State Consumer Disputes Redressal Commission
Sambit Kumar Sahu & Another vs John Alexio Abranches & Another on 5 January, 2016
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
C.C. No. 09/2015
1. Mr. Sambit Kumar Sahu
s/o Maheswar Sahu,
39 years of age, and his wife
2. Mrs Supriya Sahu
w/o Sambit Kumar Sahu
34 years of age, both resident of "Gods Grace",
H.no 59/F2 (as per records) H.no. 59/F1,
1st floor, Hankant, Bamborda,
Verna - Goa. 403722. ......... Complainants
V/s.
1. Mr. John Alexio Abranches
s/o Jao Aleixo Abranches,
and his wife
2. Mrs. Philomena Abranches
w/o John Alexio Abranches,
Both are residents of "Gods Grace"
Ground Floor, Hankant, Bamborda,
Verna - Goa 403722 .......Opposite Parties
Complainants are represented by Adv. Shri. B. P. Sardessai
OPs are represented by Adv. Shri. Dileshwar M. Naik.
Coram: Shri. Justice N.A. Britto, President
Smt. Vidhya R. Gurav, Member
Dated: 05/01/2016
ORDER
[Per Justice Shri. N. A. Britto, President] 2 This order shall dispose off the consumer complaint filed by the complainants on or about 16/3/15.
2. The complainants, under an agreement for sale dated 28/12/11, and subsequent sale deed dated 25/6/12, purchased from the Opposite Parties, flat F-2 admeasuring 111 sq.mtrs. for a consideration of Rs. 30 lacs with proportionate undivided right to the plot admeasuring 957 sq.mtrs. forming part of survey No. 314/2 of Verna Village, and, came to occupy the same from 26/6/12.
3. The complainants sent an advocate's notice dated 27/7/13 to the OPs listing a number of defects or deficiencies in the said flat which was replied to on behalf of the OPs, by advocate's letter dated 12/8/13. The complainants then sent another notice dated 6/9/13 and thereafter filed the complaint for various reliefs. During the pendency of the complaint many of the defects or deficiencies were rectified by the OPs.
4. We have heard Shri. B.P. Sardessai, the lr. advocate of the complainants who has submitted that only three grievances of the complainants still subsist. The OPs have chosen to remain absent at the time of oral arguments but we have perused the written arguments filed on their behalf on 10/12/15 and additional written arguments filed on 22/12/15.
5. Complainant No. 1 and OP No. 1 have filed their affidavits in evidence in support of their respective cases.
6. The first grievance of the complainants is that the OPs have not provided to the complainants parking space admeasuring 4 x 3 sq.mtrs. as stipulated by Clause 11 of the sale deed. Lr. advocate submits that although clause 11 of the sale deed mentions that the said 3 area of 4 x 3 sq.mtrs is shown on the plan annexed to the sale deed, the same is not actually shown on the said plan (copy at page 65).
7. Clause 11 of the sale deed between the parties, reads as follows:
" The PURCHASER shall have perpetual right to use an area admeasuring 4 x 3 sq. meters as shown in the plan annexed for parking his two and four wheelers and shall have absolute right to put a shed at the said marked place for parking and no NOC of the VENDORS shall be required. The cost and expenditure incurred for construction of such shed shall be borne by the PURCHASER. The VENDORS shall have no right for the parking space so allotted."
8. The defence of the OPs, regarding this grievance, is that the said parking space allotted to the complainants was subject to the payment of the dues of the OPs. As per the OPs, the complainants were to pay to the OPs a sum of Rs. 1.5 lacs due to delayed payment of consideration as promised by them and for that the complainant had issued three cheques but one cheque of Rs. 50,000/- was intentionally dishonored by the complainants. At the same time the OPs have stated (at page 209) that the complainants have been provided space of 12 sq.mtrs. but still the complainants park their car in front of their gate. However, according to the complainants, the three cheques of Rs. 50,000/- each, were issued by the complainants to the OPs to rectify the defects which had occurred to the painting of the flat after a few days of occupation of the flat, due to the monsoons.
9. We are not impressed with the said defence taken by the OPs. In case any payment was required to be made by the complainants then the same would have been incorporated in Clause 11 of the sale deed. Clause 11 of the sale, as reproduced hereinabove, does not speak of any payment to be made by the OPs, for the use of the said area 4 x 3 4 sq.meters. It is now well settled that the Indian Contract Act applies to all, including the consumers. It is equally well settled that a party cannot be allowed to add to or subtract from or vary the terms of a written document. The version of the complainants that the said cheques were issued to do painting work appears to be more probable and therefore needs to be accepted. Admittedly, the plan annexed to the sale deed, does not show the said area. The area of 4 x 3 needs to be shown on the plan as well as demarcated in loco so as to avoid misunderstandings and/or quarrels between the parties. In the circumstances, therefore, the OPs are hereby directed, with the assistance of the architect of their building, or any other expert to show the said area on the copy of the plan annexed to the sale deed (copy at page 65) and also demarcate the same at site so that the complainants can have the said area of 4 x 3 sq.meters for parking their two and four wheelers, and, if thought necessary, to put up a shed at the said place as stipulated by Clause 11 of the sale deed.
10. The second grievance of the complainants is in relation to Clause 12 of the said sale deed which reads as follows:-
"12. The VENDORS guarantees, for a period of three years from today, the SAID PREMISES against all patent and latent defects, which might become visible after passing of rainfalls. The VENDORS shall at their own cost and expenses rectify or remove or cure all defects to the SAID PREMISES during the guaranteed period.
11. The complainants say that with the passing of the few days of the first monsoon, the complainants noticed patches of fungus on the ceiling of the flat and water seeping through the walls causing dampness and the complainants immediately appraised the OPs of the said happenings, but the OPs paid no heed to the same. The 5 complainants say that upon persistent pursuit by the complainants, the OPs reluctantly agreed to rectify the defects but in derogation of Clause 12 of the sale deed, demanded from the complainants a sum of Rs. 1.5 lacs for the same though the OPs were under obligation to rectify the defects free of costs. Complainants say that they reluctantly paid the said amount of Rs. 1.5 lacs in three cheques and the OPs promised that the last cheque for Rs. 50,000/- would be encashed in the last week of December 2012 after the OPs rectify the said defects by November 2012. The complainants say that the OPs encashed two cheques on 14/08/12 and after being questioned, the OPs gave bad words and made unfriendly gestures, and, therefore, complainant No. 1 instructed his banker on 22/2/12 to stop payment of the third cheque.
12. The defence of the OPs, earlier taken, is that there was no leakage due to rainfall and that the defects caused were due to structural changes made by the complainants. The OPs also say that the terrace has been water proofed and now there is a shed with asbestos sheets put up on terrace so that there is no seepage of water and therefore there is no question of water sipping from the roof/terrace. The OPs have also stated that they are ready to have a joint inspection of the flat in the presence of the Commissioner to be appointed by this Commission. The OPs also say that they are residing on the ground floor of the building and one flat is given on rent by them and there is no such defects visible in the other flat. The OPs also say that the defects in the flat of the complainants are not known to them as the complainants have time and again refused to give entry to the OPs for inspection (at page 200).
13. The complainants have produced photographs to show the damage to the flat and the same are at pages 72 onwards. The 6 complainants' expert Eng. Shri. Laad in his report dated 30/7/14 (copy at pg. 105) has stated that the second slab (above the flat of the complainants) was exposed to rains and no water proofing treatment was given to the said slab. The OPs' expert Eng. Shri. Mascarenhas in his report dated 9/5/15 (copy at page 167) has also stated that the flat roof above the slab of the complainants required water proofing and that he had requested OP No. 1 Mr. Abranches either to waterproof the flat roof or cover it with roofing sheets in order to stop any possible leakage taking place in future. Complainants' expert Shri. Laad has further stated that for want of waterproofing treatment being given to the said slab it has caused leakage through the slab and joints of wall and slab, and, he has further stated that the walls were damp and full of black fungus and which are very health hazardous. He has also stated that the walls have suffered dampness and painting has peeled off. Shri. Laad has also stated that the damage to the flat has already been caused and damages to plaster, painting, etc. requires immediate attention. Shri. Mascarenhas has stated that he noticed some structural changes carried out by the complainants, and according to him, due to this changes some cracks developed below the beams on the outer walls which led seepage of water and dampness of the walls.
14. Admittedly, the terrace above the flat of the complainants was not waterproofed and therefore there was every likelihood of water seeping into the flat of the complainants. The report of Shri. Mascarenhas is based on what OP No. 1 told him. Eng. Shri. Mascarenhas could not have inspected the flat because as per the OPs the complainants had refused to give entry to the flat. We are therefore inclined to accept the report of Shri. Laad in preference to the report of Shri. Mascarenhas and conclude that for want of 7 waterproofing of the flat roof above the flat of the complainant that dampness and fungus occurred to the flat of the complainant which the OPs were required to make good in terms of Clause 12 of the sale deed and which has not been made good by the OPs inspite of receiving Rs. 1 lac from the complainants. We are therefore inclined to direct the OPs to re-paint the interiors of the flats of the complainants at their own cost under the supervision of the architect of the building or pay to the complainants a sum of Rs. 1,50,000/- to enable the complainants to do the said works. It may be noted here that Shri. Laad has given an estimate of about Rs. 1,66,000/- to do the said works.
15. The third grievance of the complainants is that they are not being provided access to the terrace which is being kept closed. Clauses 14 and 15 of the sale deed read as follows:-
"14. The terrace area shall be for the common use and enjoyment of all the occupiers in the Said Building, without any restriction.................For safety purpose the VENDORS may put lock to terrace door but shall allow and provide duplicate key to purchaser for having access to the terrace for drying of clothes or any such kind of work.
"15. In case the VENDORS do not construct additional floor above first floor, within three years from today, then the VENDORS at his own cost and expense construct shed on the entire terrace of the Said Building to avoid any leakage from ceiling.
16. Now that an additional floor has been constructed above the existing first floor as contemplated by Clause 15 of the sale deed, the OPs are bound to provide access to the complainants and other occupiers of the building to use the terrace and in case a lock is put to 8 the terrace door then to provide a duplicate key to the complainants so that they can have access to the terrace for drying of clothes or any other type of such works.
17. In view of the above discussion, we allow the complaint partly. We have taken note of the reliefs claimed by the complainants and so also very many irrelevant averments made in the complaint which we have overlooked and restricted our findings to the grievances made by the complainants, as subsisting. Although most of the reliefs sought for by the complainants are not available to the complainants, at present, we are inclined to mould the same, and, allow the complaint partly and (1) direct the OPs to provide to the complainants parking place of 4 x 3 sq. meters as stipulated by clause 11 by depicting the same on the plan annexed to the sale deed as well as in loco and (2) to repaint the interior of the flat of the complainant under the supervision of the architect or in the alternative pay to the complainants a sum of Rs. 1.5 lacs and also (3) to provide a duplicate key of the terrace door in case the same is intended to be kept closed. The complainants are also held entitled to compensation of Rs. 20,000/- in terms of prayer (d) of the complaint. The directions herein given are to be complied by the OPs within a period of 30 days. The complaint is allowed on the above terms, and, with costs of Rs. 5000/- to be paid by the OPs.
[Smt. Vidhya R. Gurav ] [Justice Shri. N. A. Britto ]
Member President
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