Judgment:
A. Venkatarami Reddy, President:
1. This complaint is filed against Anuradha Agencies, to direct restoration of outer walls to "9" thickness and carpet area to 830 sq. ft. and to hand over possession of the flat.
2. Complainant No. 1 is the wife of 2nd Complainant. Pursuant to oral agreement dated 1.7.88, the complainants entered into with the Opposite Party M/s. Anuradha Agencies three agreements on 2.9.88. They are agreement of sale to purchase undivided share in the land by paying a sum of Rs. 14,940/- (Ex. A-2), agreement for construction of flat (Ex. A-3) and agreement for service charges (Ex. A-4). The total sum payable by them for the flat was Rs. 1,74,300/- and they paid the same in instalments, and the last instalment was paid on 23.8.89.
3. It is the case of the Complainants that the Opposite Party collected a sum of Rs. 8300/- towards loan service charges although the Complainants did not avail any loan from the Opposite Party. Further the Opposite Party collected in cash a sum of Rs. 20,600/- for which no receipt was issued over and above Rs. 1,74,300/- agreed to between the parties, that though two years elapsed Opposite Party did not hand over possession. The Opposite Party has to complete several works like water connections, tiles fixing in toilets and sanitary fittings, drainage connections, window panels, painting works of doors etc., and the construction was with inferior type of bricks, cheapest mosaic tiles and weak M.S. doors and window frames and grills etc. It is their further case that in violation of the Corporation Rules and Regulations the Opposite Party constructed outer walls with 4½" brick wall instead of 9"-brick wall and used inferior quality of bricks plaster and workmanship. While as in respect of other flat buildings in the city, the outer walls were built with 9" thickness. According to the Complainants by reducing the thickness of the outer walls by 4½", the Opposite Party increased the carpet area from 830 sq. feet and demanding extra amount of Rs. 20,000/-, to be paid in cash without receipt. On account of the building of the flats with outer walls of4½"thickness, the occupants will be exposed to scorching heat of the sun, torrential rains, stormy winds, bitter cold of winter and other natural calamities like earthquakes, lighting and thunders. It was also alleged that the Opposite Party diverted the money collected from the flat owners by investing the same in some other industry and retorted the progress of the construction of flats.
4. In the counter filed by the Opposite Party, it was stated that as the Complainants failed to pay the amounts of instalments on due dates and delayed their payment by nearly 10 months, the completion of the flat of the Complainants was also delayed. As there was delay of 10 months in payments according to Clause 6 delivery also was postponed for 10 months and the expected date of delivery would be 30.6.90 and hence there was no delay in effecting delivery on the part of the Opposite Party. Inspite of number of letters written for making payments as mentioned in the counter, the Complainants did not send the amounts in time. It is, therefore, not correct to say that there was a delay of two years in completing the construction of the building by the Opposite Party. It is also the case of the Opposite Party that the flat owners who paid the entire amount were informed that the flats were ready for occupation. With regard to the allegation of construction of outer walls with 4½" thickness, the Opposite Party did not deny the same, but pleaded that according to the architectural drawings and structural designs the flats are constructed and Municipal permission was also taken and the construction of outer walls with 4½" thickness is neither defective nor harmful to the inmates. With regard to the loan service charges, it was stated that it was part of over all planning giving a total comprehensive services for the housing sector and is part of the agreement and the complainant has agreed for the same at the time of signing the agreement. It is also their case that they have also undertaken to do maintenance service for five years for which the amounts were collected under the agreement. According to the Opposite Party, Complainants are bound to pay according to Clause 2 of construction agreement, if there is a variation of 5 to 10% in the carpet area after its completion and for the payments so made, the Opposite Party will issue receipts. The Opposite Party denied that it demanded any payment without any receipt. It was also pleaded that it is not practicable to restore the 9"-wall in place of 4½"-wall and most of the apartments in Hyderabad, Madras and Bangalore are being done with 4½"-walls. Hence it is submitted that there are no defects in the construction or deficiency of service on the part of the Opposite Party.
5. The rejoinder was filed by the Complainants stating that the Opposite Party did not specify in the construction agreement with regard to dimensions and thickness of the brick walls, that the Opposite Party was put to strict proof that the Municipal Corporation granted permission for the construction of outer walls of the thickness of 4½", that the Opposite Party did not give the particulars in respect of designs and the materials to the flat owners and the dimensions of the said apartments were not explicitly stated, that since the Complainant did not avail any loan, the Opposite Party is not entitled to collect any amount towards loan service charges and that the amount of Rs. 12,450/- collected by the Opposite Party towards maintenance charges was unjust without providing any maintenance towards electricity, sanitary, fittings, water, lift etc. It was further stated that the complainants are not bound to pay for possible variations of 5 to 10% in the built up area as according to the provisions of the Apartments (Promotion of Construction and Ownership) Act, 1987, promoter shall not make any additions or alternations if it affects any apartment, without the previous consent in writing of the transference who intend to take that apartment and as the Opposite Party did not obtain any consent in writing from the Complainant they are not entitled to vary the space of the apartments, and that although the Opposite Party in the construction agreement proceeded on the assumption that the plinth area was 83 sq.ft. But in actual measurement the plinth area was found to be only 782 sq. ft. and the Opposite Party is bound to refund the proportionate amount. With regard to delay, it was submitted that the Opposite Party never informed the Complainant about the progress of the construction and that therefore the Complainants were justified in withholding the payment and the promotor is not justified in demanding advance payment without making any construction and the condition that the entire amount of consideration was to be paid on or before October, 1988 was unfair. Finally the Complainants sought refund of Rs. 8,300/- towards loan service charges, Rs. 12,450/- towards maintenance charges and also refund of the amount collected towards 48 sq. ft. of the plinth area and to pay compensation for the delay in construction.
6. The Opposite Party filed an additional counter reiterating that even according to the Municipal Plan the common area when divided among other owners works out to 23% and calculating on that basis the measurement of the flat came to 726 sq. feet (782.56 sq. ft.). The total area of the flat works out to 893 sq. ft. (726 as mentioned by the Complainant + 167 sq. ft.) i.e. 23% of common area. Hence the Complainants are liable to pay for the extra extent 60 sq. ft. which works out to Rs. 12,600/-. It was stated that the maintenance charges collected for given years is not excessive and the Complainant agreed to pay the same. It was also their case that they have to collect interest on Rs. 17,000/- on de-' layed payment and Rs. 12,600/- for the additional space and on payment of those amounts they can restore the outer walls to 9" at the cost of the Complainants.
7. On behalf of the Complainants PWs 1 to 4 examined and Exs. A-l to A-21 were marked. No documents were marked on behalf of the Opposite Party.
8. Having regard to the aforesaid pleadings and the arguments advanced at the time of hearing, the questions that arise for consideration are; (1) whether the Opposite Party is entitled to collect Rs. 8,300/- towards the loan service charges and Rs. 12,450/- towards maintenance charges, (2) whether the Opposite Party agreed to construct outer walls with 9" thickness and the construction of the outer walls with 4½"thickness is not conducive for comfortable living (3) whether the plinth area delivered to the Complainant was less than 830 sq. ft. or more than 830 sq. ft., if so whether the Complainants are liable to pay for the plinth area delivered to them over and above 830 sq. ft., and if the area delivered to them was less whether the Opposite Party is liable to refund to the Complainant the proportionate amount, (4) whether there was delay in construction of the flat and handing over the possession of the same to the Complainant and if so, the amount of compensation that the complainant is entitled to.
9. With regard to the first question, it is not in dispute that the Opposite Party received a sum of Rs. 8,300/- towards the loan service charges. It is also not in dispute that the Complainant never applied for and did not avail any loan facility. But it is contended on behalf of the Opposite Party that the agreement of sale i.e., Ex. A-2 and the construction agreement Ex. A - 3 and agreement for service charges must be read together. The payment of Rs. 8300/- towards loan service charges was agreed between the parties as evidenced by Clauses 5 and 6 of the agreement for service charges. According to those clauses the Opposite Party has to render the service of loan procurement from various sources such as A.P. State Co-operative Housing Federation, HDFC, LIC, Canfen Homes or any other sources and the loan service charges upto a maximum of 15 years at the rate of Rs. 10 per sq. ft. i.e. an amount to Rs. 8,300/- be payable by the Complainant. Hence irrespective of whether the Complainant avails loan or not it is the part of the over all agreement reached between the parties under which the Complainant agreed to pay a sum of Rs. 8,300/-. Having paid the said amount without raising any objection, it is contended by the Opposite Party that the Complainant cannot now turn round and say that he is not liable to pay the same. Evidently the Complainant did not apply for any loan. It therefore, cannot be said that the said Opposite Party rendered any service to the complainant towards procuring a loan. The collection of loan service charges of Rs. 8,300/- without rendering any service with regard to procuring of a loan will amount to collecting the amount without rendering any service. We are therefore satisfied that there is deficiency of service on the part of the Opposite Party and the Complainant is entitled for refund of the amount of Rs. 8,300/- with interest at 18% from 2nd September, 1988 i.e. date of agreement. Till payment with regard to collection of service charges of Rs. 12,450/- the parties have agreed under Clause 7 of the agreement for payment service charges for the maintenance of the entire complex for a period of 5 years without any further charges and the Complainant deposited Rs. 12,450/-. Although the Complainant alleged that the Opposite Party has not been Maintaining the entire complex properly and also spoke to that effect with regard to short supply of water has PW 3 and is supported by the evidence of PW 4 another flat owner, but there is no satisfactory evidence on record to show that the Opposite Party failed to maintain the complex for a period of five years as agreed upon. Hence as the parties agreed for the payment of Rs. 12,450/- towards maintenance charges and as the Opposite Party is maintaining the complex, the Complainant is not entitled for refund of the said amount from the Opposite Party.
10. With regard to the second question i.e.,whether the Opposite Party agreed to construct the outer walls with 9" thickness, but constructed the same with 4½" thickness, it is clear from the evidence of PW 1, the Chief City Planner and PW 2 the Assistant City Planner that according to the plan Ex. A 1 the outer walls have to be of 9" thickness while as the Opposite Party actually constructed the outer walls with 4½" thickness. That the opposite party constructed the outer walls with 4½" thickness is not seriously disputed by the Opposite Party and on actual inspection, it was found by PW 2 that the dimension of the outer walls in the said apartment is 5½" thickness including plastering. The construction agreement does not specifically mention the thickness of the outer walls. But in view of the evidence of PW 1 i.e., the Chief City Planner that according to the plan, the Opposite Party agreed to construct the outer walls with 9" thickness, but he has actually constructed the outer walls approximately with 4½" thickness without plastering, it cannot but be said that there is deficiency of service and the defect in the construction of the outer walls. But by mere circumstance that the thickness of the outer walls was 4½" thickness, there is no material to show that on account to the same, the carpet area was reduced or that the flat became uninhabitable and that it is dangerous for the lives to live in the flat. It is not practicable to direct the Opposite Party to make good the deficiency directing the construction of outer walls with 9" thickness. But we consider that since the Opposite Party constructed and outer walls with 4½" thickness instead of 9" thickness, the Complainant is entitled to be compensated in terms of money. We, therefore directed the Opposite Party to pay a sum of Rs. 7500/- to the Complainant by, way of compensation.
11. On the third question whether the plinth area delivered to Complainant was less than 830 sq. ft. as agreed upon, it is the case of the Opposite Party that under Clause 2 of the construction an agreement there is possibility of variation of 5 to 10% that on actual measurement, the total area including common area of 20.9% came to 890 sq. ft. i.e., the excess of 60 sq. ft. over and above the agreed area of 830 sq. ft. Hence the Opposite Party collected a sum of nearly Rs. 12,600/-. The Opposite Party stated in its counter that they will issue a receipt for the amounts collected towards the plinth area over and above 830 sq. ft. Since according to the Opposite Party the amount collected is towards excess area and as the parties envisaged the variation upto 5 to 10%. We are of the view that the Opposite Party is entitled to collect the same towards excess area. Although it is submitted by the complainant that the flat area is 782 sq. ft., after deducting the duct area, the Complainant did not take into consideration the common area which works out to 23% according to the Municipal Plan. If that was taken into consideration the Opposite Party in its additional counter stated that the excess area will come to about 60 sq. feet which works out to Rs. 12,600/- at the rate of Rs. 210/- per sq. ft. The increase in the area works out to 7% which is within the range of variation of 5 to 10% as agreed upon between the parties. Hence we are of the view that the Opposite Party rightly collected the amount for the excess area and the Complainant is not entitled to any relief in this regard.
12. It is lastly submitted that there is delay in construction and handing over of the flat. It is the case of the Complainant that he paid all the instalments in time and the Opposite Party did not complete the construction and deliver possession of the same within 12 months from the date of the agreement i.e., 2.9.88. On the other hand, the Opposite Party submitted that under Clause 6 of the construction agreement, it was specifically stipulated that in the event of delay in payments by the purchaser, the completion of construction and handing over the possession of the flat will be delayed beyond the scheduled period of delivery proportionate to the delay in payments. The Complainant paid last instalment on 28.8.89 while as he had to pay the entire amount by 1.10.1988. Hence there is a delay of 10 months in paying the amounts by the Complainant. The Opposite Party wrote letter Ex. A-12 dated 20.9.88 informing the Complainant that the construction was in full swing and requesting him to make payments which were already overdue. Again the Opposite Party wrote a letter Ex. A-13 on 24.1.89 requesting the Complainant to pay amount overdue immediately and as funds are urgently required to push the work at a faster rate. They also wrote a letter Ex. A-14 on 12.4.89 to the Complainant to contact them obviously with regard to payment. The Opposite Party sent a telegram Ex. A-15 dated 27.5.89 asking the Complainant to contact them immediately otherwise the allotment of flat will be cancelled. They wrote a letter Ex. A-16 on 11.7.89 stating that nearly Rs. 40,300/- is overdue from the Complainant and also intimating that the Opposite Party may not be able to complete the venture in time and to the delay will be in proportion to your payments. To the same letter Ex. A-16 dated 22.7.1989, the Complainant wrote Ex. A-17 letter on 4.8.1989 stating that the Opposite Party in their letter did not mention the precise date of handing over of the flat with all necessary fittings and arrangements for occupation and asked the Opposite Party to furnish the same. The Opposite Party sent a reply Ex. A-18 dated 22.8.89 stating that the construction of the Complainant's flat is getting completed and they will keep it ready for occupation and for handing over the flat around third week of September, 1989. Again the Opposite Party sent a telegram Ex. A-19 dated 10.2.90 asking the Complainant to contact the office with payment.
13. Thus according to the Opposite Party, there was a delay of 10 months in making the payment and adding 10 months, the due date for delivery will work out about 30th June, 1990. But the complaint was filed before that date. Ultimately during the pendency of the complaint, the possession of the flat was delivered to the complainant on 2.3.91. Having regard to the delay on the part of the Complainant in paying the amount to the Opposite Party, we consider that there is no un-reasonable delay in completing the construction and giving possession of the flat to the Complainant by the Opposite Party. The Complainant is therefore not entitled to any relief in this regard.
14. It is also submitted that the Opposite Party mortgaged the undivided interest sold to the Complainant and other flat owners, after the Opposite Party received entire consideration for the undivided interest. If the Opposite Party mortgaged the undivided interest, it shall get the undivided interest of the Complainant released from the mortgage within a period of two months from the date of the receipt of the order.
15. In the result, the Opposite Party is directed to pay a sum of Rs. 8,300/- collected from the complainant towards the loan service charges with interest at 18% p.a. from 2.9.88 till the date of payment and pay further sum of Rs. 7500/- towards compensation as the Opposite Party constructed the outer walls with 4½"thickness instead of 9" thickness. The Opposite Party shall pay the aforesaid sum within a period of four weeks from the date of the receipt of the order, failing which the Complainant is entitled for payment of interest on Rs. 7500/- at the rate of 18% p.a. after the expiry of four weeks till the date of payment. There shall be no order as to costs.
Complaint allowed.