State Consumer Disputes Redressal Commission
Manjeera Heights (Phase-I) Flat Owners ... vs M/S Manjeera Constructions Ltd., on 17 June, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD C.C.NO.32 OF 2012 Between: Manjeera Heights (Phase-I) Flat Owners Assn. (regd.No.1664/07) D.No.11-14-262/4, Chitra Layout, Behind Ranga Reddy Dist.Courts LB Nagar, Hyderabad-074, rep. by its General Secretary sri G.Rama Subba Rao S/o late G.Venkanna, aged about 60 yrs Occ: Advocate, R/o Flat No.A-403, Manjeera Heights (Phase-1), Chitra Layout Behind R.R.Dist. Courts, LB Nagar, Hyd-074 Complainant A N D M/s Manjeera Constructions Ltd., # 304, Aditya Trade Centre, Aditya Enclave Road, Ameerpet, Hyderabad-038 Rep. by its Managing Director, G.Yoganand Opposite party Counsel for the complainant M/s V.Gourisankara Rao Counsel for the opposite parties M/s D.Srinivas Prasad QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER MONDAY THE SEVENTEENTH DAY OF JUNE TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The complaint is filed claiming link documents, drawing of drainage lines water supply lines and power supply lines, a sum of `2,52,150/-
towards delay in returning the amount of corpus fund, an amount of `18,84,000/- towards reimbursement of BPS charges, for repairing of leakage of water from bathroom ducts and expansion joints, a sum of `5 lakh towards compensation for non-construction of club house, for providing solar heating system, street lighting system, sewerage treatment plant, iron grills to the ducts in the corridor and swimming pool, a sum of `45,000/- towards reimbursement for reconstruction of collapsed compound wall and `2 lakh towards compensation as also sum of `25,000/- towards costs.
2. The averments of the complaint in brief are that the complainant is a society registered under A.P. Societies Registration Act, 2001 and it has been functioning as per the provisions A.P. Apartments (Promotion of construction and ownership) Act, 1987. The opposite party constructed residential complex Manjeera Heights Phase-I consisting of cellar, stilt plus nine upper floors in A and B blocks comprising of 126 flats at Chitra Layout Saroornagar, R.R.District. The members of the complainant association purchased the flats believing representation of opposite party made in brochure and newspapers and they paid a sum of `300/-
per sq.feet than normal market price prevailing at the time at and around vicinity of L.B.Nagar. The opposite party has not provided the amenities promised by them. Club House was not constructed and library, community hall and crche space is not left as per the terms of the agreement.
3. The opposite party handed over maintenance of the building to the complainant association in the month of November 2007 without handing over any charge. The complainant brought to the notice of the opposite party the defect in construction which has not been properly addressed by the opposite party. The complainant addressed letter dated 8.2.2010 requesting the opposite party to handover the documents for payment of balance corpus fund and interest, arrangement for fire fighting equipment and the other items for which the opposite party had given evasive reply stating that the documents would be kept with them and interest on corpus fund is not payable. The complainant was informed that it has to enter into annual maintenance contract with the Contractor for arranging fire fighting equipment demonstration. The opposite party rectified stagnation of water in cellar and partly addressed the problem of heavy leakage from expansion joints.
4. On 19.6.2010 the opposite party through email informed the complainant that the members of the complainant association have to pay an amount of `18,000/- for three bedroom flat and `12,000/- for two bedroom flat to GHMC for regularisation of deviation. Deviation in construction made by the opposite party was not known to the members of the association and the opposite party had not informed them at the time of sale of the flats. The opposite party collected sale consideration for the entire built up area including deviation from the members of the complainant association and made them to pay penalisation charges under threat of penal consequences under the BPS including demolition of structure.
5. The complainant association by its letter dated 5.7.2010 protested for the deviation committed by the opposite party stating that it is the duty of the opposite party to regularise the flat at his cost. As there was no response from the opposite party the members of the complainant association were compelled to handover demand draft for `18,42,000/-
obtained in favour of GHMC to the opposite party. A part of compound wall on the southern side of the building was collapsed during rainy season due to defective construction and there was no response from the opposite party for request to repair the compound wall. The complainant got reconstructed the compound wall by incurring an amount of `45,000/-.
6. The opposite party failed to complete the pending work, reimburse the amount incurred by the complainant. The complainant got issued notice on 18.6.2011 demanding the opposite party to settle the pending issues and pay `5 lakh towards compensation for non-construction of club house. On 5.7.2011 the opposite party through email informed the complainant that they would provide grills to the ducts in B block and on 5.7.2011 through another email the opposite party requested the complainant to execute an agreement that all issues are settled for a sum of `5 lakh which was not acceptable to the complainant.
7. On 15.2.2012 the complainant received quotation from M/s Enviro Engineers Hyderabad for completion of civil work, erection, testing and commissioning of sewerage treatment plant for a sum of `38,25,000/- and M/s Datri Enterprises issued quotation dated 10.2.2012 for providing solar water heating system at `17,72,820/- and another quotation dated 14.2.2012 for installation of 34 solar street lighting system for `10,10,625/-. The failure of the opposite party amounts to deficiency in service.
8. The opposite party has filed written version contending that the complaint is not maintainable as it is filed beyond two years and no permission was obtained for filing the complaint after the period of limitation.
The apartments were sold and handed over by 2007 and maintenance of the building was handed over in the month of November 2007. The defect liability period under which the opposite party is liable to rectify the defects, if any, is 12 months including the first rainy season after handing over the flats which was done before November 2007 as per the norms fixed by PWD, CPWD and under National Building Board.
9. The complaint is not maintainable since the general body of the complainant association has not authorized the complainant association to file the complaint. The brochure issued by the opposite party would disclose the facilities proposed to be provided by it. The opposite party has not collected any amount more than normal market price from the members of the complainant association. While handing over the flats to the purchasers the opposite party made it clear to them that they should not clean their bathrooms and WCs with acid as it would affect the base leading to seepage of water. The leakages were not on account of any defect in construction.
10. The opposite party had given reply to the letter dated 8.2.2010 of the complainant and informed the complainant that on completion of proceedings under BPS regularization, the documents would be handed over the complainants. The opposite party is ready to handover the permission to the complainant association. One hundred and eleven flat owners paid corpus fund and the opposite party handed over corpus fund of 115 purchasers to the complainant association. The other flat owners have not paid the corpus fund till date. The opposite party has not agreed to pay interest on corpus fund to the complainant association.
11. The opposite party has provided standard fire fighting equipment and consequent to handing over the maintenance of the building, informed the complainant association that it has to enter into an annual maintenance contract and the complainant association has agreed to enter into AMC. The opposite party made arrangement for demonstration of working of fire fighting equipment several times and finally on 19.2.2010. Out of courtesy the opposite party agreed to arrange one more demonstration. The opposite party has not agreed to provide solar lighting or STP or safety grill around the swimming pool and iron grills for ducts.
12. The opposite party had handed over copies of sanction plan to the flat owners prior to the purchase of flats. The flat owners requested for necessary changes in the construction of the flats, elevation and vasthu purpose for which the opposite party made it clear to them that the charges therefor have to be borne by them. The same fact is reflected in the agreement of construction. The letter dated 5.7.2010 of the complainant association discloses that the issue in regard to stagnation of water in cellar and seepage in the expansion joints between the two cellers were arrested by the opposite party though the maintenance of the building was with the complainant association since November 2007.
13. The opposite party paid a sum of `20,000/- along with application of BRS and the amount of `18,42,000/- paid by the flat owners to GHMC. The complainant has to refund `20,000/- to the opposite party. The compound wall of the building was not collapsed in the year 2010 due to poor construction. No promise was made by the opposite party that the compound wall would be reconstructed. The said defect even assumed to be true, it is beyond defect liability period. The complainant cannot claim interest over corpus fund from 11.2.2007 to September 2008 and the claim is also barred by law of limitation. The leakages in the bathroom and extension joints were already rectified and reflected in letter dated 5.10.2010 of the complainant association.
14. The opposite party has not agreed to pay any amount for any item except the club house. The opposite party is pursuing the regularization and on receipt of the proceedings from GHMC it will hand over the same to the complainant. The opposite party agreed to pay a sum of `5 lakhs as compensation of non-construction of club house towards full and final settlement of all issues. The opposite party though not obliged to fix any grills as a gesture of goodwill and in view of the proposed settlement of the matter, agreed to install grills in B Block. The proposal for compromise has emanated from the representative of complainant association and thereafter the complainant had gone back.
15. The opposite party is not aware of the quotation received by the complainant association from Nalini Enviro Engineers, Dhatri Enterprises Pvt Limited. The quotations are fabricated to make a false claim against the opposite party. The opposite party has not agreed to provide STP or solar water heating system or installation of solar street lighting system. The opposite party already provided regular drainage facility to the building. Provision of STP is not mandatory and it is only a suggestive measure in the event of not having proper drainage line. STP is not advisable for residential complex comprising of 126 flats. There was no deficiency in service on the part of the opposite party. Hence, prayed for dismissal of the complaint.
16. The General Secretary of the complainant association has filed his affidavit and the documents Exs.A1 to A21. On behalf fo the opposite party its Managing Director, G.Yoganand has filed his affidavit and the documents Exs.B1 to B13.
17. The points for consideration are:
1. Whether the complaint is filed within the period of limitation?
2. Whether the opposite party has rendered any deficiency in service to the members of the complainant association?
3. To what relief?
18. The counsel for both parties have filed written submissions.
19. POINT NO.1 An objection as to the maintainability of the complaint is raised on two accounts, the general secretary of the complainant association is not authorized by members of the complainant association authorizing him to sign and verify the complaint and the complaint is not filed within the period of limitation. The learned counsel for the opposite party has contended that byelaws of the complainant association do not authorize any person to sign or verify on behalf of the complainant association and that the General Body of complainant association also has not made any resolution authorizing general Secretary to file a complaint. He has also submitted that the plea is taken in the written statement and despite the fact the complainant has not filed byelaws nor did explain as to how the complaint is maintainable in the absence of specific authorization.
20. The learned counsel for the complainant has not dealt with the issue in the written arguments or oral submissions. However, in the interest of justice, we are inclined to go through the documents to consider the issue as it is not so serious to hold the complaint bad as also even of such defect is found, it is curable defect. Certificate of registration issued by Registrar of Societies Ranga Reddy District discloses that the complainant is registered on 12.9.2007 under A.P. Societies Registration Act, 2001. The members of the complainant association have not denied that they had not authorised the general secretary of the complainant association to file complaint.
21. The opposite party has handed over maintenance of the building to the complainant association in the month of November 2007. The complainant association and the opposite party held several meetings the minutes of which were recorded as seen from the letter dated 8.2.2010 addressed to the opposite party. The last meeting was held on 19.4.2008. Several issues in regard to pending works were discussed at the meeting and consequent to the discussion, the opposite party addressed the pending work. On 10.4.2010 the Senior Vice President of the opposite party company through letter informed the complainant association that he visited the building on 22.3.2010 and discussed the matter with the President and General Secretary of complainant association and promised them that the opposite party would continue to meet them to solve the problems as committed therein. The complaint is filed on 2.3.2012 within two years from the time of carrying out the pending works. The complaint insofar as the items agreed upon and admitted to be carried out are concerned is filed within the period of two years from the date of cause of action.
The point is answered in favour of the complainant association.
22. POINT NO.2 Initially, several issues were cropped up between the parties most of which had already been addressed by the opposite parties. A perusal of letter dated 8.2.2010 addressed to the opposite party would show that there were several meetings held between the representatives of the complainant association and the opposite party company. Handing over the documents as regards to statutory permission, balance corpus fund with interest, regularization of the building, arrangement for demonstration of fire fighting equipment, rectification of leakages through bathroom ducts, rectification of the problem relating to stagnation of water in cellar and arresting of leakage from expansion joint ducts, construction of club house, erection of safety grill for the swimming pool are the pending issues raised by the complainant association to be carried out by the opposite party.
23. Insofar as, the sanction permission is concerned, the opposite party has expressed its readiness to handover the document to the complainant. In regard to payment of balance corpus fund with interest thereon, the learned counsel for the opposite party has opposed the payment on two counts, there was no agreement for payment of interest on corpus fund to the complainant association and the claim is barred by law of limitation. It is not disputed that 111 flat owners paid the amount of `17,25,000/- paid on different occasions to the opposite party company. The opposite party returned the amount of `17,25,000/-
on 30.9.2008 and a sum of `90,000/- on 14.11.2008. It is pertinent to note that there is no any agreement between the parties in regard to the flat owners paying corpus fund to the opposite party for it to retain the amount to handover to the complainant association so also there is no agreement for the opposite party to pay interest on the amount for the period the amount was kept with it.
24. The opposite party handed over the amount of 115 flat owners to the complainant association whereas it had received the amount from 111 flat owners.
The other flat owners are still due the amount to the opposite party. The complainant association has received back the amount more than what was paid by its members to the opposite party company. In the circumstances, the complainant association cannot claim any interest on the amount paid by its members towards corpus fund which was retained for certain period by the opposite party.
25. The complainant claimed reimbursement of a sum of `18,84,000/- paid by its members for regularisation of deviation in the construction of the building. The complainant has not substantiated as to how it can claim the amount paid for regularisation of the deviation in construction of the building which was made at the request of its members.
The complainant has stated that the flat owners were not aware of the deviation in construction of the flats prior to or at the time of purchase of the flats. A perusal of paragraph 12 of the complaint would demystified any cloud of doubt that the flat owners were aware of deviation in construction of the building which presumably was made at their request.
26. In paragraph 12 of the complaint it is averred that that O.P. also collected the sale consideration for the entire built up area including deviations from the members of the complainant. Having paid the amount with the knowledge that there was deviation in the construction of the building which invariably takes us to the conclusion that at request of the flat owners who were the members of the complainant association, the deviation of sanction plan of the building was made.
The demand draft for `18,42,000/- drawn in favour of the Commissioner GHMC by the members of the complainant association would also support the fact that the members of the complainant association had got the deviation of sanction plan effected through the opposite party. As such the complainant association cannot claim for reimbursement of amount of `18,42,000/- paid towards penal charges for regularisation of deviation of sanction plan.
27. It is also to be noted that the complainant association has not denied payment of `20,000/- by the opposite party along with the amount of `18,42,000/- towards penal charges for regularization of violation of the terms of the sanction plan. The opposite party has claimed the amount of `20,000/- paid by it on the premise that deviation of sanction plan was made at the request of the flat owners and it cannot be held liable to pay the amount either to GHMC or to the members of the complainant association.
In any event, the opposite party cannot be held liable to pay any amount towards reimbursement of penal charges to the complainant association.
28. Demonstration of fire fighting equipment was said to have been made several times by the opposite party and the complainant has not denied the statement of the opposite party. In this regard, the complainant association has not approached this Commission with clean hands. Thus, there can be no dispute on the issue. Insofar as repair to bathroom ducts is concerned, the opposite party has raised objection that flats were handed over in the year 2007 and no claim can be made beyond the period of 12 months as no complaint was made in this regard till November 2008 by which defective liability period was over.
29. The learned counsel for the opposite party has contended that though the opposite party was not obliged to effect any repairs to the ducts in the bathroom and expansion joints beyond the defect liability period, the opposite party as a gesture of goodwill effected necessary repairs at its cost and that the leakages were not due to defect in construction and due to bad maintenance.
The complainant has not denied the fact of repairing of the ducts in the bath of the flats and arresting of leakages in the expansion joints by the opposite party at its cost.
30. A perusal of letter dated 5.7.2010 addressed to the opposite party would show that the complainant association conveyed its thanks for attending the problem relating to leakages of ducts in bathrooms of some of the flats and arresting of leakage in the expansion joints. Thus, the complainant cannot be heard to say that the problem is not attended to.
31. The other issues in regard to providing of STP, sewerage treatment plant, solar heating system, solar street lighting system and grills to the ducts in corridor and swimming pool have not been mentioned in the brochure. The complainant association failed to show that there was no agreement for providing such facilities. It is not the case of the complainant that the opposite party has not provided drainage facility to the building. The complainant has not filed any sale deed of any of its members or construction agreement or any of the documents to show that there was an agreement entered into in regard to the opposite party providing the aforementioned facilities.
32. It is pertinent to note that there is no denial of the fact that the complainant has raised issue of grills for the first time in the year 2010. The opposite party as a gesture of goodwill agreed to look into the issue of providing grills to the ducts and swimming pool. As far as the other issues are concerned, the learned counsel for the complainant has contended that the provision of STP, Solar Street Lighting and Solar Heating are mandatory. The learned counsel for the opposite party has contended that the complainant failed to show such facilities are mandatory and they cannot be claimed after the period of limitation. We accept the contention of the learned counsel for the opposite party as the flat purchasers with eyes wide open purchased the flat and maintenance fo the building was also handed over to the complainant association as long ago in the month of November 2007. Either the flat purchasers at the time of receiving possession of the respective flats or the complainant association at the time of the opposite party handing over the maintenance of the building to it have not raised any objection for non-providing of solar lighting , STP and solar heating. The claim is barred by law of limitation.
33. The complainant association claimed an amount of `45,000/- on the premise that western portion of the compound wall of the building was collapsed due to defect in the construction and it had got reconstructed the collapsed compound wall. The claim is not supported by any evidence. The complainant association has not proved that there was any defect in the construction of the compound wall of the building. No date or time when the part of the compound wall was collapsed is mentioned. No piece of evidence is found in the record. At any rate, the maintenance of the building including that of the compound wall vest with the complainant association. The claim in this regard is liable to be rejected.
34. The opposite party has admitted its liability of payment of `5 lakhs towards compensation for non-construction of club house. However, sometime later the opposite party has changed its attitude and linked payment of `5 lakh for non-construction of the club house to the left over issues which was not acceptable to the complainant association. In view of its unequivocal expression to pay the amount of `5 lakh for non-construction of the compound wall in its letter dated 3.6.2011, the opposite party cannot turn round to say that the amount of `5 lakh would be paid provided the other issues are not pressed. On this score, deficiency in service on the part of the opposite party is found and the opposite party is liable to pay the amount of `5 lakh as agreed for non-construction of the compound wall.
35. In view of the foregoing discussion, we are of the view that the opposite party can be directed to pay `5 lakh for non-construction of the club house, to follow up submissions under BRS, fix grills to the corridors and swimming pool of Manjeera Heights Phase-I.
36. In the result, the complaint is allowed. The opposite party is directed to pay `5 lakh for non-construction of the club house, to follow up submissions under BRS, fix grills to the corridors and swimming pool. Rest of the reliefs sought for are rejected. The costs of the proceedings quantified at `3,000/-. Time for compliance four weeks.
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MEMBER Sd/-
MEMBER Dt.17.08.2013 కె.ఎం.కె.* APPENDIX OF EVIDENCE WITNESSES EXAMINED For complainant for opposite parties NIL NIL EXHIBITS MARKED For complainant Ex.A1 Brochure of Manjeera Heights Ex.A2 Certificate of Registration Ex.A3 Representation Ex.A4 Representation Ex.A5 Postal Acknowledgement Ex.A6 Letter of the OP Ex.A7 BPS application with plan Ex.A8 E-mail Ex.A9 E-mail Ex.A10 E-mail Ex.A11 E-mail Ex.A12 Representation Ex.A13 Postal Acknowledgement Ex.A14 letter of OP to GHMC with DD Ex.A15 E-mail Ex.A16 E-mail Ex.A17 Legal Notice Ex.A18 Letter of M/s Dhatri Enterprises Pvt Ltd., Ex.A19 letter of M/s Dhatri Enterprises Pvt Ltd Ex.A20 M/s Nalini Eviro Engineers Quotation Ex.A21 Form No.32 For opposite party Ex.B1 CC of Sale Deed Ex.B2 Cc of agreement of construction Ex.B3 CC of letter addressed by OP Ex.B4 Original Receipt Ex.B5 original Copy of letter Ex.B6 Original Copy of letter Ex.B7 Copy of demand Ex.B8 Copy of demand letter Ex.B9 Copy of receipt issued by the then LB Nagar Municipality Ex.B10 Copy of No Objection Certificate issued by Emergency Services Ex.B11 Copy of No objection Certificate issued by Emergency Service Ex.B12 True Extract of mail taken out from the website Ex.B13 Copy of licence issued by the GHMC to OP Sd/-
MEMBER Sd/-
MEMBER