State Consumer Disputes Redressal Commission
Manish Gosalia & Another vs Santa Fe Realty Private Limited on 7 December, 2017
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 51/2017
1. Mr. Manish Gosalia,
Son of late Mr. Vinod Shantilal Gosalia,
Aged about 47 years, married, business,
Indian National, and his wife,
2. Mrs. Toral Gosalia,
Daughter of Mr. Suresh Shah,
Aged about 41 years, housewife,
Indian National, Both residents of
Villa No. B - 14, Dreamwoods,
Pateapur, Nuvem, Salcete - Goa. ...Appellants
v/s.
1. Santa Fe Realty Private Limited,
A Private Limited Company,
Having office at "dreamwoods'
Pateapur, Nuvem, Salcete - Goa,
403 604. ...Respondent
Adv. Mr. J. Costa for the Appellants.
Adv. Mr. A. D. Bhobe for the Respondent.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated: 07/12/2017
ORDER
[Per Justice Shri. U. V. Bakre, President] This appeal is directed against the order dated 20/06/2017 passed by the Consumer Disputes Redressal Forum, South Goa (the "Forum", for short) in Complaint No. 35/2017. The Appellants were the Complainants and the Respondent was the Opposite Party (OP, for short) in the said Complaint. Parties shall hereinafter be referred to as per their status in the said Complaint.
2. The Complainants have purchased Villa bearing No. B-14 admeasuring 199.46 square meters in super built up area along with 2 an area of 238.82 square meters land underneath and around the said Villa (said premises), from the Opposite Party ('OP', for short). The possession of the said premises was handed over by the OP to the Complainants on 19/04/2013 and sale deed was executed in favour of the Complainants on 06/09/2013. The Complainants had filed the said Complaint against the OP for following reliefs:
"(a) That this Hon'ble Forum be pleased to pass an order holding that the Opposite Parties have engaged in several unfair trade practices, for the purpose of promoting the sale of Villas at Dreamwoods and the subsequent services promised, adopting unfair methods and deceptive practices for the past several months, making false and misleading representations, knowing fully well that the Opposite Party never had any intention of fulfilling or delivering any of them;
(b) That this Hon'ble Forum be pleased to pass an order directing the Opposite Party to return/refund/repay to the Complainants, an amount of Rs. 15,00,000.00 (Rupees Fifteen Lakh Only) towards the unfair trade practices adopted by the Opposite Party in promising yet failing to provide to the Complainants, Facilities and Amenities such as an Electrician on call, Plumber on call, House-help facility, receptionist to handle all queries, convenience store, in-house transport for residents, Common Room for drivers of residents and failed and neglected to complete a part of the boundary wall, which was left unconstructed and further, as Phase - II of Dreamwoods is still to be constructed by the Opposite Party thus denying the Complainants of additional facilities such as the residential Ayurveda, yoga and meditation spa as initially promised;
(c) That this Hon'ble Forum be pleased to pass an order directing the Opposite Party to return/refund/repay to the Complainants, the said amount of Rs. 15,00,000.00 within a period of 15 days, failing which the Complainants shall be entitled to recover 12% interest on the said amount due or any part thereof from the Opposite Party till actual realization;3
(d) That this Hon'ble Forum be pleased to pass an order directing the Opposite Party to pay to the Complainants an amount of Rs. 5,00,000.00 (Rupees Five Lakh Only) towards compensation on account of mental pain, harassment and suffering, occasioned to the Complainants by the Opposite Party;
(e) That this Hon'ble Forum be pleased to pass an order directing the Opposite Party to return/refund/repay to the Complainants, the said amount of Rs. 5,00,000.00 within a period of 15 days, failing which the Complainants shall be entitled to recover 12% interest on the said amount due or any part thereof from the Opposite Party till actual realization.
(f) That this Hon'ble Forum be pleased to pass an order directing the Opposite Party to provide to the Complainants a detailed account statement of all incomes and expenditure carried out at Dreamwoods, since the time of purchase of the Villa, along with a full list of Contributions from all Villa Owners, the Salaries and Overheads expended by the Opposite Party, since the time of purchase of the Villa, the mode and manner of Utilization of Funds collected by the Opposite Party, the amounts contributed by the Opposite Party/Mr. Ralph Souza towards the Villa occupied and used by Mr. Ralph Souza in Dreamwoods along with the unsold villas in Dreamwoods, a statement of Funds left unutilized, list of all Villa Owners, list of Villas owned by the Opposite Party/Unsold, Names of Onsite Staff employed by the Opposite Party, names of Management Staff of the Opposite Party, within a period of 7 days;
(g) That this Hon'ble Forum be pleased to pass an order directing the Opposite Party to provide to the Complainants a detailed list of all Villa Owners in Dreamwoods, along with the postal addresses and contact details;
(h) That this Hon'ble Forum be pleased to pass an order directing Opposite Party to immediately and in any event within a period of 7 days, provide to the Complainants the following Amenities and Facilities as promised to the Complainants at the time of booking of the Villa, namely:4
(i). An Electrician on call,
(ii). A Plumber on call,
(iii). House-help facility,
(iv). A Receptionist to handle all queries,
(v). A convenience store within Dreamwoods to ensure that the Complainants get essential supplies at all times.
(vi). In - house transport for residents, to ferry the Complainants to markets and the beach.
(vii). A common Room for drivers of residents and the Complainants.
viii.to complete the construction of a part of the boundary wall, which is left unconstructed.
(i) That this Hon'ble Forum be pleased to pass an order directing the Opposite Party to immediately and forthwith stop, cease and desist from carrying out any rental activities within Dreamwoods and take down any material advertising the same on rental websites or any other source of advertisement;
(j) That this Hon'ble Forum be pleased to pass an order directing the Opposite Party to immediately, and in any event within a period of 30 days, form a Co-operative Housing Society for the purpose of maintenance of Dreamwoods, taking the Complainants and all other permanent residents as stakeholders/promoters and/or members of the same;
(k) That this Hon'ble Forum be pleased to pass an order directing the Opposite Party to transfer all and any amounts pending with the Opposite Party, after verifying the accounts with the Co-operative Housing Society so formed, to the credit of the Co-operative Housing Society, so that the said Society may carry on the maintenance of Dreamwoods;
(l) That this Hon'ble Forum be pleased to pass an order directing the Opposite Party to stop, cease and desist from raising any future demands of monies from the Complainants in respect of Dreamwoods or its maintenance;5
(m) Costs of the present proceedings. (n) Any other orders deemed fit in the facts and circumstances of the present case.
3. Lr. Counsel for the Complainants was heard by the Forum at the stage of admission. Vide the impugned order, the Forum held that on 19/04/2013 the OP handed over the possession of the said premises to the Complainants and thereafter on 06/09/2013, the sale deed was executed conveying the said premises along with proportionate share in the land in favour of the Complainants and therefore the Complainants ceased to be the consumers of the OP.
The Forum further observed that after taking the possession and at the time of execution of sale deed, the Complainants had no grievance against the OP and if at all the Complainants had any grievances, they should have filed the Complaint within two years from the date of execution of sale deed. The Complaint was filed on 29/03/2017. The Forum held that the Complaint was time barred and hit by Section 24A of the Consumer Protection Act, 1986 (the "Act", for short) and dismissed the Complaint.
4. Records and proceedings of the said Complaint No. 35/2017 were called for. Mr. J. Costa, Lr. Counsel argued on behalf of the Complainants and Mr. Bhobe, Lr. Counsel argued on behalf of the OP. Arguments were heard on merits of the appeal as well as on the application for interim reliefs filed by the Complainants, in this appeal.
5. We have gone through the entire material on record.
6. Mr. Costa, Lr. Counsel for the Complainants submitted that the application for interim relief has been filed under Section 13 (3-B) read with Section 18 of the Act. Section 12 of the Act provides for the manner in which a complaint shall be made. Section 13 provides for the procedure on admission of complaint. Section 13 (3-B) of the Act 6 provides that where during the pendency of any proceeding before the District Forum, it appears to it necessary, it may pass such interim order as is just and proper in the facts and circumstances of the case. Section 14 of the Act deals with finding of the District Forum in the complaint. Section 18 of the Act provides that the provisions of Sections 12, 13 and 14 and the rules made thereunder for the disposal of Complaints by the District Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by State Commission. The above provisions of Sections 12, 13 and 14 of the Act apply only to complaints filed before the Forum and in terms of Section 18 of the Act the said provisions apply to this Commission for the disposal of Complaints filed before this Commission. The present proceeding is not a Complaint but an Appeal. The Complainants had not filed any application for interim reliefs before the Forum. In the circumstances above, the application for interim reliefs is not maintainable and is therefore dismissed.
7. A perusal of the agreement for sale dated 13/02/2010 between the Complainants and the OP does not mention about providing to the Complainants the amenities and facilities as mentioned in prayer Clause (h) of the Complaint. The said amenities and facilities were mentioned in the brochure of the OP. However, the brochure is issued only to attract the customers and is not a contract binding the builder.
8. The possession of the said premises was handed over to the Complainant on 19/04/2013 and the sale deed was executed on 06/09/2013. The deficiencies alleged by the Complainants were noticed during the period between 10/04/2013 and 06/09/2013. A perusal of the prayers in the Complaint reveal that the Complainant could have complained about the grievances giving rise to those prayers within two years from the date of execution of the sale deed. However, the Complaint was filed on 29/03/2017. Section 24A (1) of the Act provides that the District Forum, the State Commission or 7 the National Commission shall not admit a Complaint unless it is filed within two years from the date on which the cause of action has arisen. Thus, the Forum was not bound to admit the Complaint. The Forum is empowered to decide the issue of admissibility of the Complaint and can either allow the Complaint to be proceeded with by admitting the same or reject the same without admitting the same. Clause no. 9 of the agreement for sale dated 13/02/2010, inter alia provided that on taking possession of the said premises, the purchasers shall have no claim against the vendor in respect of any item or work in the said premises which may be alleged not to have been carried out or completed. The contention of Mr. Costa, Lr. Counsel for the Complainants that the cause of action for filing the Complaint was continuous in nature and that the same had further arisen in the month of February 2017 when the Complainant issued a notice to the OP to carry out the works as promised by it at the time of purchase of said Villa, has no substance. As already stated above the agreement between the parties does not speak about the said facilities and amenities. The cause of action cannot arise when a notice is issued. The facts and circumstances in the case of "B. Venu Madhav Vs. National Consumer Disputes Redressal Commission", [2012 LawSuit (AP) 149], relied upon by the Complainants are totally different. Clause no. 4 of the sale deed dated 17/08/1996 provided that the purchaser shall have the right to enjoy and use along with other co-owners the open land, roadways, approaches and all other means of ingress and egress and shall have all the rights, title and interest in any construction, building, floor area, flat or garage or any portion of the schedule property. Accordingly the second respondent and others occupied their respective flats and were making use of the common/parking area in the apartment for parking/other purposes. The second respondent was using the area for parking till July 2003. At that juncture, the 'Rajyalaxmi Apartment Owners Association'(a registered association in which the second respondent was a member) allotted specially earmarked 8 parking slots to 23 persons and in the process the second respondent who was statedly using the parking area from 1996 to July 2003, was forced to have a restricted access to the parking area. He therefore approached the District Forum. The High Court of Andhra Pradesh held that the State Commission and the National Commission, after appreciating clause 4 in the sale deed have recorded a finding that in view of the right of the flat owner to use open areas including parking area, any denial thereof would give cause of action to seek redressal in the District Forum. In the present case, it is not the case of the Complainants that they were enjoying certain amenities and facilities as per the sale deed and that the OP subsequently denied the said enjoyment to them. Here some things had not at all been allegedly done by the OP which according to the Complainants were promised to be done and this lapse was known to the Complainants at the time of execution of the sale deed and hence the cause of action had arisen from the date of the sale deed.
9. We are of the considered view that the Complaint has been rightly dismissed as time barred since not filed within two years from the date of cause of action.
10. In the result the Appeal is dismissed, with no order as to costs.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
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