State Consumer Disputes Redressal Commission
M/S Amsri Central Court Owners And ... vs M/S Amsri Builders Secunderabad -3 And ... on 6 December, 2013
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD C.C.NO.141 OF 2012 Between M/s Amsri Central Court Owners and Residents Welfare Association, Amsri Central Court, No.10-3-163/1 (Old No.16/A), Old Lancer Lines, Secunderabad, rep. by its President, Mr.N.G.R.Naidu S/o.late Narsimha Rao, aged 63 years and Secretary Mr.Madhusudhan Jhunjihunwala S/o.Gourisankara Jhunjhunwala, Aged 45 years. Complainant A N D 1. M/s AMSRI Builders 9-1-164, 5th floor, Amsri Plaza, S.D.Road, Secunderabad-500 003 Rep. by its Partners, Patnam Amruth Prasad Goud @ Patnam Amruth Prasad and U.Srinivas. 2. Patnam Amruth Prasad Goud @Patnam Amruth Prasad S/o.Patnam Satyanarayana Goud Aged 45 years, Partner M/s AMSRI Builders, 9-1-164, 5th floor, Amsri Plaza S.D.Road, Secunderabad-500 003. 3. U.Srinivas S/o.U.N.Murthy Aged 45 years, Partner M/s AMSRI Builders 9-1-164, 5th floor, Amsri Plaza S.D.Road, Secunderabad-500 003. Opposite parties Counsel for the Complainant M/s K.Srinivasa Rao Counsel for the Opposite parties M/s Jayanthi S.C.Sekhar QUORUM: SRI R.LAKSHMINARSIMHA RAO, Honble I/C PRESIDENT AND SRI S.BHUJANGA RAO, HONBLE MEMBER
FRIDAY, THE SIXTH DAY OF DECEMBER, TWO THOUSAND THIRTEEN Order ( As per R.Lakshminarsimha Rao, Honble I/c.President) *** The complaint is filed by the Flat Owners and residents welfare association claiming following reliefs against the opposite parties:
a) to install 3rd lift at Block A(Gardenee)
b) to install a fire fighting system and equipment
c) to install intercom facility to all flats connecting with each other flat as well as security gate
d) or in the alternative to pay Rs.22,54,250/- towards lift, Rs.8,53,650/- towards fire fighting System and Equipment and Rs.4,29,185/- towards intercom facility with 24% interest per annum.
e) For compensation of Rs.5,00,000/- for the mental agony that was suffered by the members of the complainant due to failure on the part of the opposite parties in providing the aforesaid amenities.
f) Secure permission/rectification from South Central Railways for laying of cables, drainage lines etc. in order to comply the demand of the South Central Railways raised in their legal notice dated 26-11-2011 or alternatively award Rs.50,000/- costs payable to Railway Authorities for securing necessary permissions as demanded by Railways in their notice dated 26-11-2011.
g) Removal of shutters closed with brick wall on three sides constructed at vehicle parking at ground level of the building i.e. below the 1st floor
h) For costs of the complaint Rs.30,000/-
i) And pass such other or further relief or reliefs as are deemed fit and proper in the circumstances of the case.
The averments of the complaint in brief are that the opposite party no.1 is the promoter of the Amsri Central Court Apartments at 3-163/1, Old Lancer Lane, Secunderabad which is a residential complex consisting of 153 Flats spread in 3 Blocks consisting of 9 Floors and each Block is named as Grandee, Noble and Knight. The complainant submitted that the opposite parties adopted marketing strategy and offered to sell the Flats highlighting certain features and amenities and being satisfied with them, the members of the complainant-association purchased individual Flats by entering into Agreement of Sale followed by the sale deeds.
The complainant submitted that the opposite parties had not delivered possession of the Flats to its members within the time agreed therefor and its members having no other option occupied their respective Flats between 2006 and 2007 though opposite party has not fulfilled the obligation which was promised through the Brochure i.e. Occupancy certificate from competent authority, provision of intercom, gym/heath club, firefighting equipment and 3rd lift in Block Grandee and also non allotment of specific car parkings to the purchasers. The complainant submitted that after repeated requests, the opposite parties handed over the gym/health club to the complainantassociation in April, 2011 and allotted car parking in February, 2011 and by letter dated 09-2-2011 promised to fulfill its other obligations in phased manner.
The opposite parties promised to provide the common amenities i.e. intercom to each of the Flats, Fire Fighting Equipment and also one lift out of 3 lifts in Block, Grandee and they promised to clear occupation of car parking space. The complainant submitted that the opposite parties had put for sale the car parking space and converted passage into car parking space in violation of the terms of the sanctioned plan and they converted the area meant for car parking area as commercial complex.
The complainant association was formed and was registered on 12.09.2008 as a Welfare Association for protecting the collective interest of its members. The complainant association addressed letters dated 3.01.2008, 20.10.2008 and 20.12.2010 ,20.09.2011 and recorded minutes of meeting dated 21.10.2008 listing out the pending work and rectification required therefor such as a) title deeds of the land with link documents, soil testing certificate signed by the Testing authority, original approved building plan, Permissions, receipts and laying charges for water and sewerage lines, electrical transformers ownership and guarantee documents, provision and final approval certificate from the department of Fire Service, Plan of internal wiring of electricity cables and telephones, plan to identify the earthing and lighting arresters for electric shock lightning thunders, plan of internal underground and concealed pipes for electricity, water and drainage, details of water harvesting pits, details of agreements and approvals from the Department of Railways, installation of intercom from the Security room to each individual flat, installation of fire fighting system and equipment and Installation of 3rd Lift at Block A (Grandee).
The complainant submitted that South Central Railways, Secunderabad got issued notice dated 26.11.2011 advising the opposite parties for taking steps for regularization of unauthorized usage of its property for laying underground cable, sewage and pipelines of the Amsri Residential Complex. The opposite parties failed to take steps and they had not provided the amenities. Hence, the complaint.
The opposite parties resisted the claim by filing written version and contended that they have not adopted a marketing strategy and the project AMSRI CENTRAL COURT is the dream of opposite parties and they have taken it as prestigious project and built it with highest quality and sold the flats at a very good low cost and the promises made by them are fulfilled and almost all the owners and tenants of the flats are living happily in their respective flats. The opposite parties submit that the complainant association is formed and got registered by few members and have been focusing that it is a Welfare Association for all. The opposite parties submit that as per document No.4 filed by the complainant the brochure is only a conceptual presentation of the project and not legal offering and that the promoters reserved the right to alter and make changes in elevation, specifications and plans as deemed fit and that the central area housing club facilities belongs to promoters and the same is made clear in the brochure evidenced at page 77 of the brochure.
The opposite parties submit that they handed over the flats to the purchasers even though some of the flat owners have not paid the dues to them and the flat owners are only entitled to enjoy their respective flats with absolute rights and enjoy the common areas along with others as mentioned in the sale deed and that they have not deviated from any other promised obligation. The opposite parties submit that AMSRI CENTRAL COURT is a residential complex as well as commercial complex as per approved plan and the copies of the same were supplied to the prospective purchasers along with the documents and after satisfying themselves and after obtaining legal opinion, they have purchased flats and in any big project the facilities like club, Gym will continue to be owned by the promoter and the residents are entitled to use the facilities on payment of cost.
The opposite parties submit that they have maintained very good and cordial relationship with most of the flat owners except who are quarrelsome and after completion of the entire project, the residents used to park their vehicles where ever they like as the more parking slots are available then the total flats and as per the promise made by opposite parties, they promised to give 80 sq. ft. for parking area but gave minimum of 120 sq. ft. to 150 sq. ft. for respective owners of flats, though no specific slots were allotted to individual flat owners after their occupation into flats due to nonpayment of dues and also allowed the residents to park their vehicles inside the complex and some of the residents have been using extra parking area slots for keeping their second/third cars. The opposite parties submit that a wide way is provided by them for free movement of persons and vehicles and no passage area has been converted into car parking and that they have provided one in-gate and one out-gate and in between these two gates there is a commercial space constructed as per the approved plan and there is separate parking for the above said commercial complex.
The opposite parties submit that they never promised to install a third lift at Block Grandee and only a provision is created for that purpose which does not mean that they have to provide third lift and even as per the brochure filed by the complainant, each block would be provided with two lifts . The opposite parties submit that they have provided intercom facility, phone and broad band with one connection of Reliance Info-com though not promised and also provided Hydrant Fire fighting system of M/s Fire cool Engineers, Hyderabad. The opposite parties submit that they have obtained necessary permissions from Hyderabad Metropolitan Water supply and Sewerage Board for laying underground cables, drainage lines etc. and also paid amounts to Railway Department for the above purpose.
The opposite parties submit that that Mr.N.G.R.Naidu claiming to be the President of the complainant association is not owner of any flat and also highhandedly painted the name of the Association as ACCORWA on the shutters of the shops of commercial area though shops belong to them and have been collecting monthly rents from the residents of the complex who are parking their extra cars in the parking slots and further submitted that they applied for Building Regularization scheme for some deviations and it is under consideration of Municipal Corporation of Hyderabad. The opposite parties submit that the complaint is barred by law of limitation and not maintainable under law and denied the other allegations made in the complaint and prayed for dismissal of the complaint with costs.
On behalf of the complainant- association, its President, Mr.N.G.R.Naidu filed his affidavit and the documents, ExA1 to A22. On behalf of the opposite parties, its Managing Partner filed his affidavit and the documents, Ex.B1 to B27.
The learned counsels for the complainant and the opposite parties have filed written arguments.
The points for consideration are:
i) Whether the complaint is filed within the period of limitation?
ii) Whether the complaint filed by the Sri NGR Naidu can file the complaint representing the complainant association?
iii) To what relief?
j) POINT NO.1; The complainant-association was formed and registered under Societies Registration Act,2001 on 12.09.2008 for the purpose of protection of the collective interest of its members. The reliefs claimed by the complainant-association are, a )to install 3rd lift at Block A (Grandee),
b) to install a fire fighting system and equipment
c) to install intercom facility to all flats connecting with each other flat as well as security gate
d) or in the alternative to pay Rs.22,54,250/- towards lift, Rs.8,53,650/- towards fire fighting System and Equipment and Rs.4,29,185/- towards intercom facility with 24% interest per annum.
e) For compensation of Rs.5,00,000/- for the mental agony that was suffered by the members of the complainant due to failure on the part of the opposite parties in providing the aforesaid amenities.
f) Secure permission/rectification from South Central Railways for laying of cables, drainage lines etc. in order to comply the demand of the South Central Railways raised in their legal notice dated 26-11-2011 or alternatively award Rs.50,000/- costs payable to Railway Authorities for securing necessary permissions as demanded by Railways in their notice dated 26-11-2011.
g) Removal of shutters closed with brick wall on three sides constructed at vehicle parking at ground level of the building i.e. below the 1st floor.
The complainant-association issued notice on 20.10.2008 which does not contain any mention of demand for 3rd elevator, intercom facility and firefighting equipment. The demand for intercom facility and firefighting equipment is for the first time was made in the notice dated 21.10.2008.
The cause of action for the complainant-association to claim the three reliefs for 3rd elevator, intercom facility and firefighting equipment arose on the date of its formation, i.e., 12.09.2008. Even if it assumed that the cause of action accrued to the complainant on the date of issuing the notice, i.e., 21.10.2008, the complaint ought to have been filed within two years therefrom, i.e, 21.10.2010. The complaint is filed on 12-12-2012.
As regards the relief for securing permission or rectification from South Central Railways for laying of cables, drainage lines, etc, is concerned, the matter in W.P.No. 20901 of 2012 is pending before the Honble High Court and thus sub-judice, as such the relief cannot be claimed until the rights of the parties are determined by the Court.
In so far as the relief regarding the removal of shutters and the brick wall is concerned, we may state that the complaint on this count is also not filed within the period of two years either from the date of formation of the complainant-association or from the date of construction of the brick wall and the shutters. As such the complaint is held as barred by law of limitation.
Section 24-A of the Consumer Protection Act, 1986 provides for two years period from the date of accrual of cause of action for filing complaint before Consumer Forum. The provision of Section 24-A of the C.P.Act, 1986 reads as under:
[24-A LIMITATION PERIOD] (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.(2)
Notwithstanding anything contained in Sub section (1), a complaint may be entertained after the period specified in sub section (1) (1), if the complainant satisfies the District Forum, the State Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless the National Commission or the District Forum as the case may be, records its reasons for condoning such delay.
The learned counsel for the opposite parties in support of his contention that the complaint is not filed within two years prescribed by Section 24-A of the Consumer Protection Act, has placed reliance on the following decisions:
i) State Bank of India vs B.S.Agriculture Industries (I) (2209)5SCC 121.
ii) Kerala Agro machineryCorporation Ltd vsBijoyKumar Roy and In SBIs case(supra), the claimant addressed letter dated 07.06.1994 requesting the Bank to return the documents in case they are not honoured by the drawee and subsequently the claimant made correspondence in the form of various letters and claimed the complaint to have been filed within the two years from the date of the last letter. The Supreme Court held that the limitation for filing complaint began to run from the date of first letter demanding for the amount of Rs.2,47,154/-
and for other reliefs.
The Supreme Court laid down the principle that the duty is cast upon Consumer Forum to consider whether the complaint is filed within the period of limitation. The Apex Court held;
As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. It is the duty of the consumer forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and therefore the aggrieved party would be entitled to have such order set aside In Kerala Agro machinery Corporation(supra), the claim was held not filed within the period of limitation in a case where the defect in respect of one item, i.e., spare part of the vehicle was rectified by replacing the item on 13.07.1989 and as such the claim in respect of other items after a period of four years was held not maintainable. The Apex Court held:
The claim seems to have been lodged by the complainant with the dealer on 20-2-1989. Learned counsel for the appellant has taken us tough the correspondence between the parties to indicate that defect in respect of only one item at S.No. V was admitted, which was replaced as per dispatch postal receipt dated 13-7-1989. This fact is also indicated in the letter of the appellant dated 09-7-1993. It was also said in the letter that the claimant was raising very old claims, which had become about 4 years old. We do not think it necessary to go into further details of the matter. As it is clear that the claim was lodged with the appellant in February, 1989 in pursuance whereof one admitted defective part had been replaced as indicated earlier and other complaints are said to have been not accepted or appropriately attended to The ratio laid in the aforementioned decisions of the Honble Supreme Court is squarely applicable to the facts of the present case as in this case also the respondents had not filed any petition to condone the delay. The point is answered against the complainant.
POINT NO 2.&3: In the light of the finding under point no.1 that the complaint is not filed within the period of limitation, the discussion under this point is no more required.
POINT NO.4:
In the result, the complaint is dismissed. The parties shall bear their own costs.
Sd/-INCHARGE PRESIDENT.
Sd/- MEMBER.
JM Dt.06-12-2013.
//APPENDIX OF EVIDENCE// Witnesses examined for For the complainant: For the Opp.party Affidavit evidence of the Affidavit evidence of 1st President & Secy. of complainant OP filed.
filed Exhibits marked for the complainant:
Ex.A1-Certificate of registration of complainants Association and its byelaws Dated 12-9-2008.
Ex.A2-Sale deed bearing No.2065/2007 in the name of Sri Dinesh Chandra dated 18-7-2008.
Ex.A3-Brochure issued by opposite party.
Ex.A4-Letter to opposite party dated 03-12-2008.
Ex.A5- Letter to opposite party dated20-10-2008 Ex.A6-Letter to opposite party dated 19-9-2008 Ex.A7- Letter to opposite party dated 21-10-2008 Ex.A8-Minutes of meeting dated 30-1-2011.
Ex.A9-Car parking allotment dated 17-2-2011.
Ex.A10-Legal notice issued by S.C.Railway dated 26-11-2011.
Ex.A11-Legal notice issued by complainant to OP dated 31-1-2012 Ex.A12-Legal notice issued by complainant to OP dated 16-7-2012 Ex.A13 Postal receipt Ex.A14-Postal receipt.
Ex.A5-Acknowledgement Ex.A16-Acknolwedgement Ex.A17-Estimation/Quotation for installation of lift Block-A (Gardenee) Ex.A18- Estimation/Quotation for installation of intercom.
Ex.A19-Receipt in proof of part payment for fire fighting equipment Ex.A20- Estimation/Quotation for installation of firefighting.
Ex.A21-Receipt issued by Ace Telecom.
Ex.A22-Receipt issued by Ace telecom.
Exhibits marked for the opposite parties:
Ex.B1-Copy of the Regd.Sale deed dated 17-1-2007 executed in favour of Ms.Nikitha Naidu for flat No.804, 8th floor, The Grandee.
Ex.B2-Copy of the Regd.Sale deed dated 17-1-2007 executed in favour of Mr.Thota Hari Krishna for flat No.501, 5th floor, The Grandee.
Ex.B3-Copy of letter dated 14-8-2007 given by Sri K.Venugopal Rao, Dated 14-8-2007, owner of flat No.604, C Block.
Ex.B4-Copy of approved plan dated 15-3-2004.
Ex.B5-Copy of agreement dated 04-4-2007 with M/s Reliance Communications Dated 4-4-2007.
Ex.B6-Copy of bill dated 27-6-2007 given by Reliance Broad Band.
Ex.B7-Schematic Diagram of Firefighting system dated 28-9-2007.
Ex.B8-Work order issued to M/s.Fire Cool Engineers.
Ex.B9-Request letter sent by M/s.Fire cool Engineers for releasing advance Payment dated 30-8-2006.
Ex.B10-Invoice issued by M/s Kissan Engineering works, Hyderabad for supply of material for firefighting system dated 30-3-2007.
Ex.B11-Request letter from M/s Fire Cool engineers dated 22-6-2007.
Ex.B12-Progress report letter sent by M/s Fire Cool engineers dated 22-5- 2007.
Ex.B13-Running account bill for Fire Alarm system issued by M/s Fire Cool engineers dated 03-10-2007.
Ex.B14-Abstract of cost for fire alarm and firefighting works issued by M/s Fire Cool Engineers.
Ex.B15-Certificate issued by Corporation Bank SP Road branch Secunderabad evidencing paying amount to M/s Fire Cool engineers with cheque Nos., amounts and dates dated 26-6-2013 .
Ex.B16-Certificate issued by Corporation Bank SP Road branchSecunderabad Evidencing paying amount to M/s Kissan Engineering works with cheque Nos., amounts and dates.
Ex.B17-CD showing fire fighting system installed at M/s Amsri Central Court.
Ex.B18-Requisition letter to the General Manager, Engineering, Single Window Cell, Hyderabad for laying water pipe line dated 21-6-2006.
Ex.B19-Payment receipt No.383529 issued by General Manager, HMWSSB for Water connection dated 06-7-2006.
Ex.B20-Another payment receipt issued by G.M.HMWSSB dated 06-7-2006 Ex.B21-Letter to GM. Engineering, Single Window Cell, Hyderabad for issuing sanction order dated 06-7-2006.
Ex.B22-Intimation for sanction issued by GM HMWSSB dated 23-7-2007.
Ex.B23-Letter sent to Div.Railway Manager dated 15-9-2008.
Ex.B24-Letter sent by Div.Railway Manager requesting for application for regularization of cables laid dated 25-9-2008.
Ex.B25-Copy of reply notice sent to complainant association dated 05-3-2008.
Ex.B26-copy of property tax receipt dated 29-12-2012.
Ex.B27-Affidavits of some owners of the flats dated 27-6-2013.
Sd/-INCHARGE PRESIDENT.
Sd/-MEMBER.
JM Dt.06-12-2013.