State Consumer Disputes Redressal Commission
Kasliwal Construction Ltd. vs Saw Janabai W/O Balkrishna Gavali on 29 July, 2015
1 F.A.No.:333 & 334/2013
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing :18.11.2013
Date of order :29.07.2015
1.FIRST APPEAL NO. :333 OF 2013
IN COMPLAINT CASE NO.: 561 OF 2010
DISTRICT CONSUMER FORUM :AURANGABAD.
Kasliwal Construction Ltd.,
Through Sanjay Suganchand Kasliwal,
R/o 215, First floor, Building NO.3,
Apna Bazar, Jalna Road,
Aurangabad. ...APPELLANT
VERSUS
1. Sow.Janabai Balkrishna Gavli,
2. Balkrishna Hanumantrao Gavli,
Through their Power of Attorney Holder
Prashant Balkrishna Gavli,
R/o G-22, 'G' Sector, Deogiri Vally,
Mitmita, Aurangabad. ...RESPONDENTS.
Date of filing :18.11.2013
Date of order :29.07.2015
2.FIRST APPEAL NO. :334 OF 2013
IN COMPLAINT CASE NO.: 561 OF 2010
DISTRICT CONSUMER FORUM :AURANGABAD.
1. Sow.Janabai W/o Balkrushna Gawali,
2. Shri.Balkrushna Hanumantrao Gawali,
Both through their Power of Attorney Holder,
All R/o G-22, Devgiri Valley, Mitmita,
Aurangabad-431 002. ...APPELLANTS
2 F.A.No.:333 & 334/2013
VERSUS
1. M/s Tapadiya Construction Ltd.,
Through Proprietor Jugalkishor Chaganlal Tapadiya,
Tapadiya Terraces, Adalat Road,
In front of Family Court, Aurangabad 431001,
R/o Pink Palace, Nirala Bazar,
Samarth Nagar, Aurangabad.
2. M/s Kasliwal Constructions Ltd.,
Through owner Sanjay Suganchand Kasliwal,
215, 1st floor, Building No.3, Apna Bazar,
Opp.Guru Nanak petrol pump,
Jalna Road, Aurangabad 431001. ...RESPONDENTS.
CORAM : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Smt.Uma S.Bora, Hon`ble Member.
Present : Adv.Mr.P.F.Patni for M/s Kasliwal Construction, Adv.Mr.Rahul Joshi for org.complainants.
O R A L JUDGMENT (Delivered on 29th July 2015) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. Challenge in both these appeals is the judgment and order dated 21.9.2013 passed by District Consumer Forum Aurangabad partly allowing complainants' claim against appellant Kasliwal Construction Ltd./original opponent No.2 directing it to pay to respondents 1 & 2/org.complainants Rs.4 lakhs towards repairing charges of the row-house and further to hand over the parking space. Further appellant/opponent No.2 is directed to issue completion certificate and bear the electric motor expenses and maintenance till the work of septic tank and drainage is made etc. Further appellant and respondent No.3 i.e. original opponents 1 & 2 are directed jointly and severally to pay to the complainants compensation Rs.25,000/-
3 F.A.No.:333 & 334/2013towards mental agony and Rs.1000/- more towards cost of the proceeding.
(For the sake of brevity appellant M/s Kasliwal Construction Ltd. and respondent No.3 M/s Tapadiya Construction Ltd. are hereinafter referred as opponents and respondents 1 & 2 in appeal No.333/13 and appellants in appeal No.334/13 are referred as complainants)
2. Brief facts giving rise to these appeals are that:-
In the year 2008-09 opponents had launched a housing project under the name and style as "Devgiri Valley" in the field Gut No.155 of village Mitmita, Tq & Dist. Aurangabad. The same scheme was published giving advertisement in local newspaper and also circulating brochure. On 4.6.2009 complainants procured the brochure and also going through advertisement booked row-house No.G-22 by paying Rs.51,000/- towards booking charges. It was agreed to purchase the row-house for consideration of Rs.16 lakhs. Thereafter on 3.7.2009 complainants paid Rs.2 lakhs, on 7.10.2009 Rs. 5 lakhs, on 16.10.2009 Rs.5 lakhs and on 2.11.2009 Rs.3,49,000/-. Thus the complainants paid entire amount of consideration to the opponents and opponents executed registered sale-deed dated 6.2.2010 in favour of complainants. After executing the sale deed the complainants also put in possession of the row- house. But according to the complainants construction of row-house is not made as per sample flat and also as per specifications which were shown in the brochure. According to them, opponents used substandard building material. After receiving the possession of the row house complainants noticed that the plaster is being not proper, cracks are developed. Doors and door frames, latches,bolts and hooks etc. are being of substandard quality are broken. Joints of flooring tiles are also not in level. The height of toilet and bath room is being higher than height of hall, water from bath room is accumulating in 4 F.A.No.:333 & 334/2013 the hall. The plumbing fitting was also left incomplete. Oil paint was also not proper. Parking place was not left. Moreover, it is alleged by complainants that opponents illegally started recovering maintenance charges. Thus according to the complainants, opponents committed deficiency in service and also unfair trade practice. Complainants have also alleged that opponents have illegally recovered excess electricity connection charges and failed to obtain and supplied completion certificate and when the complainants made enquiry with the employees of opponents they extended threats asking them to do whatever they can. Therefore complainants have filed consumer complaint claiming directions for making necessary repairs and further to repay the amount of Rs.30,000/- which the opponents have recovered and also amount of Rs.40,000/- which opponents received from them at the time of registration of sale deed. In the alternative they have claimed amount of Rs.5 lakhs towards cost of the deficiencies and further compensation Rs.40,000/- towards mental agony and physical harassment and Rs.10,000/- towards cost of the proceedings.
3. Opponent No.2 M/s Kasliwal Construction by its written version resisted the complaint on the following among other grounds:-
It did not dispute that row house No.G-22 is sold to the complainants for a consideration of Rs.16 lakhs. It also did not dispute that complainants paid the entire amount of consideration as submitted by them. It did not dispute that sale deed dated 6.2.2010 is executed in favour of complainants and thereafter delivered the possession of row house. However, it is denied that construction of the row house is not as per specifications given in the declaration and also brochure etc. It is specifically denied that building material used for construction is substandard quality. It is also denied that opponents have recovered excess amount Rs.30,000/- for obtaining electric connection and Rs.40,000/- more as alleged. It has denied all 5 F.A.No.:333 & 334/2013 other adverse averments made by complainants and submitted that after receiving possession of row house, complainants have filed false complaint and submitted to dismiss the complaint with cost and claimed compensatory cost Rs.5000/-.
4. No written version appears to have been filed by opponent No.1.
5. On hearing both side and considering evidence on record District Consumer Forum held that opponents have committed the deficiency in service as alleged by complainants. In keeping with these findings Dist.Consumer Forum partly allowed the complainant's claim as noted above.
6. Feeling aggrieved by that judgment and order , opponent No.2 M/s Kasliwal Construction Ltd. came to this Commission by filing appeal No.333/13 and complainants not being satisfied with the amount of compensation and repairing charges filed appeal No.334/13 for enhancement of repairing charges and compensation.
7. We heard learned counsel for the complainants & opponent No.2 and perused the written notes of arguments submitted by them. We have also perused the copy of impugned judgment and order, copies of complaint , written version, declaration deed, sale deed, photographs, and other documents. However, we have had no opportunity to hear the opponent M/s Tapdiya Construction Ltd. as nobody for it appeared despite service of notice and therefore appeals against it came to be proceeded exparte.
8. Mr.P.F.Patni learned counsel for opponent No.1 submitted that though the complainants have not raised any objection at the time of getting sale deed executed and also at the time of receiving possession of row-house, subsequently they have falsely filed the complaint alleging that construction of row-house is not proper as per 6 F.A.No.:333 & 334/2013 specifications which were given in the brochure and advertisement. Pointing out from the copy of sale deed he has submitted that complainants have specifically admitted that construction of house is properly made and they have no objection about it. Not only this but they have stated that they will not be entitled to raise any claim against opponents etc. and thereafter received possession of row house. On perusal of copy of sale deed we find much force in the submission of Mr.P.F.Patni learned counsel appearing for the appellant/opponent M/s Kasliwal Construction Ltd. Because in para 3 of the sale deed it is specifically mentioned that the purchaser is satisfied about the quality of construction, amenities, facilities and specifications of the flat. The parties have no claim against each other and purchaser will not be entitled to raise any claim against each other and purchaser will not be entitled to raise any claim even on any ground whatsoever. Similarly the vendor will not be entitled to raise any claim against purchaser on any ground whatsoever.
9. However, Mr.Rahul Joshi learned counsel appearing for complainants submitted that all the deficiencies committed by opponents are noticed by complainants after taking possession of row- house and therefore there was no reason for them to raise any objection at the time of registration of sale deed. Moreover, it is submitted that at the time of execution of registered sale deed opponents had assured to replace the doors etc. after delivery of possession and requested the complainants to take possession. But we find no force in the submission of learned counsel for the complainants. Complainants have also pleaded all these facts in para 3 of their complaint . But if really before getting sale deed executed, if all these facts would have noticed to the complainants, they would not have admitted contents of the sale deed mentioning therein that purchasers are satisfied about quality of construction, amenities, facilities and specification etc. Therefore complainants claim is being hit by principle of estoppel, cannot be sustained.
7 F.A.No.:333 & 334/201310. However, Mr.Rahul Joshi advocate appearing for the complainants relying on the decision dated 21 st August 2002 of Hon'ble National Commission in case "Ghaziabad Development Authority -Vs- Gurudutt Pandey" in revision petition No.152/2000 submitted that since deficiencies noticed in the construction after taking possession complainants have rightly made claim by filing consumer complaints. But we find little force in this submission of Mr.Joshi learned counsel for the complainants. Because when according to the complainants they were assured by the opponents for replacement of doors as they were noticed doors, door frames, latches, bolts, hooks etc. are being of substandard quality were broken before getting the sale deed executed, it cannot be accepted that all the deficiencies in service as alleged by them were noticed after receiving possession of row house. It may be that complainants may have noticed the leakage of water from the roof and developing cracks in the plaster etc. after taking possession. But when the things which are visible it cannot be said that it noticed after receipt of possession of house which also falsify these facts.
11. Apart from the above facts, except the bare contention of complainants that construction quality as well as the building material used by the opponents are of substandard quality, there is no evidence to substantiate such contention. No evidence of any meson or engineer is produced. In order to substantiate it only affidavit of Shri.Prashant Gawali, Power of Attorney Holder of complainant and affidavit of Shrirish Kulkarni are produced on record. On perusal of copy of affidavit of Shrirish Kulkarni it reveals that it is about illegal demand of excess electricity connection charges and registration charges and not anything about quantity of construction and building material. Therefore in the absence of any evidence to show that building material was not used as per specifications and further construction quality is not good cannot be sustained. But it appears 8 F.A.No.:333 & 334/2013 from the copy of impugned judgment and order that District Consumer Forum by relying on the averments made by complainants committed error in holding that opponents committed deficiency in service by using substandard building material and also not providing other amenities as averred by complainants. Therefore Mr.Patni learned counsel appearing for the opponent No.2 submitted that complainants have filed false case after receipt of possession of row-house and without any evidence District Consumer Forum wrongly allowed the complainants claim. He has submitted that the approach of District Consumer Forum is not only illegal but perverse.
12. As far as complainants claim about separate gate and compound wall is concerned Mr.Patni learned counsel for the opponent submitted that though the complainants row house is at the corner no separate gate and compound wall is provided, as there is common compound wall as per the plan. Moreover it is submitted that since the complainant's row-house is at the corner they are entitled to use open space which is by the side of their house. But they cannot claim separate gate. It is further submitted that common gate near the open space by side of the house of the complainants though fixed subsequently, no obstruction is causing to the complainant's right to use the open space etc. However, Shri.Rahul Joshi learned counsel for the complainants submitted that when gate is opened, it causes hindrance to the open space and therefore complainants are deprived from enjoying open space. According to him complainants requested the opponents to fix sliding gate there but opponents are not ready etc. But we find no force in the submission of Mr.Joshi learned counsel for the complainants. Because complainants can close the gate while using the open side. It is not necessary to keep the gate open continuously. Therefore no obstruction will cause in the use of open space by the complainants.
9 F.A.No.:333 & 334/201313. Moreover, it is submitted by Shri.Joshi learned counsel for the complainants that no parking space is left for the complainants though it was agreed by the opponents. It is further submitted that completion certificate is also not provided by opponent and thereby committed deficiency in service . To which it is denied by Shri.Patni learned counsel for the opponent and submitted that there is common parking place in the premises. No individual parking place is shown in the declaration and therefore complainants are not entitled to claim independent parking place, so also independent completion certificate. According to him no individual completion certificate is required. We find much force in this submission of Adv.Patni, because for any construction project no individual completion certificate is expected from competent authority. Further on perusal of deed of declaration it is obvious that no individual parking place was agreed to be given to the complainants. Therefore we have no hesitation to accept the argument submitted by Mr.Patni learned counsel for the opponents.
14. Apart from the above facts Mr.Joshi learned counsel appearing for the complainants submitted that though it was agreed by opponents to provide permanent drainage line and septic tank etc, temporary arrangement is made by the opponents. To which it is denied by Mr.Patni learned counsel for the opponents and submitted that considering the situation of site of the project drainage pipelines as well as water supply line are provided. It is submitted that no such arrangement is mentioned in the deed of declaration. It is further submitted that when complainants have agreed before getting the sale deed executed that they have no any complaint about amenities, now they cannot claim it. As pointed out above, on perusal of sale deed we have no hesitation to accept the arguments advanced by Shri.Patni learned counsel for the opponents. But it appears from the copy of impugned judgment and order that District Consumer Forum without considering sale deed as well as deed of declaration and without any evidence to substantiate the complainant's claim jumped to the wrong 10 F.A.No.:333 & 334/2013 conclusion that opponents have committed deficiency in service . Therefore impugned order is being unfounded cannot be sustained.
15. In the result, appeal No.333/13 filed by opponent No.2 deserves to be allowed. Whereas appeal No.334/2013 filed by complainants is being devoid of any merit deserves to be dismissed. Hence the following order.
O R D E R
1. Appeal No.333/2013 is allowed and impugned judgment and order is set aside.
2. Whereas appeal No.334/2013 is dismissed.
3. Consumer complaint No.561/2010 stands dismissed.
4. No order as to cost.
5. Copies of the judgment be supplied to both the parties.
Sd/- Sd/- Uma S.Bora, S.M.Shembole, Member Presiding Judicial Member Mane