National Consumer Disputes Redressal
M/S. Lahari Impex (P) Ltd. & 2 Ors. vs M/S. Kondapur Lahari Homes Owner'S ... on 13 February, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 83 OF 2012 (Against the Order dated 19/12/2011 in Complaint No. 52/2008 of the State Commission Andhra Pradesh) 1. M/S. LAHARI IMPEX (P) LTD. & 2 ORS. Rep. by its Director, Smt. G. Venkata Lakshmi W/o Sri G. Hari Babu, Presentlt R/o Plot No. 35A, Road, No. 6, Film Nagar, Jubilee Hiils, HYDERABAD-500033 ANDHRA PRADESH 2. SRI ALAPATI VENKATESHWAR RAO Managing Partner, M/s Lahari Homes, Presently R/o Flat No. 303, Krish Meadows, Srinagar Colony, HYDERABAD-500073 A.P 3. M/S, LAHARI GROUPS Rep. by its Managing Partner Smt. G. Venkata Laxmi, W/o G. Hari Babu, Regd. Office : Lahari Group, Road No. 37, Jubilee Hills, HYDERABAD-500033 A.P. ...........Appellant(s) Versus 1. M/S. KONDAPUR LAHARI HOMES OWNER'S ASSOCIATION Rep. by its President, Sri Ravi Kumar Miriyala, Regd. Office: Plot no. 3, Lahari Homes, Masjid Banda. Kondapur, HYDERABAD-500032 ANDHRA PRADESH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT
FOR THE APPELLANT : MR. UNNAM SRAVAN KUMAR, ADVOCATE FOR THE RESPONDENT : MR. KUMAR SHASHANK, ADVOCATE FOR
MR. BYRAPANENI SUYODHAN, ADVOCATE
Dated : 13 February 2024 ORDER
This appeal arises out of the impugned order dated 19.12.2011 CC/52/2008 that was allowed by the State Commission Disputes Redressal Commission, Hyderabad whereby the Complainant Society was directed to be paid an amount of Rs.20,26,000/- together with costs of Rs.5,000/- within four weeks of the order, failing which 9% interest would be payable.
The claim was made against the Appellants who were directed to comply with the directions given by the State Commission.
The deficiencies were alleged on behalf of the Members of the Complainant/Respondent Association. The Association is registered under the Societies Registration Act and the Certificate of Registration dated 05.02.2008 is on record. The said society is named as Kondapur Lahari Homes Owner's Association at Serilingampally Mandal, Kondapur, Hyderabad, Andhra Pradesh.
The Complaint was filed in 2008 alleging that the Association has been formed, and that 20 Members vide Resolution dated 26.09.2008 resolved to authorize the President of the Association, Mr. Ravi Kumar Miriyala to obtain a Value Assessment Report from an engineer regarding the deficiencies for which the claim was being made.
It is to be noted at this juncture that apart from this complaint filed by the Association before the State Commission, two separate complaints were also filed before the District Consumer Dispute Redressal Commission, Ranga Reddy, namely CC/171/2008 Bayyapu Pavan Reddy versus the same Appellants herein and another complaint before the same District Commission being CC/172/2008 by Padma Miriyala wife of the President of the Complainant Association. These two complaints were dismissed holding that there was no deficiency in service vide order dated 24.05.2011. The aforesaid orders of the District Commission are on record.
The complaint giving rise to this appeal was filed before the State Commission alleging deficiencies in common amenities for which a sum of Rs.83,50,000/- towards the incomplete work was claimed and further compensation of Rs.10,00,000/- together with cost of Rs.5,00,000/- was prayed for.
The facts that need to be traversed keeping in view the arguments that have been advanced are that certain land was purchased in the year 2002-2003 from various people existing over survey no.165, 166 and 167 in village Kondapur, Serilingampally Mandal and Municipality Ranga Reddy District Andhra Pradesh. The purchasers in turn entered into an agreement of sale and also executed a general power of attorney in favour of M/s Lahari Homes, a partnership firm represented by its managing partner Shri Alapati Venkateshwar Rao the Appellant No.2 herein. The land was then developed by M/s Lahari homes through its above mentioned managing partner, and then through separate sale deeds that were executed on 16th day of January 2006, the land was transferred receiving consideration from 30 persons who consequently became owners of these 30 plots.
In 2006 February and thereafter, some of the plot owners who were 23 in number, out of 30, entered into an agreement for construction/development with M/s Lahari Homes through its managing partner Mr. Alapati Venkateshwar Rao who is the Appellant No.2 in this appeal. One of the contentions raised by the learned Counsel for the Appellant is that there is a clear misjoinder of parties and an incorrect description, inasmuch as, the Appellant No.2 has been made a party in person in the complaint whereas if any relief was warranted arising out of an agreement of construction/development, then it is the registered firm namely M/s Lahari Homes that ought to have been arrayed as a party which has not been done. This argument has been advanced to urge that this defective representation therefore is a notable defect but the complaint has been allowed without adverting to the aforesaid fact.
One of the sample agreements for construction/development entered into with one of the plot purchasers Mr. M.V.V. Nageswara Rao has been placed on record and the agreement for the other 22 plot buyers are also available on the records of the State Commission. Since the terms and conditions of all the said agreements are similar therefore the one that has been placed on record shall be referred to in this order. The dispute that has arisen in the present complaint is with regard to the alleged deficiencies in the special features referred to in the said construction agreement dated 25.02.2006 which is extracted hereinunder.
" SPECIAL FEATURES:
Central street lighting system for main roads. Fully secured compound wall. Intercom facility to all the units connecting security. Centrally located landscaped garden connected to club. Club facilities consisting provision of multipurpose hall with attached toilets. Mediation hall.etc.. Parks with play ground equipments. Loft tank for each unit. Provision for lighting arrester. Providing Avenue plantation on either side of the road and park development with designer landscaping and construction of grand maintenance structure, gate, security room etc,"
At the very outset it is clarified and there is no dispute that there are 30 plot holders out of whom only 20 have joined in the present complaint, and their names along with the plot numbers together with the status of their construction agreements as disclosed in paragraph 8 of the complaint is extracted hereinunder:
Name of the alleged Members of complainant association Plot Nos Construction Agreements Smt Padma Miriyala Yes S. Venkata Ramana Reddy No R. Vijay Kumar Yes Hari Anumolu No Ch. Venkat 6 Yes Srinivas Sripathi ( Vasundhara) Yes M.V.V. Nageswara Rao Yes Satyendra Kumar Sinha Yes Y. Sai Bhushan Yes B. Pavan Reddy Yes Aruna Somendra Yes Pratap Lakshman 3-A Yes Sunil Thumma 14 No Prakash Katragadda No Y. Sudheer Yes T. Ramesh Babu Cancelled Vikas Singh Cancelled Gautham M. 9-A Yes Ravi Venkatesh Yes Vidya Buddiraju No As noted above out of the 30 plot buyers, only 20 have joined the complaint and have passed aResolution for contesting the matter. Out of the above 20 Complainants, no construction agreement exists or was entered into with 5 persons referred to in the above chart at serial no. 2, 4, 13, 14 and 20. Two persons, whose names appear at serial no.16 and 17, cancelled their construction agreements and thus, out of 30 plot owners, there were no construction agreements in respect of 7 plot owners. Consequently, there were only 23 construction agreements and out of these 23 persons 10 have not joined in the complaint. Thus, there were only 13 persons who had entered into construction agreements and were also part of the complaint. Out of these 13, two of the Complainants at S.No.1 Smt. Padma Miriyala and S.No.10 Bayyapu Pavan Reddy had filed their individual complaints before the District Commission that were dismissed on 24.05.2011.
The complaint therefore according to the learned Counsel for the Appellant could be possibly maintained for 11 persons mentioned at serial no. 3, 5, 6, 7, 8, 9, 11, 12, 15, 18 and 19.
There is one more fact which needs to be mentioned at this very stage as urged by the learned Counsel for the Appellant namely that the Appellants have brought on record the satisfaction letters of 5 persons out of these 11 Complainants namely, Shri Ravi Venkatesh (S.no.19), Shri Somendra Jayram(S.no.11), Mrs Vasundhara Shripathi (S.no.6), Shri Vijay Kumar(S.no.3) and Shri Yarla Gada Sudheer (S.no.15) who have, apart from stating that there are no other claims from the other side, also acknowledged a refund of Rs.1,00,000/- that has been received against the claim of clubhouse which according to them would be constructed by the plot owners themselves. This fact is necessary as there is also a claim with regard to deficiency in the amenity of clubhouse upon which a finding has been given by the State Commission. One more Complainant, namely Mr. C.H. Venkat (S.No.5) has also issued a similar letter of satisfaction for all claims but there is no endorsement of refund of Rs.1,00,000/-. Thus, only 6 of the Complainants out of 11, other than those mentioned above whose claim with regard to the club appears to have been under contest. The reliefs relating to club could therefore be confined only to these 6 persons whereas for other deficiencies the claim according to the learned Counsel for the Appellant, if any, could have been tried by the State Commission only for these eleven persons.
It is on the basis of these facts mentioned above that the learned Counsel for the Appellant has advanced his submissions contending that the said facts have not even been looked into, much less assessed, in spite of the fact that these facts have been pointed out and have been noted also in the impugned order. The contention is that the complaint could not have proceeded for grant of relief in the wake of the above mentioned facts for granting compensation on broad considerations bereft of consideration of relevant material. The submission is that the findings therefore are not only perverse but are also against the weight of evidence on record.
The second argument of the learned Counsel for the Appellant is that the Appellant No.1&3 were neither proper nor necessary parties as there was no privity of contract with the Appellant No.1&3 in respect of constructions that were carried out under the construction agreement which was solely with M/s Lahari Homes which firm was also not properly arrayed as a party referred to hereinabove. The contention therefore is that there is a complete misjoinder of parties for which also the complaint ought to have been dismissed.
One of the main thrust of the arguments of learned Counsel for the Appellant is that the Complainant Association was not representing the cause of all the plot owners and even otherwise it did not have any legal or lawful authorization to proceed with the complaint. He further emphasized that the complaint was filed through Shri Ravi Kumar Miriyala as its president who was not even a plot owner. It is pointed out that his wife Smt. Padma Miriyala was a plot owner and consequently her husband could neither be the president of the Association according to the Memorandum and the bylaws nor could he represent the cause of the Association or its Members.
He has then urged that in view of the satisfaction letters referred to above by 9 of the plot owners that are on record clearly amounts to waiver by those Complainants and therefore they are estopped by their own conduct and by virtue of their voluntary act for joining in the complaint. It is urged that it is not the case of those plot owners that they were either forced or compelled to sign on a dotted line either expressing satisfaction or some of them receiving back a sum of Rs.1,00,000/- on account of the clubhouse dispute. It is therefore submitted that this by itself ought to have been considered a ground for the dismissal of the complaint but the State Commission without appreciating the aforesaid fact in correct perspective has erroneously awarded compensation, that too even by making a rough lump sum calculation for which there is no foundation.
He has then pointed out that there was no deficiency in existence at all and therefore the claim with regard to not providing the facilities under the heading of special features of the construction agreement was a totally unfounded claim and in the absence of any appropriate facts and figures the award has been made on the basis of general assumptions that cannot be sustained. He has then advanced his submissions with regard to the fact that the complaint itself could not be maintained as two complaints were filed separately before the District Commission, Ranga Reddy by two of the persons who have joined in this complaint namely, Shri Bayyapu Pavan Reddy (S.no.10) CC/171/2008 and Smt. Padma Miriyala (S.no.1) CC/172/2008 who also happens to be the wife of the President of the Association who has filed the present complaint. The contention raised is, not only they are incapacitated from joining in the present complaint, as the said complaints have already been dismissed on 24.05.2011 by the District commission against which neither any appeal was preferred nor was the matter taken any further. Secondly, it is urged that even if there is some added difference in the nature of the complaint filed by them and the present complaint, the main issue with regard to awarding compensation for incomplete works was clearly prayed for in those complaints and both the aforesaid complainants had prayed for award of Rs.1,75,000/- and Rs.50,000/- respectively as costs of incomplete works. He submits that the present complaint also seeks award of a consolidated amount of Rs.83,50,000/- towards incomplete works which clearly includes the same relief which was claimed in the two complaints by these Complainants proportionately for their share of compensation for incomplete works. Thus, the relief claimed herein was squarely covered in the two complaints filed before the District Commission that were dismissed, and hence these two persons could not have been allowed to be part of the present complaint being barred by the principles of Res Judicata, Order 2 Rule 2 CPC, estoppel by conduct and the Doctrine of Finality.
Learned Counsel emphasized that reliance by the Commission on an Advocate Commissioner's report was totally ex-parte inasmuch as the Appellants were never associated with any such alleged survey or report by the Advocate Commissioner and they had filed objections to the same but conclusions have been drawn by the State Commission for calculating the compensation for deficiency on the basis of such a report which is clearly deficient.
With the aforesaid submissions, learned Counsel ultimately urged that the complaint was neither maintainable by the Association nor on behalf of its Members or for the reliefs prayed for in the light of the aforesaid arguments advanced.
He has also filed written submissions and has cited several decisions therein to support his contentions which shall be dealt with hereinafter.
Opposing the appeal and defending the impugned order of the State Commission dated 19.11.2011, learned Counsel for the Complainant urged that the Association was formed as aHome Buyers Association in respect of the very same plots and the constructions thereon, that is espousing the cause of all the Members of the Association. He submits that there is no bifurcation or segregation of cause as alleged by the Appellant and no Member has come forward to dispute the filing of the complaint by the association for the benefit of its Members. To the Contrary,a resolution was passed and 20 Members of the Association had authorized the President for the pursuit of this contest.
He further submits that the filing of two separate complaints and their dismissal cannot be a ground to deny the claim or even render the complaint to be not maintainable because the reliefs sought in those complaints were different and in the absence of any commonality of the claims in the aforesaid two complaints and the present complaint, the complaint was maintainable and the relief was granted by the State Commission is on the basis of material that was placed on record proving deficiency in service.
He submits that all the three Appellants were responsible for the fulfilling of the obligations of providing the facilities under the special feature clause of the construction agreement and as such the compensation has rightly been saddled on the Appellants.
He then submits that merely because there were some Complainants who had not signed the construction agreement, the nature of the special features are common to all the plot owners/home buyers and hence the complaint was rightly entertained on behalf of the Association and for the benefit of its Members.
Learned Counsel for the Appellant invited the attention of the Bench to the letter dated 10.04.2008 sent by the Appellant No.2 that recognizes and acknowledges the deficiencies, and therefore the claim made in the complaint was rightly assessed by the State Commission. Thus any subsequent signing of satisfaction notes are of no consequence as such notes are extracted by developers and builders by compelling the signing thereof on dotted lines. He therefore submits that even if any such satisfaction notes were signed while handling over possession the same does not take away the right of the flat buyers/plot owners to raise a contest/claim with regard to deficiency in service which has been acknowledged by the Apex Court in a number of decisions. The execution of any such document therefore does not create any waiver or estoppel as pleaded by the Appellant more so when the letter dated 10.04.2008 itself acknowledges the deficiencies.
At the outset, the first issue with regard to the contention of the Appellant about the complaint being maintained by the Association, it is evident that the registration documents of the Association that are on record demonstrate that the Association was registered on 05.02.2008 titled as "Kondapur Lahari Homes Owner's Association". There are 7 office bearers mentioned therein and the declaration in the Memorandum of Association recites that the undersigned persons in the Memorandum have formed an Association responsible for running the affairs of the association and were desirousof getting the same registered. The said list of 7 persons includes Mr. Ravi Kumar Miriyala as the President who undisputedly is the husband of Smt. Padma Miriyala owner of plot no.3 who had also executed the construction agreement. The bylaws appended with the said Memorandum in respect of membership recites in Clause 3(i) (ii) and (iii) as follows:
"3. Admission of Members:
(i) MEMBERSHIP:
The membership of the Association shall be open to the owners of the Independent Houses/ Plots in Sy Nos.165,166 and 167, Serilingampally Mandal, Kondapur Village, named as "Lahari Homes" Residential colony.
(ii) Every owner of House/Plot in the colony shall enrol himself/herself as a member of the Association by making an application in writing to the Executive Committee of the Association, within 30 days of purchase of the premises or change of ownership.
(iii) CATEGORY OF MEMBER: Admission fee and the monthly Subscription
On admission, the member shall pay a non-refundable admission fee of Rs.5,000. The member shall also be liable to pay a monthly service charge as determined by the Executive Committee, which is same for all owners regardless of size of the house/plot.
The admission fee and the monthly subscription fee is subjected to revision with the approval of Executive Committee."
The bylaws further provides for an executive committee consisting of the President, the Secretary and a Treasurer, and the Executive Committee shall by a majority votes of the Members of the managing committee take decisions. The duties and powers of the Executive Committee are included therein. The Executive Committee is to be elected by the general body with a further indication of co-option of two nominated Members without voting rights. However, what is important is the procedure of admission to membership and the qualifications of a Member. The same has also been provided in the said bylaws which is extracted hereinunder:
"MEMBERSHIP:
House/Plot owners will be admitted as members through expression of interest and by submitting an application to the Executive Committee.
All Members should pay a non-refundable admission fee of Rs.5,000.
In case of joint ownership, the first owner shall be deemed to be the member unless all the joint owners nominate another person from among them to be a member.
A member may inform the association in writing that he/she will be represented by a member of his/her family on a permanent basis or for a fixed period. Such representative of the member will have the right to vote, but will not be eligible to be part of Executive Committee."
A perusal of the same would demonstrate that the house/plot owners will be admitted as Members upon an application submitted to the Executive Committee who shall have to pay a non-refundable admission fee of Rs.5,000/-. In the event of joint ownership, the first owner shall be deemed to be the member unless all the joint owners nominate any other person amongst them to be a member. The most important Clause is (iv) above where a Member has to inform the Association that he or she will be represented by a Member of his or her family on a permanent basis for a fixed period. This is, however, clearly qualified by a positive note that such representative of the Member will have the right to vote, but will not be eligible to be a part of the Executive Committee.
Since the aforesaid documents are on record and the State Commission does not seem to have entered into it, the argument on behalf of the Appellant needs to be analysed in the background of the said bylaws. Mr. Ravi Kumar Miriyala who has been described as the President of the Society in the complaint representing the cause on behalf of the Association is admittedly not a plot or house owner. The plot was purchased in the name of his wife Smt. Padma Miriyala being plot no.3. As indicated above, a family member can represent a permanent member and will have the right to vote but will not be eligible to be part of the Executive Committee. Invoking the said clause, there is no escape from the conclusion that Mr. Ravi Kumar Miriyala even though can be a member in that capacity, as a family member, but there is no evidence to that effect of his nomination by his wife. Even assuming that there was such a nomination or can be presumed to be available to Mr. Ravi Kumar, he could not have been the President of the Association as he was ineligible to be a part of the Executive Committee. This Commission is not deciding his claim vis-à-vis under the Societies Registration Act but when the issue of maintainability of the complaint has been raised, it is evident that Mr. Ravi Kumar Miriyala, not being eligible in terms of the bylaws of the society could not have represented the cause of the Members as President of the Association.
However, even assuming for the sake of arguments that he was duly authorized to undertake this exercise and there was a resolution passed authorizing him to obtain the services of a repudiated engineer for a value assessment report in respect of deficiency in the amenities,the said exercise was on the basis of an extremely fractured representation keeping in view the status of the 20 complainants referred to above. The fact that 10 of the 30 plot owners did not even join the complaint or sign the authorization is further evidence of this fact that all the Members had not authorized the filing of the complaint. Consequently, the very complaint was not founded on firm foundations where the representative capacity of Mr. Ravi Kumar Miriyala as president apparently suffers from ineligibility under Clause (iv) of the bylaws referred to above. This may also border usurpation of the office of President on account of foundational disqualification, but one need not go further except that the complaint could not have been described as being represented by the President or Member of the Association as Mr. Miriyala is not a plot owner nor seems to be possessed of the qualification of President. Nonetheless an association can file a petition under the Consumer Protection Act and as also applying the principles enunciated by this Commission in Moulivakkam Trust Heights Flats Affected Buyers Assn. Vs. Prime Sristi Housing (P) Ltd., 2017 SCC OnLine NCDRC 163.
The next question is as to whether there has been a non-joinder or a misjoinder of the parties. To this extent also, learned Counsel for the Appellant appears to be correct inasmuch as the Appellant No.1 and the Appellant No.3 have neither any privity of contract with the Opposite Parties/Complainants nor do the agreements in relation thereto in any way create any right or liability on these two Appellants. This aspect has also been overlooked by the State Commission inasmuch as the agreement for construction and development is only between M/s Lahari Homes through its managing partner Shri Alapati Venkateshwar Rao that too with only 23 of the Complainants. The dispute in the present case arises out of the alleged deficiencies regarding the special features under the construction agreement. The Appellants No.1&3 not being parties to the said agreement, they being joined as Opposite Parties in the complaint was clearly a misjoinder of parties. No relief could be claimed against them and accordingly this aspect has been completely omitted from being considered in the impugned order of the State Commission. While finally allowing the complaint the liability has been fixed on all the three Appellants. Merely because there was some sale deed executed earlier in favour of M/s Lahari Impex Pvt. Ltd., the same did not bind them for any such services arising out of the agreement for construction development which is only with M/s Lahari Homes through its managing partner. The impugned order therefore cannot be sustained against these two Appellants on account of this error as no liability could have been fixed on them.
The Appellants' Counsel has also raised an issue of misjoinder by contending that the Appellant No.2 has been incorrectly arrayed as an Opposite Party in the personal capacity of Mr. Alapati Venkateshwar Rao. From a perusal of the array of parties in the complaint and in the impugned order, it is evident that Mr. Rao was arrayed as the managing partner of M/s Lahari Homes. The argument of misjoinder in the opinion of this Commission cannot be sustained as the entire transaction on behalf of M/s Lahari Homes has been carried out by Mr. Alapati Venkateshwar Rao in his capacity as managing partner which is also evident from a perusal of the agreement for construction development that has been signed by him. The argument of misjoinder of parties is therefore rejected. The Appellant No.2 who was Opposite Party No.2 in the complaint is properly arrayed and is also a necessary party with no error of description or identity for being sued for the deficiency alleged under the agreement.
Having dealt with the aforesaid issues it is also correct that only 20 persons had come together in the complaint out of the 30 plot owners whom the association claims to represent. Admittedly and undisputedly, 10 of the plot owners did not nor have they joined at any stage nor any relief has been claimed. In this background to treat the complaint to have been filed representing the cause of all the flat owners is incorrect and even otherwise the recital contained in Paragraph 10 of the Memo of Appeal mentions only 20 persons.
As already indicated out of the 30 plot owners, 5 of them whose names appear at S.No.2,4,13,14 and 20 did not have any construction agreement with the Appellant No.2. Two more persons whose names appear at S.No.16 and 17 cancelled their construction agreements. Thus, these 7 persons had no construction agreements existing as on the date when the complaint was filed and therefore there were no services to be rendered to them. They were therefore not even consumers as there was no contract of construction or any agreement for services being offered to them and hence no relief could have been sought on behalf of these 7 persons. This aspect has also been completely overlooked by the State Commission while recording findings and granting relief even though the said fact has been noticed in paragraph 5 to 8 of the impugned order. The complaint has been allowed in respect of persons without agreement treating them to be Complainants being represented by the Association hence the impugned order is vitiated on this count as well.
There is yet another peculiar circumstance that has been noted above and could not be answered by the learned Counsel for the Respondent. Two complaints were filed before the District Commission namely, CC/171/2008 and CC/172/2008 before the State Consumer Disputes Redressal Commission, Ranga Reddy. The said complaints included the relief of compensation for incomplete works. The said fact have been noticed hereinabove. The present complaint also seeks relief in a consolidated way for all the Complainants for incomplete works. These two Complainants are Smt. Padma Miriyala (S.No.1) who is also the wife of the President of the Association and Shri Bayyapu Pavan Reddy (S.No.10). These two Complainants having lost the battle before the District Commission on 24.05.2011 could not have either joined the complaint giving rise to this appeal nor could the complaint have been allowed in their favour by the State Commission vide the impugned order on 19.12.2011. This fact has not been noticed in the impugned order nor did the Complainants appear to have indicated this fact in respect whereof a clear ground has been taken by the Appellant before this Commission. Once their claim petitions before the District Commission in respect of the same relief of incomplete works had been dismissed, their claim for the said relief could neither have been included in this complaint nor the same could have been decreed by the State Commission. The principles of Res Judicata, being a principle of Public Policy is clearly attracted. The principles of order 2 rule 2 CPC would also bar the seeking of the same relief including in a higher Forum through a representative complaint. The said two Complainants also stand estopped by conduct having elected to file their separate complaints before the District Forum and having lost the battle there. Their claim stood finally disposed off and this attempt to join again is a clear abuse of the process of law as well as forum shopping. This omission by the State Commission to consider these aspects also vitiates the impugned order.
Having arrived at the aforesaid conclusion it is evident that with the exclusion of the other Complainants, 10 having not joined, 7 of them not having the construction agreement so as to treat them as consumer and two of them having already filed their complaint and lost the battle, the present complaint survived only for 11 of the Complainants. The question as to whether these 11 Complainants are entitled for any relief and the quantification of compensation as made by the State Commission needs to be looked into.
In this background, any relief with regard to the club has to be viewed from the point of view that 6 persons out of 20 Complainants have issued satisfaction letters at the time of taking possession and have also acknowledged a refund of Rs.1,00,000/- as against the club amount. The State Commission has proceeded to award a lump sum amount of Rs.10,00,000/- on all counts for construction of the club house. This finding is contained in Paragraph 39 of the impugned judgment. The Complainants had claimed Rs.33,00,000/- for the construction of the said club. The club had to be constructed as a common amenity for the benefit of all 30 plot owners and it is evident that 10 have not joined and out of the 20 who have filed complaints, 6 of them have expressed complete satisfaction in writing, and have received a refund of Rs.1,00,000/- each as recorded above. One of them has issued a letter of satisfaction (Mr. C.H. Venkat, S.No.5) with no endorsement of refund of Rs.1,00,000/-. This fact of refund to 6 of the Complainants has not been considered by the State Commission at the time of assessing and awarding a lump sum amount of Rs.10,00,000/- even though these facts were noticed by the State Commission in the order. The Assumption of this quantum has no logical basis. Consequently, the State Commission committed an error in proceeding to calculate this amount and as noted above out of 11 Complainants whose cause may survive, 6 have already taken back their money as per record in writing. Thus, the award of Rs.10,00,000/- does not in any way match with the calculations which ought to have been made. The Appellants have refunded Rs.1,00,000/- each to five of the plot owners, and therefore applying the same principle it is hereby held that the following 6 Complainants would only be entitled to a refund of Rs.1,00,000/- each on account of the facility of club not having been provided by the Appellants as this is a clear deficiency and discriminate treatment by the Appellants. Those six plot owners are:-
Mr. C.H. Venkat Rao (S.No.5) Mr. M.V.V. Nageshwar Rao(S.No.7) Mr. Satyendra Kumar Sinha (S.No.8) Mr. Y Sai Bhushan (S.No.9) Mr. Pratap Lakshman(S.No.12) Mr. Gautham M. (S.No.18) It goes without saying that the entitlement of refund has been ordered in the peculiar facts of this case without creating any further liability on the Appellants inasmuch as, a club has to be constructed for the benefit of all the plot owners and not for only a few surviving Complainants who do not represent the common or the same interest for all the plot owners. The facts narrated hereinabove clearly demonstrate that 10 plot owners did not join, 7 had no construction agreements and two had lost the battle before the District Commission. The complaint itself was not maintainable on behalf of all the Complainants for the reliefs prayed for.In the background of the facts of this case as discussed above therefore, keeping in view this long drawn litigation, this limited relief to the aforesaid 6 persons of refund deserves to be granted in order to draw the curtains and indemnify the deficiencies regarding the club. This quietus is necessary on the peculiar facts of this case so as to avoid any discrimination amongst those who are contesting on the same footing.
The State Commission has proceeded to award Rs.5,00,000/- in respect of the deficiency of the park and footpaths and a sum of Rs.26,000/- in respect of the intercom facilities. In addition thereto, a sum of Rs.5,00,000/- has been awarded in respect of water supply, lighting and repavement of roads and main entrance, security room etc. Thus, a total sum of Rs10,26,000/- has been awarded on this count due to deficiency in the services as per the special features clause of the construction agreement. In this respect the argument of the learned Counsel for the Appellant is that the said deficiencies were pointed out and were sought to be supported with the aid of a report stated to have been obtained from an engineer valuer Mr. K.V. Suresh who has reported about the defects in drainage, landscaping, secured compound wall and consolidation of the ground. The valuer also pointed out the deficiencies of the playground equipments and the park. The submission is that reliance placed on the valuers report is misplaced as the appellants were not associated with the preparation of the report and its contents are wrong.
The layout of the entire plan was sanctioned by the Hyderabad Urban Development Authority and the developers were under an obligation to obtain approval of the said Authority for the amenities to be provided in order to ensure that the roads, open spaces and the layout be developed with necessary plantation and greenery. The representation and promise made under the special features clause extracted hereinabove has also been discussed by the State Commission and apart from this the letter dated 10.04.2008, even though was issued prior to the handing over of possession, does indicate the promise made by the Appellants to carry out the works for removing the said deficiencies that persisted even thereafter. The State Commission after having discussed the documents and evidence came to the conclusion that the special features had been promised and those amenities had not been provided for. The Complainant Association submitted that they had incurred an expenditure of Rs.7,97,266/- for the security and the main gate work, the laying of tiles on the footpath, developing the park and installing the intercom services. On this issue the bills were produced and then the exhibits were compared with the valuation made by the engineer of the incomplete works, and it is after assessing the same that the State Commission came to the conclusion that most of the common amenities and facilities styled as special features have not been provided by the Opposite parties. It is in this background that a sum of Rs.10,26,000/- was awarded to the Association for the benefit of plot owners for such deficiencies. The State Commission missed the fact that 10 out of 30 had not joined claiming any deficiency in services, 7 had no construction agreements and therefore no services or deficiencies could be legally claimed and six have issued satisfaction notes. Two of them had filed complaints before the District Commission that were dismissed. But the fact remains that the deficiencies regarding the special features persisted.
Having considered the submissions raised, this Commission is satisfied that the acceptance of the claim by the State Commission was to the extent above an assessment made on the basis of the facts pleaded, and even though this Commission has come to the conclusion that the complaint was not pursued as a class action or on behalf of all the Complainants yet in the light of the facts that the plot owners had been deprived of the common amenities under the special features clause as discussed by the state Commission to that extent,has been established.
With the above calculation in mind the 6 persons referred to in the above chart at serial no.5, 7, 8, 9, 12 and 18 would be entitled to a refund of Rs.1,00,000/- each for deficiencyas the club has not been constructed, and the Association representing the plot buyers would be entitled to the relief of only Rs.10,26,000/- as against the deficiencies indicated for violation of the special features clause and recorded by the State Commission.
Since a consumer complaint is to resolve disputes of consumers and to prevent any exploitation and protect their interest as against builders and developers, this Commission has moulded the relief on the peculiar facts of this case even though the complaint had not been contested appropriately by the Complainants and was wanting on several counts as pointed out hereinabove.
Nonetheless the fact remains that the plot owners have experienced and suffered deficiencies that have been located by the State Commission to an extent. This dispute therefore requires a foreclosure to avoid any future unnecessary litigation as well as a quietus in the larger interest of both parties.
Accordingly, the appeal is partly allowed and the impugned order of the State Commission dated 19.12.2011 is modified to the extent indicated above.Consequently, the award of Rs.20,26,000/- by the State Commission is reduced to Rs.6,00,000/- for the aforesaid six persons referred to in Paragraph 43 above and Rs.10,26,000/- to be paid to the Association on account of the deficiencies in providing the special amenities which were common benefits for the contesting plot owners.
It has been pointed out that vide order dated 18.07.2012 orders were passed for depositing Rs.5,00,000/- with the State Commission. The deposit is said to have been made as is evident from the affidavit filed on 08.10.2012 vide Diary No. 19812. The said deposit must have earned interest and statutory deposits may have been made before this Commission. The said amounts shall be adjusted towards the amount as awarded under this appeal.
The Appellants shall pay the awarded amount within 3 months from today. In the event of any default, the same shall carry an interest of 9 per cent per annum from the date of default till the date of actual payment. The Appeal accordingly stands disposed off.
.........................J A. P. SAHI PRESIDENT