This complaint coming up before us for hearing on 18-07-12 in the presence of Sri.Y.Koteswara Rao, advocate for complainant and of Sri N.Bala Bhaskara Rao, advocate for opposite party, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

This complaint filed u/s 12 of Consumer Protection Act praying to direct the opposite party to finish work as per specification of Annexure-1/A of agreement, or to pay an amount of Rs.7,35,000/- to the complainant  for noncomplaiance of work; to direct the opposite party to pay an amount of Rs.60,000/- towards penalized amount from October, 2009 to July, 2011; to pay compensation of Rs.25,000/- towards agony, harassment and torture and for costs.

1. The averments of the complaint in brief are as follows:

Complainant is absolute owner of an extent of 303.5 sq.yards ofSite, to the eastern side of this complainant’s site one Gottemukkala Rama Tulasi was having an extent of 302.5 sq.yards of site, to the further eastern side of this complainant’s side one Gottemukkala Sujatha was having an extent of 302.5 sq.yards of site, the total extent of site is 908.5 sq.yards at Tadepalli Village, Guntur District.  All the three were approached by opposite party/builder/developer with a proposal that the opposite party would construct permissible number of residential plots therein.  Complainant, Gottemukkala Sujatha and Gottemukkala Rama Tulasi have entered into a development agreement cum general power of attorney with opposite party on 19-06-07 and the same was registered before Sub Registrar, Managalagiri.  According to the said development agreement the opposite party agreed to construct silt, ground floor, 1^st floor, 2^nd floor, 3^rd floor and 4^th floor therein with his own money and retain 9 flats out of 15 flats and hand over one flat to the complainant as per the specification mentioned in Annexure – 1/A of the agreement.  The complainant and others handed over the flats to the opposite party on the date of agreement itself.  As per the agreement the opposite party has to obtain plans from U.D.A., V.G.T.M. Mangalagiri, for construction of residential flats in the said property and further agreed under clause 4 of the agreement the opposite party shall complete proposed construction of residential flats within eighteen months from the approval of the plan from U.D.A. and V.G.T.M. Mangalagiri, and if not completed within the stipulated period it would be extended for another three months.  Under clause 5 of agreement the opposite party shall pay Rs.3,000/- per month to each flat, if it was not completed after the grace period of three months till the flat handed over to the complainant.  Under clause 6 of the agreement after completion of construction of flat the opposite party shall obtain acknowledgement from the complainant showing the flat was constructed as per the specification mentioned in Annexure -1/A of the agreement.  The opposite party secured sanction of plan in the month of December, 2007 and started construction of residential flats in the said site.  Later the opposite party sold away nine flats to the prospective purchasers as per the agreement and they were registered in their names which disclosed the corresponding undivided and unspecified share out of the total extent.   The opposite party constructed silt, ground floor, 1^st floor, 2^nd floor, 3^rd floor and 4^th floor of the roofs and walls of the flats and abundantly left without completing the construction in the month of January, 2011.  The complainant made several demands to opposite party to finish the construction of flat, as per specification Annexure – 1/A of agreement pointing out several short comings in the construction.  But the opposite party gave evasive replies and has not complied request of the complainant.  The estimated value of the work left over by the opposite party was surveyed by a Surveyor.  The Surveyor estimated the value of the left over work at Rs.6,50,000/- per each flat.  Non completion of the work within the agreed period would amounts to deficiency in service on the part of opposite party.  Complainant suffered large financial loss as well as mental and physical agony at the hands of opposite party as such the complainant is entitled for compensation.  Hence the complaint.

3.      Opposite party filed counter.  The averments of the counter in brief are as follows.

          All the allegations made by the complainant are not true and correct and complainant is put to strict proof of the allegations which are not admitted.  The complaint is not maintainable either under law or on fact.  The other partner of opposite party by name N.Vamsi Krishna demanded this opposite party to contribute further investment in the partnership business and this opposite party failed to invest the amount as demanded by him due to lack of financial capacity.  The said Vamsi Krishna removed him from the partnership of the complainant’s Firm on 03-01-11 as such the complaint is not maintainable on this opposite party.   The complainant is well aware of removal of opposite party from the partnership Firm.  Complainant did not issue any legal notice prior to filing this complaint.  The complaint is not maintainable against opposite party as he is not a partner of opposite party Firm and he is not personally liable for the acts of partnership Firm.  As this opposite party is not liable for the allegations made by complainant, the complainant is not entitled for any relief.  Since, there is no deficiency of service, no mental agony was caused to the complainant.  Hence the complaint may be dismissed with costs.      

4.      In support of their versions Complainant and opposite party filed their respective affidavits.

5.      On behalf of complainant Ex.A-1 to A-4 are marked.  No documents marked on behalf of opposite party.

6.      Now the points that arise for consideration are:

        1.  Whether the complaint is maintainable against the opposite

              party?

        2.  Whether thee is any deficiency of service on the part of

             opposite party?

        3.  To what relief the complainant is entitled to?

7.      POINT NO.1:-  The case of the complainant is that himself one Gottemukkala Rama Tulasi and Gotemukkala Sujatha are having sites to an extent of 303.5 sq.yards, 302.5 sq.yards and 302.5 sq.yards, in all 908.5 sq yards site in Tadepally Village, and that they have entered into a development agreement with opposite party Firm on 19-06-07, that as per the agreement the opposite party has to construct silt, 1^st floor, 2^nd floor, 3^rd floor and 4^th floor and retain  nine flats out of 15 flats and hand over one flat to the complainant as per the Annexure – 1/A, that as per clause 4 of the agreement the opposite party shall complete the construction of flats in the said site within eighteen months from the date of approval of the plans and if it is not completed within the stipulated period of eighteen months it would extend another three months, that as per clause 5 of the agreement the opposite party shall pay Rs.3,000/- per month to the complainant, if the work is not completed even after the grace period of three months till the flat handed over to the complainant, that as per clause 6 of the agreement the opposite party shall obtain acknowledgement on completion of construction showing the flat as per the specification mentioned in Annexure – 1/A of the agreement, that opposite party obtained approval of the plan in the month of December, 2007 and constructed silt, ground floor, 1^st floor, 2^nd floor, 3^rd floor, 4^th floor of the roofs and walls of the flats and left away without completing the construction during the month of January, 2011, that inspite of several demands made by opposite party, opposite party has not completed the construction of the flat as per Annexure – 1/A of the agreement, that he got estimated the left over work by a Surveyor, that the Surveyor estimated the value of the left over work of the flat at Rs.6,50,000/-, that due to the acts of the opposite party the complainant suffered mental agony and he is eligible for compensation and that thereby the opposite party committed deficiency of service.         

8.      The case of the opposite party is that the other partner of opposite party Firm namely Vamsi Krishna demanded him to contribute further investment in the partnership business and as he failed to invest as demanded by him he was removed from the partnership of the Firm on 03-01-11 and that the complaint is not maintainable against him and that he is not personally liable for the acts of the partnership Firm.  But the opposite party has not filed any documentary evidence in support of his allegations and failed to prove the allegations made by him regarding his retirement from the Firm or removal from the partnership of the Firm.  Accordingly this point is answered.  Therefore, the opposite party is liable for the acts of the opposite party Firm.

9.      POINT NO. 2   :- The allegations of the complainant regarding incompletion of the flat as per Annexure-1/A of the agreement is not specifically denied by the opposite party. Further at the time of arguments the opposite party filed a memo stating that he will finish the incompletion work. The said memo was received by the complainant and endorsed to the extent that they have completed the pending work left over by the opposite party and there is no possibility to complete the work.  The complainant got the unfinished work of his flat estimated by a Surveyor and the said Surveyor estimated the unfinished work at Rs.6,50,000/- and the complainant has also filed the 3^rd party affidavit of the Surveyor.  Therefore the estimation of the Surveyor and the 3^rd party affidavit of the surveyor coupled with the memo dated 12-03-12 amply proves the allegation of the complainant that the work of the flat in question was not completed by the opposite party as alleged by the complainant as on the date of survey by the Surveyor. Therefore, it can be safely concluded that there is deficiency in service on the part of opposite party.  Accordingly this point is answered.

10.    POINT NO. 3:-   As per the clause 5 of agreement Ex.A-1, If the construction is not completed within the prescribed period as per clause 4, the opposite party shall pay Rs.3,000/- per month towards penalty till the flat was handed over to the complainant.   The 1^st relief sought for by the complainant is to direct the opposite party to finish the work as specified in Annexure – 1/A of the agreement or to direct the opposite party to pay an amount of Rs.7,35,000/-.  The Surveyor estimated the unfinished work of the flat at Rs.6,50,000/- under Ex.A-3 and the same is not disputed by the opposite party.   The 2^nd relief sought for by the complainant is to direct the opposite party to pay Rs.60,000/- towards penal amount from October, 2009 to July, 2011 as per clause 5 of the agreement.  The other relief sought for by the complainant is to direct the opposite party to pay compensation of Rs.25,000/- and costs.

11.    As already stated above at the stage of arguments on 18-07-12 opposite party filed a memo that he will finish the incompleted work.  On receipt of the said memo the counsel for complainant endorsed that already they have completed the pending work left over by the opposite party and there is no possibility to complete the work.  Therefore considering the endorsement made by the counsel for the complainant and in the circumstances of the case and long lapse of time from the date of agreement Ex.A-1, a direction to the opposite party to pay an amount of Rs.6,50,000/- to the complainant towards the unfinished work, and directing opposite party to pay Rs.60,000/- towards penal amount from October, 2009 to July, 2011 would meet the ends of justice. As already stated above the complainant claimed compensation of Rs.25,000/- towards mental agony, the said amount claimed by the complainant towards compensation is too high and imaginary and it is not substantiated with any evidence.  Therefore, we feel that awarding compensation of Rs.5,000/- besides costs of Rs.2,000/- would meet ends of justice.  Accordingly this point is answered in favour of the complainant. 

12.    In the result, the complaint is allowed in part, as indicated below;

1. The opposite party is directed to pay an amount of Rs.6,50,000/- (Rupees six lakhs fifty thousand only) to the complainant towards the value of the unfinished work within a period of six weeks.   
2. The opposite party is further directed to pay an amount of Rs.60,000/- towards penal charges to the complainant as per clause 5 of Ex.A-1 agreement.
3. The opposite party further directed to pay an amount of Rs.5,000/- towards compensation to the complainant.
4. The opposite party is also directed to pay an amount of Rs.2,000/- towards cost of the complaint.  

The amounts ordered above shall be paid within a period of six weeks from the date of receipt of the order, failing which the amounts ordered in clauses 1 to 3 carry interest @9% p.a. from the date of order till realization.

Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 20^th day of July, 2012.

MEMBER                                  MEMBER                           PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainants:

For Opposite Parties  : NIL

 PRESIDENT