R. Lakshminarasimha Rao, Incharge President
The complainant-association is the appellant. The appellant-association has filed complaint claiming furnishing of link documents, encumbrance certificate and final approved layout, Proceedings of GHMC and HUDA with regard to permission for construction of the above complex, Building Penalization scheme proceedings for fifth floor construction by GHMC, sanction from various departments with regard to drainage water supply and electricity and completion of painting to the building, water proofing, repair of stilt floor, providing cover for drainage, providing electrical earth connection, laying of TV cable lines, relocating the DG generator set, demarcation of visitors’ car parking area, providing slab to bath of the watchman, installation of fire safety equipment, construction of boundary wall around the complex, erection of laying of drain pipes from terrace, removal of transformer, transfer of leasing rights of internet tower and removal of gate constructed along the partially constructed compound wall etc., or for payment of Rs.15,00,000/- for carrying out the work and for an amount of Rs.2,00,000/- towards compensation.
The appellant-association submitted that it was formed in the year, 2009 and the respondent has not completed total work relating to amenities and it had not handed over the entire building complex to the appellant-association. The appellant-association held meeting wherein the respondent participated and promised to hand over the link documents, encumbrance certificate and layout approval of GHMC. The opposite party addressed letter dated 11.11.2009 stating that it handed over the affairs of the complex along with other records, which is false.
The respondent had not completed provisions of amenities and it has not handed over the documents. The appellant got issued notice dated 18.03.2010 giving opportunity to the respondent to keep its promise. The respondent is liable to complete pending work, make good the defects of the building complex.
The respondent filed written version contending that the complaint is not maintainable and that at the time of taking possession of the flats none of the members of the appellant-association complained of any grievance and having satisfied of the work done as per the terms and conditions of the agreement, the members of the appellant-association had taken possession of the flat.
The respondent contended that in the meeting held in November, 2009 the respondent made clear that the apartments were already handed over to the flat owners and by the time of delivering possession, the apartments were painted and that there was no agreement for providing plastic sheets to cover the terrace. It is contended that the appellant has not brought to the notice of the respondent any damage to the stilt floor and for the first time it made the claim in the complaint.
The respondent submitted that there was no damage caused to the stilt floor of the building and it provided the electrical earth connection as per the norms of the APCPDCL which granted sanction after satisfying itself with the earthing provided to the building and the individual flats. All the flats were provided with TV and telephone cables and none of the flat owners complained in this regard and covers to the manholes were provided which if lost it is for the appellant to take steps for its maintenance. Pipes were provided from terrace to ground floor for free flow of water and there in no agreement for providing steel sheets to the watchman room and toilet. A ladder is also provided for the members to make use of it.
The respondent further submitted that at the time of purchase of the flats, the flat owners agreed to allow ingress and egress or free entry to the vehicles of the adjacent complex constructed by the respondent-firm and there was agreement relating to other amenities. The appellant is estopped from making the claim. The respondent allotted car parking slots to the flat owners by conducting draw of lots.
The President of the Association filed his affidavit and the documents, ExA1 to A6 and on behalf of the respondent-firm, its Managing Partner filed his affidavit and the documents, ExB1 to B4.
The District Forum allowed the complaint granting relief for handing over the documents to the appellant-association and dismissed the complaint relating to the rest of the reliefs on the premise of admitted facts.
Feeling dissatisfied by the order of the District Forum, the complainant-association, has filed appeal contending that the District Forum failed to see that the main grievance raised was with regard to common amenities of the complex and the possession letter given by the members of the complainant association is to the effect that there were no further obligations or dues from either side and the builder has handed over the flat with all amenities whereas the dispute raised by the appellant was mostly with regard to common amenities and the above possession letter is only with regard to individual flat and not for the total building.
The appellant contended that unless there is a document executed by the appellant and respondent admitting and acknowledging delivery and taking over the complex for maintenance and receipt of original documents, it cannot be concluded that the respondent had delivered possession of the complex with all amenities. The photographs filed and marked as Ex.A7 have not been taken into consideration. The appellant denied that there was any meeting on 09-11-2008 and the respondent made such an allegation without any proof and hence the same cannot be fatal to the case. The appellant stated that the respondent has not constructed boundary wall and provided ladder and further the respondent had not refuted the contention in their written version or affidavit evidence and the members were of the opinion that once the construction is complete the compound wall will be raised thinking that the agreement of sale is temporary signed the same. The respondent cannot take advantage of the terrace rights and allowed installation of the Broadband net work towers over the terrace posing danger to the structure of the complex.
The appellant contended that the car parking provided was congested and not as per the promise made by the respondent and further no sufficient pathway for the cars to ingress and aggress inside the complex was provided and the District Forum erred in accepting the version of the respondent stating that not even a single member filed affidavit contradicting the same and there is no evidence placed to show that 100 sft. will be provided though Ex.A8 proves the same. The transformer erected in the complex meant to adjacent complex and the transformer pertaining to adjacent complex cannot be erected within the compound wall of the complainant association. The opening in the compound wall for the purpose of facilitating ingress and egress of persons from the adjacent complex which was constructed in height more than the land of the appellant complex is allowing the rain water of the adjacent complex and also waste water from clearing any part of the adjacent complex is left towards the complex of the appellant and therefore they had sought for closure and completion of compound wall.
The counsel for appellant and respondent filed written arguments.
The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
The facts beyond any dispute are that the respondent-firm constructed residential building complex ’Suveela apartments’ consisting of 26 Flats in five floors at Moosapet village of Balanagar mandal, Kukatpalli Municipality, Ranga Reddy district. The respondent, for construction of the building, entered into ’Development Agreement’ with the owners of land, K.Srinivas Rao and K.Sanjeeva Reddy. The respondent-firm completed the construction of building and handed over possession of the flat to the purchasers as also the appellant-association was formed in the month of May,2009 to take care of maintenance of the building and common amenities.
After it was formed, the appellant-association addressed letter dated 5.11.2009 requesting the respondent-firm to hand over maintenance of amenities of the building to it and the respondent-firm in its reply dated 11.11.2009 reminded the appellant that an adhoc committee was formed by the flat owners and in the meeting participated by all the flat owners on 9.11.2008 wherein it was resolved to form a society to take over the affairs of the apartments and the respondent handed over the maintenance of the common amenities and common areas to the flat owners and the President of the adhoc committee acknowledged receipt of the same.
The members of the appellant-association at the time of taking possession of their respective flats, issued ‘possession letters’ in favour of the respondents wherein they had stated that the respondents constructed the flats in accordance with the specifications and in terms of the agreed conditions as also that the flats were constructed to their satisfaction.
The respondent asserted maintenance of the common amenities of the building was taken over by the adhoc committee which collected maintenance charges for payment of common electricity bill, municipal water bill, salary of the watchman etc., in the second paragraph of its reply dated 11.11.2009 which reads as under:
'Accordingly, in the said meeting we handed over the maintenance of the common amenities and common areas to the flat owners. To that effect an acknowledgement was also issued to us by the signatory of your letter in the capacity of President of the adhoc committee. Further from that day onwards your association is maintaining all the amenities and facilities including maintenance of common areas, collection of monthly maintenance amounts from individual flat owners, payment of salaries to watchman, payment of common electricity bill, municipal water and other connected expenses'.
The appellant-association got issued notice dated 18-3-2010 calling upon the respondent-firm to hand over the documents, viz, title deeds, link documents, encumbrance certificate, and final approved layout, Proceedings of GHMC and HUDA with regard to permission for construction of the above complex, Building Penalization scheme proceedings for fifth floor construction by GHMC, sanction from various departments with regard to drainage water supply and electricity and complete pending work such as painting to the building, water proofing, repair of stilt floor, providing cover for drainage, providing electrical earth connection, laying of TV cable lines, relocating the DG generator set, demarcation of visitors’ car parking area, providing slab to bath of the watchman, installation of fire safety equipment, construction of boundary wall around the complex, erection of laying of drain pipes from terrace, removal of transformer, transfer of leasing rights of internet tower and removal of gate constructed along the partially constructed compound wall etc.,
The appellant in its reply has not denied formation of adhoc committee and its holding meeting on 9.11.2008 as also the respondent-firm handing over the maintenance of the common areas of the building and the adhoc committee taking over the responsibility of maintenance of the common areas and common amenities by collecting maintenance charges from the flat owners. In the circumstances, the respondent-firm has invoked application of the principle of estoppel.
In 'Hope Plantations Ltd vs Taluk Land Board, Peermade and another' (1999)5 SCC 590, the Hon’ble Supreme Court considered the doctrine of estoppel. The facts of the case are that south India Tea Estate Company Ltd filed return/statement surrendering 267.16acres as falling in the category of excess of ceiling area under the provisions of The Kerala Land Reforms (Ceiling) Ruels,1970 before the Land Board and claimed exemption under four heads,1. Teak plantation, 2.Roads and Buildings, 3. Area for the Fuel Trees and 4,Other Agricultural lands interspersed. The Taluk Land Board disallowed the claim for exemption as ‘fuel area’ and ‘rested tea area’ and the Kerala High Court allowed the revision preferred by the claimant restoring the claims made for fuel area and rested tea area and remanded the matter to Taluk Board for redetermination of ceiling area under the heads, ‘Roads and Buildings’ and ‘Other Agricultural Lands Interspersed’ .
On appeal against the order of the High Court preferred by the State of Kerala, the Supreme Court restored the order of the Taluk Land Board. On remand, the Taluk Land Board decided the matter in favour of the claimant. On revision, the High Court had set aside the order as regards ‘fuel area’ and ‘rested tea area’ and directed the Taluk Land Board to re-determine the question afresh The Taluk Land Board preferred appeal against the judgment of the High Court. .As such the matter reached the Supreme Court which had considered the matter as hit by the principles of estoppel. The Supreme Court distinguished resjudicata from estoppel as under:
'It is settled law that principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even he demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are 'cause of action estoppel' and 'issue estoppel'. These two terms are of common law origin.
18. The cause of action estoppel and issue estoppel again are distinguished holding:
'Again once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that issue was wrongly determined. their only remedy is to approach the higher forum if available. the determination of the issue between the parties gives rise to as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operated in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice.
In Arnalds&Ors.vs. National Westminster Bank Plc. [(1991) 2 AC 93] House of Lords noticed the distinction between cause of action estoppel and issue estoppel. Cause of action estoppel arises where the cause of action in the later proceedings, the latter havig been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not according to tthe law of England, prevent the latter to be re-opened. Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of actin to which the same issue is relevant one of the parties seeks to re-open that issue.
19. In ‘BhanukumarJain’ (supra) the difference between ‘issue estoppel’ and ‘resjudicata’ was considered holding that the court is prohibited by the principle of resjudicata while the issue estoppel restrains the party is applied against the party as under:
'There is a distinction between 'issue estoppel' and 'res judicata' [See Thoday vs. Thoday 1964 (1) All. ER 341]
Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res-judicata creates a different kind of estoppel viz EstopperBy Accord.
In a case of this nature, however, the doctrine of 'issue estoppel' as also 'cause of action estoppel' may arise. In Thoday (supra) Lord Diplockheld :
""cause of action estoppel" is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e., judgment was given on it, it is said to be merged in the judgment.If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam."
The said dicta was followed in Barber vs. Staffordshire Country Council, (1996) 2 All ER 748. A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event the bar is absolute in relation to all points decided save and except allegation of fraud and collusion.'
In the backdrop of the fact that the appellant-association suppressed the meeting of the flat owners on 9.11.2008 and suppression of the fact thereof, the District Forum observed:
‘Except mentioning so many defects, affidavits of none of the other flat owners were filed to show that the said defects were still in existence. It was contended by the learned counsel for the opposite party th
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at at the time when the complex was handed over, it was handed over will all amenities including manholes covers etc. but subsequently manholes covers are lost and they are not responsible. The complainant is silent either in the complaint or in the evidence affidavit about the alleged meeting held on 09-11-2008. Therefore suppressing of the said fact by the complainant is fatal to its case. None of the members of the complainant society had given individual affidavit to the affect that there were no provision of TV and telephone connection to their flats and car parking was not provided etc, Admittedly in view of letters given by the individual flat owners, the opposite party has not provided all the amenities agreed in the construction agreement. Therefore, when those letters were given by the owners of the apartment in the year 2008 itself now the complainant Association cannot contend that amenities were not at all provided to the members of the complainant Association or the opposite party failed to provide common amenities' The person approaching the Forum or Court with unclean hands cannot be held entitled to any relief. He has to be fair and should not conceal any fact which lends support to his claim in any manner whatsoever affecting the rights of the opposite parties and he cannot be heard to say that the opposite party rendered deficient service on account of which he suffered inconvenience. This Commission does approve the conclusion arrived at, by the District Forum that the appellant suppressed material facts from the District Forum while claiming the reliefs from it. The Hon’ble National Commission in 'Neelam Gupta vs Reliance Life Insurance and another' reported in I (2011) CPJ, 241 held that material suppression of facts of the case would disentitle the person approaching Consumer forum from claiming any relief.The District Forum has been generous in granting the relief. In the result, the appeal is dismissed confirming the order of the District Forum. There shall be no separate order as to costs.