State Consumer Disputes Redressal Commission
1.Apartment Ownersaction Committee Of ... vs The Vice-Chairman, Bhubaneswar ... on 8 August, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION: ORISSA: CUTTACK CONSUMER DISPUTE CASE NO.45 OF 1998 1. Apartment Owners Action Committee of Bhubaneswar Development Authority Colony, Chandrasekharpur, Bhubaneswar 2. Mamata Pattanaik, wife of Pranab Pattnaik, Qr. No. MIG-II, 12/13 3. Smt. Chandralekha Sahoo, Wife of K.C. Sahoao, Qr. No. MIG-II, 15/24 4. Smt. Sulochana Satpathy, Wife of R.K. Satpathy, Qr. No. MIG-II, 12/33 5. Girish Prasad sMishra, son of Tarini Charan Mishra, Qr. No. MIG-II, 15/5 6. Sushilamanjari Panigrahia, son of Nilambari Panigrahi, Qr. No. MIG-II, 16/41 7. Chittatosh Tripathy, son of Parikhita Tripathy, Qr. No. MIG-II, 15/10 Serial No.2 to 7 are residing at Chandrasekharpur B;.D.A. Colony, Bhubaneswar, Dist. Khurda ... Complainants Versus The Vice-Chairman, Bhubaneswar Development Authority, Akash Sobha Marg, Sachibalaya Marg, Bhubaneswar, Dist. Khurda ... Opposite Party For Complainants - Sk. F. Ahmed For Opp. Party - Mr. S. Mohanty P R E S E N T : THE HONBLE SHRI JUSTICE A.K. SAMANTARAY, PRESIDENT SHRIMATI SMARITA MOHANTY, MEMBER AND SHRI SUBASH MAHTAB, MEMBER O R D E R
DATE:- The 8th August, 2011.
Justice A.K. Samantaray, President.
The Apartment Owners Action Committee and six apartment owners are the complainants. The Association has been represented through its Organising Secretary Mr. R.K. Satpathy. Their grievance is against the opposite party-Vice-Chairman, Bhubaneswar Development Authority, Sachibalaya Marg, Bhubaneswar. The allegations made in the complaint are manifold, starting from defect in construction of the buildings up to sanitation, sewerage touching hygienic points, plastering and mixing of sand and cement, depth of foundation, water supply, internal wiring, electrical fittings, earthing system, non-availability of parking place due to encroachment by the ground floor flat owners, etc. Apart from redressal of the above defects, which the complainants seek in this complaint, it has been prayed that each of the complainants should be paid compensation/damages to the tune of Rs.13,15,000/- on different counts including cost of litigation.
2. The opposite party appeared and filed written version. It is submitted in the said written version that as per the BDAs advertisement, Chandrasekharpur Apartment Phase-I was put to sale under the Housing Scheme. The tentative cost of the house was given, which was subject to revision due to escalation of cost. Subsequently, the BDA extended the date of application and revised the cost of the house. The complainants applied for MIG-II houses on different dates between 1988 and 1991 by making the initial deposit of Rs.8,050/-. Thereafter, the BDA issued provisional allotment letters on different dates between 1988 and 1991 and agreements for sell were executed between the BDA and the applicants. The outright purchase cost of the house was Rs.89,920/- and persons intending to purchase houses on instalment basis were to pay Rs.1,57,810/-. All the complainants made applications for purchase on instalment basis and executed agreements to that effect. After execution of the agreements, complainants 2 to 7 took possession of their respective houses during the period from 1989 to January, 1992. The BDA finalized the price of the houses by June, 1989. Thereafter, it has not fixed or enhanced the cost of the houses. The instalment dues were paid from June/July, 1989 as per the terms and conditions of the brochure and agreement irrespective of the date of taking over possession of the house. It is the case of the opposite party that complainants 2 to 7 failed to make payment of the instalments fixed. Therefore, notices were issued to them indicating the amounts to be paid including interest. In the year 1993, the self-same Association had filed a consumer complaint in this Commission bearing number C.D. 16 of 1993. Since the Commission observed that the said complaint did not contain the particulars of redressal, the complainants sought adjournment for filing a petition for amendment, but ultimately did not file any such petition and the Commission on 05.06.1996 dismissed the complaint petition. After dismissal of C.D. No.16 of 1993, the present complaint has been filed in the year 1998 by the self-same Association through its Secretary Mr. R.K. Satpathy and complainants 2 to 7. Precisely, the construction and other amenities provided by the BDA have been found fault by complainants 2 to 7. But, when the earlier complaint was filed, no such allegation was made by any of the complainants even though the self-same Association and two named complainants had filed the complaint.
4. We have heard Mr. Sk. F. Ahmed, learned counsel appearing for the complainants and Mr. S. Mohanty appearing for the BDA at length. Mr. Mohanty strenuously submitted that when the complainants took over possession of their respective flats/houses during the period starting from 1989 to 1992, they had expressed their full satisfaction about the house in all respects. After the earlier complaint was dismissed as there was no specific allegation requiring redressal and the said order was never challenged and has thus become final, filing of a subsequent complaint by the Association and other six complainants in the year 1998 is not permissible under law. Mr. Mohanty also submitted that possession of the houses having been taken long back and the last possession being in the year 1992, the present complaint is hopelessly barred by limitation. The complainants have not filed any petition for condonation of the said delay in filing the complaint. On the ground of limitation, Mr. Mohanty contended, the complaint is not maintainable and should be dismissed. He further submitted that the complaint has been filed with an ulterior motive to delay payment of the defaulted dues, for which notices had been issued by the BDA. Mr. Mohanty also submitted that till today, they have not made any payment of the defaulted dues. He specifically stated that the amounts due as against complainants 2 to 7 are Rs.3,00,872/-, Rs.4,15,666/-, Rs.4,08,282/-, Rs.3,73,625.20, Rs.3,68,582/- and Rs.4,65,461/- respectively. This calculation has been made till September, 2009. To delay and defeat the demand made by the BDA, the complainants filed a petition for stay and by order dated 10.01.2001 this Commission directed not to take any coercive action to evict the complainants from their respective premises.
5. On the face of all these facts and documents filed by the opposite party to that effect, we are of the considered opinion that this complaint is not at all maintainable on the point of limitation. We are satisfied that the complainants have defaulted in making payment of the dues in respect of the flats which they are possessing. We, therefore, dismiss the consumer complaint. There shall be no order as to costs.
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(Justice A.K. Samantaray) President Sd/-
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(Smarita Mohanty) Member Sd/-
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(Subash Mahtab) Member SCDRC, Orissa, Cuttack August 8th , 2011/Nayak