Andhra Pradesh

Chittoor-II at triputi

CC/19/2013

Smt. D.Malini Reddy W/o. D.Ram Bhupal Reddy - Complainant(s)

Versus

M/s.Marg Business Park Limited and Yuva Constructions Private Limited, - Opp.Party(s)

P.Ramana

15 Jul 2014

ORDER

Filing Date:16.03.2013

Order Date: 15.07.2014

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

TIRUPATI

 

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

        Smt. T.Anitha, Member

 

TUESDAY THE FIFTEENTH DAY OF JULY, TWO THOUSAND AND FOURTEEN

 

C.C.No.19/2013

 

Between

 

Smt. D.Malini Reddy,

W/o. D.Ram Bhupal Reddy,

Hindu, aged about 40 years,

Employee, residing at

Plot No.18-1-502, Flat No.304,

B-Block, III Floor, Chenji Plaza,

K.T.Road,

Tirupati,

Chittoor District

                                                                                                            … Complainant

 

And

 

 

M/s. Marg Business Park Limited and

Yuva Constructions Private Limted,

Rep. by Owner / Developer and G.P.A. Holder for Marg Ltd.,

Holding Regd. Office at D.No.4/1318, Old Mahabalipuram Road,

Kottiwakam,

Chennai.                                                                                            …  Opposite party..

 

            This complaint coming on before us for final hearing on 01.07.14 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.P.Ramana, counsel for the complainant and Sri.N.Manohar, counsel for the opposite party 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 Sections-12 and 14 of C.P.Act 1986, for deficiency of service on the part of the opposite party and for compensation of Rs.10,00,000/- towards damages, Rs.1,00,000/- towards mental agony and Rs.5,000/- towards legal expenses.

2. The brief facts of the case are as follows:-  The complainant purchased the schedule mentioned property from the opposite party and entered into sale-cum-construction agreement and in the said agreement, it is mentioned that the possession of the residential apartment i.e. schedule mentioned property would be delivered by June 2011 with a grace period of 4 months. Subsequently, on 17.11.2011 the opposite party executed a registered sale deed in favour of the complainant for semi finished flat and the complainant paid Rs.18,48,399.66/- in total to the opposite party. The complainant also demanding the opposite party to complete the apartment and on 17.11.2012 the complainant also got issued Email to the opposite party that the complainant did not receive any information about the completion of the apartment and the opposite party did not give any response. On 31.01.2013, the complainant received Email given by the opposite party and in the said Email the opposite party directed the complainant to take possession of the apartment and demanded to pay Rs.8,53,072/- with other reasons. Immediately, the complainant and her husband visited the schedule mentioned flat and found unfinished and not constructed as per the specifications and the complainant took photographs of the schedule mentioned flat and surroundings, which shows that the opposite party could not comply the terms and conditions of the contract and therefore there is deficiency of service on the part of the opposite party and therefore the opposite party caused mental agony to the complainant and that the complainant is entitled for the reliefs as prayed for. Hence the complaint.

3.  The opposite party filed written version admitting that the complainant purchased the schedule mentioned flat, both of them entered into a sale-cum-construction agreement of the said flat and the complainant paid Rs.18,49,000/-. It is further admitted that the opposite party sent Email that the opposite party completed the flat and directing the complainant to take possession of the flat and demanded to pay Rs.8,53,072/-. The opposite party denied the other allegations stated in the complaint. The opposite party alleged that the complainant booked a flat No.603 in Block-A on dt:14.04.2009 at Rs.1,499/- per sq.ft and paid Rs.50,000/- as advance and subsequently the complainant paid Rs.18,49,905/- in total to the opposite party and the complainant got registered her flat on 17.11.2011. It is further alleged that the total sale consideration of the flat purchased by the complainant is Rs.24,11,956/-, but the complainant paid Rs.18,49,000/- and the balance amount of Rs.5,62,956/- is to be paid as on 14.03.2013 and there is no deficiency of service on the part of the opposite party and instead of paying the balance amount, the complainant approached this Forum with false claims and she has no right to seek any relief from the opposite party. So saying, the opposite party prayed to dismiss the complaint with exemplary costs.         

4.  On behalf of the complainant, P.W.1 and 2 examined and Exs.A1 to A14 marked. On behalf of the opposite party R.W.1 examined and Exs.B1 and B2  marked. Both parties filed written arguments. Heard both sides.  

5.  The points for determination are:-

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

       party? If so, whether the opposite party caused damages to the

       complainant and doing unfair trade practice as prayed for by the

       complainant?

 (ii).  To what relief?   

6.  Point No.(i):- The complainant herself filed affidavit on evidence as P.W.1, which is nothing but reproduction of the contents in the complaint. It is undisputed that the complainant purchased flat No.603, in Block-A as mentioned in the complaint from the opposite party and both parties entered into a sale-cum-construction agreement of the said flat and as per the said agreement, the opposite party had to deliver the flat to the complainant by June 2011 with a grace period of 4 months. It is further undisputed that the opposite party executed a registered sale deed for a semi finished flat in favour of the complainant on 17.11.2011. It is significant to note that nowhere it is mentioned either in the complaint or in the affidavit on evidence of P.W.1 about the total sale consideration of the flat said to have been purchased by the complainant. In Para.3 of the affidavit on evidence of P.W.1, it is stated that the complainant paid Rs.18,48,399.66/- in total and so that P.W.1 paid major amount for the schedule mentioned flat. The details of the part payments is marked as Ex.A3. The evidence of P.W.1 itself is clear that P.W.1 paid major amount towards her flat out of the total consideration and the balance amount of sale consideration is yet to be paid by the complainant to the opposite party.

7.  While the things stood thus, the complainant got issued Ex.A4 Email to the opposite party wherein it is stated that the complainant could not receive any information about the completion of the flat purchased by P.W.1. In reply, the opposite party got issued Ex.A5 Email informing the complainant that the flat of the complainant was already completed and directed the complainant to take possession of the flat and demanded to pay an amount of Rs.8,53,072/- with other reasons. Immediately, the complainant and her husband visited the flat and found that it was purely unfinished and not constructed as per the specifications and floor plan as stated in the sale deed and brochure and project was also not completed in and around Vishwashakthi i.e. Marg properties. It is manifest that at first the complainant got issued Ex.A4 Email on 17.11.2013 stating that the complainant could not receive any information about the completion of the flat for a very very long time and need update on her flat. Then the opposite party got issued Ex.A5 reply on 31.01.2013 to Ex.A4 stating that the apartment of the complainant is ready for possession and find the cost break-up for your apartment. After receipt of Ex.A5 immediately the complainant and her husband visited the flat and found it unfinished and not constructed as per the specifications in the sale deed and brochure. Thereafter on 06.02.2013, the complainant got issued Ex.A6 informing the opposite party that they visited the flat on 04.02.2013 and measured the interior area with the assistance of Mr. Nathan, Marg Employee and found the interior area is less than the measurements shown in the brochure. At this juncture it creates a doubt that had the complainant and her husband really visited the flat on 04.02.2013 i.e. immediately after receipt of Ex.A5 dt:31.01.2013 and found their flat unfinished and not constructed as per the specifications in the sale deed Ex.A2, certainly the complainant should have informed the same fact to the opposite party in Ex.A6 itself. But Ex.A6 is silent about not constructing the flat as per the specifications in Ex.A2 sale deed as contended by the complainant. Ex.A7 is the copy of Ex.A6, wherein the opposite party has given the details with regard to the measurements of super built-up area. Except Ex.A6, absolutely there is no iota evidence to believe that there is a short of 30 ft. and the evidence of P.W.1 is also silent about the short of 30 ft. as stated in the complaint.

8.  Further, the complainant got marked Ex.A8 legal notice issued to the opposite party on 21.02.2013. In Para.2 of Ex.A8 it is categorically stated as extracted hereunder:

“immediately my client and her husband visited the notice schedule flat and she was shocked by seeing the schedule flat, it is purely unfinished flat and it is not constructed as per the specification and floor plan submitted in the sale deed and also in the brochure. Further project was also not completed in and around Vishwashakthi i.e. Marg properties. So, my client has taken the photographs of the notice schedule mentioned flat and also surroundings, which shows they have not complied with the terms and conditions of the contract”

   

For which the opposite party got issued reply notice Ex.A10 to the complainant. In Para.4 of Ex.A10 it is sated as extracted hereunder:

“ From your notice, it is not set out what are the outstanding works to be done by my client. At any rate, it is not known when the alleged photographs were taken. Therefore, there is no question of payment of any damages. The delay is due to your client non-performance, no photographs are enclosed along with your notice as stated”

 

It is therefore, nowhere it is specifically stated either in the complaint or in the affidavit on evidence, in Ex.A6 or in Ex.A8 legal notice, what are the outstanding works to be done by the opposite party or what are the specifications stated in the sale deed or brochure as contended by the complainant. It is for the complainant to highlight the specifications left over or to be done by the opposite party, at first in the legal notice, complaint and in evidence. Simply stating that the opposite party could not comply the specifications as per the sale deed is not sufficient. There should be cogent evidence to prove the contention of the complainant with regard to non-complaince of the specifications mentioned in the sale deed. The complainant got marked Ex.A11 photographs with C.D and bill. The photographs shows the date that on 29.05.2013 the said photographs were taken. It is not the case of the complainant that on 29.05.201 those photographs were taken. Ex.A8 legal notice indicates that those photographs were taken prior to issue Ex.A8 i.e. prior to 21.02.2013. In support of the claim of the complainant, the complainant got examined P.W.2 A.V.Lakshmi. P.W.2 stated that at the request of the complainant, she visited the flat of the complainant and supplied photos and report to the complainant. P.W.2 opined that the flat of the complainant is incomplete including common amenities at the time of her visit. During the cross examination P.W.2 categorically admitted that she has not gone through the agreement between the complainant and the opposite party with regard to the specifications and amenities specified in the said agreement. P.W.2 further deposed that some families occupied their respective apartments. She further admitted that the photographs confronted to her clearly shows the flooring and painting and the flat bearing No.603 is belonged to apartment of the complainant. P.W.2 further admitted that no notice was issued to the counsel for the opposite party before visiting the flat of the complainant. The complainant got marked Ex.A12 report of P.W.2. Ex.A12 shows that the common amenities shown in Sl.No.2 of the report are not complied by the opposite party. If Ex.A12 is taken into consideration, Ex.A8 legal notice, the complaint and the affidavit on evidence of P.W.1 becomes false. If Ex.A8 legal notice, the complaint and affidavit on evidence of P.W.1 are taken into consideration, the contents in Ex.A12 becomes false because the common amenities stated in  Sl.No.2 in Ex.A12 are not found place in Ex.A8 legal notice, the complaint and affidavit on evidence of P.W.1. P.W.2 categorically stated that she never gone through the contents in the agreement executed between the complainant and opposite party and she does not know the specifications and amenities mentioned therein. When the common amenities specified in Ex.A12 are not found place in Ex.A8 legal notice, the complaint and affidavit on evidence of P.W.1, the contents in Ex.A12 could not be looked into. Further the complainant never placed any list of common amenities or specifications before P.W.2 before observation of the flat. Without knowing the specifications mentioned in the agreement, it could not be possible for P.W.2 to observe the common amenities in the flat. The complainant got marked Exs.A11 and A14 CD’s. But P.W.2 never deposed that she also supplied or handed over CD’s to the complainant. P.W.1 also never stated about the existence of Exs.A11 and A14 or CD’s were taken along with photographs. The complaint was filed on 16.03.2013 and the photographs, which are marked as exhibits were taken on 29.05.2013.

9.   On behalf of the opposite party M.Chenga Reddy filed his affidavit on evidence and deposed that there is no delay in construction of the flat and the complainant failed to pay the balance amount of Rs.5,62,956/- and interest of Rs.2,98,657/- as per Ex.B2 agreement. It is further deposed that instead of paying the balance amount and take the possession of the apartment, the complainant filed this complaint before this Forum and therefore there is no deficiency of service on the part of the opposite party and without paying the balance amount, the complainant hasn o right to seek any relief against the opposite party. Apart from the evidence of R.W.1, opposite party got marked Ex.B1 Agreement of Sale and Ex.B2 copy of Email sent to the complainant. Both Exs.B1 and B2 were not filed by the complainant. During the cross examination, P.W.1 admitted that Ex.B1 is an agreement and Ex.B2 was issued by the opposite party and P.W.1 could not comply the demands raised in Ex.B2. It is further admitted by P.W.1 that the total sale consideration of the flat is mentioned as Rs.23,53,772/- in Ex.B1.  As the total consideration is mentioned in Ex.B1, the complainant could not file Ex.B1 on her behalf and P.W.1 also admitted in the complaint as well as in the evidence that she paid major amount towards sale consideration. P.W.1 never stated the total sale consideration. P.W.1 did not comply the demand stated in Ex.B2 dt:07.02.2013 and also could not issue any reply to Ex.B2 denying the contents therein. If P.W.1 paid major sale consideration, she ought to have paid the balance of sale consideration as stated in Ex.A5 and Ex.B2. At this juncture, it could be stated that as the complainant should have to pay balance of sale consideration, she could not deny the contents in Ex.A5 and Ex.B2. Further, the complainant never stated that she is ready to pay or not liable to pay the said balance of sale consideration or opposite party claiming excess sale consideration. In the absence of such evidence, it could be stated that the complainant ought to have pay the said amount and to take possession of the flat. The evidence of P.W.2 goes to show that some other flat owners in the said apartment are residing in their respective flats and flooring and painting works of the flat of the complainant also completed. The counsel for the opposite party confronted some photographs to P.W.2 during the course of cross examination and P.W.2 admitted that those photographs belongs to the flat of the complainant. The complainant never denied those photographs. In view of the above evidence, an inference could be drawn that the complainant suppressed some material facts happened. Ex.B2 was issued on 07.02.2013 and the complainant filed this complaint before this Forum on 16.03.2013. After filing this complaint, the complainant developed evidence by way of photographs, CD’s and by engaging P.W.2 to strengthen the case of the complainant after thought. The learned counsel for the opposite party contended that the complainant could not cooperate with the opposite party, could not sign in the agreement till the month of April 2011 and complainant also refused to comply for loan expressing that she had some tie-up for her benefits with State Bank of India and after several follow-up calls, the complainant had applied for loan in S.B.I. on 04.05.2011. It is further contended that whenever the opposite party approached the complainant, she did not cooperate for the disbursements ever after registration from bank and delayed every time and used to quarrel to give her consent to the bank. The complainant did not make the payments as per the schedule i.e slab wise to work progress wise as per the terms of the agreement and implementation of service tax from January 2012 as mentioned in the agreement. So both the complainant and opposite party filed their respective affidavits on evidence on 22.07.2013 and the opposite party also supplied the copy of evidence on affidavit to the complainant on the same day, but the complainant did not show any interest to deny the evidence of R.W.1 i.e. opposite party with regard to the above contentions of the learned counsel of the opposite party. If evidence of R.W.1 is false, the complainant ought to have denied the evidence on the contents in the affidavit on evidence. But the complainant could not try to prove the contents in the affidavit on evidence of R.W.1 is false. Under these circumstances an inference could be drawn that due to delay of payments and non-cooperation of the complainant, the delay has been occurred in construction of the flat of the complainant and therefore absolutely there is no cogent evidence to show that there is deficiency of service on the part of the opposite party as contended by the complainant. So, the entire case of the complainant clearly indicates that the complainant did not come to the Forum with clean hands. It is therefore absolutely there is no cogent evidence to substantiate the version of the complainant and could not be possible to come to the conclusion that there is deficiency of service on the part of the opposite party and due to which the opposite party caused damages and mental agony to the complainant and that the opposite party is liable to be pay damages and compensation to the complainant as prayed for.

10.  In view of the above reasons, we are of the opinion that the complainant failed to prove her case and that the complaint is liable to be dismissed. Hence, this point is answered against the complainant.

11.  Point No.(ii):-  In the result, the complaint is dismissed without costs.

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 15^th day of July, 2014.

       Sd/-                                                                                                                 Sd/-                   

Lady Member                                                                                               President (FAC)

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

 

 

PW-1: Smt. D.Malini Reddy (Chief Affidavit filed).

PW-2: A.V.Lakshmi (Examined in the Forum).

RW-1: M.Chenga Reddy (Chief Affidavit filed).

 

 

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Date	Description of Documents
Ex.A1		Broacher of the Opposite Party for the schedule mentioned flat.
2	17.11.2011	Registered sale deed for Semi-finished schedule flat in favour of  the Complainant by the Opposite Party.
3.		Details of payments made by the Complainant to the Opposite Party.
4	17.11.2012	Email sent by the Complainant to the Opposite Party.
5	31.01.2013	Email sent by the Opposite Party to the Complainant.
6	05.02.2013	Email sent by the Complainant to the Opposite Party.
7	06.02.2013	Email sent by the Opposite Party to the Complainant.
8	21.02.2013	Legal Notice sent by the Complainant to the Opposite Party.
9		Postal acknowledgments of the Opposite Party.
10	06.03.2013	Reply notice sent by the Opposite Party.
11	02.02.2012	Photographs with C.D. and bill.
12		Report given by licensed person.
13		Photographs (17).
14		C.D.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

Exhibits	Date	Description of Documents
Ex.B1		Sale cum contract agreement executed by the Complainant in favour of  the Opposite Party.
2	07.02.2013	Copy of mail sent to the Complainant by the Opposite Party.

                                                                       

 

                                                                                                                                  Sd/-                                                                                                                                                                                                              President (FAC)

 

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

 

 

Copies to:-     1. The Complainant.

                        2. The opposite party.