Andhra Pradesh

Visakhapatnam-II

CC/300/2010

J. Ramanamma - Complainant(s)

Versus

N. Raghupati Raju - Opp.Party(s)

S. Joga Rao

11 Feb 2015

ORDER

Reg.of the Complaint:17-08-2010

                                                                                                                                    Date of Order:11-02-2015 BEFORE THE DISTRICT CONSUMERS FORUM-II

AT VISAKHAPATNAM

                   Present:

1.Sri H.ANANDHA RAO, M.A., L.L.B.,

       President

2.Sri C.V.N. RAO, M.A., B.L.,

                                             Male Member

3.Smt.K.SAROJA, M.A., B.L.,

       Lady Member

                                            

 

WEDNESDAY, THE 11^TH DAY OF FEBRUARY, 2015

CONSUMER CASE NO.300/2010

BETWEEN:

1.SMT.J.RAMANAMMA W/O LATE JAMI SATYANARAYANA,

R/O D.NO.48-7-47, SRINAGAR, RAMA TALKIES JUNCTION,

NEAR VEGETABLE MARKET,  VISAKHAPATNAM-16.

 

2. JAMI UMA KUMAR S/O LATE J.SAYANARAYANA,

R/O D.NO.48-7-47, SRINAGAR, RAMA TALKIES JUNCTION,

NEAR VEGETABLE MARKET, VISAKHAPATNAM-16.

 

3.JAMI VENKATARAMANA, S/O LATE J.SATYANARAYANA,

R/O D.NO.48-7-47, SRINAGAR, RAMA TALKIES JUNCTION,

NEAR VEGETABLE MARKET, VISAKHAPATNAM-16.

 

4.JAMI DHAN RAJU, S/O LATE J.SATYANARAYANA,

R/O D.NO.48-261, SUNDARNAGAR, NEAR OLD DAIRY FORM,

VISAKHAPATNAM-40.

 

                                                                                             …COMPLAINANT

A N D:

SRI N.RAGHUPATHI RAJU, S/O CHEND RAJU,

PROPRIETOR, M/S KIREETINIRMANS,

R/O D.NO.54-16-5, MAHALAKSHMI APARTMENT COMPOUND,

BEHIND MUNICIPAL SHOPPING COMPLEX,

SEETHAMMADHARA, VISAKHAPATNAM.

                                                                                          …OPPOSITE PARTY

 

This case coming on 27-01-2015 for final hearing before this Forum in the presence of Smt. S.Joga Rao, Advocate for the Complainant and of                  Sri J.V.Raghavendra Rao, Advocate for the Opposite Party, and having stood over till this day for consideration, the Forum made the following:

 

 

 

 

O  R  D  E  R

(As per the Honourable President on behalf of the Bench)

1.       The Complainant filed the present complaint against the Opposite Party, directing the Opposite Party to pay in different heads i.e., 1 to 14:- 1) building violation, penalization charges for 3 flats each flat 900sft @ Rs.40,000/- for a single flat and for 3 flats of Rs.1,50,000/-, 2) to pay violation, penalization charges for total 6 shops measuring total area of 1200sft total  of Rs.1,50,000/-, 3) to pay compensation for the delay caused to complete the building construction for total 32 months i.e., Rs.10,000/- per month total sum of Rs.3,40,000/-, 4) to pay repairing costs for the entire top Truss/slab leakage, including material and labour charges of Rs.1,00,000/-, 5) to pay costs for the replacement, repairing charges of all plumbing materials such as taps, valves, sockets, yel-bows, tap heads, ‘t’ points PBC Pipes and Unions etc., of Rs.1,50,000/-, 6) to pay for the replacement of doors, windows of Rs.1,50,000/-,  7) to pay differential amount of sub-standard marble for the 3 flats with labour costs/charges of Rs.2,00,000/- 8) to pay repairing charges for water Tank Slab leakage, water tank covering sheet and ladder of Rs.50,000/- 9) to pay compensation towards loss and damages for not obtaining occupancy certificate by the respondent from the GVMC authority for each complainant of Rs.50,000/- for an amount of Rs.2,00,000/- 10) for sufferance of physical and mental torture of Rs.25,000/- by each complainant i.e., total sum of Rs.1,00,000/- 11) expenses/cost of unfinished flat of the complainant no.4 in all respects i.e., construction of walls, doors, windows, painting, electrification etc., with labour charges of Rs.4,00,000/-, 12) expenses for each notice including postal charges/fee  Rs.1,000/-, 13) expenses, costs of the case including lawyer’s fee of Rs.5,000/- totaling to Rs.19,96,000/- .

2.       The case of the complainants in brief is that they are the joint and absolute owners of land measuring 339sq.yds or 283sq.mts. Plot No.82 situated in Gollalapalem, Dwarakanagar and OP had approached for development of the said flat, after negotiations, the complainants and the OP have entered into Development Agreement on 27-10-2003. The terms and conditions of the specifications attached to the said Development Agreement at page no.10 being Annexuere-1 are binding in between both the parties and subsequently on 12-04-2004, the plan was approved by the Municipal Corporation and the OP started construction during the 3^rd week of May 2004 and after completion of 3^rd April, 2008 except the flat of the 4^th Complainant. As per the terms of the Development Agreement, the flats have to hand over within 15 days but the OP abnormal delay for a period of 2 years 7 months further the OP agreed to pay a sum of Rs.10,000/- for each month delay. They demanded money of Rs.10,000/- but the OP convinced them that they will clear all disputes after the registration of construction agreement and so saying, the OP got the registered the construction agreement on 3-4-2008 with the sole intention and motive to cover the above delay and to avoid payment to them.

3.       Though the OPs had committed all deviations, violations, deliberately contrary to the development agreement as well as sanction Plan by the Municipal Authorities and they delivered less than 50% of the developed  or constructed area to them contrary and in violation to the terms of the development agreement and that they have not  left the place to enter into cellar as vacant for car parking but constructed ¾ of cellar place with RCC construction  and no way is left or made to enter into the cellar and to go out from the cellar for the vehicles and left out the way to cellar and as such the inmates, residents occupants of the building, keeping their respective vehicles on roads and other places. The OP not issued quality material and used all substandard and low class material in the building as such all the doors, windows, paintings, floorings, were totally damaged and in bad conditions and as a result, there is a leakage in the slab during the rainy seasons and there is leakage in the water tank further no ladder issue for the water tank for the purpose of a cleaning and that the OP did not obtain occupancy certificate from the competent Municipal Corporation Authority till date which tantamount to illegal occupation  and no Bank will issue  loans to the occupants as such, the OP is liable to pay damages and compensation for the aforesaid deviations. That the activities of the OP amounts to deficiency of service and they are liable to replace all the substandard  materials used the material standards as per the items mentioned supra or in the alternative pay the cost etc., to them so that they will replace the same by purchasing standard materials. Lastly, the OP delivered less than 50% of the constructed part in accordance with the terms and conditions of the development agreement by taking  undue advantage,  their illiteracy, the OP occupied excess area. Hence this complaint.

4.       The case of the OP, denying the material averments of the complaint is that after obtaining plan from the Municipal Corporation, they started construction work in the month of May, 2004 but after some time, the other family members of the complainant raised objections and demanded them to stop construction and accordingly, they stopped the construction and thereafter again entered into an agreement on 25-08-2004, they started construction and later they again filed O.S.No.1568/05 against the Municipal Corporation, therefore,  the construction work was stopped for some time and the said suit was decreed in the month of February, 2006. Thereafter, the construction was started and completed by the end of 2006 and delivered possession of the respective flats to the complainant in the month of February, 2007. The clause 23 of Development agreement dated 27-10-2003, clearly goes to show that they have complied the terms and conditions according to the development agreement. As per approved building plan, they have constructed two floors and as per clause 11 of Development Agreement dated 27-10-2003, if there is any shortage in the built up area of 50% of share to be delivered to the owner and shortage shall be compensated by the developer @ Rs.650/- per sq.yds. As per the said clause, the builder and owner entered into an agreement dated 03-04-2008. The OP paid Rs.1,00,000/- to the complainant and it is agreed to be paid after handing over the flat to the 4^th complainant. Further the builder and the 4^th complainant entered into another construction agreement regarding the pending works of the original agreement. As per the said agreement also, the period of construction was extended 15 months plus 3 months grace period from the date of document. Except the shortage of space in the 2^nd floor in part, the remaining constructions were completed and handed over to the complainant long back by the Developer as per the aforesaid documents and as per the Development Agreement, the entire 2^nd floor shall be constructed in a single flat but not individual flats. As per the request of the complainant, the builder made separate flats, hence, the question of flat no.S1 does not arise. Due to the separation of the individual flats as per the request of the owner, the OP builder spent huge amount for dividing individual flats by spending huge amounts for materials, fixation of doors, electrical, plumbing etc.,

5.       That the OP is no way concern with the works as alleged in the complaint and they are not liable to pay any amount of compensation. The relief as sought in the complaint are not maintainable and barred by limitation. He performed his part of his construction and still he is binding on the terms of the contract but the complainant got issued notice and filed this complaint with false allegations. However, he gave suitable reply. For these reasons, the complaint is liable to be dismissed.

6.       To prove the case on behalf of the complainants, 1^st complainant filed his evidence affidavit and got marked Exhibits A1 to A13. On the other hand, on behalf of the OP, he filed his evidence affidavit and got marked Exhibits B1 to B47.

7.       Exhibit A1 is the Development Agreement dated 27-10-2003, Exhibit A2 is the Construction agreement of Dhan Raju, dated 03-04-2008, Exhibit A3 is the agreement in between the complainant NO.4 and Respondent/OP, dated March, 2008,  Exhibit A4 is the Approved building plan vide B.A.No.2004-BA-10707/ACP-II/G4, Exhibit A5 is the complainant’s Laywer’s Notice srved upon the OP by Regd., post with ACKD., dated 11-09-2009, Exhibit A6 is the Reply Noitce of OP’s Laywer by Regd. Post with ACKD, Exhibit A7 is the Complainant’s 2^nd Lawyer notice dated 06-10-2009, Exhibit A8 is the Office copy of Lawyer’s Notice addressed to the OP, dated  6-10-2009, Exhibit A9 is the registered post dated 06-10-2009, Exhibit A10 is the Application addressed to the Public Information Officer, GVMC, Vsp., under RTI Act, Exhibit A11 is the Written endorsement from the GVMC  Secretary dated 24-10-2009, Exhibit A12 is the Appeal filed by the complainant No.4 under RTI Act dated 28-11-2009, Exhibit A13 is the Estimation cost of Building repairs etc., dated 05-11-2009.

8.       Exhibit B1 is the Undertaking agreement dated 25-08-2004, Exhibit B2 is the Judgment in O.S1568/05 dated 17-02-2006, Exhibit B3 is the Association meeting with Resolution dated 01-07-2007, Exhibit B4 is the Telegraphic Notice, dated 05-03-2007, Exhibit B5 is the legal notice issued by the 1^st complainant dated 08-10-2007, Exhibit B6 is the reply sent by the OP, dated 02-11-2007, Exhibit B7 is the acknowledgement card, Exhibits B8 to B45 are the Receipts and Exhibit B46 agreement dated 30-03-2008, Exhibit B47 is the Acknowledgement.

9.       Both parties filed their written arguments.

10.     Heard oral arguments from both sides.

11.     Now the point for determination to be determined in this case is;

Whether there is any deficiency of service on the part of the OPs and the Complainant is entitled to any reliefs asked for?

12.     Exhibit A5 is the Notice got issued by the complainant dated 11-09-2009 for which A6 reply notice was issued by OP on 10-10-2009.  Prior to that the complainant got issued legal notice vide Exhibit B5 dated 08-05-2007 alleging that the OP left unfinished the SI portion which belongs to 4^th complainant. To the said legal notice, OP herein sent a reply notice Exhibit B6 dated 2-11-2007  stating that the reasons for non finishing of S-1 Flat which was allotted to 4^th complainant and he is insisting OP to construct a room in the open terrace area on the 2^nd floor which is against to the plan approved by Municipal Corporation. If really there are any latches as contented by the complainants in their complaint on the part of the OP, the complainants would definitely mentioned them in  their earlier lawyer notice dated 08-10-2007 vide Exhibit  B5. On perusal of the notice referred it can be held that by suppressing the issuance of the said notice, the complainant filed the present complaints as an afterthought by exaggerating the facts for the reasons best known to them.

13.     The evidence on record, shows the OP started the construction work in the month of May, 2004 and subsequently due to the acts of the complainant, the work was stopped and later entered into agreement vide Exhibit B1 dated 25-08-2004 and thereby the OP started construction. Exhibit B2 judgment in O.s.1568/05 reveals that Lakshmi filed the said suit against the Visakhapatnam Municipal Corporation which resulted stoppage of work for some time and later the suit was decreed and the construction was started. The record further shows thereafter the construction was started and completed by the end of 2006 and delivered possession of the respective flats to the complainants in the month of February, 2007 and the complainants are paying electricity consumption charges. As per Clause 23 of the development agreement dated 27-10-2003 i.e., A1, the developer shall not  incur any penalty for daily if he is unable to construct and deliver the possession of the agreed construction area to the owner within time stipulated. The delay occurred in handing over the flats is only on the part of the complainant’s due to the disputes between their family members which is evident as seen from the evidence let in by the complainants but not on the part of the OP. Having suppressed all these facts the complainants filed the present complaint.

13.     The evidence of complainant further reveals that the OP has constructed the apartment by using high quality material and also provided all the amenities as per the construction agreement. As per Clause 3 and 8 of the development agreement dated 27-10-2003 understanding between the builder and the owner is “the construction is party residential and partly commercial”. Ground floor is Commercial and the first and second floors are residential and the ratio of the parties is 50 : 50 out of 12 shops constructed in the ground floor and those shops which are facing towards road, should be given to the owner and the remaining 6 shops should be given to the builder. The total constructed area of the first floor shall be taken by the builder and the entire 2^nd floor shall be given to the first party owner.

14.     As per Exhibit A4 plan, it is very clear, what are the extents allotted to each floor. As per clause-2 of the Development Agreement  dated 27-10-2003, if there is any shortage in the built up area 50% share to be delivered to the owner shortage shall be compensated by the developer @ 650 per square feet  in obedience with the said clause, the builder and the owner entered into an agreement dated 30-03-2008 i.e., A3 wherein the OP paid Rs.1,00,000/- to the complainants and it is agreed to be paid after handing over the flat to the 4^th complainant. Further the builder and the 4^th complainant entered into another construction agreement regarding the pending works of the Original Agreement. As per the said document also the period of construction was extended 15 months + 3 months grace period from the date of document. Except the shortage of space in the 2^nd floor in part, the remaining constructions were completed and handed over to the complainants long back by the developer as per the Exhibits referred supra, i.e., A1 to A3 by the complainants. As per the development agreement dated 27-10-2003, the entire 2^nd floor shall be constructed in a single flat but   not individual flats. As per the request of the complainants, the builder made separate flats. Hence, the question of flat No. S-I  does not arise. The record also shows due to the separation of the individual flats as per the request of the Complainants, the OPs have been spent huge amounts for dividing individual flats i.e., by fixation of doors, electrical etc., Thus, we hold that there is no deficiency of service on the part of the complainants.

15.     On scrutiny of the evidence let in by the OP, coupled with the documents filed by both sides much less the agreement as well as notices issued by both sides, it is evident that payment of any amount by the OP to the complainants does not arise at all. As there is no expert evidence let in by the complainants whatsoever in respect of the repairs, penalization charges, loans etc., it can be held that they have not sustained any loss. Having regard to all these facts and circumstances, we are of the considered view that there are no merits in the complaint filed by the complainant, therefore, it deserves to be dismissed.

16.     In the result, this complaint is dismissed. No costs.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the 11^th day of February, 2015.

  Sd/-                                                  Sd/-                                      Sd/-

LADY MEMBER                       MALE MEMBER                       PRESIDENT        

 

 

APPENDIX OF EVIDENCE

  For the Complainant:-

Exhibits	Date	Description	Remarks
A 1	27-10-2003	Development Agreement	Original
A2	03-04-2008	Construction Agreement of Dhan Raju	Original
A3	Mar,2008	Agreement in between the complainant and no.4 and Respondent	Original
A4	12-04-2004	Approved building plan vide B.A.no.2004-BA-10707/ACP-II/G4	Photostat copy
A5	11-09-2009	Complainant’s Laywer’s Notice served upon the OP by Regd., post with ACKD	Office Copy
A6	10-10-2009	Reply Notice	Original
A7	06-10-2009	Complainant’s 2nd Lawyer’s Notice	Office Copy
A8	06-10-2009	Lawyer’s Notice	Office copy
A9	06-10-2009	Postal Receipt	Original
A10	22-10-2009	Application addressed to the Public Information Officer, under RTI	Photostat Copy
A11	24-10-2009	Written endorsement from the GVMC	Photostat copy
A12	28-11-2009	Appeal filed by the complainant No.4 under RTI Act.	Photostat copy
A13	05-11-2009	Estimation cost of building repairs etc.,	Original

For the Opposite Parties:-  

Exhibits	Date	Description	Remarks
B1	25-08-2004	Undertaking agreement entered by complainants and their family members	Photocopy
B2	17-02-2006	Judgement in OS 1568/05	Certified copy
B3	01-07-2007	Association meeting with resolution	Photocopy
B4	05-03-2007	Telegraphic notice	Original
B5	08-10-2007	Legal Notice issued by the 1st Complainant	Original
B6	02-11-2007	Reply sent by the OP	Office copy
B7		Acknowledgement card	Original
B8		Receipt	Receipt
B9		Receipt	Receipt
B10		Receipt	Receipt
B11		Receipt	Receipt
B12		Receipt	Receipt
B13		Receipt	Receipt
B14		Receipt	Receipt
B15		Receipt	Receipt
B16		Receipt	Receipt
B17		Receipt	Receipt
B18		Receipt	Receipt
B19		Receipt	Receipt
B20		Receipt	Receipt
B21		Receipt	Receipt
B22		Receipt	Receipt
B23		Receipt	Receipt
B24		Receipt	Receipt
B25		Receipt	Receipt
B26		Receipt	Receipt
B27		Receipt	Receipt
B28		Receipt	Receipt
B29		Receipt	Receipt
B30		Receipt	Receipt
B31		Receipt	Receipt
B32		Receipt	Receipt
B33		Receipt	Receipt
B34		Receipt	Receipt
B35		Receipt	Receipt
B36		Receipt	Receipt
B37		Receipt	Receipt
B38		Receipt	Receipt
B39		Receipt	Receipt
B40		Receipt	Receipt
B41		Receipt	Receipt
B42		Receipt	Receipt
B43		Receipt	Receipt
B44		Receipt	Receipt
B45		Receipt	Receipt
B47	30-03-2008	Agreement	Original
B48		Acknowledgement	Photostat copy

 

  Sd/-                                                  Sd/-                                      Sd/-

LADY MEMBER                       MALE MEMBER                       PRESIDENT