Oral Order: (R. Lakshminarsimha Rao, Member)
1. The opposite parties no.1 and 2 have filed appeal ,F.A.No. 477 of 2012 and the opposite party no.3 has preferred appeal, F.A.No.354 of 2012 challenging the order dated 04.04.2012 of the District Forum, Guntur. As such both appeals are decided together. For the sake of felicity of expression and convenience, parties are referred to as they are arrayed in the complaint.
2. The complainant is Flat Owners Association and the complaint was filed seeking direction to the 3rd opposite party to complete the pending work of the building or in the alternative to pay an amount of Rs.9,91,000/- and for compensation to the extent of Rs.5,00,000/-.
3. The complainant-association was formed on 16.11.2010. The first opposite party and the second opposite party are the power of attorney holders of the land owners and they entered into development agreement on 05.12.2006 with the third opposite party for development of land, situated at 2/17, Brodipet, Guntur. The members of the complainant-association purchased semi-finished flats from the third opposite party.
4. The complainant-association filed complaint on the premise that the 3rd opposite party failed to complete pending work and it did not pay a sum of Rs.75,000/- to M/s Apple Elevators Pvt Ltd which had undertaken to repair the elevator on undertaking executed by the complainant-association that it would pay the amount. The complainant-association got issued notice dated 17.11.2010 and 13.01.2011 demanding the opposite parties to complete the following pending work with estimation thereof.
1. Flooring and car parking allotment of Rs.1,50,000/-.
2. Generator worth of Rs.2,50,000/-
3. Drinking Water connection worth of Rs.30,000/-
4. Second coating paint to entire building worth of Rs.50,000/-
5. Replacement of sub-mersible motor worth of Rs.20,000/-
6. Polishing to main doors worth of Rs.80,000/-
7. Terrace entrance gate worth of Rs.40,000/-
8. Finalization of payment of BPS tax revision Rs.1,86,000/-
9. Lift panel changing and paints worth of Rs.10,000/-
10. Effecting repairs to water seepage to walls worth of Rs.50,000/-
11. Repairs to leakage of proofs for flat nos.404 and 502 worth of Rs.Amount due to Apple Elevators, Vijaywada worth of Rs.75,000/-5. The opposite party no.1 and 2 remained exparte.
6. The 3rd opposite party resisted the claim on the premise that the members of the complainant-association occupied their respective flats in the year,2009 and that as per the terms of agreement, the members of the complainant-association have to bear amount for certain amenities and the opposite party no.3 completed construction of the flats with all amenities agreed therefor. The third opposite party incurred huge expenditure for constructing the building and the members of the complainant-association have not paid due amounts. Except finishing work, entire work relating to stilt flooring is completed. As per oral agreement, car parking area would be allotted by means of draw of lots and the flat owner has to pay extra amount. The third opposite party would provide generator after the flat owners pay the amount due. Painting and coloring of the building was completed. Sub-mersible water pump was provided. It was not agreed to provide terrace entrance gate. The third opposite party is not liable to pay Building Regularization Charges as the construction of the building was made with the knowledge and written consent of the opposite parties no.1 and 2 and members of the complainant-association.
7. The third opposite party, further submitted that Lift Panel was changed and paint for lift gate would be done after completion of stilt flooring. Seepage in flats and leakage in Flat Nos.404 and 502 result of are improper usage and poor maintenance. The complainant-association is not a consumer and filed the complaint colluding with the opposite party no.1 and 2. The third opposite party is unable to complete nominal work due to non-co-operation of the opposite parties no.1 and 2. The complainant-association calculated the amount as per its whims and fancies. The complaint is barred by law of limitation. The opposite party no,1 and 2 had taken away the material kept in a room in the building. The third opposite party lodged complaint with the police. The police was not taken action as the inspector of police is one of the land owners. The third opposite party filed complaint before the Magistrate of the First Class at Guntur. To escape criminal liability the members of complainant-association and the opposite parties no.1and 2 filed the complaint.
8. On behalf of the complainant-association, its Secretary filed his affidavit and the documents, Exs.A1 to A27. On behalf of the opposite parties, the Managing Partner of opposite party no.3 filed his affidavit and the documents, Exs.B1 to B9.
9. The District Forum allowed the complaint on the premise that the third opposite party failed to complete flooring in the stilt area and second coat to the building as also in view of undertaking given by the complainant-association to M/s Apple Elevators Pvt Ltd, the third opposite party is liable to complete the unfinished work and the opposite parties are liable to pay compensation and costs to the members of the complainant-association.
10. Aggrieved by the order of the District Forum the 1st opposite party and the 2nd opposite party have filed appeal contending that the District Forum allowed the complaint against them even though the complainant-association had not sought for any relief against them. It is contended that the District Forum fixed liability on the opposite parties no.1 and 2 in respect of all the flats though ExA18 was executed in favour of T.Yougandar who paid a sum of Rs.10,000/- out of Rs.6,00,000/- for the additional work. It is contended that the District Forum has not considered that the opposite parties no.1 and 2 have not disposed of 7 flats and they sold three flats to Subba Rao, Ramayya and Yugandhar. It is contended that the opposite parties no.1 and 2 remained exparte before the District Forum and they could not bring to the notice of the District Forum that roof leakage of Fats bearing numbers 404 and 502 was arrested and the amount of Rs.90.0000/- deposited by the opposite parties no.1 and 2 is with the complainant-association.
11. The 3rd opposite party has filed appeal contending that the District Forum despite giving finding that the 3rd opposite party completed all the work relating to the Elevator and made payment to M/s Apple Elevators Pvt Ltd, directed it to reimburse Rs.75,000/- to the complainant-association. It is contended that the District Forum failed to consider that the paint work of the building rest with the complainant-association as possession of the flats was handed over to the flat owners three years ago and the 3rd opposite party completed painting and coloring of the building. It is contended that the members of the complainant-association owe huge amount of money to the 3rd opposite party and the flat owners to escape their criminal liability under theft case, filed by the complaint. It is contended that the opposite parties no.1 and 2 colluding with the complainant-association deliberately remained exparte. It is contended that the District Forum failed to consider that the members of the complainant-association owe huge amount to the 3rd opposite party and that the District Forum could not appreciate the difference between air crack and structural defect and without any report from Technical Expert the District Forum found fault with the 3rd opposite party as regards to structural defect not basing on any evidence.
12. The counsel for the complainant-association and the 3rd opposite party has filed written submissions. The counsel for the opposite parties no.1 and 2 has field memo adopting the written submissions by the opposite party no.3.
13. The point for consideration is whether the order of the District Forum suffers from mis-appreciation of facts or law?
14. The 1st opposite party along with the owners of land situated at 2/17, Brodipet, Guntur authorized the opposite party no.2 who entered into Development Agreement on 5.12.2006 with the 3rd opposite party for development of the land and construction of building thereon. In terms of the Development Agreement, the 3rd opposite party is entitled to Flats nos. 101, 103, 201, 203, 301, 303, 401, 403, 501 and 503 and the opposite parties no.1 and 2 are entitled to Flat Nos.102, 104, 202, 204, 302, 304, 402, 404, 502 and 504. The opposite parties no.1 and 2 on one hand and the 3rd opposite party on the other hand are entitled 50% each the car parking area.
15. The District Forum opined that the Development Agreement does not speak of liability of 3rd opposite party regarding defective construction of the flats that fell to the share of the opposite parties no.1 and 2, viz., 102,104, 202, 204, 302, 304, 402, 404, 502 and 504. Insofar as defective construction of Flats bearing nos. 101, 103, 201, 203, 301, 303, 401, 403, 501 and 503 that fell to the share of and sold by the 3rd opposite party are concerned, Clause 11 of the Development Agreement would fix liability on the 3rd opposite party. Clause 11 reads as under:
The SECOND PARTY is totally responsible for any claim or damage that may raised by the prospective purchasers of the flat from the SECOND PARTY in respect of the construction of the flat or any defect I the construction or deficiency in service to the prospective purchasers of the flats.â
16. The learned counsel for the complainant-association has contended that the opposite parties no.1 and 2 without contesting the matter before the District Forum cannot find fault with the award passed by the District Forum. He has submitted that the 3rd opposite party did not co-operate with the advocate-commissioner and as such the advocate-commissioner returned the warrant. It is contended that simply because the 3rd opposite party filed appeal contending that the entire work was completed and the members of the complainant-association have to pay amounts to it. The complainant-association supported findings recorded by the District Forum.
17. The learned counsel for the 3rd opposite party has submitted that the 3rd opposite party has completed all the construction work and provided amenities to the flats as agreed between the parties and the members of the complainant-association had occupied the flats in the year 2009 and that the 3rd opposite party incurred extra amount for carrying out additional work which most of the flat owners have to pay and they are still due. It is contended that there is no subsisting contract between the complainant-association and the 3rd opposite party and that taking advantage of 46% share in the total construction of the apartments, the opposite parties no.1 and 2 had taken control over the affairs of the complainant-.
18. The learned counsel for the 3rd opposite party has submitted that the opposite parties no.1 and 2 along with some of the members of the complainant-association who included an inspector of police had taken away the material kept in the room in the stilt floor and the criminal complaint lodged thereof is pending with the police concerned for investigation. He has contended that the opposite parties no.1 and 2 have deliberately did not sell the flats which fell to their share and they have not co-operated with the 3rd opposite party to sell the flats that fell to its share. It is contended that the entire amount due was paid by the 3rd opposite party to M/s Apple Elevators Pvt Ltd. It is contended that the complainant-association has no locus standi to file complaint for the matter other than common area.
19. The District Forum declined to allow the relief as regards to amount for BPS tax division, drinking water provision, submersible motor, terrace entrance and car parking area. BPS tax was declined to be awarded basing on the additional construction work carried out by the 3rd opposite party upon the written consent of the members of the complainant-association. The members of the complainant-association expressed their intention that they have no objection for deviation to be committed from the approved plan. No objection letter Ex.B7 reads as under:
âWe are made to understand by the builder that there will be deviation from the sanctioned plan in respect of the property bearing Door No.5-19-42 (5-19-5-old) with Asst. No.07/8488 situated at 2/17, Brodipeta, Guntur, covered by the Development Agreement dated 05th December 2006 by virtue of the Vastu, financial feasibility etc., and we express our no objection for the same.â
20. Municipal Water provision was made by the3rd opposite party as seen from demand notice issued for the month of May,2010. The District Forum has rightly held that there was no agreement between the parties to the effect for the 3rd opposite party to provide submersible motor replacement and for arrangement of terrace gate entrance.
21. The District Forum awarded the following reliefs.
1. The 3rd opposite party is directed to provide generator without insisting any additional payment to the complainant.
2. The 3rd opposite party is directed to pay Rs.75,000/- (Rupees seventy five thousand only) being the provision for lift to the complainant.
3. The opposite parties 1 and 2 are directed to apply second coating to the flats 102, 104, 202, 204, 302, 304, 402, 404, 502 and 504.
4. The 3rd opposite party is directed to apply second coating to the flats 101, 103, 201,203, 301, 303, 401, 403, 501 and 503.
5. The 3rd opposite party is directed to do proper flooring on stilt area and terrace.
6. The opposite parties 1 and 2 are directed to arrest leakage of roofs in flat Nos.502 and 404.
7. The opposite parties 1 and 2 are directed to arrest seepage of water and fill the cracks and paint them properly in flat numbers 102, 104, 202, 204, 302, 304, 402, 404, 502 and 504.
8. The 3rd opposite party is directed to arrest seepage of water and fill the cracks and paint them properly in flat numbers 101, 103, 201,203, 301, 303, 401, 403, 501 and 503.
9. The opposite parties 1 and 2 are directed to pay Rs.10,000/- (Rupees ten thousand only) towards compensation to each flat owner of 102, 104, 202, 204, 302, 304, 402, 404, 502 and 504.
10. The 3rd opposite party is directed to pay Rs.10,000/- (Rupees ten thousand only) towards compensation to each flat owner of 101, 103, 201,203, 301, 303, 401, 403, 501 and 503.
11. The opposite parties 1 and 2 are directed to pay Rs.1,000/- (Rupees one thousand only) towards costs to the complainant.
12. The 3rd opposite party is directed to pay Rs.1,000/- (Rupees one thousand only) towards costs to the complainant.
13. The above order shall be complied within a period of six weeks from the date of receipt of the copy of the order.
22. The reliefs awarded against the opposite parties no.1 and 2 are as follows:
1. The 3rd opposite party is directed to provide generator without insisting any additional payment to the complainant.
3. The opposite parties 1 and 2 are directed to apply second coating to the flats 102, 104, 202, 204, 302, 304, 402, 404, 502 and 504.
7. The opposite parties 1 and 2 are directed to arrest seepage of water and fill the cracks and paint them properly in flat numbers 102, 104, 202, 204, 302, 304, 402, 404, 502 and 504.
9. The opposite parties 1 and 2 are directed to pay Rs.10,000/- (Rupees ten thousand only) towards compensation to each flat owner of 102, 104, 202, 204, 302, 304, 402, 404, 502 and 504.
10. The 3rd opposite party is directed to pay Rs.10,000/- (Rupees ten thousand only) towards compensation to each flat owner of 101, 103, 201,203, 301, 303, 401, 403, 501 and 503.
11. The opposite parties 1 and 2 are directed to pay Rs.1,000/- (Rupees one thousand only) towards costs to the complainant.
23. The complainant-association has not claimed any reliefs against the opposite parties no.1 and 2. It is mentioned in the complaint that the opposite parties no.1 and 2 have been impleaded as formal parties. The opposite parties no.1 and 2 have contended that they are owners of flats bearing nos.102, 104, 202, 204, 302, 304, 402, 404, 502 and 504 and members of the complainant-association and as such they cannot be directed to pay compensation to themselves. The contention of the opposite parties no.1 and 2 has sustainable force. Reliefs granted against the opposite parties no.1 and 2 are liable to be set aside.
24. The complainant-association has not denied that its members owe amounts to the 3rd opposite part for the additional work carried out. The 3rd opposite party has stated that it is unable to provide generator owing to failure of the members of the the complainant-association. The District Forum held that in view of terms of Development Agreement, the 3rd opposite party has to provide generator without collecting additional amount from the flat purchasers. It is mentioned in the specifications annexed to the Development Agreement that generator would be provided and it will be connected to common lighting, elevator and borewell.
25. Thus, the 3rd opposite party cannot contend that it would provide generator to the building subject to payment of the amounts due by the members of the complainant-association for the additional work carried out in their respective flats. The 3rd opposite party is right in claiming the amounts due from the members of the complainant association.
26. Insofar as the relief granted relating to payment of Rs.75,000/- to the complainant-association on the premise that the complainant-association had given undertaking that it would pay the sum of Rs.75,0000/- to M/s Apple Elevator Pvt Ltd is concerned, the District Forum had gone wrong in awarding the amount despite recording finding that the work relating to elevator panel and painting to the gates was completed and that the complainant-association had not produced any receipt evidencing payment of the amount to M/s Apple Elevators Pvt Ltd. Paragraph 19 of the order would render the relief sustainable and it reads as follows:
â19. Lift panel changing and paints and balance amount due to Apple Elevators, Vijayawada:-
The opposite party relied on Ex.B-8 letter dated 10-05-01, 23-04-01. The letter dated 10-05-01 says that M/s Apple Elevators have completed all the works including lift panel and painting of all gates quite long time and elevator given for public usage. It can therefore be inferred that the opposite parties provided lift and paints to it. The complainant did not file any receipt to show the payment. M/s Apple Elevators Private Limited contacted with the complainant subsequent to Exs.A-10 and A-11 but not with the 3rd opposite party. The 3rd opposite party has to provide lift without any additional cost. Therefore, the 3rd opposite party has to pay Rs.75,000/-. In view of under taking given by the complainant under Ex.A-10 M/s Apple Elevators Private Limited made the lift in working condition. It can therefore be inferred that the complainant paid the amount of Rs.75,000/-.to M/s. Apple Elevators. Therefore we opine that the 3rd opposite party has to reimburse Rs.75,000/- to complainant association.â
27. The 3rd opposite party has lodged complaint with the police and thereafter before the Magistrate of the First Class, Guntur alleging that the members of the complainant-association and the opposite parties no.1 and 2 have taken away the material kept in the room in the stilt floor . The 3rd opposite party had claimed the amount from the complainant-association as under:
| S.No. | Name of Work | Estimation of cost |
| 1. | Flooring and Car parking allotment | 1,50,000.00 |
| 2. | Generator | 2,50,000.00 |
| 3. | Drinking water connection | Â 30,000.00 |
| 4. | Second coating paint to entire building | Â 50,000.00 |
| 5. | Submersible motor replacement | Â 20,000.00 |
| 6. | Main door polishing | Â 80,000.00 |
| 7. | Terrace Entrance Gate | Â 40,000.00 |
| 8. | Finalization of payment of BPS, Tax division | 1,86,000.00 |
| 9. | Tax division | |
| 10. | Lift panel changing and paints | Â 10,000.00 |
| 11. | Affecting repairs to water seepage to the walls | Â 50,000.00 |
| 12. | Affecting repairs to leakage to roofs more particularly flat No.502 and 404 | Â 50,000.00 |
| 13. | Balance amount due Apple elevators, Vijayawada | Â 75,000.00 |
| Total | 9,91,000.00 |
29. The complainant-association as such cannot seek for the reliefs by taking away the material kept for carrying out the work. When the complainant-association is at fault, it cannot seek for relief much less the reliefs sought for and awarded by the District Forum. Both appeals deserve to be allowed.
30. In the result, both appeals are allowed setting aside the order of the District Forum. Consequently, the complaint is dismissed. There shall be no separate order as to costs.