BEFORE THE DISTRICT CONSUMER FORUM : WARANGALPresent: Sri D. Chiranjeevi Babu,
President.
Sri N.J. Mohan Rao,
Member
And
Smt. V.J. Praveena,
Member.
Thursday, the 8th day of May, 2008.
CONSUMER DISPUTE NO. 47/1996
Between:
Anand Tower Owners Association,
Rep. By its President M.Thirmal Chary,
S/o Narsimha Chary, Age” 34 yrs,
R/o Anand Towers, Nakkalagutta,
Hanamkonda, Warangal and
Secretary O.Sheshasai, S/o Ramchandra Rao,
R/o Anand Towers, Hanamkonda.
… Complainant
AND
1. Unique Engineering Constructors,
Architects, Builders and Developers,
Anand Towers, Nakkalagutta.
2. M.Suresh Kumar Benjamin,
S/o Dayakar, Age: 36 yrs,
Occ: Business, R/o H.No.6-1-55,
J.P.Nagar, Hanamkonda.
3. M.Anand Kumar, S/o Dayakar,
R/o 6-1-55, Hanamkonda.
… Opposite Parties
Counsel for the Complainant : Sri. P. Balchander Rao, Advocate
Counsel for the Opposite Parties : Sri A. Venkateshwar Rao, Advocate.
This complaint coming for final hearing before this Forum, the Forum pronounced the following Order.
ORDER
Sri D. Chiranjeevi Babu, President.
This is a complaint filed by the complainant Anand Towers Owners Association, Rep. By its President and Secretary against the Opposite parties under section 12 of Consumer Protection Act, 1986 for a direction to award Rs.3,00,000/- with interest and damages.
The brief averments contained in the complaint filed by the complainant are as follows:
The complainant is a registered association under the societies Act. The owners of the Apartments are the members of the said association representing by its President. On seeing the publication in paper, the members approached the Opposite parties, the Opposite parties shown the site plan and gave assurance to complete the apartments as per specification within a stipulated time by providing all the amenities shown in approved plan. On that basis the members of the complainant agreed to purchase the same and paid the advance amounts as per terms and conditions. The Opposite parties expressed his inability to complete the same within time and get it registration as some of the members of the association want to take loan and insisted for registration. Some of the members approached the financial authorities for loan by depositing the sale deeds. Accordingly loan was granted and the entire amount was paid by the members of the complainant to the Opposite party. The Opposite party collected more than the agreed amount, but has not completed till this day. The complainant requested and demanded several times to complete the obligations but in vain. As such the complainant got issued legal notice to Opposite parties, they replied with false and incorrect information. After the reply the complainant got the videograph showing the stages, nature of the site et., Due to negligent services of the Opposite party, the members of the complainant caused loss and mental agony. As such filed this complaint before this Forum.
Opposite parties filed the Written Version contending in brief as follows:
The complainants and some of the members are still due an amount of Rs.3.5 lakhs for which they are taking time. The Written Version filed by the Opposite party stating that some of the points are covered as per agreement i.e., 1st item not covered and another thing is 3rd item in the legal notice also not covered under the agreement as per the reply of the Opposite party and further other points are in vague manner stated in the Written Version by the Opposite party and further stated the complaint is not at all maintainable, it does not come within the purview of Consumer Protection Act, 1986.
The complainant in support of his claim filed Affidavit of one Flat owner O.Sheshasai in the form of chief examination and also marked Exs.A-1 to A-7. On behalf of opposite party one Suresh Kumar filed his Affidavit but not marked the documents.
Now the point for consideration whether the complainant i.e., Secretary of Anand Towers Owners Association is entitled for a sum of Rs.3,00,000/- towards damages and further amount with 12% and direct them to complete the works as mentioned in the complaint.
This case is coming from the year 1996. No attempts made by anybody to dispose of this matter and we posted this matter for arguments on conditional order, but no Advocate was present before this Forum and argued the matter. At last no arguments advanced from both side Advocates, we posted this matter for orders as it is an old case.
After gone through the complaint allegations and Written Version allegations and also we gone through the documents filed by the complainant and citations filed by the complainant and Opposite party, we are delivering the same order.
The case of complainant is that the complainant is a registered Association under the Society’s Act as required under APPR Act. The owners of the apartments are the members of the said association and representing by its President. The members approached the Opposite party by seeing their other published in the paper and also pamphlet handed over to the members of the complainant. The Opposite party shown the site of plan on which the Municipal Authorities granted permission vide No.24/94, dt.27-2-94 and convinced. The members of complainant with full assurance to complete the apartments as per specification within a stipulated time by providing all the amenities shown in approved plan and also pamphlet. On that basis the members of the complainant agreed to purchase the same and paid advance amount as per terms and conditions. The Opposite party also promised to enable the willing purchasers to get financial assistance from the financial organizations and which required registration of the flat in favour of the members. The Opposite party expressed his inability to complete the same within time and get it registration as some members of the complainant association went to take loan and insisted for registration. At last the Opposite party get it registered the uncompleted and unfinished flats in favour of the purchasers for the estimated cost at that stage. Then some of the members approached the financial authorities for loan by depositing the sale deeds. The Opposite party agreed to complete the remaining work within 2 months in the capacity of developer and given as estimated cost to file before the financing organizations to grant loan. Accordingly the loan was granted and the entire amount was paid by the members of the complainant to the Opposite party. The Opposite party also collected more than the agreed amount from some members by hook or kook, but the Opposite party has not completed till this day. The Opposite party failed even attempt for some works i.e., fixing of electric metre for some flats, erection of electrical transformer, laying of the common area flooring labby flooring fixing of common lights, ample parking place, municipal tap, lift system, laying of internal road, construction of Guard room, common toilet, Association room, fixing of letter boxed and fixing of fire fighting and some works not completed i.e, Star T.V. conection for all channels by obtaining valid licence, Satircases work, colours and attended works are not according to specification and upto the mark i.e., the toilet are leaking and non-teak was used instead of teak wood. 1 ½ H.P. motor instead of 3 H.P. motor et. The complainant requested and demanded several times to complete the above obligations but the Opposite party are not in moode to do their duty and causing loss and inconvenience to the member of complainant in person and property. At last the complainant got issued Legal notice on 16-1-96.
Thereafter the Opposite party also got issued reply notice with false allegations. Immediately after reply the complainant videograph showing the stages, nature of the site. Then the Secretary filed this case before this Forum claiming damages of Rs.3,00,000/- and resuming the right to claim further amount after correctly assessed by a qualified person appointed by this Forum and interest 12% p.a.
The Written Version filed by the Opposite party stating that some of the points are covered as per agreement i.e., 1st item not covered and another thing is 3rd item in the legal notice also not covered under the agreement as per the reply of the Opposite party and further other points are in vague manner stated in the Written Version by the Opposite party and further stated the complaint is not at all maintainable, it does not come within the purview of Consumer Protection Act, 1986.
To prove the case of the complainant PW-1 to PW-3 given their evidence in this Forum and on behalf of Opposite party, no one is examined and Affidavit of Opposite party No.2 is filed.
In this case Ex.A-1 is the Pamphlet, Ex.A-2 is plan, Ex.A-3 Abstract Estimation of Anand Towers Owners Association, Ex.A-4 is the legal notice dated 6-1-96. As per Ex.A-4 Reply notice the Advocate issued Notice on behalf of Anand Towers Owners Association , Rep. By its President and Secretary and in his notice he demanded the Opposite party to complete item Nos.1 to 16 which are:
1) Municipal Tap Water by laying a 4” pipe line with separate over head tank.
2) 3 HP motor as the 4 HP motor is not supplying the sufficient water for 32 flats.
3) Ample parking place
4) Lift system
5) Star TV connection for all channels by obtaining licence.
6) Separate Electricity transformers and separate metres.
7) Stair case work.
8) Lobby flooring and common area flooring.
9) Common lighting.
10) Internal Roads around the building.
11) Attending of leakage from toilets.
12) Construction of Guard room and common toilet and Association room.
13) Fixing of post boxes.
14) Attending of colours inside final coating and outside double coating.
15) Maintenance of the area.
16) Provision for fixing and finding of fire fighting installation.
So all the above 16 amenities has promised by the Opposite party. But he has not provided, for that only the Association directed the Opposite party to complete the above said amenities. These are in Ex.A-4. For this a reply notice issue by Opposite party i.e., Ex.A-5, in this he admitted that some of the amenities are not completed and some of the amenities i.e., item no.1 not covered in agreement and further item No.3 is not covered under agreement. In his Written Version the Opposite party stated that he almost all completed all the amenities of 1 to 16 mentioned in supra. This is a case filed in the year 1996, now it is 2008 and the legal notice issued on 6-1-96. The reply notice was also issued by Opposite party on 10-12-96. So almost all 12 years are over and further Opposite party filed his Written Version about long ago. In his Written version he stated that almost all the amenities mentioned in Ex.A-4 i.e., items 1 to 16 completed. And furtherafter gone through the bundle the Opposite party cited one judgment in
1996 (2) CPR 135 National Consumer Disputes Redressal Commission, New Delhi in
Commissioner, Gujarath Housing Board and another – Petitioners
Vs
Thakkar Somalal - Respondent
Decided on 6-5-96 held at Consumer Protection Act, 1986 sections 2 and 14 – complainant took possession of flat allotted – Housing Board revised cost price from 1,80,000/- to Rs.1,86,000/- - Claim for refund of Rs.6,000/- and Compensation – District Forum directed refund of Rs.6,000/- with interest and granted Rs.3,000/- towards compensation – Order upheld in appeal – Revision – Pricing policy cannot be challenged after allottee took possession of the house – Impugned order suffers from illegalities in exercise of jurisdiction and is liable to be set aside.
So this judgment is squarely applicable to the case of the Opposite parties because in the present case the flat owners they have took possession of the flats and entered and now they are living in their flats. Counsel for Opposite parties filed some written papers showing that the flat owners took possession of the flats, nearly 10 pages are there. In it, it clearly mentioned that the names of the persons they have took the possession of the flats after paying some amounts. And in this case some of the persons have not paid the amount to the Opposite parties as per the Written Version allegations, but that is immaterial. So as per the written papers filed by the Opposite party it clearly goes to show that flat owners i.e., persons who filed this case before this Forum almost all they took the possession and now they are living in their flats. As per the above judgement it is clear cut pricing policy cannot be challenged if allottee took possession of the house. In the present case also when they took possession of the flats, they cannot ask for damages of Rs.3,00,000/- so in the above stated judgment it is clearly applicable to the Opposite parties and once the flat owners took possession of the flats they have no voice to ask damages against the Opposite parties. So this above judgment is clearly applicable on the basis of this, we believe the same and come to the conclusion that the flat owners have no business to ask any damages against the Opposite parties. Hence, we answered this point accordingly in favour of the Opposite parties against the complainant.
In this case all 11 years are completed and 12th year is running so almost all Opposite parties might have been completed the entire amenities mentioned in Ex.A-4 i.e., point No.1 to 16.
PW-1 stated before this Forum that some of the points mentioned in Ex.A-4 not covered under agreement when she stated like that how she mentioned all points. So it clearly goes to show that all the amenities and work in the said flats might have been completed by the opposite parties.
The Advocate Commissoner appointed in this case, but he simply went to the Towers along with both the Advocates and he visited the flats of the owners and he mentioned some of the leakages in latrines and some other places, but those are not at all important for this case. Now we also stated in supra with regard to the judgment when owners already took possession they have no right to question about the amenities to the Opposite parties.
:- Point No.1 is decided in favour of the Opposite parties against the complainant, this point is also decided in favour of the Opposite parties against the complainant.
In the result there are no merits in the complaint filed by the complainant and accordingly the same is dismissed but without costs.
(Dictated to the Stenographer, transcribed by her corrected and pronounced by us in the open Forum today, the 8th May, 2008.)
Sd/- Sd/- Sd/-
Member Member President
District Consumer Forum, Warangal.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
On behalf of Complainant On behalf of Opposite Party
Affidavit of Sheshasai filed Affidavit on behalf of O.P. filed.
EXHIBITS MARKED
On behalf of complainant
- Ex.A-1 Advertising Pamphlet of Opposite party.
- Ex.A-2 Plan.
- Ex.A-3 Abstract estimation of Anand Towers.
- Ex.A-4 Office copy of legal notice issued to Opposite party.
- Ex.A-5 Reply notice from Opposite party to counsel for complainant.
- Ex.A-6 Office copy of letter of owners Association to Opposite party.
- Ex.A-7 Notice u/s 42 of C.P.Act (Dev) Act 1975 of Kakatiya urban Development Authority, Waranal.
One Video Casette – Unmarked.
On behalf of Opposite party.
NIL
Sd/-
President.
