State Consumer Disputes Redressal Commission
The Landmark Flat Owners Association vs 1. Prem Kumar Sanghi Huf on 21 August, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana Complaint Case No. CC/256/2013 1. The Landmark Flat Owners Association Regd No. 1092/2011The Land Mark Apatments, Plot No.29 and 39, J.J. Colony, Ashok Manoj Nagar, Behind Saketh Sriyam Towers, Kapra, Hyderabad. ...........Complainant(s) Versus 1. 1. Prem Kumar Sanghi HUF S/o. Late M.L. Sanghi R/o. 3-6-97/301, IHSAN Surabhi Arcade Basheerbagh, Hyderabad. 2. 2. Prem Kumar Sanghi S/o. Late M.L. Sanghi R/o. 3-6-97/301, IHSAN Surabhi Arcade, Basheerbagh, Hyderabad. 3. 3. Smt. Sushma Sanghi W/o. Prem Kumar, Sanghi, R/o. 3-6-97/301, IHSAN Surabhi Arcade, Basheerbagh, Hyderabad. 4. 4. Nilesh Agarwal, S/o. Kamal Narayan Agarwal, R/o. Flat No.32, Maheshwari Residency, Adarsh Nagar, Hyderabad. 5. 5. Kamal Narayana Agarwal R/o. Flat No.32, Maheshwari Residency, Adarsh Nagar, Hyderabad. 6. 6. Sanjay N Gupta S/o N.L. Gupta, 4-6-90/2C/PC, Pearl County,Villa No. 30, Attapur, Rajendranagar Mandal, R.R. Dist. 7. 7. Sandeep N Gupta S/o. Narothamlal B Gupta, R/o. Flat No.501, Trendset, Hill Top Apartment, H.No. 11-4-646/B-2, A.C. Guards, Hyderabad. 8. 8. M/s. Prestige Avenues Ltd., rep. by its MD. Door No.1-10-44, 402 B, Technopolis, Hyderabad. 9. 9. M/s. KVA Crystal Estates Pvt. Ltd., Rep. by its MD Door No.13-6-445/A/2, Crystal Gardens, Mehdipatnam, Hyderabad-28. 10. 10. M/s. Kanakadhara Ventures Pvt. Ltd., rep. by its MD, 6-6-2-10, Flat No.402, Temple View Residency, Lakdi-Ka-Pul, Hyderabad. 11. 11. M/s. Pruthvi Avenues Pvt Ltd., rep. by its MD, House # 8-2-686/7/9, Road No.12, Banjara Hills, Hyderabad. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Complainant: For the Opp. Party: Dated : 21 Aug 2017 Final Order / Judgement BEFORE STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA : AT HYDERABAD CC NO.256 OF 2013 Between : The Landmark Flat Owners Association (Reg.No.1091/2011) The Land Mark Apartments Plot No.29 &39, JJ Colony Ashok Manoj Nagar, Behind Saketh Sriyam Towers Kapra, Hyderabad rep. by its President R.K.Praveen Kumar S/o R.K.Narayana, Hindu aged about 41 years ...Complainant A N D Prem Kumar Sanghi (HUF) S/o late M.L.Sanghi Prem Kumar Sanghi S/o late M.L.Sanghi Smt Sushma Sanghi W/o Prem Kumar Sanghi (Ops No.1 to 3 are R/o R/o 3-6-97/301, IHSAN Surabhi Arcade, Basheerbagh, Hyderabad 4. Nilesh Agarwal S/o Kamal Narayan Agarwal 5. Kamal Narayana Agarwal (Ops No.4 & 5 are R/o 32, Maheshwari Residency Adarsh Nagar, Hyderabad 6. Sanjay N Gupta S/o N.L.Gupta 4-6-90/2/C/PC, Pearl County, Villa No.30, Attapur, Rajendranagar Mandal R.R.District 7. Sandeep N Gupta S/o Narothamlal B Gupta R/o Flat No.501, Trendset, Hill Top Apartment H.No.11-4-646/B-2, A.C.Guards, Hyderabad 8. M/s Prestige Avenues Ltd., rep. by its MD Door No.1-10-44, 402 B, Technopolis Hyderabad 9. M/s KVA Crystal Estates Pvt Ltd., Rep. by its MD Door No.13-6-445/a/2, Crystal Gardens, Mehdipatnam, Hyderabad-28 10. M/s Kanakadhara Ventures Pvt Ltd., Rep. by its MD, 6-6-10, Flat No.402, Temple View Residency, Lakdi-Ka-Pul Hyderabad 11. M/s Pruthvi Avenues Pvt Ltd., rep. by its MD House # 8-2-686/7/9, Road No.12, Banjara Hills Hyderabad ...Opposite parties Counsel for the Complainant : M/s K.Sridhar Rau Counsel for the Opposite parties No.1to3 : M/s K.Visweswara Rao Counsel for the Opposite parties No.4&5 : Served Counsel for the Opposite party No.6 : Nand Kishore Rathi Counsel for the Opposite parties No.7&8 : Served through publication Counsel for the Opposite party No.9 : Sri P.Venkata Ramana Counsel for the Opposite party No.10 : Sri B.Bhaskar Rao Counsel for the Opposite party No.11 : Served QUORUM : HON'BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT & SRI PATIL VITHAL RAO, MEMBER
MONDAY THE TWENTY FIRST DAY OF AUGUST TWO THOUSAND SEVENTEEN Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** This is a complaint filed by the Complainant seeking directions to the Opposite parties to complete the following pending works:
Installation of pending lfits - 4 lifts Installation of lift for amenities building Installation of Diesel Generator Completion of Club House and related amenities with All facilities Completion of cellar Allotment of Parking space for the owners as well as visitors Sewerage treatment plant Operational worthiness of fire fighting system Creche for children Completion Amphi theatre Repairs and leveling walker platform Repair of water stagnation points in the drive way Display of the flat owners at the visible place Post Boxes for the flat owners at the entrance/Ground level in visible place.
Manjeera Drinking Water Connection from HMWS Completion fo Drainage both internal and external Drainage lines inside the Flats - Flats 19 & 24 Landscaping of all around the Apartment Building as Mentioned in the brochure including the gap between the flats Internal Cabling for TV & Telephone Inter Com connection from security to each flat Placement of Notice Boards at the appropriate place around the flats To pay compensation of Rs.1,00,000/- and costs.
2. The brief facts of the complaint are that the complainant association is registered under Societies Act, with registered No.1092/2011. Opposite parties no.1 to 7 are the owners of land admeasuring 12668 sq.yds in Sy.Nos.386 to 389 situated at Old Kapra Village, R.R. District and they entered into a development agreement dated 25.08.2006 with the opposite parties no.8 and 9 for construction of residential apartment. The construction was to be completed within a period of 36 months from the date of permit dated 13.08.2007 by GHMC. Subsequently, the opposite parties no.8 and 9 executed irrevocable power of attorney dated 16.10.2006 in favour of the opposite parties no.10 and 11 for development of the said property. As per the terms of original development agreement executed between land owners and opposite parties' no.8 and 9 and subsequent irrevocable power of attorney executed in favour of opposite parties no.10 and 11, the project ought to have been completed by 13.02.2011. The development agreement also contains penalty clauses for delay in completion of the project beyond stipulated period. As per the brochure issued by the opposite party no.10, he had to provide 8 passenger lifts and 2 service lifts, generator back up for lifts and common areas, adequate water supply through municipal and borewells, crèche for children, intercom connection, landscaping, sewerage treatment plant, BSNL telephone and internet connections, club house, swimming pool, amphi theatre etc.
3. The case of the complainant association is that though the opposite party no.10 not completed the project as per the brochure executing of sale deeds by the owners and developers even prior to completion of the project amounts to deficiency of service and unfair trade practice on the part of the opposite parties. Inspite of various discussions held on 14.10.2012, 03.03.2013 and 23.03.2013 and minutes were recorded the opposite party no.10 failed to complete the following works:
Installation of pending lifts - 4 lifts Installation of lift for amenities building Installation of Diesel Generator Completion of Club House and related amenities with All facilities Completion of cellar Allotment of Parking space for the owners as well as visitors Sewerage treatment plant Operational worthiness of fire fighting system Creche for children Completion Amphi theatre Repairs and leveling walker platform Repair of water stagnation points in the drive way Display of the flat owners at the visible place Post Boxes for the flat owners at the entrance/Ground level in visible place.
Manjeera Drinking Water Connection from HMWS Completion fo Drainage both internal and external Drainage lines inside the Flats - Flats 19 & 24 Landscaping of all around the Apartment Building as Mentioned in the brochure including the gap between the flats Internal Cabling for TV & Telephone Inter Com connection from security to each flat Placement of Notice Boards at the appropriate place around the flats
4. The complainant got the cost estimated for the above said works by an Engineer and as per the Engineer's estimate, it works out to Rs.97 lakhs.
5. The builder failed to pay the balance amounts to water works for getting Manjeera water connection and thereby the members of the complainant association forced to purchase drinking water from outside. When the developers and owners failed to complete the project in all respects the complainant association issued notice dated 28.02.2012 to the opposite party no.10 by bringing all the facts before it. Even thereafter various meetings were held between the representative of the owners, opposite party no.10 and flat owners and in the course of discussion it was agreed that the allotment of parking place would be completed by 30.11.2012, balance lifts to be installed by 15.01.2013, gym, swimming pool will be completed by 15.11.2012, 125 KV generator to be installed by 15.01.2013 and completion of intercom connections.
6. Again multiple meetings were held on 03.03.2013 and 20.03.2013 and in the said meetings it was agreed by the builder and the owner to complete the allotment of car parking, providing of Manjeera water installation of lifts by and gym etc., by certain dates. But when the opposite party no.10 failed to complete the works as promised in various meetings, the complainant addressed a letter dated 20.06.2013 to the opposite party no.10 and thereafter got issued legal notice on 31.08.2013 to the opposite parties. The notices were served on the opposite parties no.4 to 6, 9 and 10 and the notices were returned unserved on the opposite parties no.7 and 8.
7. Manjeera water was sanctioned in the year 2010 but the builder had not paid the entire amount of Rs.40.55 lakhs to the water works and only Rs.27.63 lakhs was paid till the date and due to that there is no Manjeera water connection in the entire complex. Hence, the complaint with the reliefs as stated in paragraph no.1 supra.
8. Opposite party no.2 filed written version which was adopted by the opposite parties no.1 and 3. Opposite party no.2 resisted the case contending that there is no privity of contract since the complainant association neither hired any service for consideration nor it has any locus standi to maintain the complaint. The complaint filed by the Flat Owners Association is not maintainable under the provisions of C.P. Act. The possession of the flats were delivered during January 2009 and if there are any discrepancies it is to be pointed out within two years as contemplated u/s 24-A of C.P. Act. The complainant addressed first notice on 28.02.2012 whereas the complaint was filed on 09.12.2013 is barred by limitation.
9. The development agreement has been entered by the opposite party no.2 together with other opposite partis with M/s Prestige Avenues Ltd.,a nd M/s KVA Crystal Estates Pvt Ltd., and according to the clause No.7 of the Development Agreement, the developer shall with his own funds develop the property with their own funds and deliver 34% of the proportionate built up area together with parking, common areas, circulation areas, balcony areas to the land owners and the remaining area of 66% of the property to the developer. If the developer failed to provide the amenities, it is the responsibility of the developer to make good for the same to the flat owners and the opposite parties no.1 to 3 being the land lords are not responsible for not providing the amenities and lack of facilities. The minutes of meeting referred in the complaint does only reveal that the allotment of car parking alone agreed by the land owners but the rest of the things said to have been agreed to be attended by the developers as such, the land lords cannot be found fault with for not attending to the works as the same is the responsibility of the developers and not the responsibility of the opposite parties no.1 to 3. No notice has been given to the opposite parties sno.1 to 3 while taking the engineer estimation and moreover the engineer who gave the estimation did not file his affidavit to support the said estimation. As per the decision of the Hon'ble Supreme Court mere certificate without there being any affidavit of the person who issued the certificate is not sustainable in law. Hence, the opposite parties no.1 to 3 prayed for dismissal of the complaint.
10. Opposite partyno.9 resisted the case contending that the very formation of association is illegal and as such the complainant association cannot maintain the complaint. The association registered under the Societies Registration Act cannot represent the interests of the apartment owners, more particularly, when complainant association does not represent most of the owners of the apartments in the complex. The Development Agreement cum General Power of Attorney was executed by the opposite parties no.8 and 9 in favour of the opposite parties no.10 and 11 whereby the responsibility of constructing the residential complex in terms of the said Development Agreement-cum-GPA dated 25.08.2006 in favour of opposite parties no.8 and 9 was transferred to the opposite parties no.10 and 11. Further, as per clause No.51 of the Development Agreement cum General Power of Attorney in favour of opposite parties 10 and 11 dated 16.10.2006 , the opposite parties no.8 and 9 were not responsible for any defects in construction and opposite parties no.10 and 11 are only responsible for defects in construction. The brochure is not issued by the opposite party no.9. Development Agreements do not contain any clauses regarding handing over of the premises to the Association of Owners residing in the said complex. The residential apartment complex was completed as per the sanctioned plan issued by the GHMC in all respects and thereafter the GHMC has issued Occupancy Certificate dated 21.04.2011 and therefore the complainant cannot raise any grievance at this belated point fo time after three years after issuing the completion certificate and occupancy certificate by the GHMC. Hence, it is prayed for dismissal of the complaint.
11. Opposite party no.10 resisted the case by contending that the complainant association is not recognized by many of the purchasers of the flats and inmates of the apartments including the opposite party and land owners who are in possession of the flats in their names. The opposite party no.10 is paying all electricity charges for the usage of lifts, lighting in open corridors, common and parking areas and water charges for supply of usage and drinking water consumed by the inmates including the members of the society by collecting the minimum maintenance charges and some of the members of the complainant society are not paying even the said minimum charges to the opposite party no.10. The entire building has provision for 9 lifts and 5 lifts has been erected to cater the needs of the present conditions. The remaining amenities including lifts in building shall be installed immediately on receiving the due amounts form the purchasers of the flats. The generator was installed and is running and catering to the present needs. Club house is already provided and it will be fully functional ones amounts dues from all the flat owners are collected. Cellar is already completed long back and parking spaces also allotted by the land owners to their purchasers and the opposite party no.10 has also allotted those purchasers who have paid full amount of sale consideration. The firefighting system was installed long back and it is operational. Amphi theater is already completed and in use. Major repairs to walking platform was completed and in regular usage. The other minor repairs if any are for the use of inmates for which the opposite party no.10 is not responsible. Water stagnation in drive way road is natural undulation which is due to usage. Creche for children, display of owners names are not in the scope of works to be provided by the opposite party no.10. The internal and external drainage was already completed long back. Provision for cable TV and telephone lines were made at the time of construction of the building. Sewerage treatment plant is an extra item planned by the opposite party no.10 which is an extra precaution only. The opposite party no.10 is not responsible to provide the same since there is no condition or promise by this opposite party. However, this opposite party had paid major part of charges amount to HMWSSB which will take care of sewerage of flats. The letters being dropped at security room and it is the duty of the owners to collect their own letters and this opposite party is not responsible to provide Post Boxes for each flat. The opposite party no.10 had already paid 70% amount of the required fee to HMWS for Manjeera Water connection despite many of the flat owners failed to pay the amounts due to this opposite party. However, drinking water is provided in tankers in regularized basis by this opposite party only. Intercom connection from security room to each flat, is neither promised by nor responsibility of this opposite party. However, this opposite party has contacted with BSNL authorities and it promised one BSNL connection crossing more than 25 and they agreed to give one connection as required for security room. The main cause for not completing the project in full is only due to shortage of funds caused by non-payment of amounts due from purchasers of flats. Hence, the opposite party no.10 prayed for dismissal of the complaint.
12. The complainant association in proof of its case filed the evidence affidavit of its President and got Exs.A1 to A18 marked while on behalf of the opposite parties no.1 to 3, the opposite party no.2 filed his affidavit evidence, on behalf of the opposite party no.9, the Director has filed his affidavit and on behalf of the opposite party no.10, the Managing Director has filed his affidavit and got Exs.B1 to B3 marked.
13. Complainant present in person. Counsel for the opposite parties no.1 to 3 and 9 present. No representation for the opposite parties no.6 and 10. Written arguments of the complainant, opposite parties' no.1 to 3, 9 and 10 filed. Heard the complainant in person and the opposite parties no.1 to 3 and 9. Counsel for both sides present and filed their respective written arguments.
14. The points that arises for consideration are :
1. Whether there is any deficiency in service on the part of the Opposite parties?
2. To what relief ?
Top of Form
15. POINT NO.1: The opposite parties no.1 to 7 are the owners of land entered into development agreed dated 25.08.2006 with the opposite parties no.8 and 9 for construction of residential apartments. Subsequently, the opposite parties no.8 and 9 on 16.10.2006 executed irrevocable power of attorney in favour of opposite parties no.10 and 11 for development of the said property upon which the building Land Mark was constructed after obtaining permission from the Greater Municipal Corporation of Hyderabad on 13.08.2007 and the members of the complainant association have entered into agreements on various dates and got executed sale deeds on different dates in respect of the respective flats. The complainant association was formed and registered under the A.P. Societies Registration Act on 23.10.2011
16. Maintainability of the complaint is challenged on the premise that the complainant-association has no locus standi to file the complaint for the reliefs sought for on the foot of its objects mentioned in the complaint which do not provide scope therefor and that the representative of the complainant-association has no proper authority to file the complaint. It is contended by the learned counsel for the opposite parties that the complaint is not maintainable by, the complainant.
17. The certificate of registration bearing document number 1092 of 2011 would show that the complainant association is registered under the Andhra Pradesh Societies Act, 2001 on 23.12.2011. The complainant association has filed Aims and Objects to rebut the challenge as to the maintainability of the complaint on the aspect of the relief sought for beyond the scope of its objects and contended that the objective for formation of the complainant association is maintenance and welfare of the flat members.
18. Section 12(1) (b) of the Consumer Protection Act, 1986, to the extent it is relevant, provides that a complaint in relation to any service provided or agreed to be provided, may be filed by any recognized consumer association whether the consumer to whom the services provided or agreed to be provided is a member of such association or not. The explanation below Section 12 provides that the recognized consumer association means any voluntary consumer association, registered under the Companies Act, 1956 or any other law for the time being in force.
19. The complainant before us claims to be a voluntary consumer association and it has been registered under the provisions of the Societies Registration Act. Therefore, it is a recognized consumer association, within the meaning of Section 12(1)(b) of the Consumer Protection Act. It would be seen from a perusal of the aforesaid provision that the Statute has not been placed any restriction as regards the nature of the complaint which a recognized consumer association can file. Even an individual case of the deficiency in service can be taken up by a recognized consumer association by way of a complaint before a Consumer Forum. The very fact that the Act permits such an association to file complaint even on behalf of a consumer, who is not its member, is a clear indication that a Legislature wants to confer the same rights on such an association as are available to a consumer, in a case where the services rendered to a consumer are found to be deficient or defective. In a given case, if the reliefs claimed are unconnected to each other being founded on different causes of action, there may be a valid objection to the maintainability of the complaint on the ground of misjoinder of the causes of action. But, where the reliefs claimed are of the same nature and against the same person, such an Association, in our view, is competent to file a complaint for and on behalf of all the persons, who approach the Association in this regard.
20. Here in the present matter all the flat purchasers have already formed an Association and after passing the necessary resolution complaint is filed by the President of the Society. It means, the complaint was filed by all the flat purchasers who have formed the Association and they have authorized President of the Association to file complaint for the Association i.e. for and on behalf of all the members of the Association. The members of the Association have purchased the flats for consideration and entire consideration was paid and possession of respective flats was given to respective flat purchasers by the opposite parties and these facts are not disputed. All the flat purchasers have formed the Association and as per the resolution of the members of the Association the complaint has been filed by the Association through the President of the Association.
21. The case of the complainant is that inspite of executing sale deeds the developer i.e., opposite party no.10 failed to complete the project as per the brochure. The complainant association several times held discussions on 14.10.2012, 03.03.2013, 23.03.2013 and to that effect minutes were recorded but the opposite party no.10 did not heed to their resolutions, letters, notices etc. Therefore, the complainant association got estimated the pending works with an Engineer and he estimated the works at Rs.97 lakhs. The complainant also contended that the builder failed to pay the balance amounts to works for getting Manjieera water connection due to that they deprived of water and they are forced to get water tankers by paying additional amounts to the supplier.
22. The opposite parties have denied their liability either to pay any amount or to carry out any of the work shown in the complaint. The complaint association has relied upon the specifications and amenities mentioned in the brochure, estimation of the engineer and Development agreement-cum-Irrevocable General Power of Attorney whereas the opposite party no.10 relied upon certified copies of Development agreement-cum-GPA dated 25.08.2006, 16.10.2008 and occupancy certificate issued by GHMC. The complainant has contended that the opposite party no.10 is bound by the representation made in the Brochure. In the light of the statement of the first opposite party that the first opposite party and the purchasers are bound by the terms of the Brochure, there cannot be any dispute as to the terms of the Brochure. The Brochure is part of the promise made by the opposite parties and it is also affirmed by the Honble National Commission in Brig.(Retd) Kamal Sood vs M/s DLF Universal Ltd 2007(3) CPJ 7 wherein the National Commission observed ;
Therefore, it cannot be said that the condition contained in the contract would only prevail and not the terms of the brochure which is an alluring promise given by the builder. If the contention of the learned counsel for the DLF is accepted that the terms of the agreement would prevail and not what is stated in the brochure, then it would amount to misleading advertisement with false promise to lure the needy prospective buyers. This would also be unfair trade practice as provided under Section 2(1) of the Consumer Protection Act. Such brochure also gives undue advantage to the builder vis-vis other builders. Hence, the said contention cannot be accepted.
23. The specifications mentioned in the Brochure are:
Specifications Structure : R. C. C. Framed structure Super Structure : Red Bricks with cement mortar (9" thick for exterior and 4 ½" thick for internal walls.
Walls Plastering: Plastered with cement mortar and finished with NCL altech lappum for internal walls Walls Finishing: Oil Bound distemper on all external walls finished with exterior weather proof exterior paints.
Flooring: Vitrified tiles in the flats and marble flooring in the common areas Kitchen: Black granite platform with 2 feet glazed tiles dado with stainless steel sink Toilets: Ceramic tiles on floor (acid resistance/anti-skid) and walls tiles upto 6 feet with good quality feetings Main Door: Teak wood frame and Teak wood shutter with polish and brass fitting Other doors: Teak wood frames and termite - proof flush doors with powered quoted fitting Windows grill: Teak wood frames and termite-proof flush doors with powder quoted fitting Windows: Medium Teak wood frames and shutter with plain glass and enamel paint.
Elevators: 8 elevators of eight passenger capacity and 2 services elevators of standard make with V3F drive (for smooth operation, energy saving and minimum wear and tear) Generators: Generators back-up for lifts and common areas. Water supply: Adequate water supply through municipal and Bore-wells Electrical: Concealed copper wiring fire resistance with adequate light, power and fan points with modular switches. Power points per AC in master bedroom and for accessories like kitchen, Telephone, TV and computer points wherever necessary. MCB's for distribution board. Exclusive Features Superior Quality Construction No Common Walls All Flats are designed as per Vastu The entire complex has been designed to provide light and ventilation to the maximum Corridors, balconies and niche areas for that luxurious feeling of space Creche for children ATM from reputed bank Mini Super Market Rain water harvesting pits for better ground water level Construction without deviations from the approved municipal plan
24 hr State-of-the-art security with intercom connection provided from security to each flat Landscaping all around the building Sewerage treatment plant Fire fighting equipment BSNL Telephone and internet connection Special features Clubhouse Swimming Pool Park Amphitheatre Landscaping Badminton Courts Entrance Gate Jogging Track
24. The amenities promised to be provided as mentioned in the Brochure are superseded by the amenities mentioned in the Development Agreement-cum-GPA dated 16.10.2006. At every stage commencing from the time the Brochure was issued till the sale deed was executed the terms of the contract had been kept changing by the understanding between the complainant and the members of the complainant association. The complainant association was not in existence when the terms of the contract were crystallized in phased manner from the time of release of the Brochure till the sale deeds were executed.
25. The President of the complainant association has stated that the members of the complainant association held meetings on 14.10.2012, 03.03.2013 and 23.03.2013 to discuss the problems they face. There has been no exchange of correspondence between the parties except the minutes of the meeting recordings, notices etc. The works that were not completed by the opposite party no.10 and the reply given by him are as follows:
Sl.No. Incomplete works stated to have been pending Reply given by the opposite party no.10 in his version
1.
Installation of pending lifts - 4 lifts 5 lifts have been erected and the remaining including lifts in amenities building shall be installed immediately on receiving the due amounts from the purchasers of the flats
2. Installation of lift for amenities building
3. Installation of Diesel Generator The Generator was installed and is running anc catering the present needs
4. Completion of Club House and related amenities with all facilities Club house is already provided and it will be in full functional ones amounts dues from all the flat owners are collected.
5. Completion of cellar Cellar is completed long back and parking spaces also allotted by the land owners to their purchasers and this opposite party also allotted to those purchaser who has paid full amount of sale consideration.
6. Allotment of Parking space for the owners as well as visitors
7. Sewerage treatment plant
8. Operational worthiness of fire fighting system Fire fighting system is installed long back and it is in operational.
9. Creche for children Creche for children and display of owners names are not in the scope of works to be provided by this opposite party
10. Completion Amphi theatre Amphi theatre is already cocmpleted nad in use
11. Repairs and leveling walker platform Major repairs to walking platform is completed and in regular usage.
12. Repair of water stagnation points in the drive way Water stagnation in drive way road is natural undulation which is due to usage
13. Display of the flat owners at the visible place display of owners names are not in the scope of works to be provided by this opposite party
14. Post Boxes for the flat owners at the entrance/Ground level in visible place.
Letters being dropped at security room and it is the duty of the owenrs to collect their own letters. This opposite party is not responsible to provide post boxes for each flat.
15. Manjeera Drinking Water Connection from HMWS This opposite eparty has already paid 70% amount of the required fee to HMWS for Manjeera Water connection despite many of the flat onwers failed to pay the amounts due to this OP. However, drinking water is provided in tankers in reguarlizaed basis by this opposite eparty only.
16. Completion fo Drainage both internal and external Internal and external drainage was already completed long back
17. Drainage lines inside the Flats - Flats 19 & 24
18. Landscaping of all around the Apartment Building as Mentioned in the brochure including the gap between the flats Landscaping was long provided
19. Internal Cabling for TV & Telephone Provision for cable TV and telephone lines were made at the time of construction of the building.
20. Inter Com connection from security to each flat Intercom from security room to each flat is neither promised by nor responsibility of this opposite party. However, this opposite party has contacted with BSNL authorities and it promised ones BSNL connections crores more than 25 they give one connection as required to security room 21 Placement of Notice Boards at the appropriate place around the flats This opposite parties requires a welfare association recognized by all the flat owners to place the notice boards.
26. Opposite party no.10 contended that the main cause for not completing some of the works in the project is only due to shortage of funds caused by non-payment of amounts due from purchasers of flats. He also contended that there are around 40 of the flats pertaining to the share of this opposite party are still to be sold to raise the funds. Many of the purchasers of the flats from this opposite party are still due and liable to pay the part of the sale considerations. However, this opposite party requested the land owners to utilize the security deposit which is in their hands for completing the entire project and further promised to complete all the pending works within a month provided all the defaulters clear/pay all the due amounts to this opposite party.
27. It is important to state that in the complaint though many deficiencies were pointed out the complainant association did not seek appointment of commissioner to prove that there are incomplete works which were not completed by the opposite party no.10. They simply filed estimation of engineer for completion and contended that as per the Engineer's estimate an amount of Rs.97/- lakhs required to complete all the pending works except that it did not file anything to support its contention that there are some incomplete works and also that all the flat owners have paid all the due amounts as alleged by the opposite party no.10.
28. In the reply the opposite party NO.10 has given a detailed description of structures he had constructed giving adequate explanation for the so called deficiencies. The members have not filed affidavit denying the statement of the opposite parties that they have been due the amounts. The opposite party no.10 had specifically stated that the members of the complainant association had not paid the amount due and therefore some of the works were left incomplete and the opposite party no.10 also assured that if the members fo the association who are defaulters paid the due amounts he is ready to complete the works within one month. The complainant has obtained estimation from G.Devendranath & Associates for carrying out the pending work for an amount of Rs.97,00,000/- The opposite party no.10 would contend that the complainant has exaggerated the claim and suppressed the facts and abused the process of law.
29. In the absence of any evidence to prove that the opposite partyno.10 has not completed the works as mentioned in the complaint and also that the members of the association/flat owners have already paid all the due amounts to the opposite party No.10 we are not inclined to accept the version of the complainant association that the opposite party no.10 has failed to complete the works. Therefore, the complaint is liable to be dismissed for the reasons stated above.
In the result the complaint fails and is dismissed. There shall be no order as to costs.
PRESIDENT MEMBER 21.08.2017 APPENDIX OF EVIDENCE WITNESSES EXAMINED NIL EXHIBITS MARKED For complainant Ex.A1 Copy of Certificate of Registration dated 23.12.2011 Ex.A2 Copy of Byelaws Ex.A3 Copy of Brochure Ex.A4 Copy of status report of water connection of Water Works Dept., Ex.A5 Copy of notice dated 28.02.2012 Ex.A6 Copy of Minutes dated 14.10.2012 Ex.A7 Copy of Minutes dated 03.03.2013 Ex.A8 Copy of minutes dated 23.03.2013 Ex.A9 Copy of letter of association dated 20.06.23013 Ex.A10 Copy of legal notice dated 31.08.2013 Ex.A11 Copy of estimate of pending works of Civil Engineer dated 02.12.2013 Ex.A12 Copy of annexure of Agreement of Sharing of flats Ex.A13 Copy of details of Directors of Kanakadhara Ventures Pvt Ltd., Ex.A14 Copy of details of Directors of M/s Pruthvi Avenues Pvt Ltd., Ex.A15 Copy of details of Directors of M/s Prestige Avenues Pvt Ltd., Ex.A16 Copy of details of Directors of M/s KVA Estates Pvt Ltd., Ex.A17 Copy of development agreement cum GPA dated 25.08.2006 Ex.A18 Copy of development agreement cum GPA dated 16.10.2006 For the opposite party no.9 Ex.B1 Certified copy of development agreement cum GPA dated 25.08.2006 Ex.B2 Certified copy of development agreement cum GPA dated 16.10.2006 Ex.B3 copy of Company certificate PRESIDENT MEMBER [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER