BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.

F.A. 1736/2005 against C.D. 561/2002, Dist. Forum-I, Hyderabad

Between:

R. Karunakar Reddy

S/o. R. V. Rukama Reddy

Age: 45 years,

R/o. 3-6-547/2

Himayatnagar

Hyderabad                                                   ***                         Appellant/

                                                                                                 Complainant

                                                                    And

M/s. Vaishnavai Builders

Rep. by its Partners

1. C. Ramakrishna Reddy

S/o. Chandra Reddy

Age: 54 years, Civil Contractor

H.No. 1-12-5/1, Near Water Tank

Alwal, Secunderabad.

2.  M. Venkata Dharma Reddy

S/o. M. Narasimha Reddy

Age: 36 years,  Civil Contractor

R/o. 3-6-777/201, Kamala Towers

St. No. 14, Himayatnagar

Hyderabad.                              .                             ***                        Respondents/

                                                                                                 Opposite Parties.           

Counsel for the Appellant:                          Mr. C. Raghu

Counsel for the Resp:                                 Mr. D. Shashidhar.

QUORUM:

                          HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

&

                                          SMT. M. SHREESHA, MEMBER

THURSDAY, THIS THE  FOURTH  DAY OF SEPTEMBER  TWO THOUSAND EIGHT

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

          The appellant is the unsuccessful complainant.

          The case of the complainant  in brief is that  the respondents are the builders.   They agreed to construct residential apartments with stilt + five floors consisting of  three residential flats  measuring approximately  3600 sft in each of the floor.   As per Ex. A1 development agreement Dt. 30.08.1999 mentioning the specifications in Annexure as to the structure, flooring, plastering, windows, kitchen etc., an  Agreement of Sale Dt. 24.3.2001 under Ex. A2 was executed, wherein sale consideration was mentioned as Rs. 7 lakhs.

Additional agreement of sale for fixtures and fittings  was also executed under Ex. A3  Dt. 25.5.2001  wherein  there was a mention  that the cost of flat was shown as Rs. 4,95,000/- and cost of fixtures and fittings at  Rs. 2,05,000/-.  It was agreed that even the following fixtures and fittings would be completed within one month, mentioning the cost of each item as follows :

          a)       Flooring (Granite)                              Rs. 1,00,000/-

          b)       Parking                                             Rs.    75,000/-

          c)       Painting                                            Rs.    20,000/-

          d)       Grills                                                 Rs.    10,000/-

Subsequently the sale deed was executed on 26.5.2001 under Ex. A4.  Parking allotment was also handed over  under Ex. A5.  On the same day  the respondent builder  issued Ex. A6 demand notice for payment of Rs. 6 lakhs towards additional works entered between them.  Despite the fact that he paid Rs. 7 lakhs  he was not  provided  extra  parking space.  He was again charged Rs. 75,000/-. He failed to provide granite flooring, interior painting worth Rs. 20,000/-. He fixed  date of Gruhapravesham to 6.8.2001.   Ex. A8 photographs show that marble flooring was only  fixed.  Therefore, he filed the complaint claiming  Rs. 2 lakhs for lack of providing granite flooring, extra amount charged for  providing  parking space,  and for not providing interior paints.  He also claimed Rs. 2 lakhs towards mental agony and costs.

          The respondent resisted the complaint.  While in the agreement,  sale consideration was mentioned at Rs. 7 lakhs, out of which the complainant had paid Rs. 1 lakh,  and agreed to pay balance at the time of  registration.   The flat was fully completed.  As per agreement of  Sale Dt. 24.3.2001 he has inspected the flat  and found it satisfactory. Accordingly  he obtained registered sale deed  on  26.5.2001.  He has occupied the flat on  the date of registration of sale deed  itself.   Though the sale consideration was  Rs. 7 lakhs,  in order to avoid income tax, Rs. 4,95,000/- was mentioned as sale consideration  in the deed.   He paid the stamp duty and  registration charges for  Rs. 7 lakhs. On account of  pressure  applied  by his father-in-law,  he was  subjected to severe hardship.  He was forced to sell  the flat,  and it was not a voluntary sale.   In view of the specifications,  noted in the development agreement, there was no question of  adding  any further specifications apart from development agreement.   He never agreed to lay granite flooring.  Now it is impossible to remove the existing marble flooring and lay granite flooring.  He was willing to  return the amount of Rs. 7 lakhs  with interest,  and the complainant be called upon to surrender the flat.   He may be permitted to pay extra amount  in order to get rid of  unnecessary litigation initiated by the complainant.  He never agreed for additional specifications either for granite flooring, interior painting or parking space.  He completed all the flats in the month of  March, 2001 itself.   He never agreed for additional specifications as alleged by the complainant.   In fact the complainant himself got executed the sale deed for Rs. 4,95,000/- in order to avoid  Income Tax,  and the same was mentioned for the purpose of  registration.   Therefore, he prayed that the complaint be dismissed with compensatory costs of Rs. 5,00,000/-.

          The complainant in proof of his case filed his affidavit evidence and Exs. A1 to A9.  Respondent filed his affidavit evidence and Ex. B1 receipts and Ex. B2  hand book of flat owners association.

          The Dist. Forum after considering the evidence placed on record opined that the complainant did not produce actual receipts issued by the respondent to show the payments made by him.   Ex. A1 development agree shows that only marble flooring  will be laid.   He took possession of the flat in the month of  August, 2001.  He did not complain then.  He cannot take advantage by splitting the sale consideration and other specifications to avoid tax.    He did not come to the court with clean hands,  finally it  dismissed the complaint.

          Aggrieved by the said decision, the complainant  preferred this appeal contending that the Dist. Forum did not appreciate the facts in correct perspective.   It ought to have noticed that in the second agreement Dt. 25.5.2001 the respondent had agreed to provide additional specifications like  granite flooring, painting and grills.  He cannot charge separate amount for extra parking space.  Therefore, he prayed that non-providing these  items would amount to deficiency in service, entitled to the claim of Rs. 2 lakhs with interest and costs.

          Indisputably, the complainant’s parents are the original owners of  property.  They entered  development agreement with the  respondent builder  wherein the respondent agreed to construct the flats  and allot 50% of the flats, common areas etc. to the owners evidenced under Ex. A1 development agreement Dt. 30.8.1999.   He agreed to provide  two coats of cement plastering  with sponge finish for outside walls and ceiling,  and lime nectar smooth finishing for inside walls.  A sum of Rs. 3 lakhs was paid as performance guarantee  deposit   refundable at   the  time of  handing  over  of    possession. 

On  24.3.2001  the respondent entered into an agreement of sale evidenced under Ex. A2 for sale of Flat No. 203 for a consideration of Rs. 7 lakhs.  It was mentioned that an amount of Rs. 1 lakh was paid as advance and balance of Rs. 6 lakhs  would be paid at the time of registration.   It was mentioned that the  flat  was  constructed  as per the  development  agreement  Dt. 30.8.1999.

It was further mentioned that “ the vendee has inspected the flat No. 203 and found it satisfactory and thus agreed to purchase.”

          According to the complainant, the builder executed a separate agreement of sale under Ex. A3 Dt. 25.5.2001 for fixtures and fittings wherein  the sale consideration was mentioned as Rs. 7 lakhs.  The value of  flat comes to Rs. 4,95,000/-, while the  fixtures and fittings comes to Rs. 2,05,000/- and the same shall be completed within a period of one month.  Break up figures were also mentioned as under :

          a)       Flooring (Granite)                    Rs. 1,00,000/-

          b)       Parking                                    Rs.    75,000/-

          c)       Painting                                   Rs.    20,000/-

          d)       Grills                                       Rs.    10,000/-

          On the next day i.e., on 26.5.2001  Ex. A4 sale deed was executed by the respondent builder in favour of complainant showing  the sale consideration as Rs. 4,95,000/-.  While they estimated the value at Rs. 4,95,000/-, obviously the Sub-Registrar had valued at Rs. 6,25,500/-.  Though the respondent asserted that stamp duty and registration fee was paid on a consideration of Rs. 7 lakhs, it is not evidenced by any endorsement.  On the other hand it shows that the registration was made on the valuation of Rs. 6,25,500/-.  On the very same day, parking allotment was made vide Ex. A5.  In the sale deed the existence of Ex. A1 Dt. 30.8.1999 was made a mention. They did not mention the existence of Exs. A2 & A3.   Sale consideration was mentioned at Rs. 4,95,000/-.

On 6.8.2001, the complainant had performed house warming ceremony, obviously,  having received possession even earlier.

          The contention of the complainant is that he was entitled to  granite flooring etc. as agreed upon under Ex. A3.  The respondent denies the execution of Ex. A3 and alleges that it was a forgery.   Though the said fact was denied by him, he himself executed Ex. A6 letter Dt. 26.5.2001  directing the complainant to pay Rs. 6 lakhs  on the ground that he has completed the additional works entered between them earlier.

          The complainant did not issue any registered notice or even protest letter for not laying granite flooring  when he had taken possession. He  has been  in possession  and enjoyment of flat  is not in dispute.  When the complainant has insisted for laying granite flooring,  the respondent denied the very existence of Ex. A3.   It is his contention that as per the terms of agreement, he laid the marble flooring.  It is impossible to remove the marble flooring now and lay granite flooring.  He also alleges that he fixed grills and handed over the parking space vide Ex. A5.  At the out set, it may be stated that both the complainant as well as the respondent are guilty of suppression of  Exs. A2 & A3,  lest they had to pay the stamp duty and registration charges on a consideration of  Rs. 7 lakhs.  In order to avoid this,   they showed the consideration at Rs. 4,95,000/-.  They have suppressed an amount of Rs. 2,05,000/-.  The complainant intends to explain this by introducing Ex. A3  Dt. 25.5.2001 supplemental agreement   wherein it was agreed to lay granite flooring etc.   In the end  it was stated that  the work should be completed within one month from the date of agreement.  In fact, the sale deed was executed on the very next day i.e., on 26.5.2001.  Therefore, it could not have been  said  that  the  works  noted  in  the  supplemental  agreement  would  be

completed within one month.  The sale deed was executed on the very next day i.e., on 26.5.2001,  obviously to get over the payment of stamp duty and registration fee.   The  said  agreement  seems to have  been executed solely for

purpose of  avoiding stamp duty and  registration fee.  If any proceedings are taken  in future for suppressing the consideration, they would come up with the agreement.   Had it been executed for complying the terms the complainant  could not have taken possession, without  marble flooring etc.   In Ex. A1 there was categorical mention that marble flooring would only be laid.  In  Ex. A2  agreement of sale  there was specific mention that they have inspected the flat and found it satisfactory.   They could have made a mention about the agreement for providing granite flooring etc.  Even in the sale deed, had the parties been fair, they could have noted except for flooring the remaining works were completed.   Clause 6 of the sale deed specifically mentions that “the vendors on this day handed over the possession of the schedule property to the vendee after having received the total consideration.”

When he obtained possession on 6.8.2001, for the first time, he laid his complaint on 12.7.2002 i.e., one year two months after taking possession.   This shows that the complainant intends to take advantage of  Ex. A3 which he suppressed all through.  At the cost of repetition, we may state that  had the complainant really intended that the granite flooring should be made, he  would not have taken possession of the flat when marble flooring was laid.   He would have demanded the appellant within a reasonable time insisting for granite flooring etc.  This supplemental agreement was introduced   to get over payment of  stamp duty and registration expenses etc.   Suppression of these facts by the complainant and subsequent sale deed would not enable him to claim these so called deficiencies.  The complainant ought to have filed the affidavits of  other flat owners about these deficiencies.    He having received the parking space,  evidenced under Ex. A5 letter and he having failed to prove

that he was entitled to additional space, we are of the opinion that he was not entitled to any of the claims made by him in the complaint.  The Dist. Forum has rightly held that the complainant is not entitled to the relief  as he did not come with clean hands, may be respondent is equally guilty. We do not see any merits in the appeal. 

In the result the appeal is dismissed.  However, in the circumstances of the case no costs.

PRESIDENT                                      LADY MEMBER

                              Dt. 04.09.2008.