State Consumer Disputes Redressal Commission
M/S.Castle Construction Viskhapatnam vs Smt.Bobbili Rama Krishna Viskhapatnam on 19 December, 2008
BEFORE THE A BEFORE THE CIRCUIT BENCH OF A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT VISAKHAPATNAM. F.A.No.645/2007 against C.D.No.682/2004, District Forum-II, Visakhapatnam. Between: M/s.Castle Constructions rep. by its Sole Proprietor, Srinivasa Sagiraju, S/o.Venkata Subba Raju, Hindu, Aged 45 years, residing at 31-15-116, Upstairs of Singapore Plaza Shop, Dabagardens, Visakhapatnam. ..Appellant/ Opp.party And Smt.Bobbili Rama Krishna, W/o.Penata Vara Prasad Rao, Hindu, aged 41 years, Teacher, Residing at MIG-D/425, Sagar Nagar, Visakhapatnam-43. Respondents/ Complainant. Counsel for the Appellant: M/s.G.Rama Gopal Counsel for the Respondent:M/s.Vijaya Sagi QUORUM:THE HONBLE JUSTICE SRI D.APPA RAO, PRESIDENT. AND SMT.M.SHREESHA, MEMBER
FRIDAY, THE NINETEENTH DAY OF DECEMBER, TWO THOUSAND EIGHT Oral Order:(Per Smt.M.Shreesha, Honble Member) *** Aggrieved by the order in C.D.No.682/2004 on the file of District Forum-II, Visakhapatnam, opposite party preferred this appeal.
The brief facts as set out in the complaint are that the complainant entered into an agreement of sale with opposite party on 27-8-2002 for construction and delivery of flat No.13 in Mercury Castle situated at S.No.42/5, Chinnagadili Village within Municipal Corporation limits of Visakhapatnam. Opposite party received an amount of Rs.4,29,050/- in all from the complainant.
The complainant submitted that as per Para 2 Page 3 of the agreement, opposite party has to complete the construction of the said flat and handover possession of the same within 18 months from the date of agreement i.e. 27-8-2002 and the opposite party has to deliver the flat to her by 26-2-2004 and thus there is deficiency of service. The complainant, therefore got issued a legal notice dated 12-4-2004 demanding Rs.10,000/- per month for the delayed period from 27-2-2004 till the date of delivery of the flat. The complainant submitted that the opposite party having received the money, part of which was borrowed by the complainant for which she was paying interest and also paying rent for her accommodation in Sagarnagar and she is deprived of enjoying her flat. Hence the complaint for a direction to the opposite party to pay Rs.333.33 ps. per day from 27-2-2004 till the delivery of flat No.13, Mercury castle situated in S.No.42/5, Chinagadili Village together with damages of Rs.70,000/- and other costs.
Opposite party filed counter admitted that he received Rs.4,29,050/- from the complainant in different dates but submitted that the complainant did not pay the amounts promptly as per the agreement dated 27-8-2002. He admitted that he has to deliver the flat within 18 months from the date of agreement i.e. 27-8-2002 and submitted that the complainant did not pay the instalments on time as stipulated in the agreement dated 27-8-2002 as can be seen from the tabular form given by her in the complaint and therefore she herself is at fault as per the agreement dated 27-8-2002 and opposite party is entitled to interest @ 24% p.a. on the delayed payments. Similar agreements were entered with other flat owners and as per the respective flat owners tastes, interior works namely flooring, colours and other interior works will be carried out with the extra expenses borne by the respective flat owners. Such works will be carried out by the builder for additional works after payment of the costs of such works. The complainants wanted to have mosaic flooring and electrical works and as such a supplemental agreement was entered into between the complainant and the opposite party on 30-8-2002. As per clause V of supplemental agreement, the total cost of additional works to be carried out is Rs.66,200/- and on the date of agreement, the complainant paid a sum of Rs.1200/- as advance by way of cash and the balance amount of Rs.65,000/- shall be paid by the complainant to opposite party within one month from the date of supplemental agreement. After entering into the supplemental agreement, the complainant once again changed her mind and requested the opposite party to lay marble flooring instead of Mosaic flooring, ceramic tiles in toilets in the place of mosaic and agreed to pay the difference cost of marble flooring Rs.60,000/-. The complainant paid Rs.60,000/- to opposite party and has to pay Rs.15,000/- towards providing electric transformer and Rs.10,000/- towards providing lift and these amounts shall be borne by all the flat owners in addition to construction agreement but the complainant did not pay these amounts to opposite party. Therefore, he addressed a letter on 4-6-2003 to the complainant demanding payment of instalments to opposite party as the instalments are being delayed and he is entitled for interest @ 24% p.a. which was acknowledged by the complainant on 6-6-2003. Another letter was addressed to the complainant on 25-2-2004 requesting the complainant to pay an amount of Rs.40,000/- towards electricity charges and payment towards providing lift within 7 days otherwise the opposite party is entitled to interest @ 24% p.a. but the complainant did not respond to the said letter. Hence the opposite party filed a complaint O.S.No.414/2004 before the Principal Senior Civil Judge for recovery of an amount of Rs.1,49,500/- towards cost of additional works and interest on delayed payments and for the amenities provided and submitted that there is no deficiency of service and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A15 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposites party to pay Rs.2,000/- per month from 27-2-2004 till the date of delivery of flat together with costs of Rs.2,500/-.
Aggrieved by the said order, opposite party preferred this appeal.
The learned counsel for the appellant submitted that as per clause 9 of Ex.A1 agreement, dated27-8-2002, the complainant is not entitled for possession of the flat unless and until all the dues payable to the opposite party are paid. The opposite party has addressed letters demanding outstanding amount dated 4-6-2003 and 25-2-2004 and the complainant failed to pay these amounts and hence opposite party had filed O.S.No.414/2004 on the file of Civil Judge, Visakhapatnam for recovery of Rs.1,49,500/-. The complainant after receiving summons in O.S.No.414/2004 filed C.D.No.682/2004 claiming damages for the alleged non delivery of the flat within 18 months from 27-8-2002. Opposite party also filed I.A.No.3/2004 seeking summons to the officials of S.B.H. to produce the loan transaction account of the complainant since a cheque for Rs.73,650/- of the complainant was not allowed to be disbursed by the State Bank of Hyderabad. Since the complainant failed to pay the outstanding amounts and a suit is pending for recovery, possession was not given and therefore there is no deficiency of service on their behalf.
We have heard both sides.
Ex.A1 is the Construction Agreement dated 27-8-2002 for delivery of flat No.13 and it is an admitted by the opposite party in their counter that they received Rs.4,29,050/- from the complainant on different dates. It is also an admitted fact that the flat has to be delivered within 18 months from the date of agreement i.e. 27-8-2002 by the appellant. As per Supplement agreement, Ex.A2, the complainant has to pay Rs.65,000/- towards provision of Mosaic flooring and the best quality concealed copper electrical wiring. We observe from the record that there is no statement of account filed by the opposite party in support of their contention that there are some dues from the complainant.
While it is an admitted fact that the possession of flat No.13 was not given to the complainant by 26-2-2004 i.e. 18 months after the date of agreement, the opposite partys contention that there is deficiency of service on their behalf because of the civil suit O.S.No.414/2004 filed by them for recovery of the amounts from the complainant is unsustainable. It is the case of the opposite party that the complainant is due an amount of Rs.73,650/-, the details of which are given as follows:
1. Amount payable under main agreement dated27-8-2002 Rs.2,10,000-00
2. Site Cost Rs.1,04,000-00
3. Registration charges for all documents Rs.
20,000-00
4. Supplement agreement dt.30-8-2002 Rs. 66,200-00
5. Marble flooring and polishing Rs.
60,000-00
6. Excess S.Ft. Rs. 17,500-00
7. Lift and Transformer Rs. 25,000-00 Total Rs.5,02,700-00 Less Amount paid through Banker and directly through the complainant Rs.4,29,050-00
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Rs. 73,650-00 =========== and that they filed O.S.No.414/2004 for recovery of this amount of Rs.73,650/- with interest at 24% p.a. and other damages.
As against this the complainant submits that there is no mention in the Supplemental Agreement dated 30-8-2002 about the excess S.Ft. and that he never agreed for paying for 35 S.Ft. excess area to be constructed and that he is not liable to pay the amount of Rs.73,650/- as alleged by the opposite party and that both these issues are subject matter in O.S.No.414/2004. The contention of the appellant/opposite party that the complainant did not pay the amounts in time has not been substantiated by any documentary evidence including his own statement of account.
Taking into consideration that the complainant admittedly paid Rs.4,29,050/- to the opposite party and the appellant failed to establish that there was delay in these payments and also taking into consideration, clause 2 of Ex.A1, agreement, dated 27-8-2002, wherein appellant has to deliver the flat within 18 months, i.e. 27-2-2004, the act of the appellant in not giving possession of the flat amounts to deficiency in service and we see no reason to interfere with the well considered order of the District Forum.
In the result this appeal fails and is accordingly dismissed. Time for compliance four weeks.
PRESIDENT. LADY MEMBER.
Dated 19-12-2008