State Consumer Disputes Redressal Commission
Sri Sai Balaji Company,Malkajgiri, ... vs S.V.V.Sreenivasa Rao, Secunderabad ... on 4 February, 2014
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD F.A.No.460/2013 against C.C.No.163/2012, Dist. Forum-I, Hyderabad. Between: 1.Sri Sai Balaji Company, Rep. by its Managing Partners, Sri Adimulam Subrahmanyam and Smt.Badri Shanti, Registered Office situated at :30/265-25-12/1, Geethanagar, Malkajgiri, R.R. District. 2. Sri Adimulam Subrahmanyam , S/o.: Sri A. Ashwathaiah, Aged about 52 years, Occ:Business, R/o:D.No.12-2-862, Sai Nagar, Ananthapur, Managing Partner of O.P.No.1. 3. Smt.Badri Shanti , W/o: Badri Uma Shanker, Aged about 32 years, Occ: House wife, R/o.: 14-125, Kamala Nagar, Ananthapur. 4. Shri T.Prabhakar Rao, S/o. T.Tirupathaiah Shetty, aged about 55 years, Occ:Business, and R/o.H.No.12-183, G.T.Street, Proddutur, Cuddapah. 5. Sri B.Sugunayya, S/o.Chinna Veeraiah, Aged about 60 years, Occ:Business and R/o. Flat No.F1, Dwarakamayee Apartments, Sri Sai Sarathi Nagar, Yellareddy Guda, Hyderabad. .Appellants/ Opp.parties 1 to 5 And 1.S.V.V.Sreenivasa Rao, S/o.S.Ramarao, Aged about 55 Years, R/o.Flat No.S-2, IInd Floor, Plot No.24, G.V.Reddy Colony, Opp.Alwal Rythu Bazar, Secunderabad 500 010. Respondent/ Complainant 2. Shri M.Satyanarayana Yadav, S/o.Late Sri M.Pullaiah Yadav, Aged about : 52 years, Occ:Business and R/o.Flat No.G-2, Plot No.24, G.V.Reddy Colony, Opp.Alwal Rythu Bazar, Alwal , Secunderabad 500 010. Respondent/ (not necessary party to this appeal) Opp.party no.6 Counsel for the Appellants : M/s.V.Yagnadutt Counsel for the respondent s : Ms. Vijaya Sagi R1 QUORUM:SRI R.LAKSHMI NARASIMHA RAO,HONBLE MEMBER , SRI T.ASHOK KUMAR, HONBLE MEMBER, AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
TUESDAY, THE FOURTH DAY OF FEBRUARY, TWO THOUSAND FOURTEEN.
Oral Order: (Per Sri S.Bhujanga Rao, Honble Member) **** This appeal is directed against the order dt.10.04.2013 of the District Forum-1, Hyderabad, made in C.C.No.163/2012 filed by the respondent no.1/complainant herein.
The appellants and respondent no.2 are the opposite parties 1 to 6 respectively and the respondent no.1 herein is the complainant in C.C.No.163/2012. For the sake of convenience, the parties are described as arrayed in the complaint.
The brief case of the complainant as set out in the compliant in brief is as follows:
The opposite party no.6 has executed a registered Agreement of Sale cum GPA in favour of the opp.parties 1 & 4 vide document no.348/2008 dt. 04.03.2008 and sold semi finished flats (unfinished house) comprising of six flats on plot no.24, in Vanita Cooperative Society situated at G.V.Reddy Colony, Alwal, Secunderabad Contonment, Secunderabad and thereby authorised the opposite parties 1 & 4 to execute sale deeds in favour of prospective buyers, on behalf of opposite party no.6, in respect of the said property by receiving the sale consideration. Pursuant to the said Agreement of Sale cum GPA, the opposite parties 1 & 4 have sold four flats in the said building to third parties and thereafter offered to sell one flat bearing no.S-2 in 2nd floor to the complainant being GPA holders of opposite party no.6. The complainant has purchased the said flat along with car parking in cellar floor by paying total sale consideration of Rs.14 lakhs as agreed, out of which, an amount of Rs.10 lakhs was paid by the complainant by availing home loan from Sundaram Home Finance and remaining amount of Rs.4 lakhs in cash, out of his savings. The car parking in cellar floor was not demarcated and delivered to the complainant.
After receiving the total sale consideration, the opposite parties 1 and 4 have executed registered sale deed vide document bearing no.625/11 in favour of the complainant with regard to the said flat. Out of six flats in the building, five flats were sold to prospective buyers, including the complainant herein and the 6th flat in the said building i.e. G-2 is in the occupation of opposite party no.6 as a tenant.
It is further stated that subsequent to execution of Sale Deed in favour of the complainant, the opposite party no.5, on behalf of the opposite parties 1 and 4 had promised that he would take care of all the issues pertaining to mutation of complainants name in the municipal records, for change of ownership, electricity service connection and also promised to demarcate the parking slot in the cellar floor and handover the same to the complainant.
It is further stated that at the time of execution of Sale Deed, there is an oral agreement between the opposite parties 1 to 5 and the complainant, as per which all the internal works and unfinished works have to be finished by the complainant with his own costs and all the external works which are common for all the flat owners, have to be taken care of by the opposite parties 1 to 5. Apart from that, the opposite party no.5 on behalf of the opposite parties 1 and 4 has also promised to attend to all unfinished works, installation of lift in the building and also promised to carryout external plastering work and white wash for the entire building. But the opposite parties 1 to 5 though promised as stated above, have failed to fulfil their promise and on the other hand, they allowed the opposite party no.6 to stay in the flat no.G-2 as a tenant, even though, he is not paying any rents to them. Opposite party no.6 without having any legal right or authority has constructed two rooms illegally in the cellar floor and intentionally let out those rooms, on rent, to third parties and is acting high handedly.
The opposite parties have also promised to install lift in the building, within one month from the date of the Sale Deed and also promised to provide drinking water to all the flat owners by erecting overhead tank in the said building. But these basic needs/facilities were not provided even by the date of the complaint as promised by them. The opposite parties 1 to 6 did not take any steps to transfer the electricity service connection of flat no.S-2 in favour of the complainant, inspite of several requests and demands. The complainant came to know that there is due of Rs.1,575/- to be paid towards electricity charges prior to his occupation and as he is in need of electricity, he cleared the said dues of the said flat towards electricity charges. The complainant is entitled to get the said amount from the opposite parties. Prior to sale of the complainants flat, water taps were not provided in the said flat and the same were purchased by the complainant and got fixed the same with qualified plumber at the time of house warming ceremony. During the rainy season, the water seeping heavily into the roof of attached bathroom and internal walls of the flat, as a result, the entire painting of interior walls of the complainants flat got damaged with poor quality of construction. Apart from that, since there was no proper water proof in the terrace of the flat of the complainant, during the rainy season, water is seeping into the walls of the complainants flat. Though all these problems were brought to the notice of the opposite parties and requested them to rectify all the unfinished works, but so far, there was no positive response from them. Hence the complaint.
Resisting the complaint, the opposite party no.5 filed written submissions/counter and the opposite party no.6 filed evidence affidavit with same averments stating that the complainant purchased semi finished flat and the total sale consideration amount was not paid by the complainant. The opposite party submits that there is no promise from him for completion of the unfinished works, and there is no duty cast on them to complete the unfinished works as the said flat was purchased in a semi finished state and the complainant, instead of paying for the unfinished works, has filed the complaint, in order to evade the balance payments due. The opp.party further submits that in the Sale Deed, nowhere it is mentioned that the opp.parties are duty bound to demarcate the car parking and there was no promise to that effect. There was absolutely no obstruction in parking of the car by anybody and the complainant is put to strict proof of the same. The opposite party submits that there was no promise by himself or any of the opp.parties that this opp.party will give No Objection Certificate to the Electricity Department for transfer of electricity connection in the name of the complainant. All the fixtures and fittings of the flat are to be borne by the purchaser and the opposite parties have no role in this regard. The opposite party prayed for dismissal of the complaint with exemplary costs.
During the course of enquiry, before the District Forum, in order to prove their case, the complainant no.1 filed evidence affidavit and Exs.A1 to A10 were marked on behalf of the complainants. The opposite party no.6 filed evidence affidavit and Exs.B1 to B3 were marked on behalf of the opposite parties The District Forum based on the evidence adduced and pleadings put forward , partly allowed the compliant directing the opp.parties jointly and severally
1.to allot car parking space to the complainant
2. to provide lift and drinking water facility to the complainant,
3.to maintain the terrace and common areas, so that no damage is cause to the exterior of the building and
4.to rectify the seepage on the walls .
The opp.parties are further directed to pay Rs.25,000/- towards compensation along with Rs.2000/- towards costs to the complainant.
Aggrieved by the said order, the opposite parties 1 to 5 preferred the above appeal, urging that the learned Dist. Forum has totally failed to look into the sale deed, which is filed by the complainant. That the appellant no.5 is neither a signatory of the sale deed, nor member of AOP of appellant no.1. In other words the said appellant is totally third party to the proceedings and is totally an independent person, unnecessarily roped in this case for ulterior motives of the complainant. That the appellants had handed over the flat with all modifications and in a good condition, further there is absolutely no fault of the appellants.
That in the entire Sale Deed there is no mention of provision of lift and Manjeera water supply to the prospective buyers or to the flat owners and hence the order of the Forum is devoid of merits and legal sanctity. The appellants finally prayed for setting aside the impugned order, allowing the appeal.
During the course of hearing of the appeal, the complainant filed FAIA.2319/2013, praying to receive the latest photographs of the flat and the estimate given by the contractor of the complainant to rectify the works to be attended by the opp.parties and medical reports and the petition was allowed after hearing both the parties and the documents were marked as Exs.A11 to A13.
We heard the counsel for both the parties and perused the entire material placed on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
The order of the District Forum is challenged under this appeal, by opp.parties 1 to 5. Opp.party no.6 did not file any appeal challenging the order of the District Forum. Therefore, the order of the District Forum has become final against opposite party no.6.
The learned counsel for the appellants had submitted that there is no privity of contract between the complainant and opposite party no.5 and as such, opp.party no.5 is no way connected with the case and the impugned order cannot be implemented against opposite party no.5.
In para III.c. of the complaint, the complainant has categorically stated that subsequent to execution of the sale deed in favour of the complainant, opposite party no.5 , on behalf of the opposite parties 1 and 4 has promised that he would take care of all the issues pertaining to mutation of the complainants name in the municipal records, electricity service connection etc. and also promised to demarcate the parking slot in the cellar floor, which is earmarked for parking of the vehicles and hand over the same to the complainant. Apart from that , opposite party no.5, on behalf of the opposite parties 1 and 4, has also promised to attend all unfinished works and installation of the lift in the building and also promised to carry out external plastering works and white wash for the entire building.
The opposite party no.5 filed written version/counter affidavit, wherein he has categorically stated I am swearing this affidavit on behalf of the other opposite parties, who are in the same platform along with me as opposite parties in this complaint. From the statement in his counter affidavit, it is very clear that the opposite party no.5 has been acting on behalf of the other opposite parties also in this case. That apart, nowhere in the counter affidavit, opposite party no.5 has stated that he has nothing to do with the sale transaction between the complainant and the opp.parties 1 to 4 and 6 and that there is no privity of contract between him and the complainant. The whole counter affidavit made it clear that he has also acted along with other opposite parties in the sale transaction, regarding the subject flat between the complainant and the other opposite parties. In the evidence affidavit filed by the opposite party no.6 on his behalf and on behalf of the opposite parties 1 to 5, opp.party no.6 has not stated that opp.party no.5 is no way connected with this case and that there is no privity of contract between the complainant and the opposite party no.5. Under these circumstances, we are not inclined to accept the submission of the learned counsel for the appellants that opp.party no.5 is no way connected with the present case and that there is no privity of contract between the complainant and the opposite party no.5, as the same is an after thought.
The Consumer Fora are not having jurisdiction to decide about the allegations that do not fall under the purview of the Consumer Protection Act. Therefore, the consideration of the record relating to the criminal litigation between the complainant and the opposite parties and others is not germane in this case. The District Forum therefore has rightly not considered the criminal litigation between the complainant and the opp.parties, especially opp.party no.6 and his family members.
Out of several reliefs sought for in the complaint, the District Forum granted only a few reliefs namely allotment of car parking space to the complainant, providing lift and drinking water facility to the complainant, maintenance of the terrace and common areas in order to prevent damage to the exterior of the building and to rectify the seepage on the walls and compensation of Rs.25,000/- along with costs of Rs.2000/-. Ex.A1 is the copy of the sale deed executed by opposite party no.1 represented by its Managing Partners i.e. opp.party nos.2 to 4 in pursuance of Ex.A2 Agreement of Sale cum General Power of Attorney executed by opp.party no.6 in their favour .
As seen from Ex.A1 Sale Deed, the complainant purchased semi-finished flat no. S-2 from the opposite parties. There is no dispute about the contents of Ex.A1 Sale Deed.
It is clearly recited in para no.2, page no.3 of Ex.A1 that out of that the portion of the second floor mentioned as Flat bearing no.S-2 with a plinth area of 850 sq.ft. (including the common areas), Car parking area of 100 sq.fts. with an undivided share of the land admeasuring 32 sq.yards for a sum of Rs.10,00,000/-(Rupees Ten Lakhs only) and the Purchaser has agreed to purchase the same for the said sale consideration.
Further it is relevant to extract Condition no.4 of the sale deed recited at page 5 :
That the VENDEE hereby also understands and agrees that the said schedule of property purchased by him/her/their being a Residential Flat on the ownership basis and being part of Residential Complex, all the common areas such as roads, passages, common balconies, staircases, staircase landings, openings, Lift & parking area except car parking, shall always be kept open and free for use by the joint owners in the said complex and the VENDEE shall have no exclusive right and shall not be entitled to object for the same for the usage of other owners of the flats in the said complex.
From the underlined matter in the said condition , it is clear that the opposite parties agreed to provide lift and car parking area to the purchasers of the flats, including the complainant .
In view of the categorical recital in Ex.A1 Sale Deed, the opp.parties cannot escape from their liability, to allot and demarcate car parking for the flat of the complainant. If car parking space is not demarcated, for each flat, it will give rise to disputes among the flat owners, regarding parking of their cars.
The complainant filed the complaint for the common facilities, which are to be provided by the opp.parties, but not the internal works which were taken up by the complainant himself. Installation of the lift, providing drainage facilities and demarcating of the car parking are all the common facilities covered in the sale consideration.
From the photograph, it is clear that the place kept for lift is kept vacant and the lift was not provided by the opposite parties.
As per Condition no.12 of the Sale Deed, as rightly observed by the District Forum, the vendors should maintain the common areas such as cellar and terrace and see that they are well maintained and should not cause any inconvenience to the flat owners. There is ample evidence on record to show that there is seepage on the walls. As stated above, as per Clauses 4 and 5 of Ex.A1 Sale Deed, the opposite parties have provided lift and water connection facilities to the flat owners. Infact the opp.parties have not provided the same. These are the basic requirements to be provided to the flat owners by the builders.
For all the aforesaid facts and circumstances, we do not find any illegality or irregularity to interfere with the order of the District Forum. Hence the appeal fails.
In the result, the appeal is dismissed, confirming the order of the District Forum. There shall be no order as to costs.
MEMBER MEMBER MEMBR Pm* Dt. 04.02.2014