State Consumer Disputes Redressal Commission
Valentino Escolastica Fernandes vs M/S Soeuls on 4 August, 2015
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
PANAJI - GOA
C.C. No. 39/2014
Ms. Valentina Escolastica Fernandes,
resident of 186, Padriguelem, Sernabatim,
Colva, Salcete, Goa. .........Complainant
v/s.
M/s. Soeuls, with office at
G-8, Dona Trisha Bldg.,
Opp. Manipal Hospital,
Dona Paula, Tiswadi-Goa. .......OP
Complainant is represented by Adv. Shri. R.F. Gracias.
OP is represented by Adv. Shri. D.P. Agni
Coram: Shri Justice N.A. Britto, President
Smt. Vidhya R. Gurav, Member
Dated: 04/08/2015
ORDER
[Per Shri. Justice N. A. Britto, President] This order shall dispose off the complainant's consumer complaint filed on 17/12/14.
2. The undisputed facts would be as follows:
3. The complainant entered into an agreement with the OP, a Developer, dated 13/10/09 for the construction-cum-sale of a flat for a sum of Rs. 31,25,000/- in their project to be known as SHEELA SERENE. The complainant was to make the payments towards the said flat as per Schedule - III to the said agreement, and the said flat was to have specifications as per Schedule - IV to the said agreement. The possession of the flat was to be delivered to the complainant by 2 31/3/10 subject to an extension of further two months provided that all the amounts due and payable by the complainant were paid to the OP, and, on completion of the flat, the Developer was to give a notice in writing regarding the completion of the said flat. The complainant was to pay, at the option of the developer, interest at the rate of 21% p.a. compounded monthly in case the amounts remained unpaid for 60days or more. Additional works, in addition to the specifications, were to be paid for before the relative item of work was taken up for work and was to be considered as the extra item for the purpose of payment.
4. The developer obtained the occupancy certificate on or about 15/2/11 and reminded the complainant by email letter dated 31/3/11 to make final payment and take possession of the flat (copy at page
172). The Complainant was informed that she had not paid the third instalment which was long overdue as per the terms of payment and was requested to make the necessary payment immediately so that the account could be closed. The complainant was informed that complainant's comments on the sale deed were being examined by their advocate and was also informed that the clauses of the sale deed were as per standard agreements which could not be amended, as per individual needs, etc. The OP then handed over the possession of the said flat S-1, identified as flat No. F-1, under letter of possession dated 28/4/11 duly signed by the complainant, with relevant documents as per terms and conditions mentioned in the said agreement.
5. The complainant was then sent on or about 19/7/13 final copy of the sale deed stating that it was a standard sale deed and no major changes were expected. By letter dated 11/01/14 (copy at page 178) the complainant was reminded to clear the outstanding dues for the extra works. This letter was sent by way of last and final reminder for 3 execution of the sale deed. By another letter dated 17/2/14 (copy at page 178A) the complainant was informed that she had already accepted the possession of the flat, two years back, and now she was finding escape route for not paying their bills and that without payment they would not be in a position to complete the sale deed formalities and any delay in signing the sale deed would be her sole responsibility.
6. By letter dated 10/3/14 the complainant requested changes to be made in the sale deed as per attachment (copy of letter at page 49.) The same was then followed by advocate notice dated 18/03/2014 sent through Adv. Shri. Gracias calling upon the OP to provide certain amenities which were not provided, namely, cardio gymnasium and activities centre and video door phone facility and also to pay an amount of Rs. 2 lacs on account of delay of delivery of possession of the said flat and Rs. 1.25 lacs which the complainant was required to spend for restoration of the flat. The OP sent a detailed reply to Adv. Shri. Gracias, by reply dated 5/4/14, which is in conformity with the defences taken by the OP, and, then came the complaint to be filed by the complainant which was amended subsequently as per order dated 2/7/15.
7. First, we proceed to consider prayer (c) of the complaint which has been introduced by virtue of the said amendment. Shri. Gracias, the lr. advocate of the complainant would submit that the OP developer is bound to provide to the complainant (a) safety grills for windows estimated at Rs. 45,880/-, (b) Video Door Phone facility, (c) Cardio Gymnasium with activity centre and party hall for the flat purchasers and (d) pergola arrangement on the terrace. Lr. advocate would submit that the complainant is entitled to the said amenities as per schedule IV and Clause 20(c) of the agreement. Lr. advocate 4 submits that after the possession of the flat was given to the complainant, the OP has put up a third floor and this has deprived the complainant and others of the amenity of pergola, as agreed to be provided under the agreement, and, therefore the complainant should atleast get a reduction in the cost price of the flat. On the other hand, Shri. Agni, the lr. advocate of the OP, would submit that it is not possible now to erect the said pergola after the third floor was built by the OP. Lr. advocate submits the claim for the said amenities to be provided has been belatedly made by the complainant and that too by way of an amendment and the same is barred by Section 24-A of the C.P. Act, 1986, the same not having been made within two years from the date of taking possession of the said flat by the complainant. Lr. Adv. Shri. Agni has placed reliance on Malkiat Singh vs. Shaheed Bhagat Singh Nagar, 2013 (3) CPR 180. This is a case where the complaint was filed for certain amenities, almost three years and four months after taking delivery of possession and it was therefore held that the complaint was time barred.
8. In our view, the complainant's claim for safety grills and pergola needs to be rejected for reasons more than one. Firstly, this claim is clearly time barred. The complainant took possession of the flat on 28/4/11 without the said window grills and pergola on the terrace. These can be called as patent defects (as opposed to latent defects) which were known to the complainant at the time of taking possession of the flat on 28/4/11. The complainant did not raise any issue as regards the same at any time prior to filing of amendment application dated 2/7/15. Any claim in respect of the same, therefore, had to be made by the complainant within two years from 28/4/11 as required by Section 24-A of the C.P. Act 1986 or shown cause why it could not be made during the said period of two years and the same not having been made, the same has got to be rejected as time barred.
5The ratio of Malkiat Singh (supra) is squarely applicable to the facts of this case. Secondly, the agreement to provide pergola has become impossible of performance, with the construction of the third floor, in as much as the complainant has also not estimated what is the loss caused to her on account of not providing the said pergola.
9. As regards video door phone facility and cardio gymnasium, etc. are concerned, the OP in their email dated 17/2/14 (copy at page 178A) have stated that the video door phone facility would be fitted, on signing the sale deed, as was done in the case of Mrs. Edna D'Costa, and, although it was also stated in the said letter that the OP did not have anything to be completed, it has been fairly submitted on behalf of the OP, by lr. advocate, that the structure for cardio gymnasium with the activity etc. is ready and necessary equipment would be provided to the complainant and other flat holders within six months of the formation and registration of the Society for the maintenance of the building. We accept the said statement of lr. advocate and direct the OP to provide to the complainant video door phone facility within a period of 30 days of signing of the sale deed and to provide the cardio gymnasium, etc. with equipment within three months from the date of registration of the society. Needles to observe, somebody would be required to take care of the said cardio gymnasium with activity centre which is for the benefit of all the six flat holders. Here, it may be stated that the building constructed by the OP known as Sheela Serene is made of six flats, two on each floor and as stated on behalf of the OP, all the flats are being occupied except that of the complainant and the sale deeds have also been executed in respect of the remaining five flats. Prayer (c.) of the complaint shall therefore stand partly allowed as indicated in this para.
610. We now take prayer (b) of the complaint, though no arguments have been advanced as regards the same. The complainant has stated that she suffered a loss of Rs. 2 lacs on account of the delay in delivery of the said flat and that she will have to spend around Rs. 1.25 lacs for restoration of the said flat and the total loss suffered by her is to the tune of Rs. 3,25,000/-. The complainant has further stated that the loss of Rs. 2 lacs is on account of the fact that she has to make several trips from Goa to Kuwait to persuade the OP to deliver the flat and also due to lack of accommodation as she had to stay somewhere else. The statements made by the complainant have not been substantiated by any material on record and remain nothing but self-serving statements. One need not accept anything and everything stated by the complainant as gospel truth. On the other hand, the OP has stated that the complainant had another residential house at Colva, Salcete Goa and the address of the said house is mentioned in the agreement itself. It is also stated that the dates of travel mentioned by the complainant were much before the complainant had even finalized various tiles of her own choice and sanitary fittings and other modifications. OP has stated that if at all the complainant travelled during the said period, as alleged, she did so for her personal work and not because of the OP.
11. As regards the expenditure of Rs. 75,000/-, out of Rs. 2 lacs, the same pertains to alleged three trips made by the complainant prior to September 2010. The claim for Rs. 2 lacs itself has been made by the complainant for the first time in advocate's letter dated 18/3/10 and therefore can be considered to be as an afterthought. Nothing prevented the complainant, to have raised the said claims, on or prior to 26/9/10. At that stage the complainant had paid only a sum of Rs. 23 lacs. The complainant could have sought adjustment to be made from the amount which was liable to paid by her as on that date. The 7 complainant was in correspondence with the OP and there was no need for her to have come to Goa. No tickets have been produced by the complainant. We are inclined to believe the OPs version that if at all the complainant visited Goa, she did so for her personal work. As regards delay, on behalf of the OP it is stated that the delay is attributable to the complainant alone and we are inclined to accept the said submission. The payments required to be made by the complainant are disclosed in Schedule-III of the agreement and the payments actually made by the complainant are indicated by the OP in para 4(c) of the written version. There is no dispute raised by the complainant as regards the dates of the said payments and as regards the same Shri. Pathak one of the partners of OP, has stated in his affidavit-in-evidence that on 31/3/10 on the date when possession was required to be given, the complainant had paid only a sum of Rs. 16 lacs out of total consideration. Shri. Pathak has further stated that various stages of construction were completed by the OP well within time but the payments were not made by the complainant according to Schedule-III of the agreement. He has also stated that the Occupancy certificate was obtained on 15/2/11 and principal amount of consideration was paid by the complainant after more than a year i.e. 21/4/12 and that the OP in good faith did not pressurize the complainant and accepted the said payments as and when they were paid by her. He has also stated that on or about 11/3/10 the complainant requested the OP to do some additional work and agreed to pay additional cost as stipulated in the agreement and requested for different kitchen tiles, flooring tiles, bathroom tiles and till 22/5/10 the complainant herself was guilty in not finalizing the said kitchen tiles and other modification requested by her and as such the OP could not continue with further work of construction and keep the same pending and this factor caused some delay for handing over the possession of the said flat and the same is totally attributable to 8 the complainant. Shri. Agni, the lr. advocate of the OP has also drawn our attention to the correspondence sent by the complainant. Letter dated 11/3/10 (copy at page 136) shows that the complainant had modified the layout of the toilet from the original plan and promised to send separately layout for the kitchen. The kitchen layout was sent by email dated 18/3/10 (copy at page 138). We need not go through all the letters pointed out by the lr. advocate, and, suffice it to say that as late as 22/05/10, (copy at page 155) the complainant had not even finalized the kitchen tiles. Additional or extra works must have been completed much later, around March, 2011 (copy of letter at page
161). Now, the complainant has claimed that she was prompt and regular in the matter of payments. This is far from truth, as the Schedule of payments shown by the OP in para 4 of his affidavit has not been contested by the complainant. The OP has rightly submitted that he was liable to deliver the possession of the flat on or about 31/3/10 with extension of two months in case all the amounts due and payable by the complainant were paid to the OP. The OP has been able to demonstrate that the complainant did not make the payments in time, in as much as the additional works requested by the complainants could not be finalized and completed because of the complainant. The complainant, therefore, would not be entitled to the sum of Rs. 2 lacs or any part thereof which has been claimed for the first time in the legal notice in as much as the said claim is also time barred, the same having not been made within two years either from 26/9/10 or 28/4/11 nor any cause shown for not having made the same within the period of two years. The claim for Rs. 1,25,000/- is absolutely vague. The claim in terms of prayer (c) therefore needs to be rejected.
12. Before we go to the terms of the sale deed, regarding which there is a dispute between the parties, it may be observed that the 9 complainant does not dispute that the complainant is required to pay to the OP a sum of Rs. 63,700/- towards the extra work, carried out by the OP. In this regard Shri. Pathak has stated in his affidavit that towards the additional works the OP has raised a bill of Rs. 1,46,289/- which at the request of the complainant was reduced, by giving a rebate of Rs. 32,888/- and accordingly the complainant had agreed to pay the OP Rs. 1,13,700/- towards the said extra works and that with great persuasion the complainant paid an amount of Rs. 50,000/- on 25/4/12 but has failed and neglected to pay the balance amount of Rs. 63,700/-. It is also stated by him that the OP could have withheld handing over possession of the flat to the complainant but the complainant on this ground did not do so in good faith. Lr. Adv. Shri. Agni, on behalf of the OP, would submit that the OP would be entitled to interest on the said amount as per clause 6 of the agreement i.e. at the rate of 21% per annum. On the other hand, lr. adv. Shri. Gracias, in one breath would concede that the complainant is liable to pay to the OP the balance sum of Rs. 63,700/- but in another breath would submit that the claim of the OP for the said amount of Rs. 63,700/- would also be time barred.
13. The complainant has admitted her liability to pay the said sum of Rs. 63,700/- not only before this Commission but also in her email letter, in reply to OP's email letter dated 17/2/14 (copy at page 178A). By this email letter the OP informed the complainant that the flat was handed over to her two years back and that she was finding an escape route for not paying their bills and that without payment they will not be in a position to complete the sale deed formalities. The complainant in her reply, told the OP that she had not mentioned in her last email or any of her emails that she would not be settling the bills and further told the OP to rest assured that the OP would get their payment and that she was not interested in holding their dues. This 10 admission is made by the complainant in or about February 2014 admitting her liability to pay the said sum of Rs, 63,700/- due to the OP on extra works and as such this claim of the OP cannot be time barred. The OP, in our opinion, is on sound moral and legal grounds in claiming the said amount of Rs. 63,700/- from the complainant due to them on extra works. It is a reciprocal promise to be fulfilled by the complainant before she gets the sale deed in her favour. However, in our view, the OP would not be entitled to interest as submitted by Shri. Agni. In our view, clause 6 was meant to the complainant and not to the OP and as such cannot be reversed to favour the OP. The OP has been deprived of the said amounts atleast from 25/4/12 and, therefore, we direct the complainant to pay to the OP the said sum of Rs. 63,700/- with interest at the rate of 6% from 25/4/12, at the time of execution of sale deed.
14. The complainant seems to be having reservations in executing the sale deed with clauses 17(b), (a), (c), (d), (i) and 19 (b) of the draft sale deed, (copy at page 31). Shri. Agni, the lr. advocate of the OP, would submit that the complainant was given a draft of the sale deed in conformity with the sale deeds executed by the OP with the other five purchasers of the flats and there is nothing new about it. On the other hand, Shri. Gracias the lr. advocate of the complainant would submit that in case the OP has been able to pressurize the other five flat purchasers, it does not mean that the complainant should succumb to his pressures. Lr. advocate submits that the said clauses are reprehensible and are not in the interests of the complainant. Shri. Agni would submit that many of the clauses are inserted for the benefit of other flat purchasers.
15. Parties sought atleast three adjournments to settle the draft deed of sale. An agreement has eluded them. Some of the clauses seem to 11 restrict the rights of the complainant upon purchase of the flat, though it is submitted, as already stated, that the said clauses have been inserted so as to safeguard the rights of other purchasers as well. After hearing in detail both the lr. advocates, we direct as follows:
(i) Clause 17(b) (a) shall have the words "and for any lawful purpose" after the words "purpose of residence" and before the words "The Purchaser". The word "only" from first line to be deleted.
(ii) Clause 17(b) (c) shall be deleted as all dues payable to the OP will be paid at the time of execution of the sale deed.
(iii) Clause 17(b) (d): The words "except LPG" shall be added after the words "SAID FLAT" and before the words "any goods which are hazardous ..."
(iv) Clause 17 (b) (e): The ending words "without the prior written permission of the VENDOR in clause 17(b) (e) shall be deleted".
(v) Clause 17 (b) (i) shall be deleted.
(vi) Clause 19(b) states what is obvious and therefore shall be
retained;
16. Application dated 20/2/15 for production of certain photographs is dismissed, as the same was not filed earlier and there are no averments made either in the complaint or affidavit as regards the same.
17. In view of the above discussion, the complaint is partly allowed.
The claim of the complainant in terms of prayer (a) is hereby allowed 12 and the OP shall execute the sale deed in favour of the complainant as per draft (at page 31), as modified by para 15 hereinabove within the period of 30 days, upon payment by the complainant Rs. 63,700/- with interest at 6% from 25/4/12. The claim of the complainant in terms of prayer (b) is dismissed. The claim of the complainant in terms of prayer (c) is partly allowed as indicated in para 9 hereinabove. Complaint is accordingly disposed off. Parties shall bear their own costs.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A. Britto]
MEMBER PRESIDENT
sp/