National Consumer Disputes Redressal
Shashidhar Korrapati vs M/S. Bindu Homes Pvt. Ltd. on 12 December, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 124 OF 2014 (Against the Order dated 25/11/2013 in Complaint No. 75/2013 of the State Commission Andhra Pradesh) 1. SHASHIDHAR KORRAPATI S/O SHRI KVL NARASIMHA RAO R/O C-4, SAMHITA MEADOWS, FIRST CROSS KADAGADASPUA, MAIN ROAD, CV RAMAN NAGAR, BANGLORE, KARNATAKA-560093 2. SHASHIDHAR KORRAPATI S/O. KVL NARASIMHA RAO, R/O. C-4, SAMHITA MEADOWS,FIRST CROSS KADAGADASPUA MAIN ROAD, CV RAMAN NAGAR, BANGALORE 3. SMT. K. MANORAMA, W/O. K. GOPALAKRISHNA R/O. H NO. 6-1-132/132, FLAT NO. 102, SAVITHRI AND RESIDENCE SKANDAGIRI, PADMARAO NAGAR, SECUNDERABAD, TEANGANA 4. SMT. K. SRIDURGA, D/O. KVL NARASIMHA RAO, W/O. G. ANILKUMAR R/O. H NO. 6-1-132/132, FLAT NO. 202, SAVITHRI AND RESIDENCY SKANDAGIRI, PADMARA NAGAR, SECUNDERABAD, ANDHRA PRADESH 5. SMT. K. SRIRAMA W/O G.CHANDRASEKHAR RAO, PLOT NO.577, ROAD NO.3, KAKATIYA NAGAR,SECUNDERABAD-500056 ANDHRA PRADESH ...........Appellant(s) Versus 1. M/S. BINDU HOMES PVT. LTD. REPRESENTED BY ITS MANAGING DIRECTOR, MR. MADDURI SIVA SUBRAMANYAM S/O. LATE M. NARASIMHA MURTHY R/O. FLAT NO. 402 AND 403, SRIMUKHA RESIDENCE, PLOT NO. 151, SRINAGAR COLONY, HYDERABAD, TELANGANA ...........Respondent(s) FIRST APPEAL NO. 137 OF 2014 (Against the Order dated 25/11/2013 in Complaint No. 75/2013 of the State Commission Andhra Pradesh) WITH
IA/1347/2014(Stay),IA/1348/2014(Condonation of delay) 1. M/S. BINDU HOMES PVT. LTD. REPRESENTED BY ITS MANAGING DIRECTOR, M. SIVA SUBRAHMANYAM, S/O. LATE M. NARASIMHA MURTHY, R/O. FLAT NO. 302, SAI RAAGA RESIDENCY, DWARAKAPURI COLONY, PUNJAGUTTA, HYDERABAD-082 ANDHRA PRADESH 2. M/S. BINDU HOMES PVT. LTD., PRESENTLY :- R/O. FLAT NO. 402 & 403, 501, SRIMUKHA RESIDENCY, H NO. 8-3-1027/2/A, PLOT NO. 151, SRINAGAR COLONY, HYDERABAD-073 ANDHRA PRADESH ...........Appellant(s) Versus 1. SHASHIDHAR KORRAPATI S/O KVL NARASIMHA RAO R/O C-4, SAMHITA MEADOWS, FIRST CROSS KADAGADASPUA, MAIN ROAD, CV RAMAN NAGAR, BANGALORE,KARNATAKA-560093 2. SRI SHASIDHAR KORRAPATI S/O. KVL NARASIMHA RAO, R/O. C-4, SAMHITA MEDOWS, 1ST CROSS, KHADGADASPURA, MAIN ROAD, CV RAMAN NAGAR, BANGALORE-093 3. SMT. K. SRIRAMA W/O. SRI G. CHANDRA SEKHARA RAO, R/O. PLOT NO. 577, ROAD NO. 3, WEST KAKATIYA NAGAR, NEREDIMET, SECUNDERABAD-056 ANDHRA PRADESH 4. SMT. K. MANORAMA, W/O. SRI K. GOPALA KRISHNA, R/O. H NO. 402, SAVITHRI RESIDENCY, SKANDAGIRI, PADMARAO NAGAR, SECUNDERABAD-061 ANDHRA PPRADESH 5. SMT. K. SRIDURGA D/O. SRI KVL NARASIMHA RAO, W/O. G. ANIL KUMAR, R/O. H NO. 6-1-132/132, FLAT NO. 402, SAVITHRI RESIDENCY, SKANDAGIRI, PADMARAO NAGAR, SECUNDERABAD-061 ANDHRA PRADESH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE BHARATKUMAR PANDYA,MEMBER
FOR THE APPELLANT :
Dated : 12 December 2023 ORDER
For the appellants/ : Mr. Anant Agarwal, Advocate
Complainants Mr. Samarth Agarwal, Advocate
Ms. Ritika Khanna, Advocate
For the Respondent/ : Mr. Mandeep Kalra, Advocate
Opposite Party Ms. Tanya Singh, Advocate
Pronounced on: 12.12.2023
JUDGEMENT
(PER MR. JUSTICE RAM SURAT RAM (MAURYA), PRESIDING MEMBER)
1. Heard Mr. Anant Agarwal, Advocate for the complainants-appellants and Mr. Mandeep Kalra, Advocate for the opposite party- respondent in both the appeals.
2. Above appeals have been filed against the order of Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad, dated 25.11.2013 passed in Consumer Complaint No.75 of 2013, whereby the State Commission partly allowed the complaint with cost of Rs.5000/- and directed the opposite party to furnish the copy of the "occupancy certificate" and pay a sum of Rs.10000/- to each of the complainants as compensation for deficiency in service. As both the appeals arise out of same order, they are decided by common judgment.
3. KVL Narasimha Rao, Shashidhar Korrapati, Smt. K. Srirama, Smt. K. Manorama and Smt. K. Sridurga filed Consumer Complaint No.75 of 2013 before the State Commission for directing the opposite party to pay (a) Rs.813500/- with interest @ 18% p.a. from 01.04.2013 till the date of payment as the rental arrears and delayed period compensation; (b) the delayed period compensation @ Rs.15000/- per month from 01.04.2013 till the completion of the amenities; (c) Rs.1440000/- with interest @ 18% from February, 2010 till the date of payment, towards the deficit proportionate area of 480 sq. ft. @Rs.3000/- per sq.ft.; (d) Rs.5/- lakh as compensation for mental agony, hardship and serious inconvenience; (e) Rs.50000/- as litigation costs; (f) provide all receipts and original contract & warranty documents of the equipment install in the premises; (g) remove the unauthorized car parking areas and provide free access as per GHMC norms; (h) install fire safety devices as per condition XII of GHMC; (i) mandatorily open spaces are directed to be cement concreted as per condition XIII of GHMC; (j) tree plantation in open space as per condition XVII of the GHMC approved plan; (k) provide rain water harvesting pit to the residential complex as per approved plan of GHMC; (l) provide one entry and one exit to the premises of south block with a minimum width of 4.5 mts. driveway by removing the additional parking slots allocated to Flat Nos.301 & 401; (m) provide fire resistance swing door for the collapsible lifts in all floors as per condition XVIV of the approved plan; (n) provide fire extinguishers for every 600 sq. mts. of floor area with minimum 4 fire extinguishers per floor and 5 kg DCP extinguishers minimum 2 each at generator and transformer of ISI specifications as per condition XXVII; (o) provide manually operated alarm system in the entire building as per condition XXVIII of the approved plan; (p) provide the hose reel down come as per condition XXXI of the approved plan (q) provide automatic sprinkler system if the basement area exceeds 200 sq. mts as per condition XXXII of the approved plan; (r) obtain and provide occupancy and no-objection certificates from GHMC; (s) provide 1 mt strip of greenery on periphery to be maintained as per condition XXXVIII of the approved plan; (t) provide the tiles in the path way leading to the lift from entrance gate; (u) provide 6 passenger KONE/JOHNSON instead of existing 4 passenger inferior elevator as per AGPA; (v) provide intercom facility as per AGPA; (w) provide post boxes with name plates as per agreement; (x) construct the east side compound wall and white wash the entire compound wall of the residential complex; (y) earmark and provide tot lot area with basic amenities as per agreement; and (z) provide proper window grills to prevent birds fly inside to avert inconvenience on day to day basis.
4. The complainants stated that complainant-1 was the owner of house No.6-1-132/16/A (area 352.06 sq. yards), Skandagiri, Padmarao Nagar, Secunderabad. The opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of construction and development of residential complexes. The opposite party, who was developing the neighbouring property, approached complainant-1 and requested to give his above house for development on certain terms & conditions. Complainant-1 agreed to the proposal of the opposite party and executed Development Agreement-cum-Power of Attorney dated 02.05.2007 in its favour. The development agreement was executed jointly with the neighbouring landowners. Total area of the land including of complainant-1 and the neighbours was 828 sq. yards. As per agreement, the landowners were entitled for 50% share and the builder was entitled for 50% share of the constructed area. The common areas, balconies, parking areas etc. were also to be shared in the same share. The builder was to bear the cost of development, sanction plan and other related charges. Possession was to be handed over within 18 months from the date of taking over the land or sanction of the plan by the Municipal authority, whichever is later. The opposite party obtained two sanction plans, both dated 23.05.2008 from the Municipal Authority, one for construction of north block (Srutakriti Residency) and other for south block (Savitry Residency). Due date of possession was 22.11.2009. As per agreement, the share of complainant-1 was in south block (Savitry Residency). Till January, 2011, south block was in semi-finished stage and the opposite party failed to complete the amenities and facilities till March, 2013. As per clause 15 of the agreement, the opposite party was to pay rent to complainant-1 @ Rs.6500/- per month from the date of demolition till the date of possession. The building of complainant-1 was demolished in May, 2008 as such arrears of rent from May, 2008 till March, 2013 total Rs.377000/- was due. After due date of possession, the opposite party was liable to pay compensation @Rs.15000/- per month, which comes to Rs.555000/- till March, 2013. The opposite party has paid only Rs.118500/- out of total Rs.932000/-. The opposite party has not provided 'rain water harvesting pit'. The opposite party has not earmarked the parking area of landowners share, drive-in and drive-out. Intercom facility is not provided. Tile in the pathway leading to the lift from the entrance gate has not been laid. Post boxes with the name plates are not provided. The lift of inferior quality as against Kone/Jonson brand has been provided in violation of the agreement. The complainant has been provided Flats Nos.102, 202, 302 & 402 through Memorandum of Understanding dated 02.05.2009. The built up area including common area these flats has been shown as 1082 sq. ft. which is not correct. In fact, the opposite party has provided 120 sq. ft. deficit area on each floor i.e. total 480 sq. ft. deficit area, for which complainant-1 is entitled for Rs.1440000/-. Complainant-1 transferred Flat No.102 to complainant-4 by way of registered sale deed; similarly Flat No.202 was transferred in the name of complainant-5 (daughter of complainant-1) by way of a registered gift deed; Flat No.302 was transferred in the name of complainant-3 by way of registered gift deed; and Flat No.402 in favour of complainant-2. The opposite party has not obtained the occupation certificate from the concerned authority and there are various incomplete works. The opposite party has also blocked the driveway by creating two additional parking slots, which have been allotted to the friend and relative of the opposite party. The complainants sent a letter dated 23.04.2012 to the opposite party raising above issues, which was replied by the opposite party vide letter dated 15.05.2012 stating that they had paid the entire rent to the complainants and delivered the agreed built up area and also fulfilled all obligations under the agreement. In the said letter, the opposite party further stated that it had paid excess amount of Rs.5/- to Rs.6/- lacs which is to be refunded. The complainants sent rejoinder notice dated 04.07.2012 denying the allegations of the opposite party and requesting for removing the deficiencies, but the opposite party has not removed the deficiencies. Then complaint No.75 of 2013 was filed on 08.04.2013.
5. The opposite party did not file the written statement despite service of notice. State Commission after hearing the counsel for the complainants, vide impugned order dated 25.11.2013 partly allowed the complaint with the direction as stated above. Both parties have filed above cross appeals from the order of the State Commission.
6. We have considered the arguments of the counsel for the parties and examined the record. The builder argued that possession of all the four flats falling in the share of complainant-l was delivered in December, 2010. Complainant-1 transferred Flat No.102 through registered gift deed No.2181/2010 dated 31.12.2010, Flat No.202 through registered gift deed No.284/2011 dated 09.03.2011, Flat No.302 through registered gift deed No.1979/2010 dated 26.11.2010 and Flat No.402 through registered gift deed No.1978/2010, dated 26.11.2010. 'Occupation certificate' was obtained on 31.01.2011. Cause of action arose in December, 2010. The complaint was filed on 08.04.2013. Section-24-A of the Consumer Protection Act, 1986 provides two years limitation from the date of accrual of cause of action for filing the complaint. The complaint ought to have been dismissed as time barred. All above transfer deeds have been filed in FA/124/2014. All the deeds contain recitals as "the settlor hereby delivers peaceful vacant possession of the schedule mentioned property to the settlee and the settlee herein accepts the said gift settlement". From these deeds it is clear that possession to complainants-2 to 5 were delivered on the date of their respective deed. Right to sue for deficiencies as alleged arose on the date of possession. The complaint was not filed within two years, as issue of deficiency if any, could have been raised within two years from the date of deed. Therefore, the complaint filed on 08.04.2013 was time barred. Supreme Court in State Bank of India Vs. B.S. Agriculture Institute (2009) 5 SCC 121, held that if the complainant was not filed within two years of accrual of cause of action, then in the absence of any delay condonation application, consumer forum has to not jurisdiction to admit it. Under Section 9 of Limitation Act, 1963, limitation one started to run will continue. Supreme Court in Vidya Drolia Vs. Durga Trading Company, (2021) 2 SCC 338 and Securderabad Cantonment Board Vs. B. Rama (2021) 5 SCC 705, held that once limitation has started to run, it cannot be shifted by making representation.
7. The accounts between the parties was settled and by way of full and final settlement, Rs.118500/- was paid as delay compensation on 21.12.2011 as admitted in paragraph-11 of the complaint. After accepting the amount and execution of Full and Final Settlement document, the complainants cannot raise dispute that deficient amount was paid, after such a long time.
8. So far as "occupation certificate" is concerned, the complainants themselves have filed copy of it along with FA/137/2014, which was issued on 31.01.2011. Issuance of "occupation certificate" is prima facie proof of completion of the building with the amenities, necessary for habitation. The counsel for the builder has pointed out that Hyderabad Municipalities Act, 1955 does not contain any provision for issue of "completion certificate". Except supply of copy of "occupation certificate", State Commission did not find any other deficiency in the flats handed over to the complainants. The counsel for the complainants raised two deficiencies i.e. non-construction of (i) rainwater harvesting pits and (ii) drive-way. The project was handed over by the builder to the Residents Welfare Association and Joint Declaration and Confirmation has been executed by the parties on 28.11.2014. It is not possible to determine as to whether (i) rainwater harvesting pits and (ii) drive-way were constructed or not, after such as long time, particularly, when Residents Welfare Association has not raised this issue.
9. So far as allegation that there was deficiency in constructed area is concerned, the complainants have relied upon the Court Commissioner's report dated 29.10.2020. A perusal of the report shows that the Court Commissioner has not included proportionate covered parking area, due to which, built up area of the flat falling in the share of the complainants was found as 1009.49 sq.ft. as against 1082 sq.ft. and the built up area of the flat falling in the share of the builder was found as 1239.2 sq.ft. as against 1308 sq.ft. as per the development agreement. On its basis, it cannot be said that there was any deficiency in area.
O R D E R
In view of the above discussions, FA/137/2014 is allowed. The order of Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad, dated 25.11.2013 passed in Consumer Complaint No.75 of 2013, is set aside. FA/124/2014 is dismissed. Consumer Complaint No.75 of 2013 is dismissed as time barred.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER