State Consumer Disputes Redressal Commission
M/S. Pooroors Coral Society, Rep. By Its ... vs .M/S. Pooroor Estate, Partnership ... on 5 December, 2009
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD. F.A.No.962/2006 against C.D.No.879/2004, Dist.Forum-III, Hyderabad Between: M/s. Pooroors Coral Society, Registered under the Societies Act Rep. by its President Sri V.R.Kumar, Having its office at 12-5-5, Vijayapuri, South Lallaguda, Secunderabad-17. Appellant/ Complainant And 1.M/s. Pooroor Estate, Partnership Firm, Represented by its partners office At H-1, Deshmukh colony, Baghamberpet, Hyderabad. 2. Shree K.R.Narayan Pillai, S/o.Late K.G.R.Pillai, Age : about 37, Occ:Business, R/o.C-26/2, Defence Lab Quarters, P.O.Kanchanbagh, Hyderabad 58 3. B.Ramlal, S/o.late Munnulal, Age 39 years, Oc:Business, R/o.3-6-399, Himayathnagar, Hyderabad. Respondents/ Opp.parties Counsel for the appellant : Mr.K.Mohan Counsel for the respondents : M/s.Ajay Kulkarni R2 CORAM: SMT M.SHREESHA, HONBLE MEMBER
AND SRI K.SATYANAND, HONBLE MEMBER.
SATURDAY, THE FIFTH DAY OF DECEMBER, TWO THOUSAND NINE.
Oral Order : (Per Smt. M.Shreesha, Honble Member ) *** Aggrieved by the order in C.D.No.879/2004 on the file of District Forum-III, Hyderabad the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant society had paid the consideration and obtained the sale deed in the year 1999 from opposite parties who entered into development agreement with the land owners of the premises bearing no.12-5-5 , Vijaypuri colony , Secunderabad and sold the flats in the said property to the members of the complainant society. The complainant society submits that opposite parties assured that that he would complete the works at the earliest and subsequently in the year 2001 flat owners formed the association and since then the complainant society has been pursuing with the opposite party to complete the incomplete works which are as follows:
1.
to provide the lift as promised,
2. to erect the gates and compound wall for the building ,
3. to plaster the ceiling of the borrowing area,
4. to provide marble flooring for the stair case,
5. to provide a generator with one light & one fan point and all common lights and list,
6. to provide post boxes,
7. to provide lighting points on the terrace,
8. to complete unfinished ceiling work of the lift room ,
9. to replace the old pump with a new one ,
10. to handover the completion certification issued by the municipality to the members.
The opposite parties have sold their entire share except two flats which were holding in their names . The complainant society got issued a legal notice to the opposite parties on 21.6.2002 . The total cost of the unfinished works is estimated at Rs.6,30,000/-. Hence the complaint seeking direction to the opposite parties to pay Rs.6,30,000/- towards compensation and additional compensation of Rs.25,000/- for mental agony and to award costs.
The second opposite party filed counter stating that they have completed the construction in the year 1999 and possession of the flats was given to the flat owners who have occupied the flats in the year 1999 but did not pay the balance amounts to the opposite parties. Therefore the opposite parties have not taken up the pending works as the flat owners did not make the payments due to them. Though the owner has stated that the entire area is 558 sq. yds. later it is found that it is only 520 sq.yds. and the lift is already erected in the flats with cabin motor and only the work left in the lift is fixing of the buttons. The gates are kept in the stilt portion of the flats but the flat owners did not allow the opp.parties to fix the gates and they are ready to fix two opening gates of 10.6 ft width to the compound wall. But the flat owners are making demand for fixing of gates of 18 ft. length with sliding facility as against the agreement. The compound wall is raised on the three sides of he building upto a height of 5 ft. but on the northern side the adjacent owner has objection to the raising of the common compound wall. According to the neighbour , the compound wall would block his easementary rights with regard to the air and light coming though that side to his portion . In view of the objection of the neighbour height of the common compound wall was not raised upto the the height of 5 ft. The compound wall if seen from the neighbours property is upto a height of 4 ft. and due to the objection raised by the neighbour the compound wall was not raised thought he opposite parties are ready and willing to raise height of the compound wall provided that there is no objection from the neighbour . The plastering work in stilt area is complete except on the portion of the north side which was stopped because the flat owners did not pay the balance amount. The staircase was provided with marble flooring and the marble flooring was laid upto the second floor. Some of the flat owners slipped from the stair case and the flat owners requested the opposite parties to change the marble flooring to anti skid mosaic flooring . Opposite parties incurred additional expenditure in replacing existing flooring Generators and post boxes are not provided because the flat owners did not pay the dues . The light points on the terrace was never agreed in the agreement and the entire lift is ready and there is no unfinished work left regarding the lift. Only the buzzer to the lift has to be fixed which was stopped because of nonpayment of amount due by the flat owners. The opposite parties have provided the new pump at the time of handing over the premises to the flat owners and after five years now they cannot ask to replace the old pump with new one . The opposite parties are ready to complete the unfinished works provided the flat owners pay the amounts due to the opposite parties as agreed by them in the meeting dt.31.3.2001 and the same was also reduced in writing. The flat owners are due an amount of Rs.2,40,000/- to the opposite parties as agreed by them in the document dt.31.3.2001 in the meeting held between the flat owners and the opposite parties . The opposite parties are entitled to compensation of Rs.1 lakhs from the complainant . The owners of the site agreed for construction of two pent houses at the time of Development Agreement, but later he did not permit the opposite parties to construct the pent houses but agreed to transfer the two rooms with W.C. and toilet in the name of the opposite parties. Though the possession is delivered to the opposite parties, the owner has deliberately not come forward to execute the sale deed in favour of the opposite parties. With these contentions opposite party no.2 sought for dismissal of the complaint.
Opposite parties 1 and 3 filed memo adopting the counter of opposite party no.2.
The District Forum based on the evidence adduced i.e. Exs.A1 to A4 and Ex.B1 and Court Commissioners report dismissed the complaint.
Aggrieved by the said order the complainant preferred this appeal.
The learned counsel for the appellant/complainant submitted that the documents namely the amounts paid to HMWSB and the amounts received by the opposite parties which are mentioned in the letter dt.31.3.2001 would clearly establish that the members of the society do not owe any amounts to the opposite parties. He further contended that the members of the appellant society are due certain amounts to the opposite parties which could have been negatived if the document dt.25.2.2005 had been considered and submits that there are no dues at all on behalf of the complainant to the opposite parties .
The appellant along with his appeal filed Collection receipt dt. 20.4.2001 issued by HMWSSB stating that an amount of Rs.2,10,662/- towards water connection and Sewerage connection and the balance amunt to be paid is nil and also filed statement of account of Johnson Lifts dt. 25.2.2005 in which final payment of Rs.89,331/- was requested to be released and that they have already received Rs.2,96,000/- . The learned counsel for the appellant/complainant filed statement of expenses given by the opposite party for Rs.30,027/- in which the opposite parties have referred that the amount due is Rs.84,000/- and expenses incurred is Rs.30,027/- which is dt. 9.4.2001 and signed by the opposite parties It is the case of the complainant that the opposite parties though theyhave given possession in the year 1999 theyhave not completed the following works:
1.
to provide the lift as promised,
2. to erect the gates and compound wall for the building ,
3. to plaster the ceiling of the borrowing area,
4. to provide marble flooring for the stair case,
5. to provide a generator with one light & one fan point and all common lights and list,
6. to provide post boxes,
7. to provide lighting points on the terrace,
8. to complete unfinished ceiling work of the lift room ,
9. to replace the old pump with a new one ,
10.to handover the completion certification issued by the municipality to the members.
It is the case of the opposite parties that the complainants are due certain amounts and that the lift is already erected and the gates are kept in the stilt portion and he is ready and willing to install the lift and gates provided the complainant pays the dues. It is the further case of the respondents/opp.parties that the neighbours property is 5 ft. below the property of the owners, if the compound wall is seen from the neighbours property it is to the height of 4 ft and he has no objection to raise the height of the compound wall if they have obtained no objection certificate from the neighbour, the plastering work in the stilt area is complete expect for some portion and the staircase is provided with marble flooring which is laid upto the second floor , on the flat owners request to change the marble flooring to antiskid mosaic flooring opposite parties removed the marble flooring and changed into anti skid mosaic flooring and incurred additional expenditure . The generator and post boxes are not provided because flat owners deliberately did not pay the payment due to the opposite parties. It is the further case of the opposite parties that at the time of handing over the premises to the flat owners they provided new pump and now after five years the flats owners cannot ask for replacement of the old pump with a new one.
Now we shall address ourselves to the report given by the Court Commissioner which reads as follows:
A. PROVIDE THE LIFT AS PROMISED: Lift is fixed by opposite party but it is not in a working condition and connection is not given to the lift. Lift by Johnson company on terrace there is a lift room. The Commissioner observes that there is un used motor is fixed for the lift. The lift buttons also not fixed. Lift cabin was also not fixed. Lift cabin was held on the 4th floor of the apartment.
B. TO ERECT THE GATES AND COMPOUND WALL FOR THE BUILDING: The main entrance is situated on the eastern side of the apartment. Semi finished wall construction for entrance is there but gates were not fixed. The Commissioner has taken the measurements of the entrance of the apartment and opined that proposed entrance gates are three two big gates and one small gate.
C. COMPOUND WALL FOR THE BUILDNG: The Commissioner observes that there is no proper compound wall constructed by opposite party. He has taken the measurement of the four sides of the building.
D. TRANSFORMER: On the western side of the transformer is fixed at 19 inches was fixed from the earth and he observe that the earthing wire was opened.
E. TO PLASTER THE CEILING : The Commissioner observed that the half of the ceiling of the building was plastered and remaining half of the building was not plastered.
F. TO PROVIDE MARBLE FLOORING FOR THE STAIR CASE: The Commissioner observed that from 4th floor to terrace some part of the anti skid tiles are not there only cement finishing is there. Mosaic flooring is there at common areas of the flats.
G. TO PROVIDE A GENERATOR WITH ONE LIGHT AND ONE FAN POINT AND ALL COMMON LIGHTS AND LIFTS: The Commissioner observed that there is another room for generator but there is no ventilation and there are nearly 40 cement bags lying in that room which was locked by the owners association and the room proposed for the Generator in north western side is occupied by the watch man.
H. TO PROVIDE POST BOXES: The commissioner observed that there is no post box fixed at the premises.
I. TO PROVIDE LIGHTING POINTS ON THE TERRACE: The Commissioner observed that there are some electric points on the terrace.
J. TO COMPLETE UNFINISHED CEILING WORK OF THE LIFT ROOM: The Commissioner observed that lift motor room is there on the terrace but plastering work was not done on ceiling of the lift room.
K. TO REPLACE THE OLD PUMP WITH NEW PUMP : The Commissioner observes that one borewell motor is fixed with pump connection which goes to sump and it is in working condition and it looks very old one and two other motors also fixed near by one is for bore water to sump and other one is for tap water.
L. TO HAND OVER THE COMPLETION CERTIFICATE ISSUED BY THE MUNICIPALITY TO THE MEMBERS: The Commissioner observes that according to the flat owners the completion certificates were not issued by builder.
To this Commissioners report the opposite parties filed objections that the entire lift is already fixed with cabin and motor and connections on each floor and only the switch buttons are to be fixed. They deny that the compound wall is in semi finished condition and contend that the plastering to the ceiling is almost 70% complete and object to the Commissioners observations that only half of the ceiling work is done.
The main contention of the opposite parties is that they cannot complete the incomplete works as there are dues from the complainant upto Rs.2,40,000/- and that a meeting was held on 31.3.2001 and the opposite parties contend in their counter that the flat owners signed against their respective due amounts in that meeting but did not pay those amounts. Thereafter on 18.6.2002 the flat owners got issued a legal notice asking the opposite parties to complete the construction work without making any payments. We observe from the record that the opposite parties did not issue any notice to the complainants to pay the amounts due while admitting that there are some incomplete works and they are ready and willing to do it, provided the complainant pay the amounts due . In the legal notice dt.18.6.2002 the complainant contended that they collected the balance amounts and that there is nothing due from any member to the opposite parties. The complainant also filed a letter dt.25.2.2005 issued by the State Bank of India to whom so ever it concerned that amount of Rs.2,10,0662/- is remitted to HMWSSB by way of bank challan no.580751 on 19.4.2001. This amount and date corresponds to the order of HMWSSB dt.20.4.2001 and signed by the Deputy General Manger of the said Board. The statement of account of Johnson Lifts Pvt. Ltd. Dt.25.2.2005 shows that an amount of Rs.2,96,000/- was received by them and there is still balance of Rs.89,331/- . We observe that the opposite parties have not replied to the legal notice or filed any statement of account subsequent to the complainants contention that the amounts dt.31.3.2001 have been paid and there is no notice thereafter issued by the opposite parties and no statement of account filed and there is nothing on record to establish that the complainants are due any amounts.
Since it is the contention of the opposite parties that there are amounts still due, the burden of proof shifts to the opposite parties because it is not their case that no works as alleged remained complete but some amounts were due to him and this only detained him from completing the works. If such is the case, it is incumbent upon the builder to prove that such an amount was due to him by tendering evidence which he failed to do except for letter dt. 31.3.2001, subsequent to which the complainant paid amounts as evidenced under the HMWSSB letter and also stated so in their legal notice which was uncontroverted by the opposite parties. On the other hand, he merely relied upon his own pleadings and self serving testimony borne out without any evidence contemporaneous to the dispute. To reiterate , the opposite parties did not reply to the legal notice and relying on the statement of account dt.31.3.2001 to insist upon the dues.
But, though the complainant issued a subsequent notice controverting such dues the opposite parties did not prefer to issue any reply. If really the dues set out in the statement dt.31.3.2001 remained unsatisfied, it is but natural to think that the opposite parties would have taken steps to recover these amounts but the perusal of the record shows that no such steps were taken by the opposite parties to recover these dues before they became time barred.
We rely on the Commissioners report with respect to the works which have been left incomplete and direct the opposite parties to complete the following works :
1.
to see that the lift is in working condition upto all the floors of the apartment
2. to erect the gates and compound wall for the building.
3. to complete the plastering in the north side half portion.
4. to provide marble flooring in the staircase.
5. to provide the generator .
6. to complete the unfinished ceiling work of the lift room,
7. to handover the completion certificates issued by the municipality to its members.
8. to complete the electricity wiring on the terrace.
With respect to the prayer regarding pump sets the Commissioner has observed that there is already a pump set installed and now it is not justified to ask for a new pump set merely because the pump set already provided look like an old one, the Commissioner observed that this pump set was in working condition. The complainants are directed to put up their own post boxes. Hence we are of the considered view that the opposite parties should complete the pending works 1 to 8 listed above within a period of 8 weeks .
In the result this appeal is allowed directing the opposite parties to complete the pending works of Sl.nos. 1 to 8 as listed above within a period of 8 weeks from the date of receipt of this order together with compensation of Rs.25,000/- to be paid to the complainant society and costs of Rs.5000/- .
Sd./MEMBER Sd./MEMBER Dt.
5.12.2009 Pm*