ROHIT KOTHOTIA vs CHATHURBHUJA ENGINEERS AND DEVELOPERS

THE three complainants joined together to raise a common grievance against the opposite party builder. THE first complainant wants to withdraw the complaint. Hence the complaint is dismissed so far as the first complainant is concerned. THE second complainant has not filed any agreement entered into by him with the opposite party in his favour. As such we are unable to grant any relief in his favour and hence the complaint is dismissed so far as the second complaint is concerned.

THE third complainant entered into an agreement with the opposite party on 8.2.1993 marked Ex. A-1. According to which she agreed to purchase flat No. 20C in the second floor in "Pleasant Homes" of an area of 1056 sq. ft. together with proportionate share of land for a consideration of Rs. 2,13,000/-. She also entered into another agreement for amenities on 11.2.1993 marked Ex. A-2 which is for a sum of Rs. 2 lakhs. A sale deed dated 30.3.1995 under Ex. A-3 for flat 20C together with proportionate share of land was obtained by her. But the flat was not completed. Minutes were recorded on 25.11.1995 under Ex. A-4 stating as follows : "1. Minutes of the meeting of flat owners of Pleasant Home Apartments and Sripad Deshpande, Developer on 25.11.1995-Payment of Common Electricity Bills : for the period intervening the charging of transformer and receiving of individual bills (i.e. May-July 1995) and water bill. Of the total of electricity bill of Rs. 10,576/- Sri Deshpande agreed to pay Rs. 3,500/-. THE remaining will be shared equally by flat owners of the water bill of Rs. 4,660/-, Rs. 1,000/- will be paid by the builder and the rest will be equally divided among flat owners. THEse will be Rs. 590/- for electricity and Rs. 306/- for water, per flat. It was agreed to collect the amounts from the flat owners. 2. Installation of Second Lift-Sri Deshpande promised to commence the work and complete it within 45 days. Expeditious action was promised on the following items as they were long delayed.

Main gate along with wicket gate.

Drinking water sump-Sri Deshpande will decide the location of the sump according to technical feasibility.

SECOND Borewell-It was noted that Sri Deshpande instructed Sri Ravi to take steps in this regard. Compound wall on the rear side of the complex-Decision will be taken on the height of the wall on the basis of the placement of the manhole in Sri Atre''s ground floor flat.

THE cover of the existing water sump will be packed to avoid contamination." On 12.5.1996 a notice was issued under Ex. A-7 whereunder items of work still to be completed are mentioned as follows : "1. Main gate along with wicket gate-While you have provided a rickety old gate - without proper alignment there is no plaint and the wicket gate should not be less than 3 ft. as decided as agreed by all of us. 2. Drinking water sump. 3. 6" borewell with efficient standard accessories. 4. Covering of the existing sump. 5. Compound wall on the rear side of the complex. 6. Accommodation for the watchman. 7. Two lifts.

Wall constructed in the common area at the pent house to be removed. In addition there are several other items which remain undone." A Commissioner was appointed by this Commission, who noted that there was no compound wall on the eastern side, no sump to store tap water, second lift is not installed while the first lift erected is locked up at the pent house. Hence the complaint. 3. In the written version filed by the opposite party, it is stated that the flats were constructed and handed over before time to the parties who paid the amounts as per the agreements. A civil case was filed against the Municipal Corporation of Hyderabad by the Landlord, wherein status quo as on 30.7.1997 was granted. The Municipal Corporation of Hyderabad would not have given permission to construct flats without drainage, water and electricity. There is one lift existing and the other one will be installed after the suit is disposed of and the remaining flat owners paid the charges. For transfer of electricity meters the complainants have to file an application in the Electricity Office and the opposite party is ready to assist them by rendering whatever help is required. 4. The complainant filed Exs. A-1 to A-8 besides filing the affidavit of the second complainant. No affidavit evidence is filed by the third complainant. Neither the affidavit evidence nor the documents are filed by the opposite party. 5. The point for consideration is, whether there is any deficiency in service on the part of the opposite party ? The execution of Ex. A-1 agreement dated 11.2.1993, Ex. A-2 agreement dated 11.2.1993 and Ex. A-3 sale deed dated 30.3.1995 are not in dispute. The minutes of the meeting were recorded on 25.11.1995. Afterwards Ex. A-7 notice was issued on 12.5.1996 by the office bearers of the society. This document is filed by the complainant wherein objections were raised for providing main gate along with wicket gate, drinking water sump, borewell, covering of the existing sump, compound wall on the rear side of the complex, accommodation for the watchman, two lifts and for removal of wall in the common area at the pent house. So far as the accommodation for the watchman is concerned agreement does not provide and, therefore, this relief cannot be granted. 6. Regarding main gate along with wicket gate there is no prayer made in the complaint. The Commissioner found that there is no sump to store tap water and no compound wall on the eastern side. There cannot be any impediment to grant these two reliefs. Regarding two lifts, the Commissioner observed that one lift is existing but it is locked at the pent house and second lift is not installed. In the written version it is stated that the second lift would be installed after the suit is disposed off and the remaining flat owners pay their charges for the same. From this it is clear that the third complainant has paid her share for the second lift as otherwise the written version would have reflected about the non-payment of her share by the third opposite party also. Hence this relief also can be granted but it should be after the disposal of the suit. No doubt the suit number and the Court where it is pending is not mentioned in the written version. But we are of the view that as long as prohibitory order is in force issued by the competent Civil Court, the opposite party cannot be compelled to carry on the works contravening the said order. Therefore, it is open to the third complainant to take execution proceedings if no such suit is pending where interim order was granted. 7. In the Commissioner''s report it is stated that he found a borewell with a motor and there is a sump to store the borewell water with another motor to pump the bore water into the overhead tank and as such the claim for a borewell need not be acceded. 8. The only other question that remains to be considered is covering of the existing sump. There is nothing in the Commissioner''s report about the same. Therefore, we cannot hold that there is no covering on the existing sump. The other claims made by the complainants in the present complaint over and above these objections are after-thought. We are of the opinion that there is no cause of action which gives rise to those claims after the issuance of Ex. A-7. Even if the third complainant has a grievance about the same inasmuch as they are not made a part of the grievances in Ex. A-7, made out by the office bearers of the society of which the complainant is a member, need not be taken into consideration. For all these reasons, the complaint is partly allowed directing the opposite party to construct a drinking water sump, compound wall on the rear side of the complex and fix the second lift after the prohibition in the Civil Court is lifted and these incomplete works should be completed within a period of three months from today except the lift which should be erected within three months after lifting the prohibitory order. In these circumstances each party shall bear their own costs. Complaint partly allowed.