BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD

FA NO.693 OF 2014 AGAINST CC NO.521 OF 2012

ON THE FILE OF DISTRICT FORUM-III, HYDERABAD

Between:

1)       Prabhakar Rao S/o late Pothanna Rao,

          Aged about 52 years, R/o 202,

          Sigma Crest, Block-A, Tarnaka,

          Hyderabad.

2)       Nuka Satyanarayana S/o late Nuka

          Narsaiah, aged about 76 years,

          R/o Ramnagar, Hanamkonda,

          Warangal.

…Appellants/Opposite parties

And

1)       Sri Satya Narayan Minda

          S/o late Gajanand Minda,

          Aged about 69 years,

2)       Sri Manish Minda S/o Satya Narayan

          Minda, aged about 32 years,

          Both resident of Plot No.40,

          Jyothi Colony, AOC Centre,

          Secunderabad – 500 015.

…Respondents/Complainants

Counsel for the Appellants                  :         Sri B.Deepak Sanncheti

Counsel for the Respondents     :         Parties-in-person

Coram                  :

Hon’ble Sri Justice B.N.Rao Nalla   …      President

and

Sri Patil Vithal Rao … Member

Friday, the Sixteenth day of September

Two thousand Sixteen

Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)

***

1)       This is an appeal filed by the Opposite parties aggrieved by the orders dated 13.12.2013 of the District Forum-III, Hyderabad made in C.C.No.521 of 2012 in allowing the complaint and directing the Opposite parties to allocate and handover the physical possession of the car parking admeasuring 100 sft., in Wall Street Complex, Troop Bazar, Hyderabad and further directing them jointly and severally to pay Rs.8,259/- towards property tax paid by the Complainant during the period pending completion of works; to pay Rs.97,320/- being interest @ 18% p.a. on Rs.13,70,700/- for the delay (4 months 22 days) in handing over the possession of the mulgi to the complainants; to pay compensation of Rs.50,000/- for physical and mental agony meted out to the Complainants and costs of Rs.2,000/-, granting time of 30 days.

2)       For the sake of convenience, the parties are referred to as arrayed in the complaint.

3)       The case of the complainants, in brief, is that they purchased mulgi bearing No.4-1-643/UG/A in Wall Street complex, situated at Troop Bazar, Hyderabad through sale deed dated 10.07.2008 registered as document No.1816/2008 for a total consideration of Rs.13,70,700/-, including car parking.  At the time of registration of sale deed, Ops 1 and 2 have handed over only one key out of nine keys (3 locks fitted to the shutter of the mulgi i.e., 3 keys for each lock) to complainants and when they insisted for handing over 8 keys, they assured to handover within 15 to 20 minutes after reaching back from the office of the Sub-Registrar.  It was also assured to complete all the pending works as pointed-out by the Complainants i.e., plastering, ceiling and wall painting, floor polishing, fixing of skirtings, replacing the broken pieces of marble flooring, fixing of switch boards. 

4)       Believing the sayings of Ops, Complainants trusted the representations made and paid the total sale consideration and the sale deed was executed accordingly.  After return from Sub-Registrar office, the Ops changed their version and stated that the remaining 8 keys were misplaced and assured to handover within a day or two.  When the Complainants opened the mulgi in the presence of Ops, they were surprised to see all the pending works were not completed.  On questioning, the Ops assured to complete within a week’s time but committed breach of trust.  Hence, they addressed a letter on 20.08.2008 requesting to complete the pending works, to pay the property tax of the mulgi from April 2008 to November 2008 amounting to Rs.8,259/- and to ear mark the car parking space as the watchman is not allowing to park the vehicle and further to handover the mulgi, but in vain.  They were constrained to park the car outside paying a rent of Rs.1,000/- per month from September 2008 onwards till date. 

5)       OP No.1 acknowledged the receipt of letter but OP No.2 got returned the same.  They also got issued a notice on 16.05.2012 through their counsel claiming Rs.97,320/- towards interest for the delay in handing over possession of the mulgi; to reimburse the property-tax, which were served on the Ops.  Hence the complaint with a prayer to direct the Ops to (a) ear-mark car parking space admeasuring 100 sft., (b) pay compensation of Rs.1,00,000/- for the deficiency in service; (c) pay compensation of Rs.50,000/- for physical and mental harassment meted-out to the Complainants; (d) refund Rs.97,320/- being interest @ 18% p.a. on Rs.13,70,700/- for 4 months 22 days of delay in handing over the possession of mulgi; (e) refund Rs.44,000/- towards charges incurred for parking of the car outside @ Rs.1000/- per month from September 2008 till April 2012; (f) refund Rs.8,259/- towards property tax; (g) handover the remaining 8 keys or in alternate replace all the three locks of the shutter with new locks; (h) pay Rs.10,000/- being advocate fee; (i) pay Rs.5,000/- towards costs of the complaint along with any other relief.

6)       Opposite parties, though served with notice, failed to enter into the defence and resist the claim.

7)       During the course of enquiry before the District Forum, in order to prove his case, the Complainant got filed his evidence affidavit and Exs.A1 to A11 and none appeared on behalf of the Ops. 

8)       The District Forum after considering the material available on record, allowed the complaint bearing CC No.521/2012 by orders dated 13.12.2013 directing the Ops as stated, supra, in paragraph No.1.       

9)       Aggrieved by the said orders, the Appellants/Opposite parties preferred this appeal contending that the forum below (a) failed to see that the complaint is barred by limitation as the sale deed was executed on 10.07.2008 and the complaint was filed on 13.09.2012; (b) failed to see that the mulgi purchased was for commercial purpose and as such, the same is outside the purview of the C.P. Act; (c) failed to see that the Building Owners Association of the complex is not made as a party to the complaint; (d) and that the Respondents/Complainants ought to have verified the mulgi and the parking area before getting the sale deed executed; (e) failed to consider the fact that there is no evidence to show that there are any pending works.  Hence prayed to allow the appeal with costs through-out by setting aside the orders of forum below.

10)     Pending appeal, the Respondents/Complainants filed an application seeking to receive the documents on record, which was ordered subject to proof and relevancy and the same are marked as Exs.A12 to A20 on behalf of the Respondents/ Complainants.  Ex.A12 is the copy of representation made by the respondents to the Appellants, dated 20.08.2008; Ex.A13 are the Photostat copies of the postal receipts; Ex.A14 is the proof of Under Certificate of Posting; Ex.A15 is the copy of returned envelope; Ex.A16 is the copy of electricity bill for Rs.1168/- dt.05.12.2008; Ex.A17 is the copy of receipt for Rs.1168/-; Ex.A18 are the copies of traffic violation challan (wrong parking) in respect of vehicle No.AP10AW1550 on 11.10.2013, on 25.01.2014 and on 29.01.2014; Ex.A19 are the photocopies of the returned postal covers and Ex.A20 are the copies of photographs showing parking slots allotted to different owners.

11)     The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner?  To what relief ?

12)     It is not in dispute that the Appellants sold the subject mulgi to the Respondents and executed the sale deed on 10.07.2008 as also with regard to receipt of sale consideration.  It is also not in dispute that the physical possession of subject mulgi was delivered in the month of November 2008.  The only dispute is that car parking area is not ear-marked.  At the first instance, the Appellants, having served with notice, remained absent before the forum below and have not chosen to enter the defence. 

13)     To disprove the contentions of the Respondents/Complainants, nothing is brought on record by the Appellants.  Though the Appellants would contend that the car parking space is allotted to all the owners/occupants of the mulgies including the Respondents/Complainants, nothing is placed on record to prove the same.  Except making a bald assertion that the car parking space is allocated, no piece of paper is filed evidencing the same.  On other hand, the documents Ex.A18 and A20 would go to show that as car parking is not ear-marked, the traffic police have imposed challan for wrong parking. 

14)     In so far as the aspect of limitation is concerned, the sale deed, admittedly was executed on 10.07.2008 and the complaint is filed on 13.09.2012.  Prior to filing of the complaint, the Respondents/Complainants addressed letter dated 20.08.2008 under Ex.A12 and sent the same by registered post as well as under Certificate of Posting, the proof of which are exhibited as Ex.A13 to A15.  This letter is addressed within short span from the date of execution of sale deed wherein in crystal clear terms, the Respondents got mentioned as below:

“Dear Sirs,

            We like to state that at the time of registration though you have taken full payment but handed over us only 1 key out of total 9 keys (3 locks fitted in shutter X 3 keys for each lock) and promised us at the O/o the S.R.O. that the balance 8 keys shall be handed over within 15-20 minutes after reaching back at the site from the Sub-Registrar’s office.  You had also confirmed that all the pending works shown to you earlier like plastering touch up, ceiling & walls painting, flooring polish, fixing of skirtings, changes of broken pieces of marble flooring, fixing of switch boards etc., have already been completed.

            On the basis of your promise to hand over the balance 8 Nos. key and your confirmation for the completion of all required pending works shown to you, we paid you full amount and got the registration done at the office of the S.R.O.

            But we are very sorry to state that after returning from the O/o the S.R.O. you changed your statement and intimated us that the balance 8 nos. of keys are not traceable and the same will be handed over within a day or two.  But till this date you have not handed over the balance 8 Nos. of keys.  Moreover, when we opened the shutter in your presence by using 1 keys as because only 1 lock was locked out of 3 locks and to our utter surprise we found that all the balance works as stated above were still pending and again you assured us that you will complete the total works and shall handover the premises in finished condition within a week’s time. 

            It clearly proves that you have made false promise regarding handing over the balance 8 Nos. keys at the O/o the S.R.O. at the time of registration and also made false declaration for completion of all pending works which we never expected from you being a Builder……”

From the above, it is clear that the pending works as promised were not completed and the keys were not handed over at the first instance.  For the reasons best known, the Appellants failed to respond to this notice.  However, under Ex.A2 another letter was addressed by the Respondents to the Appellants on 20.04.2012, of which, the Appellant No.2 acknowledged the same while Appellant No.1 got returned the same under Ex.A3.  Again, the Respondents got issued the notice on 16.05.2012 under Ex.A4 and A5, which were stated to have been acknowledged by the Appellants under Ex.A10 and A11 letters but they failed to give any reply for the same.  Having chosen not to respond, the Appellants, now cannot turn around and contend that the complaint is barred by limitation.  We are not inclined to accept the said contention of the Appellants. 

15)     Except making bald and vague assertions, the Appellants failed to bring any piece of evidence on record to disprove the contentions of the Respondents.  Hence, in the above facts and circumstances, we do not see any merit in the appeal, however, we concur with the findings of the forum below.  The point framed for consideration in paragraph No.11, supra, is answered accordingly.

16)     In the result, the appeal fails and is accordingly dismissed but in the circumstances, parties to bear their own costs.

PRESIDENT                   MEMBER

  Dated 16.09.2016

EXHIBITS MARKED

For Respondents :

Ex.A12 Copy of representation made by the Respondents to the Appellants, dated 20.08.2008.

Ex.A13 Copies of postal receipts, bearing date: 21.08.2008.

Ex.A14 Copies of Under Certificate of Posting acknowledgements.

Ex.A15 Copy of postal returned cover.

Ex.A16 Copy of electricity bill, dated 05.12.2008 for Rs.1168/-.

Ex.A17 Copy of payment receipt for Rs.1168/- obtained from e-seva.

Ex.A18 Copy of e-challans sent by the Traffic police, on account of traffic violation (wrong parking), on 11.10.2013; 25.01.2014 and 29.01.2014, in respect of Vehicle No.AP10AW1550.

Ex.A19 Copy of Copies of returned postal covers addressed on the name of Appellants.

Ex.A20 Copies of photos showing parking slots allotted to different owners/occupiers.

PRESIDENT                  MEMBER

  Dated 16.09.2016