BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A. 1799/2007 against C.C. 504/2006, Dist. Forum-II, Hyderabad.
Between:
1. M/s. Sri Suryodaya Constructions
3-5-1015& 1016, Himayathnagar
Hyderabad.
Rep. by its partner K. Suresh Kumar
2. K. Suresh Kumar
S/o. Rajendra Kumar
R/o. 15-53, SKR Nagar,
P&T Colony, Dilsukhnagar
Hyderabad.
3. V. Srinu, S/o. Shekaraiah
R/o. 3-3-400, Chappal Bazar
Hyderabad. *** Appellants/
Ops 1 to 3.
And
Suryodaya Heavens Flat Owners Welfare Association
Rep. by its President
K. Chenna Reddy, S/o. K. Nagi Reddy
Age: 53 years, Flat No. 402,
16-11-405/14& 17, SBI Officers Colony
Moosarambagh, Hyderabad. *** Respondent/
Complainant
Counsel for the Appellants: M/s. P. Sharan Kumar.
Counsel for the Respondent: Mr. M. Ramgopal Reddy
CORAM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
&
SMT.M.SHREESHA, LADY MEMBER.
MONDAY, THIS THE TWENTY EIGHT DAY OF JUNE TWO THOUSAND TEN
ORAL ORDER: (Per Hon’ble Sri Justice D.Appa Rao, President.)
***
1) This is an appeal preferred by the opposite party –builder, against the order of the Dist. Forum directing it to get the leakages in all the flats arrested, rectify the kitchen sink, corner leakages, provide standard company lift with carrying capacity of 6 persons besides compensation of Rs. 50,000/- and costs.
2) The case of the complainant in brief is that the appellants/opposite parties constructed ‘Sri Suryodaya Heavens’ apartments 20 in number at SBI Officers’ colony, Moosarambagh, Hyderabad. An agreement was entered into when they were in semi-finished condition and that the appellants promised to hand over the possession as per the specifications mentioned in the brochure as well as plan. However, when possession was delivered they found several deficiencies viz,, leakages in all flats, and in kitchen sinks, unfinished civil works like plastering , electrical works, and substandard lift etc. Some of the problems were rectified by the complainants by spending their own amount. Despite repeated representations and also legal notice, the appellants did not rectify and therefore they prayed that the pending works and deficiencies be attended to besides payment of compensation of Rs. 10 lakhs together interest and costs.
3) The appellant builder resisted the case while denying that there were any deficiencies in the construction as mentioned in the complaint, he alleged that the complaint was filed after a lapse of 2-1/2 years with a malafide and dis-honest intention to extract money. Once possession was delivered it was the duty of the complainant to maintain. In fact the complainant association did not maintain the complex properly. For their fault he should not be penalized. All the flat owners have been enjoying their respective flats having occupied the same, the contention that there are deficiencies in construction and the lift is not working properly is false. In fact the lift has been working. The allegation that it is sub-standard is false. The commissioner after visiting the apartments noted that the lift was working properly and consequently I.A. No. 439/2006 for providing new lift was dismissed. The Dist. Forum has no jurisdiction. Therefore he prayed for dismissal of the complaint with costs.
4) The complainant in proof of its case filed the affidavit evidence of one of the flat owners and got Ex. A1 to A26 marked. Opposite Party No. 2 filed his affidavit evidence but did not choose to file any documents.
5) The Dist. Forum after considering the evidence placed on record and in the light of the report of the commissioner opined that there were leakages in the flats besides kitchen sinks therefore the opposite party was directed to rectify the same. It was also directed to install a new ISI mark lift carrying 6 persons besides compensation of Rs. 50,000/-.
6) Aggrieved by the said decision, appellants preferred the appeal contending that the Dist. Forum did not appreciate the facts or law in correct perspective. It ought to have disallowed the claims as the complaint was made 2-1/2 years after handing over the possession. It was a belated claim to harass them. No notice was issued at the time when the commissioner visited the premises and therefore prayed that the appeal be allowed, consequently dismiss the complaint.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that the appellant is a builder with whom the members of the complainant association, entered into development agreement. Having purchased the property from the owners, in one of the agreements of sale Ex. A4 executed between the parties in the schedule appended to it, it has been categorically stated that it is a semi-finished flat. While the agreement Ex. A4 is dt. 21. 9. 2004 which culminated into sale deed vide Ex. A5 dt. 9.2.2005 obviously by that time the flat was completed, and possession was delivered. In clause-9 of the sale deed there was mention “that the purchaser shall pay the monthly maintenance charges to the body of the welfare association of owners of the residential flat and to look after the up-keep maintenance and security of the building.” The complainant alleges that several meetings were held in order to get the various pending works completed. They were advised not to take possession of the flats till major works are completed. The minutes of the meeting are marked as Ex. A6 dt. 28.3.2004, Ex. A7 dt. 10.42005 and Ex. A8 dt. 26.9.2005. Earlier several deficiencies were pointed out and finally in the meeting held on 26. 9. 2005 the builder had agreed to complete the following works by 30.10.2005. They are:
1) Lift – V3F to be installed and repaired in all aspects
including gates to the satisfaction of association.
2) 2nd water bore well starter switch to be replaced.
3) Water bill arrears of Rs. 1,360/- to be paid immediately.
4) Fencing to generator with grill and battery
5) Drain out pipes in all corridors to be set with rectification.
6) Leakages in all flats to be corrected.
7) Electricity meter – change of names to be done immediately.
8) TV points in all flats to be checked.
9) Intercom – to fix the device taken and arrears to be paid.
10) Letter boxes and name board of flat owners to be made and fixed.
11) Kitchen sinks corners leakage to be rectified.
12) Site – original documents and all original bills of generator,
Transformer, lift, bore wells, intercom etc. to be handed over to the
association.
Main electrical points in both sides of the lift to be secured.
Main doors in all flats to be set with carpenter.
Overhead tank leakage.
Ventilation to be provided to the lift control room.
Since the builder did not attend to the deficiencies the members of the association got them rectified by spending their own amount. This was not disputed by the appellant in his counter affidavit.
9) At the out-set, we may state that in the brochure marked as Ex. A14 the appellant builder agreed to provide standard company lift of 6 passenger capacity. Equally it agreed to provide intercom facility between the main gate and in all flats, standby generator to provide lift and two electric points in each flat.
10) The commissioner visited the complex and observed that as far as lift is concerned “lift is not carrying even 5 persons and the builder not provided standard quality as mentioned in the brochure. The lift non-consisting of fan.”
When the complainant filed I.A. 439/2006 alleging that the lift was not functioning, a commissioner was appointed who in turn reported that the lift was working. There upon the Dist. Forum by its order Dt. 30.8.2006 opined that “as the lift is working at present, there is no need to give direction to the opposite parties to rectify and bring back to working condition and dismissed the I.A.” The appellant now alleges that in the light of observation, there is no need to install a new lift. As we have earlier pointed out in the very brochure there was a mention that he would provide standard company lift of 6 passenger capacity. The Commissioner reported that the lift will not carry even five persons. He also mentioned that it is not of a standard quality. No objection was filed to the said statement. Therefore he has to necessarily provide a lift as promised by him. The report of the commissioner vis-à-vis claims made by the complainant besides the very representation of the builder that he would attend to the deficiencies as stated in para 8 of the order, we are of the opinion that the Dist. Forum was justified in ordering the appellant to rectify the above defects.
11) The learned counsel for the appellant contended that the building was handed over in January, 2004 and the complaint was filed on 20. 6. 2006 and therefore barred by limitation. We may state that the period of limitation cannot be reckoned from the date of delivery of possession but from the date of leakages and other defects surfaced. The cause of action would commence from the date of deficiencies and defects surfaced and at any rate not from the date of delivery of possession. These would come to know only after considerable period. Therefore the contention that it was barred by limitation does not hold good. Moreover, when the appellant had undertaken to rectify the defects by 30.10.2005, it is natural for the complainant to wait till such time. When he was not coming forward to rectify the defects the complainant had filed the complaint.
12) The learned counsel for the appellant contended that earlier E.A. No. 33/2008 in C.D. 1034/2006 filed by one of the flat owners was dismissed and therefore this complaint was not maintainable. A perusal of the order discloses that the said application was dismissed for default. It is not known as to the nature of the complaint filed in C.C. No. 1034/2006. At any rate it pertains to flat No. 504 only. Therefore, we do not see any nexus between the dismissals of E.A. No. 33/2008 in C.D. No. 1034/2006 with that of the complaint filed herein. The appellant had deposited compensation and costs of Rs. 51,000/- that was awarded by the Dist. Forum, and complied the said order. The Dist. Forum after considering the report of the commissioner directed him to attend to the various defects/deficiencies, correct the leakages and provide standard lift carrying capacity of 6 persons. The complex consists of 20 flats and compensation that was awarded is Rs. 50,000/-. It would come to Rs. 2,500/- for each flat. For the inconvenience caused by the appellant, the compensation that was awarded cannot be said to be high. It is modest and reasonable.
13) In the result the appeal is dismissed confirming the order of the Dist. Forum. Appellant is directed to comply the order by rectifying the defects within three months. The complainant is also entitled to costs of Rs. 5,000/- in the appeal. Time for compliance three months.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 28/06/2010.
*pnr
