006  with a delay  of 11 months as the sales deeds executed in February , 2003  and that no application was filed under Section 24(a) to condone the delay.  He further contended that if one of the complainants entered into an agreement for car parking area on 28.3.2005   only that dispute with respect to car parking  area can be raised and that  any dispute with respect to the construction of the apartment is barred by limitation.    He relied on the decision of Apex Court in KANDIMALLA RAGHAVAIAH AND CO. vs. NATIONAL INSURANCE CO.   reported in  2009-Supreme-5-377  in which  the Apex Court held that cause of action should be construed  as the date on which the fire breaks  out . He further relied on the decision of the Apex Court in  HARYANA URBAN DEVELOPMENT AUTHORITY  vs. B.K.SOOD  reported in 2006-SCC-1-164  in which the  Apex Court held that  the complaint is clearly barred by limitation that the possession of booth  site was received in the year 1987,  January and the  bhutties  had  been installed  before 1989  and removed in 1994  and the complaint before the State Commission was filed by the respondent in the year 1997   i.e. 10 years after taking of the possession and 8 years after the cause of alleged damage and therefore  it was barred by limitation. 

A perusal of the material on record  shows that Ex.A8 is  an agreement of sale of flat entered into between the second complainant Smt.Praveena on 27.2.2002 818 sft  for   an amount of Rs.7 lakhs  and that these amounts do not include the charges of A.P.S.E.B. Transformer, fire services and incoming charges of  water  and sewerage  which shall be paid by the purchaser.   It is the case of the complainant that in schedule without specifications of construction which clearly mentioned with respect to flooring, wiring and finishing works which the opposite party do not adhere   to.  Ex.A9  is the allotment of car parking letter dt.23.7.2004  in which the purchaser C.H.Shiva Sankaram   has agreed to pay an amount of Rs.28,000/-  for allotment of car parking  space.  We also observe  from the record  that an Advocate Commissioner was appointed.   It is observed   that the flats have  been given to the complainants   in an unfinished stage and they have taken possession  in the year 2003. Ex.A11 is the sale deed executed  on 15.6.2004 between the first appellant/complainant i.e. Sri S.Venkateswara Sarma  and the land owner for the flat  no. G-1   and for a total sale consideration of Rs.4,15,000/-  including the  car parking  and Ex.A12 is the allotment of car parking  space in favour of  the  5^th complainant and this is dt.28.3.2005  and Ex.A13 is allotment of car parking dt.23.7.2004  in favour of the  4^th complainant CH.V.Shiva Sankaram.  The contention of the opposite party that the complaint is barred by limitation is  unsustainable  since admittedly the sale deeds were executed in the year 2003 and thereafter the complainant noticed leakage in the ceiling and cracks in the walls and other defects which have been confirmed by the Commissioner in his report.  Therefore the contention of the respondents/opp.parties that the cause of  action  starts on  the date the possession was given cannot be sustainable. In the instant case the cause of action can be considered as the time during which the defects were noticed. Evidently defects  were already existing  for which he filed the complaint.  Keeping  in view the defects in the construction i.e. the incomplete works which were established by the  Commissioner’s report  we are  of the considered view that this complaint cannot be dismissed on the ground of the limitation . Further more on merits the complainants were able to establish that the opposite parties did not complete the works and as per the
Commissioner’s report the following works were left incomplete. :

(i).Flooring of stilt area: In the stilt area (car parking) flooring was done by cement  flooring only and it was not in concrete one  and not  find out any unfinished flooring in this area.

(ii).Electrical Works: Earthing work of main electrical panel junction is not done properly at its unfinished dig.

(iii). Wiring : The wiring from main electrical meter to flats  and there is unfinished  cement plastering wires are shown openly on the walls.

(iv). Electrical Meter Boards:  There are seven old electrical meter boards  fixed at stair  case in the ground   floor,  but they were were not covered with any grills. 

(v). Watchman room: There is no watch man room.

(vi). Man holes: There are six drainage man holes  and three of them are covered with C.I. covers   and three  man holes are without C.I.covers

(vii). Leakage from ceiling: In the 2^nd floor of the apartment Flat no.201  in the master bed room  there is slight leakage stains(dry)  and in the pooja room also on the walls of the main door there is clear little cracks  are seen

(viii).Safety guard for  electrical meter: There is no safety guard  provided on the  electrical meters on the panel boards.

(ix).Ladder on Over head tanks: There is no  stair case or ladder provided  to reach the water overhead tank  to clean it or reach it. 

(x).Second floor flat no.202: The North eastern side wall was dismantled  by the flat owners and it is not common space.

(xi)On the roof: North  east of the floor  upto 3’ x3’ water  marks were shown and about 1’ x 1 ½’  water was stagnated on it  and there are some cracks on the roof floor of the eastern side of the apartment. 

(xii).Ground floor (G1):  The original entrance is west side entrance.  The flat owners fixed a new entrance on the eastern side   and also one door is fixed on north side. Name  boards on the ground floor  were painted by the flat owners and door nos. of the flat owners are not shown. 

(Xii).Car parking:  There is no markings for car parking on the stilt are.

From the afore mentioned  report it is quite clear that the main electrical panel  junction is to be properly finished.  The schedule ‘C’  notes that aspect in Electrical specifications.    The plastering of the wires is to be completed from the main electrical meter to the  flats, the seven old electrical meter  numbers are to be covered with  a grill.  The safety guards are  to be provided on the panel board of the electrical meters.  Three drainage man holes  are seen without GI covering covered with stones which has to be completed. This is also noted in the schedule ‘C’ specifications  The safety guards are  to be provided on the panel board of the electrical meters.  There are cracks on the roof floor on the eastern side of the apartment as noted by the Advocate Commissioner  which has to be fixed.  For  all the complainants who paid for the car parking, clear  car parking should be earmarked and handed over to the complainants. With respect to water connection  it is quite clearly  mentioned in the agreement  as follows:

“However , the amounts mentioned do not include the charges of A.P.S.E.B.  Transformer with its accessories, fire services and incoming charges of water and sewage connections, which shall be paid by the purchaser. In case such expenses/deposits  are paid by  the builder, he shall be entitled to collect the proportionate amount from the purchaser at the time  of delivering of said portion to the Purchaser”.

 From the  afore mentioned it is clear that the purchaser i.e . appellant/complainant herein  should bear   the charges for the water and the drainage   as  the agreement does not stipulate for the builder to pay the charges.  Hence the complainants themselves should  bear the water charges. The complaint is being disallowed with respect to prayer  of regularizing  the water connection since  the agreement  does not stipulate  any such provision.   Prayer with respect  to  Name Boards and Ladder are minor  issues which  can be   facilitated  by the  flat owners  themselves.   There  is no provision in the agreement for  a Watchman Room. Hence this is being disallowed.  Based on the  Commissioner’s report we direct the opposite party to complete the afore mentioned defects and also pay compensation of Rs.20,000/-  to each of the  appellant/complainant  herein together with costs of Rs.5000/-

In the result this appeal is allowed in part directing the opposite parties  to complete the following unfinished works:                   

1).  The main electrical panel  junction is to be properly finished.

2). The plastering of the wires is to be completed from the main electrical meter to the  flats and  the seven old electrical meter  numbers are to be covered with grill and  safety guards are  to be provided on the panel board of the electrical meters.

3).Three drainage man holes  which are seen without CI covering covered with stones which has to be completed . 

4). Cracks on the roof flooring on the eastern side of the apartment  has to be fixed.

5).For  all the complainants who paid for the car parking, clear  car parking  area should be earmarked and handed over to the complainants.

Apart from completing the unfinished works, the opposite parties  should  also pay compensation of Rs.20,000/-  to the  each of the complainants  together with costs of Rs.5000/-. Time  for compliance four weeks.

                                                        PRESIDENT

                                                        MEMBER 

                                                        Dt. 30.7.2010.

Pm*