State Consumer Disputes Redressal Commission
Peerless Developers Limited vs Ms. Sonamoni Biswas on 10 May, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/280/2011 (Arising out of the judgment dated 20.05.2011, passed by the Ld. District Forum Kolkata, Unit-II) DATE OF FILING : 20.06.2011 DATE OF FINAL ORDER: 10.05.2012 APPELLANT : Peerless Developers Limited, 13A, Dacres Lane, 4th Floor, Police Station-Hare Street, Kolkata-700 069. RESPONDENT : 1. Ms. Sonamoni Biswas, D/o Priya Shankar Biswas. 2. Smt. Bandana Biswas, W/o Sri. Priya Shankar Biswas, F/05/001, Peerless Nagar, Panihati, 9F, B.T. Road, Police Station-Khardah, Kolkata-700 114. BEFORE HONBLE MEMBER : Smt. Silpi Majumder. HONBLE MEMBER : Sri. Debasis Bhattacharya. FOR THE APPELLANT : Mr. Tapan Dutta. Advocate. FOR THE RESPONDENTS : 1. In Person. 2. In Person. Silpi Majumder, Member
This appeal is directed by the Appellants-OPs against the judgment passed by the Ld. District Forum, Kolkata, Unit-II, on 20.05.2011, in the case no- 124/2010, whereby the Ld. Forum below allowing the complaint on contest against the OPs has directed the OPs to remove the damp, black spots from the walls of the verandah, walls and flat, roof of the toilets, wherever they exist using standard materials, damp proof etc, reconstruct the floor so that no damp occurs from the seepage of water beneath the floor, repair all concealed plumbing lines and the toilets of the Complainants so that the discharge from those toilets does not percolate into the toilets below, within two months from the date of receipt of a certified copy of this order, failing which the estimated cost of Rs.1,58,000/- as made by the Registered Valuer Shri Manojit De is to be paid to the Complainants for undertaking the repair works themselves with interest @18% p.a. from the date of filing the complaint till realization. The dwellers of the 1st floor are directed to co-operate with the OPs and the Complainants by allowing them to repair their toilets. The OPs were further directed to pay a sum of Rs.60,000/- to the Complainants as compensation for causing harassment, mental agony and dragging them to this Forum.
Being aggrieved by the abovementioned judgment and order the Appellants-OPs have preferred the present appeal before this Commission contending that the Ld. Forum below has failed to understand the actual proposition of the Law of Limitation which debarred the Complainant to file the instant complaint case out of which the present appeal has arisen and erroneously held that the complaint case is not time barred. The Ld. Forum below has failed to appreciate the principles of Law and came to the conclusion that mere writing of series of letters by the Complainants to the Appellants herein having no response and/or admission from the end of the Appellants could have saved the period of limitation and thus caused a grave miscarriage of justice. The Ld. Forum below ought to have held that the unilateral writings of letters could not have extended the period of limitation until and unless there would have been admission from the side of the Appellants. The Ld. Forum below has wrongly interpreted the report of the expert M/s. Mukherjee and Alliance and relying on the said interpretation erroneously held that there were various defects in the flat of the Complainants and on the contrary overlooked the observation and opinion of the said M/s. Mukherjee and Alliance has categorically held that it was not necessary for effecting repairs of the said flat and thus committed a serious mistake in allowing the issues in favour of the Complainants. It has been stated in the ground of memorandum of appeal that the Ld. Forum below has given undue importance to the exparte inspection conducted by Sri. Manojit De, LBS, where M/s. Mukherjee and Alliance conducted inspection in presence of both parties (Complainants and the OPs). Thus the Forum below has acted against the concept of impartiality and committed a serious injustice and irregularity. The Ld. Forum below has erroneously held that the defects pointed out by Sri. Manojit De could have been easily avoided by using standard materials including damp proof and exercising due care and caution at the time of construction, which observation is absolutely hypothetical in a judicial conception and conclusion since the Ld. Forum is not the expert in the line of construction and thus committed a gross mistake. The Ld. Forum below has acted beyond its jurisdiction by giving direction to the dwellers of the first floor who were not party to the complaint case and thus committed a gross miscarriage of justice. According to the Appellants the judgment passed by the Ld. Forum being erroneous, illegal is liable to be set aside and prayer has been made by the Appellants to allow the present appeal.
The case of the complainant is that they booked a flat on 16-08-2004 by paying Rs.50,000/- to the OP vide receipt No-5697 dated 16-08-2004 as a part payment towards the total consideration. The complainants reached on an agreement on 28.09.2004 with the OPs to purchase a flat No-F/05/001 for a total consideration of Rs.6,35,000/- plus legal charges of Rs.1,000/- and electrical installation charges to be calculated later. As per agreement the Developer, the vendor agreed to sale and transfer and the purchaser agreed to purchase the unit bearing No-001 type F building No-05 with proportionate undivided share in the land situated at Mourya Panihati Bhanipur and Mourya Sukchar, having a built up area of 780 sq. ft more or less. The complainants state that the agreement paid the total consideration and then the deed of conveyance was executed with the OP Company on 29.03.2007. The OP-Company issued possession letter for the flat No-F 05/001 at Peerless Nagar, Sodepur and acknowledged the receipt of Rs.6,78, 150/- on 09-04-2007. Possession certificate was signed by the complainant on 20-03-2007. Formal possession of the flat was endowed by the G.M. to the complainant vide his No. PDL/Regn/07 dated 09-04-2007. On taking possession of the flat in April 2007 the complainants noticed some problems and defects in the flat and took up the matter with the OPs over telephone immediately and also by personal visits to the offices of the OPs repeatedly. A letter was written by the complainants to the OP-1 detailing the troubled being faced by them vide letter dated 16.07.2007, which was received by the OPs on that same day. The co-dwellers of the complaints also wrote a letter to the OP-1 on 23.06.2008 for redressal of their common grievances, which was received by that OP on 30.06.2008.
We have carefully perused the record;
several documents annexed thereto and heard arguments advanced by the parties. Before this Commission the Appellants were present through their Ld. Advocate and the Respondent no-1 in person and the Respondent-2 through her authorized representative.
In appeal the Appellants have relied on an unreported judgment passed by the Honble National Commission on 23.03.2011 in the Revision Petition no-996/2007, arose from the order dated 18.01.2007 in Appeal no-570/1998, Maharashtra State Consumer Disputes Redressal Commission, Pune, in the case between M/s. Prabin Guptey and Associates-vs-Niketa Park Apartments Condominium and others.
In the present case there are some admitted facts as per the petition of complaint. The said facts are (a) the Complainants booked the flat in question on 16.08.2004 by paying a sum of Rs.50,000/-to the OPs as part payment towards the total consideration, (b) the Complainants entered into the agreement foe sale with the OPs on 28.09.2004, (c) the total consideration of the said questioned flat was of Rs.6,35,000/- plus legal charges of Rs.1000/- and electrical installation charges (which was undertaken to be calculated later), (d) the Complainants paid the entire consideration,
(e) the deed of conveyance was executed on 29.03.2007, (g) the OPs issued possession letter for the said flat on 09.04.2007 and acknowledged the receipt of Rs.6,78,150/-, (h) the possession certificate was signed by the Complainants on 20.03.2007 and formal possession of the flat was endowed by the G.M. of the OPs to the Complainants on 09.04.2007 and (i) the instant complaint was filed before the District Forum on 19.04.2010.
From the judgment of the Honble National Commission as relied on by the Appellants we have noticed that the period of limitation as per law will have to be counted from the date of the possession, even the deed of declaration is a different document altogether and the same cannot extend the period of limitation in respect of the deficiency in service. In the given judgment the Honble National Commission has held that possession of the flats were given in 1988-89, consumer complaint was filed in 1994, though deed of declaration was executed on 06.04.1992 and after execution of the deed of conveyance notice was given by the purchasers to the Ops on 29.07.1992 alleging some deviation from the sanctioned plan and deficiencies and the OPs also replied the notice. The said Commission has held that as the possession in the flats was given in 1988-89, the period of limitation as per law will have to be counted from the date of the possession and the same expired in 1991. It has been further held that in any case, all the grievances which were made out by the Complainants through the complaint filed on 01.02.1994, should have been noticed at the time of possession in 1988-89 and hence the same cannot be entertained after lapse of two years period which is prescribed as limitation period for the purpose under law. In view of this, it would be wrong to assume that there was any continuous cause of action and cause of action, if any, had arisen at the time of handing over the possession in the said units in 1988-89 and the complaint, if any, in regard to these units should have been filed within a period of two years. The said Honble Commission has lastly held that as the alleged conversion of the garage into dwelling units was not part of the agreement between the two parties, the same cannot be treated as continuous cause of action.
The abovementioned judgment of the Honble National Commission is very much applicable in the instant case because as per the petition of complaint the formal possession letter in respect of the flat in question was endowed by the OPs on 09.04.2007 after getting it signed by the Complainants on 20.03.2007 and the execution and registration of the deed of conveyance was done in favour of the Complainants on 29.03.2007. As per the National Commissions order as mentioned earlier, the period of limitation as per law will have to be counted from the date of the possession, in the instant case the same expired in 2009 as the formal possession letter was handed over to the Complainants on 09.04.2007, but the instant complaint was filed on 19.04.2010 before the Ld. Forum below. We have noticed that the OPs-Appellants took this point in their written version before the Ld. Forum below that the complaint is barred by limitation and in appeal the Appellants have taken this point in the grounds of memorandum of appeal. The Ld. Forum below after discussing the said point has come to the conclusion that the complaint does not suffer from barred by limitation as a letter was written by the Complainants to the OPs on 16.07.2007 detailing the troubles faced by them and the Complainants along with other co-dwellers made a complaint to the OPs on the same issue on 23.06.2008 and the instant complaint was filed on 19.04.2010. In respect of such observation of the Ld. Forum below and the grounds as taken by the Appellants in this appeal we are to say that in view of the abovementioned judgment of the Honble National Commission the letter dated 16.07.2007 cannot save the period of limitation of this complaint and the letter of 23.06.2008 also fails to save the same as the allegation of the Complainants about problems and defects in then flat in question was not part of the agreement for sale between the two parties.
Having regard to the judgment of the Honble National Commission we are inclined to hold that the petition of complaint is hopelessly barred by limitation as the same was filed beyond the statutory period of two years.
Though the petition of complaint in our opinion is barred by limitation, we are inclined to discuss the matter on merit also.
After taking possession in the respective flat in question the Complainants made several representations in writing with the OPs regarding problems and defects in the said flat. It is stated by the Complainants that after receipt of the letter on 30.06.2008 from the Complainants and other co-dwellers an employee of the OPs went to the flat of the Complainants with a letter dated 10.08.2007 alleging that an authorized representative of the OPs was deputed to inspect their flat on 17.07.2007, but was driven out by the Complainants and so the OPs Would not entertain any complaint. But the Complainants refused the said allegation. It has been further stated by the Complainants that they again wrote a letter on 05.11.2007 to the G.M. detailing the grievances which included seepage of water, crack in the floor, defect in telephone wiring, door stopper, all external surface, repairing of the ceiling of the bathrooms etc and the legal action would be taken by the Complainants as remedial actions were not taken by the OPs. The Complainants have contended that thereafter the OPs undertook some repair work in a most casual manner i.e. the concealed telephone wires were replaced and door stopper was provided. The chemical treatment of the sunshade was undertaken by the OPs to prevent seepage of water, but was not done satisfactorily, the floor below the sink was redone, but it was done in a most casual manner. Thereafter the Complainants made a complaint to the Directorate of Consumer Affairs and Fair Business Practices on 06.05.2009. During tripartite meeting a direction was issued that a meeting was to be held within one month from 19.08.2009 to inspect the extent of damage and to take decision as to the type of repairing work that might be necessary to put the residential flat into a good and decent habitable condition. Thereafter the OPs issued a letter dated 02.09.2009 regarding joint inspection of the flat by the engineer, architect and consultant of the project M/s. Mukherjee and Alliance Engineers Private Limited and the joint inspection was made on 07.09.2009. Though the OPs promised to forward the report to the Complainants, but the allegation of the Complainants is that the said report was not sent to them. On 11.12.2009 the Complainants received an Advocates letter from where they came to know that there was no need for undertaking any repair work in their flat. Thereafter the Complainants engaged Sri Manojit De, LBS approved Valuer of the Calcutta High Court for submitting an estimate for redressing the grievances and alleged hazards being faced by them. The said engineer on inspection of the flat prepared an estimate for Rs.1,58,000/- to make good the lapses of constructional work the estimate of the ceiling of the toilets and external wall as right over the same resides the dweller of the immediate upstairs and the OP themselves. Then the Complainants were advised by the Directorate of CA and FBP, Government of West Bengal and hence the complaint.
Before the Ld. Forum below it was stated by the OPs in their written version that the Complainants signed on the possession certificate on 20.03.2007 after being satisfied about completion of their flat in all respects. In course of inspection conducted in presence of the Complainants in pursuance of the order of the Directorate of CA and FBP, nothing was detected as problem in their flat and the defect of the flat as alleged by the Complainants i.e. seepage of water, crack in the floor, telephone wiring, door stopper, external surface, damp in all ceiling of the bathroom have been denied by the OPs and further denial have been made in respect of the allegation of repairs done casually by the OPs. The OPs have stated that there is no other agreement for doing any repairing works, if necessary. As the Complainants have failed to maintain their flats properly, now they are trying to impose the blame upon the shoulder of the OPs. The OPs have denied all the allegations as made out by the Complainants in the petition of complaint.
We have carefully gone through the Agreement for Sale, from where it is evident in the page 14 of the said Agreement under ARTICLE-IV-PURCHASERS OBLIGATION in the Clause no-(o) that Any defect inside the Uit/Flat will be taken care of by the vendor Developer upto six months from the date of possession. In respect of the said clause we are of the opinion that admittedly within six months from the date of taking possession in the flat in question the Complainants attracted the notice of the OPs in respect of internal defects and damages. As per tripartite meeting held by and between the parties and the Directorate of CA and FBP a joint inspection was made by M/s. Mukherjee and Alliances Engineers Private Limited. During joint inspection several photographs were taken and as per report the inspection was carried out in presence of the Complainants. Now let us discuss on the said report-
1. Damp near the bottom of ventilator of living/dining space-
The observation of the joint inspection is that this mark was created due to seepage of water during rains and is no permanent damp.As such this is no defect which requires any repair
2. Damp between the column and wall junction-
It was observed that they did not find any mark as evident from the photograph, though there are a few white patches which can be due to a number of factors but is definitely not due to water seepage or dampness.
3. Dampness in wall-
They did not find any dampness here too as evident from the photograph, there are a few dark patches which can be attributed to pollution and can be found in all homes now a days.
4. Dark patches in the verandah wall-
These patches are definitely due to pollution and cannot be termed as any defect in workmanship or dampness.
5. Dampness in bathroom walls-
Four photographs have been taken of different portions and no dampness can be found. It is totally baseless to say that any sort of dampness exists here. Some black spots were found at places which can be attributed to the presence of fungus sometimes found in rooms/bathrooms kept in closed condition for long period of time.
6. Dampness in Floor-
There are dark patches in the floor but no dampness was found. The floors have not been cleaned and wiped regularly which led to settlement of dust particles on the floor and caused the dark patches. No rectification is possible as the floor had been re-polished on their request and polishing again would damage the floor further. The occupiers should take care and clean up the floor regularly and should not allow dust particles to settle.
In the conclusion of the said joint inspection report it has been mentioned the flat is being occupied by the present owners for more than two years and has been found to be more or less in sound condition. There is no structural defect and no leakage in sanitary and plumbing lines is evident. The occupiers should maintain the flat in proper condition and keep it well ventilated so as to minimize the observed defect. The few damp patches in the bottom of the wall as discussed in the earlier portion of this report is a common phenomenon and can be found in a number of residential buildings in this region due to high water table. As per the observation and photographs the flat under discussion is highly in habitable condition.
It is evident from the record that said joint inspection was made on 07.09.2009 by Sri. Arindam Mukherjee, structural Engineer and LBS, Kolkata Municipal Corporation. But it is not clear from the four corners of the record that a copy of the said report was forwarded to the Complainants. In our opinion as the same was made in presence of both parties, the Complainants are entitled to get a copy of the said joint inspection report. But it is true that by issuing an Advocates letter on 11.12.2009 the OPs intimated the Complainants that there was no need for undertaking any repair work in their flat.
Though the Complainants have replied in respect of Question numbers 2, 5, 6 so put forward by the OPs in respect of evidence on affidavit filed by the Complainants that a long term business partner/associate of the OPs investigated/inspected the flat, being an interested party in the dispute, their opinions cannot obviously, be neutral one. The report of an interested party, an ally to the OPs is not binding and instead of neutrality it reflects partisan view. The report reflects the view of the OP and hence it cannot be binding upon us. In respect of such reply as made by the Complainants we are of the opinion that though the Complainants made aspersion against the said joint inspection report, but has failed to take any step before the Ld. Forum below praying for further inspection by any neutral inspector by filing a petition thereon.
The Complainants engaged Sri. Manojit De, LBS, approved Valuer of the Calcutta High Court for submission an estimate for redressal of their grievances and hazards being faced by them. We have noticed that the said engineer on inspection of the flat prepared an estimate for Rs.1,58,000/- to make good the lapses of constructional work. In respect of the inspection report given by Sri. Manojit De, we are of the view that though it is mentioned in the petition of complaint that as the OPs did not forward a copy of the joint inspection report to the Complainants for a long period as per tripartite meeting, the Complainants in the meantime engaged Sri. Manojit De for giving them an estimate of redressal of their genuine problems and hazards faced in the flat.
In the paragraph no-43 of the petition of complaint it have been stated by the Complainants that on 15.11.2008 and 25.11.2008 the valuer inspected their flat thoroughly and carefully and prepared a report on 05.01.2009. The date of inspection by Sri. De and the date of the report made by Sri De indicate that before going to the Directorate, CA and FBP the said report was handed over to the Complainants. The report was dated 05.01.2009, tripartite meeting was convened on 02.08.2009, 19.08.2009 and joint inspection was made on 07.09.2009 as per the said meeting. Within the four corners of the petition of complaint nowhere it is stated by the Complainants that the report of Sri Manojit De was disclosed before the Directorate, CA and FBP. Moreover the inspection was conducted by Sri De as per direction of the Complainants; no communication was made on behalf of the Complainants to the OPs to be present at the time of inspection made by Sri De. In the reply also the Complainants have mentioned presence of the OPs was not required. So in our view as the inspection by Sri De was conducted at the instance of the Complainants only in absence of the OPs, the said report cannot be binding on the OPs at all. The joint inspection report is obviously binding on both the parties as during inspection both parties were present and the said inspection was made as per tripartite meeting where the Complainants were also a party. As there was consent of the Complainants in respect of the joint inspection, the report of the joint inspection is also binding upon the Complainants.
As in view of the joint inspection report the questioned flat is highly in habitable and sound condition as well as no repairing is required, we are also of the opinion that the Complainants have failed to establish their allegations by adducing cogent evidence.
We have noticed that the Ld. Forum below has directed the co-dwellers of the said flat in question to co-operate with the OPs and the Complainants. In our opinion the Forum cannot direct the co-dwellers as they are not parties in the instant proceeding.
As there is no merit in the complaint, we are inclined to dismiss the same.
Going by the foregoing discussion hence, it is ordered, that the Appeal be allowed on contest without any cost and the Judgment passed by the Ld. Forum below is hereby set aside. The complaint is also dismissed being barred by limitation as well as on merit.
Sri. Debasis Bhattacharya. Silpi Majumder (Member) (Member)