Between
M/s Sri Constructions rep, by its Managing
Partner Polavarapu Srinivas S/o Narayana Rao
Hindu, Male, Aged about 36, Naina Towers
Mothy Raj Kumar Nagar, Eluru
Correct Address:

Bunglow No.23, Alwyn Colony
Opp. To Gokul Theatre, Sanathnagar
Hyderabad
                                                        Appellant/opposite party

        A N D

Paravthaneni Madhusudan Rao

S/o late Venkata Subbaiah
Hindu, Male, ageda bout 50 years,
Employee, BSNL, Papa Saheb Road,
Naina Delux Apartment, R.R.Pet,
Eluru-2

                                                        Respondent/complainant

Counsel for the Appellants                     Sri A.Krishnam Raju

Counsel for the Respondent                   Publication filed

    QUORUM:        SRI SYED ABDULLAH, HON’BLE MEMBER

&

                            SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER

    THURSDAY THE FIRST DAY OF APRIL                   

                                          TWO THOUSAND TEN

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

        The opposite party is the appellant. The appellant is engaged in real estate business.  The respondent  entered into agreement with the appellant to purchase a flat and paid a sum of Rs.70,000/- on 27.7.2002.   In the agreement the consideration was shown Rs.2,25,000/-.  The appellant had collected an amount of Rs.4,45,000/- from the respondent.  After completion of the flat no.305, the appellant handed over the same to the respondent.  The respondent has filed the complaint contending that the construction of the flat was defective and there was seepage of water through the walls and the interior decoration maintained by the flat owners was damaged.  The respondent got issued notice dated 24.7.2004 through his counsel requesting the appellant to rectify the defect.  The appellant has received the notice and did not choose to give any reply.

        The appellant remained exparte.

        Basing on the documents Exs.A1 to A8 and affidavit of the respondent, the District forum has allowed the complaint directing the appellant to rectify the seepage of water through the walls and roof of the flat no.305 of the respondent and on failure of the appellant to pay an amount of Rs.30,000/- along with costs of Rs.1,000/- to the respondent.

        Feeling aggrieved by the impugned order, the appellant has come in appeal contending that it had no office at Eluru except for the period of construction and even as per the agreement,  the address given  is at Hyderabad.  The District Forum has not ordered notice to the address to the appellant mentioned in Exs.A1, A2 and A4.  The seepage to the respondent’s flat could have been due to the structural changes of the flat carried out by the respondent.  The possession of the falt was delivered on 19.5.2003 to the respondent and the notice was got issued by the respondent on 24.7.2004.  The respondent had on his own accord made structural changes to the flat which could have caused leakage to the flat.  The appellant has not received any notice from the respondent and the acknoweldgeent thereof might have been created by the respondent with an intention to make a false claim.  The District Forum has failed to consider that Ex.A7 postal acknowledgement does not contain the signature of any of the representatives of the appellant.

         The points for consideration are:

1)           Whether there was any service of notice on the appellant?

2)           Whether the respondent was entitled to the relief claimed for?

3)           To what relief?

POINT NO.1        The learned counsel for the appellant has contended that no notice was served on the appellant by the District forum and the order was passed without there being any service of notice on the appellant.  A perusal of the record transmitted the District Forum would show that Ex.A7 was got issued by the respondent was served on the appellant.  The appellant contends that service of notice under Ex.A7 would not amount to service of notice in the complaint filed before the District Forum.  As the notice Ex.A7 was served , the appellant is expected to inform the postal authorities in case it had shifted its office from Eluru.  The appellant has not informed either the respondent or the postal authorities that its office has been shifted.  In fact the respondent has filed a petition before the District Forum stating that the appellant being very much present at the given address at Eluru has evaded to receive the notice sent by the District Forum.  Admittedly the appellant has established its office at Eluru and the contention that only during the period of construction of the building in question is not supported by any evidence that the branch office was subsequently shifted from Eluru to Hyderabad. 

The appellant has made a faint attempt to take us through the agreements Ex.A1, Ex.A2 and A4 to contend that the address mentioned therein is at Hyderabad and as such it cannot be inferred that there was a proper service of notice on the appellant.  We are unable to agree with the learned counsel for the appellant.  The appellant has not come forward with the plea that there was no office at all at Eluru nor has there been any contention that agreements Exs.A1, A2 and A4 were not executed at Eluru.  Viewed from any angle, the appellant has not cleared off the charge that in case it has shifted its office from Eluru, how the service of legal notice was effected on it as also that hardly there was any intention exhibited or expressed by the appellant that after completion of construction of the building, it would shift its branch office to Hyderabad.  The appellant having not performed its obligation of informing the respondent and the postal authorities that there was a proposal to shift its office from Eluru cannot contend that notice was not served on it.  It is also a point to be noted that the appellant has not stated as to how it has come to know the disposal of the case in the light its contention that there was no any office pertaining to it at Eluru within the jurisdiction of the District Forum that has passed the impugned order.  The point is answered against the appellant.

POINTS NO.2 AND 3  The respondent has filed the complaint complaining that there was seepage of water through the walls as a result of which the interior decoration maintained by the owners of the flat was damaged.  The respondent has got issued notice Ex.A7 that there was seepage of water to his flat and all the flat owners had passed a resolution requesting the appellant to rectify the defects of their respective flats.  In Ex.A7 it has been mentioned that  the resolution passed by the owners of the flats in the building constructed by the appellant was served on the appellant and the appellant had not taken any steps to rectify the defects pointed out by them.  As aforesaid, the notice Ex.A7 was also served on the appellant and even after receipt of the notice, the appellant has not given any reply nor attended to the problem pointed out in the notice.  The District Forum has rightly come to the conclusion that the appellant has committed deficiency in service by making construction of the flat no.305 whose walls has given way to seepage water.  In our opinion he District Forum has passed the order which does not warrant any interference in this appeal. 

In the result the appeal is dismissed confirming the order of the District Forum.  The appellant/opposite party directed to rectify seepage of water through walls and roof of Flat NO.305 in Sri Naina Deluxe Apartments, R.R.Pet, Eluru and on failure of the appellant to rectify the defects of the flat, the appellant shall pay an amount of Rs.30,000/- together with costs of Rs.1000/-.  Time for compliance two months.

                                                                        MEMBER

                                                                        MEMBER

                                                                      Dt.01.04.2010

Kmk*