Date of filing:4.4.2014.
Date of disposal:16.12.2014.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - II:
VIJAYAWADA, KRISHNA DISTRICT
Present: SMT N. TRIPURA SUNDARI, B. COM., B. L., PRESIDENT (FAC)
SRI S.SREERAM, B.COM., B.A., B.L., MEMBER
TUESDAY, THE 16th DAY OF DECEMBER, 2014.
C.C.No.98 of 2014
Between:
Smt Chode Kanaka Mahalakshmi, W/o Guntupalli Murali Mohan, Hindu, 40 years, Service, R/o D.No.45-1-15, Beside Old post Office, Gunadala, Vijayawada – 4. .… Complainant.
AND
1. Smt Panchakarla Nagamani, W/o Panchakarla Srinivasa Kasi Viswanadh, Hindu, 48 years, Business, R/o D.No.54-19-48/A, Nelson Mandela Park Road, Jayaprakash Nagar, Gunadala, Vijayawada – 4.
2. Gudivaka Ramanjaneyulu, S/o Raja Rao, Hindu, 40 years, Business, R/o D.No.4-63, Behind Co-operative Bank, Prasadampadu, Vijayawada (Rural).
3. Panchakarla Srinivasa Kasi Viswanadh, S/o Ranga Rao, Hindu, 52 years, Business, R/o D.No.54-19-48/A, Nelson Mandela Park Road, Jayaprakash Nagar, Gunadala, Vijayawada – 4.
4. Kanajam Venkata Satish, S/o Siva Rao, Hindu, 44 years, Business, R/o Flat No.SF-1, Janita Towers, Kottevari Veedhi, Ramavarappadu, Vijayawada (Rural).
5. The Executive Officer, Prasadamopadu GramaPanchayat, Prasadampadu, Vijayawada Rural, Vijayawada, Krishna District.
.… Opposite Parties.
This complaint coming on before the Forum for final hearing on 8.12.2014, in the presence of Sri P.Mohan Rao, Advocate for complainant and Sri S.V.Nagendra Prasad, Advocate for opposite parties 1 to 4 and opposite party No.5 remained absent and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble President (FAC) Smt N. Tripura Sundari)
This complaint is filed under Section 12 of the Consumer Protection Act, 1986.
The averments of the complaint are in brief:
1. The opposite parties 1 and 2 are land owners and opposite parties 3 and 4 are builders and they proposed to construct group house in the name and style of Sri Sai Sowdha situated at Prasadampadu of Vijayawada Rural. On knowing about the complainant’s intention to purchase a flat, opposite parties 3 and 4 approached the complainant and induced him to take a flat in their said project. The complainant being attracted towards promise with regard to quality, standards, specifications of using materials in construction the complainant agreed to purchase a flat bearing Flat No.SF-4 and she paid a sum of Rs.1,50,000/- towards advance on 12.3.2012 to opposite parties 3 and 4. Subsequently on 12.12.2012 the complainant paid the balance sale consideration through his financier and the opposite parties executed registered sale deed in favour of the complainant on the same day. At the time of execution of sale deed the opposite parties promised that they handing over the flat with all finishings within three months with one month grace period on or before 31.7.2013. The complainant requested the opposite parties several times to hand over possession of the flat with all finishings as she was unable to pay the rent besides EMIs. The opposite parties gave evasive reply every time. At this juncture the complainant was forced to occupy the flat in the semi finished condition in the month of 26.3.2014. As per the building plan the opposite parties obtained approval plan from opposite party No.5 for construction of 10 flats in ground, first and second floors only. But contrary to the same the opposite parties are constructed two additional floors i.e., 3rd and 4th floors unauthorizedly. At the time of agreement the opposite parties have shown that the plan was approved to ground + two floors but at the time of registration the opposite parties mentioned 3rd floor in the sale deed and the complainant questioned about the same, the opposite parties mislead the complainant that they will get permission to third floor also in due course before completion of the project. Besides the same the opposite parties are constructing a pent house in 4th floor by adjoining to the southern side flat in 3rd floor unauthorizedly. The action of the opposite parties amounts to violation and deviation of building plan and the complainant objected the same the opposite parties threatened the complainant with dire consequences and warned her. The complainant is worrying about so far construction of the complex due to the unauthorized construction of additional floors. As per the agreement the opposite parties have to hand over the flat within 4 months. But the opposite parties did not deliver the same till today. It is pertinent to note that after expiry of their agreement period it is the bounden duty of them to pay rent to the flat owners till the date of handing over the flats. The opposite parties have to pay Rs.6,000/- per month towards damage or rent from August, 2013 onwards till date of occupation i.e., 26.3.2014. The complainant approached the 5th opposite party several times and requested to remove the unauthorized construction as there is every damage to the super structure of the building. But they did not respond for the same. Therefore the opposite parties committed deficiency in service towards the complainant. Hence the complainant is constrained to file this complaint against the opposite parties praying the Forum to direct the opposite parties to remove unauthorized construction of 3rd and 4th floors, to pay Rs.36,000/- towards rent/damage at the rate of Rs.6,000/- per month from 1.8.2013 to 26.3.2014 towards inordinate delay in handing over the flat to the complainant, to pay damages of Rs.50,000/- for mental agony and additional charges of Rs.50,000/- for inconvenience caused by the 5th opposite party and to pay costs.
2. The Version of opposite party No.3 filed along with adoption memo of opposite parties 1, 2 and 4.
The opposite parties denied all the allegations of the complaint and submitted that the complainant approached the opposite parties 3 and 4 and expressed her intention to purchase the flat No.SF-4 for a valuable consideration for the semi finished flat and paid an amount of Rs.50,000/- as advance and after receiving balance sale consideration the opposite parties executed a registered sale deed on the same day and deliver the possession to the complainant in a semi finished condition. The complainant stated that she got loan for the flat for the purpose of purchase of semi finished flat as well as the other finishings and accordingly she obtained an agreement of sale for the sale consideration of semi finished flat and for finishings and handed over the flat. The opposite parties 3 and 4 completed all the finishings as per the agreement executed by the opposite parties in favour of the complainant for the purpose of bank loan only. The complainant failed to pay the amount for the finishings made by the opposite parties and still she has to pay Rs.2,60,000/- to the opposite parties. The opposite parties constructed the group house as per the approved plan granted by the 5th opposite party duly authorized by the VGTM UDA. There is no deficiency in service on the part of the opposite party No.3 and prayed to dismiss the complaint with costs.
3. On behalf of the complainant she gave her affidavit and got marked Ex.A.1 to Ex.A.5 and on behalf of the opposite parties 1 to 4 Sri P.Srinivasa Kasi Viswanadh, 3rd opposite party filed his affidavit and filed four third party affidavits with plaint copy filed in the Civil Court by the complainant and got marked Ex.B.1.
4. Heard and perused.
5. Now the points that arise for consideration in this complaint are:
1. Whether there is any deficiency in service on the part of the opposite parties towards the complainant in not handing over the finished flat as agreed and in constructing unauthorized constructions of 3rd and 4th floors in the said group house?
2. If so is the complainant entitled for any relief?
3. To what relief the complainant is entitled?
POINTS 1 AND 2:-
6. On perusing the material on hand Ex.A.2 sale deed in favour of the complainant shows that the complainant paid an amount of Rs.7,05,000/- on 7.12.2012 by way of cheque No.34729 drawn on HDFC Bank and the flat was registered on 12.12.2012 in favour of the complainant and it was mentioned in the sale deed that as the sale consideration was received by the opposite parties and they handed over the flat SF-4 in unfinished condition to the complainant on the same day. So the allegation of the complainant that she paid advance amount of Rs.1,50,000/- and at the time of execution of the sale deed the opposite parties promised that they would hand over the flat with all finishing works within three months with one month grace period on or before 31.7.2013 and as the opposite parties did not finish remaining works of the flat of the complainant and the complainant was forced to occupy the flat in semi finished condition in the month of February, 2014 does not arise. Ex.A.3 shows that the opposite parties obtained permission for ground, first and second floors. But they deviated the plan and constructed ground, first, second and third floors in the said group house unauthorizedly. If there is any deviation in the said construction the complainant has to make a complaint to the VGTM UDA and the said Panchayathi Authorities at the time of construction. She already filed a suit in Civil Court for the same.
7. The opposite parties filed third party affidavits of one Kotte Ramesh, FF2 Flat Owner stating that the opposite parties completed the finishing works and the owners of the flat including the complainant occupied the same.
8. The complainant was failed to explain nature and particulars of works which were not finished. The opposite parties pointed out that the averments made by the complainant that she forced to occupy the flat on 26.3.2014 without completion of finishing works and the present complaint is filed on 4.4.2014 and it appears that the complainant is residing as on date of filing of the complaint itself. As per description of the complainantshe resides in Door No.45-1-15, beside Old Post Office, Gunadala, Vijyawada but not in Sri Sai Sowdha Group House, as such the pleadings of the complainant for the payments of damages, rents does not arise. The other allegation made by the complainant that she is forced to pay the instalments to the bank is no way concerned with the opposite parties since it is the bounden duty of the complainant to pay the instalments to the bank as per the contract. The payment of instalments to the bank even if she is residing in the flat purchased by her or any other rented house without occupying the flat. she cannot claim the rents from the opposite parties. The complainant had not filed any piece of paper to show that she obtained loan from the bank/financier and paying instalments. Hence the claim of the complainant is false and the finishing works and hand over the possession within time was made by the opposite parties and the said fact was revealed by the affidavits filed by the co-owners of the complainant in the same group house. The complainant with other flats owners namely K.Venkateswarlu and V.Siva Rama Krishna filed their respective complaints in CC97/2014 and CC.134/2014 in this Forum. They have also filed a suit jointly in OS.1153/2014 before the Hon’ble Second Additional Senior Civil Judge, Vijayawada for the similar pleadings against the opposite parties. We noted that as per Ex.A.2 after receiving the sale consideration the opposite parties executed the sale deed in favour of the complainant and delivered the possession of unfinished flat as agreed by the complainant. Therefore there is no deficiency in service on the part of the opposite parties towards the complainant and the complainant is not entitled for any relief as she prayed. The 5th opposite party is a proposed party and there is no claim against him.
POINT No.3:-
9. In the result, the complaint is dismissed without costs.
Dictated to the Stenographer K.Sivaram Prasad, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 16th day of December, 2014.
PRESIDENT(FAC) MEMBER
Appendix of evidence
Witnesses examined
For the complainant: For the opposite parties:
P.W.1 Smt Ch.Kanaka Mahalakshmi, D.W.1 P.Srinivasa Kasi Viswanadh,
Complainant, 3rd opposite party
(by affidavit) (by affidavit)
D.W.2 K.Ramesh,
Third party, (by affidavit)
D.W.3 N.Rama Krishna,
Third party, (by affidavit)
D.W.4 K.Jyotsna,
Third party, (by affidavit)
D.W.5 P.Ravi,
Third party, (by affidavit)
Documents marked
On behalf of the complainant:
Ex.A.1 08.03.2012 Photocopy of sale agreement.
Ex.A.2 12.12.2012 Photocopy of sale deed.
Ex.A.3 . . Photocopies of Applicant copy of challan for Rs.15,300/-, Miscellaneous receipt for Rs.25,824/-, Orders of Secretary
Prasadampadu Gramapanchayathi and plan.
Ex.A.4 24.01.2014 Office copy of legal notice.
Ex.A.5 . . Four postal acknowledgements.
On behalf of the opposite parties:
Ex.B.1 30.04.2014 Photocopy of cheque for Rs.2,39,438/-.
PRESIDENT(FAC)
