State Consumer Disputes Redressal Commission
1. D.Syamala Kalyani W/O D.Narasimha ... vs 1. M/S Yashotheja Constructions, Eluru on 1 March, 2013
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD. C.C.No.47 OF 2012 Between: 1. D.Syamala Kalyani W/o D.Narasimha Rao aged about 50 years, Occ: Pensioner R/o Flat No.1B, Sri Raj Jayalakshmi Residency D.No.24-A-16-8, 28th Division, Allasani Peddana Street, Eluru-002, W.G.Dist. AP 2. D.Rama Devi D/o late A.Sankar Rao Aged about 48 yrs, R/o Flat No.1B, Sri Raj Jayalakshmi Residency D.No.24-A-16-8, 28th Division, allasani Peddana Street, Eluru-002, W.G.Dist. AP Complainants AND 1. M/s Yashotheja Constructions, Eluru rep. by its Prop: Smt Madipalli Sesha Ratna Karuna, W/o Tejo Venkata Manikya Ratnakar, aged about 35 yrs 2. Sri Madipalli Tejo Venkata Manikya Ratnakar S/o Chalamaiah garu, aged 43 yrs Both R/o H.No.23-A-3-60C, Gubbala Vari Veedhi Entrance to Road No.2 of Chanikyapuri Colony Ramachandra Rao Pet, Eluru-002, W.G.Dist. Door No.49-28-9/1,e-Bazar, Electornic Show Room opp: Badepati Park, GNT Road, Eluru 534002, W.G.Dist. Opposite parties Counsel for the complainant M/s D.V.Madhusudhan Rao Counsel for the opposite parties M/s Manne Hari Babu QUORUM: SRI R.LAKSHMI NARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER FRIDAY THE FIRST DAY OF MARCH TWO THOUSAND THIRTEEN Oral Order:(Per Sri R.Lakshmi Narasimha Rao, Honble Member.) ***
1. The complaint is filed seeking direction to the opposite parties seeking the following reliefs:
A) allot one 2bk to the complainant no.1 in the same locality or in the alternative direction to the first opposite party to pay Rs.15,40,000/- towards value of the flat and to pay subsequent interest @12% p.a. on the amount of Rs.15,40,0000/-
from the date of complaint till payment;
B) pay Rs.3,00,000/- towards the amount covered by the post-dated cheques to the complainant no.1 with subsequent interest @ 12% p.a. from the date of complaint till payment C) refund Rs.5,00,000/- plus interest of Rs.1,00,000/- totalling to Rs.6,00,000/- @ 12% p.a. from 14.8.2010 to 16.4.2012 and to pay subsequent interest at 12% pa on Rs.5,00,000/- from the date of complaint till payment D) refund Rs.3,35,000/- plus interest of Rs.18,425/- at 12% pa from 2.11.2011 to 16.04.2012 totalling to Rs.3,53,425/- and to pay subsequent interest at 12% pa on Rs.3,35,000/- from the date of complaint till payment E) pay Rs.2,34,000/- towards rent from September 2009 to October 2011 i.e. for 26 months for 3 flats @ Rs.3,000/- per flat viz, 9,000 x 26 months; and to pay subsequent interest at 12% p.a. on Rs.2,34,000/- from the date of complaint till payment F) direct the Ops to install solar water heaters to 3 flats of the complainants or in the alternative, direct the Ops to pay Rs.1,59,000/- towards approximate cost of solar water heaters for three flats G) direct the Ops to provide car parking place for complainant no.2 in respect of flat no.4A 2bhk;
H) direct the Ops to pay Rs.2,000/- towards hiring chares of car parking place at the rate of Rs.500/- per month from December 2011 to March 2012 and direct the Ops to continue to pay rent @ Rs.500/- pa from April 2012 till provision for car parking is made to the complainant no.2;
I) direct the Ops to issue occupancy certificate in respect of 3 flats after fully discharging the mortgage created in favour of Eluru municipal corporation J) direct the Ops to remove the illegally constructed pent house on the sixth floor at its cost and carryout necessary repair works etc., or in the alternative to pay to the complainants Rs.1.00 lakh towards approximate cost of demolition charges of illegally constructed pent house which is payable to the Eluru Municipal Corporation or any other amount as may be fixed by the Commissioner, Eluru Municipal Corporation;
K) pay Rs.9,16,692 towards approximate value of 654.78 sft at the rate of Rs.14000/- per sft representing difference in plinth area on ground vis--vis complainants entitlement;
L) pay Rs.72,773/- out of that Rs.70,000/- representing deposit of electricity meters for 3 flats (Rs.30,000/- 3bhk + Rs.20,000/- 2bhk + Rs.20,000/- 2bhk) + Rs.2,000/- towards part of half yearly property tax for September and October 2011 out of Rs.6,000/- for 6 months commencing from September 2011 + Rs.772/- representing electricity consumption charges for three flats for unoccupied period of September and October 2011 against Clause No.29 of the development agreement with subsequent interest at 12% pa on Rs.72,772/- from the date of complaint till payment M) direct the Ops to provide fire preventive devices etc., N) direct the Ops to execute registered conveyance deeds in favour of the complainants O) to pay Rs.7 lakh to the complainants towards mental agony and sufferance and costs.
2. The averments of the complaint are that the complainants being the daughters of Ayyagari Shankar Rao succeeded to the property in land admeasuring392 square yards in survey number 14, plot number 41B, West Godavari district and Smt.Kamuri Leela is the owner of land to an extent of 220 square yards and the complainants and Smt Leela entered into Development Agreement on 7.09.2007 with the opposite party no.1 to develop the land to construct building Sri Raj Jayalakshmi Residency. The agreement was registered in the office of the sub registrar, Eluru on 14.09.2007. After dismantling the old structure on 7.09.2007 the complainants handed over possession of the site to the first opposite party on whose behalf her husband, the second opposite party carried out all the work.
3. As per the development agreement , the allotment of flats between the landowners and promoter is as follows:
S.No. Description of parties No.of Flats Square yards I.
1) A-Schedule Landowners Complainant No.1: 3bhk 1 flat (1A) 3 117
2) Complainant No.2: 2bhk-1flat (4C) 1 36
3) Smt Kanuri Leela 2 bhk 2 flats (1C, 2C) 2 72 II B.Schedule:
Promoter/Ops 3 bhk 4 flats (2A, 3A, 4A, 5A) 2bhk 5 flats (2B, 3C, 5C) +Pent House 9 387 Total 15 612
4. In addition to what is promised under development agreement, the first opposite party agreed to pay a sum of Rs.3,00,000/- to the complainant since it is the practice in vogue and the opposite parties issued six post-dated cheques for `50,000/- each and the opposite parties requested the complainants not to present them till they sell the flats.
5. The opposite parties resisted the claim on the premise that the complaint is not maintainable since the complainants issued satisfaction letter and the complainants are not consumers as they have not used the apartments for their personal use and let them on rent as also that several disputed questions of facts and law and allegation of fraud and cheating are involved in the subject matter of the complaint. The opposite parties represented to the complainants in the month of June 2008 that building regulations had been changed in view of which 10 flats instead of 15 could be constructed and by playing fraud on the complainants, the opposite parties coerced them to enter into supplementary agreement.
6. The opposite parties represented to the complainants that they are not in a position to give four flats to the complainants as per the development agreement and allot plinth area proportionate to their share. As per the supplementary agreement the opposite parties proposed to construct 10 flats in plinth area of 14000 sft of which 36% sft fell to the share of the complainants and Smt Kanuri Leela. The opposite arties had not commenced construction of flat and after lapse of 22 months they applied for approval of plan to Eluru Municipal Corporation which granted permission on 13.7.2009 for construction of stilt + ground floor + 4 upper floors.
7. The complainants were constrained to pay `9,50,000/- to the opposite parties. After receiving second payment of `5 lakhs the opposite parties assured the complainants that the complainants need not pay any amount further as they had paid the amount towards full and final settlement of their account. The opposite parties provided air conditioners and plaster of Paris ceiling, modular kitchen to the flat of the complainant no.1 and they failed to furnish estimates, bills etc.
8. The complainants procured the amount of `5 lakh paid to the opposite parties, from the GPF of the complainant no.1 and deposit made by the complainant no.1 with BSNL and the pension amount of her mother.
9. The first opposite party handed over physical possession of flat no.1B, 1A and 4A to the complainant no.1 on 30.10.2011 and the complainants issued handing over letter on 1.11.2011. After handing over possession letter, the complainants noticed that construction of pent house was under progress. On 26.12.2011 the opposite parties allotted 10 car parking places in the stilt area instead of allotting them by lot system as per clause 33 of the development agreement.
The opposite parties allotted two car parking places only to the complainant no.1 and no car parking space to the complainant no.2 for her flat 4A where her tenant Sri Manikyala Rao has been paying rent of `500/- per month for car parking area.
10. The complainants got issued notice on 31.12.2011 pointing out various deficiencies committed by the opposite parties as also construction of the pent house by them. The opposite parties have not chosen to give any reply.
The complainants submitted representation on 12.1.2012 to the Commissioner, Eluru Municipal Corporation regarding illegal construction of the pent house by the opposite parties and they approached the Honble High Court by way of filing writ petition No.1152 of 2012. The High Court disposed of the writ petition directing the municipal commissioner to consider representation of the complainants and pass appropriate order in accordance with law.
The commissioner has not taken any action to dispose of the complainants representation. The complainants filed contempt case against him.
11. The act of the opposite parties amounts to offence u/s 420 of IPC and also under the provisions of A.P. Apartments Act punishable with imprisonment. The opposite parties constructed the flats of the purchasers with quality and standard material compared to the flats fell to the share of the complainants and as such the complainants incurred additional amount to carry out the work which still is going on. The complainants recently came to know that the opposite parties sold away illegally constructed pent house to Sri Behapudi Balakoti Prabhakaralingam who let out the pent house to Sri Sourab. The opposite parties have not allotted car parking area for Flat No.4A belonging to the complainant no.2.
12. The complainants got inspected the flats fell to their share by Retd. Town Planning Supervisor and Architect Eluru who issued certificate on 5.4.2012 giving details of measurements of plinth area and showing contravention of terms of development agreement and approved plan by the opposite parties. The first opposite party sold flat no.3B comprising 1700 sft on 14.6.2011 for consideration of `22,10,000/- and flat no.5A comprising 1100 sft on 15.12.2011 for consideration of `13,20,000/-. The opposite parties with malafide intention constructed the complainants flats on less plinth area and against the terms of the development agreement. The comparative statement prepared on the basis of documents and the surveyors report is mentioned at page 10 of the complaint. It is contended that the complainants need not pay any amount towards common area.
13. As per the approved plan the opposite parties have to construct 3848 sft for three flats of the complainants and they had constructed the flats on 2495.22 sft and deprived the complainants 1352.78 sft of plinth area.
The opposite parties falsely shown the complainant no.1 to be present at the time of execution of the registered sale deed. No GPA was executed by the land owners in favour of the opposite parties. Inclusion of common area and car parking area in plinth area is contrary to the terms of development agreement. The opposite parties constructed the flats with a view to cause wrongful loss to the complainants and make wrongful gain for themselves for their commercial purpose. The opposite parties have to handover one 2BHK flat or its value to the complainant no.1 as per the terms and conditions of the development agreement.
14. The opposite parties delayed the project and got approved the plan on 13.7.2009 and constructed 10 flats against 15 flats as agreed and compelled the complainants to forego one flat. The opposite parties charged extra money from the complainants. The opposite parties received excess amount more than 50% and constructed the apartment on less plinth area in contravention of the terms of development agreement.
15. The opposite parties resisted the claim on the premise that the complaint is not maintainable since the complainants issued satisfaction letter and the complainants are not consumers as they have not used the apartments for their personal use and let them on rent as also that several disputed questions of facts of law and allegation of fraud and cheating are involved in the subject matter of the complaint.
16. As per the Development Agreement, the first opposite party has to construct apartment with her money on the land admeasuring 612 sq.yards of plot no 41B and by obtaining permission and other required documents. The complainants are entitled to 36% and the opposite parties are entitled to 64% and Flats 1A, 1B and 5B fell to the share of the first complainant while Flat 4C and 1C and 2C fell to the share of the second complainant and Kanuri Leela whereas the Flats no.2A, 2B, 3A, 3B, 3C, 4A, 4B, 5A, 5C and pent house fell to the share of the first opposite party.
17. It was agreed that the first opposite party should complete the building within 24 months with a grace period of 3 months from the dated agreement and in case of delay the first opposite party would pay Rs.3,500/- per month for Flat and on 14.09.2007 the complainants executed letter of mutual understanding wherein it is mentioned that the complainants are entitled to 36% of constructed apartment area mentioned in the Development Agreement and for the difference area the first opposite party has to pay Rs.1,200/- per sft and the first opposite party has issued two cheques for Rs.50,000/- each.
18. After the Development Agreement was executed, the Government had issued G.Os 738 dated3.10.2007 and 302 dated 15.04.2008 and the changes in Apartment Rules were brought to the notice of the complainants and other land owner. The land owners and the first opposite party entered into Supplementary Agreement on 23.06.2008 providing for Flats A and B in the first floor in the place of 1A, 1b and 5B to the first complainant, Flat No.4B in the place of Flat No.4C to the second complainant, and Flats No. 2B and 3B in the place of 1c and 2C to Kanuri Leela.
Both parties agreed to abide by the terms of the previous agreement.
19. In pursuance of Development Agreement and Supplementary Agreement, the builders applied for and obtained permission dated 13.07.2009 as per which the floor area is 1068.20 sqm and common area is 112.80 sq.m. total built up area is 1181.00 sqm and stilt area is for parking. Later, the builder had applied and obtained revised permission and plan on 17.06.2010 and as per the revised plan the floor area is 1086.70 sqm and common area is 128.00 sq.m. Total built up area is 1214.70 sqm.
20. The first opposite party has completed the entire project and also provided the required amenities. On oral request of the complainants and other flat owners the first opposite party has carried out additional work in addition to the agreed work such as providing Generator of 20 KV, providing teakwood windows and doors, plaster of Paris/false ceiling to the flats of the complainants, Modular Kitchen to Flat number 3BHK, Hub and Chimney for the Flat No.3BHK, R.O. System at the cost of Rs.9,500/- for the flat number 3BHK, and air conditioners . Solar System could not be provided due to technical and other problems and after consultation with the land owners the first opposite party has provided Geysers in the place of solar water heater.
21. The first opposite party handed over the flats to the complainants on 30.10.2011 and issued hand over letters. The complainants after verifying the amenities and the construction issued flat taking over letters dated 1.11.2011. The complainants have to pay the cost of the additional work done. The complainants paid Rs.5,00,000/- on 14.08.2010 and an amount of Rs.4,50,000/- on 2.05.2011 and the opposite party no.1 issued receipts for the amount. The complainants have to pay balance construction costs and to avoid payment they resorted to blackmailing the opposite parties by resorting to issue notice, filing complaint before Municipality and State Commission and writ petition before the High Court.
22. The opposite party no.2 is not a necessary party to the proceedings and impleading him in the complaint is unjust and illegal. The opposite party no.1 issued the two cheques towards advance for difference area and the same is mentioned in the Mutual Understanding Letter dated 14.09.2007. As per the supplementary agreement, the complainant is entitled to 3,150 sft and they paid Rs.9.50 lakh for the additional area. The first opposite party orally confirmed and allotted car parking area and as desired by them later it was allotted to third party. The car parking of the complainants is 36% and that of the first opposite party is 64%.
23. At the initiation of the first complainants husband the complainants are making illegal demands. The opposite parties are not aware of filing of writ petition by the complainants and disposal of the writ petitions. The first opposite party constructed all the flats with same plinth area and common area and with same facilities. In some of the sale deeds it is mentioned that plinth area included common area and car parking area. In view of the development agreement the opposite party became owner of her share of constructed area and in the building. She is taking steps for rectification of the mistake by way of execution of rectification deed.
24. The complainants have misled this Commission by their miscalculations and they are slinging mud on the first opposite party. The complainants are not entitled to claim i) another 2BHK flat costs of `15,40,000/-as such they have paid part of additional built area costs of `9.50 lakh, ii) `3,00,000/-
under 6 post-dated cheques which were issued as advance towards the difference of built area, iii) refund of `5,00,000/- under receipt dated 14.08.2010 and `4.50 lakh under receipt dated 2.05.2011 and interest on the amount, iv) the complainants agreed for adjustment of rental towards the amounts due from them, v) Geyser was provided in place of solar system on consultation of the complainants, vi) the complainants are provided their share of car parking area as per agreement and understanding letter and the complainants are not entitled to another car parking area and rent thereof, vii) mortgage is cleared, viii) as per the agreement pent house was given to the first opposite party and the complainants cannot claim for its demolition, ix) claim for lesser area for `9,16,692/-- the surveyors report is incorrect and the complainants issued taking over letter dated 1.11.2011, x) the first opposite party has not collected any amount for providing amenities. Hence, the first opposite party prayed for dismissal of the complaint.
25. Both complainants filed their evidence affidavits and the documents, Exs.A1 to A19. On behalf of the opposite parties, the opposite party no.2 filed his affidavit and the documents Exs.B1 to B17.
26. Both parties have filed written arguments and additional written arguments.
27. The points for consideration are:
i) Whether there is any deficiency in service on the part of the opposite parties?
ii) To what relief?
28. POINT NO.1 The admitted facts of the case are that the complainants along with Kanuri Leela entered into Development Agreement on 14.09.2007 with the first opposite party for construction of multi-storied apartment Sri Raj Jayalakshmi Residency within 24 months from the date of handing over possession of the property by the complainants and Kanuri Leela. After demolishing the old structure, the complainants handed over physical possession of the property to the first opposite party on 7.09.2007. On 30.10.2011 the first opposite party handed over possession of Flats Nos.1B, 1A and 4A to the complainants. On 26.11.1011 the first opposite party allotted stilt area and allotted 2 car parking spaces to the first complainant. The complainants got inspected their flats by surveyor on 5.04.2012.
29. As per the Development Agreement the complainants are entitled to 36% and the opposite parties are entitled to 64% of the constructed area and flats 1A, 1B and 5B fell to the share of the first complainant while Flat 4C and 1C and 2C fell to the share of the second complainant and Kanuri Leela. The Flats No.2A, 2B, 3A, 3B, 3C, 4A, 5A, 5C and pent house fell to the share of the first opposite party.
30. The opposite parties raised objection that the complaint is not maintainable since the complainants issued satisfaction letter and the complainants are not consumers as they have not used the apartments for their personal use and let them on rent as also that several disputed questions of facts and law and allegation of fraud and cheating are involved in the subject matter of the complaint.
31. As per the Development Agreement, the first opposite party has to construct apartment with her money on the land admeasuring 612 sq.yards of plot no 41B and by obtaining permission and other required documents. The complainants are entitled to 36% and the opposite parties are entitled to 64% and Flats 1A, 1B and 5B fell to the share of the first complainant while Flat 4C and 1C and 2C fell to the share of the second complainant and Kanuri Leela whereas the Flats no.2A, 2B, 3A, 3B, 3C, 4A, 4B, 5A, 5C and pent house fell to the share of the first opposite party.
32. It was agreed that the first opposite party should complete the building within 24 months with a grace period of 3 months from the dated agreement and in case of delay the first opposite party would pay `3,500/- per month for Flat and on 14.09.2007 the complainants executed letter of mutual understanding wherein it is mentioned that the complainants are entitled to 36% of constructed apartment area mentioned in the Development Agreement and for the difference area the first opposite party has to pay `1,200/- per sft and the first opposite party has issued two cheques for `50,000/- each.
33. After the Development Agreement was executed, the Government had issued G.Os 738 dated3.10.2007 and 302 dated 15.04.2008 and the changes in Apartment Rules were brought to the notice of the complainants and other land owner. The land owners and the first opposite party entered into Supplementary Agreement on 23.06.2008 providing for Flats A and B in the first floor in the place of 1A, 1b and 5B to the first complainant, Flat No.4B in the place of Flat No.4C to the second complainant, and Flats No. 2B and 3B in the place of 1c and 2C to Kanuri Leela.
Both parties agreed to abide by the terms of the previous agreement.
34. The land owners and the first opposite party entered into Supplementary Agreement on 23.06.2008 providing for Flats A and B in the first floor in the place of 1A, 1b and 5B to the first complainant, Flat No.4B in the place of Flat No.4C to the second complainant, and Flats No. 2B and 3B in the place of 1c and 2C to Kanuri Leela.
The complainants contend that the supplementary agreement is not subsequent to the government orders whereas the first opposite party has submitted that due to change in the Apartment Rules, supplementary agreement was entered into. The G.Os were issued on 3.20.2007 and 15.04.2008 while the supplementary agreement was entered into between the parties on 23.06.2008. The plea of the first opposite party is supported by the fact of the G.Os issued prior to the date of supplementary agreement.
35. The period within which the first opposite party should complete construction of the building is 24 months with a grace period of 3 months from the date of agreement and in case of delay the first opposite party would pay `3,500/- per month for Flat Development agreement was entered into on 14.9.2007. After demolishing the old structure, the complainants handed over physical possession of the property to the first opposite party on 7.09.2007. On 30.10.2011 the first opposite party handed over possession of Flats Nos.1B, 1A and 4A to the complainants 30.11.2011.
36. The complainants executed letter of mutual understanding on 14.09.2007 wherein it is mentioned that the complainants are entitled to 36% of constructed apartment area mentioned in the Development Agreement and for the difference area the first opposite party has to pay `1,200/- per sft and the first opposite party has issued two cheques for `50,000/- each. The first opposite party contends that she issued the cheques as advance towards built area whereas the complainant would submit that the cheques were issued towards the value of difference in the plinth area. The first opposite party had issued 6 post-dated cheques for `50,000/- each which according to her were issued as advance for the difference of the area if any, and according to the version of the complainants the cheques were issued in terms of practice in vogue and the first opposite party requested them not to present the cheques till she has received amounts from intending purchasers.
37. The complainants except stating that the cheques were issued agreeing to pay `3,00,000/- to them as per the practice in vogue, they have not adduced evidence in this regard. The plea of the first opposite party finds support for issuing the cheques towards advance to the difference in the land in terms of the mutual consent letter as it is provided in the letter that the cheques were issued as advance towards the difference in the measurements in terms of development agreement and supplementary agreement subject to verification by both the parties after the plan is approved.
38. The complainants contend that the first opposite party had illegally constructed pent house in the sixth floor of the building. The Development Agreement contains clause providing for pent house to the share of the first opposite party. The supplementary agreement entered into between the parties with specific understanding that the terms of the Develop Agreement wherever required to be applied are in force and can be enforced. The complainants being parties to the Development Agreement cannot raise objection as to the construction of the development agreement. The complainants filed writ petition, W.P.No. 1152 of 2012 seeking direction to the Commissioner , Municipality, Eluru to demolish the pent house constructed by the first respondent. The High Court disposed of the petition directing the Commissioner to consider the representation of the complainants herein.
39. The complainants claimed value for the variation in the constructed area whereas the first opposite party has stated that the complainants were allotted in terms of supplementary agreement and for the excess area they have made the payment. The first opposite party has stated that :
As per the supplementary agreement the complainants entitled area is 3,150sft. And they have chosen flats of one 3bhk and two 2bhk which exceeds their share of constructions and they have to pay amounts as pert the Mutual Under Stand letter dt.14.09.2007. The complainant had paid Rs.9.50 lakhs for the additional area. The O.P.No.1 has provided additional facilities not only the ACs, plaster of Paris of ceiling, Modular Kitchen but also provided the cup boards, Hub & Chimney for kitchens, R.O.Systems, power supply entire flat with 20 KV Generator, teak wood doors and windows and polished it by spending huge amounts. As they have issued letter of taking over the flats, wherein they mentioning that the full pledged flat is taken by them and appreciate the O.P.No.1. For this additional area and additional facilities the complainants has to pay the amounts to OP.1..
40. Admittedly, the constructed area under original plan is less compared to the constructed area in terms of revised plan. The complainants were allotted in terms of the supplementary agreement the Flat bearing numbers 1A,1B to 5A and 5B of the total constructed area. The first opposite party would contend that the complainants had received flats without raising any objection and having issued taking over letter, they cannot say that the constructed area of their flats is less.
41. The complainants issued taking over letter on 1.11.2011 which reads as under:
Received the physical possession of the full-fledged completed flat bearing No.1A in FIRST floor JAYA LAKSHMI RESIDENCY Ashok Nagar, Eluru.
I have verified the construction works like electrical, Sanitary, bathrooms fittings, and lift. We have completed the same in pursuance of our Agreement with you. I was totally satisfied with you construction work and I am appreciate and I have received the full pledged flat from you, As per Registered Development Agreement No.9958/2007, dt.07.09.2007.
42. The complainants contend that they are entitled to the market value of difference in plinth area for their 5/8th share out of 36% of land owners on the ground of constructed plinth area as per Surveyors report as 3,150.00sft minus 2,495.22sft equal to 654.78 sft and the market value @`1400/- per sft 654.78 x `1400/- equal to `9,16,692/-. The first opposite party would contend that the surveyor has not included in his report the common area whereas the complainants submit that the difference in plinth area can be seen from the two sale deeds executed by the first opposite party in favour of third parties.
43. The surveyor in his affidavit has stated that as per the sanction plan the plinth area sanctioned for each floor is 1435.4 and the constructed plinth area for each floor is 1072.5 sft. He has stated that:
I submit that the complainants requested me to answer suggestion that whether the builder can construct more than the present constructed flats within plinth area permitted as pert he Approved Plan or Not?.
My answer: As per the Sanctioned Plan, the plinth area sanctioned by the Municipal Authorities for each floor is = 1435.6 (3B/R) + 1206.2 (2B/R)=2641.8sft. Whereas, on ground, the constructed plinth area by the opposite parties for each floor is = 1072.5 (3B/R) + 711.36 (2B/R) = 1783.86 sft,. Hence the difference of unconstructed plinth area by opposite parties for each floor is 2641.8 sft 1783.86 sft = 857.94 sft. With this available 857.94 sft. It is always possible for the builder/developer to submit a revised plan, get is sanctioned and can easily construct another 2 B/R apartment for each floor since the 2 B/R in the present constructed flat consists of 711.36 sft only. This observation is given by me without prejudice to the rights of the parties.
44. The issue requires examination of the parties and the surveyor and physical verification of the flats which is not possible in summary proceedings before this Commission.
45. The first opposite party has not provided Solar Water Heater to all the toilets of the Flats on the premise of oral understanding with the complainants to provide Geysers in lieu of Solar Water Heater. The complainants denied any acceptance for providing Geyser for Solar Water Heater by the first opposite party. The relevant specifications mentioned in the Development Agreement reads as under:
Solar :
Solar water heater connection will be provided in all toilets.
Plumbing : Adequate taps and wall mixture for each toilet.
DEEP brand or equivalent brand.
Water Supply : 24 hours water supply with bore well Parking :
Provision of covered parking for cars Lift : One standard make lift will be provided by the second party upto Fifth floor Note : All dimensions may change + or 4 as per engineering plan Generator : 15 KV Gen Set with self-Start Inter Com : Intercom facilities for all the flats & connected to security will be provided.
46. The complainants produced Quotation dated 3.04.2012 issued by Sri Leela Panduranga Engineering Co. Eluru which shows the value of one plant as `53,000/- for one flat and for the three flats it comes to `1,59,000/- The first opposite party has not disputed the amount mentioned in the quotation. The complainants are entitled to the sum of `1,59,000/-.
47. Clause 9 of the Development Agreement provides for the first opposite party to hand over the flats to the complainants within 24 months with grace period of 3 months from the date of delivery of vacant possession of the property by the complainants. Clause 9 of the Development Agreement reads as follows:
The second party shall complete the construction of the proposed project within 24 months from the dae of hand overing the possession of C schedule property in 1st part to 2 party and handover the flats extent to the share of First Party. However 3 (Three) months grace period will be given to the second party. In case of failure to handover the A Schedule possession to the 1st party by the 2nd party, the 2nd part shall pay an amount of Rs.3,000/- for each apartment of A-Schedule property per month till possession of handed over to 1st party.
48. The complainants had handed over possession of the land to the first opposite party on 7.09.2007 after dismantling the entire old structure, to the first opposite party. The first opposite party handed over the flats to the complainants on 30.10.2011. The complainants claimed rent @Rs.3,000/- from the month of September,2009 excluding the grace period of three months. The grace period of three months has to be considered while computing the rent due from the first opposite party. The grace period if considered, the complainants can claim the rent from the month of January ,2010 till October,2011. The rent agreed to be paid for Flat is `3,000 and it would be Rs.9,000/- for the three Flats. The amount under the head rent the complainants are entitled to is Rs.9,000/- x 22 = `1,98,000/-.
49. The redemption of 10% of mortgage amount to the three flats claimed is `52,10,000/-.The first opposite party has stated that the complainants cannot claim the amount as she had taken steps for release of the 10% mortgage in built-up area. The letter dated 9.06.2011 strengthen the case of the first opposite party and the letter reads as under:
It is to inform that Smt M.Sesha Ratna Karuna W/o M.t.V.M.Ratnakar, has submitted proposals for construction of Residential Building with Stilt + Ground Floor + 4Upper Floors in T.S.No: 14, D.No.24A-16-8, Division: 28, Allasanipeddana Street, Eluru, West Godavari District. As per G.O.Ms.Ms. No: 450 MA, dated 13-10-2010 the applicant has to handover the 10% of total built-up area for compliance of conditions of the G.O. and sanctioned plan. The applicant has submitted the Notarized Affidavit for 10% built-up area hand over to Eluru Municipal Corporation, as per the Government order cited above.
Hence, I request you to release the 10% Mortgage in built-up area said apartment.
50. In view of release of 10% of mortgage in built up area of the building by the Commissioner, Municipal Corporation, Eluru, the claim for redemption of mortgage is not sustainable.
51. The complainant no.2 has stated that she is not allotted parking area by the first opposite party. The first opposite party contends that as per the Development Agreement the complainants are entitled to 36% of the car parking area and she is entitled to 67% of car parking area and she handed over the car parking area that fell to the share of the complainants. She has stated that:
The O.P.1 constructed the apartment including pent house as per the agreement and the same was confirmed in the later Mutual Understanding letter and supplementary agreement and also in the taking over letters. As the complainants are stopped to say that they are not aware of the construction pent house. As per the agreement the opposite party no.1 has kept 64% car parking area for her flats, which is not against the law.
52. Clause 32 of the Development Agreement provides for allotment of common area which includes parking area to the complainants and the first opposite party subject to the permission of the Municipal Commissioner. It is not disputed that car parking area is not provided to the flat number 4A that fell to the share of the second complainant. Each Flat has to be provided with vehicle parking area. The first respondent cannot contend that she is entitled to the car parking area for the pent house. The first opposite party has not applied for permission for construction of pent house. As such she cannot retain car parking area for the pent house depriving the second complainant of the vehicle parking area for the Flat No.4A allotted to her. The second complainant is entitled to car parking area which is being used by the first opposite party in respect of the pent house.
53. The complainants questioned validity of the Supplementary Agreement and Mutual Understand Letter on the premise that supplementary agreement was entered into on the basis of government orders and on misleading the complainants and the Mutual Understand Letter was not acted upon. There is no evidence on record to show that the supplementary agreement was entered into by the first opposite party misrepresenting the complainants and the complainants have not raised any objection as to the circumstances leading to their entering the supplementary agreement.
54. The mutual understand letter was issued by the complainants in favour of the first opposite party in view of the supplementary agreement. The complainants had not chosen to question the first opposite party issuing the cheques till they have filed the complaint and the complainants have failed to establish that the cheques were issued for the purpose other than of advance in respect of change in the measurements of the constructed area in terms of the development agreement and supplementary agreement.
55. G.O.Ms No. 302 dated 15.04.2008 which according to the first opposite party necessitated changes in building rules and pave way for the first opposite party and the complainants to enter into supplementary agreement provides for parking requirements in Residential Complexes, Hotels, Restaurants and commercial buildings , multi storied buildings and clause 11.1 of the G.O. stipulates 40% of total built up area as parking area in Municipal Corporations and Clause 11.3 gives details of the parking areas to be provided as under:
11.3 The other aspects for providing parking spaces are:
(i) Common and Continuous cellar parking floors between adjoining buildings would be allowed depending upon structural safety aspects, mutual agreement between owners, etc.
(ii) The parking spaces shall be efficiently designed and clearly marked andprovided with adequate access, aisle, drives and ramps required formaneuvering of vehicles.
(iii) Stilt floor/ sub-basement /Cellar parking floor shall be used only for parking and not for any habitation purpose. Misuse of the area specified for parking of vehicles for any other use shall be summarily demolished / removed by the Enforcement Authority.
(iv) For parking spaces in basements and upper storeys of parking floors, at least two ramps of minimum 3.6 m width or one ramp of minimum 5.4 m width and adequate slope shall be provided. Such ramps may be permitted in the side and rear setbacks after leaving sufficient space for movement of fire-fighting vehicles. Access to these may also be accomplished through provisions of mechanical lifts wherein the height of the parking floor upto 4.25 m is allowed wherein each parking level would be reckoned as a parking floor for the purpose of computation of total parking requirement. The sanctioning authority shall take an Undertaking for compliance with regard to mechanical parking facilities and closure of such building in case the owner fails to provide the required parking facility.
(v) Basement/cellar shall be set back at least 1.5 m from the property line and in case of more than one cellar 1 metre additional setback for every additional cellar floor shall be insisted.
(vi) Up to 10% of cellar may be utilized for utilities and non-habitation purpose like A/C Plant room, Generator room, STP, Electrical installations, Laundry, and such other similar utilities.
(vii) Space over and above 6m in front setback may be considered as off-street parking space.
(viii) Visitors parking to be provided shall be 10 % of the area mentioned in Table VI, which is over and above the required parking area, and may be accommodated in the mandatory setbacks other than the front setback, wherever such setbacks are more than 6m.The Visitors Parking facility shall be open to all visitors.
(ix) In respect of Apartment Complexes / Building / Block, in sites up to 750 sq m the Parking requirement shall be deemed to be met if the entire stilt flooris left for parking.
(x) A WC / Toilet facility shall be provided for watch and ward in the stilt floor.
56. The first opposite party thus, cannot contend that the second complainant is estopped from claiming parking area for her Flat No.4A in view of the agreement allotting 30% parking area to the complainants. As mentioned herein above, the agreement has not finalised ratio of parking area to be divided between the complainants and the first opposite party and left it to the determination by the Municipal Commissioner.
57. The complainants are estopped from claiming the amounts under the receipts and the amount covered under six cheques as they paid the amount for carrying out additional work than that was agreed to be done and also in the light of the change in circumstances leading to and the first opposite party and them to enter into supplementary agreement.
58. The learned counsel for the complainants relied upon the following decisions:
1.
Sonkar Builders & Ors. Vs Klusum Bharavanath Joshi, IV (2006) CPJ 207 (NC)
2. Maj.
Gen. V.K.Singh (Retd) Vs Army Welfare Housing Organisation (A WHD) I (2010) CPJ 418
3. Faqir Chand Gulati Vs Uppal Agencies, III (2008) CPJ 48 (SC)
4. Narne Constructons Pvt Ltd., Etc. Vs Union of India, III 2012 SLT 669
5. Mopar builders & Developers Pvt Ltd., Vs Unity Coop. Housing Society Ltd., I (2011) CPJ 71 (NC)
6. Ghansi Ram Lal Shah Vs Supriya Suhas Sarmalkar (rs.) & Ors., IV (2011) CPJ 481 (NC
7. Pratty Gopala Rao (Dr.) Vs Bhavani Agnecies Ors., III (2010) CPJ 235
8. Maya Kuldeep Paul & anr Vs Pankaj J.Shah & anr III (2010) CPJ 294 (NC)
9. Matiur Rahaman & Ors., Vs Jahanara Begum & Anr, III (2008) CPJ 164 (NC)
10. Premier Homes Vs Oliver Archibald Aranha & Anr I (2010) CPJ 16 (NC)
11. M2K Infrastructure Pvt. Ltd., Vs Ms.Ashu Vasudev & Anr., IV (2010) CPJ 231 (NC)
12. HSBC Asset Mgt.(India)Pvt. Ltd., & Others Vs Smt Mani Rao and others
13. The Gujarat State Financial Corporation Vs Ms Lotujs Hotels Pvt Ltd., AIR 1983 SC 843 (1)
14. Sharma Properties Pvt Ltd., Vs Prerna Coop. Housing Society CPJ 2003 4 102
59. In Sonkar Builders case, it was held that the terms of agreement are binding on both parties and as per the agreement the complainant was entitled to 713 sft built up area while the builder handed over the built up area of 648 sft and was held liable to pay Rs.14,625/- towards the cost of the difference area.
60. V.K.Sings is a case where it was held that the builder has not shown covered area properly and not showing balcony as covered area in the sanctioned plan does not deprive the complainant from claiming proportionate cost of area.
61. In Faqir Chand Gulatis case, the Honble Supreme Court held that the land owners are consumers and can invoke jurisdiction of Consumer Forum against the builder.
62. The same principle laid in Faqir Chand Gulatis case is reiterated in Narne Constructions Private Limited.
63. In Mopar Builders case, the completion certificate and occupancy certificate were not given by the builder and the same was held as continuing cause of action for filling the complaint.
64. Ghansi Ramlal Shahs is a case where the builder was held liable on the premise that vacant possession of the flat agreed to be given to the complainant in terms of the development agreement has to be honoured and the builder has to get vacated the tenant in order to handover possession of the flat to the complainant.
65. In Dr.Pratty Gopal Raos decision, the builder did not provide common areas and facilities including car parking area even after receiving 90% amount from the complainant.
It was held that common area includes car parking and the builder has to specify car parking area in the sale deed.
The builder was directed to pay compensation for facilities no provided, provide car parking and pay compensation for inconvenience, mental agony etc.
66. In Maya Kuldeep Pauls case the builder had sent emissary to complainants offering amount towards full and final settlement and it was considered as indicating deficiency in service on the part of the builder.
67. Mathur Rahman is a case where in terms of agreement, the complainant paid `91,000/- to the builder and the flat was delivered to them in unfinished condition.
Competition certificate was not handed over to the complainant. It was held that the complaint was filed within the period of limitation from the date of delivery of the possession of the flat.
68. Premier Homes is a case involving delay in construction of the house and the builder was directed to refund the amount with interest and compensation.
69. M2K Infrastructure is a case where the National Commission has dismissed the revision filed by the builder holding that the builder gave up plan to build 9 towers and offered to refund the amount which was not acceptable to the complainant. The builder was directed to refund the amount deposited with interest.
70. In HSBC Assets case provisions of consumer Protection Act vis--vis provisions of arbitration and conciliation Act were considered in detail and it was held that consumer dispute before Consumer Forum is maintainable though the agreement between the parties contains arbitration clause.
71. In Gujarat State Financial Corporations case, the financial corporation entered into agreement in performance of its statutory duty to advance loan to the respondent company and acting on undertaking, the respondent company proceeded to undertake and execute project of setting of a 4 Star Hotel. The company incurred huge expenses and suffered liabilities to set up the hotel.
The Supreme Court held that principle of promissory estoppel would estop the financial corporation from backing out of its obligation and it was held that the corporation is other authority within the meaning of article 12 of the Constitution.
72. In Sharma Property case, the National Commission dealt with a situation where the Municipal Corporation levied betterment charges and thereafter it was held that the purchasers are liable to pay the charges in proportion to the respective areas of their respective premises. The National Commission observed that violation of the terms of the approved plan amounts to deficiency in service on the part of the builder.
73. The learned counsel for the first opposite party has relied upon the following decisions:
1. M/s United India Insurance Co., Ltd., Vs Ajmeer Singh Cotton and General Mills and Others AIR 1999 SC 3027 wherein it was held that the complainant can question the settlement of claim after issuing of discharge voucher for final settlement, on the grounds of fraud, coercion misrepresentation only.
2. Rameswari Devi and Others Vs Nirmala Devi and others V(2011) SLT 196, the Supreme Court held that frivolous and uncalled for litigation has to be curbed. It was held:
We are clearly of the view that unless we ensure that wrong-doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that Courts otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.
3. F.A.No.1086 of 2009 wherein this Commission followed the principle laid in Ajemeer Singh Cotton decision
4. Bharati Knitting Co., Ltd., Vs DHC Worldwide Couriers Limited 1999 (6) SCC 451 wherein it was laid that the terms and conditions of the contract are binding on the parties thereto.
74. The second opposite party is the husband of the first opposite party. Except stating that he had carried out the construction work, the complainants have not established any transaction with him. The first opposite party has contended that the complainants have no privity of contract with him. The averments of the complaint would support his contention. The complaint against the second opposite party is liable to be dismissed in absence of any contract between him and the complainants.
75. For the foregoing reasons and in the light of ratio laid in the aforementioned decisions, we are of the view that the complaint deserves to be allowed directing the first opposite party to pay a sum of Rs.1,98,000/- towards rent, provide parking area for flat bearing No.4A allotted to the complainant no.2, to pay a sum of Rs.1,59,000/- towards value of solar water heaters for the three flats. Rest of the reliefs except the relief for value of 1, 2 BHK flats and the market value of 654.78 sft of plinth area are rejected. The reliefs in regard to the market value of 2BHK Flats and that of 654 sft plinth area the complainants are at liberty to pursue them in civil court.
76. In the result, the complaint is allowed directing the first opposite party to pay a sum of `1,98,000/- towards rent, provide parking area for flat bearing No.4A allotted to the complainant no.2, to pay a sum of `1,59,000/- towards value of solar water heaters for the three flats. Rest of the reliefs except the relief for value of 1, 2 BHK flats and the market value of 6 54.78 sft of plinth area are rejected. For the reliefs in regard to the market value of 2BHK Flats and that of 654 sft plinth area the complainants are at liberty to pursue them in civil court.
The costs of the proceedings quantified at `5,000/-. Time for compliance four weeks.
MEMBER MEMBER Dt.01.03.2013 కె.ఎం.కె* APPENDIX OF EVIDENCE WITNESSES EXAMINED For Complainants For opposite parties NIL NIL EXHIBITS MARKED For complainant Ex. A1 Regd Development Agreement between landowners & builder, dated 7.09.07 Ex. A2 Six post dated cheques issued by Ops for Rs. 50,000/- each issued by OP.No.1 , dated 25.10.07 to 25.02.2008 Ex. A3 Proceedings of Commissioner, Eluru, Municipal Corporation along with approved plan, dated 13.07.09 Ex. A4 Surveyors Report , dated 05.04.12 Ex. A5 Bunch of 3 photos of illegally constructed pent house along with photo studio receipt, dated 15.01.12 Ex. A6 Legal Notice with Postal Receipts and Acknowledgments, dated 31.12.2012 Ex. A7 Order in WP 1152/12, dated 20.01.12 Ex. A8 Axis bank statement of A/c of complainant No. 1 reflecting withdrawal of Rs. 3,60,000/- from GPF Account along with details of withdrawals from GPF etc. letters and pension papers, dated 01.07.10 to 30.09.10 Ex.A9 Receipt for Rs. 5,00,000/-issued by OP No.1 to the complainants, dated 14.08.2010 Ex.A10 Receipt for Rs. 4,50,000/-issued by OP No.2 to the complainant No.1, dated 02.05.2011 Ex.A11 Bunch of three flat haning over letters by OP No.1, dated30.10.2011 Ex.A12 Bunch of three flat taking over letters by complainants along with Gruha Pravesam Invitation Card, Dated 01.11.2011 Ex.A13 Bunch of 3 property tax demand notices etc issued by Commissioner, Eluru Municipal Corporation in respect of flat Nos 1A, 1B and 4A belonging to the complainant along with 3 Receipts, dated 12.12.2011 Ex.A14 Electricity Bills for Flat NOs 1A, 1B and 4A for july to October2011 Ex.A15 Registered Sale Deed executed by OP No. 1 in favour of Sanku Rghuram and Smt. Pendyala padmavahi in respect of Flat No3-B for Rs. 22,10,000/-
Ex.A16 Registered Sale Deed executed by OP No. 1 in favour of Suggula Rishitha and Niharikha, minors rep. by Suggula Seshubabu amd Smt. Anupama in respect of Flat No5-A for Rs. 13,20,000/-Dated 13,20,000/-
Ex.A17 Bunch of Receipts Estimates etc issued by Timber Depot to the Carpenter etc for the various works done to the complainants flats, dated 05.12.2011 Ex.A18 Representation to Commissioner, Eluru Municipal Corporation , dated 12.01.12 A19 Quotation for Installation of Solar Water Heater for one flat amounting to Rs. 53,000/- dated 03.04.12 For Opposite parties Ex.B1 Development Agreement dated 09.07.2007 Ex.B2 Mutual of Under Stand letter, dated 14.09.07 Ex.B3 G. O. Ms. No.738, dated 03.10.07 Ex.B4 G. O. Ms. No.302, dated 15.04.08 Ex.B5 Supplementary agreement dated 23.06.08 Ex.B6 Building permission proceedings dated 13.07.09 & sanction plan Ex.B7 Revised permission proceedings dated 17.06.10 & sanction plan Ex.B8 Flat 1A handing over letter, dated 30.10.2011 Ex.B9 Flat 1B handing over letter, dated 30.10.2011 Ex.B10 Flat 4A handing over letter, dated 30.10.2011 Ex.B11 Flat 1A Taking over letter, dated 01.11.2011 Ex.B12 Flat 1B Taking over letter, dated 01.11.2011 Ex.B13 Flat 4A Taking over letter, dated 01.11.2011 Ex.B14 Two Receipts issued by O.P.No.1 dated 14.05.10 & 02.05.11 Ex.B15 Occupancy certificate dated 09.06.11, Eluru Municipal Corporation Ex.B16 Mortgage release letter, dated 09.06.11, Eluru Municipal Corporation Ex.B17 Car parking plan in he stilt area.
MEMBER MEMBER