State Consumer Disputes Redressal Commission
Smt. U. Kamakshi vs Ravada Narendra Babu on 17 September, 2012
BEFORE THE A BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. FA 270 of 2010 against CC 147/2008, Dist. Forum, Ranga Reddy Between: Smt. U. Kamakshi W/o. Umamaheshwara Rao R/o. 4-9-776/4, Road No. 1 Yellareddy Colony Hayathnagar, Hyderabad *** Appellant/ . Opposite Party And Ravada Narendra Babu S/o. R. Ramakrishna Sr. Software Engineer R/o. Sargam Society No. 3 Near Juna Jakat Nala Karvenagar, Pune. *** Respondent/ Complainant Counsel for the Appellant: M/s. K. Venkateshwara Rao Counsel for the Respondent: M/s. M. Hari Babu CORAM: HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT. & SRI S. BHUJANGA RAO, MEMBER MONDAY, THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND TWELVE ORAL ORDER:
(Per Honble Sri Justice D. Appa Rao, President) ***
1) This is an appeal preferred by the opposite party builder against the order of the Dist. Forum directing her to complete the pending works mentioned in the certificate issued by Cosmic Architects, and hand over the possession of two houses to him or in the alternative to deliver the possession of semi-finished houses along with damages to a tune of Rs. 2,50,000/- for the defects and non-completion of works, refund Rs. 30,000/- paid in excess with interest @ 9% p.a., from the date of payment till the date of realization, return the undated cheque for Rs. 70,000/- drawn on HDFC bank and costs of Rs. 2,000/-.
2) The case of the complainant in brief is that the appellant builder under the name and style of Shree Constructions agreed to construct two houses for a consideration of Rs. 19,50,000/-. Though initially she represented that she had every right to sell the said plots executed plots sale-cum-house construction agreement on 15.8.2007 and received Rs. 30,000/- towards advance. Later it was found that the real owner was Sri Sama Chandra Reddy. When this was brought to the notice of appellant, she herself introduced Sri Sama Chandra Reddy who in turn agreed to sell his plot into two equal portions. He paid Rs. 60,000/- to Sri Sama Chandra Reddy who agreed to register the sale deed in favour of complainant on receipt of balance of sale consideration. After obtaining bank loan he paid Rs. 3, 30,000/- by way of cheques dt. 20.10.2007, and on that he executed two sale deeds. As against Rs. 11, 60,000/- he paid Rs. 11, 90,000/- an excess of Rs. 30,000/- which she agreed to repay. He also gave another cheque for Rs. 70,000/- in the month of August, 2007 towards part payment of house construction. He also deposited Rs. 70,000/- in appellants account in order to avoid delay in payment through cheque since the appellant agreed to return the cheque. In the light of above circumstances two agreements for house construction were executed by the appellant on 29.8.2007. For the Eastern and Western portion he had paid Rs. 8, 90,000/- besides Rs. 3 lakhs by way of cheque as the sanction of bank loan was delayed to have early construction. In May, 2008 when he visited the site to find out the construction activity he noticed the works were pending and the work that was already done was not up to the mark. He found the following defects:
i.
Corners of the building are in blend position.
ii.
Parapet wall is not constructed properly iii.
Windows sun sides are to be 180 degrees but they are fixed slightly blend iv.
Some windows are without sun sides.
v.
Ventilators are also not properly fixed vi.
Water tanker to be built slightly high to the floor level, but it is not fixed so, allows damage to the roof vii.
Steps and plastering work.
viii.
Current wires are fixed at ventilation and even switch boards are also fixed there which allows short circuit in rainy season.
He found that floor work, electrical wiring, drainage work, kitchen almirahs were not completed. Septic tank to be erected, floor work in between the building and compound wall, plastering work, white wash etc., were not completed. Whenever, he was requesting, the appellant was promising to complete, however was postponing the matter. In order to evade the work appellant gave a legal notice on 11.7.2008 demanding to pay Rs. 1 lakh towards additional amount and on failure to pay she will deposit the undated cheque, and in case it was dishonoured, initiate criminal action. However, the averment that construction of both houses was completed, and that remaining works would be completed only on payment of Rs. 1,80,000/- was all created in order to avoid construction. On that he gave a reply. Since the opposite party was postponing the construction, he got assessed the incomplete work through M/s. Cosmic Architects which on inspection gave a certificate mentioning the stage of construction and estimated the approximate cost at Rs. 1,05,000/- which is required for completion of entire house. Due to deficiency in service rendered by the appellant, he suffered mental agony besides huge loss. As per the engineers estimate the constructed built up area was 686.80 sft as against 840 sft., mentioned in the construction agreement. The appellant was liable to return Rs. 1,05,708/- each towards shortfall of area. Therefore, he filed the complaint for a direction to the appellant to complete the works as per the certificate issued by the architects, hand over possession of the houses or in the alternative deliver semi-finished houses together with damages of Rs. 2,50,000/- towards defects and non-completion of works and Rs. 2,11,416/- towards shortfall of area besides damages of Rs. 5 lakhs towards mental agony and refund Rs. 30,000/- paid in excess, return the undated cheque issued for Rs. 70,000/- and costs.
3) The appellant builder resisted the case. She alleged that she executed plot sale-cum-construction agreement on 29.8.2008 and received Rs. 30,000/- towards advance. In fact she entered into an open plot sale agreement with Sri Sama Chandra Reddy, original owner of the plot. As per the agreement the complainant had to pay the consideration on or before 31.12.2007 and yet to pay Rs. 1, 80,000/-. She had arranged the home loan from DHFL.
Consideration of Rs. 19, 50,000/- does not include registration charges. She paid the charges believing his representation that he would reimburse the said amount paid by her before taking possession of the house. When agreement was entered into with Sri Sama Chandra Reddy the amounts that she had paid were not adjusted towards the amounts payable by him. No amount was paid by the complainant to Sri Sama Chandra Reddy. As per the agreement submitted to DHFL the cost of each plot was Rs. 5, 20,000/-. The complainant paid Rs. 30,000/- each towards advance at the time of agreement and arranged Rs. 3, 30,000/- through DHFL. The total amount paid for each of the plot was Rs. 3, 60,000/-. An amount of Rs. 1, 80,000/- was paid by her which she was entitled. It is the complainant who was dragging on the work without paying balance of amount. As there was possibility that he would contend that there was delay in construction she issued notice directing him to pay balance of amount. The balance of work yet to be completed was estimated at Rs. 50,000/- while she was entitled to Rs. 1, 80,000/- including registration charges. She agreed to return the cheque when the complainant promised to pay balance of amount. She demanded Rs. 1 lakh to complete the balance of work. This complaint was filed with a criminal intention to evade payment. In fact he had taken completion certificate from her in order to submit the same to DHFL to claim income tax benefit. As his purpose was served he was not interested. He was dragging on for payment of balance of amount. She never threatened that she would deposit the cheque and in case it was dishonoured she would file criminal case. She informed that unless amounts were paid, she could not hand over the possession. There was no deficiency in service on her part, and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A12 marked while the appellant filed her affidavit evidence and got Ex. B1 to B4 marked.
5) The Dist. Forum after considering the evidence placed on record opined that the certificate issued by M/s. Cosmic Architects discloses that some of the works are pending and that the appellant was bound to deliver possession of the houses after attending to the remaining works or in the alternative to deliver the possession of semi-finished houses along with damages to a tune of Rs. 2,50,000/- for the defects and non-completion of works, refund Rs. 30,000/- paid in excess with interest @ 9% p.a., from the date of payment till the date of realization, return the undated cheque for Rs. 70,000/- drawn on HDFC bank and costs of Rs. 2,000/-.
6) Aggrieved by the said order the appellant builder preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.
It ought to have seen that she had paid Rs. 80,000/- towards registration charges which he had agreed to repay. The certificate issued by M/s. Cosmic Architects ought not to have been relied.
She was not liable for refund of amount, and therefore prayed for dismissal of the complaint with costs.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that though the agreement was taken in favour of the builder for purchasing the site, later the complainant had purchased the said property evidenced under Ex. A10 & A11. It is also not in dispute Ex. A1 & A2 were executed in between the parties for construction of a house on payment of Rs. 19,50,000/-. The appellant contends that she had paid registration charges of Rs. 80,000/-. She also filed Exs. B2 & B3 challans for Rs. 33,000/- and Rs. 33,900/- respectively to show that she paid registration charges. It would come to Rs. 66,900/-. The complainant could not explain as to how these receipts could be filed by the appellant, if he had paid the amount. The appellants contends that while the complainant had to pay Rs. 1,80,000/- and that she had to execute the works worth Rs. 50,000/-. Unless the said amount was paid she could not complete the construction, and hand over delivery of possession.
9) Though the appellant made construction she did not file any accounts to show as to the amounts spent towards construction of the houses. Except proving payment of registration charges to a tune of Rs. 66,900/- she could not prove that the complainant had still to pay Rs. 1,80,000/- excluding registration charges. The appellant could not prove that the complainant had taken completion certificate in order to submit to DHFL and claimed Income Tax rebate. She contends that after receiving the said certificate the complainant was no more interested in completion of work, and that was why he was dragging on payment of balance of amount.
10) The complainant on the other hand obtained a report from Cosmic Architects which after verifying each of the construction made a detailed notes as to the construction that was made while mentioning the approximate cost for completion of pending works. The appellant except stating that the report of architect cannot be taken into consideration, she could not say where the architects went wrong. The complainant also filed photographs marked as Ex. A12 showing the stages of construction and the defects pointed out in the complaint. This could not be controverted by the appellant. We repeat that the architects report under Ex. A8 & A9 by mentioning each and every item viz., internal flooring, kitchen flat form, toilets, doors, windows, shelves, sanitary, electricity, water connection, external flooring, water sump, steps flooring, colour/painting and ramp etc. noted the status of construction and finally observed that approximately an amount of Rs. 1,05,000/- is required for completion of above specified incomplete works. Altogether it would come to Rs. 2,10,000/-. The complainant alleged that there is shortfall of built up area as against 840 sft the built up area came to 686.80 sft for which he claimed Rs.
1,05,708/-. A comparison of Ex. A10 & A11 sale deeds with that of certificates issued by the Architect under Ex. A8 & A9 shows that there is no short fall of built up area.
The architects did not say so in their report.
11) What all the appellant entitled was Rs. 66,900/-. For that the appellant cannot say that unless the said amount is paid she will not hand over possession of the houses. We fully agree with the Dist. Forum in this regard. There is deficiency in service on the part of appellant in the sense she did not complete the construction nor hand over possession of the houses on the date on which she agreed to hand over possession after construction of the houses. It is not in dispute that the complainant gave an undated cheque which was with the appellant, and undoubtedly, she had to return the said undated cheque to the complainant.
12) In the circumstances the appeal is liable to be allowed in part modifying the order of the Dist. Forum. Since the appellant could prove that she had paid Rs. 66,900/-, we are of the opinion that appellant need not pay Rs. 30,000/- ordered by the Dist. Forum together with interest @ 9% p.a., The direction to pay an amount of Rs. 2,50,000/- is modified instead directed to pay Rs. 2,10,000/- to be paid by the appellant towards non-completion of works, while rest of the order is set-aside.
13) In the result the appeal is allowed in part directing the appellant to complete the pending works as mentioned in the Architects report and hand over possession of the houses or in the alternative hand over the semi-finished houses to the complainant along with a sum of Rs. 2,10,000/- towards non-completion of pending works which the architects pointed out and also return the undated cheque for Rs. 70,000/- drawn on HDFC Bank. Rest of the order is set-aside. The appellant is also directed to pay costs of Rs. 5,000/- to the complainant. Time for compliance eight weeks.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER 17/09/2012 *pnr UP LOAD O.K.