BUDHA VIEW APARTMENTS OWNERS SOCIETY vs MANSIONS TODAY

THE complainant is a registered society formed for the welfare of its members who are the owners of Budha View Apartments. THE first opposite party, hereinafter called ''the builder'' entered into an agreement with the second opposite party, the owner on 11.9.1993 to develop the property belonging to the latter. As per the terms of the agreement 65 per cent of the build-up area should be allotted to the builder while 35 per cent to the owner. THE builder in all constructed 40 residential flats out of which 14 have fallen to the share of the owner while the remaining 26 to the builder. THE first opposite party entered into agreements of sale in respect of his 26 flats, received consideration and put the prospective purchasers in possession of their respective flats though they were incomplete. THE second opposite party also executed sale deeds in favour of prospective purchasers except in 9 cases who are members of the society since some of the flat owners by their letter dated 25.5.1997 complaining of certain unfinished works for which there was no reply. Even the owner also issued a notice for which also there was no reply. THE complainant society thereafter issued a notice on 25.3.1998 for which a reply was given stating that many unfinished works have been completed and if the flat owners contribute for municipal water connection the same will be provided. That apart it is mentioned that some members still owe some balance to the first opposite party. THEre appears to be a dispute between the opposite parties 1 and 2 due to which the builder is not completing the complex and opposite party No. 2 is not registering the flats. THErefore, this complaint is filed seeking completion of the unfinished works and convey the flats to the owners or in the alternative to pay a sum of Rs. 9 lakhs.

THE builder in his written version stated that Flat Nos. 108 and 408 are already conveyed by registered sale deeds in favour of the purchasers. He admitted that construction of the apartments is complete except lift and metro water supply. It is further stated that talks are going on with the landlady and very soon things will be settled and registration of the unregistered flats would be attended to. In the written version filed by the second opposite party, it is stated that she is the owner and the first opposite party approached her with a proposal to develop 2051 sq. yards of land and a development agreement dated 11.9.1993 was executed. As per the terms of the said agreement, it is incumbent upon the builder to complete the project before getting the sale deeds executed and registered. The first opposite party without completing the construction is insisting on execution of the sale deeds in favour of third parties. However on 8.8.1996 the builder entered into a supplemental agreement with her. According to which, he agreed to pay a sum of Rs. 2,85,000/- in addition to 35 per cent share of the built-up area. Though the first opposite party issued a cheque for Rs. 3,50,000/- the same was bounced and a criminal case was filed against him. There is no privity of contract between herself and the purchasers. As there was no change in the attitude of the first opposite party she filed OS No. 580/1999 on the file of Chief Judge, City Civil Court, Hyderabad impleading the complainant herein also claiming a decree for Rs. 12 lakhs towards compensation and for a further sum of Rs. 5 lakhs towards special damages. The complainant filed the affidavit evidence of its Secretary Smt. Malathi Lal besides filing Exs. A-1 to A-10. The opposite parties filed Exs. B-1 to B-7 besides filing their respective affidavits.

The point, therefore, that arises for consideration is whether there is any deficiency in service on the part of the opposite parties if so to what extent?

THE complainant contends that the first opposite party is the builder while the second opposite party is the landlady. An agreement was executed between them dated 11.9.1993, according to which the builder has to construct the residential apartments and the same shall be apportioned between them at the ratio of 35 per cent and 65 per cent. THE builder entered into individual agreements to sell those that fell to his share which are 26 flats out of 40 while the remaining 14 flats fell to the share of the owner. In view of the disputes between the builder and the owner the builder has left the flats incomplete, and the owner is not co-operating to execute the registered sale deeds in favour of the purchasers. Hence the complainant association came out with this complaint. In the complaint the complainant sought for a direction against the opposite parties to erect and commission the lift, obtain drinking water connections as well as sewerage connections from Hyderabad Metro Water Works and Sewerage Board, construction of roof over staircase, water proofing of the terrace, parking area to be suitably constructed so as to avoid flooding of water in rainy season, erection of main gate, plastering and colouring of compound wall, roof, corridors and other common areas, fixing of electrical meters to all the flats and registration of flats in the names of purchasers or in the alternative to pay a sum of Rs. 9 lakhs so as to enable the complainant to complete the pending works besides awarding a sum of Rs. 10,000/- to each of the flat owners towards mental agony.

THE complainant filed Ex A-4 agreement dated 23.7.1995 wherein the first opposite party agreed to convey flat bearing No. 402 on 5th floor in favour of Smt. Padmini Unni, one of the purchasers. As per the terms of the agreement a multi-storeyed building shall be constructed by the first opposite party and hand over possession of the same within 12 months. Of course, the second opposite party conveyed undivided share of land in favour of the purchasers. Ex. A-3 is one such agreement dated 23.7.1995 wherein a reference to Flat No. 402 has been made in the proposed construction. The learned Counsel for the first opposite party submits that erection of lift is complete. So far as the drinking water connection and sewerage connections are concerned, as per the terms of the agreement Ex A-4 the purchasers have to meet the expenditure. Clause 6 of the said agreement shows that the first opposite party shall meet the expenditure and deposit for these connections and the purchasers are liable to make good the same. The first opposite party submits that a sum of Rs. 10,000/- would be required for getting the water connection. As the first opposite party has to initially meet the expenditure and get the water connections as per the terms of the agreement referred to above, we are of the opinion that the first opposite party shall make the deposit and complete the work within a period of three months from today. However the members of the complainant society who ever desires water connection shall deposit a sum of Rs. 10,000/- before this Commission within one month from today and intimate the first opposite party and the first opposite party shall complete the work within a period of two months thereafter. So far as the water roofing on the terrace, construction of parking area for avoiding flood water, erection of main gate, plastering and colouring of compound wall and other common areas are concerned, the first opposite party submits that they are all completed. If any incomplete work is there including covering the staircase room the same shall be completed within the said period of two months.

SO far as the fixing of electrical meters are concerned, in the absence of any provision in the agreement, we are of the opinion that the flat owners have to move the Electricity Board with proper applications and the first opposite party will co-operate in getting the sanction.

THE main problem appears to be the registration of flats under registered sale deeds. Of course it is submitted that one Mr. U.G.S. Sastry owner of flat No. 108 filed O.P. No. 685/1997 before the District Forum which eventually ended up in F.A. No. 492/1997. So also one Mr. Sudhir Khanna owner of flat No. 501 also filed C.D. No. 81/1997 on the file of this Commission which also ended up in appeal in the National Commission. So far as these two owners are concerned, the orders already passed which have become final will govern the parties, and no provision need be made for those two flat owners in this complaint. So also one Mr. Md. Javeed owner of Flat No. 408 got the sale deed executed by the owner. He did not also file any affidavit claiming any further directions. May be, he is not interested in this C.D. Hence no direction need be given in respect of this owner also. Under Ex. A-2 which is the agreement between the owner and the builder Clause 3 states that the owner shall at the instance of the builder execute after completion of the project sale deed or deeds in favour of such purchasers. Clause 5 contemplates that the share of the builder shall be 65 per cent and the owner 35 per cent of the built-up area. These two clauses read together show that the builder on completion of the project can insist the owner to execute sale deeds in favour of the purchaser in respect of his 65 per cent share. But the problem appears to be that the builder has not completed the owners 35 per cent share in the built up area. Therefore, the owner is not co-operating to execute the registered sale deeds in favour of the purchasers. That apart the owner has also filed a civil suit OS No. 580/1999 before the Chief Judge, City Civil Court, Hyderabad on 25.10.1999, a copy of the plaint is marked Ex. B-5, much later after this complaint is filed. Therefore, the subsequent filing of the suit cannot in any way influence the disposal of this C.D.

In view of Clauses 3 and 5 of agreement Ex. A-2, it is the duty of the builder to complete the project, as such we cannot find fault with the owner for not executing the registered sale deeds. It may not be out of place to mention that the owner has not given any G.P.A. to the builder. The owner has also not entered into any construction agreement with the purchasers. Of course in Ex. A-3 and agreement for undivided share of land, the owner has made a reference about the proposed construction of the flat in favour of the purchaser. But a mere reference in our view does not clothe the purchasers with any right against the owner in respect of the construction of the apartment. Therefore, we are of the opinion that it is the responsibility of the builder to complete the project and execute the registered sale deeds through the owner the second opposite party in favour of the purchasers. Perhaps realising this contingency the first opposite party stated in its counter in para 9 as follows: "The Hon''ble Forum is hereby humbly informed that talks are going on with the landlady and very soon things will be settled and this complaint also will be attended with all sincerity, honesty and purposefulness. Very soon the registration of the un-registered flats also would be attended. However as the registrations are to be done by the landlady I sincerely hope she would without much loss of time attend to this task and put to rest the fears of the flats owners."

Therefore, we are of the opinion that the first opposite party shall be directed to facilitate conveyance of the flats to the purchasers within a period of three months from today, and it is needless to say that the second opposite party has to join in the said conveyance.

THE complainant claimed a compensation of Rs. 9 lakhs in the alternative. We are of the opinion that there is no basis for claiming a sum of Rs. 9 lakhs and that the claim is on the higher side. As three purchasers are dropped out of 26 purchasers of first opposite party, we are of the opinion that the first opposite party shall pay a sum of Rs. 2,30,000/- (Rs. 10,000/- x 23) to the complainant society within a period of 3 months from today towards the alternate claim of Rs. 9 lakhs.

FOR all these reasons, the complaint is allowed to the extent indicated above with costs of Rs. 10,000/- against the first opposite party and the complaint is dismissed against the second opposite party. Complaint allowed.