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R. Shanker Singh & Another v/s M/s. Nandini Infrastructures Pvt. Ltd. & Another


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Company & Directors' Information:- NANDINI INDIA PRIVATE LIMITED [Active] CIN = U51900GJ2016PTC085844

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    C.C.No. 47 of 2013

    Decided On, 13 December 2013

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad

    By, THE HONOURABLE MR. R. LAKSHMINARASIMHA RAO
    By, INCHARGE PRESIDENT
    By, THE HONOURABLE MR. T. ASHOK KUMAR
    By, MEMBER & THE HONOURABLE MR. S. BHUJANGA RAO
    By, MEMBER

    For the Complainants: M/s. V. Gourisankara Rao, Advocate. For the Opposite Parties: Service of notices on Ops held sufficient.



Judgment Text

R. Lakshminarsimha Rao, Incharge President

The complainants sought for the following reliefs:

i) to complete the construction and hand over the possession of flat Nos. 101, 102, 301 and 402 in Balaji Enclave along with all amenities to the complainants;

ii) To provide Municipal water and drainage connections to Balaji Enclave;

iii) To install ISI Brand lift to Balaji enclave;

iv) To provide intercom facility to the flats;

v) To provide transformer to Balaji Enclave and to give individual 3-phase electric meters to each flat;

vi) To complete the 2nd coat of Royal Emulsion painting and distemper to the external walls of the building, staircase, generator room and internal toilets;

vii) To provide Enamil final coat polishing of the main door of the flat;

viii) To pay rental loss at Rs.40,000/- p.m. from 16-11-2012 till the date of handing over possession of the flats

ix) To refund hand loan amount of Rs.2,40,000/- with interest at 24% p.a. from 26-9-2011 till the date of realization.

x) To provide watchman room.

xi) To demarcate the parking area

xii) To provide power plugs for internet in each flat and brass handle to the main door of flat No.301.

xiii) To replace kitchen platforms by quality granite platforms with holes for LPG pipe lines.

xiv) To pay compensation of Rs.1,00,000/- towards mental agony

xv) To pay costs of Rs.25,000/-.

The averments of the complaint are that the complainants are wife and husband and complainant No.1 is the owner of plot No.456 (Type-B) admeasuring 200 sq. yds. in Sy No.204 situated at Sreerama nagar, Kondapur Serilingampally Mandal, RR District and complainant No.2 is the owner of Plot No.457 (Type-B) admeasuring 200 sq. yds. to the same survey number. The complainants submitted that opposite parties 1 and 2 approached the complainants and represented that they are professional builders and have experience in housing construction and requested the complainants to entrust their respective plots for development under certain terms and conditions.

The complainants submit that being induced by the representations of the opposite parties, they entrusted their plots for development and on 04-2-2011 a registered Deed of Development Agreement-cum-General Power of Attorney was executed between the complainants and opposite party No.1 represented by its Managing Director for construction of residential complex under the name and style 'Balaji Enclave'. The complainants submit that they and the opposite parties are entitled for built up area in the ratio of 50% each and complainant No.1 is entitled for flat No.101 (North face) & 102 (South face) on 1st floor and complainant No.2 is entitled for 301 (north face) on 3rd floor and 402 ( south face) on 4th floor and the builders are entitled for flat Nos. 201, 202, 302 and 401.

The complainants submit that as per the development agreement, the opposite parties must obtain plan from GHMC and construct the complex at their cost and as per clause 8 the opposite parties must construct and handover 50% of the built up area to the complainants within 15 months from the date of obtaining sanctioned plan with a grace period of 3 months and after the grace period, for the delay, the builders must pay Rs.40,000/- per month to the complainants towards rental loss and as per clause 11 the opposite parties must demarcate the car parking area after the plan is sanctioned.

The complainants submit that the opposite parties must construct the residential complex as per the specifications mentioned in the Development agreement and the opposite parties approved the sanctioned plan on 16-5-2011 and as such they must construct the complex by 16-8-2012 including grace period of 3 months and handover possession by 16-11-2012.

The complainants submit that though the scheduled date for handing over possession of the flats expired by 16-11-2012, the opposite parties have not completed the flats along with amenities and not handed over the same to the complainants. The complainants submit that the opposite parties have not obtained municipal drinking water and drainage connection facilities from the competent authorities as undertaken in the specifications and have not installed intercom facility, electricity transformer, individual 3 phase electricity meters are not provided and not yet taken up 2nd coat of Royal Emulsion painting and distemper to the external walls on the 4th floor of the stair case, generator room, toilets area etc. and have not demarcated the car parking area and not even constructed watchman room.

The complainants submit that the opposite parties have already completed the duplex flat Nos. 202 and 302 and executed sale deed to Mr.A.Narender Kumar, the brother of the Managing Director of opposite party No.1 and sold away 1 flat in 4th floor which fell to their share and have not completed the internal pending works of the flats of the complainants. The main doors of the flats were not polished with melamine final coat, brass door handle was not fixed in 3rd floor flat and window glasses are not fixed nor painted in the 3rd floor flat and have not provided gas pipe line holes to the granite kitchen platforms in all the flats.

The complainants submit that the opposite parties were delaying the completion of pending works on the ground of paucity of funds and requested complainant No.1 to pay Rs.2,50,000/- by way of hand loan for enabling them to install 20 KV Generator, Solar Water heater, grills to the balconies and corridors and on the assurance that hand loan will be repaid at the earliest, complainant No.1 issued IOB cheque bearing No.566553 dt.24-9-2011 for Rs.1,40,000/- and another IOB cheque bearing No.566554 dt.26-9-2011 for Rs.1,00,000/- totalling to Rs.2,40,000/- and inspite of receiving the hand loan from the complainant No.1, the opposite parties neither completed the pending works nor refunded the hand loan nor paid interest thereon.

The complainants submit that though the opposite parties are bound to pay rental loss beyond the schedule date of handing over possession of the flats, they failed to pay the rental loss at Rs.40,000/- from 17-11-2012 and inspite of several requests also failed to complete the pending works and handover possession of the flats. Therefore the complainants got issued a notice on 03-1-2013 demanding the opposite parties to complete the construction of all flats with all amenities and hand over the same along with rental loss and refund the hand loan of Rs.2,40,000/- with interest at 24% p.a. and the said notices returned unserved with postal endorsement 'Party left' and once again another notice was sent on 10-1-2013 which was served on opposite party No.1 but it has not chosen to give any reply.

The complainants submit that though the opposite parties have not completed the construction and not provided basic amenities like drinking water, drainage connection, electricity transformer, demarcation of parking area, intercom facility, external painting etc. curiously they obtained occupancy certificate from GHMC on 18-1-2013 by managing the said authorities.

The complainants submit that there is abnormal delay on the part of the opposite parties in completing the construction and handing over possession of the flats with all amenities and specifications which amounts to deficiency in service and unfair trade practice. Hence the complaint.

Notice sent to the opposite parties returned as ‘not claimed’ and hence service of notice on opposite parties held sufficient recoursing to Section 28(4) of Consumer Protection Act, 1986.

The complainant No.1 filed his affidavit and relied on the documents, Exs.A1 to A7 in support of his case.

The points for consideration are:

i) Whether there is deficiency in service on the part of the opposite party?

ii) To what relief?

Point No.1: The complainants are wife and husband and the complainants entrusted their plot Nos.456 Plot No.457 (Type-B) admeasuring 200 sq. yds. each in Sy. No.204 situated at Sreerama nagar, Kondapur Serilingampally Mandal, RR District to the opposite parties 1 and 2 for development under certain terms and conditions on 04-2-2011 through a registered Deed of Development Agreement-cum-General Power of Attorney for construction of residential complex under the name and style 'Balaji Enclave'. As per the terms and conditions, the complainants and the opposite parties are entitled for built up area in the ratio of 50% each and complainant No.1 is entitled for flat No.101 (North face) & 102 (South face) on 1st floor and complainant No.2 is entitled for 301 (north face) on 3rd floor and 402 ( south face) on 4th floor and the builders are entitled for flat Nos. 201, 202, 302 and 401 and the opposite parties must obtain plan from GHMC and construct the complex at their cost and must construct and handover 50% of the built up area to the complainants within 15 months from the date of obtaining sanctioned plan with a grace period of 3 months and after the grace period, for the delay, the builders must pay Rs.40,000/- per month to the complainants towards rental loss.

As per clause 11 the opposite parties have to demarcate the car parking area after the plan is sanctioned and the opposite parties approved the sanctioned plan on 16-5-2011 and as such they must construct the complex by 16-8-2012 including grace period of 3 months and handover possession by 16-11-2012.

The complainants have stated that though the scheduled date for handing over possession of the flats expired by 16-11-2012, the opposite parties have not completed the flats along with amenities and not handed over the same to the complainants and have not obtained municipal drinking water and drainage connection facilities, have not installed intercom facility, electricity transformer, individual 3 phase electricity meters are not provided, not yet taken up 2nd coat of Royal Emulsion painting and distemper to the external walls on the 4th floor of the stair case, generator room, toilets area etc. and have not demarcated the car parking area and not even constructed watchman room The main doors of the flats were not polished with melamine final coat, brass door handle was not fixed in 3rd floor flat and window glasses are not fixed nor painted in the 3rd floor flat and have not provided gas pipe line holes to the granite kitchen platforms in all the flats.

The complainants have stated that the opposite parties were delaying the completion of pending works on the ground of paucity of funds and requested complainant No.1 to pay Rs.2,50,000/- by way of hand loan for enabling them to install 20 KV Generator, Solar Water heater, grills to the balconies and corridors and on the assurance that hand loan will be repaid at the earliest, complainant No.1 issued IOB cheque bearing No.566553 dt.24-9-2011 for Rs.1,40,000/- and another IOB cheque bearing No.566554 dt.26-9-2011 for Rs.1,00,000/- totalling to Rs.2,40,000/- and inspite of receiving the hand loan from the complainant No.1, the opposite parties neither completed the pending works nor refunded the hand loan nor paid interest thereon. The complainants submit that though the opposite parties are bound to pay rental loss beyond the schedule date of handing over possession of the flats, they failed to pay the rental loss at Rs.40,000/- from 17-11-2012.

The learned counsel for the complainant filed a memo stating that the opposite parties during the pendency of the complaint have completed the following work:

a) Have given possession of flat Nos.101, 102, 301 and 402 on 01-8-2013;

b) Have installed lift;

c) Have provided transformer to Balaji Enclave;

d) Have constructed watchman room;

e) Have demarcated the parking area;

f) Have replaced the kitchen platform by granite stones with holes for LPG pipe lines;

Point no.2 Clauses 8 and 10 of the Development Agreement dated 4.2.2011 provide for prescription of time of 15 months for the opposite parties to complete 50% of the built up area pertaining to the complainants and the time of 15 months was prescribed from the date of obtaining sanctioned plan. The provisions of clauses 8 and 10 of the development agreement extend period of three months termed as grace period which is in addition to the aforementioned 15 months period. As such, the opposite parties are required to complete the construction of the building with the specifications agreed thereof for 16.8.2012 which includes the grace period.

The opposite parties failed to obtain municipal drinking water connection and drainage connection facilities install intercom facility, individual three phase electricity meter and apply second coat of

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Royal Emulsion Paint and distemper to the external walls on the fourth floor of the stair case, generator room, toilet area etc., polish the main doors of the flats, fix brass door handle in the third floor flat, window glasses and paint in the third floor flat and provide gas pipe line holes to the granite kitchen platforms in all the kitchens of the flats. The counsel for the complainant has filed aforementioned memo stating that the opposite party handed over possession of the flat to the complainants as also the opposite parties have installed elevator in the building. It is stated that the opposite parties hadinstalled transformer and demarcated parking area and also replaced kitchen platform by granite stones with holes for LPG pipelines. The complainant has not shown or not filed any expert evidence to show that so much of work relating to painting, installation of meter etc. As such we are of the view that unsubstantiated claim cannot be considered. The hand loan and refund thereof and such other reliefs cannot be granted by this Commission and in this regard detailed examination of the parties and evidence in support thereof is required which can be entertained by a civil court. In the result the complaint is allowed directing the opposite parties to pay a sum of Rs.3,60,000/- towards rental loss for the period from 17.11.2012 to 1.8.2013 together with costs of Rs.5,000/-. Time for compliance four weeks.
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