State Consumer Disputes Redressal Commission
1. Sri Naren Rama Krishnan vs 1. M/S.Aparna Shelters Private Ltd., on 11 October, 2022
BEFORE THE TELANGANA STATE cONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.86/2016
Between:
1.Sri Naren Ramakrishnan, S/o.Sri N.Ramakrishnan, Aged about 37 years, Occ: Service, R/o.E-25, Aparna Kanopy Lotus, Kompally, Hyderabad 500 014.
2. Smt. Arunasree Swapna, W/o.Sri Naren Ramakrishnan, Aged about 35 years, Occ: Service, R/o.E-25, Aparna Kanopy Lotus, ..Complainants Kompally, Hyderabad 500 014.
And
1.M/s.Aparna Shelters Private Limited, A company registered under Companies Act, 1956, Having its registered office at # 802, Astral Heights, D.No.6-3-352/2 & 3, Road No. 1, Banjara Hills, Hyderabad, Represented by its Director Bommi Reddy Venu Gopal Reddy.
2. D.S.Prasad , Former Director of M/s.Aparna Shelters Pvt. Ltd., Aparna Shelters Pvt. Ltd.,# 802, Astral Heights, D.No.6-3-352/2 & 3, Road No. 1, Banjara Hills, Hyderabad.
3. P.V.R.Prasad, Manager, Aparna Maintenance Services, & 3, # 802, Astral Heights, D.No.6-3-352/2 Road No. 1, Banjara Hills, Hyderabad.
Counsel for the Complainants M/s.P. Vikram.
Counsel for the Opposite Parties: M/s.M.V.Durga Prasad.
Hon'ble Sri V.V.Seshubabu, Member (J), CORAM And Member (NJ).
Hon'ble Smt.R.S.Rajeshree,
ELEVENTH DAY OF OCTOBER,
TUESDAY, THE
TWO THOUSAND TWENTY TWO.
Member (J),
Order (Per Hon'ble Sri V.V.Seshubabu,
****
of the Consumer
01) Thecomplaint is filed u/s.17(1)(a)(i)
Protection Act,1986 seeking
the reliefs of directing the opposite parties to repay Rs.2,58,000/ with interest 24% p.a. with joint and several liability from the date of handing over of the property till realization, to pay Rs.50 lakhs for the damages for devaluation of the property, mental agony and undue hardship sustained by the complainants and to award costs.
02). The brief averments of the complaint are that the complainants 1 & 2 are the husband and wife and opposite party no.2 is the Dircctor and opposite party no.3 is the Maintenance Service Manager under opposite party no. 1; that the complainants having impressed with the brochure and other details of the project styled as Aparna Kanopy Lotus with a total of 92 plots to be constructed in an extent of land admeasuring 50,011.79 sq. Mtrs. purchased plot no.25 admeasuring 200.28 sq.yards; that prior to Agreement dt.29.11.2013, they have paid Rs.13,81,120/- by way of two cheques; that the total cost of the villa was at Rs.69,05,600/- and as per the Agreement of Sale they have to pay balance amount of Rs.55,24,480/- as per the schedule; that as per the Schedule-D of the Agreement of Sale, the opposite party no.1 promised to provide Club House and amenities nine in number like 1). Gymnasium, 2). Health Club, 3) Library and ATM Arca, 4). Multi purpose hall, 5). Indoor Games/sports , 6). Yoga/Aerobics area and that under head Club House and Amenities like 1). Swimming Pool, 2) Snooker/Billiards, and 3). Play Area for children; that on 12.3.2014, the opposite party no.1 executed registered Sale Deed in favour of the complainants; that on the same day both sides have entered into an Agreement of Construction, as per the same, the villa as described in schedule B shall be constructed; that on 22.7.2014 the opposite party no.1 declared that the villa has been completed in all respects as per the terms and conditions and specifications and delivered possession; that the total consideration was paid by that day; that the opposite party no.1 not handed over the possession as agreed upon in the Agreement of Sale, Sale Deed or the Construction Agreement for which the opposite party no.1 is liable to pay the rent amount at Rs.5/- per sq.ft. till possession was delivered; that the complainants after taking delivery of possession and having lived in Villa for a considerable time of 10 months raised the querries regarding the maintenance, infrastructure, Club House and amenities, vide E-mail dt.22.5.2015 for which a reply E-mail out the was sent on 1.6.2015 stating that they are sorting both sides as querries, that the correspondence went on between 10 to referred under Annexures 8 to 26 as mentioned in page nos.
as
17 of the complaint; that by believing the opposite parties
Villa was
the city, the
genuine and reputed developers in
that the
out the problems
purchased, but they are not sorting lakh which was opposite parties are liable to refund: 1).Rs.1 House and amenities, 2).
collected for the construction of Club of the c o m m o n areas, Rs.8000/- collected for the maintenance refundable caution deposit,
3. Rs.20,000/- collected for the non collected towards caution deposit ( for removal
4). Rs.30,000/- for lakh collected Rs.1 of debris, water, electricity etc.), 5).
the club house and
D.G.Set Back up and also for not completing
villas by paying Rs.30
lakhs, for
of other
change in the outer look
Rs.20 lakhs and for
and mental agony at
causing undue hardship
at
in handing o v e r villa
interest @ 24% p.a. for the delay
Rs.1,31,854/; hence, the complaint.
written version of the opposite
03). The brief averments of the
is not maintainable either
on
parties 1 to 3 is that the complaint involves issues raised in the complaint facts or at law; that as the evidence complicated questions of fact which require voluminous scale trial and not by way of summary trial, to lead and require full to decide the dispute; that the Consumer Fora have no jurisdiction maintenance services for free of as the opposite party provided started pending completion of the project and has not cost, till the date, the complainants do not charging the complainants fall within the definition of 2(d) of the Act; that Aparna Kanopy meant for construction 92 villas Lotus to an extent of 50,011.79 units is covered by 72 acres of land with along with EWS and LIG 92 villas, only 30 were a common compound wall; that as against no.l applied for revised permission booked, so, the opposite party to the HMDA; that meanwhile, opposite party no.l has completed infrastructure like roads, service lines, avenue plantation, other common areas and also landscaping and development of all villas including the villa of the complainant by July,2014, that out of 30 booked villas which were ready for delivery of possession, 13 only 4 people occupied the same and even after two years only villas were occupied; that as there are no bookings for the rest of the villas, oPposite party no.1 postponed the collection of so monthly maintenance charges (or adjustment against pre paid maintenance charges) and also the construction of Club House;
that as the opposite party no.1 completed the construction of apartments for the remaining land with a club house; that all the purchasers including the villa owners started using the club house; that since the complainant and some other villa purchasers are not willing to pay the users charges on par with the members of the Club, the opposite party no.1 not charged anything from them; that having used the club house, the complainants or anyone cannot allege deficiency in service on the part of the opposite party no.1; that for various queries raised by the complainants, the opposite party no.1 has been responding with al dedication, inspite of cooperation non of the complainants including the treatment given to the staff and workers of opposite party no.l; that the complainant no.2 was not allowing the staff to attend her complaints for one reason or the other; that the opposite parties engaged more than 12 persons for maintenance of the villas and they are incurring more than Rs.2,25,000/- per month to provide such services; that the complainants have not filed all the E-mail correspondence and filed only chosen correspondence, thereby suppressed the truth; that the opposite party no.1 is willing to refund the entire consideration without charging even for their occupation and services availed so far in view of their contention that, their villa is devalued; that the maintenance of club house require salaries to various staff including to the gym trainer, swimming pool coach, Gym Boy, Front Office Attenders and House Keepers etc. ; that the opposite party no.1 even allotted persons of responsibility to attend the queries; that having taken the delivery of villa without demur by signing the delivery of letter, the complainants are not justified in raising several complaints and it seems they are built upon , in building the record; that every time the complainants are raising new issues which are unreasonable and some of them are not even mentioned in the Agreement of Sale, Sale Deed and in the Construction Agreement viz. free broad band wifi; for free, BSNL Connection, solar fencing and alleged arrest of air pollution from the distant factories etc.; that there is no deficiency in service at all; that the opposite party is ready to handover the club house maintenance to the members of the association of the villas; that no owner of the other villas have got any complaints and at lirst Some of the villa owners were mislead and subsequently having the services realized, some of them expressed satisfaction for is frivolous and provided by the opposite party; that the complaint that with these pleas baseless regarding the claim of several reliefs;
costs.
requested to dismiss the complaint with exemplary Now the points for determination are:
04).
no.1 . Whether the opposite party free of cost to the provided services for the complaint is complainants as such not maintainable?
Whether there is deficiency in service .
the part of and unfair trade practice on the opposite party no. 1?
Whether the complainant is entitled for ii.
the reliefs as claimed?
iv. To what reliefs?
no.l filed evidence
To the case, the complainant
05). prove
Evidence
to A40.
affidavit as PW.1 and got marked Exs.Al
Mr.P.V.R.Prasad as RW.1 and got marked
affidavit is filed by
filed for the complainant
Exs.B1 to B5. Written arguments
sides.
Heard the arguments of both
the parties will be addressed as
06). For the sake of convenience, they arrayed in the complaint.
in the disposal of old matters, As this Commission is engaged occurred in pronouncing the orders in this the delay of 03 Days Commission.
Ex.Al is the sheet giving the details of
07). Point nos. 1 to 4:
of villas in Aparna
that are to be paid by the
owners
charges
dt.29.11.2013
Ex.A2 is the Agreement of Sale
Kanopy otus.
with the opposite party no.1. The entered by the complainants to 50,011.79 sq.mts. meant for Schedule-A of the property relates Schedule B relates to Villa construction of Aparna Kanopy Lotus.
6No.25 purchased by the complainants with boundaries. Schedule- C relates to the specifications in the construction of Schedule B villa. Schedule D relates to the details of the Clubhouse and amenities. Ex.A3 is the registered sale deed dt.12.3.2014 whereunder the complainants have purchased villa no.25 from the opposite party no.1 and land owners. Schedules A to C are similar to the Schedules A,B and D as mentioned in the Ex.A2. It is important to note that on the same day of Ex.A3 registered Construction Agreement was entered between the complainants and opposite no.1. As party per the same, the possession has to be delivered by 31.12.2013 with a grace period of 180 days. As 31.12.2013 was lapsed even by the date of entering into Ex.A4 one has to infer that the possession has to be delivered before 1.7.2014. 180 days is equal to 6 months. It means another 3 months alone was left for the opposite party no.1 from the date of Ex.A4, to deliver possession. Ex.A5 is the handover letter dt.22.7.2014. It is admitted by the complainants that they took possession of the villa "25" on 22.7.2014. In other words there is a delay of 22 days in handing over the possession. Even though there is a clause to pay Rs. 5/-
per sq.ft. per month in case of delay in delivery of possession, but as the delay is only 22 days it can be ignored in view of not even completion of one month. If one is specific, charges have to be calculated for 22 days @ Rs.5 per sq.ft. per month. For the first time, after taking possession of villa no.25, the complainant no.2 sent an E-mail dt.26.2.2016 to RW.1 mentioning failure to provide 14 amenities viz. 1). Permanent wire free broadband connection infrastructure, 2).permanent wire free BSNL connection inírastructure, 3). Regular garbage disposal system, 4). Mail boxes setup, 5). Cleaning of open area, 6). Setting up of APMS to address villa concerns, 7).setting up protective mechanism to prevent rain water from creeping into the villa from terrace, 8). Leveling terrace surface area, so water would not stagnate, 9). ensuring the street lights are always turned on and having an Aparna Guy ensure that they work every night, 10). Ensure there are mirrors at the villa corners, 11) solar fencing,
12).electricity bill visibility, 13). Eradication of air pollution from some factory around Aparna and 14). Club House exclusively for Aparna Kanopy Lotus villa. On the same day under Ex.A7 opposite party senta reply mail stating that he has indicated the update in bluc colour against the points below and they will update on the further progress. As per the Agrccment bctwccn the partics to the comnplaint, the opposite parties shall continue the maintenancc or a period of two years and thercafter shall handovcr the maintcnancc part, to the owners association ol he Tesidents of Aparna Kanopy Lotus. It means the liability of opposite parties is upto 22.7.2016 as far as the complainants is Concerncd.
08) Ex.A8 is the reply mail sent by 2nd complainant to Ex.A7 in which he concentrated on two aspects viz i). to set up Aparna Maintenance Services at Aparna Kanopy Lotus, i) to setup club house in the near future cxclusively for Aparna Lotus. Ex.A9 is an attachment to Ex.A8 whercunder some more latches are pointed out which are like rain guarls installed at terrace claiming it as inesfective, security guards sleeping in the nights, securily guards cngaging in altercation with outsiders, requirement of strect lights as the snakcs are moving in the premiscs, of responsible to attend the maintenance appointment person aspect by recciving calls from the residents, frequent power fluctuations, generation of clectricity bills, formation of APMS ctC.
Written arguments submilted by the complainants would revcal that most of the cxchange of c-mails relate to the above c-mail relates uspects. In tabular forms, given thec details of cach to the problems mentioned therein. One can condense the entire Email correspondence on the aspects viz.:- club house, formation of APMs, water supply disconnection, bchavior of security personnel, power fluctuations, clectricity bills.
09). It is important to note that the electricity authorities are responsible for gencrating the bills and also deal with the power fluctuations. The opposite parties arc not expected to regulate the to see that the electricity authorities power fluctuations and als0 shall generate the bills on a particular day in a month, so the oppositc partics cannot be found fault on the above two aspects, whercas the strect lights inside the premises, garbage disposal1 incharge who are of system have to be attended by the persons maintenance of villas. After going through the correspondence, 8 one can observe that except PW.1 and 2nd complainant, other villa owners are not raising the disputes on these aspectós. The behavior of security personnel is also questioned by the complainants stating that they are careless, not obedient and not responding properly. In the evidence affidavit of RW.1 and in the written version, it is mentioned that, it is the complainants who are not properly treating the security personnel and other workers and that the complainants are not allowing the workers to enter into the house to attend the complaints, ill treating the workers and security persons. Neither side filed any supporting evidence to prove that other side is behaving indecently. When it is oath against oath, it is not proper to believe one among the two.
10). It is the contention of RW.1 and opposite parties that a club house was constructed for the other residents (who are residing other than Aparna Kanopy Lotus) and the complainants are given access to the said club house and they are not charged. It is also their contention that the complainants used the club house free of cost. To establish the same relied upon Ex.B5 statement which goes to show the residents of Villa no.25 i.e. thecomplainants used the Gym in the club house and not paid charges during the period from April 2016 to September,2018. Some other villa owners viz. Villa nos. 2,3,10,11,16,18,19,22,24, 26 and 49 have also not paid for using either gym , tennis court, swimming pool or table tennis. So, as contended by RW.1, services are extended for "gratis" to the complainants. The swimming chart dt.1.8.2019 to 9.8.2019 goes to show that, the 2nd complainant used the same on 2.8.2019 and signed thereon. It is contention of complainants that as the pre maintenance charges are collected, the alleged extension of service is not for "gratis". In para 11 of the written submissions of the complainants it is stated that, the complainants have paid maintenance charges at Rs.90,337/-. But those receipts are not filed. It is the argument of RW.1 that the amount collected at the inception, is not used so far towards the maintenance charges and it is kept intact. Ex.B3 goes to show that Aparna Kanopy Lotus Villa Welfare Association was registered on 1.10.2018. After formation of Owners Association, all the funds will be transferred by the developer to the owners association. No document is filed by the complainants to show that the collected 9 pre maintenance amounts are not given to the association or the opposite parties have appropriated the same. Ex.B4 is the Bye- laws of the Aparna Kanopy Lotus Villas Owners Welfare Association. Ex.B2 is the CD with photos. It goes to show that the club house for the Aparna Kanopy Lotus was constructed and handed over. In the written arguments, the complainants admitted that the club house was handed over on 28.7.2019.
construction and
11). Nearly there is a delay of 5 years in the handover of club house to the Owners Association. It is the services of alternative argument of the opposite parties that, as the club house are provided to the complainants free of cost, there is It is also their argument that in the no deficiency in service.
all the alternative club house which was used by the complainants facilities as pointed out in Ex.A4 are available. So it is argued at al. Here one with stress that there is no deficiency in service whether there has to step into the shoes of villa owners to assess club house of another or will be any difficulty for them to use a others even though it is provided for free of cost, when compared to usage of club house exclusively built for them. The feel 1 own other villa owners, in will not be there for the complainants and inconvenience while using the heart of heart, they will feel some mind there will club house of others and all the time in the back of be apprehension about somebody raising an objection for using villa owners.
the club house by the complainant and other It is the argument of the opposite parties that when they
12).
have planned 92 villas there were no bookings, as such by restructured to 30 and out of submitting a revised plan, villas are 30 even after 4 years from the date of agreement not more than occurred in 12 villas have occupied and for that reason, the delay Lotus. One can the construction of club house for Aparna Kanopy understand the plight and financial burden on the part of the opposite parties, but their liability cannot be absolved when they have specifically entered into an agreement to provide club house.
When the agreement is entered, clearly mentioning the construction of club house, it shall be done before the date fixed for delivery of possession. The builder or developer shall view all pros and cons in the construction of club house and other NCR 10 The moment an amenities by the time of entering into agreement. agreement is entered the developer is not supposed to give the reasons for non completion of amenities on time. Therefore, argument of extension of services by "gratis" cannot be accepted.
13). The claim of the complainant that security personnel with the outsiders etc., cannot be given any quarreling importance for the reason that one cannot judge how a person behave or react at a particular point of time. It all depends upon with whom at first they entered into and what is the reason for quarrel. The contention of PW.1 that they are feeling nuisance for the pollution of factories which were constructed out side the premises. It is not shown whether those factories were constructed subsequent to Ex.A1 or prior to it. The complainants are also at liberty to raise the issues with the concerned authorities for pollution. When the alleged factories are outside the premises, the opposite parties cannot be blamed for the same.
14). It is also the contention of the PW.1 that the back up generator is not placed in the place allotted to it. Specifically it is not shown where it has to be fixed. In such circumstances, the contention that, the backup generation is fixed some where but not at particular place has no legs to go on. The reply mails given by the opposite parties goes to show that, they are very courteous and exhibited concern to solve the issues. It is argued for the opposite parties, that some of the amenities as pointed out in Ex.A6 are not there either in the Agreement of Sale, Registered Sale Deed or the Construction Agreement.
Several times PW.1 pointed out that whenever there will be no water supply it shall be intimated to them in advance, but not after the water supply was being stopped. The mail correspondence shows that it is informed in the nick of time or after stoppage of water connection. It shows either the opposite not vigilant inn informing the residents or they parties are themselves might not have knowledge, when the water supply will be stopped by the authorities. These are the all trivial issues, but cannot be ignorcd because they are difficult to face in a given situation.
11It is also the contention of PW.I that the opponite parties have changed the outside modilications of villa cxteriors lo some of the villas by contravening the terms of the Agrcement of Sale and the Sale Deed which devalued their properly. We ure unable to understand how the modifications made o the cxteriors o other villas would devalue the villa of the complainant. Under a Agreement , the opposite partics might have modilied the cxteriors of other villas. Suppose if the exteriors of other villas are modilicd ina beautiful manner, the valuc of those villas will be enhanced, but there is no question of villa of the complainants being devalued. Over and above, the samc as per x.A24 , the opposile for a meeting with thc partics authorities fixcd thec date 20.2.2016 the said aspect. Iscems complainants t0 discuss on the inlormed not attended the mecting and not Complainants have is the result? They whether any talks had taken place, if so what for which also there is no also issued another E-mail under Ex.A26 the complainants a r e not pernitled reply. In thesc circumstances, to claim that their villa is devalued.
discussions so far made the entire
15). Taking a Bird's view on as supra, we a r c of the view that not provicding the club house for to inform about the water a period of 5 years, not diligent enough mental agony to the disconncction in advance, automatically c a u s c Sincc others have not filed complainants and other villa owners. any complaints, this Commission is restraining itself to grant any relief for them. We are of the view thal, the complainants arc entitled for compensation of Rs.1 lakhs for the mental agony and As points 1 sufferancc. The claim for the other relicls is negatived.
the complant is to to 3 are answered in favour fo the complainants, be allowed.
In the result, the complaint is partly allowed directing the
16).
sum of Rs.l lakhs as compensation
oppositc party no,1 to pay a
of the complainants within one
for mental agony and suffcrings
month from the date of order and rest of the claims are denied.