BEFORE THE ADDITIONAL BENCH OF A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No.464 OF 2006 AGAINST C.D.NO.462 OF 2002 DISTRICT CONSUMER FORUM-II, HYDERABAD
Between
M/s.Urmila Constructions and Developers
Rep. by its Managing Partner, R/o.HIG
Block No.3, Flat No.1, Baghlingampally,
Hyderabad. Appellant/Opp.party 1
A N D
1. Abdul Aziz, S/o.Abdul Rahman,
Aged about 46 years, Occ:Govt.Employee
R/o.H.No.10-5-391/163/A, Syed Nagar,
1st Lancer, Hyderabad.
2. General Manager (IG) (Formal party)
Government of India (Mint), Cherlapally,
Ranga Reddy.
3. The Authorised Signatory
Housing Development Finance Corporation Ltd,
HDFC House, H.No.3-6-310,
Hyderguda Road, Basheerbagh,
Hyderabad-500 029.
Respondents
(R3 is impleaded as per the orders of the
Hon’ble Commission made IA.No.234/2007
Dt.24-8-2009).
Counsel for the Appellant M/s.V.Gourisankara Rao
Counsel for the Respondents M/s.Gopi Rajesh Associates-R1
Mr.N.Chandradhar Rao-R3.
QUORUM: SMT M.SHREESHA, MEMBER
&
SRI K.SATYANAND, MEMBER
FRIDAY, THE TWENTY FIFTH DAY OF SEPTEMBER
TWO THOUSAND NINE
Oral Order: ( As per Sri K.Satyananad, Member)
***
This is an appeal filed by the opposite party against whom the District Forum passed an order imposing liability on the ground of deficiency in service.
The facts that led to filing this appeal are briefly as follows:
The complainant was an employee of Government Mint. He along with other co-employees formed into an association and they acquired plots in a collective effort. He purchased plot No.65 in S.No.190 admeasuring 200 sq. yds. under a registered sale deed after paying a total consideration of Rs.70,000/- from one P.Krishna veni represented by her G.P.A., These plot holders formed into an association by name, Mint Employees Housing Welfare Association, approached the opposite party to entrust the development work as constructing houses to its members. In pursuance thereof, they reached a memorandum of understanding between the Welfare Association for the benefit of the Members and Urmila Constructions, the first opposite party. As the complainant did not have the required funds, he raised a loan from HDFC bank for an amount of Rs.3 lakhs and odd. Subsequently the opposite party entered into a construction agreement with each of the members individually for construction of the house way back in the month of October, 1999. As per clause 3 of the said agreement, the opposite party was expected to complete the construction within 15 months from the date of the agreement and deliver possession. It is alleged that opposite party No.1 had taken an authorization to withdraw the loan amount from HDFC and accordingly the said amount was drawn by the opposite party No.1 but as on June, 2002, the construction was completed only by 50% as borne out from the photographs relied upon. As a matter of fact, the complainant was marked to pay the amounts as per the stage of the construction. The bank had released the loan amount according to the stage of construction as per clause 4 of the construction agreement and the complainant had to pay the amount in 5 instalments as per the stage of the construction. But as on the date of the complaint, he alleged the construction was completed only up to the stage of foundation and column upto slab level but the opposite party had obtained the entire amount of Rs.3,40,000/- as the bank released the amounts in collusion with the opposite party. Though the construction was not complete, the bank proceeded to initiate the repayment schedule at the rate of Rs.2,500/- per month from the complainant with effect from November, 1999. In fact the house was marked to be completed by the end of December, 2000 but it was not so completed. As such the complainant was obliged to live in a rented house paying rent at the rate of Rs.3,000/- per month. This according to the complainant had caused financial loss to him. On account of these deficiencies, the complainant claimed to have got issued a legal notice dated 10-6-2002 demanding the opposite party to complete the construction work and hand over possession. Opposite party No.1 received the notice but did not give any reply, as such the complainant filed the present complaint praying for a direction to the opposite party to complete the construction work and also pay Rs.50,000/- towards mental agony and rent besides costs.
Opposite party No.1 resisted the complaint by filing a counter chiefly contending that an amount of Rs.50,000/- was outstanding due to it from the complainant and in fact the total amount that was agreed to be paid was Rs.4 lakhs. Instead of seeing that the balance amount of Rs.50,000/- was paid to it, the complainant himself got the amount. It is also alleged that the complainant was also due an amount of Rs.26,400/- towards additional constructions that is laying of balconies for which the opposite party obliged him to take up the said work. Thus the opposite party mainly harped upon the deficiencies and inadequacies on the part of the complainant himself and on that ground sought that the complaint was liable to be dismissed.
In support of his case, the complainant relied upon Exs.A1 to A12 as also his own affidavit. On the other hand, opposite party No.1 did not file any affidavit, yet relied upon Ex.B1, document relating to extra works which is not listed in the appendix of evidence but acknowledged in the text of the order. During the course of enquiry before the District Forum, the Forum appointed an Advocate Commissioner. His report and other supportive documents are marked as Exs.X1 to X9.
On a consideration of the evidence adduced on either side, the Forum addressed two issues. One pertaining to the deficiency in service and the other as to the reliefs’ that the complainant might be entitled to. It found that there was deficiency in service in as much as the opposite party No.1 did not adduce any evidence to show proof of completion of the work in terms of Ex.A10, the memorandum of understanding, and based on that finding, the Forum gave relief by way of direction to complete the construction as per Ex.A10 and also pay compensation of Rs.20,000/- and costs of Rs.1,000/-.
Aggrieved by the said order, the opposite party filed the present appeal alleging various grounds especially that the District Forum erred in granting relief without even seeing the agreement between the appellant and respondent No.1 which is a crucial document. It also committed illegality by relying upon Ex.A10, MOU, as it was a document merely between the appellant and the association but not with respondent No.1, complainant, the Forum failed to consider that the respondent did not pay the amount as per the construction work completed. The Forum failed to consider that the appellant completed the work upto 75% even according to the Commissioner’s report. The Forum failed to see that nearly more than Rs.1,00,000/- apart from the value of additional work was outstanding due from the complainant and it ought not to have ignored the reciprocal obligation on the part of the complainant before granting any relief.
The appellant filed a petition to implead the HDFC bank which granted the loan and disbursed the loan stating that the bank would be in a better position to throw light on the fact as to which person received the disbursement of the loan in instalments. The said petition was allowed and the HDFC bank was impleaded as appellant No.3. They filed a counter categorically stating that out of the total loan amount of Rs.3,40,000/-, an amount of Rs.2,90,000/- was disbursed to the appellant and the remaining balance of Rs.50,000/- was disbursed to the complainant himself i.e. the borrower. They however did not adduce any further evidence.
Heard both sides. The points that arise for consideration are
<!--[if !supportLists]-->1) <!--[endif]-->Whether the complainant could successfully prove any deficiency in service?
<!--[if !supportLists]-->2) <!--[endif]-->Whether the appellant could prove any deficiency in complying with the reciprocal obligation of the complainant?
<!--[if !supportLists]-->3) <!--[endif]-->Whether there are any good grounds to interfere with the order of the District Forum?
<!--[if !supportLists]-->4) <!--[endif]-->To what relief?
It is the case of the complainant that though he paid the entire consideration in the deal, the opposite party left the work incomplete and thereby rendered himself guilty of deficiency in service. He relied upon Exs.A1 to A12 in this regard. As a matter of fact what is important in identifying the existence or otherwise of deficiency is Ex.A10 which is a source document for him to agitate against deficiency in service. Apart from that the Commissioner also contributed material to assess as to the truth or otherwise of the contentions on either side. In other words the observations of the Commissioner are of immense help in determining whether the work was left unfinished or incomplete. The moment there is material to show that the work agreed upon was kept unfinished that itself marks deficiency. In the present case the memorandum of understanding marked as Exs.A10 is sought to be assailed by the appellant stating that it was not a document between the complainant on one hand and the opposite party No.1 on the other and as such no strength can be drawn by the complainant from such a document. This is totally untenable for the reason that the association is representative of the interest of its members. This is a group housing venture and naturally the association assumed definitely any amount of authenticity in playing a role of mouth piece of its members. Apart from Ex.A10, we have more reliable record found from the Commissioner’s report, who categorically observed some deficiencies. So even if we set aside Ex.A10, yet we have got the material to judge whether the work was completely finished as contended by the appellant or not. As could be seen from the Commissioner’s report, marked as Ex.X1, there are several deficiencies as pointed out by the Commissioner. The observations of the Commissioner remained unassailed as neither party filed any objections. So it is very safe to rely upon the observations of the Commissioner in the matter of identifying whether there were any shortfalls in the execution of the work. The Commissioner mentioned in Ex.X1 several lapses as follows:
<!--[if !supportLists]-->1. <!--[endif]-->The main door frame and door are not fixed to the above said property.
<!--[if !supportLists]-->2. <!--[endif]-->There are a total of six windows provision is there and though the window frames are placed, no windows are fixed to the frames
<!--[if !supportLists]-->3. <!--[endif]-->There is a provision for six ventilators and out of them three ventilators are fixed and the other three are kept open
<!--[if !supportLists]-->4. <!--[endif]-->There is also a provision for exhaust fan in the bathroom in a circle shape
<!--[if !supportLists]-->5. <!--[endif]-->The other Four rooms (i.e. two bed rooms, kitchen and bathroom) only single coat plastering is done.
<!--[if !supportLists]-->6. <!--[endif]-->In the entire flat elastic pipe line is placed and no wiring is done and no switch boards are fixed
<!--[if !supportLists]-->7. <!--[endif]-->In the kitchen no platform is constructed
<!--[if !supportLists]-->8. <!--[endif]-->In the entire flat plumber work is not done and no provision for drainage facility is done
<!--[if !supportLists]-->9. <!--[endif]-->The front portion of the outer wall plastering is done and the other three sides only single coat plastering is done
<!--[if !supportLists]-->10. <!--[endif]-->Stair case is constructed, but plastering to the stair case and near the landing area of the stair case is not done
We have no hesitation to accept as true, the observations made by the Commissioner. If we go by these observations, it is crystal clear that there is definitely an amount of deficiency in service on the part of the opposite party No.1/appellant.
It was all along the defense of the opposite party No.1 that he could not complete the work as the complainant fell in arrears. It is only in that regard that he strived to get the HDFC bank impleaded. The HDFC bank came up with a counter revealing all the facts in the matter of disbursement of loan. It categorically stated that as much as Rs.2,90,000/- was disbursed to the appellant while the last instalment of Rs.50,000/- representing the balance in the loan sum was disbursed to the complainant himself. So was the defense of the opposite party. After the bank had come on record as respondent No.3, the complainant did not choose to controvert the version of R3 by filing any additional evidence after taking leave of the court. Even otherwise, it is incumbent upon the complainant to show the record of payments. As a matter of fact, even the payment to an extent of Rs.2,90,000/- was proved not by the receipts tendered by the complainant as no such receipts appeared to have been tendered but on the basis of the admissions on the part of the appellant in his counter, it was proved. So there is absolutely no evidence to show that even there was a discharge of reciprocal obligation on the part of the complainant. Any order that should be passed must evenly balance the competing interests of the parties. But the District Forum did not take into account these rival contentions in the matter of deciding the arrears of amount outstanding due from the complainant to the appellant. In this view, we feel that the relief granted by the District Forum cannot be kept as it is, it is required to be modified so as to do justice to both sides. In view of the finding supra, we are of the opinion that the appeal has to be allowed in order to bring about a modification in the relief granted by the District Forum to the complainant though the substratum of the relief granted to the complainant cannot be altogether set at naught, as the appellant could not successfully show that he was entitled to be totally exonerated from the charge of deficiency in service.
Accordingly the appeal is allowed modifying the order of the District Forum in the following terms:
<!--[if !supportLists]-->a) <!--[endif]-->The complainant shall pay an amount of Rs.50,000/- with interest at 6% p.a. after the appellant completes the works stated in clause (b) below within three months, from the date of this order
<!--[if !supportLists]-->b) <!--[endif]-->Within the same period of three months indicated in clause (a) the appellant shall swiftly commence and rectify the following defects in the construction so as to make the construction complete.
<!--[if !supportLists]-->1. <!--[endif]-->The main door frame and door have to be fixed to the above said property.
<!--[if !supportLists]-->2. <!--[endif]-->There are a total of six windows provision is there and though the window frame are placed, no windows are fixed to the frames, hence window frames have to be fixed.
<!--[if !supportLists]-->3. <!--[endif]-->There is a provision for six ventilators and out of them three ventilators are fixed and the other three are kept open and for these three ventilators have to be fixed.
<!--[if !supportLists]-->4. <!--[endif]-->There is also a provision for exhaust fan in the bathroom in a circle shape. Exhaust fans have to be fitted in.
<!--[if !supportLists]-->5. <!--[endif]-->The other Four rooms (i.e. two bed rooms, kitchen and bathroom) only single coat plastering is done and hence smooth finish has to be done.
<!--[if !supportLists]-->6. <!--[endif]-->In the entire flat elastic pipe line is placed and no wiring is done and no switch boards are fixed and hence wiring and switch boards are to be fixed.
<!--[if !supportLists]-->7. <!--[endif]-->In the kitchen no platform is constructed, hence the same has to be constructed.
<!--[if !supportLists]-->8. <!--[endif]-->In the entire flat plumber work is not done and no provision for drainage facility is done, hence plumber work and provision for drainage facility has to be done.
<!--[if !supportLists]-->9. <!--[endif]-->The front portion of the outer wall plastering is done and the other three sides only single coat plastering is done hence for the other sides double coat plastering has to be done.
<!--[if !supportLists]-->10. <!--[endif]-->Stair case is constructed, but plastering to the stair case and near the landing area of the stair case is not done and hence plastering to the stair case and near the landing area of the stair case are to be done.
<!--[if !supportLists]-->c) <!--[endif]-->However, the order of the District Forum requiring the appellant to pay Rs.20,000/- by way of compensation and Rs.1,000/- as costs is hereby set aside.
In the circumstances of the case, we do not feel it a fit case to award costs to either of the parties.
Sd/-
MEMBER.
Sd/-
MEMBER
JM Dt.25-9-2009
