M.JANAKI vs VIJAYA SRI CONSTRUCTIONS

C.D. No. 21 of 1999 : The complainants are owners of 806.94 sq. yards comprising of Plot Nos. 326/HIG and 327/HIG situated at Kukatpally Housing Board Colony, Ranga Reddy District. They entered into an agreement with the opposite party builder who accordingly agreed to construct a residential complex called ''Gandhi Towers'' and deliver 28% of the constructed area to the complainants within a period of 19 months from the date of execution of the agreement and in case of failure to complete the construction within the said period, he would pay the rent during that period. Though the complainants waited for a sufficiently long period after expiry of 19 months, construction of the complex was not completed by the opposite party. Hence the complainants issued a legal notice dated 7.2.1997 and filed this complaint claiming in all a sum of Rs. 8,77,500/- towards damages.

IN the counter filed by the opposite party while denying the material allegations, it is stated that as per the Development Agreement, the complainants have not fulfilled their part of the agreement and they have not come forward for ear-marking their flats. They have also got additional works done like shelves, Manjira water connection and car parking and unless these amounts are paid they do not get any right over the said property. The complainants have not given registered G.P.A. in his name but given only an unregistered G.P.A. The complainants are illegally enjoying the electricity and maintenance without payment. There is no relationship of vendor and vendee inasmuch as the complainants are land owners. The opposite party''s wife Smt. Naga Kumari has filed O.S. No. 443/1999 on the file of Principal Junior Civil Judge, South and West, Ranga Reddy District and the same is pending. Hence the complaint is not maintainable. The complainants filed the affidavit of the second complainant and marked Exs. A-1 to A-3. The opposite party through its Managing Partner filed the affidavit evidence but no documents are marked.

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

IT is not denied that the complainants are owners. There is also no denial about the development agreement marked Ex. A-1 dated 5.8.1995 executed between the parties. As per Clause 4 of the agreement the opposite party agreed to complete the entire construction within 19 months from the date of the agreement and in case of default the complainants are entitled to get rental amount for the flats of their eligibility on 28% in the constructed area i.e. at the rate of Re. 1/- per sq. ft. per month. But it is admitted that the flats could not be delivered to the complainants within the stipulated period of 19 months. The opposite party contends that the complainants contemplated to execute a suitable G.P.A. and though such a deed was executed it was not registered by them. Hence default should be attributed to them. We cannot accept this contention. Though Clause 2 of the agreement contains that the complainants shall execute suitable General Power of Attorney deed empowering the second opposite party to carry out the entire construction project it is not the case of the opposite party that he could not carry on the construction work due to non-registration of the G.P.A. He did not also issue any notice calling upon the complainants to execute the G.P.A. It is admitted that possession was delivered on 28.8.1999 though the stipulated 19 months'' period ends by March, 1997. Therefore, there is a delay of 29 months in delivering possession of the flats.

THE opposite party contends that as per the Commissioner''s report the defects are rectified. In the affidavit dated 12.12.2002 it is stated by the opposite party that he filed an affidavit earlier on 13.11.2002 and basing on that the Commission passed an order on the same day. Subsequently adjournments were sought for completing the works. However the works mentioned in the order dated 13.11.2002 are completed. The Commissioner who was appointed by this Commission filed her report. In her report she found that water sump is constructed at a height of nearly one foot from the ground level. No vehicle can come inside from the second gate. There is municipal drain on the south and western sides and that the compound wall is constructed on the foundation laid for nala. It is also pointed out that it is difficult to turn the cars for parking them at the parking slots except in the places situate opposite to the first gate. The electrical meters pertaining to the apartment are fixed to the wall of the lift room but on and off switch is not working. The meters are kept openly and no safeguards like mesh is provided. The plastic pipes from which electrical wires are passing connecting the meters are not properly covered. 4" water pipe which was connected to the duct as left open and not connected to drainage. It is stated that during the rainy reason water is stagnating in the parking place. Though the pillers and the slab in the ground floor are white-washed with single coat, the duct is not white-washed. Though lift is installed proper cement plastering was not done to the lift gates in all floors. Cable wires and telephone wires are hanging. There are steps to the northern side of the lift. The left side of the first 6 steps are left open and not guarded. Steps are not properly finished. Water out-lets from the corridors are not connected to the drain. As the levelling of the flooring is not done properly water stagnates in the corridors. Internal pipes are not provided for telephone and cable connection. The steps upto 3rd floor are covered with Cuddapa slabs while the steps of 4th and 5th floors are plastered with cement which is also a deficiency. In between 4th and 5th floor the pipes with live electric wires are noticed. The duct is kept open without cover or safeguard. It is also not white-washed. Pipes with electrical wires are not covered. In 5th floor flat Nos. 504A and B fall to the share of the complainants. Further flat Nos. 504A and B are dumped with debris. There appears cracks on the walls and leakage of water in flat No. 304. The wood used for the inner doors and window frames is sub-standard. The cracks on the door frames of the inner doors are visible. We have no hesitation to hold that all the defects pointed out by the Commissioner in her Commissioner''s report have to the complied with. In fact this Commission passed an order dated 13.11.2002 directing the opposite party to complete the unfinished works. Though sufficient time is granted they are not completed by the opposite party.

THE opposite party submits that it has paid a sum of Rs. 25,000/- as earnest money deposit and the same should be paid to him with interest or adjusted towards the deficiencies. We cannot accept that the said sum should carry interest. This was deposited with the complainants only as security for the due performance and the parties did not contemplate that the said sum should earn interest before it is refunded.

THE complainants submit that the first complainant paid a sum of Rs. 12,000/- and complainants 2 and 3 paid Rs. 4,000/- each to the Municipal Corporation towards regularisation of unauthorised constructions and they are entitled to recover the same from the opposite party. We have no hesitation in granting the said sums to the complainants. It is also the case of the complainants that car parking is not provided. It is needless to say that the complainants should be provided with car parking at convenient places with sufficient space.

It is also submitted by the learned Counsel for the complainants that on measurement it is found that there is shortage of 17 feet for each floor and accordingly 68 sq. ft. more has to be provided by the builder. We are of the opinion that as this allegation is not raised in the complaint, it is not open to the complainants to raise this ground at the time of arguments. Hence the claim under this head cannot be sustained.

FOR all the above reasons the complaint is allowed to the extent indicated above directing the opposite party : (i) to complete the unfinished works as pointed out by the Commissioner in her report dated 16.4.2002 and hand over the possession of 21% (3.75 flats) to the complainants; (ii) to pay Rs. 2,000/- per month towards rental for each flat for the delayed period of 29 months i.e., Rs. 58,000/- per each complainant; (iii)to pay Rs. 12,000/- to the first complainant, and Rs. 4,000/- each to the complainants 2 and 3 towards the amounts paid to the Municipal Corporation for regularisation of unauthorised constructions; (iv) to provide car parking to the complainants at convenient places with sufficient space.

The opposite party shall comply with the above directions within a period of two months from today. In case of default, the opposite party shall pay interest at 24% p.a. on the above said amounts after the expiry of two months period.

THE opposite party shall also pay a sum of Rs. 5,000/- towards costs. C.D. No. 22 of 1999 : The complainants 1 and 2 in this complaint purchased Flat No. 304 admeasuring 1277 sq. ft. and flat No. 303 admeasuring built-up area of 1088 sq. ft. respectively. The agreements are marked Exs. A-1 and A-2 dated 26.11.1996 and 5.11.1996 respectively. As per the terms of the agreement, the opposite party agreed to deliver possession of the flats within 12 months from the date of its execution and in case of default it agreed to pay the rent. But the opposite party failed to deliver possession of the flats within 12 months. The complainants filed affidavit evidence and marked Exs. A-1 to A-7.

IT is admitted that possession of the flats were given on 28.8.1999 i.e., with a delay of 21 months. Hence rents have to be paid to the complainants at the rate of Rs. 2,000/- per month for 21 months which comes to Rs. 42,000/- each.

THE first complainant filed a statement marked Ex. A-3 along with the complaint stating that she has paid an excess amount of Rs. 2,58,000/-. All the payments are shown to have been made by cheques/demand drafts or through Life Insurance Corporation of India. She is claiming the said amount. In the counter there is no denial of these payments except stating the opposite party is entitled to huge amounts from the complainants for executing the additional works. No details of such additional works are given and such claims are made only to avoid payment for additional works done by the opposite party. This is a vague allegation which does not inspire confidence.

Having regard to the details given by the first complainant for which there is no specific denial of any of the payments made by her as per the statement enclosed we are of the opinion that the complainant has established payment of the amount of Rs. 2,58,000/- since they are all made by cheques/DDs or through L.I.C. of India. Hence the complainant No. 1 is entitled to recover the said amount of Rs. 2,58,000/- with interest at 12% p.a. from the date of filing of the complaint till payment.

HOWEVER the opposite party filed a memo stating that the complainants agreed to withdraw the complaint and filed a xerox copy of Memorandum of Understanding dated 13.12.2002 with the signatures having verified before the notary on 12.12.2002. This memo contains the signature of the first complainant on the first page and second complainant on the second page. HOWEVER when we asked for original it was produced. But it does not contain attestation or seal of the notary. The witnesses who appear to have signed on this document are different in the first page and second page. The ink that was used by the common witness M. Krishnam Raju is also different. Therefore, the allegation that the complainants have not signed the documents assumes importance since none of the witnesses to the documents have filed any affidavit in support of this contention. Further the compromise memo should not only be signed by the parties to the dispute but they should also appear before the Court admitting the terms. This is not done. The complainants are not coming forward and accept the terms of memorandum of understanding. Therefore, we do not place any reliance on the said document since the terms of the memorandum of understanding are not agreed to by the parties. Even assuming that one complainant signed on one page and the other on the second page still it cannot be said that there is a concluded agreement in the absence of proof of settlement of the terms. Though a xerox copy was filed in December, 2002 the original did not see the light of the day till 14.7.2003, and it was filed after the matter was part heart on 17.6.2003. For all these reasons we are unable to place any reliance on this document. As per the Commissioner''s report marked Ex. C-1, the physical features with regard to the wood used for inner doors and windows, cracks, water leakages etc., are also same in this complaint. The opposite party is, therefore, directed to rectify the defects pointed out in the Commissioner''s report Ex. C-1.

THE complaint is accordingly allowed to the extent indicated above directing the opposite party : (i) to complete the unfinished works as pointed by the Commissioner in her report dated 16.4.2002 and hand over the possession of the flats to the complainants; (ii) to pay Rs. 2,000/- per month towards rental for each flat for the delayed period of 26 months i.e., Rs. 42,000/- per each complainant; (iii)to pay Rs. 2,58,000/- to the first complainant with interest at 12% p.a. from the date of filing of the complaint till payment; (iv) to provide car parking to the complainants at the convenient places with sufficient space. (v) to pay Rs. 5,000/- towards costs of the complaint.

The opposite party shall comply with the above directions within a period of two months from today. In case of default, the opposite party shall pay interest at 24% p.a. on the sums awarded above after the expiry of two months period. Complaints allowed.