State Consumer Disputes Redressal Commission
Aditya Builders, vs Shri. Jagdish P. Shenai, on 29 April, 2013
BEFORE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI- GOA FA No. 29/2012 Aditya Builders, a partnership firm, through its Partner, Mr. Vijay Sawardekar, 204, Geras Imperium I, Patto Plaza, Panaji, Goa. ..Appellant Appel v/s. 1. Shri. Jagdish P. Shenai, 2. Smt. Shital J. Shenai, both R/o. Villa No. 10, Aditya Gardens, Duler, Mapusa, Goa. 3. Shri. Vijay Sawardekar, R/o. Nova Cidade, behind PDA Colony, Porvorim, Bardez, Goa. .. Respondents FA No. 45/2012 Shri. Vijay Sawardekar, R/o. Nova Cidade, behind PDA Colony, Porvorim, Bardez, Goa. Appellant v/s. 1. Shri. Jagdish P. Shenai, 2. Smt. Shital J. Shenai, both R/o. Villa No. 10, Aditya Gardens, Duler, Mapusa, Goa. 3. Aditya Builders, a partnership firm, through its Partner, Mr. Vijay Sawardekar, 204, Geras Imperium I, Patto Plaza, Panaji, Goa. Respondents Appellant/O.P. No. 1 is represented by Adv. Shri. N.G. Kamat. Appellant/O.P. No. 2 is represented by Adv. Shri. N.A. Manerkar. Respondent Nos. 1 and 2/Complainants are represented by Adv. Shri. G. Agni. Coram: Shri. Justice N.A. Britto, President Shri. Jagdish Prabhudesai, Member Dated: 29/04/2013 ORDER
[Per Shri Justice N.A. Britto, President] These appeals can be conveniently disposed off by this common order. The first appeal is filed by the builder, a firm represented through its managing partner Mr. Vijay Sawardekar while the second appeal is filed by O.P. No. 2 the said Vijay Sawardekar.
2. These appeals are directed against the order dated 12/09/12 of the lr. District Forum, North Goa at Provorim by which the complaint filed by the complainants (Respondent nos. 1 & 2, herein) has been partly allowed in terms of the order.
3. The complainants are husband and wife. They executed an agreement with the builder, Aditya Builders, a firm, on or about 19/11/01 for construction and sale of a villa, identified as Villa No. 10 admeasuring 131 sq.m. on a plot of land having 165 sq.mtrs for a price of Rs. 10,10,000/- to be paid in the manner indicated in schedule III of the agreement. The possession of the said Villa was to be delivered on or before 30/08/02, provided all the amounts due and payable by the complainants were paid to the said developer. On completion of the Villa the developer/builder was to give a notice in writing to the complainants/purchasers and the latter was required to take delivery within 7 days of such notice. In the event the complainants did not pay the amounts due for seven days or more after becoming due, the complainants were required to pay at the option of the builder, interest at the rate of 18% per year. In terms of Clause 12 of the said agreement the complainants after having taken possession of the Villa were to have no claims against the builder in respect of any item of work, which may be alleged not to have been carried out. Cracks to the plaster/dampness in external walls was not to considered as defective work unless the architect of builder opined otherwise. The complainants were required to pay infrastructure tax or deposits if demanded by or to be paid to the Municipal Council for the purpose of sanctioning plans or issuing the commencement certificate or occupation certificate, etc. The developer was to assist the complainants in forming a Co-operative Society a Limited, Company, etc.
4. Now, there is no dispute that the complainants were handed over the possession of the Villa on 31/03/03 vide letter of possession of the same date.
5. Before considering the main appeal filed by the builder/developer against the impugned order, we would like to deal with FA No. 45/12 filed by the Managing Director of the Builder firm who was O.P. No. 2 in the complaint. Shri. N.A. Manerkar learner adv. would contend that Shri. Vijay Sawardekar being an individual may not be burdened with any liability. Shri. Manerkar contends that the builder firm is an entity in itself but concedes that the Appellant/O.P. No. 2 was not only a partner of the said firm but was its managing partner as well, and his only contention is that as an individual he may not be burdened with the liability of the firm.
5.1. It is not known whether the Appellant/O.P. No. 2 had taken any plea before the Lr. District Forum for deletion of his name. All that we need observe that this appeal is misconceived. It is not disputed that the Appellant/O.P. No. 2 is not only a partner but also a managing partner of the builder - firm which he represents as its managing partner. It is well settled (see AIR 1971AP 58) that each partner is liable as if the decretal debt is his personal liability. Moreover, we also find from our order dated 01/11/12 in FA No. 40/10 filed by Shri. Kiran Dabolkar that a decree against the firm can be executed also against any person who has been served with notice individually as a partner but has failed to appear. The decree against the firm can be executed against the personal property of such persons. That being the position in law, FA No. 45/12 needs to be dismissed as misconceived.
6. The records which have been made very bulky by the complainants, would show that the builder by letter dated 05/10/02 submitted its final bill to the complainants in the sum of Rs. 49,624/- including the amount of Rs. 10,000/- which was to be paid as per agreement, on handing over possession plus Rs. 28,368/- of extra works and Rs. 11,256/- of infrastructure tax, house tax, electricity and water connection charges, etc. The complainants in their letter dated 25/11/02 appear to have ignored the contents of the said letter and at the same time stated that the builder had not completed the work, even after liquidating the entire amount and requested to provide electricity and water connection and do all incomplete works within a weeks time. The Builder by their letter dated 10/12/02 brought again to the notice of the complainants that the final bill of Rs. 48,658/- dated 05/10/02 was not yet paid in full and untill the same was not paid the possession of the Villa was kept in abeyance. The Builder also sent a statement alongwith the said letter stating that there was a total delay of 280 days by virtue of which the period of delivery of possession was extended by 280 days which would fall on 07/06/03. The complainants by their reply dated 14/12/02 disputed that they were liable to pay Rs. 48,658/- and Rs. 29,624/- and stated that the possession was handed over to the complainants on 12/11/02 to perform religious rituals on 13/11/02. The complainants also mentioned certain deficiencies including their allegation that no balcony was provided; the doors were not as per specifications, etc. This letter dated 14/12/02 of the complainants was followed by advocates letter dated 17/12/02 invoking the arbitration Clause in the agreement. The Builder then wrote letter dated 27/12/02 to the complainants stating that they had received two letters on 20/12/02, one from the complainants dated 14/12/02 and other from their Adv. Shri. Kamat dated 17/12/02 and both the letters had different tones and as such they wanted a clarification of which letter they should take cognizance. The complainants sent a reply dated 30/12/02 denying that both the said letters have a different tones and asking the Builder to take cognizance of both.
6.1. By letter dated 13/01/03 the Builder brought to the notice of the complainants that the payment schedule stated by them only gave the dates of the cheques issued but conveniently ignored the facts of actual delivery of cheques and also the dates on which the respective amounts became due. The complainants were also informed that they had not given possession of the Villa to them but on their special request they had permitted them to perform religious rights on 13/11/02. The complainants were told that their contention that they did not owe further amounts was factually incorrect and was an alibi devised by them to deny their legitimate dues. The Builder informed the complainants that no work was incomplete and further informed the complainants that the delay, if any, was caused due to their failure to timely clear their dues and again requested the complainants to clear their dues without any further delay so that they can proceed and obtain electricity and water connection. The complainants then sent letter dated 22/01/03 through their advocate stating that they are ready and willing to pay Rs. 29,624/- without prejudice to their rights and the complainants were told by the Builder by their letter dated 06/02/03 to deposit the said sum of Rs. 29,624/- with their site supervisor Shri. Vithal and on the said deposit being made they would take steps to obtain water and electricity connections and possession would be given within 4 to 6 weeks of payment. By another letter dated 15/02/03, the complainants stated that they would pay the said sum of Rs. 29,624/- and further stated that the complainants had inspected the premises from outside and had noticed that the iron metal grills which were on the windows were removed.
6.2. By letter dated 24/03/03 the Builder informed the complainants through their advocate that they had obtained electricity and water connection for the Villa and they could take possession of the same on any working day from their site supervisor after signing the possession letter. The complainants were also informed that they should take prior inspection before taking possession and bring to their notice, shortcoming, if any, in writing and once possession of the Villa was taken, complainants will have no claim against them in terms of Clause 12 of the agreement dated 19/11/01. By letter dated 29/03 /03 the complainants informed the Builder that they would like to take possession of the Villa on 02/04/03 at 10.00 a.m. and would like to take inspection on 31/03/03 at 4.30 p.m. sharp. However on 31/03/03 possession of the Villa was taken by the complainants who also handed over a separate letter of the same date to the Builder mentioning the deficiencies. On 01/04/03 complainants advocate sent to the Builder a copy of letter dated 31/03/03 taking possession. It also mentioned that one deficiency was not mentioned earlier and that is of not painting the compound wall though the compound walls of other Villa owners were painted.
6.3. However, it does not appear that the report prepared on 01/04/03 by complainants architect Shri. Yogesh Prabhugaonkar was forwarded to the Builder alongwith the said letter dated 01/04/03 or handed over to the Builders supervisor Shri. Vithal at the time of taking possession on 31/03/03.
7. The above is the sequence of correspondence exchanged between the parties and gives the genesis of the dispute between the parties. The lr. District Forum does not appear to have referred to any of the above letters, briefly referred to by us, exchanged between the parties. The lr. District Forum proceeded to dispose off the complaint as per the prayers of the complaint and this exercise cannot be faulted.
8. A perusal of the complaint and the voluminous documents produced by the complainants, much of which could have been avoided, would suggest that the complaint does not have a ring of truth and appears to be speculative in nature. The complainants have now given up their claim that the possession of the Villa was handed over to them on 12/11/02 to enable them to have inauguration on 13/11/02 as that was considered to be an auspicious occasion. Possibly the said claim has been given up by the complainants out of the fear of the ghost of limitation raised by the Builder i.e. if the period of two years, is reckoned from 13/11/02 the complaint which has been filed on 30/03/05 would be time barred.
9. Admittedly, as per the agreement between the parties the possession of the Villa was to be handed over to the complainants on or before 30/08/02 provided all the amounts due and payable, were paid by the complainants/purchasers. It cannot be disputed that the Villa was complete as on 12/04/02 and that is what has been stated by the Builder and is otherwise corroborated by the production of the occupancy certificate and therefore the complainants cannot be heard to say that the Villa was not ready to be handed over to the complainants on 30/08/02. The complainants have stated that the Builder could not complete the work by 31/08/02. This statement of the complainants cannot be accepted in view of the contrary statement made by the Builder coupled with production of the occupancy certificate. The complainants themselves are not sure what is the amount they paid to the Builder as on 31/08/02. We say so because the complainants have left the said statement in blank in the complaint as well as in the affidavit-
in-evidence filed by the complainants on 16/08/05.
Even in letter dated 25/11/02 they have not made clear whether they have paid major amount or liquidated entire amount. The complainants paid the second last installment of Rs. 90,000/- only on 23/09/02 much after the schedule date of possession to be handed over to the complainants. No doubt the complainants were to pay the last installment of Rs. 10,000/- on handing over possession. According to the complainants, since the Builder insisted for this payment of Rs. 10,000/- also, they paid Rs. 20,000/- on 20/10/02 and according to the complainants after the said payment they approached the Builder to hand over possession as early as possible so as to inaugurate the same on 13/11/02 being an auspicious day. Why did the complainants pay Rs. 10,000/- extra to the Builder even before the possession was given? There is no explanation from the complainants and the lr. District Forum has observed that for certain reasons the complainants had agreed to pay Rs. 10,000/- more. Why was the said payment of Rs. 10,000/- extra because the complainants did not get the possession of the Villa as stipulated by 30/08/02, one may be constrained to ask? The Builder has convincingly demonstrated that the second last installment of Rs. 90,000/- was due on 24/08/02 but was made only on 25/09/02. It is interesting to note that before the complainants paid Rs. 20,000/- on 20/10/02, the complainants had with them the Builders demand for payment for Rs. 49,624/- out of which Rs. 28,368/- was for extra works. The complainants did not at all dispute in their letter dated 25/11/07 about this payment for extra works stating that the Builder was not asked to do any extra works. The only inference which can be drawn is that the payment of Rs. 10,000/- extra was made towards the said bill of Rs. 28,368/- plus Rs. 11,256/- which the complainants did not wish to pay in its entirety. The delay in payment of installments is sought to be explained, on behalf of the complainants, stating that the completion of works was first to be certified to the satisfaction of ICICI Bank, who would then release the payments to the complainants to be made to the Builder. We are not inclined to accept this submission. In terms of Clause 6 of the agreement possession was to be handed over on or before 30/08/02 provided all the amount due and payable in terms of the agreement were paid to the Builder and the fact remains that what was due to the Builder was eventually paid only on 19/02/03 or thereabout and the possession was handed over soon thereafter on 31/03/03, as stipulated in Builders letter dated 06/02/03 written by the Builder to the complainants advocate. It is not the case of the complainants that they were unaware of the occupancy certificate obtained by the Builder on or about 12/04/02. The letter dated 05/10/02 which enclosed the final bill to be paid by the complainants could have certainly been considered as a notice to take possession of the Villa as stipulated in the agreement. The Builder was not bound to hand over possession of the Villa either on 23/09/02 on payment of Rs. 90,000/- or on 20/10/02 on payment of another Rs. 20,000/- as by then the final bill raised by the O.P. was not cleared and the stipulation in the agreement was that the Villa would be handed over to the complainants provided all the amount due and payable were paid by the complainants. This position was also made clear by the Builder to the complainants borrower, ICICI Bank. An argument appears to have been put forward on behalf of the complainants that the agreed price of the Villa was paid and the payment for extra works could have been demanded separately without withholding the possession. This submission would be contrary to the said Clause 6 of the agreement. The conclusion of the Lr. District Forum that there was delay in handing possession from 20/10/02 to 31/03/03 therefore cannot be accepted. As long as the last and final bill raised by the Builder by letter dated 5/10/02 was not immediately disputed by the complainants and was otherwise not paid, delay in handing over possession cannot be attributed to the Builder. The Builder would be right in contending that the delay in handing over possession was due to the adamant attitude of the complainants in not paying the outstanding dues, or, in our view paying them partly and ignoring them in part. The Lr. District Forum therefore was not right in granting prayer (b) of the complaint. Likewise, the Lr. District Forum was not right in granting refund of Rs. 29,624/- which was claimed by the Builder towards extra works which were clearly specified in the Builders letter dated 05/10/02 and were not disputed by the complainants particularly in letter dated 25/11/02. Even the complainants architect Shri. Prabhugaonkar does not dispute the said works. He only disputes their cost. It could be that someone else could have done the said extra works at still at much cheaper rate. If the rates were to be disputed, the complainants ought to have immediately brought to the notice of the Builder that the rates charged by the Builder for the extra work were excessive, particularly in letter dated 25/11/02. Although the complainants claimed that they had supplied the marble for which the Builder had claimed an amount of Rs. 15,000/- in the said final bill dated 05/10/02, the complainants did not produced any bill of purchase of the marble or its quantity and it would have been easier for the complainants to produce the same rather than for the Builder who might have purchased several such items. As rightly contended on behalf of the Builder, if complainants had any doubt of the said final bill they could have always sought an explanation/clarification from the Builder. The complainants have also not stated as to from which source they purchased the marble or what was its quantity and when it was delivered to the Builder. The complainants were therefore bound to pay the said final bill of Rs. 29,624/-. The Lr. District Forum has allowed this claim on the specious ground that the Builder had not produced any letter from the complainants to carry out such extra works. Letter dated 05/10/02 being the first letter addressed by the Builder to the complainants would indeed show that extra works were carried out by the Builder and were required to be paid for. They were not meant to be free. The complainants raised no dispute about the same by first available opportunity particularly in their letter dated 25/11/02. The complainants therefore were not entitled for refund of the said sum of Rs. 29,624/- by virtue prayer (a) of the complaint.
10. As per Clause 12 of the agreement the complainants were to have no claims after possession was taken in respect of any items of work which were not carried out. We do not know why the complainants chose to take possession on 31/03/03 and not on 2nd April 2003 as stipulated earlier in letter dated 29/03/03. The complainants in their separate letter dated 31/03/03 addressed to the Builder, at the time of taking possession, mentioned that the villa was not constructed as per plans without giving any details as to where there were deviations. The second grievance was that there was no balcony for the first bedroom. As regards this allegation, the Builder has stated that after the occupancy certificate was obtained on 12/04/02, at the request of the complainants, the walls separating the balcony and their bedroom was removed so that the complainants could have a bigger bedroom and their opinion was at that time that the bedroom was utilized all the time while balcony is utilised occasionally. The Builder stated that the area of the bedroom was increased to suit the requirement of the complainants and that it is not a case of not providing the balcony but a case where the balcony has been amalgamated with the bedroom so that the complainants can have a bigger bedroom. The Builders architect Shri. Devari stated that he had checked the construction of the villas at various stages and during one of his visit the Builder Mr. Sawardekar had told him that the purchasers of villa 10 had requested for a bigger bedroom on the first floor by removing the wall separating the bedroom and balcony and he had opined that the same would be illegal and create problems for getting occupancy certificate and at the time of obtaining the occupancy certificate the wall separating the bedroom was existing and later the said wall was demolished and aluminium sliding windows alongwith grills were fitted to the external wall of the balcony. In view of this evidence of the Builder and his architect Shri. Devari the self serving evidence of the complainant No. 1 alone ought not to have been accepted by the Lr. District Forum. This grievance is also not mentioned in letter dated 25/11/02.
10.1. The complainants then claimed that part of the garage has not been provided with flooring tiles. Complainants claimed Rs. 6500/- on that count. No photographs have been produced. The letter dated 14/12/02 addressed by the complainants to the Builder shows that no flooring tiles in the garage outside are put. The complainants are not sure whether the tiles have been provided inside or outside the garage. The Builder in his affidavit-in-evidence has stated that the garage has been provided with red chequered tiles and the passage leading to the main gate is done with cement concrete flooring. Therefore the statement that part of the garage is not provided with flooring tiles appears to be incorrect and is misleading. The next grievance is that light points were not as per the agreements. The complainants did not specify as to how the light points were to be fixed as per agreement and how they were not fixed as per agreement. The Builder has denied that there has been any mistake in providing the light points. This grievance of the complainants is vague and therefore cannot be accepted. The next grievance of the complainants was that the doors which were there earlier were changed and the present doors were not as per specifications. The Builder in his affidavit-in-evidence has explained that the doors and windows are as per agreement and only doors of the toilet were changed to aluminium/sintex with the concurrence of the complainants as wooden doors get damaged due to the constant contact of the water and that the said changes were done with express approval of the complainants. We accept this version as probable and convincing. In the light of that, the complainants grievance without any details that the doors were changed cannot be accepted. Complainants grievance about the missing article has already been rejected by the lr. District Forum vide para 5 of the impugned order. The complainants vide Clause (d) of the inspection memo dated 31/03/03 stated that the metal grills were removed. The Builder in his affidavit-in evidence has explained that the Builders carry out many items in good faith for the better enjoyment of the villa though it may not be expressly agreed upon. According to him, metal grills, well water connection were items which were not contemplated in the agreement and were always optional at the discretion of the Builder. This was also made clear to the complainants in the Builders letter dated 24/03/03 in reply to complainants letter dated 15/02/03. It appears that the said metal grills which were also seen by architect Shri. Devari were removed subsequently after the relations between the complainants and the Builder got strained presumably after the complainants did not vacate the villa after having the inauguration ceremony. Complainants have not shown that grills were required to be provided under the agreement.
10.2. The next grievance raised by letter dated 1/4/03 was that the compound wall was not painted while the compound walls of other villa owners were painted. Complainants have prayed for repainting of the wall and its plastering by virtue of prayer (d)(i) of the complaint.
10.3. As regards prayer 26 (d)(i) it can be seen from the photographs produced that the complainants side of the compound wall is well plastered. No photographs have been produced of the portion of the compound wall which has not been plastered and if at all the compound wall is not plastered it must be on the side of the other villa owner. Complainants have not shown that they were also entitled to a compound wall as part of the agreement. If the complainants were not entitled to a compound wall the complainants would not be entitled to its painting of their side of the compound wall much less, plastering of the other side. The complainants would not also be entitled to separate the balcony and the bedroom by erection of a wall in terms of prayer (d) (ii) of the complaint for the said wall was removed at the instance of the complainants to provide for them a bigger bedroom. As far as the doors are concerned the Builder has explained that the aluminium/sintex doors were provided at the instance of the complainants themselves and therefore the complainants cannot be allowed fall back on the agreement. As regards grievance in prayer (d) (iv) the same is again absent from the inspection memo dated 31/03/03 or the report of the architect. No photos have also been produced by the complainants showing the cracks. The complainants therefore are not entitled to any relief in that regard. Well water connection is not provided under the agreement as stated by the Builder in para 18 of his affidavit-in-evidence. The O.P. has also stated that their supervisor Shri. Uskaikar had inspected the villa on 21/07/03 and there were no leakages seen at that time.
11. As regards, the complainants having spent Rs.
30,000/- on incomplete works, it may be observed that the complainants would not be entitled to a sum of Rs. 6,500/- allegedly spent by them on garage flooring, for reasons already stated, in as much as no bills for having spent any amount in that regard have also been produced by the complainants. The expenditure of Rs. 11,500/- for the grills cannot be allowed for it is not shown that the Builder was required to provide for the grills in terms of the agreement and it is the say of the Builder that they were provided out of goodwill. As regards fixing of handles for doors worth Rs. 4,300/- no details are given in as much as complainants architect is silent about the same. About fixing of aluminium window for the bedroom worth Rs. 9000/-, there is no reference to the same either in letter dated 25/11/02 or in the deficiencies noted by the complainants in their inspection memorandum of 31/03/03. The complainants are precluded from raising these grievances in view of Clause 12 of the agreement, though the Builder seems to concede that the complainants provided for the same. Complainants would be bound to pay for the same in case it was not included in the extra works, as it was part of extra works. The complainants therefore would not be entitled to any of the amounts mentioned by them in para 20 of the complaint in terms of prayer (c) and granted by the Lr. District Forum in terms of Clause (D & E) of the impugned order.
12. Incidentally it may be mentioned that in para 13 of the affidavit the complainant No. 1 has stated that the Builder tried to confuse the issue. The boot appears to be on the foot. Complainant No. 1 states that since the Builder claimed an amount of Rs. 29,624/- he gave a notice dated 17/12/02 but the facts on record would show that Rs. 29,624/- were demanded by the Builder way back on 5/10/02 and the complainants had no answer to the same in their letter dated 25/11/02. We fail to understand why the complainants filed several affidavits of friends or relatives who attended the house warming ceremony or why so many copies of documents were produced alongwith the affidavits of such witnesses. Was it to create a smoke screen to project a false case?
13. In our view, the complainants were not be entitled to any reliefs. It appears that the complainants filed the complaint only by way of counter blast for not having been allowed to continue the occupation of villa after inauguration ceremony without payment of the amount due on the final bill raised by the Builder and sent to the complainants by letter dated 05/10/02. The Builders appeal therefore deserves to succeed. The Builder would be free to claim Rs. 1,14,870/- from the appropriate Forum from the complainant. That relief cannot be granted to him by a Forum established under the C.P. Act.
14. For reasons aforesaid the Builder deserves to succeed in his Appeal No. FA/29/12. Consequently, the impugned order is hereby set aside and the complaint filed by the complainants is hereby dismissed and considering the facts with no order as to costs. FA/45/12 is dismissed.
[Shri. Jagdish Prabhudesai] [Shri. Justice N.A. Britto] Member President