State Consumer Disputes Redressal Commission
Smt. Gosala Suryasree, W/O.Sri ... vs 1.M/S. Sri Venkatesh ... on 18 April, 2013
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD. C.C.No.12/2012 Between : Smt. Gosala Suryasree, W/o.Sri G.Sreenivas Rao, Age: 55 years, Occ:Household, R/o.406, Highness Residency, GHMC No.3-6-527, St.No.7, Himayathnagar, Hyderabad- 500 029. Complainant And 1.
M/s. Sri Venkatesh Constructions, rep. by its Partner Sri Ramkishore Baldawa, S/o.Sri Bankatlal Baldawa, Aged 53 years, Occ:Business, having its office at Unit no.3, 1st floor, Raghava Ratna Tower, Chiragali Lane, Abids, Hyderabad.
2. Ramkishore Baldawa, S/o.Sri Bankatlal Baldawa, Aged 53 years, Occ:Business, having its office at Unit no.3, 1st floor, Ragav Ratna Tower, Chiragali Lane, Abids, Hyderabad.
3.Naman Baldawa, S/o.Ramkishore Baldawa, Aged: 30 years, Occ:
Business, having its office at Unit no.3, 1st floor, Raghava Ratna Tower, Chiragali Lane, Abids, Hyderabad.
4. Nameeth Baldawa, S/o.Ramkishore Baldawa, Aged 26 years, Occ: Business, having its office at unit no.3, 1st floor, Raghava Ratna Tower, Chiragali Lane, Abids, Hyderabad. Opposite parties Counsel for the complainant :
Mr. G.L.Narasimham Counsel for the opp.parties :
M/s. Damodar Mundra Associates QUORUM: SMT.M.SHREESHA, HONBLE INCHARGE PRESIDENT, AND SRI S.BHUJANGA RAO, HONBLE MEMER.
THURSDAY, THE EIGHTEENTH DAY OF APRIL, TWO THOUSAND THIRTTEEN.
Oral Order: (Per Sri S.Bhujanaga Rao, Honble Member) The complainants filed the complaint under Section 17 (1)(a)(i) of the Consumer Protection Act,1986 seeking direction to the opposite parties to pay to the complainant as follows:
a). Rs.1,50,500/- the amount collected illegally on the excess area of 43 sq.ft. @ Rs.3,500/- per sft.
b). Rs.3,56,100/-, the excess amount collected from the complainant @ Rs.300/- per sq.ft. on the total area of the flat i.e. 1187 sq.ft.
c). to rectify the sale deed for 45 sq.yds. in the place of 37.64 sq.yards of undivided share of land, alternatively pass an award to pay an amount of Rs.4,80,000/- the value of the undivided share of land of 8 sq.yds. which is supposed to be allotted, the amount for the same alternatively asked for reimbursement, the rate for the said area is Rs.60,000/- per sq.yd. which is the Market value.
d). To refund an amount of Rs.3,29,000/- towards the excess amount that was collected on common area which was loaded at 18% without any logical/prorate calculation.
e). to refund an amount of Rs.24,500/- collected under the guise of vat tax.
f). to pay an amount of Rs.1,22,500/- the charges that were levied on the complainant for registration of sale deed.
g). to pay an amount of Rs.2,50,000/- the cost incurred for rectification of the defects and other defaults that were committed by the builder while constructing the flat.
h). to pay an amount of Rs.2,52,000 ( Rs.13,000/- towards house rent and Rs.1000/- towards maintenance) paid by the complainant from June 2007 to Nov,2009 ( the delay period).
i) to pay an amount of Rs.3,50,000/- towards compensation ( damages) on amount of construction of illegal structures and shops that were constructed in violation of building plan and rules there in and for causing obstruction from peaceful enjoyment of the property.
j). to pay an amount of Rs.2,50,000/- towards the amount payable for the inconvenience, mental agony, pain and suffering for the deficiency in service as explained in the complaint
g) to pay an amount of Rs.1,25,000/- towards the cost of the complaint and the expenses incurred for resolving the disputes before various courts.
h) to award interest @ 18% per annum on the amounts payable to the complainant from the date of entitlement till realization.
The total value of the claims and other compensations of the complaint is Rs.26,89,600/-
The case of the complainant as set out in the complaint in brief is as follows:
Opposite party No.1, the partnership firm, entered into a contract of construction with the land lords Smt. Nikhat Parveen and five others, under G.P.A. cum Development Agreement dt.
21.6.2004 bearing document no.1758/04 and by virtue of this, the opposite party no.1 offered the property for sale. The complainant along with her husband has entered into a contract with the opposite party no.1 for purchase of a two bed room flat admeasuring 1230 sq.fts, including common area, excluding car parking, @ Rs.3,200/- per sq.ft. The complainant no.1 paid an advance of Rs.1 lakh on 11.11.2006 by way of cheque bearing no.12579 drawn on Andhra Bank, Suryarao peta, Kakinada and subsequently paid Rs.22,68,000/- towards part payment of the sale consideration by way of cash, which were acknowledged by the opposite party no.1 rep. by its partner. Subsequently the agreement for sale cum construction was executed between opp.party no.1 rep. by its partner Mr.Amit Shah and Ram Kishore Baldawa and the complainant and her husband on 14.11.2006. The opp.party no.1 with an intention to deprive the right of the complainant has altered the extent of undivided share of land to 37.64 sq. yards instead of 45 sq.yards and committed deficiency in service, in not providing actual undivided share of land, as per the prorata area of the total land and as per entitlement, inspite of collecting the price for the flat including undivided share of land.
Hence the opp.parties are liable either to rectify the sale deed by correcting the figure of undivided share of land as 45 sq. yards or to refund the cost of the land as per the market value @ Rs.60,000/- per sq.yard. The complainant came to know that GHMC authorities have passed orders stopping construction activity in the subject property due to litigation pending before various courts with Wakf Board. When the complainant questioned the opp.party no.2 about the said fact, he pleaded ignorance about the pendency of such litigation before the court of law and requested to wait for one year, so that all the pending issues will be finalized. The entire construction activity was stopped and the complainant waited patiently. Opp.party no.1 rep. by opp.party no.2 issued a legal notice dt. 13.9.2008 with false allegations for which the complainant issued a reply dt. 20.9.2008. The opp.parties have deliberately violated the permit conditions and other building bye laws which are in force .Instead of correcting the misdeeds and mistakes in rendering their services which are obligatory under law. Opp.party no.1 rep. by opp.party no.2 issued legal notice dt.4.3.2009 to the complainant and her husband with threatening language and false allegations and demanded more money towards expenses and charges for amenities and towards interest on the delayed period, where the work was stopped, for which, the complainant issued a suitable reply dt. 19.3.2009.
The complainant submits that the bank has sanctioned the loan and arranged the balance sale consideration amount of Rs.18,68,000/- by way of DD and when the complainant approached opp.party no.2 personally for registration of the regular sale deed , opp.party no.2 put a condition to the complainant to pay Rs.300/- more per sq.ft. by way of cash and further demanded regularization expenses and other expenses to a tune of Rs.16,000/-, otherwise the said property will be sold to some third party. As there is no other alternative, the complainant was forced to accept the demands of opp.party no.2 by paying additional amount of Rs.300/- per sq.ft. on 1187 sq.ft.
and total amount of Rs.3,56,100/-
was paid by way of cash, in addition to the amount paid by way of DD for Rs.18,68,000/- dt. 23.10.2008 and an amount of Rs.1,22,500/- by way of DD dt. 30.10.09 and also Rs.24,500/- under the guise of Vat Tax. Thus total sum of Rs.46,58,500/- was paid under coercion and the sale deed was registered on 30.10.2009.
After taking possession of the flat , the complainant noticed that the works were not carried out as per the standards and specifications. The complainant issued notice dt.25.6.2010 to opp.party no.2 but the opp.parties failed to rectify the defects. Thereafter opp.party no.2 furnished BPS Proceedings dt. 15.9.2009 issued by GHMC for the flat purchased by the complainant, which discloses that the total area of the flat including common area is 1187 sq.ft. only. The opp.parties have collected amount on the excess 43 sq.ft. The amount that was collected from the complainant on 43 sq.ft. area i.e. 43 x 3,500/- = Rs.1,50,000/- which was not there at all. The actual area of the flat that was approved is 1187 sq. ft in which the common area was loaded at 18% which is not permissible which is supposed to be at 10% on the basis of actual measurements. Thereby the opp.party no.2 has illegally collected the price on such 94 sq.ft. is Rs.3,29,000/-.
The complainants submits that after taking possession of the flat, she noticed incomplete works and other defects and issued notice dt.25.6.2010 demanding to complete and rectify the works. Since the first opp.party failed to rectify the defects, the complainant was constrained to rectify the defects by entrusting the same to M/s.Aayu Constructions and total work cost (with material) Rs.2,50,00/- was paid to the said contractor.
The complainant submits, that permission accorded by GHMC authorities is only for construction of residential flats of 45 in number in five floors only and in violation of the permit, opposite parties have raised commercial establishments like shops and hotels. The complainant issued registered notice to the GHMC authorities on 24.2.2011 complaining about illegal constructions and demanded to demolish the said structures. As the GHMC failed to take action, the complainant along with six others filed W.P.No.27397/2011 on the file of the Honble High Court of A.P. on 29.9.2011, the GHMC had issued notice dt. 17.10.2011 to opp.parties in pursuance of the Writ Petition and the opp.parties filed counter stating that BPS Application for regularization of deviations and other illegal constructions are pending with GHMC authorities for consideration. It is pertinent to mention that the applications under BPS Scheme submitted by opp.parties have been rejected by GHMC authorities on18.7.2011 and inspite of this, the opp.parties have vehemently contested by filing another Writ Petition and counter. The Honble High Court disposed of the Writ Petition on 29.7.2011 directing the GHMC authorities to take action according to law. The complainant states that the opp.parties committed deficiency in service by raising illegal structures and commercial shops in violation of building plan and rules. Hence the complaint.
Resisting the complaint , the opposite parties filed written version denying the material allegations made in the complaint and put the complainant to strict proof of the same. These opposite parties contended that the complaint is barred by limitation in view of the fact that the complaint is filed after purchase of the flat without any objection or complaint prior to filing of the present complaint, as such, the present complaint is liable to be dismissed on this ground alone.
While admitting that old partner retired from partnership firm, these opp.parties denied that the old partner Mr.Amit Shah and Ramkishore Baldawa have offered property for sale to the complainant herein. These opp.parties contended that the husband of the complainant being an advocate has himself ascertained the correctness and title of vendors and has come forward along with the complainant, to purchase the flat in the said property and have paid a token advance of Rs.1 lakh on 11.11.2006 by way of cheque and subsequently after much delay have paid the balance sale consideration and got the sale deed exeucted on 30.10.2009 These opposite parties denied that the complainant herein has paid Rs.22,68,000/- by way of cash, while admitting about the deviation in the construction and about demolition of the extended deviations by the officials of the GHMC. These opp.parties denied that they have asked the complainant to wait for one year to clear all the litigations pending before the court. These opp.parties contended that as a matter of fact, by the said date, no litigation was pending in any court of law pertaining to the said property, on which the construction was made by the opposite party no.1 and the complainant has purchased the flat thereof. These opp.parties further contended that Wakf Board authorities have illegally claimed the said property and all those aspects were cleared and their illegal claim was disproved before the court of law and the matters were disposed of in favour of owner of the property. Subsequently, under Building Penalisation Scheme, the opposite parties herein have got all the flats regularized and delivered a very good flat for living to the complainant. These opp.parties denied the claim of the complainant that she had to wait more than a year without any option. At the time of demolition, the opposite party no.1 firm has asked the complainant to take back the amounts paid by her but the complainant has demanded the constructed flat as agreed upon and the opposite parties have delivered duly constructed flat to the complainant and that too, within time agreed upon, inspite of hassles of demolition and regularization.
These opp.parties further contended that the complainant further verified the construction which was going on at the site and was very much aware, with regard to the minor deviations, since the property is situated in commercial area and the building was constructed as commercial-cumresidential, as such, now cannot come forward before the District Forum and say that the construction is absolutely illegal . The complainant has noticed about the construction and also verified with the brochure which was given to the complainant at the time of purchase of the property and agreed to take the same, but the complainant intentionally suppressed the said brochure, basing on which, the flat was purchased, in view of the fact that it was very clearly shown about area of the flat and other details. As a matter of fact, there was no deficiency in service, as such, the contentions and claims as made out in the complaint are absolutely illegal.
These opposite parties further contended that it was categorically agreed between the parties that the area of the land is 1230 sq.ft.
including common area and car parking. The undivided share of land which was originally agreed between the parties was 37.64 sq. yards which is shown in the agreement and the same was also shown in the sale deed, as such, the allegations that the opposite party agreed for undivided share of land admeasuring 45 sqyards is not correct. All these allegations are created, in order to harass the opp.parties under one pretext or the other These opp.parties further contended that soonafter the purchase of the property, the complainant started residing along with her family and did not spend single paisa for the flat nor made any repairs, till the date of their written version, however they falsely claimed Rs.,2,50,000/- towards the rectification of defects without giving details of it, as such, the claim of the petitioner is totally illegal, far from truth and liable to be rejected. While denying the allegations with regard to the collecting of amount for excess area of 43 sq.ft.
as false and baseless, these opposite parties contended that the complainant satisfied herself with the area of flat and thereafter got executed the sale deed. It is also denied that the opp.party collected of Rs.3,56,100/- excess amount from the complainant at Rs.300/- per sq.ft. It is only a story created by the complainant without any documentary proof. While denying the claim of Rs.3,29,000/- towards the excess amount collected for the common area, these opposite parties contended, that after execution of sale deed for about more than two years, the complainant has not even objected or complained to the opposite parties on this ground and for the first time, directly filed the present complaint even without issuing notice on these grounds.
These opp.parties further contended that an amount of Rs.24,500/- was directly paid by the complainant before the Registrar in the name of CTO, N.S.Road and the said amount has not been collected by the opposite parties, as such the question of claim of refund of the said amount from the opposite parties does no arise. The complainant suppressed the material fact of obtaining of demand draft in the name of CTO, N.S.Road at the time of registration of sale deed. These opp.parties further contended that the claim of Rs.2,52,000/- towards the rent from 27.2.2007 to 2009 is un tenable in view of the fact that at no point of time these opposite parties agreed for the same. Even before execution of the sale deed, there was exchange of notices between the parties and no claim was made by the complainant and for the first time, the complainant is making the claim before this Commission on imaginary grounds. As such, the same are liable to be rejected. The complainant has made her own calculations of Rs.3,50,000/- towards damages for illegal construction and shops constructed in violation of building plan. The complainant is not at all entitled for any amount, much less imaginary figure of Rs.3,50,000/- as alleged. The complainant is not entitled for any amount for mental agony and costs of the complaint as claimed , in view of the fact that the complainant herself has given mental agony and torture to the opp.parties and infact the complainant is liable to pay damages to the opposite parties for the claim on the basis of false and frivolous grounds without any basis.
These opposite parties further contended that that the complainant through her husband had been playing mischievous tactics since the date of entering into an a Agreement of Sale and having paid only a sum of Rs.1 lakh for sale of the flat , has protracted for payment of amounts for more than 16 months and hence opp.party no.1 got issued notice calling upon to pay the amount, to which, a reply was sent by the complainant showing his readiness to get the sale deed executed in her favour . As a matter of fact, the opp.party no.1 has specifically intimated to the complainant and her husband that he is not intending to sell the said flat to them but have started negotiating and shown undue influence and as the husband of the complainant being an advocate got the sale deed executed at very reasonable rate without paying total amounts as agreed towards cost of parking , electricity meter, water connection and other amenities charges such as generator facilities lifts, water pumps, borewell etc. These opp.parties further contended that the calculations made by the complainant under page nos. 6 to10 are absolutely illegal and activated with malice to extract illegal amounts from the answering opp.parties.
As a matter of fact, at the time of entering into agreement of sale , the complainant was very much aware that the building complex was commercial cum residential , as per the brochure and other specifications given to the complainant herein way back in the year 2007 itself. These opp.parties further contended that the complainant had been trying arm-twisting the builder and owner through her husband to pay the illegal amounts to them, else they would continue to press upon the complaints filed before the Corporation and since could not yield anything out of it had filed the present complaint.
These opp.parties further contended that the complainant after getting the sale deed executed in his favour has never made any complaint with regard to non satisfaction of construction work of the flat. Since there were exchange of notices , earlier to execution of sale deed, the complainant through her husband creating a very bad atmosphere in the building complex by instigating the other flat owners for illegal acts . Hence the present complaint is bad in law and liable to be dismissed on this ground. Therefore the complaint is liable to be dismissed with exemplary costs of Rs.50,000/-
During the course of enquiry , in order to prove her case, the complainant filed her evidence affidavit narrating her case as set out in the complaint and got marked Exs.A1 to A37 . On behalf of the opp.parties, opp.party no.2 filed his evidence affidavit and got marked Exs.B1 to B3 We heard the counsel for both parties and perused the entire material on record including the written arguments filed by both parties .
Now the points that arise for consideration are:
1. Whether the complaint is barred by limitation as contended by the opp.parties?
2. Whether there is any deficiency in service on the part of the opp.parties?
3. To what relief?
Claim No.1 : For an amount of Rs.1,50,300/- the amount collected illegally on the excess area of 43 sq.ft. @ Rs.3,500/- per sq.ft:-
The case of the complainant is that the area of the flat including common area is 1187 sq.ft. as per GHMC sanctioned plan, as per GHMC BPS plan and proceedings and also as per Ex.A11 dt.28.10.2010 AnnexureIA signed by opposite party no.2. But the builder has collected the amount by showing the area of the flat as 1230 sq.ft. . Thus an amount of Rs.1,50,500/- was collected illegally on 43 sq.ft.(1230 sq.ft.
1187 sq.ft.).
The opposite parties denied the above case of the complainant.
In support of the above claim, the complainant filed Ex.A11 Annexure 1-A dt.28.10.09 and Ex.A16 GHMC BPS proceedings dt. 15.9.2009. The complainant is claiming that Ex.A11 is the part of the sale deed signed by the opposite party no.2. Ex.A11 is not signed by the vendees. Further there is annexure I A to Ex.A14 sale deeds singed by both the vendors and vendees. It is not known as to how Ex.A11 is came into existence . It is not annexed to Ex.A14 sale deed. Though the area of the flat no.406 is given as 1187 in Ex.A11, the same is given as 1230 in Annexure I A to Ex.A14 Sale Deed. Now coming to Ex.A16 the flat area is given as 1187 sq.fts. The opposite parties are not parties to Ex.A16 proceedings . It is not known on what basis , GHMC incorporated the flat area as 1187 sq.ft. in Ex.A16 . In Ex.A5 agreement of Sale cum Construction and Ex.A14 , the Xerox copy of the sale deed, which are not disputed by any of the parties. The area of flat no.406 is given as 1230 sq.ft. The complainant failed to prove that the area of the flat is wrongly given in Ex.A5 and A14 documents , the contents of which are not disputed by both the parties. The complainant has therefore failed to prove that the opposite parties have collected Rs.1,50,500/- as excess amount from the complainant for the area of 43 sq.ft. @ Rs.3,500/- per sq.ft. In view of the above facts and circumstances, we are of the view that the complainant is not entitled claim refund of Rs. 1,50,500/- from the opposite parties.
Claim No.2:
For an amount of Rs.3,56,000/- the excess amount collected from the complainant @ Rs.300/- per sq.ft. on the total area of the flat 1187 sq.ft. :
The case of the complainant is that rate per sq.ft.
which was originally agreed is Rs.3,200/ but the opp.parties have collected an additional amount of Rs.300/- per sq.ft. from the complainant on the total area of 1187 sq.ft. which comes to Rs.3,56,100/-. The opposite parties denied the above claim of the complainant.
In support of this claim, the complainant filed Exs.A6 copy of the registered notice dt. 13.9.2008 issued by opp.party no.1 to the complainant demanding additional amount and Ex.A8 another notice dt.4.3.2009 got issued by the opposite parties through their advocate to the complainant and her husband. As seen from Ex.A6 notice , the middle page of Ex.A6 notice is found missing. Even if Ex.A6 containing two sheets taken into consideration, it does not establish that the opposite parties have collected additional amount of Rs.3,56,100/- as stated above. Under Ex.A6, the opposite parties have demanded the complainant and her husband to pay the balance sale consideration of Rs.18,68,000/- and the maintenance charges as agreed under the agreement. Ex.A7 is another notice got issued by opposite parties to the complainant and her husband demanding to pay the balance amount.
Ex.A8 also does not show that the opposite parties have collected Rs.3,56,100/- as claimed by the complainant. In view of the above facts and circumstances, the complainant failed to prove that the opposite parties collected excess amount of Rs.3,56,100/- from the complainant as claimed above. Therefore, we hold that the complainant is not entitled to claim refund of Rs.3,50,100/- .
Claim no.3 : For rectifying the sale deed for 45 sq.yards in the place of 37.64 sq.yards of undivided share of land alternatively pass an award to pay an amount of Rs.4,80,000/- the value of the undivided share of land of 8 sq.yards which is supposed to be allotted, the amount for the same alternatively asked for reimbursement. The rate of the said area in Rs.60,000/- per sq.yd. which is the market value:
The case of the complainant is that the total area of land is 2830 sq.yards . The builders share in the total land is 1415 sq.yards, of which, as per logical ratio the complainant shall become owner of the corresponding undivided share in the total land and the same shall be 45 sq.yards, but the opp.parties have mentioned the undivided share of land of the complainant as 37.64 sq.yards. The shortfall of the land shall need to be rectified accordingly. The complainant is claiming Rs.4,80,000/- on the shortfall area at Rs.60,000/- per sq.yard. The opp.parties denied the above claim of the complainant.
In support of this claim the complainant is relying on Ex.A2 wherein the total area of the property bearing municipal no.3-6-527 is given as 2830 sq.yards. In the written arguments, the complainant has given the calculation for arriving of the undivided land area corresponding to the flat area of 1187 sq. ft. is explained hereunder :
The total area land size is . 2,830 sq.yards The total constructed area of the Apartment is 71,346 Sq.ft.
For each sq.yard the construction area shall be.. 26 sq.ft.
The complainants flat area is 1187 sq. ft.
The undivided share of the complt. in the Total land shall be 45 sq.yards But the opp.parties have mentioned the Undivided share of land is 37.64 sq.yards The shortfall of the land shall need to be rectified accordingly.
It was categorically agreed between the parties that the area of the flat is 1230 sq.ft including the common area , car parking. The undivided share of land which was originally agreed between the parties was 37.64 sq.yards which is shown in the agreement and the same was also shown in the sale deed. The complainant has not filed any document to show that opp.parties agreed for undivided share of land admeasuring 45 sq.yards .
Further, as per Clause 7 of the sale deed. Dt. 29.10.2009, the possession is delivered and the vendee is thereafter shall have no claim against the vendors. It is needless to mention here that the complainant having entered into an agreement of sale in the year 2006 and thereafter got executed the original of Ex.A14 sale deed in his name on 29.10.2009 . Further, the possession was admittedly taken by the complainant at the time of the execution of the sale deed. Therefore the complainant cannot say that he was not aware of measurement of the flat and shortfall of undivided share of land. We are of the view that the complainant is bound by the terms of the agreement which clearly states about the measurement of the flats and undivided land recited in the body of the agreement as well as in the schedule of the property, as held in the decision reported in 1991 CPJ (1) 147 (A.V.Narayan vs. The Commissioner) and a decision reported in 1999 (8) SCC 588 TULIP PARK COOPERATIVE HOUSING SOCIETY LTD. vs. SAI OVERSEAS IMPORT & EXPORT. Further the complainant has not filed any document to show that whether the actual measurement of the property was taken by any engineer or architect or else any expert and informed the opposite party with regard to the calculation of undivided share of land and the area of flat including common area and car parking. Therefore, the claim of the complainant is an imaginary figure and without any basis and hence liable to be rejected.
Claim No.4 : For refund of an amount of Rs.3,29,000/- towards the excess amount that was collected on common area which was loaded at 18% without any logical prorate calculation:
Under this claim, the case of the complainant is that the common area shall be 10% on the floor area construction. But the builder admittedly has loaded 18% common area on the total area of the floor.
The total construction of each floor area is 13,159 sq.ft including common area . But the builder has mentioned the total constructed area as 14,269 sq.ft. Thus the builder has loaded 1,100 sq.ft. in each floor without constructing the physical area. Thereby he has collected the amount for the excess area of 94 sq.ft. @ Rs.3,500/- from the complainant. Therefore the complainant is entitled for refund of Rs.3,29,000/- from the opp.parties. The opp.parties denied the said case of the complainant.
In support of this claim, the complainant filed Ex.A15 copy of the notice dt. 25.6.2010 issued by G.Srinivasa Rao , the husband of the complainant and purchasers of some flats to the builder M/s. Venkatesh Constructions, Hyderabad(opp.party no.1) informing the builder regarding the incomplete works and poor quality of works to be attended or rectified by the builder on urgent basis. The list of works kept incomplete is also given in Ex.A15.
The builder was asked to complete the incomplete pending works within 15 days from the date of receipt of this letter. Therefore Ex.A15 is not relevant for the purpose of proof of this claim. Except the interested averments in the complaint as well as in the evidence affidavit of the complainant , there is no iota of evidence to show that the opposite parties collected excess amount of Rs.3,29,000/- as alleged by the complainant. After execution of the sale deed, for about more than two years, the complainant has not even objected or complained to the opp.parties, on these grounds and for the first time, directly filed the present complaint, even without issuing the notice on this ground.
Further, once the complainant made payment towards the full and final settlement, relating to the flat which he has taken possession, then the complainant cannot claim that there is shortage of area of the flat allotted to him, that too after more than two years, as such, the complainant is not entitled for the amount as claimed, as held in a decision reported in 95 (I) An.W.R. 63 (CPA) and IV 2012 CPJ 98 (NC) in SRICHAND K. BAJAJ vs. S.M.N.CONSUMER PROTECTION COUNCIL AND ANOTHER and IV 2012 CPJ 98 (NC) in VANDANA AGGARWAL vs. MAHAGUN DEVELOPERS LTD. AND OTHERS.
Claim No.5 : For refund of an amount of Rs.24,500/- collected under the guise of VAT Tax:
Under this claim the case of the complainant is that the opposite parties have collected a sum of Rs. 24,500/-, at the time of affecting the registration of sale deed, towards Vat Tax. The VAT Tax is not applicable where the transaction is for the residential building . In this case, the opposite parties have collected the amount without any statutory liability . Therefore the complainant is entitled for refund of the same. The opp.parties denied to have collected Rs.24,500/-
towards VAT Tax.
In support of this claim, the complainant filed Ex.A13 copy of DD for Rs.24,500/- dt.30.10.2009. As seen from Ex.A13 an amount of Rs.24,500/- was paid through DD in favour of CTO, N.S.Road, Hyderabad to the Sub Registrar. Ex.A13 does not prove that the amount covered by Ex.A13 was collected by the opp.parties at the time of registration of the sale deed. Under these circumstances, the complainant failed to prove that the opposite party collected a sum of Rs.24,500/- at the time of effecting the registration of sale deed towards VAT Tax. We therefore hold that the complainant is not entitled to refund of the amount of Rs.24,500/- as claimed by her.
Claim No.6: For an amount of Rs.1,22,500/- which was collected illegally by the opp.parties:
Under this claim, the case of the complainant is that the subject flat area ( in size is 1187 sq.ft.
including common area) as per GHMC BPS plan and as per the construction, but the opposite parties have mischievously mentioned the area of flat as 1230 sq.ft. instead of showing as 1187 sq.ft. in order to squeeze more money from the complainant. The Government, with a view of helping low area house purchasers, made a slab policy registration fee and charges if the area of the flat is below 1200 sq.ft. Accordingly the rate was fixed for the flats below 1200 sq.ft. The opposite parties have deprived the complainant from enjoying the benefit of low rate registration charges by making the flat area as 1230 sq. ft.
The opp.parties further have collected an amount of Rs.1,22,500/- by way of DD from the complainant by applying coercive strategies. The complainant is entitled for refund of the same . The opp.parties have denied the above case of the complainant.
In support of this claim , the complainant filed Ex.A14 , the copy of the sale deed and Ex.A12 DD dt. 30.10.2009 . As mentioned above, the complainant failed to prove that the area of the subject flat is 1187 sq.ft. including the common area, but the opp.parties have mentioned the area of the flat as 1230 sq.ft. Infact, the registration charges are to be borne by the complainant. The total amount of registration charges as per the sale deed is Rs.1,83,900 out of which Rs.1,22,500/- was adjusted towards the stamp duty which was paid by the opposite parties, at the time of above agreement. Under these circumstances, the complainant is not entitled to refund of any registration charges or stamp duty paid by him.
Claim No.7 : For an amount of Rs.2,50,000/- the cost incurred for rectification of the defects and other defaults that were committed by the builder while constructing the flat:
Under this claim, the case of the complainant is that, the complainant after paying the entire amount as demanded by the opposite party, took possession of the property and noticed incomplete portion of the work and other defects which were brought to the notice of the opposite parytno.2 for their rectification and completion, by issuing Ex.A15 copy of the registered notice dt.
25.6.2010 . Since the opposite parties have failed to comply with the notice and failed to discharge their obligation as per law, the complainant was compelled to get the defective works and other incomplete works rectified by entrusting the same to AAYU Constructions (Contractors) by incurring heavy expenditure. Accordingly the work as assigned was carried out by the said AAYU Constructions .The complainant incurred an amount of Rs.2,50,000/- towards the material and labour as explained in Ex.A37 dt. 18.8.2010 .The complainant is therefore entitled for refund of the same. The opposite parties denied the above case of the complainant .
In support of her case, the complainant filed Exs.A15 copy of the registered notice dt.25.6.2010 and Ex.A37 acknowledgement issued by AAYU Constructions in favour of the complainant and her husband. Infact in the entire complaint, the complainant has not given any details of Rs. 2,50,000/- which was alleged to be incurred by the complainant. It is also not mentioned clearly in the complaint as to what is the defect rectified by the complainant. It is the case of the opposite parties, that prior to the execution of the sale deed, the entire work was already completed. Further, the transaction was put to an end on 29.10.2009 i.e. the date of the sale deed and from that day till the date of filing of the complaint by the complainant , there was not a single complaint made by the complainant with regard to the alleged defect and rectification of the defect. Ex.A15 notice dt. 25.6.2010 is totally silent on the defects in the flat no.406 of the complainant. As stated above, the said notice was given by the complainant along with other flat owners questioning the work of common area, but not the defects in the flat of the complainant. No notice was issued nor did a complaint was made for cost of construction as claimed, in the present complaint. Apart from that , there is no documentary evidence filed by the complainant showing the work done by the complainant after execution of sale deed . It is pertinent to mention here that in the entire complaint filed by the complainant, there are no details of sum of Rs.2,50,000/-. However at the stage of the evidence and in written arguments, the complainant came up with the case of entrustment of work to AAYU Constructions for incomplete works. Infact, the alleged claim of defect was made first time by the complainant in the complaint and the complaint was filed after two years . As such, the same is liable to be rejected.
Claim no.8:
For an amount of Rs.2,52,000/- (Rs.13,000/- towards house rent and Rs.1,000/- towards maintenance per month paid by the complainant from June, 2007 to Nov,2009 ( the delay period):
Under this claim , case of the complainant is that the time for completion of the construction of the subject apartment is four months with a grace period of two months, from the date of the agreement , as per the agreement dated 14.11.2006 i.e. Ex.A5 . The date of completion of the construction work should be 12.5.2007 , but the opposite party failed to perform their obligation in completing the construction work on time. There is much delay in delivering the property to the complainant. Because of this delay , the complainant incurred an expenditure of Rs.2,52,000/- towards the house rent and maintenance , during the delay period. The complainant is therefore entitled to recover the same from the opposite parties. The opposite parties denied the above case of the complainant.
In support of this claim, the complainant filed Ex.A5 Agreement of Sale cum Construction, Ex.A8 legal notice dt. 4.3.2009 issued by the opposite parties to the complainant and her husband, Ex.A16 , BPS Proceedings dt. 15.9.2009. It is an admitted fact that there are deviations in the construction of the subject apartment and officials of GHMC visited the spot and demolished the extended deviations . It is also an admitted fact that subsequently, under Building Penalisation Scheme , the opposite parties have got all the flats regularized and delivered the flat for living to the complainant. It is the case of the opposite parties that at the time of demolition, the opposite party no.1 firm asked the complainant to take back the amount paid by her, but the complainant herein has demanded for the constructed flat as agreed upon and opposite parties have delivered duly constructed flat to the complainant . The complainant has not denied the above case of the opposite parties.
Further, as seen from Ex.A6 and A8 dt. 4.3.2009 the complainant has not paid the balance amount of Rs.18,68,000/- till the date of Ex.A8. Further, the complainant has not adduced any evidence, in support of her claim of Rs.2,52,000/- towards the house rent and maintenance during the delayed period. Infact , there is no default clause in Ex.A5 agreement of sale to the effect that if possession of the flat is not delivered within the stipulated time, the vendees are entitled to claim rent and maintenance or damages. Since the complainant has not paid the considerable amount of balance of sale consideration, in our considered view, she is not entitled to either rent or maintenance charges or damages as claimed by them . Infact the complainant never issued any notice to the opposite parties, before and after sale deed 2910.2009.
Claim no.9: For an amount of Rs.3,50,000/- towards compensation (damages) on account of construction of illegal structures and shops that were constructed in violation of building plan and rules there in and for causing obstruction from peaceful enjoyment of the property:
Under this claim, the case of the complainant is that inspite of serious protests, the opposite parties have started construction of unauthorized and illegal shops and commercial establishments in the cellar and stilt portion, in violation of approved plan. Further, the opposite parties have started illegal and hazardous activities like Hookah shops, non vegetarian restaurants, due to which, the flames and pungent vapours and odours that are being emanated from the restaurants have been creating air pollution and sound pollution which in turn have been causing health hazards to the resident so the apartments. On number of occasions , the complainant demanded the opposite parties to remove and close such illegal activities. The permission which was accorded by GHMC authorities is only for construction of residential flats 45 in number, in five floors only. Therefore the complainant is entitled to claim compensation of Rs.3,50,000/- from the opposite party. The opposite parties denied the above case of the complainant.
In support of this claim the complainant filed Ex.A17 registered notice issued by the complainant to GHMC authorities on24.2.2011, complaining about the said illegal construction with a demand to take action with regard to the said unauthorized construction by demolishing the said shops. Ex.A18, the copy of the notice got issued by GHMC authorities dt.17.10.2011 u/s.452 GHMC Act to the opposite party to remove the structure of 14 shops in cellar floor and stilt floor parking place which is violated the G.O.Ms.No.86 MN dt.3.3.2006. As seen from Ex.A35, the complainant six others filed a petition no.27397/2011 on the file of Honble High Court of A.P. seeking direction to the respondents 1,2,3 therein i.e. GHMC ., Chief City Planner, GHMC and the Deputy Commissioner, Circle-IX, GHMC to demolish all the commercial shops and hotel being run in the residential apartments namely Highness Residency. The said Writ Petition was disposed of on 29.12.2011 directing the respondent no.1 to take appropriate decision in the matter in accordance with law as suggested by the counsel for all the parties. The complainant has also filed two photographs of apartment under Ex.A36 which are of no help to arrive at right conclusion in this case.
From Exs.A6 to A9 notices exchanged between the parties, it is clear that the complainant knew about the deviations in the construction of the apartments even prior to the date of sale i.e. 29.10.2009. It is not in dispute that the shops in question were there even by the date of registration of Ex.A14 sale deed, in favour of the complainant . It is the case of the opposite parties that at the time of entering into agreement, the brochure was shown to the complainant and the complainant was well aware of the proposed construction of the shops. The said case of the opp.parties is not seriously disputed by the complainant. Under these circumstances, being a wife of an advocate, the complainant cannot say that she has no knowledge about these deviations and existence of the shops in question, at the time of obtaining the sale deed from the opposite parties. It is significant to note that there is no complaint from any occupant out of 45 occupants of the Residency except the complainant. There is no complaint from any occupant regarding sufficient parking space. As stated above, the present complaint was filed after more than two years from the date of registered sale deed and that the complainant, after getting the sale deed executed in her favour , has never made any complaint at any time with regard to the non satisfaction of the construction work or defects in the flat and the present complaint is filed without issuing any notice or complaint to the opposite parties It is the case of the opp.parties that the flat of the complainant was already regularized by the GHMC under BPS Scheme. However, the regularization application for shops was rejected on account of the complaint made by the complainant, along with other persons and an appeal was preferred before the appellate committee against the said rejection and the opp.parties have also filed Writ Petition no.24268/2012 questioning the said rejection of BPS application and the same is pending before the Honble High Court along with interim orders. The Govt. of Andhra Pradesh Municipal Administration and Urban Development (M) Department has come out with a modification of BPS scheme by issuing memo no.5382/M1/2010 DT. 27.7.2011 wherein Government authorized GHMC to regularize the construction in cellar and ground floors with modification of BPS on the ground that if the extent of parking area is available on the ground is more than area earmarked for parking in the sanctioned plan, the Commissioner GHMC is permitted to consider the regularization of shops on set back area. The opp.parties herein already filed application before the Govt. of A.P. under the said guidelines and there is every possibility of regularization of the shops . The shops are already mutated and the tax is being paid from 1.4.2010 onwardsw.
In support of the above case, the opp.parties filed Exs.B1 to B3. Ex.B1 is the Tax receipt dt.
31.3.2011 with regard to shop no.1 bearing door no.3-6-527. Ex.B2 is the stay order granted by the Hon ble High Court dt. 13.8.2012 in W.P.M.P.no.30991/2012 in WP.No.24268/2012 from taking further action from demolishing further structure i.e. the shops in question. Ex.B3 memo no.5382/M1/2010 ISSUED BY THE Govt. of A.P. regarding regularisation of unauthorizedly constructed building and buildings constructed in deviation of the sanctioned plan.
In view of the facts and circumstances discussed above , we are of the view that the complainant has no right to demand damages for illegal construction and shops constructed in violation of building plan. Therefore , the complainant is not entitled for any amount much less imaginary figure of Rs.3,50,000/- as claimed by her.
Claim Nos.10 and 11: For an amount of Rs. 2,50,000/- towards the inconvenience, mental agony , pain and suffering for deficiency in service an amount of Rs.1,25,000/- towards costs of this complaint and expenses incurred for resolving the dispute before the various courts:
In view of our above findings on the other claims, we are of the view that the complainant is not entitiled for these two claims.
Under Claim no. 12 the complainant claimed that she is entitled to claim interest on the claims at 18% from the date of entitlement till realization. Since the complainant failed to prove any one of the claims made by her in the complaint, the question of awarding interest much less at 18% p.a. does not arise.
For the afore said facts and circumstances, the complainant failed to establish deficiency in service on the part of the opposite parties. Hence the complaint fails.
In the result, the complaint is dismissed with costs of Rs.5000/- payable to the opposite parties by the complainant .
INCHARGE PRESIDENT MEMBER Pm* Dt. 18.4.2013 APPENDIX OF EVIDENCE Witnesses examined For the Complainant :nil For the opp.parties:nil Chief Affidavit evidence of complainant filed Affidavits in lieu of chief examination of DW.1 are filed on behalf of the respondents Exhibits marked on behalf of the complainant:
Ex.A1 : Partnership retirement deed of opp.parties dt. 31.1.2008 Ex.A2 : Development Agreement cum GPA DT. 21.6.2004 Ex.A3 : Legal opinion of Damodar Mundra, Advocate.
Ex.A4 : Acknowledgement dt. 12.11.2006 issued by Opp. party No.1 Ex.A5 : Agreement of sale cum construction dt. 14.11.2006 Ex.A6 :Notice issued by opp.party no.1 to complt. and her husband Ex.A7 : reply notice dt.
20.9.2008 by complainant to O.P.No.2 Ex.A8 : Legal notice dt.
4.3.2009 issued by opp.party no.2 to complt.
Ex.A9:Reply notice dt. 19.3.2009 issued by complt.
to counbsel for opp.party no.2 Ex.A10 D.D.Drawn on Andhra Bank favouring opp.party no.1 Ex.A11 : Annexure 1 A ( part of sale deed) Ex.A12 DD for Rs.1,22,500/- in favour of opp.party no.1 Ex.A13:
DD. For Rs.24,500/- towards VAT tax.
Exs.A14: Sale deed copy dt. 29.10.2009. .
Ex.A15 :Notice issued by complt. and other flat owners to Opp.party no.1 Ex.A16 :Proceedings dt.15.9.09 issued by GHMC pertaining to Flat No.406.
Ex.A17 : Legal notice dt 24.2.2011 of the complt to GHMC Ex.A18 : Notice u/s. 452 dt. 17.10.2011 issued by GHMC Ex.A19:Representation dt. 22.10.2011 of Nikhat Parveen and others Rep. by OP.NO.1 to the Commissioner,GHMC.
Ex.A20 to 34 : letters issued by GHMC dt. 18.7.2011, to Sri Nikhat Praveen and others refusing to consider their BPS Application.
Ex.A35:Order passed in WP.No.27397/11 of Honble High Court of A.P. Ex.A36 : Photographs of the apartment , two in number.
Ex.A37 : AAYU Constructions lr.dt.18.8.2010 regarding nature of works undertaken and amount received by them.
Exhibits marked on behalf fo the opp.parties :
Ex.B1 :Tax receipt dt 31.3.2011 issued by GHMC along with Special notice house tax issued by GHMC Ex.B2 :
order in WPMP No.30991/2012 in WP. No.24268/2012 Ex.B3 : Memo issued by Govt. of A.P. dt. 27.7.2011.
INCHARGE PRESIDENT MEMBER 18.4.2013 PM*