Andhra Pradesh

Chittoor-II at triputi

CC/72/2013

Flat Owners Association of Venkataramana Towers (Apartment RegistrationNo.49/13),M.C.R.Colony at the rate Chenna Reddy Colony,Old Alipiri Road,Tirupati, - Complainant(s)

Versus

M/s. Chebrolu Constructions Rep. by its Managing Partner,Mr.CH. Prabhakar Sharma, - Opp.Party(s)

Sri.K.Rukmangadha Rao

06 May 2014

ORDER

Filing Date:30.09.2013

Order Date: 06.05.2014

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

TIRUPATI

 

PRESENT: Sri.M.Anand, President (FAC),

        Smt. T.Anitha, Member

 

TUESDAY THE SIXTH DAY OF MAY, TWO THOUSAND AND FOURTEEN

 

C.C.No.72/2013

 

Between

 

Flat Owners Association of

Venkataramana Towers (Apartment Registration No.49/13),

M.C.R.Colony @ Chenna Reddy Colony,

Old Alipiri Road,

Tirupati,

 

Rep. by its President Sri.V.R.Kishore Kumar,

S/o. V.Narasimha Rao,

Flat No.103, Venkataramana Towers,

M.C.R.Colony,

Tirupati.                                                                                             … Complainant

 

And

 

M/s. Chebrolu Constructions

Rep. by its Managing Partner,

Mr.CH. Prabhakar Sharma,

Holding office at No.G/1, Ground Floor,

Chebrolu Residency,

6-2-105/B, T.Nagar,

Tirupati.                                                                                             …  Opposite party.

 

            This complaint coming on before us for final hearing on 24.04.14 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.K.Rukmangadha Rao, counsel for the complainant and opposite party remained exparte and and having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERED BY SRI. M.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

 

            This is a complaint filed under Section-12 of C.P.Act, directing the opposite party to pay Rs.15,00,000/- with interest at 12% per annum from 01.01.2008 to till the date of realization and to pay Rs.4,98,000/- towards compensation for the mental agony suffered by the complainants.

2. The brief averments in the complaint are as follows:-  The opposite party is the developer of Venkataramana Towers, the residential apartment. The opposite party and one late Smt. Nagamma and her two daughters, who are the land owners of the Venkataramana Towers, entered into an agreement on 11.03.2005 and according to the said agreement, the developer i.e. the opposite party should have to complete the formalities in constructing the apartment. Later, the said Nagamma died and her husband and children succeeded her estate and their share and the share of the opposite party also specified. The owners of the flats in the Venkataramana apartment purchased their respective flats from the opposite party and at the time of purchase, the opposite party promised that he could handover full-fledged and finished flats by the end of 2007. But the opposite party failed to keep-up his promise and he left most of the building works to a tune of Rs.15,00,000/-. A details report issued by one Engineer regarding incomplete works is also filed along with the complaint. Inspite of repeated oral requests, the complainants also got issued legal notice to the opposite party but he evaded receiving the notice. Ultimately, on 28.07.2013, the complainants association resolved to file complaint against the opposite party and accordingly the complainants filed this complaint against the opposite party. Hence the complaint.

3.  Notice was issued to opposite party but it was returned with an endorsement “Door Locked”. Notice was issued by substitute service i.e. by publication in Eenadu daily. Even then, the opposite party failed to appear before this Forum and that he was set exparte. It is therefore the opposite party is not defending this case.

4.  On behalf of the complainants association, one V.R.Kishore Kumar, the President of Flat Owners Association of Venkataramana Towers, filed his chief affidavit and got marked Exs.A1 to A7. The complainant also filed written arguments. Heard on behalf of the complainant.

5.  The points that arise for determination are:-

(i).  Whether the flat owners of Venkataramana Towers purchased their

        respective flats from the opposite party?        

(ii).  Whether there is any deficiency of service on the part of the opposite

         party?

(iii).  Whether the complainants association is entitled for the relief as prayed

          for?

(iv).  To what relief?

6.  Point Nos. (i) to (iii):-  the Flat Owners Association of Venkataramana Towers, M.C.R.Colony, represented by its President, V.R.Kishore Kumar, filed this complaint against the opposite party M/s.Chebrolu Constructions represented by its Managing Partner Mr.CH.Prabhakar Sharma. The complainants contending as extracted hereunder in Para.5 of the complaint “ ...... the opposite party sold most of the flats fell to his share promising the purchasers to handover a full fledged finished flats by the end of 2007 .......”. In Para.6, it is further stated as hereunder “........ though the opposite party has promised to finish all the pending works to the purchasers of flats, but postponing the works on some pretext or other ........”.  Except stating that the opposite party promised the purchasers that he could handover the full fledged finished flats, the entire complaint is not disclosed that the complainants are the members in the so called association purchased their respective flats from the opposite party on a particular date, month and year. The complaint is totally silent the date, month and year when actually the flat owners purchased the respective flats from the opposite party. At the outset, the burden lies on the complainants to prove that the complainants purchased their respective flats from the opposite party, then only it has to be seen whether there is any deficiency of service on the part of the opposite party. One Kishore Kumar, the President of the Flat Owners Association, filed his affidavit on evidence. In the said affidavit also, the President never deposed the date, month and year of purchase and when the opposite party had executed registered sale deeds in favour of the complainants in respect of their flats. No document is filed by the association to believe that there is a contract between the complainants and opposite party and as per the said contract the opposite party promised to render his services for a consideration, which has been paid or promised and partly paid or partly promised. The complainants got marked Ex.A5 letter dt:18.10.2012 said to have been written by the opposite party to one Kishore and Radhika Kishore. It is un-understandable as to why the complainants got marked Ex.A5 because nothing is there in Ex.A5 to show that the opposite party promised the complainants to complete the pending works as alleged by the complainants in the complaint. Further Ex.A5 was issued on 18.10.2012 to one Kishore and Radhika Kishore and the same was filed on 17.09.2013. Though Ex.A5 was issued earlier to the date of filing of the complaint, there is no whisper or reference about Ex.A5 in the complaint. Had the opposite party really wrote Ex.A5 to Kishore and Radhika Kishore, it creates a doubt as to why the existence of Ex.A5 is not referred in the complaint. According to the complainants Ex.A5 is a crucial document. If that be so, the complainants ought to have mentioned about Ex.A5 in the complaint. In the absence of Ex.A5 in the complaint, an adverse inference could be drawn that Ex.A5 has been brought into existence after filing the complaint and that Ex.A5 could not be taken into consideration.

7.  The complainants further got marked Ex.A2 said to have been issued by one Assistant Engineer regarding pending external works in D.No.6/1/2 and 6/1/3, Venkataramana Towers, C.R.Colony, Tirupati. According to Ex.A2, the external works in two flats i.e. in D.No.6/1/2 and 6/1/3 is pending. Except filing Ex.A2, the complainants could not choose to file the affidavit on evidence of the said Engineer, who issued Ex.A2. The evidence of the said Engineer is essential to believe that the contents in Ex.A2 are true and correct, because the estimated cost of the pending works is Rs.14,30,610/- only for two flats i.e. flat No.6/1/2 and 6/1/3. Except the cost of pending works, Ex.A2 is silent whether the said Engineer visited the apartment and if he visited when and how should be stated in Ex.A2. Simply issuing of Ex.A2 is not sufficient and it should be proved with cogent evidence. In the absence of such evidence, Ex.A2 could not be believed to be true and correct.

8.  The complainants also got marked Ex.A3 and A4 copies of orders in C.C.No.88/2010 and C.C.No.95/2010, which are not at all helpful to the case of the complainants. The complainants also got marked Exs.A6 and A7 copies of Minutes Book and registration of Flat Owners Association of Venkataramana Towers and By-Laws. Except Exs.A1 to A7, absolutely there is no cogent and clinching evidence to show that the complainants purchased their respective flats from the opposite party and the opposite party promised the complainants to handover the full fledged and finished flats to the complainants and thereby the opposite party committed breach of contract and that there is deficiency of service on the part of the opposite party.

9.  In view of the above reasons, we are of the opinion that the complainants miserably failed to prove their case against the opposite party and that they are not entitled for the reliefs as prayed for and that the complaint is liable to be dismissed.

10.  Hence, the points 1 to 3 are answered against the complainants.

11.  Point No.(iv):-   In the result, the complaint is dismissed. No costs.

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 6^th day of May, 2014.

       Sd/-                                                                                                                  Sd/-      

Lady Member                                                                                               President (FAC)

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

 

PW-1: V.R.Kishore Kumar (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Date		Description of Documents
Ex.A1	16.04.2013		Office copy of the regd. Notice with receipt and return cover.
2			Detailed estimation of pending works made by the Engineer.
3			Copy of Award in C.C.No.88/2010 of this Hon’ble Forum.
4			Copy of Award in C.C.No.95/2010 of this Hon’ble Forum.
5.	18.10.2012		letter addressed by the Opposite Party to the Complainant along with cover promising to complete the works.
6	26.07.2013        & 28.07.2013		Copy of minutes Book.
7		Registration copy of Flat Owners Association of Venkataramana Towers Apartment along with Bye Laws.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

- Nil -

 

 

                                                                                                                                                                                                            Sd/-   

President (FAC)

 

// TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

             Dist. Consumer Forum-II, Tirupati.

 

 

Copies to:-     1. The Complainant.

                        2. The opposite party.