State Consumer Disputes Redressal Commission
Smt.P.Neela Chowdary Hyderabad vs M/S.Udayasri Constructions Hyderabad on 18 July, 2011
It is the complainants case that M BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. F.A.No.409/2009 against C.C.No.132/2007, District Forum, RANGAREDDY DISTRICT. Between Smt.P.Neela Chowdary Aged about 57 years, Occ:Housewife Rep. by her G.P.A. holder C.Pakeerappa S/o.C.Buchappa, aged about 63 years, Occ:Retd.Employee, R/o.Flat No.306, 2nd Block, C.B.R.Estate, Deepthi Srinagar Madinaguda Village, Hyderabad-60. ..Appellant/ Complainant And M/s.Udayasri Constructions Rep. by its Managing Partner M.JaganReddy S/o.late Venkat Reddy Aged about 45 years, Occ:Business, R/o.Flat No.S4, 2nd floor, Kalyani Residency, Guttala Begumpet, Madhapur, Hyderabad. Respondent/ Opp.party. Counsel for the Appellant : M/s.C.S.N.Raju. Counsel for the Respondent: M/s.M.Lakshma Reddy QUORUM:THE HONBLE JUSTICE SRI D.APPA RAO, PRESIDENT AND SMT.M.SHREESHA, HONBLE MEMBER
MONDAY, THE EIGHTEENTH DAY OF JULY, TWO THOUSAND ELEVEN (Typed to the dictation of Smt.M.Shreesha, Honble Member) **** Aggrieved by the order in C.C.No.132/2007 on the file of District Forum, Ranga Reddy District, the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant is the absolute owner of premises bearing plot Nos.38, 39, 40 and 41 in S.No.69 admeasuring about 800 sq. yds. situated at Anandnagar Colony, Kondapur, R.R.District. The complainant intended to develop the property by constructing multistoried building for residential purpose and obtained sanction of Municipal Corporation and entered into a Development Agreement dated 20-1-2005. As per the development agreement, the opposite party is entitled to retain 60% of the total constructed area and remaining 40% of the constructed area shall be the exclusive property of the complainant which comes to 7 flats and 13 units.
The complainant submitted that the 7 flats were handed over by the opposite party to her on 19-11-2006 but left unfinished works and she has brought the same to the notice of the opposite party vide notices dated 26-10-2006, 05-1-2007 and 25-7-2007. It is her case that from October, 2006 till date various repairs pertaining to her 7 flats have remained unattended to by the opposite party and the opposite party in the presence of flat owners who have purchased flats from him in the meeting held on 04-2-2007 assured to complete the works and hand over the flats to the welfare association but till date failed to complete the works in the flats falling to the share of the complainant. It is her case that opposite party used low quality material for sanitary works, works in common areas like terrace, flooring near water tank area has been left incomplete, the iron ladder fixed to water tank is not strong enough to step in, side polishing stone pieces to be fixed on the side of step walls, railing of the compound wall to be constructed in decorative way, cement slabs on the drainage line to be provided, putting iron clamps to drainage pipes with wall, levelling of cellar where rain water is getting stored a lot, partly completed other works like construction of left over works of single bedroom, electricity connections are not checked, calling bell connections and water taps are not checked, scooter car parking area not properly marked and putting tiles @ 3 sides of washable area in 7 flats and all other flats etc. The complainant subsequently entered into a memorandum of understanding dated 08-9-2006 with the opposite party according to which the opposite party agreed for construction of a single bed room flat (one bed room, kitchen and toilet not less than 600 sft) in the cellar without any share to him in place of the pent house to the complainant. On 16-11-2006 opposite party assured to complete the work of the single bed room in the cellar within 15 days but the same is still in the same position unattended to. It is the case of the complainant that as per the Development agreement, she is entitled to damages of Rs.2,500/- per month for each flat from the opposite party, in the event of his failure to complete the construction as per the terms and conditions of the agreement. Therefore, she got issued a legal notice on 01-8-2007 calling upon the opposite party to complete the left over works which was received by the opposite party on 13-8-2007. Hence the complaint for a direction to the opposite party to pay Rs.3,50,000/- to the complainant towards repairing of left over work, to pay Rs.2,500/- per month towards each flat of the complainant from 20-1-2006 till today as per clause 13 of development agreement, to pas orders to take up remaining left over and uncompleted work of single bed room by the opposite party, to pay Rs.50,000/- towards units (sft 13) against 40% share to land owner as per the agreement together with compensation of Rs.50,000/- and costs of Rs.10,000/-.
Opposite party filed counter admitting the development agreement and handing over of seven flats to the complainant. Opposite party stated that in pursuance of the development agreement, the complainant received Rs.7,00,000/- from it as security deposit and also Rs.2,00,000/- in connection with the offence under Domestic Offences Act to settle the issue with her daughter in law. The complainant returned Rs.5,00,000/- out of the total amount of Rs.9,00,000/- borrowed from it and is still due Rs.4,00,000/-. When it pressurized the complainant for payment of the balance of Rs.4,00,000/-, she requested time that she was negotiating to alienate her share of flats and obtained signatures including thump impressions on the blank stamp papers as well as white papers promising that she would use the same as no objection letters or affidavits as desired by the prospective purchasers. The opposite party denied the allegation with regard to construction of single bed room in the cellar and submitted that they gave a suitable reply to the legal notice issued by the complainant and submitted that there is no deficiency in service on their part and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A6 and C1, the Advocate Commissioners report and the pleadings put forward, the District Forum partly allowed the complaint directing the opposite party to complete the terrace flooring at water tank area if not already completed, to raise railing i.e. compound wall to the agreed height as per the development agreement, to check electricity connection, call bell connection, water tap connection and replace any part if it is found to be damaged or defective, to mark scooter and car parking area in the cellar to all flat owners who are entitled to as per the agreement or sale deed to pay costs of Rs.2,000/- to the complainant.
Aggrieved by the said order, the complainant preferred this appeal.
The brief point that falls for consideration is whether the complainant is entitled to compensation towards repairs of left over works, and amount of Rs.2,500/- per month towards each flat from 20-1-2006 as per clause 13 of the development agreement and completion of single bed room flat by the opposite party, Rs.50,000/- towards mental agony and Rs.10,000/- towards costs.
It is the complainants case that she entered into a development agreement dated 20-1-2005 evidenced under Ex.A1 with the opposite party as per the terms of which 40% of the constructed area i.e. 7 flats and 13 units would be towards the complainants share. The learned counsel for the appellant/complainant submitted that there were several incomplete works like flooring near the water tank area, fixing of side polishing stones, cement slabs on drainage line, iron clamps on drainage pipes, usage of better quality sanitary material, works in the terrace, levelling of the cellar and rectifying the water tanks, electricity connection, calls bells etc., Ex.A2 is the Memorandum of understanding entered into between the complainant and the opposite party on 8-9-2006 as per which the builder has agreed for a single bed room flat in place of the pent house and flat No.s G1, G5, G6, F1, F6, S1, S6 totally an area of 7115 sq. ft. and 7 car parking places together with a single bedroom flat was allotted to the complainants share. It is the complainants case that inspite of the memorandum of understanding the opposite party did not complete the unfinished works and also the work in the single bed room flat and therefore got issued Ex.A4 legal notice on 01-8-2007 for which the opposite party replied vide Ex.A5 on 27-8-2007 stating that the complainant has an amount of Rs.4,00,000/- which has to be given to the opposite party. It is pertinent to note that the respondent/opposite party has not filed any documentary evidence that the appellant owes him an amount of Rs.4,00,000/-. The memorandum of understanding is also silent about this amount of Rs.4,00,000/- and instead positively assigns the seven flats together with a single bed room flat to the complainant herein. This memorandum of understanding is not denied by the opposite party. The District Forum has directed the opposite party to complete the terrace flooring at the water tank area, to raise the railing i.e. compound wall to the agreed height, to check the electricity connection, call bell connection, water tap connection and replace it any part of it is found defective, to mark scooter and car parking area in the cellar to all the flat owners together with costs of Rs.2,000/-.
Ex.C1 is the Advocate Commissioners report based on which the District Forum has allowed the aforementioned incomplete works. It is pertinent to note that the development agreement was entered into on 20-1-2005 and as per clause 5 of the agreement, the construction should have been completed within 12 months from the date of agreement i.e. 20-1-2006 and another three months time should be extended and atleast by 01-4-2006 the construction ought to have been completed and it is the complainants case that the 7 flats were handed over on 19-11-2006 and she seeks rental loss of Rs.2,500/- per flat for this period as per clause 13 of Ex.A1. Clause 13 of the development agreement reads as follows:
13. That the first party shall be entitled to claim damages of Rs.2,500/-
per month from the Second party, in the event the Second party fails to complete the construction as stipulated above.
Subject to there being any delay due to any title dispute, boundary dispute. But no extension of time shall be operated/granted for any reason due to delay in any suit, claim, proceedings due to any act or deem (deed) done by Second party.
In view of the aforementioned clause and taking into consideration, the three months extended period, the complainant is entitled to rental loss from 01-4-2006 till 19-11-2006 i.e. for a period of six months approximately for which the complainant is entitled to Rs.2,500 x 6months x 7 flats = Rs.1,05,000/-. Based on the Commissioners report, we do not see any grounds to further allow the complainants claim towards unfinished works.
We direct the opposite party to complete the single bed room flat as promised in Ex.A2, memorandum of understanding dated 08-9-2006. The contention of the opposite party that the complainant has to pay some amounts does not figure in the memorandum of understanding and therefore we find this contention unsustainable and we are of the considered view that the complainant is entitled to the single bed room as per Ex.A2, MOU. It is also pertinent to note that the opposite party did not prefer any appeal.
In the result this appeal is allowed in part and the order of the District Forum is modified and in addition to the reliefs ordered by the District Forum, we direct the opposite party to pay an amount of Rs.1,05,000/- towards rental loss and also to complete the single bed room flat as promised under Ex.A2, MOU within eight weeks from the date of receipt of this order while confirming the rest of the order of the District Forum. There shall be no order as to costs in this appeal.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.
18-7-2011