State Consumer Disputes Redressal Commission
S. Girinivasa Prasad Advocate ... vs The Managing Director Tnstc, Division ... on 12 April, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt. Vasugi Ramanan, M.A.,B.L., MEMBER I Thiru S. Sambandam, B.Sc., MEMBER II F.A.NO.323/2006 & CMP.NO.130/2010 (Against order in C.C.NO.5/2003 on the file of the DCDRF, Thiruvaroor) DATED THIS THE 12th DAY OF APRIL 2010 V. Ravichandran S/o. Veeraraghavan C/59, Housing Board Thendral nagr Thiruvarur Appellant / Complainant Vs. Tamil Nadu Housing Board Unit Thanjavur Housing Unit Rep. by its Executive Engineer and Administrative Office Thanjavur 5 Respondent / Opposite party The appellant as complainant filed a complaint before the District Forum against the Respondent/ opposite party praying certain directions to the opposite party. The District Forum dismissed the complaint. Against the said impugned order, this appeal is preferred praying to set aside the order of the District Forum dt.21.4.2004 in O.P.No.5/2003. This petition coming before us for hearing finally on 24.03.2010. Upon hearing the arguments of the counsels on either side, this commission made the following order : Counsel for the Appellant/ Complainant: Mr. J. Kamaraj, Advocate Counsel for the Respondent/ Opposite party: Mr.V. Yuvakumar, Advocate M. THANIKACHALAM J, PRESIDENT 1.
The unsuccessful complainant, is the appellant.
2. The complainant, who is a Government servant, had purchased a house from the opposite party- Housing Board, as per the agreement dt. 23.8.99, for a sum of Rs,3,81,400/-. Though the opposite party used to insist 40% of the cost, as advance, which was not made applicable to Government servant. The complainant having agreed to purchase the house, applied for Government loan, and for the said period of 6 months also, he has paid a sum of Rs.14,694/- towards interest. Pursuant to the agreement, and payment, the house in question was handed over to the complainant on 28.8.99.
3. Even on the date of taking possession of the house itself, the complainant had noticed number of repairs, including anthill, thereby indicating the house was so bad. Upon complaint, the opposite party agreed to make necessary repairs, but failed to do so, resulting a written complaint on 31.8.01, which also failed to yield any positive result. Thereafter, the complainant approached Tamil Nadu Consumer Protection Council of Thiruvarur District, who had requested the opposite party to rectify the mistakes, but there was no result. The agreement itself provides, rectification of mistakes, which the opposite party has not honoured. The house itself is not worth of Rs.3,81,400/-.
4. The house loan was sanctioned to the complainant, which was paid to the opposite party by way of Demand Draft on 27.8.01, and the amount being Rs.3,81,400/-.
For the delay in getting loan from the Government, for that period also, interest was calculated, including penal interest, and on that account a sum of Rs.59,906/- was credited, crediting the balance towards sale consideration. The complainant is not responsible for the delayed house loan sanctioning, and therefore claim of penal interest is not justifiable. The opposite party having failed to handover the house in good condition, and further having failed to rectify the defects, despite request and legal notice, had committed deficiency, and in this view, they should be directed to make necessary repairs, as well they should be directed to pay a sum of Rs.1 lakh as compensation for collecting penal interest, as well as causing mental agony, etc. Thus a claim has been made before the District Forum, Thiruvarur.
5. The opposite party admitting the purchase of the house by the complainant, as well the payment, would contend that as per the Government orders, and other regulations, and as per the terms and conditions available in the agreement, house was sold to the complainant, that there was no repair of any kind, and that is why the complainant also had taken possession of the house, otherwise he would not have taken possession, that the opposite party had collected penal interest only as per Government order, which cannot be termed as deficiency, that the complainant having kept silent for so many years, has filed a false case, which would indicate, that there was no repair of any kind, which should follow, no direction could be issued against opposite party, either to repair the house or to pay compensation of Rs.1 lakh, for the imaginary claim, thereby praying for the dismissal of the complaint, denying further allegations also.
6. The District Forum, taking the case for enquiry, on the basis of the above pleadings, marking certain documents, as well as receiving affidavits, evaluated the materials, which brought to surface, that there was no damage of any kind, in the building at the time of delivery of the possession, that the contention of the complainant that the value of the building was less, is also not acceptable, whereas it was the correct market value, that for the delay in sanctioning house loan by the Government, the opposite party cannot be held responsible, and in this way, for delayed payment, interest collected as per the Government order, cannot be found fault, that no deficiency of any kind, against opposite party was proved. Thus concluding, the complaint came to be dismissed, without cost, as per the order dt.21.4.2004, which is impugned in this appeal.
7. Heard the learned counsel for appellant as well as the respondent, perused the written submissions, lower court records and the order passed by the District Forum also.
8. The learned counsel for appellant would contend that even as per the agreement, entered into between the parties, there are provisions, to make necessary repairs, which the opposite party failed, not taken into account, by the District Forum, which should be construed as an erroneous order. It is also the submission of the appellant that having collected more than the amount fixed, opposite party had committed deficiency, not properly analysed by the District Forum. Thus elaborating the points raised in the memorandum of appeal grounds as well, an appeal was made to allow the appeal, which was opposed by the opposite party, raising additional plea of limitation, permitted to do so, since it is a question of law, and no plea may be necessary.
9. Ex.A2, is the lease cum sale agreement, entered into between the complainant and the opposite party, which is the basic document, where from rights and liabilities flow. The opposite party having realized, that there may be certain defects in the building, including in the foundation, as well as in the structural, had introduced a clause, which reads The lessor shall not be responsible for and defects structural or otherwise in the property and the lessee shall be bound to purchase the property not with standing defects, if any in construction, without any claim for compensation from the lessor. Under this clause, an immunity has been given, whether it is justifiable or not.
But clause 31, gives right to the purchaser of the building, but for the rectification of defects, within the specified period, which reads It is specifically agreed between both the parties that if any structural defect develops within three years, in the foundation or within two years in the superstructure from the date of allotment, the Housing Board will rectify the same at its cost. If such defect develops after the above said periods it is for the allottee to get the defect develops after the above said periods it is for the allottee to get the defect rectified at his/ her costs. This clause, is reiterated in the complaint, and therefore safely we can come to the conclusion, that the complainant was also aware of this clause. It says, if any structural defect develops within three years, in the foundation, or within two years in the super structure, from the date of allotment, the housing board will rectify the same, at its cost. Therefore, if the building purchased by the complainant had any repairs, either in the structure or in the foundation, the complainant would have agitated the same, within three years, or two years, as the case may be, even assuming agitated and not attended. But unfortunately, the complainant came to the District Forum only on 12.12.2002, though he had taken possession of the building admittedly on 28.8.99, i.e., beyond three years. In this view, as per the agreement, assuming that there was any mistake in the building, it should be held that the opposite parties are not entitled to rectify the defects, at the distance of time, since they are not bound to rectify the same after the period prescribed therein. Thus the claim should be negatived, as time barred, since not claimed as per the terms and conditions available under Ex.A2. The Consumer Protection Act 1986, Sec.24A mandates, that the District Forum, shall not admit a complaint, unless it is filed, within two years from the date of which the cause of action had arisen. As seen from the complaint, the cause of action had arisen on 23.8.99 and 28.8.99. Therefore the complainant ought to have filed the case, within two years, from the above said dates, since he had alleged even on the date of taking possession, he had noticed the defects. Having failed to do so, he knocked the doors of District forum only on 12.12.2002, and in this view, it should be held, the case is barred by limitation, under the Act also.
10. In the cause of action para, it is further stated, 27.8.02 also should be taken as cause of action, which cannot be. The deficiency or the defects in the building or the excess amount if any collected by the opposite party, were all had taken place in the year 1999 itself.
Admittedly that alone should be the date of cause of action, and not calculating three years, there from, then calculating further two years, for the purpose of this Act. In this view, also it should be held the claim is barred by limitation.
11. Even assuming that the claim is not barred by limitation, we find no reason to interfere with the findings of the District Forum. To prove the alleged defects in the building, we do not have any materials, except pleadings, as rightly contended by the opposite party. Had there been defects in the building, at the time of taking possession of the building itself, certainly the complainant would not have taken possession in the year 1999, parting a huge sum of Rs.3,81,400/-, though borrowed as loan. The very fact, without any murmur or raising any objection in writing, the complainant had taken possession of the building on 28.8.99, would suggest and it is sufficient to hold that there would not have been any repair, either in the structure or in the foundation or in the flooring, as the case may be, and that is why, when occasion should have arisen, not questioned.
12. In this appeal. CMP.13/2010 was filed by the appellant, to receive additional documents.
Though three documents were filed, two documents are not relevant, and therefore rejected, as unnecessary. One document dt.30.10.01, would indicate, that a notice has been given to the opposite party, requesting to rectify the defects, in the foundation, as well as super structure, without any details. Therefore, assuming that this document was received by the opposite party, which will not have any effect, in deciding the case, and therefore the petition to receive additional document is dismissed, and the documents are not admitted.
13. The deficiency or accusation or defects as the case may be, as per the averments in the complaint, are that they have collected excess interest, and even on 28.8.99, the building had defects, that the opposite party failed to handover the house in good condition, and that the building was not worth of Rs.3,81,400/-.
All the above allegations, remain only as allegations or as dead letters, since we find no supporting material, to give life to those averments, thereby to accuse the opposite parties, that they have committed deficiency. As far as the market value of the property is concerned, knowing fully well, entering into an agreement, the complainant purchased the property, and therefore at this distance of time, it is not open to the opposite party to question the price. Similarly, for the delayed payment, interest collected, also cannot be challenged, since opposite party had collected interest, as per the Government Order, and for the delay in sanctioning the loan by the Government, the opposite party cannot be held responsible. As pointed out supra, no material to prove either defect in the structure or in the foundation. This being the position, the question of issuing direction at this distance of time to rectify the defects in the building, is beyond the scope of Consumer Forum, which was rightly appreciated by the District Forum, and as such there is no merit in the appeal.
14. In the result, the appeal and the CMP.No.130/2010 is dismissed, confirming the order of the District Forum in CC No.5/2003 dt.21.4.2004. Under the facts and circumstances of the case, there will be no order as to cost throughout.
S.SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/TNHB