State Consumer Disputes Redressal Commission
Sriperumbudhuri Lakshmi Narasimha ... vs 1. Sri Pappala Arun Kumar S/O Late ... on 25 November, 2009
FA1078 of 2007 BEFORE THE CIRCUIT BENCH A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT: VISAKHAPATNAM F.A.No.1078 OF 2007 AGAINST C.C.NO.1530 OF 2003 DISTRICT CONSUMER FORUM-II VISAKHAPATNAM Between 1. Sriperumbudhuri Lakshmi Narasimha Swamy S/o late Ramana Murthy, Hindu, aged 53 years, Owner of Flat No.5, 2nd Floor, D.No.49-35-8, N.G.G.Os Colony, Akkayyapalem, Visakhapatnam 2. Sri Balla Prabhakar Rao S/o Malleswara Rao Hindu, Aged 39 years, Owner of Flat No.1 Ground Floor, D.No.49-35-8, N.G.G.Os Colony Akkayyapalem, Visakhapatnam 3. Sri Korimilli Venkat Trinadha Rao S/o Satya Rao, Hindu, aged 37 years, Owner of Flat No.3, 1st Floor, D.No. 49-35-8, N.G.G.Os Colony, Akkayyapalem, Visakhapatnam 4. Smt Adapaka Venkata Sunanda, W/o Venkateswara Rao Hindu, aged 29 years, Ex-Owner of Flat No.4, 2nd Floor, D.No. 49-35-8, N.G.G.Os Colony, Akkayyapalem, Visakhapatnam Appellants/complainants A N D 1. Sri Pappala Arun Kumar S/o late Bhaskara Rao Hindu, aged 36 years, R/o Sri Bhaskara Nilayam 2. Sri Pappala Kiran Kumar S/o late Bhakara Rao Hindu, aged 34 years 3. Smt Pappala Padmavathi W/o late Bhaskara Rao aged 63 years (R1 to R3 R/o D.No. 49-35-8, N.G.G.Os Colony, Akkayyapalem, Visakhapatnam) 4. Om Sai Constructions rep.by Teki Jayachandra Kumar S/o alte T.S.S.Prakasa Rao, Hindu, aged 42 years, D.No.9-35-6, Pitapuram Colony, Visakhapatnam Respondents/opposite parties Counsel for the Appellants Ms V.Chaitanya Latha Counsel for the Respondents No.1to3 Sri B.Venkata Ramana Counsel for the Respondent No.4 Sri K.V.Srihari QUORUM: SRI SYED ABDHULLAH, PRESIDING MEMBER
& SRI R.LAKSHMINARSIMHA RAO, MEMBER WEDNESDAY THE TWENTY FIFTH DAY OF NOVEMBER TWO THOUSAND NINE Oral Order ( As per R.Lakshminarsimha Rao, Member) *** The unsuccessful complainant is the appellant. The appeal is filed challenging the order of the District Forum-I, Visakhapatnam.
Briefly stated the facts of the case as narrated in the complaint are that the husband of the third respondent and father of the appellants no.1 and 2 entered into an agreement for development of property belonging to the husband of the third respondent with the father of the fourth respondent in the month of April 1999. The father of the fourth respondent entered into construction agreement with appellants no.1 to 3 and with the mother of the appellant no.4 for construction of flats in the land belonging to the father of the respondents no.1 and 2 and husband of respondent tno.3. The fourth appellant acquired the flat by virtue of a will deed executed by her mother late Bankapalli Ammanna Vimala. The first appellant opted for the flat in second floor for a consideration of Rs.3,31,500/-, the appellants no.2 and 3 opted for purchase of 600 sq.ft for consideration of Rs.1,80,000/- and the appellant no.4 opted for purchase of 700 sq.ft for a consideration of Rs.2,10,000/-.
The father of the respondent no.4 promised to provide teakwood for the main entrance as also for remaining doors. Further, he had promised to paint the doors and windows with one coat of wood premium and two coats of white enamel paint, painting of external surfaces of walls with two coats of snow-cem terrace with water proofing, construction of sump tank with sufficient capacity with partition of municipal and bore water, with electric motor with two feeding section to overhead tank, allotment of two scooter parking slots for the appellants no.1 to 3. He had also promised the appellant no.4 in addition to the two scooter parking slots a car parking slot. After the death of father of the respondents no.1 and 2 and husband of the respondent no.3 and father of the respondent no.4, the respondents took possession and control of affairs and received balance consideration for construction of flat. The respondent no.4 failed to construct the flat as per the terms of the agreement and left several works unattended. The respondents no.1 to 3 had made encroachments in the common areas by constructing compound wall and gates. They had been obstructing the free movement and enjoyment of the common areas by the appellants and other flat owners.
The respondents no.1 to 3 are entitled to two flats as per the terms of the development agreement. They had illegally constructed an additional floor consisting of two more flats and thus they had been causing inconvenience to the appellants in parking their two wheelers in the parking slots. The respondents had obtained permission for construction of six flats only. Later, they have illegally constructed two more unapproved flats. They have been making further construction over the illegal top floor resulting in grave danger to the structure of the building as the same was not designed for four storied building. The respondent no.4 failed to complete the painting to the doors and windows, the works at the common areas, front elevation, electrical internal fuse points, safety grill for the electrical meters, water proof application on terrace and tank. They failed to rectify the leakage in water tank and construct ground water sumps tank with sufficient capacity. They have also failed to provide new motor for bore and did not polish the flooring at common areas, painting of stair case railings etc., which the appellants estimate at Rs.2,50,000/- and for the works in the appellants flats at Rs.20,000/-.
The respondents contested the claim.
The respondent no.1 had contended that the matter has to be settled between the appellants and fourth respondent. All construction was done according to the instructions and specifications of the qualified engineer. The respondents no.1 to 3 and Smt Punyapu Usha Gatri are the legal heirs of late Papalla Bhaskara Rao. The respondent no.3 is his wife and the respondents no.1 and 2 are his sons.
Late Bhaskara Rao was the absolute owner of the site measuring 225 sq.yards along with an RCC building measuring 800 sq.feet and a tiled house in Sy.No.59 situated at NGOs Colony Attayapalem, Alipuram Ward, Visakhapatnam. Late Bhaskar Rao purchased the site from Vaddi Ramana Murthy through a registered sale deed dated 10.8.1979. During his life time, Bhaskara Rao executed sale deeds for undivided and unspecified extent of land in favour of the appellants no.1 to 4 for the purpose of development of the property.
The respondent no.4 executed the construction agreement. The respondents no.1 to 3 retained the front portion of the ground and first floor and back portion of third floor of the building. There were minor disputes with the respondent no.4 in regard to the construction. The respondent no.1 to 3 filed a suit in OS.No.1190 of 2002 against Jayachandra Kumar and Sunkara Venkat Rao. The suit is pending in III Sr. Civil Judge Court, Visakhapatnam. Sunkara Venkat Rao in collusion with the respondent no.4 made an attempt to forcibly occupy the third floor on 19.4.2002 and 30.4.2002. The respondents no.1 to 3 are the absolute owners of the scheduled property. The appellants have no right to interfere with the possession of the respondents no.1 to 3 over the property. The appellants colluded with the respondent no.4 and filed the complaint with an intention to acquire unlawful gain.
The respondent no.4 has filed counter stating that due to the misbehaviour of the respondent no.1 to 3 with him he could not be able to complete polishing work of main doors of the flats and snow-cem work to the building. The appellant no.1 failed to pay Rs.34,000/- to the respondent no.4 even after the respondent no.4 delivered possession of the flat. On demand for the amount of Rs.34,000/- made by the respondent no.4 the appellants filed the complaints. As per the terms and conditions of the development agreement, the complaint is not maintainable as it is time barred. The appellants have no locus standi to file the complaint. There had been no agreement executed between the appellant no.4 and the respondent no.4. The respondent no.4 had fulfilled his part of obligation as per the terms of the agreement.
The respondents no.1 to 3 in order to get unlawful gain filed suits before Jr.Civil Judge, Visakhapatnam and obtained interim injunction against the respondent no.4. Due to the prohibitory interim order passed by the court, the respondent no.4 could not complete the aforementioned construction work. The respondent no.4 has filed a criminal case against the respondents no.1 to 3 before the III Metropolitan Magistrate Visakhapatnam in Crime No.168 of 2002 u/s 447, 503 and 380 R/w Sec.34 of IPC.
The said case is pending trial.
The watchman of the respondent no.4 also filed a criminal case on the file of III Metropolitan Magistrate at Visakhapatnam in C.C.No.810 of 2002 u/s 324 and 506 R/w Sec.34 of IPC against the respondents no.1 to 3 and the same is pending. Only due to the litigation the respondent no.4 was not able to complete the aforementioned work. The respondent no.4 is ready and willing to complete the work if the first appellant does pay an amount of Rs.34,000/- due to the respondent no.4 and provided that the prohibitory interim order is vacated by the court. Hence, prayed for dismissal of the complaint.
The appellants filed affidavits. The documents Exs.A1 to A3 were marked on their behalf.
The third and fourth respondents have filed their affidavits, but no documents.
The District Forum has dismissed the complaint holding that the complaint was barred by limitation and the subject matter is subjudice.
The points for consideration are:
1) Whether the complaint is not filed within the period of limitation?
2) Whether there was any deficiency in service on the part of the respondent sno.1 to 4?
3) To what relief?
POINT NO.1 There is no dispute of the fact that the father of the respondents no.4 entered into construction agreement with the appellants no.1 to 3 and with the mother of the appellant no.4 for construction of the flats. The extent of the land purchased by each of the appellants is mentioned in para 3 of the complaint. The construction agreement was entered into, on 21.4.1999. As per the terms of the construction agreement dated 7.3.2000 the respondent no.4 has to complete the construction work according to the plans and specifications or modifications thereof necessitated by the circumstances from time to time. The respondent no.4 has to finish as per the plan and specifications and hand over the flat within 12 months from the date of payment of instalments towards foundation. The District Forum held that agreements Exs.A1, A3, A5 and A7 were executed during the year 1999-2000. The period fixed for construction of the flat by the building ESS Prakash Rao was 12 months. Further it held that there was no record as to the date of death of the builder Prakash Rao. The construction of the building was over and possession was handed over prior to 15th December 2003 on which date the complaint was presented and as such in the opinion of the District Forum, the complaint was filed beyond the period of limitation.
The respondent no.4 had categorically stated that due to misbehavour of the respondents no.1 to 3, he could not complete the polishing work of the main door of the flat and snowcem work to the building. Further, he had come forward with a proposal that he would complete the aforesaid work as also that he has been ready and willing to do the same in the event the appellant no.1 does pay an amount of Rs.34,000/- so aslo subject to the court vacating the prohibitory order. Therefore, it cannot be said that the cause of action arose prior to the month of December, 2003. We hold that the complaint is filed within the period of limitation in the light of the admission of the respondent no.4 that semi-finished flats were handed over to the appellants as also that he is ready to finish the same. In that view of the matter, we are inclined to accept the contention of the appellants that the complaint was filed within the period of limitation and we hereby remit the matter to the District Forum for deciding the other aspects of the matter.
In the result the appeal is allowed by setting aside the order passed by the District Forum-I, Visakhapatnam.
The complaint is remitted to the District Forum for deciding the other aspects of the matter by giving opportunity to both sides to adduce evidence and dispose of the complaint within three months. Both parties are directed to appear before the District Forum on 10.12.2009 without insisting on fresh notice. No costs.
Sd/-
PRESIDING MEMBER Sd/-
MEMBER Dt.25.11.2009 Kmk*