National Consumer Disputes Redressal
Idamakanti Millikarjuna Reddy, vs M/S Srinidhi Builders, on 16 December, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION
PETITION NO. 2322-2323 OF 2006.
(From
the order dated 30.06.2006 in Appeal
No. 897 of 2005 & 1636 of 2005 of
the State Consumer Disputes Redressal Commission,
Andhra Pradesh )
Idamakanti Millikarjuna Reddy,
S/o I.V. Subbareddy
Hindu, aged about 40 years,
Public Prosecutor,
D. No. 9-4-32(1) R. R. Tank Road,
Near Sisindri Play School,
Ongole Prakasam Distt.,
Andhra Pradesh Petitioner.
Versus
1. M/s Srinidhi Builders,
P
1 Indrani Estates
Annavarappadu,
Rep. by Their Mg. Partners
P. Koteswar Rao
2. Pathipati Kateswar Rao,
S/o Anathaiah, Hindu, Aged 46 yrs,
Mg. Partner, Srinidhi Builders,
P 1 Indrani Estates,
Annavarappadu, Ongole Prakasam Distt.
Andhra Pradesh
3. Naidyu Varaha Swamy
S/o Anjaneyulu Hindu, aged 41 yrs.
Managing Partner,
Sirnidhi Builders,
P 1 Indrani Estates,
Annavarappadu, Ongole Prakasam Distt.
Andhra Pradesh
.Respondents
BEFORE:
HONBLE MR.JUSTICE V.B. GUPTA, PRESIDING
MEMBER
HONBLE MR.SURESH CHANDRA, MEMBER
For the Petitioner (s) : Mr. Bharat
Kumar, Advocate.
For the Respondent (s) : Mr. G. Ramakrishna Prasad, Advocate.
Dated
: 16th December, 2011.
ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER In this revision petition there is challenge to order dated 30.6.2006, passed by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad ( for short as State Commission ).
2. Vide impugned order, Complainant/Petitioner was directed to pay a sum of Rs. 3,75,204/- towards balance consideration to the respondents/opposite parties and respondents should deliver possession of the completed flat G-3 to the petitioner within four weeks on receipt of the amount.
3. Brief facts are that petitioner purchased 72 Square yards of site with undivided joint site out of 787 Square yards for a consideration of Rs.61,500/- from respondents on 21.12.2002. On that day, petitioner and respondents entered into an agreement of contract for construction of an apartment named as Temple Towers. In the said apartment, petitioner selected Flat No. G-3. As per agreement, petitioner has to pay Rs. 2,83,000/- + 30,000/-,towards construction of the flat and car parking. Petitioner paid the said amount as per the payment schedule mentioned in the agreement and respondents agreed to complete the construction of the Flat as per specifications and the plan. The agreement was also registered. Subsequently, respondents constructed the flat by completing the skeletal work only without standards. Respondents have to complete the electrical works, windows, doors, water points, toilet etc. Respondents gave an option to the petitioner to lay flooring in the flat instead of ceramic tiles and respondents promised to return Rs. 20/- per square feet towards cost of tiles and labour. Petitioner laid marble flooring in the flat. Respondents no. 2 and 3 tried to construct various structures without any approved plan in the Temple Towers. Petitioner complained to the District Collector of Ongole, who took action and stopped the illegal construction which is against the approved plan.
4. Respondent no. 2 had received Rs. One lakh on 24.3.2003 and another Rs. One lakh on 12.2.2003. Subsequently, on 15.06.2003, petitioner paid Rs. 1,13,800/-. However, respondents no. 2 and 3 did not issue any receipt in favour of the petitioner nor did they measure the flat in spite of repeated requests made by the petitioner. Respondents are using flat G-3 as store room. Respondents also demanded the amount for car parking, which petitioner paid and also expressed his readiness to pay the balance of the consideration, as per the agreement. Petitioner also expressed his readiness to forego Rs. 1,13,800/- and to pay again Rs. 1,13,800/- due to non issuance of receipts, after reducing the cost of flooring. Petitioner asked the respondents to complete the work in flat G-3 and give him possession by taking the rest of the agreement value.
5. Respondents in their counter affidavit stated that as per terms of agreement dated 21.12.2002, petitioner had agreed to pay a sum of of Rs. 3,13,800/- to construct semi finished flat G-3 and also agreed to pay the above amount, as per payment schedule. A registered sale deed was executed on behalf of respondent no. 1, on 21.12.2002 for a value of Rs. 61,500/-. On the date of execution of the above sale deed, Petitioner entered into another agreement with them with respect to construction of flat as on the date of agreement of flat construction, petitioner was having a balance amount of Rs.38,500/- with the respondents. Again on 12.2.2003, petitioner paid an amount of Rs. one lakh to respondent no. 2 and a receipt was issued. Thereafter, petitioner never paid any amount to respondents. Respondents did not take any amount from any flat owner without issuance of the receipt. Petitioner had violated the terms of agreement dated 21.12.2002 and thereby breached the terms of agreement and committed default in payment of due payment schedule. Petitioner has to pay Rs. 2,53,800/- by the time of completion of first floor roof slab but he paid only Rs. 1,38,500/-. Petitioner requested that due to financial crises, he was unable to pay the amount due by him and will pay the same with interest in the second week of April, 2003.
6. On 21.12.2002, petitioner entered into another agreement with respondents for finishing work of flat for Rs. 4,30,000/- and said agreement is with the petitioner. Petitioner was requested to furnish Xerox copy of the agreement but he failed to do so. As per terms of the second agreement, petitioner has to pay Rs. 4,30,000/- to the respondents and respondents had to complete the work in flat G-3. Therefore, total cost of the flat is Rs. 4,30,000/- + Rs. 3,13,800/- i.e., Rs. 7,43,800/-.The agreement for construction of flat G-3, clearly discloses about the entering of another agreement for finishing work of flat. The question of showing measurements to the petitioner does not arise, as it is according to the terms of agreement. Petitioner has committed default in payment and as per agreement dated 21.12.2002, respondents had to deliver the flat after three weeks of final payment by the flat owners. According to the terms, if the owner of flat G-3 is a chronic defaulter, he is entitled to only 50% of the amount to be returned and respondents can sell away flat G-3 to their choice. More over, if respondents have delayed in delivering the flat, the flat owner is entitled to claim compensation of Rs. 15/- per day. As per terms of the agreement, petitioner has to pay Rs. 5,43,800/-, since he paid only Rs. 2 lakh, out of Rs. 7,54,800/-. Three letters were written to him to pay the installments due with interest. On 12.6.2003, respondents categorically informed the petitioner that he has committed breach of contract and is not entitled to claim any right against flat G-3. Thus, there is no deficiency of service on their behalf.
7. District Consumer Forum, Praksam allowed the complaint directing the petitioner to pay the balance amount of Rs. 10,816/- to the respondents and respondents were directed to complete the necessary remaining works of flat G-3 within one month from the date of the order and also directed them to hand over possession of the flat G-3 before 21.7.2005 and to pay the amount of Rs. 50,000/- towards compensation.
8. Aggrieved by the order of the District Forum, respondents as well as petitioner filed separate appeals.
9. Vide impugned order, appeal No. 897 of 2005( of the respondents) was allowed and order passed by District Forum was set aside and petitioner was directed to pay the aforesaid amount, whereas, appeal No. 1636 of 2005(of petitioner) was dismissed.
10. This is how the matter has reached before this Commission.
11. It is contended by learned counsel for the petitioner that parties have entered into two registered sale deeds. There was no unregistered sale deed between the parties. Respondent has delivered the possession to all the owners of the flats in February, 2004 but same has not been delivered to the petitioner. Since, there is no agreement for finishing work , respondents should have delivered possession of the semi finished flat, as per specification given in the brochure. As, there was no third agreement between the parties, impugned order passed by the State Commission is liable to be set aside.
11. On the other hand, it is contended by learned counsel for the respondents, that agreement dated 21.12.2002 was executed between the parties for the construction of semi finished flat. Clause 3 of this agreement categorically states that it is a semi finished flat, whereas clause 4 states that work has to be executed by the respondents. Clause 5 of this agreement states that vendor and vendee would enter into agreement for finishing work of that flat and this agreement was also entered into on the same day itself for an amount of Rs. 4,30,000/-. Since, total cost of flat is Rs. 7,43,800/-, petitioner has paid only Rs. 2,00,000/- and balance sum is due from him.
12. It is further contended that the District Forum did not take into consideration third party affidavits, who are co-flat purchasers. The agreement no where state for free car parking slot, which would be allotted to each flat owner. Therefore, separate amount of Rs. 30,000/- has to be paid towards the car parking area. The order passed by State Commission is thus quite proper, legal and justified, as petitioner has to pay the cost of finished flat in terms of the third agreement.
13. Short question which arises for consideration is as to whether there was any other agreement, besides two registered agreement between the parties?
14. District Forum in this regard has held;
11. We feel that it is the duty of the builders to specify the measurements of the flat in the agreement and they have to specify separately the common area and separately about the car parking. It clearly shows that non-mentioning of the separate plinth area of the flat in the agreement is unfair trade practice and concealment of the fact by the opposite parties against the complainant. Eventhough the consumers not questioned at the time of entering into the agreement it is the duty of the builder to specify the measurements, 4 side of the flat. They have no right to take advantage of the non-questioning nature of consumers and to suppress the measurements of the original flats. The complainant raised that there is difference of Rs. 55,704/- for the difference in the measurements of the flat. So, in the absence of any contrary plea by the opposite parties regarding to the plinth area we accepted the contention of the complainant on this point and the complainant is entitled for reduction of the amount from the amount payable to the opposite parties. The complainant is entitled for the difference in the plinth area of the flat.
20. The contention of the opposite parties that they are entitled to collect the separate extra cost towards car parking area as per the brochure and as per the registered agreement dated 21.12.2002 hence the opposite parties are entitled for collecting the extra cost towards car parking. It is clear as per the citation 2003(1) ALD (Cons.) 13 before A.P. State Consumer Disputes Redressal Commission, Hyderabad held in between A. Prameela Devi Vs. Shahnaz Construction Company (P) Limited, Hyderabad and it is elicited that parking area is concerned, it is open to the complainant to use car parking area proportionate to her flat area along with other flat owners as per the A.P. Apartments Act, rules without making any payment therefore as the opposite parties are not entitled to sell any part of the parking area. As per the citation, the opposite parties are not entitled to collect any separate amounts towards parking area from the complainant.
22. The complainant filed calculation memo which is marked as Ex. A10. As per the agreement for construction amount is Rs. 3,13,800/-, as per the judgment reported in 2003(1) ALD (Cons) 13 the complainant is entitled for reduction of Rs. 30,000/- towards car parking area. Then the complainant has to pay an amount of Rs., 2,83,800- and it is also admitted by the opposite parties that the complainant paid an amount of Rs. 2,00,000/-. There is difference of 211 square feet in the plinth area. So, the complainant is entitled for reduction of amount of Rs. 55,704/- towards the less in the plinth area. After reduction for an amount of Rs. 55,704/- for an amount of Rs. 83,800/-, the complainant has to pay Rs. 28,096/-. As the marbles were purchased and flooring was laid by the complainant and the complainant is entitled for reduction of amount of Rs. 17,280/-, then the complainant has to pay an amount of Rs. 10,816/- to the opposite parties. We are also accepting the calculation filed by the complainant and we feel that there is no abnormality in the calculation filed by the complainant.
26. The opposite parties also not produced any evidence to show that entire work is completed. We feel that the calculation memo filed by the complainant under Ex. A10 is a reasonable one and the opposite parties failed to establish that the calculation memo filed by the complainant is wrong by way of producing any documentary evidence contrary to the Ex. A10.
27. Admittedly the opposite parties failed to produce any evidence to show that work in the kitchen, toilets electrical wiring, windows, iron grills, T.V. connections, paintings, water point taps and all other works was already completed. Eventhough the opposite parties have bounden duty to complete and to handover the flat to the complainant. So, the complainant is established that the work in the flat G-3 is not completed and still it is in the possession of the opposite parties.
30. The complainant established that there is deficiency in service by the opposite parties and the opposite parties failed to establish that the complainant agreed to pay an amount of Rs. 7,53,000/- by producing any documentary evidence.
31. The complainant established that flat G-3 is still incomplete and the complainant also established that opposite parties are demanding extra amount other than the amount mentioned in agreement. We feel that demanding of extra amount by the opposite parties towards the flat of the complainant is deficiency in service by the opposite parties.
32. In the result, the petition is partly allowed directing the complainant to pay the balance amount of Rs. 10,816/- to the opposite parties within a week from the date of this order. The opposite parties are directed to complete the necessary remaining works for the flat G-3 of the complainant within one month from the date of this order and also directed to handover the possession of the flat G-3 to the complainant on or before 21.7.2005 otherwise the opposite parties are further liable to pay an amount of Rs., 50,000/- towards compensation to the complainant. Both parties have to bear their own costs and for other reliefs the petition is dismissed. No costs.
15. On the other hand, State Commission observed;
Now we address ourselves to the circumstances which establish that the second agreement has been in existence and the complainant has deliberately suppressed it. Right from the beginning, i.e., their reply notice itself, Ex. A-9 dated 25.11.2004, the opposite stated that there was a second agreement entered into as per clause 5 of the first agreement:- Today the VENDEE and VENDOR is entering into another agreement for finishing the work of flat. They have repeateadly stated in their reply notice ( Ex. A9), counter affidavits, pleadings and written arguments that they unfortunately do not have a copy of the second agreement and that the complainant is in possession of the copy and requested him to furnish the same. The opposite parties also filed an affidavit and contended that the complainant only is in possession of the second agreement entered into for finishing of the flat. In support of their contention, the appellants/opposite parties filed an affidavit stating that there are two agreements and that they are filing third party affidavits of some of the flat owners along with the respective agreements/sale deeds pertaining to undivided share of land. Since the flat owners have taken loan from ICICI Home Finance Company Limited and they have deposited their sale deed with the bank, they have obtained attested copies of the said documents from the said Bank. The sale deed dated 15.1.2004, the semi-finished agreement for Rs. 4,29,600/- dated 15.09.2004 i.e. agreement for finishing work, the receipts, letter dated 14.09.2004 to ICICI Bank for sanctioning Home loan to Sri Donepudi Koteswara Rao and all the documents pertaining to third parties i.e. Nanda Kumar Karcheti, Koppula Ravi Kumar and Sri Venkata Ratna Kirti and Mr. K. Nageswara Rao are also filed before this Commission. In the absence of the second agreement copy we rely on the third party affidavit(Ex. B-6) which is also of the same plinth area (Flat S3) i.e. 1075 sft(plinth and common area) + 120 sft in the stilt floor, purchased by Shri Ravi Kumar, the third party. The complainant never denied the contention of the opposite parties that S3, F3, T3 have the same plinth area and are similar to Flat G3. We rely on this affidavit Ex. B6 wherein a second agreement was entered into for a sum of Rs. 2,89,500/- towards finishing of the flat. We deduct the amount spent by the complainant towards marble flooring, i.e., Rs. 17,280/-. Even while laying this flooring, the complainant did not complain about the plinth area being less. Even, in the legal notice, Ex. A-3, dated 27.10.94, there is no whisper about the plinth area being less. The complainant did not choose to file an application before the District Forum for appointment of an Advocate-commissioner to measure the flat. In the absence of any conclusive evidence or any substantial material that the plinth area was less, we are of the considered opinion that deducting the amount for 211 Sq. feet in unsustainable.
Taking into consideration that the complainant himself stated in his legal notice Ex.A-3 and in his affidavit, as cited above, that he is ready and willing to pay Rs. 1,13,800/-, it is opined that the opposite parties are not deficient in not handing over the possession of the flat; when the complainant himself did not adhere to the terms and conditions of the first agreement itself. This admitted agreement, Ex. A-1 states that an amount of Rs. 3,13,800/- is being paid towards the following.
PAYMENT SCHEDULE:
1At the time of agreement Rs.3,800.00
2.
After completion of foundation work Rs.1,25,000.00
3. After completion of Firs Floor Roof slab Rs.1,25,000.00
4. After completion of Walls plastering and Electrification Rs, 50,000.00
5. Three weeks before handing over the flat Rs. 10,000.00
6. Total cost of construction Rs.3,13,800.00 It does not include car parking charges. So the contention of the complainant that Rs. 3,13,300/- is inclusive of car parking is baseless. It is also the contention of the opposite parties that the complainant is willful defaulter and has not paid the balance amount of Rs. 543,800/- in spite of repeated requests, letters through UCP, Ex. B1, Ex. B2 and Ex. B3 dated 16.4.2003, 17.5.2003 and 12.6.2003 respectively, and therefore, as per the terms of the agreement Ex. A-1 the deliver of possession of the flat will be made after three weeks of the final payment by the complainant, which the complainant has not made payment. It is an admitted fact that all the flat owners have been given possession and have occupied their respective flats except the flat owner of G-3. The learned counsel for the complainant has also mentioned this in his ground that the opposite parties have given possession to all the flat owners except to the complainant. Keeping in view that the complainant admittedly is willing to pay Rs. 1,13,800/- towards balance consideration and as per the terms of the first agreement, possession is to be given three weeks after the total payment is made, the complainant is not entitled to the rents which he claims.
16. As per counter affidavit filed on behalf of respondents before the District Forum, their case is that two registered agreements dated 21.12.202, have been executed between the parties. First one is the registered sale deed in favour of the petitioner with regard to 30.67 sq. yrds. of vacant site, whereas, second agreement is with regard to construction work of his semi finished flat for a sum of Rs. 3,13,800/-.
17. Respondents in their counter affidavit have further stated that on 21.12.2002, petitioner had entered into another agreement with respondents for finishing work of the flat in question for a sum of Rs. 4,30,000/-. Accordingly, respondents executed an unregistered agreement in favour of the petitioner with regard to finishing work of the flat in question and the said agreement is with the petitioner. Respondents requested the petitioner to furnish the Xerox copy of the finishing work agreement but petitioner failed to supply the same and replied that there is no such agreement. To overcome his latches, the petitioner has suppressed the existence of the finishing work agreement.
18. It does not appeal to common sense that when parties are executing two registered agreements on the same day, then why the third agreement which was for a higher value shall be an unregistered one. It is the case of respondents that third agreement is available with the petitioner but petitioner has denied execution of the same. Since, it is the respondents who are relying upon the unregistered agreement, the onus is upon them to show about the existence of that unregistered agreement. Instead respondents have tried to shift the onus which lies upon them, by stating that the unregistered agreement is lying with the petitioner, which fact has been denied by the petitioner.
19. Section 91 of the Indian Evidence Act, 1872 deals with the exclusion of oral by documentary evidence. Relevant provision of this Section reads as under;-
S. 91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.--- When the terms of a contract, or of a grant, or of any other dispositions of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Exception
1.---- xxxxx xxxxx xxxxx xxxx xxxxx xxxxxx xxxxx Exception 2.---- xxxx xxxx xxxxx xxxx xxxxx xxxx xxx xxxxx Explanation
1.----xxxx xxxx xxxxx xxxx xxxxx xxxx xxxxxxx Explanation 2.----xxxx xxxx xxxxx xxxx xxxxx xxxx xxxxxx Explanation 3.----xxxx xxxx xxxxx xxxx xxxxx xxxx xxxxxx
20. As per above provisions, it forbids proving the contents of writing otherwise than by writing itself. It is a cardinal rule of evidence, not one of technicality, but of substance, which it is dangerous to depart from, that where written documents exist, they shall be produced as being the best evidence of their own contents.
21. Since, respondents are relying upon the unregistered agreement with regard to the finishing work the onus is upon them to produce and prove the same. However, respondents have miserably failed to prove about the existence of any such unregistered agreement.
22. Agreement dated 21.12.2002 was executed between the parties with regard to the construction of semi finished flat.
Clause 5 of this agreement read as under;
Today the VENDEE AND VENDOR is entering into another agreement for finishing the work of flat.
23. However, in the above agreement it is no where mentioned as to what would be the cost of the finishing work. We fail to understand as to from where respondents have got the figure of Rs. 4,30,000/- with regard to finishing work. There is no document on record to show that petitioner ever agreed for payment of Rs. 4,13,000/- towards finishing work.
24. State Commission in its order has relied upon the agreements executed by the respondents with other co-owners. Even assuming for the arguments sake that respondents have executed agreements with other co-owners for finishing works but, those agreements are of no help to the respondents.
25. At page no. 137 of the paper book, there is an agreement executed between the respondents and one Smt. Pundla Hema Latha, with regard to construction of a semi finished flat for a sum of Rs. 2,66,000/-. This agreement was executed on 08.03.2004.
26. At page no. 126 of the paper book, there is another agreement, dated 18.06.2004 executed between the respondents and Smt. Pundla Hema Latha, which is for finishing work. In this agreement, it is no where mentioned as to what would be the nature of finishing work. Moreover, agreement for finishing work was executed after more than three months, after the initial agreement for semi finished flat was executed.
27. Whereas, in the present case, as per respondents defence all the three agreements that is; agreement for the sale of the land, for construction of the semi finished flat, and agreement for construction of finishing work, were executed on the same date i.e. on 21.12.2002.
28. It sound really strange that with regard to the construction of the flat, parties would enter into agreement for semi finished work as well as for finishing work on the same day. When such type of agreements were to be executed on the same date, then there would have been no occasion to execute two agreements, separately. The fact that agreement for semi finished flat is of the same day as that of finish work, then certainly agreement for finishing work appears to be an after thought. That is why the respondents have taken the plea that it is an unregistered document. When parties are executing two registered agreements on the same day which are of lesser value, then what was the reason for them to execute the third agreement which is of a higher value, as an unregistered one.
29. The story put forward by the respondents, that an unregistered agreement for finishing work was executed on 21.12.2002, is without any basis. Had there been any third agreement between the parties with regard to the finishing work, the same should have been executed only after a certain period when construction work had already started, and not at the same time when agreement for semi finished work was executed. In case of other purchasers, agreement for semi finished flat and finishing work were executed after a gap of more than three months, which is a natural phenomena.
30. Under these circumstances, we hold that the State Commission has wrongly relied upon the documents of other co-purhcasers, which have no relevancy to the facts of the present case. Thus, the impugned Order passed by the State Commission, is without any basis and is not based on sound reasoning and the same is liable to be set aside.
31. Accordingly, we set aside the order passed by the State Commission and restore the order of District Forum, which is perfectly legal and justified.
32. The present revision petition thus stands allowed with costs, which are assessed at Rs. 10,000/-( Rupees Ten Thousand only) to be paid by the respondents by way of a cross cheque to the petitioner, within four weeks from today, failing which respondents shall liable to pay interest @ 9% p.a. till realization.
33. List the matter on 10.02.2012 for compliance.
J. (V.B. GUPTA) PRESIDING MEMBER ...
(SURESH CHANDRA) MEMBER SSB