BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. OF 2008 AGAINST C.C.NO.58 OF 2006 DISTRICT CONSUMER FORUM RANGA REDDY
Between
1. M/s Sree Mydhili Engineering
Consultants Private Limited
Rep. by its Managing Director
Sri S.Sree Ramachandra Rao
S/o late Vishwanadham aged 60 yrs
Occ: Business R/o 6-1 Chandanagar
Serlingampally, R.R.District
2. Sri Lakshmi Narayana S/o late Vishwanadham
aged 56 years, R/o 6-1, Chandanagar
Serilingampally, R.R.Dist.
3. Sri M.N.Sastry S/o Sri Rama Krishna
aged about 70 years, Occ: Retired Employee
R/o Flat NO.206, Sri Sainath Apts
HUDA Trade Centre, Nallagandla
Serilingampally, R.R.Dist.
Appellants/opposite parties
A N D
Sri K.G.P.Rao S/o late K.Ramaiah
Aged 75 years, R/o Flat No.205
Second Floor, Sri Sainadh Apartments
HUDA Trade Centre, R.R.Town,
Lingampally Municipality
Ranga Reddy District Respondent/complainant
OF 2008 AGAINST E.A.NO.53 OF 2008 IN C.C.NO.58 OF 2006
Between
1. M/s Sree Mydhili Engineering
Consultants Private Limited
Rep. by its Managing Director
Sri S.Sree Ramachandra Rao
S/o late Vishwanadham aged 60 yrs
Occ: Business R/o 6-1 Chandanagar
Serlingampally, R.R.District
2. Sri Lakshmi Narayana S/o late Vishwanadham
aged 56 years, R/o 6-1, Chandanagar
Serilingampally, R.R.Dist.
3. Sri M.N.Sastry S/o Sri Rama Krishna
aged about 70 years, Occ: Retired Employee
R/o Flat NO.206, Sri Sainath Apts
HUDA Trade Centre, Nallagandla
Serilingampally, R.R.Dist.
Appellants/opposite parties
A N D
Sri K.G.P.Rao S/o late K.Ramaiah
Aged 75 years, R/o Flat No.205
Second Floor, Sri Sainadh Apartments
HUDA Trade Centre, R.R.Town,
Lingampally Municipality
Ranga Reddy District
Respondent/complainant
Counsel for the Appellant Sri CMR Velu
Counsel for the Respondent Sri Nisaruddin Ahmed Jeddy
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
SMT M.SHREESHA, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
WEDNESDAY THE TWENTY NINETH DAY OF DECEMBER
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. The opposite parties are the appellants. The appeal no. 423 of 2008 is directed against the order in C.C.No. 58 of 2006 whereas the appeal no. 1614 of 2008 is filed against the order of issuing arrest warrant dated 5-12-2008 in E.A.No.53 of 2008.
2. The factual matrix of the case is that the respondent entered into, with the appellants no.1 and 2 who are the builders, an agreement of sale dated 30th June,2006 for purchase of, and agreement of construction dated 30th June,2006 for construction of flat bearing Flat No.205 consisting of 930 sq.yards on the second floor of Sri Sainath Apartments for a sale consideration of Rs.2,35,000/- and construction expenses of Rs.1,45,000/-. The first appellant handed over the constructed flat on 25th August, 2004 to the respondent. After two years of taking possession of the flat, the respondent has got issued notice on 19th July,2006 to the appellants no.1 and 2 and the purchaser of the flat no.206, the appellant no.3 stating that he had chosen to purchase Flat No.205, for it is bestowed with less disturbance and more privacy as there was no entrance to the flat no.206 on its eastern side. Against what is shown in the Brochure and specifications of the Construction Plan, the appellants no.1 and 2 erected door on eastern side of the flat no.206 whereby the margin area between the flats no.205 and 206 decreased over less than five feet and gave scope to the possibility of inmates of the flats getting collided whenever the entrance door of both flats are simultaneously opened as also that the inmates would peep into the flat no.205 disturbing privacy of the respondent’s family members. The respondent got issued notice in regard to the appellants providing defective flooring and water supply pipeline narrow car parking and using inferior quality of wood for erecting doors and windows against what is said in brochure of erecting CT wood frames with flush shutters for doors and glazed shutters for windows to the Flat No.205.
3. The appellants no.1 and 2 contested the claim that the respondent had taken possession of the flat no.205 on 25th August, 2004 without any protest and that the appellant no.3 purchased the flat no.206 through registered sale deed dated 15-12-2003 six months prior to the purchase of the flat by the respondent. It was submitted that the respondent had knowledge of the existence of entrance to the flat no.206 on its eastern side at the time of verification of the physical features of the flat no.205, payment of installments and at the time of execution of the sale deed. Further, it was submitted that after execution of sale deed and effecting delivery of possession of the flat, the first and second appellants had no concern with the subsequent disputes of the flat owners. At the time of construction of the flat no.206 and at the request of the appellant no.3 the entrance door of flat no.206 was shifted to the eastern side which was very much in the knowledge of the respondent and that of the 35 flats, 20 flats are constructed with their entrances facing each other. The respondent had not paid the entire sale consideration and they had executed the sale deed on the request of the respondent that he would pay the balance amount after performing marriage of his daughter. It was submitted that the specification of the floor plan in the brochure is tentative and can be modified by effecting minor changes at the request of the purchasers.
4. The third appellant resisted the claim on the premise that he has purchased the flat no.206 from the appellants no.1 and 2 on 15-12-2003 and the respondent purchased the flat no.205 on 30-06-2004 i.e., six months prior to the purchase of the flat by the respondent and at the time of the respondent purchasing the flat no.205, the entrance to the flat no.206 was already in existence as it was erected at the request of the appellant at the time of the construction of the flat no.206 which was to the knowledge of the respondent. It was submitted that the reason to shift the entrance of the flat no.206 was vastu and ventilation and that twenty other flats were designed with the entrances facing each other as the appellants no.1 and 2 effected minor changes to the flats at the request of the purchasers who include the respondent and the decrease in the width of the margin between the flats is due to erection of the additional iron gate at the entrance of the flat no.205 by the respondent.
5. The respondent had filed his affidavit and the documents, ExA1 to A11. On behalf of the respondent’s no.1 and 2, the respondent no.2 has filed his affidavit. The respondent no.3 has filed his affidavit in support of his case. ExB1 to B6 had been marked.
6. The District Forum allowed the complaint on the premise that the appellants had deviated from the contents of the plan in regard to shifting of the entrance of the flat no. 206 and directed the appellants no.1 to 3 to remove the entrance of the flat no.206 and obtain certificate to the effect that the construction of flat no.205 is as per the specifications and also directed the appellants no.1 and 2 to provide amenities in accordance in the terms of the brochure.
7. The appellants challenged the order of the District Forum on the premise that the respondent had purchased the flat no.205 with knowledge that on the eastern side, there was in existence the entrance to the flat no.206 and that the respondent had accepted the possession of the flat no.25 without raising any objection and that the respondent had deviated from the terms of proposal by shifting the entrance to the flat no.205 from north side to the west side and he had got effected several other changes to the flat no.205.
8. The points for consideration are:
1.Whether the appellants no.1 and 2 rendered deficiency in service in regard to the sale and construction of the flat no.205?
2.To what relief?
9. POINT NO1: The respondent purchased the 930 sq.yards of land from the first and second appellants through registered sale deed dated 30-06-2004 for a consideration of Rs.Rs.2,35,000/- and on the same day entered in to agreement for construction with them for construction of flat no.205 on the second floor of Sri Sainath Apartments for consideration of Rs.1,45,000/- The appellants no.1 and 2 constructed the flat and handed over its possession on 25-08-2004 to the respondent which is evident by the letter dated 25-08-2004 and admitted by both the parties.
10. The appellant no.3 had purchased flat no.206 from the appellants no.1 and 2 through the registered sale deed dated 15-12-2003. Evidently, the appellant no.3 had purchased the flat no.206 prior to the respondent purchasing the flat no.205. In the sale deed executed in favour of the appellant no.3, the entrance to the flat no.206 is shown towards the eastern side. The sale deed establishes the contention of the appellants that the flat no.206 was constructed as on 15-12-2003 and it has the entrance on the eastern side. The respondent has purchased the flat no.205 on 30-06-2004 and the appellants no.1 and 2 constructed the flat and delivered possession to the respondent by 25-08-2004, within three months there from. The respondent has not denied that he had verified the physical features of the flat no.206 at the time of its purchase as also at the time of execution of the sale deed and on the occasion of the delivery of possession of the flat to him by the appellants no.1 and 2. The respondent, thus had knowledge of the existence of the entrance to the flat no.206 even before he got executed the sale deed and construction agreement. The respondent, as such is held to be conscious of the entrance to the flat no.206 on its eastern side even in the back ground of the contents of the brochure which the respondent has attempted to see through the prism of deviation of terms thereof.
11. On the insistence of the respondent, the appellants had filed the plan before the District Forum which shows that the entrance to the flats no.205 and 206 are on the northern side. The respondent had got shifted the entrance of the flat no.205 from northern side to the western side and got the entrance shown on the western side in the sale deed. The respondent, conveniently had forgotten this deviation from the terms of the brochure and attempts to focus on the shifting of the entrance of the flat no.206 from its northern side to the eastern side which by any standard can be said to be permissible on two counts, he had the knowledge of the entrance to the flat no.206 its eastern side prior to his purchasing the flat no.205 and secondly, the respondent had deviated the terms of the plan by getting shifted the entrance of his flat to the western side quite opposite to the entrance of the entrance of the flat no.206.
12. The respondent had to elect between the two choices before proceeding to purchase the flat no.205 with its entrance on northern side and with the shifting of the entrance of the flat no.206 in modification of the terms of the sanction plan. The "doctrine of election" is a branch of "rule of estoppel", in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The respondent had chosen to proceed to purchase the flat no.205 with its entrance on the northern side in terms of the sanction plan and with the entrance of the flat no.206 on its eastern side. By the application of the doctrine of election, the respondent cannot raise objection as to the entrance of the flat no.206 to the western side of flat no.205.
13. The respondent has sought for modification of the plan in regard to his flat and got shifted the entrance from northern side to the western side. The respondent has violated the terms of the sanction plan and without getting a revised plan, he had proceeded to effect changes to the flat no.205. The respondent had purchased the flat with his eyes open to the fact of the entrance of the flat no.206 on the western side of the flat no.205 and he had not raised any objection either in regard to the fact of the shifting of the entrance of flat no.206 on its eastern side or in regard to the discrepancy in material used for erecting the door and windows and non-supply of Manjeera water to the building etc., for about two years after taking possession of the flat no.205. In the circumstances, it is relevant to apply the doctrine of estoppel to the facts of the case which negate any of the reliefs the respondent sought for.
14. Lord Coke said “An estoppel is where a man is concluded is by his own act or acceptance to say the truth”. In Judicial Dictionary Fourth Edition at page 943 describes the origin of the word estoppels “Estoppe” commeth of a French word “esoupe”, from whence the English word stopped and it is called an estoppel, or conclusion because a man’s own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth and Litleton’s case proves this description . Estoppel is based on the maxim, allegans contrarir non est audiendus ( a party is not to be heard to allege the contrary) and is that species of presumption juries et de jure-( absolute or conclusive or rebuttable presumption). The respondent had not raised any objection at the time of execution of the sale deed in his favour, in regard to the entrance of flat no.206 on the western side of the flat no.205 nor did he raise any objection thereafter in regard to any of the allegations of defect in the material used for erecting the door and windows of the flat no.205 or relating to any other aspects which he fashioned as deficiency in service on the part of the appellants no.1 and 2.
15. The learned counsel for the respondent had relied upon the decisions of 2009(2) CPR 350 (NC) in LIFE INSURANCE CORPORATION OF INDIA AND ORS. v. SMT.BIMLA DEVI in which it was held that:
If any agency or organization makes a public pronouncement through a Brochure to attract the people or join or be a beneficiary of a given scheme, in such a case, the person/organization who has issued a brochure cannot unilaterally withdraw from the terms published by him or change the terms as they appear in this Brochure, to the detriment of other part..
16. In I (2007) CPJ 234 (NC) in KIRAN KASHINATH WAGH v. SUNIL NIVRUTTI SHIMPI, in which it was held that:
Where the flat was not constructed as per sanctioned plan and Septic tank was shown on eastern/rear side, but builder actually constructed same on front side-Deficiency of service was held proved-OP was directed to construct septic tank as per map.
17. In I (2004) CPJ 107 (NC) IN ATUL VIHAR KALYAN SAMITI v. DUBEY CONSTRUCTIONS CO. & ORS, it was held that failure to provide service as per agreement, brochure, amounts to deficiency in service on the part of the builder.
18. In 2008(3) CPR 5 (NC) in A.P.HOUSING BOARD AND ANOTHER V. K.SRI HARI REDDY & ORS., it was held that:
If there is a specific statement made by builder that price would be as prescribed in brochure or other literature, that is binding to builder and if that is not followed it would be deficiency in service.
19. In II (1996) CPJ 152 (NC) in LT.COL.K.P.VIJAYA KUMAR (RETD.) V. M/S.SKY TOP BUILDERS & ANR. in which it was held that:
Not completing the flats to the promised design and specification and not providing facilities which were part of the agreement contributes deficiency in service.
20. In (2007) 3 Comp LJ 58 (SC) in BANGALORE DEVELOPMENT AUTHORITY V. SYNDICATE BANK in which the Supreme Court had laid down guidelines to Housing Development Authorities. It further held that if the allotment relates to the flat/house and the construction is incomplete or not in accordance with the agreed specifications, when it is delivered, the allottee will be entitled to compensation equivalent to the cost of completing the building or rectifying the defects. These decisions have no application to the facts of the case. The respondent had not established any deficiency in service on the part of the appellants. The appeal deserves to be allowed.
21. In the result, the appeal F.A.No.423/2008 is allowed and the order of the District Forum is set aside. Consequently, the complaint is dismissed. As a corollary, the appeal No.1614/2008 is also allowed.
Sd/-
PRESIDENT
Sd/-
MEMBER.
Sd/-
MEMBER
Dt.29.12.2010
JM/KMK*
