J. SRIRAM MURTHY vs P. SRINIVASA RAO

THE first complainant along with his son second complainant entered into an agreement dated 16.11.1993 with the opposite party builder for construction of two-bed room flat bearing No. 302 in third floor of the proposed venture "Kusum Mansion" in S. No. 24, Plot No. 53 at Bagh Amberpet, Hyderabad for a consideration of Rs. 3,27,000/-. According to the terms of the agreement the construction should be completed within 15 months including the grace period of three months and thereafter the opposite party had to pay liquidated damages of Rs. 1,500/- per month for the delayed delivery of possession. According to the complainants they paid the entire consideration but as possession was not delivered they occupied the flat due to compulsions in an unfinished stage on 11.4.1995. THErefore, they gave a registered notice on 15.5.1995 for which there was no response. Hence they filed the complaint.

IT is pointed out in the complaint that the opposite party is bound to regularise the municipal water connection, drainage connection and provide separate electricity connection to each flat. Compound wall has to be provided, flooring in the corridors in respect of third floor and staircase was not done, external plastering and distemper colouring was not done, lift not provided, flooring is not completed in stilt area. Besides failure to provide these common facilities the opposite party also failed to provide lintel, cement plastering in the bed room, cracks on the walls not rectified, sunshades for the windows not provided, western side drainage pipe line not provided, flush tanks not provided in the bath rooms, internal walls not painted with distemper, flooring not completed, plastering of parapet wall not done, painting of windows and doors left undone. Besides using poor quality of wood, glass panels were not fixed to the windows which are specific deficiencies in respect of the flat purchased by the complainants. Hence they filed an annexure showing the details of defects and alternatively claimed a sum of Rs. 5,80,000/-. In the counter filed by the opposite party it is admitted that he entered into an agreement of sale on 16.11.1993 for the said flat for Rs. 3,27,000/- but the complainants failed to pay the instalments as agreed on time. He intimated the complainants that the flat is ready for occupation in the month of February, 1995 itself and asked them to pay the balance. The complainants took possession of the flat without informing the opposite party. It is denied that he abandoned completion of the flat. It is further stated that as per the agreement the flat owners have to bear the proportionate cost of water charges, etc. As per item No. 14 of the specifications attached to the agreement he has to construct the overhead tanks with borewell and corporation water and sump for fresh water which was done. The overhead tank was divided into two portions to store borewell water as well as municipal water separately. A sump was constructed to collect the municipal water from the tap connection. He also provided facility to pump the municipal water collected in the sump to the overhead tank and provided separate pipelines to each of the flats. He also constructed one more big sump at the request of the flat owners, but the complainants and other flat owners failed to pay the cost of the same. He did not agree to provide separate water connection to them. It is further stated that drainage connection has to be obtained by the flat owners by paying the required charges to concerned authorities. He did not agree to provide or regularise/any drainage connection to the flats of the apartment. So far as the electricity connections are concerned it is agreed by the purchasers to pay the proportionate demands of A.P. State Electricity Board as per Clause 18 of the agreement. Therefore, it is for the purchasers to contribute towards the cost of equipment or such other charges for installation and maintenance, etc. of the transformer or other equipment. He himself approached the Electricity Board and got installed a transformer near the complex. The flat owners failed to apply for individual connections to the APSE Board authorities.

The opposite party never agreed to construct any new compound wall. There is already a compound wall in existence, the cost of which was already paid to the land owners by the opposite party. Lift was never agreed to be provided. Only lift facility was provided. The complainants or other flat owners never paid any amount for installation of lift. Flooring work in the parking space is completed. The borewell facility provided to the apartment is more than sufficient to meet the requirements of the flat owners. The construction of overhead tank is completed and is in use. There is no deficiency under these heads. Therefore, the complaint has to be dismissed. The complainants examined the first complainant as P.W. 1 and marked Exs. A-1 to A-9. The opposite party examined himself as R.W. 1 and marked Exs. B-1 to B-8.

THE point for consideration is whether the opposite party committed deficiency in service, if so, to what relief ? The execution of agreement Ex. A-5 dated 16.11.1993 is admitted. According to the agreement the construction has to be completed within a period 15 months including the grace period of 3 months. It is also provided in the agreement that in case of delay liquidated damages of Rs. 1,500/- should be paid per month by the opposite party.

IT is the case of the complainants that as the opposite party could not complete the construction inspite of payment of entire money the complainants were constrained to occupy the unfinished flat on 13.4.1995 and as such according to them there is a delay of 2 months in delivering the possession of the flat for which they are entitled to claim Rs. 3,000/- from the opposite party. A registered notice was given under Ex. A-2 on 15.5.1995 by the complainants wherein it is stated that the entire consideration was paid and possession was delivered to them as desired by the complainants on 13.4.1995 and as such he is bound to pay a sum of Rs. 3,000/- towards rent for the delay in delivery of the flat, for which there was no reply. In view of this notice which is the earliest version, we are of the view that the opposite party delivered possession of the unfinished flat at the requiest of the complainants on 13.4.1995 only, as such as per the terms of the agreement the opposite party is bound to pay the delayed delivery of possession of the flat for two months. In the notice the complainant claimed a sum of Rs. 99,000/- towards damages for the failure of the opposite party to attend to plastering of outside walls and arrangement for supply of electric current, water and drainage facilities. Now the question is whether the complainants are entitled to these facilities as per the terms of the agreement.

AS per the specifications attached to the agreement item No. 7 refers to plastering. According to that plastering in Cement Morter 1:5, 3:4" thick for two coats have to be done. So also item No. 13 refers to painting of internal and external walls with white cement. The complaint of the complainants in this respect is that external cement plastering of two coats and colour washing with primar as promised was not done. AS already stated that opposite party in his counter has made a vague denial that he has completed all the necessary works in February, 1995 itself. There is no specific denial about this deficiency in the counter. Therefore, we are of the opinion that the opposite party is bound to complete this work.

THE complainants claimed a sum of Rs. 50,000/- towards external plastering and colouring. THEy assert that snowcem external and internal colour washing two coats and distemper colour washing two coats should be given. THEre is no mention in the agreement about this colouring except internal and external walls painted with white cement. Under these circumstances we are of the opinion that in case the opposite party fails to rectify this defect he shall pay a sum of Rs. 25,000/- under this head. The next item is supply of electric current. What is stated in the agreement under specifications is concealed conduit, 5 points in hall including one plug point + 5 amps, 3 points in each bed room with a plug point + 5 amps with wiring. So also 2 points in kitchen + 15 amps one plug point with copper wiring. Toilets one plug point + 14 amps plug point with copper wiring. This is all that is mentioned in the agreement. In addition to this what is mentioned in the agreement is that the purchasers agreed to pay the proportionate demands of the A.P. State Electricity Board towards voluntary contribution for the cost of equipment or such other charges for installation, maintenance, etc., of the transformer or other equipment as may be necessary for electric service connection. These conditions in the agreement show that it is the purchasers that should meet the expenditure for supply of energy by paying necessary charges to the APSEB. In respect of wiring as mentioned above the expenditure has to be borne by the opposite party. But the learned Counsel of the complainants relies upon Ex. A-6 which is the abstract estimate dated 22.4.1994 given by the opposite party wherein a sum of Rs. 15,000/- is shown towards providing electrification and departmental deposits, etc. This abstract estimate is not referred to in the complaint. It is also referred to in the evidence affidavit filed by the first complainant. No doubt R.W. 1, the opposite party was confronted with this exhibit. While admitting that he issued this estimate, he explained it by stating that it was issued for the purpose of obtaining loan by the first complainant. It is also admitted by the first complainant that loan was borrowed from the Bank. Having regard to these circumstances we are of the view that the explanation offered by the opposite party cannot be brushed aside. Further this view of ours gets support from the fact that the heading is shown as abstract estimate. Further on most of the items it is stated completed, meaning thereby that many of the items of work are completed excepting a few and the total is shown as Rs. 3,27,174/-. The word ''completed'' in our view indicates that this estimate is meant for the purpose of obtaining loan from the Bank as the Bank will be satisfied before sanctioning the loan if majority of the works are completed. That apart there is no undertaking in Ex. A-6 by the opposite party that it is his responsibility to provide or make arrangements for supply of electrical connection. For all these reasons this contention of the complainants cannot be countenanced.

Coming to the next item namely, water and drainage facilities, the complainants also rely upon abstract estimate Ex. A-6 wherein a sum of Rs. 24,000/- is shown against this head. In the specifications attached to the agreement under item No. 14 water supply what is stated is overhead tanks will be provided with borewell and corporation water as well as municipal water and sump for fresh water, and under item No. 15 sanitary and drainage, what is stated is standard PVC connections outside and G.I. connections inside. Except this there is no other mention about the liability of the opposite party under these heads. The item Nos. 14 and 15 as seen above do not in our view fasten any liability on the part of the opposite party to provide the facilities as claimed by the complainant.

AS already seen it is not out of place to mention that the opposite party in his counter stated that he provided facility to pump up municipal water collected in the sump to the overhead tank and also provided separate pipelines to each of the flats and that he did not agree to provide separate water connections to the flat owners. In respect of drainage connection he did not agree to provide or regularise drainage connections to the apartment/complex and it is for the flat owners by paying the requisite charges to the authorities concerned for regularisation. Having regard to these circumstances we are of the opinion that the opposite party did not agree to provide these facilities. AS already stated Ex. A-6 does not come in aid of the complainants in support of their contention. In Ex. A-2 notice, the complainants stated that they have spent a sum of Rs. 11,000/- for making the apartment livable. But among the receipts produced under Ex. A-8 we get only Rs. 5,090/- even though when we take those receipts which were obtained prior to the date of Ex. A-2. Under Ex. A-2, the complainants claimed a sum of Rs. 11,000/-, but they failed to produce all the receipts. However, we are of the opinion that the complainants must have spent Rs. 11,000/- at that time. Therefore, they are entitled to claim Rs. 11,000/- under this head.

IN respect of the claim for lift, though it is mentioned in Ex. A-7 part of abstract estimate a sum of Rs. 25,000/- is shown against share of lift cost. For the reasons already recorded we cannot accept the contention of the complainants that the opposite party agreed to erect lift. Nowhere in the agreement any mention is made about the provisions of lift or in the specifications attached to the agreement. Therefore, it cannot be spelt out that the opposite party agreed to provide lift. Now coming to the submission regarding the construction of compound wall, it is the contention of the learned Counsel for the complainants that the sanctioned plan provides for construction of compound wall and as such the opposite party is bound to construct the compound wall. It is the contention of the opposite party that an old compound wall is existing at the time of construction of the complex and he had paid the cost of compound wall also to the owner. Under these circumstances he maintains that there is no obligation on his part to construct the compound wall. That apart there is no mention of construction of new compound wall either in the agreement or in the specifications or even in the abstract estimate. Hence we are of the opinion that there is no obligation on the part of the appellant to construct a new compound wall. In regard to the rest of the claims as reflected in the complaint we are of the opinion that the claims other than what is referred to in Ex. A-2 is only as afterthought. The complaint is filed on the heals of notice Ex. A-2. After issue of notice Ex. A-2 and before filing of the complaint there are no fresh intervening circumstances or fresh grounds of cause of action for increasing the claim for compensation. The circumstances existing on the date of the complaint were also existing at the time of issue of notice. But the complainants claimed only a sum of Rs. 99,000/- whereas they have increased their claim enormously by the time of filing the complaint and claimed a sum of Rs. 5,80,000/-. We are of the opinion that this claim is an afterthought, when the cost of the flat itself is Rs. 3,27,000/-, the complainants having entered into possession of the flat though unfinished in few respects are claiming compensation which is disproportionate by any standard. As already stated Ex. A-2 is a lawyer''s notice preceding filing of the complaint, and we have no hesitation to accept the said notice as the basis for determination of compensation claimed by the complainant. Inasmuch as no reply was given by the opposite party to adopt the said notice as the correct basis of the claim which was not disputed by the opposite party there cannot be any objection. Viewed in this perspective the rest of the claim made in the complaint cannot be countenanced. The parties cannot be permitted to go on inflating the claim from time-to-time without any justification.

IN the result we direct the opposite party to complete the plastering of outside walls as stated in Ex. A-2 notice within a period of 6 weeks from today failing which the complainants are entitled to claim a sum of Rs. 25,000/- from the opposite party.

IT is further directed that the opposite party should pay a sum of Rs. 14,000/- i.e., Rs. 3,000/- towards rent for two months and Rs. 11,000/- towards the expenditure incurred by the complainant, with interest at 12% from the date of filing of the complaint till realisation. The complaint is accordingly allowed in part to the extent indicated above with costs of Rs. 5,000/-. In respect of other claims the complaint is dismissed. Time for compliance 6 weeks. Complaint partly allowed.