State Consumer Disputes Redressal Commission
Smt. Kamarajugadda Vasavadatta Ramama vs 1. M/S. Maha Laxmi Builders, on 24 July, 2024
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION: HYDERABAD.
CC.NO. 126 OF 2017
Between:
1) Smt Kamarajugadda Vasavadatta Ramana
W/o Sri K.Ramana, aged about 50 years,
Occ: Service, R/o. MIG 471,
Sri Sai Venkata Ramana Nilayam,
Road No 3, KPHB Colony
Hyderabad -500072.
....... Complainant
And
1.M/s. Maha Laxmi Builders, Rep. by its proprietor V.Srinivas Rao, S/o. V.Anjaneyulu, aged about 43 years, Occ: Business, R/o. H.No.2-62/5, Sai Nagar, Madhapur, Hyderabad.
2. Sri V. Srinivas Rao S/o V.Anjaneyulu, Aged about 43 years Occ:Business, R/o 2-62/5, Sai Nagar, Madhapur, Hyderabad.
... Opposite parties Counsel for the Complainant : M/s.V.GourishankaraRao Counsel for the Opposite Parties1 &2 : M/s.T.Madhukar QUORUM: Hon'ble SriK.Ranga Rao, Member-(J), & Hon'ble Smt. R.S. Rajeshree, Member (N-J).
WEDNESDAY, THE TWENTY FOURTH OF JULY, TWO THOUSAND TWENTY FOUR.
Order : (Per Hon'ble Sri K.RangaRao, Member -Judicial) ******
1). This complaint is filed by the Complainant by name Smt. KV Ramana u/s. 17(1)(a)(i) of Consumer Protection Act,1986 for grant of following reliefs. i.e. to direct opposite parties 1 and 2:
(a )To pay a sum of Rs. 2,10,000/- to the complainant towards rental charges as agreed by the opposite parties 1 and 2, along with interest (as per clause No.8, page No.4 of Deed of Development Agreement dt.02.05.2014);
(b) To Pay a sum of Rs.50,608/- towards electrical expenses along with the interest;2
(c) To pay a sum of Rs.2,30,300/- towards water expenses borne by the complainant along with the interest due to non provision of ¾ water connection as agreed.
(d) To pay the good will amount of Rs.5 lakhs as orally agreed by the opposite parties, if the construction not finished in time and as the complainant faced much hardship, agony, pain, inconvenience, both mentally and monetarily on account of non provision of the amenities;
(e) To award costs totalling to Rs.14,13,000/- towards deficiency in service by the opposite parties;
(f) To award costs totalling Rs.50,000/- towards expenditure invested by the complainant towards sum of the left out works in flat No.101 by the opposite parties;
(g) To award compensation of Rs.8 lakhs for the mental agony and loss suffered by the complainant due to the opposite parties.
(h) To grant legal expenses and other incidental charges of Rs.60,000/- to the complainant;
(i) and to grant other reliefs and pass necessary orders as deemed fit and proper in the circumstances of the case in the interest of justice.
The facts of the complaint are as follows:
2). The complainant is one of the owners and possessors of House bearing No.471/MIG-I (M.C.K.H.No.24-471)admeasuring 311.11 square yards or 260.12 square meters. Situated at A.P. Housing Board Colony, Kukatpally village under GHMC Kukatpally Circle, Ranga Reddy District having purchased the same through the registered sale deed dt.23.05.2013 The complainant further submits that opposite party No.2 as sole proprietor of Opposite party No.1 firm, claiming to be having expertise in construction activity and builder by profession approached the complainant and claiming to have possessed with the requisite skill and expertise in developing the property, with an offer to develop the landed property mentioned above, for construction of the apartments will his own funds and share built-
up areas in equal ratio i.e. 50-50 and complainant is entitled for only one flat No.101.
3). Opposite party No.2 as a sole proprietor of opposite party No.1 also induced the complainant by showing his various other developmental works due to which the complainant agreed to 3 entrust the development activity to opposite parties. On 02.05.2014 the opposite parties entered into a deed of developmental agreement with the complainant on some terms and conditions. As per the terms of deed of development agreement both the complainant and opposite party no.1 are entitled for equal share in the built up area in the apartment to be constructed by the opposite parties in the name and style of "Sri Sai Venkata Ramana Nilayam" and registered the "Deed of Development Agreement -Cum- General Power Attorney" on 02.05.2014, of which the complainant is entitled to only one flat No.101.
The complainant further submits that the Executants estimate of the land and building for construction of the flats was Rs.94,69,500/- Out of the constructed flats complainant is entitled to only one flat.No.101 and her share of total building is equal to Rs.15,78,250/- The complainant filed the present complaint as a owner for non fulfilment of promised works as agreed by the opposite parties in the Deed of Development agreement and also for left out works in flat No.101 which belongs to her.
4). As per clause NO.8 of The Deed of Development agreement, opposite parties undertook to complete the construction of the apartments within the period of 12 months from the date of obtaining Municipal Sanction Plan with a grace period of 3 months. The complainant handed over the possession of property to the opposite parties on 02.05.2014, the date of execution of The Deed of Development agreement.
The complainant further submits that the opposite parties have also orally agreed to give a Good Will amount of Rs.5 lakhs to her if the construction is not completed and possession is not handed over to the complainant by the opposite parties within the time. There are several other clauses provided by the opposite parties in the said agreement, which forms part and parcel of this complaint and which are mentioned in the register notice dt.04.05.2017 send by the complainant to the opposite parties, which notice was unclaimed and got returned back by the opposite parties.
45). The complainant further submits that in case of delay in delivery of possession, opposite patties have agreed to pay an amount of Rs.30,000/- per month till the construction is completed in all respects and possession of the flat is handed over to the complainant. Time was essence of contract but opposite parties failed to complete the construction of flat in all respects and delivering the possession of the flat. However, upon repeated requests and demands, 0pposite parties have delivered the flat in incomplete state in the month of may 2016 by promising to complete and provide the amenities after occupation of the premises by the complainant. With a fond hope that opposite patties stick to their promises and assurances, the complainant has occupied premises. The electricity connection was temporary and even the work turned out by the opposite parties was not as per the specifications agreed in the agreement.
The complainant further submits that after occupying the premises, nothing had changed and opposite parties failed to attend to any of the works which were kept pending except assuring to attend the same and went on postponing the pending works. The complainant being a women of 50 years old underwent mental trauma and financial loss as the opposite parties cheated her.
6). The complainant also submits that opposite parties failed to obtain occupancy certificate and release mortgage deed.The very non furnishing of occupancy certificate could establish the latches on the part of opposite parties that the apartment construction is not completed in all aspects. Opposite parties failed to obtain separate electricity meters which caused heavy burden and complied the complainant to pay Rs.50,608 towards electricity consumption charges on running on single Electrical Meter for many months and have obtained separate electricity connections on individual names with great difficulty as opposite parties delayed to obtain electricity meters and panel and even protection grill was not covered and opposite parties have to reimburse all these charges.
57). The complainant further submits that as per specification point NO.11 "Electrical", opposite parties failed to provide transformer to the apartment resulting in frequent Electrical Disturbances and high voltage fluctuations resulting in huge loss of house hold electrical equipments .
As per agreed specification point No.12, "Cable TV"
the complainant submits that opposite parties failed to provide cable TV provision in Bed Rooms and in leaving rooms.(Proof of Evidence Document No 77) As per agreed Specification point No 13, "Internet" Complainant submits that opposite parties failed to provide two Internet Provisions in the flat. (Proof of Evidence Document No79) As per agreed Specification point No.7 and 8, "Painting"
Complainant submits that opposite parties failed to paint at some parts of the Apartment and left out few parts of Flat No.101 like Balcony etc. (Proof of Evidence Document No 81-82) As per agreed specification point No.18, Complainant submits that opposite parties failed to provide Backup Generator with stand by DG set backup with acoustic enclosure and AMF in spite of so many reminders. (Proof of Evidence Document No 83) As per specification point No.19, " WATER SUPPLY"
Complainant submits that opposite parties failed to provide new water ¾ connection and provide new water meters and complainant further suffered with frequent HMWW&S Board officials physical of inspection and warnings of usage of old water connection of ½ inch of 25 years old which is not permissible and offense for an Apartment, by which penalty is levied and paid by the Complainant. (Proof of Evidence Document No 37) As per specification point no 19, the bore-well provided by the Opposite Parties worked only for three months after Occupation and became defunct and Complainant have been experiencing with acute shortage of water. On account of no water, Complainant was compelled to buy the same deploying through private tankers daily 6 which is continued even as on date and the expenditure from August 2016 to June 2017 for 11 months is as follows.
Water Procurement Rs 35,200/- Government Tankers 11 months*Rs400 *8 days Water procurement Rs 1,93,600/- Private 11 months * Rs800*22 days Penalty of water meter 1500 Total Rs 2,30,300/-
Electric wiring, water and drainage connection map drawings are not handed over by the Opposite Parties to the Complainant, in spite of so many reminders which is affecting repair works.
Complainant submits that opposite parties failed to provide many amenities and left out many in completed works both externally and internally which are agreed in the Clauses provided in the said Agreement, which forms part and parcel of this Complaint and Registered Notice sent on 4.5.2017 and Opposite Parties are liable to pay Rs 2,10,000/- rental charges as agreed vide page no 4 and clause no 8 of the Agreement.
The Complainant approached several times and demanded for completion of incomplete works but opposite parties denied for completion showing some or the other lay excuses and as such Complainant is forced to invest amount of Rs50,000/- to complete few works in exigency in Flat No 101 to overcome daily needs as specified in the notice dated 04.05.2017. (Notice dt 4.5.2017 Document No 51-53) As a result of which, Complainant faced much hardship, agony, pain and inconvenience both mentally and monetarily on account of non-provision of the amenities and incomplete works in the Apartment.
The pending works of the opposite parties as on handover of the flat are as detailed below and estimated cost of the left out works by the opposite parties as agreed in the Development Agreement is as below.7
S.No WORKS PENDING Estimate of THE
PENDING WORK
(in.R.s.)
1 Occupancy Certificate/Mortgage Deed 400000
Release from GHMC
2 Erection of Transformer and its civil 300000
works
3 New 3/4 Inch diameter water 300000
connection
4 Back-up Generator and its civil works 250000
5 Fixation of covers to Electric Meter 5000
and MCB
6 Terrace Entrance door not fixed 10000
7 Permanent ladder to climb lift 18000
8 Water pipes on the terrace of the floor 3000
to be covered with cement mortar
9 Terrace lift backside civil works 8000
10 At Terrace, side walls slopping should 5000
be done to avoid rain water stagnation
near the walls
11 Lift machine door on the top of the 10000
terrace
12 Lift slab leakage causing lift non 10000
functioning
13 Panel board to be covered with grill 6000
14 Panel Board meter covers fixation 2000
15 Watchman room and toilet half 12000
attended and outside missing painting
works
16 Watch man room window 5000
17 Parking tiles to be fixed properly 10000
18 Front ramp with reference to side 6000
sloping, and to increase the height for
parking of cars
19 Masonry works to be carried in the 15000
front portion of the apartment for
plantation
20 Inside balconies /outside apartment 20000
colouring pending at many points.
21 Lift painting inside the whole area of 8000
wall
22 Lift slab temporarily fixed with cement 10000
tiles, water leakage to be made
permanent
Total 1413000
Complainant submits that the Opposite parties did not complete the construction work as promised as per the specifications agreed by them under the Deed of Development Agreement and there was an inordinate delay on their part.8
Whenever the Complainant was demanding them with regard to the completion of pending works, they were postponing the same under one pretext or the other.
8). Complainant submits that in spite of promising to pay the Good will Amount and to finish the incomplete works, the Opposite Parties failed to do so and committed breach of trust. The Opposite Parties have put the complainant to mental and financial agony and hence they have to make good the loss apart from compensating the complainant appropriately for their service deficiency. Hence this Complaint.
The opposite parties filed the counter to the complaint of the complainant denying all the allegations against them except those which are specifically admitted.
The opposite parties state in their counter that it is an admitted fact that the complainant being the absolute owner and possessor the House bearing No.471/MIG-I(M.C.K H.No.24-471) admeasuring 311.11 square yards situated in AP Housing Board Colony Kukatpally Ranga Reddy District, having purchased the same under the register sale Deed dt.23.05.2013 from its previous owners for valuable consideration as such the same is not disputed. The opposite parties further submit that the complainant having caused all enquiries with regard to the vast expertise and good repudiation of the opposite parties in the field of construction, entrusted the responsibility of the construction of the residential complex in the above land with the funds of opposite parties by agreeing to share the built up area at the ratio of 50% to the complainant 50% to the opposite parties. As per the understanding the complainant is entitled for one Flat bearing No.101, which is also evident from the Registered Development Agreement cum General Power of Attorney dt.02.05.2014.
9). The opposite parties further submit that the complainant has absolutely no locus standi to maintain the complainant against the opposite parties for the reason that the opposite parties completed the construction of the entire project in all respects and aspects without any default, including flat No.101 of the 9 complainant. The allegation of the complainant that the opposite parties had not fulfilled the completion of the promised works and left our woks in flat No.101 is only created and concocted for the purpose of filing complaint.
The opposite parties further submit that the executants estimated value of the construction of the building of flats is Rs.94,69,500/- in respect of Ground+ 3 Floors only but it does not include the estimated value of construction of another two flats in the fourth floor at the repeated insistence of the complainant, which fact is deliberately suppressed by complainant in her complaint. The opposite party submit that as per the terms and condition of the Registered Development Agreement cum General Power of Attorney, the opposite parties under took to complete the construction of apartments within the period of 12 months from the date of obtaining Municipal sanction plan with a grace period of three months.
10). Opposite parties also submit that the allegation that they orally agreed to pay a Good will amount of Rs.5 lakhs to the complainant if the construction is not completed and possession is not handed over within the stipulated time, is absolutely false and same is concocted by the complainant for pelf, as same is not mentioned in the Registered Development Agreement cum General Power of Attorney and in the subsequent supplementary agreement executed among the parties herein. The said allegation is only after thought and without admitting the same the opposite parties question the complainant as to why the same was not mentioned in the legal notice dt.04.05.2017 got issued by her to them and the same demonstrates that the said allegation is a created and false one. The opposite parties have not received the said legal notice but the complainant got managed the endorsement as unclaimed and got returned to the complainant.
The opposite parties vehemently deny the allegation of the complainant that upon repeated demands and requests, the opposite parties delivered the flat in incomplete state in the month of May 2016 by promising to complete and provide amenities after occupation of the premises by the complainant. The complainant 10 suppressed material facts for pelf from the opposite parties. The opposite parties also deny the allegation of the complainant that the electricity connection was temporary and work turned out by the opposite parties was not as per the specifications agreed in the agreement and even after occupying the premises nothing has changed and the opposite parties failed to attend to the pending works. The opposite parties contend that the allegation of the complainant that opposite parties failed to obtain the occupancy certificate and release the mortgage deed is a blatant lie as it is not the duty of the opposite parties to obtain occupancy certificates and get the mortgage released as per the terms and conditions Registered Development Agreement cum General Power of Attorney.
Opposite parties further submit that the complainant for the reasons best known to her had deliberately suppressed the factum of the permission for construction is only for Ground+3 Floors by GHMC Authority and subsequently at her repeated insistence with regard to the construction of unauthorised 4th floor comprising of two flats by the opposite parties out of which one flat bearing No.402 is already alienated by the complainant under Registered Sale Deed dt.18.12.2015 bearing Documents NO.478 of 2016 in favour of Sri Sravan Mahankali and Swarupa Rani Mahankali by receiving valuable consideration. It is pertinent to mention here that though the opposite parties expressed their reluctance to proceed with the construction of unauthorised 4th floor, the complainant exerted and mounted pressure on the opposite parties by stating that she is getting only one flat as per the agreement and same is not sufficient towards her share and unable to withstand to such pressure, the opposite parties were constrained to complete the construction of the two flats in the 4th floor as pressurized by the complainant. At the time when the complainant mounted pressure for construction of unauthorised 4th floor, the opposite party openly informed the complainant that no occupancy certificate will be granted and the mortgage will not released in the event of there being unauthorised construction in deviation of the sanctioned plan but yet the complainant directed the opposite parties to proceed with the construction of unauthorised 4th floor as 11 such the opposite parties obliged the complainant and constructed the 4th floor in deviation of sanction plan.
11). The opposite parties further submit that the allegation of the complainant that opposite parties failed to obtain separate electricity meters which caused heavy burden compelling the complainant to pay an amount of Rs.50,608/- towards electricity consumption charges for running on singe electricity meter for many months and obtained separate electric connection with individual names with great difficulty and as the opposite parties delayed to obtain electricity meters and panel and even protection grill was not covered as such the opposite parties have to reimburse all the said charges, is absolutely false and baseless and the same is vehemently denied. The allegation of the complainant that opposite parties failed to provide the transformer to the apartment resulting in frequent electrical disturbance and high voltage fluctuations resulting in huge loss of house hold electrical equipments, is false and same is vehemently denied.
The opposite parties submit that by paying huge amount they obtained individual three phase meters in respect of all the flats by setting up panel board which is very much evident from the photograph filed by the opposite parties.
The opposite parties further submit that getting of occupancy certificate, releasing the mortgage and permission for erection of transformer will arise only in the event of there being no unauthorised construction in deviance of the sanctioned plan and in the present case the complainant by exerting and mounting pressure induced the opposite parties to complete the construction of the unauthorised 4th floor as such the permission for getting transformer could not be secured, resulting in the opposite parties obtained three phase individual meters for each flat by paying huge amount to the electricity department which fact is deliberately suppressed by the complainant. The opposite parties submit that electrical transformer could not be secured for want of occupancy certificate as such at the insistence of the complainant and other flat owners the opposite parties were constrained to spend huge amount for obtaining three phase individual electrical meters upon 12 the assurance made by them that in such case there is no necessity for the opposite parties to provide backup generator with stand by DG set back up which fact is deliberately suppressed by the complainant.
12). The opposite parties further submit that as per development agreement, they are entitled to proceed with the construction in respect of 4815 Square feet but in view the repeated insistence and pressure of the complainant, the opposite parties were constrained to proceed with construction in respect of double of the said permitted area resulting in 100% deviation which ultimately culminated into several permissions being not obtained including the permission for obtaining new municipal ¾ water connection which fact is very much in the knowledge of the complainant. It is submitted that the permission for getting ¾ municipal water connection would not be obtained in view of there being no occupancy certificate issued by GHMC for committing 100% deviation in the construction of the Residential building at the instance of the complainant.
The opposite parties further submit that they have already provided Bore well which was dug up to depth of 1200 feet with full water which fact is admitted by the complainant but the allegation of complainant that the same worked only for three months after occupation and became defunct upon which the complainant has been experiencing acute shortage of water for which she was compelled to buy water by deploying private water tankers daily which is continued even as on today and she bore the expenditure of Rs.2,30,300/- from August 2016 to June 2017, is absolutely false and same is vehemently denied.
The opposite parties further submit that as on the date of delivery of possession of all the Flats before the month of November 2015, the said bore well was very much with water sufficient to cater to the domestic needs of all the flats owners but for the subsequent shortage if any, in view of paucity of rains, will not give any qualification for complainant to claim alleged expenditure from the opposite parties.
13The opposite parties respectfully submit that they had provided with all the amenities as agreed under Registered Development Agreement cum General Power of Attorney and completed the project in all respects and aspects within the stipulated time as such the question of opposite parties paying an amount of Rs.2,10,000/- towards the alleged rental charges as claimed by complainant, does not arise. The complainant has not filed any documents to show/prove that she has spent an amount of Rs.50,000/- and further amount of Rs.2,30,300/- alleged to have spent by her for getting water through private tankers.
The opposite parties further respectfully submit that the complainant suffered no hardship, agony or pain and inconvenience neither mentally nor monetarily as because the opposite parties completed the construction of the entire project in all respects and aspects by proving all the amenities and that is the reason why the other flat owner as on date had never raised their little finger pointing out any deficiency in the construction, against the opposite parties. It is pertinent to mention that the other 2 joint owners namely Vishal Chitturi and Nagaraju Andole at no point of time as on date pointed out their finger attributing any deficiency or non-fulfilment of the terms and conditions of the Registered Development Agreement cum General Power of Attorney, against the opposite parties which implies that the complainant only to extract money/pelf from the opposite parties, got filed the present complaint with false and untenable allegations.
13). The opposite parties further submit that the complainant herself had purchased the flat bearing No.102 by obtaining loan from opposite parties under Registered sale deed which fact is deliberately suppressed by her. All the sale deeds in respect of other flat owners were executed before the month of August 2015 as the said owners had obtained loan from the Canara Bank Basheerbagh Branch and the sale deed in respect of flat no 402 belonging to the complainant was executed by her on 18.12.2015 in favour of S.Mahankali and Swarupa Rani Mahankali after receiving valuable sale consideration from them. The said purchasers obtained loan from the said bank. The complainant 14 deliberately and falsely stated in the sale deed that the permission was obtained for Slit+Four upper floors which is contrary to the permission granted by GHMC which is for Slit+ 3Upper floors.
The opposite parties further submit that the fact of the complainant alienated the flat bearing No.402 in favour of said purchasers goes to demonstrate that the opposite parties have completed the construction in all respects and aspects and if really the opposite parties have not completed the project in its entirety, the complainant ought not have alienated the flat No.402 as such the said allegation of the complainant that the opposite parties have not completed the project in all respects and aspects and there are pending works to be completed is false and baseless.
The opposite parties respectfully submit that the alleged works posed to be pending from the side of opposite parties as narrated in the said table of the complainant are figment of imagination of the complainant for the reason that as on the date of delivery of possession of the respective flats the said works were completed in all respects and aspects as such no other flat owners raised their little finger against opposite parties and it is only complainant to squeeze good sums from the opposite parties, filed the false complaint.
14). The opposite parties further submit that if the allegation of the complainant that the opposite parties have not completed the construction of project as promised and as per the specifications agreed by them and there is a delay on the part of the opposite parties, is taken to be true for a moment without admitting the same as true the question of complainant purchasing Flat no.102 from the opposite parties does not arise. In view of the mounting pressure from the complainant, the opposite parties were constrained to construct of 4th floor in deviation of the sanction plan by incurring heavy expenditure more than that of the estimated value as per the development agreement.
The opposite parties submit that the complaint was barred by limitation as the same was filed after expiry of two years from the date of accrual of cause of action as such the same is liable to 15 be dismissed. There is no deficiency of service on the part of opposite parties in the construction of residential building as such the complainant is not entitled to any of the reliefs as claimed. The opposite parties ultimately prayed to dismiss the complaint with costs.
15). The complainant filed her evidence affidavit as PW1 and got marked Exs.A1 to A17 on her behalf. On behalf of opposite parties No.1 and 2, opposite party No.2 Sri V.Srinivas Rao who is the sole proprietor of Opposite party No.1 filed his evidence affidavit as DW1 and got marked Exs.B1 to B9.
Heard arguments of both sides and perused the entire material on record.
The points for consideration are:
i. Whether there is any deficiency in service on the part of the opposite parties?
ii. Whether the complainant is entitled for the reliefs sought for in the complaint?
iii. If yes, to what reliefs?
To decide the points for consideration we have carefully examined the whole material borne by record and the same would manifest that the complainant is one of the owners and possessors of the house bearing No.471/MIG-I (M.C.K. House No.24-471) Admeasuring 311.11 square yards, situated at AP Housing Board colony, Kukatpally village under GHMC Kukatpally circle Ranga Reddy District, having purchased the same through the Registered Sale Deed dt.23.05.2013. The opposite party No.1 firm (The Builder) is represented by Opposite party No.2 as its sole proprietor. The complainant entered into Registered Deed of Development Agreement-Cum-General power of Attorney dt.02.05.2014 for the construction of Apartment to be constructed by opposite parties under the name of "Sri Sai Venkata Ramana Nilayam", with the funds of opposite parties with an understanding of sharing constructed flats equally to the complainant and to other joint owners of the subject property referred to supra and opposite parties i.e. at the Ratio of 50% to the complainant and 50% to the 16 opposite parties but the complainant is entitled for only one flat bearing No.101 as besides the complainant there are two other joint owners for the said land as per the sale deed.
It is the further case of complaint that the opposite parties did not complete the construction work as promised as per specifications agreed by them under Ex.A1 deed of development agreement and there was inordinate delay in the construction of the Apartment. There are many pending works to be completed by the opposite parties and whenever she demanded the opposite party for the completion of the pending works which are mentioned in the table under serial No.1 to 24 at page No.6 of the complaint, the opposite party was were postponing the same under one pretext or the other. There is abnormal delay in the construction of the Apartment and in handing over of the possession of the same to the complainant. As per Ex.A1 deed of development agreement, the opposite parties undertook to complete the construction of residential apartment complex within a period of 12 months from the date of obtaining municipal sanction plan with a grace period of 3 months. Opposite party orally agreed to pay good will amount of Rs.5lakhs to the complainant if the construction is not completed within the stipulated time. The opposite parties also agreed to pay an amount of Rs.30,000/- per month towards rental charges till the construction of apartment is completed and possession is handover to the complainant, after the expiry of the stipulated time.
16). It is the further case of the complainant that the opposite parties failed to complete the construction within the agreed time. Upon the repeated request and demands by the complainant, the opposite parties delivered the flat in incomplete state in the month of may 2016 by promising to complete the pending works after occupation of the same by the complainant. The opposite parties failed to obtain the occupancy certificate and release the mortgage from GHMC.
The complainant approached the opposite parties several times and demanded them to complete the incomplete works 17 but the same proved like flogging the dead horse as the opposite parties have not completed the same. The complainant mentioned the estimate amounts of 22 pending works shown in the table at Page No.6 of the complaint. Though the opposite parties agreed in the deed of development agreement they failed to provide new water ¾ connection. The bore well provided by the opposite parties worked only for 3 months after occupation and became defunct due to which the complainant was compelled to buy water through private water tanks for which she incurred expenditure. As the opposite parties left out several works and not completed the pending works, the complainant filed the present complaint seeking several reliefs which are mentioned at the threshold of this complaint.
On the other hand it is the version/case of the opposite parties that all the allegations of the complainant are false and they were invented for grabbing money from the opposite parties. In fact the opposite parties completed the construction of the entire project in all respects and aspects without any default including flat No.101 of the complainant. Opposite parties admitted entering into Ex.A1 deed of development agreement with the complainant for the construction of apartment by their funds and the complainant and opposite parties agreed to share up the built up area at the ratio of 50% to each and same is incorporated in the deed of development agreement. The complainant suppressed many material facts particularly the factum of the permission for construction of Ground+3 Floors only by the concerned GHMC authority.
17). It is the further case of the opposite parties that on repeated insistence of the complainant as she gets only one flat i.e. flat No.101 as per agreed terms, the opposite parties were constrained to construct 4th Floor comprising of two flats out of which flat No.402 was taken by complainant and she alienated the same to one Sravan Mahankali and Swarupa Rani Mahankali under registered sale deed dt.18.12.2015. The opposite parties expressed their 18 reluctance for the construction of the 4th floor but the complainant exerted and mounted pressure on them by saying that she is getting only one flat which is not sufficient towards her share and unable to withstand such pressure from the complainant, the opposite parties were constrained to complete the construction of two flats in the 4th floor. The complainant suppressed the above fact. The complainant in the sale deed executed by her for selling plot No.402 in the 4th floor of the apartment got mentioned a false fact that the municipal sanction plan granted by the GHMC was for Slit+4 Floors. But as per granted municipal plan the permission was for construction of Slit+3 Floors only. The complainant was aware of the fact that if the construction is deviated from the sanction plan, occupancy certificate will not be given by the GHMC and mortgage also will not be released and will also result in difficulty in getting other permissions like electricity transformer, municipal water ¾ connection and for all the same complainant is responsible.
It is also further version of the opposite parties that the other two joint owners Vishal Chitturi and Nagaraju Andole at no point of time as on date pointed out their little finger attributing any deficiency or non fulfilment of the terms and conditions of the registered Development Agreement cum General Power of Attorney against the opposite parties which fact implies that complainant only to extract money from the opposite parties got filed the complaint with all false and untenable allegations. The complainant suppressed the fact that she had purchased the flat bearing No.102 by obtaining loan from opposite parties under registered sale deed. If the allegation of the complainant that opposite parties have not completed the construction of project in all respects is taken to be true for a moment without admitting the same, the complainant ought not have purchased flat No.102. As per the development agreement it is not the part of the duty of the opposite parties to obtain occupancy certificate and to release the mortgage from GHMC.
1918). It is also the case of the opposite parties that the complaint is filed after the expiry of the 2 years from the date of accrual of cause of action as such the same is liable to be dismissed as barred by the limitation. As the complainant filed the complaint by suppressing material facts and for all the above reasons the complaint is liable to be dismissed.
Since the complainant in her complaint primarily stated that she filed the present compliant for the non completion of pending works by the opposite parties and also as she sought various reliefs which are mentioned at the threshold of this order, the burden lies on her to prove the same.
For deciding the above rival contentions the documentary evidence borne by the record i.e. "A" series exhibits and "B" series exhibits need to be examined carefully.
It is not in dispute that the complainant and two others namely Vishal Chitturi and Nagaraju Andole are the joint owners of the house bearing No.471/MIG-I (MCK H.No.24-
471) admeasuring 311.11 square yards situated at AP Housing Board colony, Kukatpally, having purchased the same under registered sale deed dt.23.05.2013. It is also not in dispute that the complainant and two other joint owners of the above house entered into Ex.A1 Registered Deed of Development Agreement-Cum- General Power Attorney dt. 10.05.2014 with the opposite parties for construction of residential apartment complex with the funds of opposite parties, having agreed to share the constructed flats equally i.e. 50% to the complainant and two other owners and 50% to the opposite parties. It is also not in dispute that as per clause 8 of Ex.A1 development agreement the opposite parties shall complete the construction within 12 months from the date of obtaining sanction plan from the GHMC with a grace period of 3 months.
Since the period of 12 months with the grace period of 3 months for completion of the project (Apartment) starts from the date of obtaining the sanction plan from GHMC, the 20 sanction plan which is marked as Ex.B7 is to be looked at and we have scanned Ex.B7 with a chary Eye and observed that the opposite parties applied for building permission to GHMC on 07.07.2014 and GHMC Sanctioned plan on 04.08.2014. As per the said sanction plan permission was granted for construction of Stilt+ 3 floors only.
At this juncture we feel it relevant to refer to Ex.A1 deed of development agreement. A perusal of the said deed of development agreement shows that At page No.3 of it the details of shares of developer and owners are mentioned in a table as follows and same is extracted below for ready reference.
The details of shares of Developer and owners are as follows in the given table:
Particulars of owner's share 50 % Flat Numbers Smt.K.AMARAJUGADDA 101 VASAVADATTA RAMANA (The complainant herein) Sri. VISHAL CHITTURI (The Joint 301 owner) Sri. NAGARAJU ANDOLE (The 201 Joint owner) Particulars of DEVELOPER's Flat Numbers SHARE M/s. MAHA LAXMI BUILDERS 102,202, and 302 (Opposite parties herein) Ex.A1 deed of development agreement and the above shares of flats show that the same are in accordance with Ex.B7 sanction plan. From the above division of shares it is manifest that the complainant gets only one flat which is 101.
At this juncture it is to be noted that the counsel for the opposite parties in his oral submissions and in the written arguments brought it to our notice that besides Ex.A1 development agreement, a Supplementary Agreement was executed between complainant and 21 two other joint owners and the opposite parties and the same is suppressed by the complainant for the reasons known to her. The said supplementary agreement was got marked by the opposite parties as Ex.B1. A Perusal of the same reveals that the complainant and two other joint owners entered into the said Ex.B1 supplementary agreement on 30.01.2015 with the opposite parties, which fact was suppressed by the complainant as she has not mentioned the same in her complaint. In the said supplementary agreement which flats are to be allotted to complainant and two other joint owners and which flats are to be allotted to the opposite parties, are mentioned. The said particulars are extracted in the given table:
Particulars of owner's share 50 % Flat Numbers Smt.K.AMARAJUGADDA 101 VASAVADATTA RAMANA (The complainant herein) Sri. VISHAL CHITTURI 301 Sri. NAGARAJU ANDOLE 201 All owners (The complainant herein 402 and two other joint owners) Particulars of DEVELOPER's Flat Numbers SHARE M/s. MAHA LAXMI BUILDERS 102,202, and 302 &401 (Opposite parties herein) It is the consistent version and evidence of the opposite parties that the complainant herein exerted and mounted pressure on the opposite parties for the construction of two more flats in the fourth floor, stating that she gets only one flat and same is not sufficient for her share and due to the said pressure, the opposite parties constructed two more flats in fourth floor, in deviation of Ex.B7 sanction plan. It is also the consistent version and evidence of opposite parties that the complainant had taken flat No.402 and had sold it for valuable consideration vide registered sale deed dt.18.12.2018 bearing document No.478/2016 to Sravan Mahankali and Swarupa Rani Mahankali. Ex.A14 is the said sale deed. A perusal of the same demonstrates that the same 22 corroborates the above version of opposite parties as the said sale deed shows that the complainant and two other joint owners alienated flat No.402 for valuable consideration to the above said persons. Ex.B1 original copy of the supplementary agreement dt.30.01.2015 shows the construction of two more flats which are 401 and 402 in the fourth floor of the apartment building and allotment of the flat 402 to the share of owners including the complainant. In the said Ex.A14 sale deed dt.18.12.2015 executed by complainant and two other joint owners in favour of Sravan Mahankali and Swarupa Rani Mahankali, at page no.3 in para no.2, it is mentioned that permission was obtained from GHMC for construction of Slit+4 upper floors residential complex, which is contrary to Ex.B7 original building permission sanction plan dt.04.08.2014.The said fact corroborates the version of the opposite parties that the complainant falsely mentioned the same contrary to the sanction plan which is for the construction of slit+ three floors only.
Thus from the above facts it is clear that there was deviation from the sanction plan due to which it could not be possible to obtain occupancy certificate and to get the mortgage released from the GHMC as submitted and contended by the opposite parties.
When the complainant was instrumental for the deviation of the sanctioned plan for the construction of the 4th floor comprising of 2 flats, she is not justified in making allegations against the opposite parties stating that they have failed to obtain occupancy certificate and to get the mortgage released from GHMC. From the above mentioned facts it can be concluded that the complainant has not approached this commission with clean hands.
It is consistent version and evidence of opposite parties that they have completed the construction of entire project including the flat No.101 of the complainant, in all respects within the stipulated time and handed over the possession of flats to the respective owners. To prove the above version opposite parties got marked Ex.B2 and B3 possession handing over letters . A perusal of the 23 same shows that on 18.09.2015 the opposite parties handed over the possession flat no.302 and flat no.202 to the respective owners.
19). As per Ex.B7 sanction plan, GHMC granted building permission plan to the opposite parties on 04.08.2014. Ex.B2 and B3 handing over letters show that opposite parties handed over the possession of flat no 302 and 202 to the respective owners on 18.9.2015. The same shows that the opposite parties completed the construction of the residential complex within 14 months from the date of sanction plan. As per Ex.A1 Development agreement, the opposite parties shall complete the construction of the residential complex within 12 months with a grace period of 3 months from the date of the sanction plan i.e.08.04.2014. Admittedly the complainant also took the possession of her flat no.101 but it is her allegation that there are pending works to be completed by opposite parties in her flat no.101. It is also her further allegation that she incurred expenditure for completion of the pending works as the opposite parties have not completed the pending works.
At this juncture it is to be noted that except stating that she incurred expenditure for completion of the pending works, the complainant has not filed any authenticated bills to show the said expenditure.
At the first instance the complainant has to prove that there are pending works which are to be completed by the opposite parties, with satisfactory, convincing and cogent evidence. She ought to have taken steps for appointment of a qualified civil engineer, from this commission for assessment of the construction in all respects and aspects as per the specifications/terms and conditions of Ex.A1 registered Deed of Development Agreement but for the reasons known to her she has not taken such course of action. If she had taken such course of action and had got filed an authenticated report by a qualified civil Engineer, the same would be of immense help to this Commission for deciding about the allegation of complainant about the so called alleged pending works. Or in alternative the complainant ought to have got filed the affidavits of her two co-joint owners or the affidavits of the other flat owners, stating by the said owners that there are pending works to 24 be completed in the flats of the subject apartments residential complex, to be completed by the opposite parties. But she has not filed the same to support her version. From the same it can be concluded that the complainant has not adduced or filed any satisfactory evidence to prove her allegation as to the so called pending works to be completed by the opposite parties.
At this juncture it is relevant to mention here that it is the consistent version and evidence of the opposite party that the two other joint owners Vishal Chitturi and Nagaraju andole have not attributed any deficiency against opposite parties about the construction of the residential complex nor about the so called pending works and complainant only filed the complaint with false allegations only to extract money from the opposite parties. This version of the opposite parties appears probable when the facts and circumstances of the case are examined.
The complainant has claimed a sum of Rs.2,10,000/- towards rental charges from the opposite parties stating that there was delay in completion of the construction of the apartment and residential complex and handing over the possession of the same i.e. her flat No.10, to her and due to the same she paid rental charges for her accommodation. No doubt in clause 8 of Ex.A1 Development agreement it is mentioned that "in case the construction is not completed within the stipulated time including the grace period, the opposite parties shall pay to the first party ( The complainant herein and two other joint owners) a sum of Rs.30,000/- per month till the construction is completed in all respects.
At the cost of repetition it is to be mentioned here that Ex. A1 Deed of Development agreement is entered into by the complainant herein and two other joint owners with the opposite parties and complainant and two other joint owners are entitled to one flat each towards their share. In such situation if at all there is a delay in the construction of the flats and handing over of the same to them, they are each entitled for Rs.10,000/- per month as such the complainant alone cannot claim Rs.30,000/- per month to her. Here even for claiming the said amount, it is incumbent upon on the complainant to prove first that there was delay in the 25 construction and handing over of flat to her. Except her oral testimony, she has not filed any authenticated/satisfactory evidence to substance her allegation of the so called delay in completion of the construction of her flat No.101 and handing over of the same to her. Moreover she has to file the evidence affidavit of owner of the house wherein she alleged to have resided and also she ought to have filed the documentary evidence showing the alleged payment of rentals to the third party owner for her accommodation. But as seen from the material borne by the record she has not filed any such type of affidavit of the alleged third party owner and rent receipts. In the absence of the same the complainant is not entitled to claim the alleged amount of rentals as such we hold that she is not entitled for the said reliefs.
Similarly the complainant claimed sum of Rs.50,608/- towards electricity consumption charges by stating that opposite parties failed to obtain separate electricity meters which caused heavy burden and she was compelled to pay the above amount as the electricity consumption was running on single electrical meter for many months and have obtained separate electricity connections on individual names with great difficulty and even protection grills was not covered as such the opposite parties have to reimburse the said charges.
At this juncture we feel it relevant to mention here that the complainant except alleging and claiming as above, she has not filed any certificate from the electricity department or any affidavit to that effect from the electricity department personnel or any electricity bills. As seen from the material borne by the record i.e. the counter/written version and evidence of the opposite parties, the above allegation was vehemently denied by the opposite parties stating that the same is false. It is the consistent version in evidence of opposite parties that by paying huge amount they obtained individual three phase meters in respects of all the flats by setting up panel board which is very much evident from the photographs filed by the opposite parties. We have seen photographs filed by the opposite parties which buttress the above version of opposite parties. The complainant ought to have got filed the affidavits of her two co joint owners and other flat 26 owners to prove her above allegation but she has not filed the same for the reasons known to her. If there is truth in the said allegations all the other flat owners ought not have kept silent. Thus in view of the above discussion we hold that the complainant has not adduced any satisfactory evidence to prove her above allegation.
Similarly the complainant claimed a sum of Rs.2,30,300/- towards water expenses by stating that the bore-well provided the opposite parties worked only for three months after occupation and became defunct and the complainant was compelled to buy water through private tankers from August 2016 to June 2017 for 11 months.
The complainant except alleging and claiming as above, she has not filed any authenticated receipts showing the alleged payment of the alleged amount to the suppliers of the water tanks. In the absence of the same, we hold that she is not entitled for the said relief. The complainant ought to have got filed the affidavits of her two co- joint owners and other flat owners to prove her above allegation but she has not filed the same for the reasons known to her. If there is truth in the said allegations all the other flat owners ought not have kept silent. Thus in view of the above discussion we hold that the complainant has not adduced any satisfactory evidence to prove her above allegation.
The complainant claimed a sum of Rs.5lakhs towards good will amount stating that the opposite parties orally agreed to give the said amount to her if the construction is not completed within stipulated time. The opposite parties vehemently denied the said allegation contending that the same is false and concocted for pelf. It is the consistent version and evidence of opposite parties that they have not agreed orally as such and if the same is admitted to be true for a moment, without admitting the same, why the complainant as not mentioned the same in her legal notice sent to them. Ex.A17 is the copy of the said legal notice. We have carefully perused the same and found that the complainant has not mentioned about the said alleged good will amount as orally agreed by the opposite parties. It is to be made clear that the law is settled 27 to the effect that the oral assurance and agreements cannot be executed under law.
20). Having examined the whole material borne by the record, we hold that complainant has failed to prove her case with satisfactory evidence and moreover she suppressed several material facts and approached this commission with unclean hands as such she is not entitling to the reliefs claimed by her in her complaint and her complaint is liable to be dismissed.
In the result, the complaint is dismissed.
Each party shall bear their own costs.
Typed to the dictation to the Steno on system, corrected and pronounced by us in the open bench on 24.07.2024.
MEMBER(J) MEMBER(N-J)
---------------------------------------------
Dated: 24.7.2024
APPENDIX OF EVIDENCE
WITNESS EXAMINED
Evidence affidavit of Evidence affidavit of
The Complainants: Opposite Parties:
PW1: Smt. Kamarajugadda vasavadatta DW1: V.Srinivas Rao
Ramana
EXHIBITS MARKED
For Complainant:
Ex.A1: Is the Photostat copy of Deed of Development. Ex.A2: Is the Photostat copy of Notice issued to the opposite parties 1 and 2 .
Ex.A3: Is the Photostat copy of Registered post counter foil. Ex.A4: Is the Photostat copy of Track Consignment of Post. Ex.A5: Is the Photostat copy of Returned Registered Cover, Unclaimed.
Ex.A6: Is the Photostat copy of Electricity bills payment receipts due to non fixation of meters and panels.
Ex.A7: Is the Photostat copy of Non provision of Transformer -
Photo.
Ex.A8: Is the Photostat copy of Non provision of Cable TV of Flat No.101-photo.
Ex.A9: Is the Photostat copy of Non provision of Internet of Flat 28 No.101 - Photo.
Ex.A10: Is the Photostat copy of Non provision of paintings in lift and lift back side- photo.
Ex.A11: Is the Photostat copy of Non provision of Generator - Photo. Ex.A12: Is the Photostat copy of Non provision of Electric covers and grill-photo.
Ex.A13: Is the Photostat copy of Sale Deed dt.17.07.2015. Ex.A14 :Is the Photostat copy of Sale Deed dt.18.12.2015. Ex.A15 : Is the Photostat copy of Approved Plan. Ex.A16: Is the Photostat copy of Letter of indemnity dt.11.05.2016. Ex.A17: Is the Photostat copy of HMWS & SB Demand Notices dt.10.04.2017 & 12.04.2017.
For opposite parties:
Ex.B1: Is the Original Copy of Supplementary Agreement dt.30.01.2015 executed by the complainant and 2 others in favour of the opposite parties.
Ex.B2: Is the Original copy of Possession Handing over Letter dt.18.09.2015.
Ex.B3: Is the Original copy of possession Handing over letter dt.18.09.2015.
Ex.B4: Is the Original copy of Certified copy of the Registered sale deed dt.27.06.2015 bearing document No.7967/2015 executed by the complainant along with two others represented by the opposite parties in favour of Rama Devi and another.
Ex.B5: Is the original copy of Registered sale deed dt.14.10.2015 bearing document No.13014/2015 executed by the complainant along with two others represented by the opposite parties in favour of J.Sindu and another. Ex.B6: Is the Photostat copy of certified copy of Registered sale deed dt.18.12.2015 bearing document No.478/2016 executed by the complainant along with two others represented by the opposite parties in favour of Sravan Mahankal and another. Ex.B7: Is the Original copy of Building Permission Letter vide permit No.35774/DC/WZ/Cir-14/2014 dt.04.08.2015 obtained by the opposite parties along with sanction plan issued by G.H.M.C., Hyderabad.
Ex.B8: Is the Original copy of E.C. dt.18.10.2017. Ex.B9: Is the Photostat copy of Building Photos & C.D.s.(2 Nos).
SD/- SD/-
MEMBER(J) MEMBER(NJ)
------------------------------------------- Dated : 24.7.2024