ANNIE VARGHESE vs K B Plaza Apartment Owners Association

HEARD Counsel for the petitioner. 1. Pending admission, stay of the warrant of arrest against the Petitioner was granted upon deposit of the entire decretal amount including cost with the District Forum. The said amount has been deposited on 11.8.2010 with the District Forum as informed by Counsel for the Petitioner and copy of the receipt has been placed on record.

THE Complainant Association had approached District Forum in respect of the grievances of the flat owners in K.B. Plaza Apartments. The Association had listed the defects in the construction in paragraph 3 of the Complaint and had complained that they were not provided with original documents. The defects were sought to be rectified as also direction to provide documents or in the alternate compensation of Rs. 9.90 lacs for removal of defects in construction and compensation for not providing documents and information pertaining to K.B. Plaza. The District Forum had appointed retired Superintending Engineer as Commissioner who submitted report on 2.9.2006 on various deficiencies pointed out in the complaint.

THE Respondents had resisted the complaint on various grounds including res judicata as also on merits. The District Forum rejected the plea of res judicata raised by the Opposite Parties, namely, Petitioners. After analyzing the report of the Commissioner, the District Forum rejected the recommendations of the Commissioner in respect of defects set out in Clauses 3(f), 3(g), (h), 3(j) and 3(1). However, the District Forum awarded a sum of Rs. 2,62,500 being the cost to rectify the defects pointed out in the report of the Commissioner in terms of Clauses a, b, c, d, e, i, k and m as it was held that it was not viable for the Opposite Party to rectify the defects The District Forum also directed that documents specified in the complaint, except the original title deed and tax receipt, shall be delivered to the Complainant and if it is found not feasible, the Opposite Party shall pay cost of Rs. 3,000 to secure the certified copies of the said documents. The Opposite Party were also directed to pay litigation cost of Rs. 2,000. This order was challenged by the present Petitioner before the State Commission.

THE State Commission found that although the question of res judicata was not specifically urged before it, yet the District Forum had considered the same and had rejected it on the ground that the parties are not same in both the proceedings. Before the State Commission it was urged by the Petitioner that they were not provided adequate opportunity to adduce evidence. However, this contention was not accepted and it was found that number of opportunities had been given after the evidence of the Complainant was closed. The State Commission also accepted and relied upon the report of the Commissioner. The State Commission analysed the report of the Commissioner and found that Forum had allowed only reasonable amounts in terms of the report of the Commissioner and had rejected some of the recommendations of the Commissioners. The appeal was dismissed.

THE revision has been filed against concurrent findings of two Fora below. Learned Counsel for the Petitioner urged before us that the present proceedings are barred by principle of res judicata. After going through the order in O.P. No. 504 of 2000 which has been placed on record by the Petitioner, it is seen that the said complaint was filed by three flat owners, but two of them had withdrawn the complaint. It is specifically recorded in the Para-7 of the order in O.P. No. 504/2000 that the complaint was only by three flat owners out of which two flat owners had withdrawn the complaint, even though there are 32 flat owners. Thus, the lis in the said OP was only in respect of the complaint of one of the flat owners and the decision cannot be treated as res judicata. The Fora below have, therefore, rightly not accepted the plea of res judicata raised by the Petitioners.

ON merits of the matter, Retd. Superintending Engineer was appointed who has given detailed report. The said report was scrutinized both by the District Forum as also by the State Commission. Some of the recommendations of the Commissioner have been accepted by both the Fora below. We have also gone through the said report and we find that Fora below have accepted the recommendations which were found to be just and reasonable in respect of the defects in the flats and what was found not necessary has been rightly rejected

IN view of the above, we do not find that any case has been made out for interference in the revision as we do not find any jurisdictional error, illegality or material irregularity in the orders of Fora below. The revision is accordingly dismissed with no order as to costs. The amount of Rs. 2,67,500 which has been deposited by the Petitioner with the District Forum shall be released in favour of the Complainant. Revision Petition dismissed.